The Bush administration secretly concluded after the September 11, 2001, terrorist attacks that it had the authority to wiretap the Internet and telephone calls with virtually no limitations, restrict free speech, and use the U.S. military domestically against suspected terrorists.
Those legal opinions came in a series of memorandums written by U.S. Department of Justice lawyers, including deputy assistant attorney general John Yoo, which were disclosed by the Obama administration on Monday.
Although the broad outlines of the Bush administration's claims to sweeping executive powers were previously known, the newly released memorandums provide a glimpse at both the legal arguments used and the scope of the claims.
An October 2001 memorandum (PDF) by Yoo and special counsel Robert Delahunty, for instance, says that "the president has the legal and constitutional authority to use military force within the United States to respond to and combat future acts of terrorism, and that the Posse Comitatus Act does not bar deployment."
It also envisions the possibility of censorship restrictions that could be slapped on newspapers and the Internet, saying "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."
A September 2001 memorandum (PDF) previews what would become an extensive debate over the National Security Agency's warrantless surveillance program, saying "the president must be able to use whatever means necessary to prevent attacks on the United States; this power, by implication, includes the authority to collect information necessary for its effective exercise."
Yoo is now a law professor at the University of California at Berkeley. Salon columnist Glenn Greenwald has suggested that Yoo could be prosecuted for war crimes; he has been sued by Jose Padilla, the American citizen who detained by the U.S. military for more than three years as an enemy combatant and was subsequently convicted by the criminal justice system.
Some of the Bush administration's sweeping claims to unchecked executive branch powers were struck down by federal courts, including the U.S. Supreme Court--a fact that lawyers from the outgoing administration noted at the last minute in a set of memorandums that explicitly backed away from the earlier claims.
On January 15, just days before Barack Obama took office, Steven Bradbury, principal deputy assistant attorney general, informed federal agencies that the 2001-era memos were no longer valid.
Bradbury's memo (PDF) revised the Office of Legal Counsel's opinions on topics including treaties, torture, and wiretapping, saying those "do not reflect the current views of this office."
One 2002 memorandum (PDF) hinted at how a suspect could be tortured: "So long as the United States does 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."
"Americans deserve a government that operates with transparency and openness," said Attorney General Eric Holder in a statement on Monday. "It is my goal to make OLC opinions available when possible while still protecting national security information and ensuring robust internal executive branch debate and decision-making."
The Bush administration said on Friday that the recording industry's $222,000 courtroom victory shows that the legal system is working against peer-to-peer pirates.
"Cases such as this remind us strong enforcement is a significant part of the effort to eliminate piracy, and that we have an effective legal system in the U.S. that enables rights holders to protect their intellectual property," said Chris Israel, the U.S. Coordinator for International Intellectual Property Enforcement, to CNET News.com.
Chris Israel, U.S. Coordinator for International Intellectual Property Enforcement, in a file photograph
President Bush named Israel, formerly a senior Commerce Department official, to the key copyright post in July 2005. He has an MBA from George Washington University and, before joining the Bush administration, worked for Time Warner's public policy arm.
Israel's comments come a day after the Recording Industry Association of America won a landmark jury verdict in a Minnesota federal court against a woman accused of sharing copyrighted songs on the Kazaa file-trading network.
The Bush administration has adopted a generally expansive view of copyright law, including writing trade deals that include anti-circumvention restrictions. In 2005, the president signed into law the Family Entertainment and Copyright Act, which slaps some file-sharers with additional penalties.
Israel also said: "Piracy impacts many of our most innovative industries, costs American jobs and is a huge threat to our economic competitiveness."
A federal court case involving Internet wiretapping has revealed the Bush administration at its worst.
I don't say this lightly. Senior attorneys from the U.S. Department of Justice showed up before the 9th Circuit Court of Appeals last week and argued that the president should be able to violate federal law--and that judges can't do anything about it.
Excerpt from a Justice Department 'state secrets' brief
Their argument rests on something called the "state secret" privilege, which traditionally has been used to pull the plug on lawsuits that could, for instance, disclose national-security secrets such as a crashed military plane's true mission.
But now President Bush and Attorney General Alberto Gonzales have expanded it to throw out a lawsuit (PDF) saying that AT&T illegally opened its network to the National Security Agency. Their arguments rest on the principle that even if the president is breaking the law, he can get away with it as long as he invokes national security. Courts would be demoted to a clerical role of noting that the "state secrets" privilege has been invoked and dismissing the case post-haste.
This would, if taken to its logical conclusion, allow the president to get away with murder.
Here, of course, we're talking about the Bush administration trying to derail a civil lawsuit against AT&T filed to right a wrong--there's no criminal prosecution--but the principle is the same. (Note that 50 USC 1809 makes it a federal felony to engage "in electronic surveillance under color of law, except as authorized by statute.")
No wonder the judges were skeptical. "The bottom line here is that once the executive declares that certain activity is a state secret, that's the end of it?" Judge Harry Pregerson asked. "No cases, no litigation, absolute immunity? The king can do no wrong?"
These are the kind of questions that journalists should be asking as well, and that's what I'm planning to do through this new blog here on CNET News.com. It's an independent, nonpartisan effort to report on the intersection of technology, law and policy in the areas that affect our lives and liberty.
And because I said it would be nonpartisan, I should acknowledge that the Department of Justice during the Clinton and Carter presidencies invoked the state secret privilege as well. And it's true that perhaps a Gore or Kerry presidency would have veered in the same expansive direction as Bush has. But that lies in the realm of speculation; the reality today is that we have the worrying prospect of a president who would place himself above the law.
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