The new Obama administration being shaped up while filling up the empty seats of each governmental organization, many speculations are circulating around within/outside the nation. Vocal ones raised the emphasis on defence alliances, widening FTAs throughout the globe as a mean to breakthrough the economic hardship, regardless of how effective and accurate analysis it was based on, multilateral cooperation concerning the energy and environment. Last but not the least is the issue with human rights. The chairmen of both House and Senate Judiciary Committee have vocalized on the necessity to establish a Truth Commission investigating any human rights violations during the Bush administration. So far Obama took a rather careful stance, trying not to give an impression it may be viewed as politicised issue. But a series of articles published both within/outside the US suggests the attempt is indeed gradually visualized as time goes by. Will this bring more collaborative allianceship between the US and the ROK in terms of human rights issues?
http://www.youtube.com/watch?v=O1GT-BZvhrw
March 3, 2009
In Legal Memos, Clearer View of Power Bush Sought
By NEIL A. LEWIS
WASHINGTON — 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 terrorism suspects and to conduct raids without obtaining search warrants.
That opinion was among nine that were disclosed publicly for the first time Monday by the Justice Department, in what the Obama administration portrayed as a step toward greater transparency.
The opinions reflected a broad interpretation of presidential authority, asserting as well that the president could unilaterally abrogate foreign treaties, ignore any guidance from Congress in dealing with detainees suspected of terrorism, and conduct a program of domestic eavesdropping without warrants.
Some of the positions had previously become known from statements of Bush administration officials in response to court challenges and Congressional inquiries. But taken together, the opinions disclosed Monday were the clearest illustration to date of the broad definition of presidential power approved by government lawyers in the months after the Sept. 11 attacks.
In a memorandum dated this Jan. 15, five days before President George W. Bush left office, a top Justice Department official wrote that those opinions had not been relied on since 2003. But the official, Steven 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 repudiate them formally.
Mr. Bradbury said in his memo that the earlier ones had been a 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 domestically was dated Oct. 23, 2001, and written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States.
The use of the military envisioned in the Yoo-Delahunty reply appears to transcend by far the stationing of troops to keep watch at streets and airports, a familiar sight in the wake of the Sept. 11 attacks. The memorandum discussed the use of military forces to carry out “raids on terrorist cells” and even seize property.
“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.
The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”
Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.
In another of the opinions, Mr. Yoo argued in a memorandum dated Sept. 25, 2001, that judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants.
Still another memo, issued in March 2002, suggested that Congress lacked any power to limit a president’s authority to transfer detainees to other countries, a practice known as rendition that was widely used by Mr. Bush.
Other memorandums said Congress had no right to intervene in the president’s determination of the treatment of detainees, a proposition that has since been invalidated by the Supreme Court.
The Jan. 15 memo by Mr. Bradbury repudiating these views said that it was “not sustainable” to argue that the president’s power as commander in chief “precludes Congress from enacting any legislation concerning the detention, interrogation, prosecution and transfer of enemy combatants.”
Mr. Yoo, now a law professor at the University of California, Berkeley, is widely known as the principal author of a 2002 memorandum, separate from those made public Monday, that critics have characterized as authorizing torture. That memorandum, signed by Jay S. Bybee, a predecessor of Mr. Bradbury as head of the Office of Legal Counsel, was repudiated in 2004.
The memorandum issued by Mr. Bradbury this January appears to have been the Bush lawyers’ last effort to reconcile their views with the wide rejection by legal scholars and some Supreme Court opinions of the sweeping assertions of presidential authority made earlier by the Justice Department.
Walter Dellinger, who led the Office of Legal Counsel during the Clinton administration and is now a law professor at Duke University, said in an interview that Mr. Bradbury’s memo “disclaiming the opinions of earlier Bush lawyers sets out in blunt detail how irresponsible those earlier opinions were.”
Mr. Dellinger said it was important that it was now widely recognized that the earlier assertions “that Congress had absolutely no role in these national security issues was contrary to constitutional text, historical practice and judicial precedent.”
In a speech a few hours before the documents were disclosed Monday, Attorney General Eric H. Holder Jr. said: “Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battle with our civil liberties. Not only is that thought misguided, I fear that in actuality it does more harm than good.”
Mr. Holder said that the memorandums were being released in light of a substantial public interest in the issue.
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John C. Yoo served for only two years in the Bush administration Justice Department and never rose higher than the rank of assistant attorney general in the legal counsel office. But his bold assertion of executive power and rejection of international law helped shaped some of the administration's most controversial policies, and are likely to have an impact in debates over crucial Constitutional questions for years to come.
When the Justice Department offices were being evacuated Mr. Yoo, then a 34-year-old former law professor whose academic work had focused on foreign affairs and war-powers issues, was asked to stay behind, and he quickly found himself in the department's command center, on the phone to lawyers at the White House.
Within weeks, Mr. Yoo had begun to establish himself as a critical player in the Bush administration's legal response to the terrorist threat, and an influential advocate for the expansive claims of presidential authority that have been a hallmark of that response.
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Mr. Yoo was a primary author of a series of legal opinions on the fight against terrorism, including one that said the Geneva Conventions did not apply and at least two others that countenanced the use of highly coercive interrogation techniques on terror suspects. He also wrote a still-secret 2002 memorandum that gave legal backing to the administration's secret program to eavesdrop on the international communications of Americans and others inside the United States without federal warrants.
After Mr. Yoo left government in 2003 to return to teaching at the University of California, Berkeley, School of Law, an opinion he wrote on interrogations with the head of the legal counsel office, Jay S. Bybee, was publicly disavowed by the White House, a highly unusual step.
While his successors in the Justice Department may have had second thoughts, Mr. Yoo has not backed down. In a combative book, “War by Other Means,” Mr. Yoo was more candid than many of his colleagues about his fervent belief in unfettered executive power.
In the book, Mr. Yoo argued that the Constitution grants the president “the leading role in foreign affairs,” and that the Authorization for Use of Military Force, passed by Congress a week after 9/11, gives the president broad powers to wage the war on terror the way he wants to. Indeed, Mr. Yoo says, “We wrote the law as broadly as we did” to “make sure there could be no claim in the future that the President was acting in the war on terrorism without congressional support.”
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