[A-List] Memo Reveals Push for Sweeping Executive Powers - Newsweek Dec. 18, 2004

[Ralph Johansen <michele@xxxxxxxx>]

*<**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.”> **

http://www.msnbc.msn.com/id/6732484/site/newsweek/

2001 Memo Reveals Push for Broader Presidential Powers

A Justice Department lawyer may have been laying the groundwork for the 
Iraq invasion long before it was discussed publicly by the White 
House,Yoo argued that force shouldn’t be reserved for al Qaeda,

WEB EXCLUSIVE,

By Michael Isikoff,
Newsweek,
Updated: 5:45 p.m. ET Dec. 18, 2004

*

*Dec. 18 - 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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