The Justice Department is expected to declassify more Bush administration documents. (Photo: Jim Young / Reuters Pictures)
The Obama administration declassified nine Justice Department legal memos on Monday that asserted a sweeping view of presidential power, including authorizing the military to search Americans' homes without a warrant and sending detainees to other countries regardless of congressional statutes that might dictate otherwise.
Now civil liberties groups are pushing for the release of dozens of similar memos that remain classified.
About a month ago, the American Civil Liberties Union sent the Justice Department's Office of Legal Counsel a letter and a chart. The chart listed 55 classified Bush administration legal memos on national security issues. The letter basically said, "release these memos."
Some of the memos that the Justice Department declassified Monday were not even on the ACLU's list.
"So there are dozens of memos that are still secret," said Jameel Jaffer, director of the ACLU's national security project. They include "memos that provided the basis for the national security agency's warrantless wiretapping program and memos that provided the basis for the CIA's torture program."
"Those are critical memos, and they're all still secret," he said. Jaffer knows they exist because the government has summarized or listed them in court documents.
Some secret memos have been mentioned with no description of their contents. And presumably some memoranda have never been mentioned at all. So, to paraphrase former Defense Secretary Donald Rumsfeld, there are known unknowns and unknown unknowns.
Surprises in the Memos
One reason there's a lot of interest in these documents is that they could contain some surprises. For example, one memo declassified Monday is dated Oct. 23, 2001. It asserts that the military can ignore Americans' Fourth Amendment privacy rights and conduct searches against suspected terrorists without a warrant. It's a controversial claim, but the public learned about the assertion years ago in a footnote to another Justice Department document. The public did not know about a line in the same memo that said: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."
The Justice Department withdrew all nine of the newly released memos in January. The acting head of the office of legal counsel, Steven Bradbury, formally repudiated them five days before President Bush left office.
Duke Law Professor Chris Schroeder was acting head of the Office of Legal Counsel during the Clinton administration, and he was on the Obama administration's Justice Department transition team. He called the wholesale overturning of legal opinions such as these, "Absolutely unprecedented. I know of no comparable experience that comes remotely close."
Liberal activists say the Bush administration's last-minute about-face is evidence of how far off the rails the Justice Department went in the last eight years. Conservatives say it's a sign that things are going off the rails right now.
David Rivkin worked at the Justice Department under President Reagan and the first President Bush. He says he never would have written these legal memos, and he might have even withdrawn them, but not like this.
"In a normal environment," Rivkin says, "you gently pull it back. In an abnormal environment, you engage in recrimination, vilification, demonization and public repudiation - almost show-trial like. That's a very, very bad way to proceed."
Establishing a "Truth Commission"
The government seems committed to pulling back the curtain further than it already has.
The attorney general and other Justice officials have said they want to declassify more documents from the Office of Legal Counsel. And Wednesday, the Senate Judiciary Committee will hold a hearing into whether to create a "truth commission" - an independent panel to investigate Bush administration policies.
The ACLU's Jaffer says a truth commission could investigate a question that the Justice Department cannot answer: "What conduct was authorized on the basis of these legal memos? Because in some senses these legal memos tell us what the Justice Department thought the executive branch was authorized to do, but they don't actually tell us what the executive branch did."
For example, we now know the military was told it could secretly search Americans' homes. The next question is: Did those searches ever happen?