by Faiz Shakir, Amanda Terkel, Satyam Khanna, Matt Corley, Benjamin Armbruster, Ali Frick, and Ryan Powers
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During his confirmation hearings in January, Eric Holder promised that if he became attorney general, he would increase the Justice Department's transparency. Specifically, he pledged to make public controversial memos the Bush administration fought to keep secret. Earlier this week, Holder made good on his promise, releasing nine Bush-era memos that formed the basis for the previous administration's policies on issues such as torture, wiretapping, and the suppression of free speech. Jennifer Daskal of Human Rights Watch said the memos "read like a how-to document on how to evade the rule of law." "Americans deserve a government that operates with transparency and openness," read a statement by Holder, underscoring the clean break with the Bush administration. "It is my goal to make OLC [Office of Legal Counsel] opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making." Also this week, the Obama administration revealed in court documents that the CIA destroyed 92 tapes showing interrogations of detainees -- far more than the Bush administration was willing to admit. In December 2007, the New York Times reported that the CIA had destroyed at least two videotapes documenting suspected al Qaeda operatives being subjected to "severe interrogation techniques."
WHAT THESE MEMOS REVEAL: Some of the memos were released in response to a lawsuit against former OLC attorney John Yoo, by Jose Padilla, whom the United States held for years as an enemy combatant. The Obama administration concluded that there was no classified information in these documents; this admission was a stunning contrast to the Bush era, when officials attempted to maximize government secrecy by increasing the classification of government documents. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) praised Holder's quick release of the memos, saying that they finally "provide details of some of the Bush administration's misguided national security policies." The picture they end up painting is of an administration that believed "the president had broad authority to set aside constitutional rights," as the Associated Press reported. Furthermore, several of the memos -- including ones on extraordinary rendition and First Amendment rights -- were eventually rescinded, reflecting the "major legal errors committed by Bush administration lawyers during the formulation of its early counterterrorism policies."
CREATING A DICTATORSHIP: A memo written by Yoo on Oct. 23, 2001, contained one of the most surprising revelations: the Bush administration considered suspending First Amendment rights. "Freedom of speech is integral to a free society," President Bush said in May 2008. However, seven years earlier, Yoo wrote, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. ... The current campaign against terrorism may require even broader exercises of federal power domestically." After reading the memos, Harpers' Scott Horton wrote, "We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship." In fact, Yoo's memo was too much even for Steven Bradbury, the man who failed to gain Senate confirmation to head the OLC because of his extreme views on torture. On Oct. 6, 2008, Bradbury wrote a memo saying that Yoo's suggestions to ignore free speech were "overbroad" and "not sufficiently grounded."
A BLANK CHECK: Yoo's October 2001 memo also dismissed the Fourth Amendment, claiming that protections against unwarranted searches and seizures could be subordinated in the war on terrorism. Yoo similarly proposed invading Americans' privacy in a Sept. 25, 2001 memo, advocating "warrantless searches for national security reasons." The Associated Press noted that the document "did not specifically attempt to justify the government's warrantless wiretapping program, but it provided part of the foundation." In fact, one of the most controversial memos from the Bush era that many lawmakers have been asking to be released is one explicitly justifying the National Security Agency's warrantless wiretapping. Another major focus of the memos is the treatment of detainees. A March 13, 2002 memo written by then-assistant attorney general in the OLC Jay Bybee argued that the president had the authority to transfer detainees to other countries, whether or not they may be tortured there. Recognizing his controversial proposals, Bybee provided ways for the Bush administration to avoid being held legally liable. "So long as the United States doe[s] not intend for a detainee to be tortured post-transfer, however, no criminal liability will attach to a transfer even if the foreign country receiving the detainee does torture him," he wrote. "These memos were meant to provide the president with a blank check with respect to the rights of not only prisoners overseas but people in the United States as well," concluded the ACLU's Jameel Jaffer.
FINDING THE TRUTH: The release of these memos came as Congress determines how to investigate -- and perhaps even prosecute -- the Bush administration's misdeeds. Yesterday, the Senate Judiciary Committee held a hearing on the creation of a "truth commission" to investigate these wrongdoings. Leahy initially hinted at providing "blanket immunity" to Bush officials willing to testify, but both Sen. Sheldon Whitehouse (D-RI) and House Speaker Nancy Pelosi (D-CA) have warned against this approach. The Justice Department's Office of Professional Responsibility has also put together a report looking at whether Yoo, Bybee, and Bradbury "knowingly signed off on an unreasonable interpretation of the law to provide legal cover for a program sought by Bush White House officials." Whitehouse and Senate Majority Whip Dick Durbin (D-IL) have called on the Justice Department to release this report.