Dozens of secret Bush surveillance, executive power memos found; Could be made public

By John Byrne

Details about more than three dozen secret memoranda written by Bush Administration officials now sit atop a chart created by a public interest reporting group. The memos track new details about dozens of secret Bush Administration legal positions on torture, detention and warrantless wiretapping.

Meanwhile, Obama’s freshly-confirmed Attorney General Eric Holder told senators that he was open to declassifying White House legal memos if no support for their original classification could be found, signaling a likely showdown with former President George W. Bush over executive privilege.

“The Bush administration’s controversial policies on detentions, interrogations and warrantless wiretapping were underpinned by legal memoranda,” Pro Publica’s Dan Nguyen and Christopher Weaver write. “While some of those memos have been released (primarily as a result of ACLU lawsuits), the former administration kept far more memos secret than has been previously understood. At least three dozen by our count.”

Nguyen and Weaver produced the chart. Propublica was founded in 2007 as a non-profit driven investigative news outlet and is run by a former managing editor from the Wall Street Journal.

The chart lists 40 memos that remain secret, along with identifying the 12 that have been made public.

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Given the chart, one can find the exact date a memo was written, its author and sometimes short details the authors have gleaned from other sources.

Among the memos’ titles: “Criminal Charges against U.S. terrorists”; “Options for Interpreting the Geneva Convention” and “Fourth Amendment doesn’t apply to military operations abroad or in U.S.”

Little is known about the specifics or the resulting effect of the other clandestine briefs.

For example, the effects of the secret Fourth Amendment memo could be stunning. Former Attorney General Alberto Gonzales said in another memo that the White House’s lawyers had concluded that the Fourth Amendment’s protections against warrantless search and seizure don’t apply to the US military — even when the operations take place on U.S. soil.

Holder told senators in response to questions sent to him before his confirmation hearings that he’d take an aggressive stance with regard to releasing the White House legal opinions his predecessors’ had labeled as secret.

“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns,” Holder wrote.

Holder’s comments were first noted by Secrecy News‘ Steven Aftergood.

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