Obama unseals Bush-era wiretap memos

Memos released this week show the Bush administration secretly concluded that it had the power to wiretap the Internet and telephone calls with virtually no limitations.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
3 min read

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."