A post by Pat

Eric Holder released a number of Bush DOJ memorandums relating to legal determinations for anti-terror executive powers post-9/11 pertaining to search and seizure, suspension of treaties and other matters. While the suspension of Constitutional rights and extension of Presidential powers are chilling, I have to wonder what is the point of releasing these memorandums to the public except for political purposes. The Bush DOJ repudiated the determinations (although not until January 15, 2009) with the explanation —

The opinions addressed herein were issued in the wake of atrocities of 9/11, when policy makers, fearing that additional catastrophic terrorist attacks were imminent, strived to employ all lawful means to protect the Nation. In the months following 9/11, attorneys in the Office of Legal Counsel and in the Intelligence Community confronted novel and complex legal questions in a time of great danger and under extraordinary time pressure. Perhaps reflecting this context, several of the opinions identified below do not address specific and concrete policy proposals, but rather address in general terms the broad contours of legal issues potentially raised in the uncertain aftermath of the 9/11 attacks. […]

Mindful of this extraordinary historical context, we nevertheless believe it appropriate and necessary to confirm that the following propositions contained in the opinions identified below do not currently reflect, and have not for some years reflected, the views of OLC. This Office has not relied upon the propositions addressed herein in providing legal advice since 2003, and on several occasions we have already acknowledged the doubtful nature of these propositions.

Holder is releasing the memos in the name of transparency. I suppose we are expected to view them in utter horror as a revelation of the dictatorship Herr Bush was building. There is speculation that releasing these documents is part of a buildup to establishing a “truth commission”.

The memos could also increase Democratic calls for wide investigations to shed light on Bush’s security practices, such as a “truth commission” proposed by Senate Judiciary Committee Chairman Patrick Leahy. Leahy said they help illustrate Bush’s “misguided national security policies.”

Holder isn’t repealing the authority. The Bush DOJ repudiated these policies itself. Holder wants everyone to know what the Bush DOJ was thinking at the time because it is harshly authoritarian. It is hypocritical of course because we have reason to dread what powers Obama will assume before he’s through. Frankly, I don’t like many of the assumptions that were made about executive powers. You may disagree. Imagine Obama assuming the same powers.

I believe the immediate post-9/11 authority the DOJ assumed for President Bush is a matter of concern even though I did support what I knew about it at the time. That thinking may have been understandable at the moment but generally speaking it concerns me that a President, any President, could assume such power solely based on a compliant DOJ appointed by that President. We have an opportunity to discuss the circumstances under which such authority is warranted and for how long the authority is granted. These early DOJ opinions were discarded by the DOJ itself for one reason or another over time. If Holder starts granting vast unconstitutional powers to Obama we’ll go out of our minds and properly so. I think we should be consistent in our alarm when our rights are in jeopardy.

We are again in crisis mode. This time an economic crisis. I believe the warnings of an economic breakdown if the right steps are not now taken are credible. So far there have been several costly, in every sense, wrong steps. Every new gigantic spending bill and every encroachment by the federal government into the private sector will be related to saving the nation from economic catastrophe. Unlike the legal rulings giving Bush extreme powers in the face of a lethal terror threat after the murder of 3,000 Americans, the crisis-based actions of the Obama administration are opportunistic with ulterior political motives. Bush never wanted to be nor would he ever have been a dictator. Obama and the doctrinaire Leftists will seize on every opening, large or small, to transform America into a European style welfare state or worse.

It worries me greatly that the federal government under any administration can so easily undermine the Constitution. The treachery of Bush was wholly imaginary no matter what powers his DOJ would willing legitimize. The treachery of Obama is insidiously dangerous because a willing Congress will undertake the dismantling of America one piece of legislation at a time.

Secret anti-terror Bush memos made public by Obama

The Justice Department on Monday released a long-secret legal document from 2001 in which the Bush administration claimed the military could search and seize terror suspects in the United States without warrants. The legal memo was written about a month after the Sept. 11 terror attacks. It says constitutional protections against unlawful search and seizure would not apply to terror suspects in the U.S., as long as the president or another high official authorized the action.

Even after the Bush administration rescinded that legal analysis, the Justice Department refused to release its contents, prompting a standoff with congressional Democrats.

The memo was one of nine released Monday by the Obama administration.

Re: Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001



DOJ release of 9/11 related OLC opinionsFree Legal Forms

  • Interpreting FISA and its Applicability to Presidential Authority
    A number of classified OLC opinions issued in 2001-2002 relied upon a doubtful interpretation of the Foreign Intelligence Surveillance Act (“FISA”). As the Department has previously acknowledge, these opinions reasoned that unless Congress had made clear in FISA that it sought to restrict presidential authority to conduct warrantless surveillance activities in the national security area, FISA must be construed to avoid such a reading, and these opinions asserted that Congress had not included such a clear statement in FISA.
  • Presidential Authority to Suspend Treaties
    Two opinions of OLC from 2001 and 2002 asserted that the President, under our domestic law, has unconstrained discretion to suspend treaty obligations of the United States at any time and for any reason as an aspect of the “executive Power”…
  • “National Self-Defense” as a Justification for Warrantless Searches
    A 2001 OLC opinion addressing the constitutionality of the proposed FISA amendments asserted the view that judicial precedents approving the use of deadly force in self-defense or to protect others justified the conclusion that warrantless searches conducted to defend the Nation from attack would be consistent with the Fourth Amendment.

