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We can't forget the past

Posted: Wednesday, March 04, 2009

Even as President Obama urges the country to "look forward" to the huge tasks he has laid out in his first budget, the excesses of the departed Bush administration continue to intrude.

The latest is the release by the Obama Justice Department of its predecessor's legal opinions in the wake of the Sept. 11 terrorist attacks, claiming unprecedented wartime presidential powers.

The release was made in accordance with Obama's promise of more transparency. But it serves to fan stubborn demands among Democrats in Congress for deeper investigations into questionable anti-terrorist practices in the Bush years.

The opinions, all later withdrawn under heavy criticism, addressed the treatment of detainees captured in Iraq, Afghanistan and elsewhere and the interrogation techniques used under the concept that a president has virtually unlimited powers in time of war.

The release did not include opinions that drew most of the public and congressional outrage, allowing the use of torture on suspected terrorists such as simulated drowning, known as waterboarding. These Bush administration opinions originally held that the Geneva Conventions' prohibitions against it were not applicable, but later were abandoned.

Among the documents just made public by Attorney General Eric Holder is a 37-page memo by former Bush Justice legal theorist John Yoo, whose aggressive espousal of unlimited presidential power allowed for torture and warrantless domestic surveillance in wartime. The memo argued the president could authorize direct military raids and property seizures on terrorist cells in the United States, as well as "rendition"--sending detainees to other countries for interrogation of the sort not permitted under U.S. law.

Yoo is a former deputy assistant attorney general in Justice's Office of Legal Counsel who was widely seen as the principal architect of the justifications for the unfettered wartime presidency. Among the bases he claimed was the Constitution's Article II, Section 2 designation of the president as "Commander in Chief" of the armed forces.

Yoo currently is on the law faculty of the University of California at Berkeley, where campus protests against his status have continued as his role has been disclosed and highlighted in the news media. A chief defender of the Yoo opinions was former Vice President Dick Cheney, who throughout his tenure championed the expansion of presidential power, and no only in wartime.

Even after Yoo's departure from the government, the embattled Office of Legal Counsel, whose leadership he had been denied, remained in turmoil, with other legal officials objecting to some broadened interpretations of executive-branch power.

The office's last director, Steven G. Bradbury, wrote in a remarkable memo only five days before Bush left office that the questionable opinions had been disregarded since 2003, but he wanted to emphasize "the doubtful nature of these propositions."

The latest release of Bush Justice Department documents comes in the face of President Obama's insistence that he prefers that the nation concentrate on its pressing business ahead, rather than looking back at the alleged sins of his predecessor and his administration.

But some Democratic liberals in Congress have insisted that the record of the Bush administration, from its invasion of Iraq through the nearly six years of the war under its direction, its controversial detainee interrogation and domestic surveillance policies, be investigated.

Chairman Pat Leahy of the Senate Judiciary Committee has scheduled a hearing today (Wednesday, March 4) on a bill that would create a nonpartisan commission to examine matters of "national security and executive power as related to counterterrorism efforts."

Chairman John Conyers of the House Judiciary Committee is seeking a similar inquiry. Holder's release of the Bush administration memos suggests Obama is more than willing to have Congress take on this retrospective look, as he meanwhile "looks forward" at the expansive menu he has laid before it, and the country.



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