The Justice Department has now released some of the memos written after 9/11 by the Bush administration. Some of it is simply stunning:
The legal memos written by the Bush administration’s Office of Legal Counsel show a government grappling with how to wage war on terrorism in a fast-changing world. The conclusion, reiterated in page after page of documents, was that the president had broad authority to set aside constitutional rights.
Fourth Amendment protections against unwarranted search and seizure, for instance, did not apply in the United States as long as the president was combatting terrorism, the Justice Department said in an Oct. 23, 2001, memo.
“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” Deputy Assistant Attorney General John Yoo wrote, adding later: “The current campaign against terrorism may require even broader exercises of federal power domestically.”
On Sept. 25, 2001, Yoo discussed possible changes to the laws governing wiretaps for intelligence gathering. In that memo, he said the government’s interest in keeping the nation safe following the terrorist attacks might justify warrantless searches.
A newly released Bush administration legal memo from 2002 claimed that the president has an unfettered right to transfer suspected terrorists to other governments without regard for whether they would be subject to torture
I’m actually wondering if this stuff was released now to get our attention away from this almost as stunning bit:
So on Friday, in a move that Al-Haramain’s lawyer called “mind-boggling”, the Obama administration told the federal court, once again, that it did not have the authority to order the government to make the critical document in the case available to the organization’s lawyers. The decision to reveal the document, wrote the government, “is committed to the discretion of the Executive Branch, and is not subject to judicial review.”
Not only does that defy the court once again, but there’s a catch: the court already has the document, which was filed months ago under seal. What’s more, the lawyers for Al-Haramain have already seen it; it was inadvertently turned over to them back in 2004, when the government was busy trying to prove that Al-Haramain was funnelling money to terrorists.
In other words, the government lawyers threatened to physically remove the document from the court files if the Judge insists that he has the right — as he already ruled he has — to allow Al-Haramain’s lawyers to see it.
(go read the article for the bits that explain this). Obviously, this is at a different level than saying the President could ignore or overrule the First and Fourth amendments, but were these Obama administration lawyers really saying they might send the FBI or other group to break into a judge’s office?
6/5/09 Update: The latest is:
A federal district court judge in California yesterday dismissed a slew of lawsuits filed against telecommunications companies that allegedly helped the U.S. government engage in warrantless wiretapping.
Judge Vaughn Walker in San Francisco dismissed the cases because Congress explicitly gave the telecom companies immunity from civil suits in a 2008 amendment to the Foreign Intelligence Surveillance Act, or FISA.
Meanwhile, in a separate ruling in the Al-Haramain case, Judge Walker ruled that the defunct Islamic charity can proceed with its case against the government even without the document that the Obama administration has been trying so desperately to conceal. That document — which the government inadvertently disclosed to Al-Haramain’s lawyers — establishes that the organization was wiretapped, its lawyers say.