Intimidating the Press

"That view was expressed in a Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

"The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

"The 37-page memo has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

"'Our office recently concluded that the Fourth Amendment had no application to domestic military operations,' the footnote states, referring to a document titled 'Authority for Use of Military Force to Combat Terrorist Activities Within the United States.'

"Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency's Terrorist Surveillance Program, or TSP. . . .

"'The recent disclosures underscore the Bush administration's extraordinarily sweeping conception of executive power,' said Jameel Jaffer, director of the ACLU's National Security Project. 'The administration's lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law.'

"'Each time one of these memos comes out you have to come up with a more extreme way to characterize it,' Jaffer said."

The Abu Ghraib Memo

I coined it the Abu Ghraib Memo in yesterday's column.

David Johnston and Scott Shane write in today's New York Times: "A newly disclosed Justice Department legal memorandum, written in March 2003 and authorizing the military's use of extremely harsh interrogation techniques, offers what could be a revealing clue in an unsolved mystery: What responsibility did top Pentagon and Bush administration officials have for abuses committed by American troops at the Abu Ghraib prison in Iraq and in Afghanistan; Guantánamo Bay, Cuba; and elsewhere?

"Some legal experts and advocates said Wednesday that the document, written the month that the United States invaded Iraq, adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel. . . .

"Scott L. Silliman, head of the Center on Law, Ethics and National Security at Duke University and a former Air Force lawyer, said he did not believe that the 2003 memorandum directly caused mistreatment. But Mr. Silliman added, 'The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere.' . . .

"In an e-mail message, Mr. Yoo, now a law professor at the University of California, Berkeley, rejected the idea that his memorandum helped create a culture for mistreatment.