The Obama Justice Department has released nine legal memos drafted in the aftermath of 9/11 that bypassed the Constitution to justify near-dictatorial powers for then-President Bush.
A memo for the file written five days before the Bush administration left office formally repudiated the still-secret memos "because of the doubtful nature of these propositions." Doubtful, indeed.
One of those propositions was that Congress basically had no say in national-security matters. The president could deploy troops at home to conduct raids and fight terrorists; the president could wiretap without warrant; the Fourth Amendment protections against unwarranted search and seizure didn’t apply in wartime; and the president could unilaterally abrogate treaties.
One memo, dated Oct. 23, 2001, sweepingly found, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."
The long-standing Posse Comitatus Act bans the military from law-enforcement operations. The memo justifies the domestic use of the military to conduct raids, seize evidence and hunt terrorists on the grounds that they were national-security, not law-enforcement, functions.
That kind of cute reasoning was also evident in a memo justifying the extraordinary rendition of prisoners to countries that torture prisoners. It is important, the memo said, "that the United States not enter in an agreement with a foreign country, explicitly or implicitly, to transfer a prisoner to that country for the purpose of having the individual tortured." That way, there’s no criminal liability for the transfer "even if the foreign country receiving the detainee does torture him."
The memos declared that Congress had no authority to intervene legislatively in the detention, interrogation, prosecution, transfer and treatment of detainees. All those matters were at the sole discretion of the president. The Supreme Court overturned that proposition.
Admittedly, the months immediately following 9/11 were hectic and confused, but did the drafters of these memos ever consider that by jettisoning the underpinnings of American democracy we would be fighting a war not of principle but purely for revenge?