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Tuesday, Mar 3, 2009, 9:15 am

Secret Bush Legal Memos Made Public: OMG

By Jeremy Gantz

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Let's hope the nine secret legal memos the Obama administration made public yesterday are consigned to the ash bin of history.

By now, many of their ideas are familiar, albeit no less troubling. But there are some new jaw-dropping nuggets of statism in these documents, written by lawyers within the Justice Department's Office of Legal Counsel (OLC) after 9/11.

No need to parse them here, other than to note that George W. Bush was quite prepared to declare himself king (in practice) if domestic circumstances had been more dire. They speak for themselves in all their audacious (and thankfully theoretical) glory...From the Chicago Tribune:

...one 2001 opinion authoriz[ed] the military to treat terrorist suspects in the U.S. like an invading army that lacked constitutional rights.

The memos...embraced the view that President George W. Bush, acting alone, had the authority to override the other branches of government.

That legal rationale by the Justice Department's Office of Legal Counsel, in a memo written six weeks after the Sept. 11, 2001, terrorist attacks, would have meant that U.S. soldiers could search houses and seize suspected terrorists without a court-approved warrant. The military never used that power, according to a former Bush administration lawyer, but the memo was the legal basis for some in the administration who wanted to use the military, instead of law-enforcement agencies, to arrest Al Qaeda suspects in the U.S., he said.

The memos disclosed Monday also said the military's need to go after terrorists in the United States might override constitutional protections guaranteeing the right to free speech. One of the legal opinions set the stage for the Guantanamo Bay prison policy by asserting Bush had "the exclusive authority" to decide how prisoners would be detained.

Almost as shameful as the earlier memos is the most recent one, written just five days before Bush left office, in which "many" of the OLC's 2001-03 memos are retracted because they "no longer reflected views of the Justice Department." Principal Deputy Assistant Atty. Gen. Steven G. Bradbury wrote, in perhaps the understatement of the decade, that "we have already acknowledged the doubtful nature of these propositions."

Doubtful indeed. All Americans are lucky that U.S. soil wasn't once again attacked by terrorists during the Bush Era, and not only because of the obvious reason. These memos make even clearer the extent to which the Bush administration was well prepared to significantly alter our democracy in the name fighting terrorism.

They ought to be permanently posted in the Smithsonian so all Americans can read just how close the country came to losing its soul in the name of security.

Jeremy Gantz is a contributing editor at the magazine. He is the editor of The Age of Inequality: Corporate America's War on Working People (2017, Verso), and was the Web/Associate Editor of In These Times from 2008 to 2012. A graduate of Northwestern University’s Medill School of Journalism, he worked as a reporter for The Cambodia Daily in 2007. After graduating from Carleton College in 2004, he lived in Sri Lanka on a Fulbright scholarship, studying the intersection of ethnic politics and public education. His articles have also appeared in Chicago-area newspapers, Alternet and the Onion’s A.V. Club.

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