Push for Broader Presidential Powers

Just two weeks after the September 11 attacks, a secret memo to White House counsel Alberto Gonzales’ office concluded that President Bush had the power to deploy military force “preemptively” against any terrorist groups or countries that supported them—regardless of whether they had any connection to the attacks on the World Trade Towers or the Pentagon.

The memo, written by Justice Department lawyer John Yoo, argues that there are effectively “no limits” on the president’s authority to wage war—a sweeping assertion of executive power that some constitutional scholars say goes considerably beyond any that had previously been articulated by the department.
Although it makes no reference to Saddam Hussein’s government, the 15-page memo also seems to lay a legal groundwork for the president to invade Iraq—without approval of Congress—long before the White House had publicly expressed any intent to do so. “The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of Sept. 11,” the memo states.

The existence of the memo, titled “The President’s Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them,” was first reported by NEWSWEEK in the fall of 2001. But its contents—including the conclusion that Bush could order attacks against countries unrelated to the 9/11 attacks—were not publicly available until late this week when, with no notice to the public or the news media, the memo was posted on an obscure portion of the Web site of the Justice Department’s Office of Legal Counsel. (There is nothing on the site calling attention to the memo. It is was simply added to a list of previously published memos posted for the calendar year 2001.)

A senior White House official alerted a NEWSWEEK reporter to the memo’s posting after mentioning that a copy was also being sent to Sen. Patrick Leahy, ranking Democrat on the Senate Judiciary Committee, who has been pressing the White House to release this and other memos in time for Gonzales’ confirmation hearings next month to be attorney general.

In a footnote that explains why such broad war-making authority is needed, the memo argues that terrorist groups and their state sponsors “operate by secrecy and concealment” and it is therefore difficult to establish, by the standards of criminal law, what groups are behind particular terrorist attacks. Moreover, “it may be impossible” for the president to disclose such evidence even if he has it without compromising classified methods and sources.

But the memo concludes that this should not in any way restrict the president from ordering whatever military actions “in his best judgment” he believes are necessary to protect the country. In the exercise of his power to use military force, “the president’s decisions are for him alone and are unreviewable.”

Addressed to Gonzales’ chief deputy at the time, Tim Flanigan, the memo lays out a line of argument about broad presidential wartime powers that would be repeated time and again in a series of secret memos to the White House about controversial decisions in the war on terror. The arguments pushed by Yoo, a prolific conservative scholar who has since left the Justice Department, reached what many view as its apex nearly a year later when, in another memo written by a colleague Jay Bybee, the Office of Legal Counsel concluded that the president’s powers were so expansive that he and his surrogates were not bound by congressional laws or international treaties proscribing torture during the interrogation of detainees.

The disclosure last June of that Aug. 1, 2002, torture memo, in the aftermath of the Abu Ghraib scandal in Iraq, provoked a public firestorm and prompted the Justice Department to withdraw it. Even Gonzales, who had participated in meetings where the torture memo was discussed, publicly called its assertions of executive power as “overly broad” and “unnecessary.”

But neither the White House nor the Justice Department has ever disavowed—or for that matter publicly discussed—the similar assertions of presidential power in Yoo’s Sept. 25, 2001, memo. What is particularly striking is that it goes beyond the joint congressional resolution passed on Sept. 14, 2001, authorizing the president to respond to the terror attacks. Although the White House had initially sought authority for the president to “preempt any future acts of terrorism” without any limitation on those responsible for the attacks on the Pentagon and World Trade Center, Congress deleted the pre-emption request and narrowed the scope of the president’s authority to attack only those connected with September 11. “The authority granted is focused on those responsible for the attacks of Sept. 11,” Sen. Joe Biden stated on the Senate floor in explaining what Congress intended to authorize.

But Yoo’s memo, written 11 days later, essentially argued that what Congress authorized didn’t matter. “It should be noted here that the Joint Resolution is somewhat narrower than the President’s constitutional authority,” Yoo wrote in the memo, adding that the resolution “does not reach other terrorist individuals, groups or states which cannot be determined to have links to the September 11 attacks.

“Nonetheless,” he added, “the President’s broad constitutional power to use military force to defend the nation, recognized by the Joint Resolution itself, would allow the President to whatever actions he deems appropriate to pre-empt or respond to terrorist threats from new quarters.” The memo was written at a time when, unknown to the public, officials in the Pentagon—including Secretary of Defense Donald Rumsfeld and Deputy Secretary Paul Wolfowitz—were privately pushing the president to consider attacking Iraq. Indeed, according to the September 11 commission, a memo apparently written by Under Secretary of Defense Douglas Feith just five days before Yoo’s memo suggested “hitting terrorists outside the Middle East in the initial offensive, perhaps deliberately selecting a non-al Qaeda target like Iraq.”

“Since U.S. attacks were expected in Afghanistan, an American attack in South America or Southeast Asia might be a surprise to the terrorists,” the memo stated, according to the September 11 commission.

A senior White House official told NEWSWEEK that there is no indication the Yoo memo was written in the context of a discussion about Iraq. (Yoo, now a law school professor at Berkeley, did not respond to a request for comment.) Another White House lawyer at the time said the proper context for the Yoo memo was a widespread feeling inside the White House that the country had embarked on a war that was far bigger than the particular al Qaeda terrorists involved in the attacks. “There was a general awareness after Sept. 11 that the enemy was not simply al Qaeda—but militant Islam in general,” said Brad Berenson, who served in the White House counsel’s office at the time. The kind of authority Yoo was talking about could be used by Bush to attack such groups as the Abu Sayef guerillas in the Philippines, he said, or Hezbollah in Iran, he said.

“These were memos that were done in the immediate aftermath of 9/11 in response to a barrage of questions that we gave to [the Office of Legal Counsel] basically brainstorming what issues could come up,” said Flanigan, the former deputy White House counsel to whom the Yoo memo was addressed. “I don’t think that those memos themselves formed the basis of presidential action.”

© 2004 Newsweek, Inc.

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