[Mb-civic] 2001 Memo Reveals Push for Broader Presidential Powers By Michael Isikoff

[Michael Butler]

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  2001 Memo Reveals Push for Broader Presidential Powers
   By Michael Isikoff
   Newsweek

  Saturday 18 December 2004

A Justice Department lawyer may have been laying the groundwork for the Iraq
invasion long before it was discussed publicly by the White House.

  Just two weeks after the September 11 attacks, a secret memo to White
House counsel Alberto Gonzales' office concluded that President Bush had
the power to deploy military force "preemptively" against any terrorist
groups or countries that supported them - regardless of whether they had
any connection to the attacks on the World Trade Towers or the Pentagon.

  The memo, written by Justice Department lawyer John Yoo, argues that there
are effectively "no limits" on the president's authority to wage war - a
sweeping assertion of executive power that some constitutional scholars  say
goes considerably beyond any that had previously been articulated by  the
department.

  Although it makes no reference to Saddam Hussein's government, the 15-page
memo also seems to lay a legal groundwork for the president to invade Iraq
- without approval of Congress - long before the White House had publicly
expressed any intent to do so. "The President may deploy military force
preemptively against terrorist organizations or the States that harbor or
support them, whether or not they can be linked to the specific terrorist
incidents of Sept. 11," the memo states.

  The existence of the memo, titled "The President's Constitutional
Authority to Conduct Military Operations against Terrorists and Nations
Supporting Them," was first reported by NEWSWEEK in the fall of 2001. But
its contents - including the conclusion that Bush could order attacks
against countries unrelated to the 9/11 attacks - were not publicly
available until late this week when, with no notice to the public or the
news media, the memo was posted on an obscure portion of the Web site of
the Justice Department's Office of Legal Counsel. (There is nothing on the
site calling attention to the memo. It is was simply added to a list of
previously published memos posted for the calendar year 2001.)

  A senior White House official alerted a NEWSWEEK reporter to the memo's
posting after mentioning that a copy was also being sent to Sen. Patrick
Leahy, ranking Democrat on the Senate Judiciary Committee, who has been
pressing the White House to release this and other memos in time for
Gonzales' confirmation hearings next month to be attorney general.

  In a footnote that explains why such broad war-making authority is needed,
the memo argues that terrorist groups and their state sponsors "operate by
secrecy and concealment" and it is therefore difficult to establish, by  the
standards of criminal law, what groups are behind particular terrorist
attacks. Moreover, "it may be impossible" for the president to disclose
such evidence even if he has it without compromising classified methods  and
sources.

  But the memo concludes that this should not in any way restrict the
president from ordering whatever military actions "in his best judgment"  he
believes are necessary to protect the country. In the exercise of his  power
to use military force, "the president's decisions are for him alone  and are
unreviewable."

  Addressed to Gonzales' chief deputy at the time, Tim Flanigan, the memo
lays out a line of argument about broad presidential wartime powers that
would be repeated time and again in a series of secret memos to the White
House about controversial decisions in the war on terror. The arguments
pushed by Yoo, a prolific conservative scholar who has since left the
Justice Department, reached what many view as its apex nearly a year later
when, in another memo written by a colleague Jay Bybee, the Office of  Legal
Counsel concluded that the president's powers were so expansive that  he and
his surrogates were not bound by congressional laws or  international
treaties proscribing torture during the interrogation of  detainees.

  The disclosure last June of that Aug. 1, 2002, torture memo, in the
aftermath of the Abu Ghraib scandal in Iraq, provoked a public firestorm
and prompted the Justice Department to withdraw it. Even Gonzales, who had
participated in meetings where the torture memo was discussed, publicly
called its assertions of executive power as "overly broad" and
"unnecessary."

  But neither the White House nor the Justice Department has ever disavowed
- or for that matter publicly discussed - the similar assertions of
presidential power in Yoo's Sept. 25, 2001, memo. What is particularly
striking is that it goes beyond the joint congressional resolution passed
on Sept. 14, 2001, authorizing the president to respond to the terror
attacks. Although the White House had initially sought authority for the
president to "preempt any future acts of terrorism" without any limitation
on those responsible for the attacks on the Pentagon and World Trade
Center, Congress deleted the pre-emption request and narrowed the scope of
the president's authority to attack only those connected with September  11.
"The authority granted is focused on those responsible for the attacks  of
Sept. 11," Sen. Joe Biden stated on the Senate floor in explaining what
Congress intended to authorize.

  But Yoo's memo, written 11 days later, essentially argued that what
Congress authorized didn't matter. "It should be noted here that the Joint
Resolution is somewhat narrower than the President's constitutional
authority," Yoo wrote in the memo, adding that the resolution "does not
reach other terrorist individuals, groups or states which cannot be
determined to have links to the September 11 attacks.

  "Nonetheless," he added, "the President's broad constitutional power to
use military force to defend the nation, recognized by the Joint  Resolution
itself, would allow the President to whatever actions he deems  appropriate
to pre-empt or respond to terrorist threats from new  quarters." The memo
was written at a time when, unknown to the public, officials in the Pentagon
- including Secretary of Defense Donald Rumsfeld  and Deputy Secretary Paul
Wolfowitz - were privately pushing the president  to consider attacking
Iraq. Indeed, according to the September 11  commission, a memo apparently
written by Under Secretary of Defense  Douglas Feith just five days before
Yoo's memo suggested "hitting terrorists outside the Middle East in the
initial offensive, perhaps  deliberately selecting a non-al Qaeda target
like Iraq."

  "Since U.S. attacks were expected in Afghanistan, an American attack in
South America or Southeast Asia might be a surprise to the terrorists,"  the
memo stated, according to the September 11 commission.

  A senior White House official told NEWSWEEK that there is no indication
the Yoo memo was written in the context of a discussion about Iraq. (Yoo,
now a law school professor at Berkeley, did not respond to a request for
comment.) Another White House lawyer at the time said the proper context
for the Yoo memo was a widespread feeling inside the White House that the
country had embarked on a war that was far bigger than the particular al
Qaeda terrorists involved in the attacks. "There was a general awareness
after Sept. 11 that the enemy was not simply al Qaeda - but militant Islam
in general," said Brad Berenson, who served in the White House counsel's
office at the time. The kind of authority Yoo was talking about could be
used by Bush to attack such groups as the Abu Sayef guerillas in the
Philippines, he said, or Hezbollah in Iran, he said.

  "These were memos that were done in the immediate aftermath of 9/11 in
response to a barrage of questions that we gave to [the Office of Legal
Counsel] basically brainstorming what issues could come up," said  Flanigan,
the former deputy White House counsel to whom the Yoo memo was  addressed.
"I don't think that those memos themselves formed the basis of  presidential
action."

 

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