Frightening Memos From the Office of Legal Counsel

Wednesday, March 4, 2009

IMAGINE A PLACE where soldiers are entitled to burst through doors without warrants and citizens can be locked away without trial. Imagine that the leader of this place has the power to silence dissenters and the press and has the right to keep duly elected legislators from having a voice in these matters. Imagine further that he can unilaterally rip up and disregard any treaty he dislikes and that he has been told he is on solid legal ground by a hand-picked circle of advisers.

This is not some lawless Third World country or dusty fictional outback from a sci-fi movie but the United States of America, as described in a series of newly released Justice Department memos from the early years of the Bush administration.

Some of the ideas in these memos, authored by lawyers in the Justice Department's elite Office of Legal Counsel, have been known for some time, and later iterations of the Bush Justice Department repudiated many of the principles the memos espouse. What their public disclosure this week makes clear is how intellectually dishonest Bush-era lawyers were in coming to these preposterous conclusions.

Many of the memos conflate and distort existing statutes and case law to give Mr. Bush the answers he wants. For example, a Sept. 25, 2001, memo concludes that law enforcement officers need not obtain search warrants to conduct intelligence operations inside the country. The legal reasoning: Foreign intelligence constitutes "national self-defense." In other contexts, courts have ruled that the use of deadly force in self-defense is justifiable under the Fourth Amendment. Therefore, the memo concludes, "if the government's heightened interest in self-defense justifies the use of deadly force, then it also certainly would justify warrantless searches." Never mind that Congress specifically passed the Foreign Intelligence Surveillance Act in the 1970s to forbid such warrantless searches.

Steven G. Bradbury, the last Bush administration lawyer to head the OLC, spelled out in a mid-January memo the OLC's ultimate rejection of the conclusions outlined in the eight OLC opinions that were released this week. He also explained that the original decisions were made "in the wake of the 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."

Fair enough. But those are precisely the kinds of circumstances that can lead even competent officials to embrace deeply flawed positions that lead to disgraceful results. And that is precisely why such opinions must be made public whenever possible or at least be shared with lawmakers with relevant oversight authority and appropriate clearances.

Attorney General Eric H. Holder Jr. took a step in the right direction by releasing these memos and by reportedly preparing to release more. He must now ensure that his own Office of Legal Counsel does not make the same mistakes.

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