The secret legal opinions issued by Bush administration lawyers after the Sept. 11 attacks included assertions that the president could use the nation’s military within the United States to combat people deemed as terrorists and to conduct raids without obtaining a search warrant.
That opinion was among nine that were disclosed publicly for the first time on Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency. The opinions showed a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, deal with detainees suspected of terrorism while rejecting input from Congress, and conduct a warrantless eavesdropping program.
Some of the legal positions had previously become known from statements made by Bush administration officials in response to court challenges and congressional inquiries. But the opinions provided the clearest illustration to date of the broad definition of presidential power that was approved by government lawyers, including John C. Yoo and Jay S. Bybee, in the months following the Sept. 11 attacks.
In a memorandum dated Jan. 15, 2009, just before President George W. Bush left office, a top Justice Department wrote that the earlier memorandums had not been relied on since 2003. But the official, Stephen G. Bradbury, who headed the Office of Legal Counsel, said it was important to acknowledge in writing “the doubtful nature of these propositions,” and he used the memo to formally repudiate the opinions.
Bradbury said that the earlier memorandums were the product of lawyers confronting “novel and complex questions in a time of great danger and under extraordinary time pressure.”
The opinion authorizing the military to operate on domestic territory was dated Oct. 23, 2001, and written by Yoo, at the time a deputy assistant attorney general, and Robert J. Delahunty, a special counsel. It was directed to Alberto R. Gonzales, then the White House counsel who had asked whether Bush could use the military to combat terrorist activities inside the United States.
“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Yoo wrote to Gonzales. Any objections based on the Fourth Amendment’s prohibition against unreasonable searches would vanish, he said, because any privacy offense that comes with such a search would be less than any injury from deadly force.