Bush-era memos saw rights limits in U.S. terror war

WASHINGTON Tue Mar 3, 2009 6:02am EST

Former President George W. Bush speaks about the war on terror in Atlanta, Georgia in this September 7, 2006 file photo. REUTERS/Jim Young

Former President George W. Bush speaks about the war on terror in Atlanta, Georgia in this September 7, 2006 file photo.

Credit: Reuters/Jim Young

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WASHINGTON (Reuters) - The U.S. military could have kicked in doors to raid a suspected terrorist cell in the United States without a warrant under a Bush-era legal memo the Justice Department made public on Monday.

The memo, from October 23, 2001, also said constitutional free-speech protections and a prohibition on unreasonable search and seizure could take a back seat to military needs in fighting terrorism inside the country.

It was one of nine previously undisclosed memos and legal opinions which shed light on former President George W. Bush's legal guidance as he launched a war against terrorism after the September 11 attacks.

"The government's compelling interests in wartime justify restrictions on the scope of individual liberty," it said.

Other memos held that the president had broad power to detain U.S. citizens suspected of terrorism and to suspend treaty obligations on issues as seen fit.

The memos depict an administration apparently determined to assert sweeping powers for the president after the shock of September 11, and add fuel to critics' charges that fundamental constitutional protections were threatened in the process.

"The current campaign against terrorism may require even broader exercises of federal power domestically," Justice Department officials John Yoo and Robert Delahunty wrote White House counsel Alberto Gonzales in the October 23 memo.

"We do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a (search) warrant," they said.

The Supreme Court has held that the Constitution's Fourth Amendment ordinarily requires a probable cause and a warrant to execute a search. However, the memo said those requirements "are unsuited to the demands of wartime."

Furthermore, it said, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

The Justice Department under Bush had fought a lawsuit by the American Civil Liberties Union which sought to make that and other the legal memos public.

"These memos essentially argue that the president has a blank check to disregard the Constitution during wartime," said Jameel Jaffer, national security director for the ACLU.

The memos could also increase Democratic calls for wide investigations to shed light on Bush's security practices, such as a "truth commission" proposed by Senate Judiciary Committee Chairman Patrick Leahy. Leahy said they help illustrate Bush's "misguided national security policies."

Bush's Justice Department disavowed the early advice in a final memo dated days before U.S. President Barack Obama took office, and Obama later declared all of the memos invalid.

The January 15, 2009 memo from the Bush department's Office of Legal Counsel said: "The following propositions contained in the opinions .... do not currently reflect, and have not for some years reflected, the views of the OLC."

It said the counsel's office had not relied on the opinions since 2003 "and on several occasions we have already acknowledged the doubtful nature of these propositions."

The memos' release was the latest move in the Obama administration's swift repudiation of many of Bush's counterterrorism policies, which have been criticized by U.S. allies and advocates of human rights and civil liberties.

U.S. Attorney General Eric Holder said he intended to release future legal counsel opinions when possible, "while still protecting national security information and ensuring robust internal executive branch debate and decision-making."

The ACLU welcomed the decision to make the documents public but said it hoped this was the first step in a broader release.

(Editing by Eric Walsh)

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