Some Bush-Era Legal Memoranda For Surveillance Still In Place
Here’s some clarity on a post I wrote Friday. I wondered what Sen. Russ Feingold (D-Wis.) meant when he called on President Obama to withdraw certain Justice Department legal memoranda that remain operative. Which memoranda? Apparently some from President George W. Bush’s second term are still in place.
In a letter — sorry, I don’t have a URL — Feingold wrote to Obama and Attorney General Eric Holder after April’s decision to declassify the Justice Department’s 2002 and 2005 rulings authorizing CIA torture, he urged the new administration to go further:
[O]rder the public release of other memoranda and letters associated with that program, including the July 22,2004 letter of the Attorney General; the August 6,2004 letter of the Acting Assistant Attorney General; the August 2006 OLC [Office of Legal Counsel] memoranda on detention; and the July 2007 OLC memo on interrogation. Moreover, the OLC memoranda should be withdrawn.
Obviously, not all of these are related to surveillance. But Feingold noted that on [January 15, outgoing acting associate attorney Steve Bradbury reaffirmed](http://18.104.22.168/search?q=cache:ZpEGs6MO5DQJ:www.usdoj.gov/opa/documents/memostatusolcopinions01152009.pdf+January+19,2006+Department+of+Justice+Legal+Authorities+Supporting+the+Activities+of+the+National+Security+Agency+Described+by+the+President+(%22NSA+Legal+Authorities+White+Paper%22),&cd=1&hl=en&ct=clnk&gl=us&client=firefox-a) a 2006 unclassified “white paper” on the surveillance programs in a letter clarifying that Bradbury had … withdrawn most of his office’s work authorizing that program. Bradbury:
As set forth in the Justice Department’s white paper of January 19, 2006, addressing the legal basis for the surveillance activities of the National Security Agency publicly described by the President in December 2005, the Department’s more recent analysis is different: Congress, through the Authorization for Use of Military Force of September 18, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001) (“AUMF”), confirmed and supplemented the President’s Article II authority to conduct warrantless surveillance to prevent further catastrophic attacks on the United States, and such authority confirmed by the AUMF could reasonably be, and therefore had to be, read consistently with FISA, which explicitly contemplated that Congress could authorize electronic surveillance by a statute other than FISA. See U.S. Department of Justice, Legal Authorities Supporting the Activities of the National SecurityAgency Described by the President (Jan. 19, 2006) (“NSA Legal Authorities White Paper”). As the January 2006 white paper pointed out, “[i]n the specific context of the current armed conflict with al Qaeda and related terrorist organizations. Congress by statute [in the AUMF] had confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such surveillance to prevent further catastrophic attacks on the homeland.”
Feingold wants that white paper released and formally withdrawn, along with its ilk. The stakes, as the senator puts it:
It is particularly important that your administration act soon to provide the.clarity that is needed before Congress considers the reauthorization of provisions of the USA Patriot Act, as well as possible changes to the FISA Amendments Act. By formally affirming the executive branch’s commitment to adhere to the statutes governing surveillance, your administration can provide the necessary basis for a productive public discussion on how we can defend the American people and their freedoms while fighting terrorism aggressively.