    We believe that this reasoning inappropriately conflates the Fourth Amendment analysis for government searches with that for the use of deadly force.

    …[T]he circumstances in which deadly force may be employed are highly fact-dependent and require a showing that the officer believed that the suspect posed an imminent threat of harm. The 9/25/01 FISA Opinion’s assertion that “[i]f the government’s heightened interest in self-defense justifies the use of deadly force, then it certainly would also justify warrantless searches” does not adequately account for the fact-dependent nature of the Fourth Amendment’s “reasonableness” review…

For all the foregoing reasons, the propositions highlighted in the nine opinions identified above do not reflect the current views of the Office of Legal Counsel and should not be treated as authoritative for any purpose.

Related memos

  • Memorandum Regarding Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the “Purpose” Standard for Searches (09-25-2001)
  • Memorandum Regarding Authority for Use of Military Force to Combat Terrorist Activities within the United States (10-23-2001)
  • Memorandum Regarding Authority of the President to Suspend Certain Provisions of the ABM Treaty (11-15-2001)
  • Memorandum Regarding the President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations (03-13-2002)
  • Memorandum Regarding Swift Justice Authorization Act (04-08-2002)
  • Memorandum Regarding Determination of Enemy Belligerency and Military Detention (06-08-2002)
  • Memorandum Regarding Applicability of 18 U.S.C. § 4001(a) to Military Detention of United States Citizens (06-27-2002)
  • Memorandum Regarding October 23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to Combat Terrorist Activities (10-06-2008)
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8 Comments | Leave a comment
  1. CinderellaMan says:

    We knew this was coming… an all-out effort to undermine the gains of the NSA, CIA, FBI, and Pentagon to do what is necessary to protect us ( it HAS protected us). All in the name of legal refinement and reinterpretation of the Constitution- obviously, a living document to these people.

    Coming from a guy who was first appointed a judge by Ron Reagan, but who also served Janet Reno under Bill Clinton. A guy who preaches “Victimhood” when he calls us cowards.
    This is not unique to Eric Holder, but seemingly to all African-Americans these days:
    The philosopher Eric Hoffer once wrote that “the plight of the Negro in America is that he is a Negro first and only secondly an individual.” When Attorney General Eric Holder recently called us a “nation of cowards” he was looking through a prism unknown to his Nigerian brothers. Holder, like Mr. Obama, is the product of an education system and a movement for black liberation that is blind to the virtues of individualism. These men and women are coddled products of an inexhaustible grievance industry that has the unfortunate effect of trapping eager and aspiring young black kids into severely limited life choices. Simply put, by saturating their worldview with color, men like Holder and Obama end up closing doors rather than opening them.”

    -http://www.americanthinker.com/2009/02/eric_holders_tragic_prison.html

    No, forget the 10,000 cell phone and internet intercepts being accomplished everyday by our high-tech forensics investigators. We will need a warrant before we, God Forbid, tread on the personal computing rights of some Muslim in Detroit. Forget the use of coercive force to pressure the truth from potential informants known to be an imminent threat to our national security. Forget military tribunals to solve, quickly, efficiently the fate of known terrorists who have been found attempting to kill us. No, lets spend millions of dollars of our precious judicial time protecting their rights.

  2. NavajoSierra says:

    Among other things, this is a diversionary tactic by B.O.’s crew – a good way to keep half of the American public distracted so that they will not notice that they have floated out into the middle of the Baraq mirage without a paddle.

  3. gman says:

    I’m sure this will be modus operandi for Team Obama. As they continue to blunder and pretend to lead America, they will use the “Look what Bush did” smokescreen to keep the heat off their backs and feed the true believers (useful idiots) what they crave. This is going to be a long 4 years.

  4. Sable007 says:

    What do you expect from Victim Holder – Look how badly damaged his ego must have been when his big thing was apparently the armed kidnapping of a 6 year old cuban boy while he was Janet Reno’s junior kid.

    Apparently he has to do something under the color of authority to puff up his self importance and image.

    And, why are we calling Holder an African-American. Which is he? When did he get his citizenship after being born in Africa? Maybe he has African heritage, but Mrs Kerry is real African-American bieng actually born in Africa. Let’s stop with this racist, pandering calling of black americans somebody from Africa like they are less than a real American. Maybe try to get Holder to take the lead on this and declare the term African-American to be demeaning hate speech.

    Then when he gets over his victim pity party, he could start doing the right thing for all Americans instead of an exclusive leaning to only one kind of hyphenated-American.

  5. ashleymatt says:

    What a bunch of sickos: more concerned with taking a pickax to the immediate past President than actually administrating the business of the country. Not to mention more worried about releasing files making Bush look bad than releasing anything about what BHO hears in his intel briefings every morning about the depravity of our enemy.

    The functions of the government are becoming a colossal joke. Normal adults are going to have to take control one day.

  6. ffigtree says:

    While Obambi’s approval ratings are dropping he’s got to remind us how EVIL Bush was.

  7. ffigtree says:

    O is throwing everyone in the vilifying machine: evil oil companies, evil CEO’s, the evil rich, conservative radio talk show hosts and now Bush. O must vilify in order to strengthen his agenda.

  8. CinderellaMan says:

    Hillary defines the left with this scathing attack on the Jewish people:

    http://www.alertnet.org/thenews/newsdesk/JER000064.htm

    Shouldnt’ surprise anyone, considering the Arab support for her campaign warchest and Bill memorial library. Please, this is such a shame.

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