During the 2004 election, John Kerry got hammered for saying that fighting terrorism was more a matter of law enforcement than military action. Bush argued that Kerry's remarks proved he didn't take the threat of terrorism seriously, and Kerry didn't have the rhetorical talents to defend his position. Kerry was right--there are some aspects of fighting terrorism that are military, such as the war in Afghanistan, but under most circumstances it is a matter of law enforcement.
But the legal memos released yesterday by the Department of Justice show just how important this military mind-set was to the Bush administration's legal rationale for ignoring civil liberties. An October 2001 memo from John Yoo shows that the Bush administration was prepared to view any anti-terrorism activity as fundamentally military and that its potential targets were simply not entitled to constitutional protections. By presenting the fight against terrorism, even within the United States, as a military operation, they could simply disregard the legal protections afforded American citizens.
"In our view," Yoo wrote, "however well suited the warrant and probable cause requirements may be as applied to criminal investigations or to other law enforcement activities, they are unsuited to the demands of wartime and the military necessity to successfully prosecute a war against an enemy." Since the "battlefield" in the war against terrorism was understood by the Bush administration to be the entire planet, any anti-terrorism action could be categorized as a military action and therefore subject to no limits from Congress, the Judiciary, or anyone else, based on Yoo's interpretation of the president's authority as commander in chief.
There are nine memos, and the only one I've managed to read so far is the one dealing with "authority to use military force to combat terrorism activities within the United States," but the New York Times reports that much of the extraordinary authority claimed in the earlier memos was refuted by Office of Legal Counsel chief Steven G. Bradbury in the waning days of the Bush administration.
During Eric Holder's confirmation hearing, Senator Jeff Sessions asked whether Holder agreed that "one consequence of [the OLC's] authority to interpret the law is the power to bestow on government officials what is effectively an advance pardon for actions taken at the edges of vague criminal laws." Holder responded that a "large factor" in deciding whether that was the case depended on whether the opinions were "appropriately" and "in good faith drafted." I can't help wondering whether Bradbury's last-minute repudiation of the earlier OLC opinions suggests that Yoo and others did not act "appropriately" or "in good faith."
-- A. Serwer
