The Bush/DOJ Papers: Smoking Guns

A Revelation Of The Brilliance Of George W. Bush’s Legal Counsel

Depicted above is the first section of the October 23, 2001 Justice Department memorandum authored by John C. Yoo, while he was a deputy assistant attorney general, in the George W. Bush administration Justice Department. The memo titled: “Authority for Use of Military Force To Combat Terrorist Activities Within the United States” was the second in a series of nine Bush/DOJ memos recently released to the public by the Justice Department.

In this particular memo the Justice Department counsel is providing an opinion to George W. Bush that in essence says that “President Bush, as president, has the authority to deploy the entire United States military establishment to conduct operations [Interpret that as combat, and everything leading up to or following combat that would be expected by an occupying military force -Big Fella] against persons operating within the borders of the United States.”

The first paragraph of the memo, which is a summary of the findings of the president’s legal counsel, ends with the disturbing sentence:

We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govern law enforcement operations.

It need not follow the exact procedures that govern law enforcement operations, such as obtaining search warrants, such as having to show cause before entering private property or to show cause to seize property, such as showing cause to detain or arrest any person, such as the use of appropriate force, and use of deadly force only to protect others or themselves from imminent death, as applies to anyone in the United States.

The first memo in this series of memos was issued on September 25, 2001 and concerned overriding the Foreign Intelligence Surveillance Act (FISA), the third memo, issued on November 15, 2001 provided the opinion that the president could ignore the Anti-Ballistic Missile Systems treaty with Russia. The fourth memo, issued March 13, 2002 provided the opinion that the president could conduct extraordinary foreign renditions, the fifth memo, issued April 8, 2002 tells the president that it is not necessary for him to get Congress to pass any law authorizing the Military Commissions, the sixth memo, issued June 8, 2002 counsels the president that he may use the military to hold Jose Padilla, an American citizen, as an unlawful enemy combatant. The seventh memo, issued June 27, 2002 tells the president that in the case of Jose Padilla, that the president may ignore Section 4001 (a) of Title 18 of the United States Code which states: “No citizens shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”, that the president can detain or imprison anyone, at his whim.

The totality of the memorandums described above, as issued during a nine month period beginning immediately after the 9/11 attacks, provided the Bush administration, in their minds, all of the legal cover they needed to usurp the Constitution of the United States towards their own, often times, secret ends. The first seven memorandums were issued during the tenure of John Ashcroft, the George W. Bush administration’s first attorney general, they remained in force throughout Ashcroft’s service and continued in force during the entire tenure of the George W. Bush administration’s second attorney general, Alberto Gonzales.

Beginning with the memo issued October 6, 2008, during the tenure of the third and last attorney general in the George W. Bush administration, Michael Mukasey, the president’s counsel began to have second thoughts. This memorandum said in essence: “Whoops, maybe we overreacted when we were scared shitless by the terrorists and we failed to follow our normal, careful deliberative process, and now we take back our words.”

Likely the Justice department, under the leadership of an actual judge, conversant with the law (as opposed to a political operative from the far right and an intellectually clueless sycophant), and cognizant of the mounting pressure from the media and the American public, recognized its need to exercise some parental control over the George W. Bush administration, before the populace became too restive.

Then on January 15, 2009, five days before the expiration of the George W. Bush administration’s term in office, the Department of Justice issues another, still secret memo, stating in essence: that they confirm their opinion of October 6, 2008 rescinding their previous opinions, they explain why, and then they cover their asses and state in essence: that caution should be exercised when relying on any other aspects of the opinions, not explicitly stated.

This is all nothing more than brilliant, inspiring, devious, deceptive and self serving legal work by the George W. Bush administration Justice Department. The George W. Bush legal team had their cake, and ate it too, they imparted upon the president advice that was dubious at best, giving him everything he wanted, cover to if not out and out break the law, severely warp the law, knowing he would not tell anyone what they had said, and then, when the president was about to lose all his power, and his ability to shield them, they (the crafty George W. Bush Justice Department) gave themselves the legal cover to back out of having any responsibility in the matter.

Not only will these machinations go down in history, they well may provide a perennial object lesson and case study for law students for generations to come: How to provide your client with the most incorrect legal advice possible, while absolving yourself of any responsibility, and get paid for it throughout the entire process.

Let us all hope that Eric Holder’s Justice Department, under the Barack Obama administration have their ethical values calibrated appropriately.

The complete memorandums can be found here:

September 25, 2001

October 23, 2001

November 15, 2001

March 13, 2002

April 8, 2002

June 8, 2002

June 27, 2002

October 6, 2008

January 25, 2009


Have the dominoes started to fall?  Today they are talking about the DOJ seeking the disbarment of John Yoo over on Jonathan Turley’s blog:

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6 Responses to The Bush/DOJ Papers: Smoking Guns

  1. Stanley says:

    What I find so very confounding about this whole “I am the King” thinking is it comes from the same administration Yoo-Hooies” that rever all those “strict constructionist” judges that believe in the literal interpretation of the US Constitution (not to mention the Bible). What happened here? I guess maybe the conservative “Heritage Foundationers” and the “J. Edgar Hoover Institute” boys are into situational ethics, just like all those Pinko Liberal Whacko’s from La La Land, that they profess to hate so much.

  2. Nothing new under the sun. Suspension of consitutional rights justified by “military necessity” has a long history in the United States. During the Civil War, Lincoln abolished habeas corpus, which in the English legal tradition dates back to Magna Carta! If that’s not recent enough for you, check out the depredations we visited on our own citizenry during the World War I-era Palmer Raids.

    As a devoted civil libertarian, I was mightily distressed by the excesses of the Bush years. That said, I feel compelled to point out that our Constitutional system continues to work as designed, because Americans have challenged many of these decisions-by-fiat successfully, and the corrections to the grotesque over-reaching by the Executive Branch began long before Bush left office and are accelerating under the Obama administration.

  3. Big Fella says:

    Barry, I was aware of the actions Lincoln took, but did he take them in secret, like Bush II, or in the open. I agree that our Constitutional system still works, despite what I view as a criminal intent to subvert it by an out of control administration, but because of skeptical and aware advocates of civil liberties. The lesson to be learned here, if there is one, is that we must always be vigilant.

  4. Stanley says:

    As Duke University law professor Walter Dellinger pointed out the US Constitution reserves “all legislative powers” under Article I to “declare war…and make rules concerning capture on land and water” as well as “regulation of the land and naval forces”, to Congress.

    For Yoo and the other Bush lackeys in the Justice Department to assert that Bush had the Constitutional authority to imprison US citizens without regard to due process or that no law could limit the president’s power in fighting terrorists was, and continues to be against the highest law in our country, the US Constitution.

    Again, what exactly are “strict constructionists” according to Yoo and the others manning the Department of Justice of the US?

  5. Big Fella says:

    Whew, for a minute there, Stanley, I thought you were going to cite Duke Cunningham, another ethically challenged individual.

  6. Stanley says:

    Or, for that matter, I probably could have gotten you to turn “white as a sheet” if I had quoted David Duke (not the uncle of Daisy Duke as some may have concluded).

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