As usual, Glenn Greenwald delivers with his seminal crtitique on the constitutional implications of nine, newly-released and highly-controversial legal opinions prepared by the U.S. Office of Legal Counsel during the Bush presidency.
The memoranda were relied upon by the Bush administration in prosecution of its so-called "War on Terror."
Let's just look at one of those documents (.pdf) -- entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the U.S." It was sent to (and requested by) Defense Department General Counsel William J. Haynes and authored by Assistant Attorney General John Yoo and DOJ Special Counsel Robert Delahunty. But it's not a "Yoo memo." Rather, it was the official and formal position of the U.S. Government -- at least of the omnipotent Executive Branch -- from the time it was issued until just several months George Bush before left office (October, 2008), when OLC Chief Stephen Bradbury abruptly issued a memo withdrawing, denouncing and repudiating both its reasoning and conclusions.
The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.
...More amazingly still, there is almost certainly a whole slew of other activities that remain concealed, and very well may remain undisclosed for years, as a result of the creepy Orwellian slogans embraced in unison by our political class -- look towards the future, not the past!; only "liberal score-settlers" want an investigation of any of this. That mentality is being aided by a new administration that seems bizarrely desperate to keep concealed the secrets of the old one. As but one example, we know that the Bush administration was engaged in certain surveillance activities aimed at U.S. citizens that were so patently illegal and wrong that even the right-wing fanatics in Bush's own Justice Department (such as John Aschroft) threatened to resign immediately if they didn't cease, yet we still, to this day, don't know what those domestic surveillance activities were.
The most vital point is that all of the documents released yesterday by the Obama DOJ comprise nothing less than a regime of secret laws under which we were governed. Nothing was redacted when those documents yesterday were released because they don't contain any national security secrets. They're nothing more than legal decrees, written by lawyers. They're just laws that were implemented with no acts of Congress, unilaterally by the Executive branch. Yet even the very laws that governed us were kept secret for eight years.
This is factually true, with no hyperbole: Over the last eight years, we had a system in place where we pretended that our "laws" were the things enacted out in the open by our Congress and that were set forth by the Constitution. The reality, though, was that our Government secretly vested itself with the power to ignore those public laws, to declare them invalid, and instead, create a whole regimen of secret laws that vested tyrannical, monarchical power in the President. Nobody knew what those secret laws were because even Congress, despite a few lame and meek requests, was denied access to them. What kind of country lives under secret laws?
See Mr. Greenwald's article, The newly released secret laws of the Bush administration
- Justice Department to Reveal More Bush Administration Legal Memos - Washington Post
- Criminals In The Bush White House, Ctd. - Andrew Sullivan
- What John Yoo's OLC Memos on the Terrorist Surveillance Program Probably Said - Volokh Conspiracy
- Garry J. Wise, Toronto