March 4, 2009 – Legal experts said Tuesday they were taken aback by the claim in the latest batch of secret Bush-era memos that the president alone had the power to set the rules during the war on terrorism.
Yale law professor Jack Balkin called this a “theory of presidential dictatorship. They say the battlefield is everywhere. And the president can do anything he wants, so long as it involves the military and the enemy.”
The criticism was not limited to liberals. “I agree with the left on this one,” said Orin Kerr, a law professor at George Washington University. The approach in the memos “was simply not a plausible reading of the case law. The Bush [Office of Legal Counsel] eventually rejected [the] memos because they were wrong on the law, and they were right to do so.”
Defenders of the administration stress that the memos were written during a time of national emergency. Officials feared, and indeed, expected another terrorist attack within the U.S. They were determined to take all possible steps to prevent it. And by the time the Bush administration came to an end, views within the Justice Department had changed dramatically.
Still, critics said some in the Bush administration took advantage of the moment.
“This was a period of panic, and panic creates an opportunity for patriotic politicians to abuse their power,” Balkin said.
The newly released memos were mostly written between 2001 and 2003, and they gave the government broad legal authorization for fighting a new war in a new way. Their common theme was that no laws can limit the president’s power in fighting terrorists.
Congress had prohibited the use of torture by U.S. agents, and it said “no citizen shall be imprisoned” in this country without legal charges. The memos said neither law could stand in the way of the president’s power as commander in chief.
A March 2002 memo, for example, said holding prisoners in wartime “is an area in which the president appears to enjoy exclusive authority, as the power … is not reserved by the Constitution in whole or in part to any other branch of government.”
Duke Law School professor Walter Dellinger said the Constitution gives Congress considerable power for making wartime rules. Article I says Congress has “all legislative powers,” including the power “to declare war … and make rules concerning captures on land and water” as well as “regulation of the land and naval forces.”
“You can never get over how bad these opinions were,” said Dellinger, who headed the Justice Department’s Office of Legal Counsel in the Clinton administration. “The assertion that Congress has no role to play with respect to the detention of prisoners was contrary to the Constitution’s text, to judicial precedent and to historical practice. For people who supposedly follow the text [of the Constitution], what don’t they understand about the phrase ‘make rules concerning captures on land and water’?”
Most of the memos were written by John Yoo, a deputy director of the Office of Legal Counsel. This small, obscure office writes legal opinions for the attorney general and others in the government. Yoo’s memos gave legal guidance to the Defense Department and the White House.
Five days before the Bush administration came to an end, Steven Bradbury, the head of the office, wrote an 11-page memo “for the files” explaining how his office had gone wrong.
Bradbury said many of the legal positions issued between 2001 and 2003 are “not consistent with the current views of OLC.”
