The Bush Legal Memos

Ken AshfordBush & Co., Constitution, War on Terrorism/TortureLeave a Comment

As much as possible, I've resisted Bush-bashing since he was ushered out of office.  He's gone, let's go forward I figure.

But certain legal memos of the Bush Administration, released yesterday, really are truly frightening.  Michael Isikoff from Newsweek gives an example:

In perhaps the most surprising assertion, the Oct. 23, 2001, memo suggested the president could even suspend press freedoms if he concluded it was necessary to wage the war on terror. "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," Yoo wrote in the memo entitled "Authority for Use of Military Force to Combat Terrorist Activity Within the United States."

This claim was viewed as so extreme that it was essentially (and secretly) revoked—but not until October of last year, seven years after the memo was written and with barely three and a half months left in the Bush administration.

That's right.  In a time of war, the president could (or so it was argued) legally suspend First Amendment rights.


The PDF of that particular memo is here.  It also explains that Fourth Amendment rights (searches and seizures) can be avoided too.

The memo looks and reads like it was written by an articulate and educated person.  There are cites to cases, etc.  The problem however is that it is, well, bullshit.

Can you imagine — in this country — that the president should be able to prohibit speech, close down news venues, etc. simply because he needs to "wage war successfully"?  Yes, certain speech can be limited at any time (shouting "fire" in a crowded theater, or "speech" which reveals troop movements, etc.).  But the startling thing about the memos is that it wrests power from the courts to decide when and how that should be applied, and gives it exclusively to the Chief Executive.  That's a power grab of monumental significance.

That same memo also makes a hatchet job of the Posse Comitatus Act, the law which forbids the military from engaging in domestic law enforcement.  How does Yoo get around the Posse Comitatus Act?  By saying it overcome by the military’s national security function.  Essentially, he simply asserts that the PCA can be ignored in the interests of national security, and the President solely gets to decide when that would be.

Look, there are two kinds of lawyers: advocates and advisors.  Advocates are given a position and try to find cases and law which support that position.  Trial lawyers are advocates for their client (whether it be the state, a company, an accused, or whoever).

But legal advisors to the President are just that: advisors.  Their job is to present the true nature of the law — not how the law can be argued to support a particular position.  John Yoo and others in the Bush Justice Department were essentially arguing that the presence of a war allows the Commander-in-Chief to ignore the Constitution.  Literally, that is what they said.  Never mind the obvious fact that the presidential oath requires the President to protect, defend and preserve the Constitution.

It's simply astounding.  Yoo and others have committed legal malpractice by rendering advice so clearly refuted by the vast majority of the law.  These are not merely differences of opinion about that law — these are, as WaPo notes, "legal errors".