The Obama administration threw open the curtain on years of Bush-era secrets Monday, revealing anti-terrormemos that claimed exceptional search-and-seizure powers and divulging that the CIA destroyednearly 100 videotapes of interrogations and other treatment of terror suspects.
The Justice Department released nine legal opinions showing that, following the Sept. 11, 2001,terrorist attacks, the Bush administration determined that certain constitutional rights would notapply during the coming fight. Within two weeks, government lawyers were already discussing waysto wiretap U.S. conversations without warrants.
The Bush administration eventually abandoned many of the legal conclusions, but the documentsthemselves had been closely held. By releasing them, President Barack Obama continued ahouse-cleaning of the previous administration's most contentious policies.
"Too often over the past decade, the fight against terrorism has been viewed as a zero-sum battlewith our civil liberties," Attorney General Eric Holder said in a speech a few hours before thedocuments were released. "Not only is that school of thought misguided, I fear that in actuality itdoes more harm than good." The Obama administration also acknowledged in court documentsMonday that the CIA destroyed 92 videos involving terror suspects, including interrogations -- farmore than had been known.
The new administration pledged on Monday to begin turning over documents related to the videosto a federal judge and to make as much information public as possible.
The legal memos written by the Bush administration's Office of Legal Counsel show a governmentgrappling with how to wage war on terrorism in a fast-changing world. The conclusion, reiterated inpage after page of documents, was that the president had broad authority to set aside constitutionalrights.
Fourth Amendment protections against unwarranted search and seizure, for instance, did notapply in the United States as long as the president was combatting terrorism, the JusticeDepartment said in an Oct. 23, 2001, memo.
"First Amendment speech and press rights may also be subordinated to the overriding need towage war successfully," Deputy Assistant Attorney General John Yoo wrote, adding later: "Thecurrent campaign against terrorism may require even broader exercises of federal powerdomestically." On Sept. 25, 2001, Yoo discussed possible changes to the laws governing wiretaps forintelligence gathering. In that memo, he said the government's interest in keeping the nation safefollowing the terrorist attacks might justify warrantless searches.
That memo did not specifically attempt to justify the government's warrantless wiretappingprogram, but it provided part of the foundation.
Yoo, now a professor at the University of California at Berkeley School of Law, did not returnmessages seeking comment.
The memos reflected a belief within the Bush administration that the president had broad powersthat could not be checked by Congress or the courts. That stance, in one form or another, became thefoundation for many policies: holding detainees at Guantanamo Bay, eavesdropping on U.S. citizenswithout warrants, using tough new CIA interrogation tactics and locking U.S. citizens in militarybrigs without charges.
Obama has pledged to close the Guantanamo Bay prison within a year. He halted the CIA'sintensive interrogation program. And last week, prosecutors moved the terrorism case against U.S.resident Ali Al-Marri, a suspected al-Qaida sleeper agent held in a military brig, to a civiliancourthouse.
A criminal prosecutor is wrapping up an investigation of the destruction of the tapes ofinterrogations.
Monday's acknowledgment of videotape destruction, however, involved a civil lawsuit filed in NewYork by the American Civil Liberties Union.
"The CIA can now identify the number of videotapes that were destroyed," said the lettersubmitted in that case by Acting U.S.
Attorney Lev Dassin. "Ninety-two videotapes were destroyed." It is not clear what exactly was onthe recordings. The government's letter cites interrogation videos, but the lawsuit against theDefense Department also seeks records related to treatment of detainees, any deaths of detaineesand the CIA's sending of suspects overseas, known as "extraordinary rendition." At the WhiteHouse, press secretary Robert Gibbs told reporters he hadn't spoken to the president about thereport, but he called the news about the videotapes "sad" and said Obama was committed to endingtorture while also protecting American values.
ACLU attorney Amrit Singh said the CIA should be held in contempt of court for holding back theinformation for so long.
"The large number of videotapes destroyed confirms that the agency engaged in a systematicattempt to hide evidence of its illegal interrogations and to evade the court's order," Singh said. CIA spokesman George Little said the agency "has certainly cooperated with the Department ofJustice investigation. If anyone thinks it's agency policy to impede the enforcement of American law,they simply don't know the facts." The details of interrogations of terror suspects, and the existenceof tapes documenting those sessions, have become the subject of long fights in a number of differentcourt cases. In the trial of Sept. 11 conspirator Zacarias Moussaoui, prosecutors initially claimed nosuch recordings existed, then acknowledged after the trial was over that two videotapes and oneaudiotape had been made.
The Dassin letter, dated March 2 to Judge Alvin Hellerstein, says the CIA is now gathering moredetails for the lawsuit, including a list of the destroyed records, any secondary accounts thatdescribe the destroyed contents and the identities of those who may have viewed or possessed therecordings before they were destroyed.
But the lawyers also note that some of that information may be classified, such as the names of CIApersonnel who viewed the tapes.
The separate criminal investigation includes interrogations of al-Qaida lieutenant Abu Zubaydahand another top al-Qaida leader.
Tapes of those interrogations were destroyed, in part, the Bush administration said, to protect theidentities of the government questioners at a time the Justice Department was debating whether ornot the tactics used during the interrogations were legal.
Former CIA director Michael Hayden acknowledged that waterboarding -- simulated drowning --was used on three suspects, including the two whose interrogations were recorded.
John Durham, a senior career prosecutor in Connecticut, is leading the criminal investigation, outof Virginia, and had asked that he be given until the end of February to wrap up his work beforerequests for information in the civil lawsuit were dealt with.