As we’ve been discussing, DOJ released nine previously unreleased OLC memos yesterday, two of which were Steven Bradbury memos basically saying, "oops, no harm no foul!!"
But they’ve still just released 5 of the 41 memos that the ACLU has requested in FOIA proceedings (as well as two that were not on that list, plus Bradbury’s two "no harm no foul" opinions). Where are the other memos? Why weren’t they released yesterday? Is it because they’re still active (and supporting torture and illegal wiretapping and whatnot??)
The question is especially pertinent given a few things Bradbury said in his January 15, 2008 "no harm no foul" opinion.
The Commander in Chief Is Only Sort Of Bound By the Law
To dismiss several opinions authorizing torture, Steven Bradbury quotes at length responses he made to Teddy Kennedy in 2005 when he still had hopes of becoming OLC head.
The federal prohibition on torture … is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation conducted pursuant to the President’s Commander in Chief authority.
[snip]
The President, like all officers of the Government, is not above the law.
He goes on from there. But then, in a passage not included in his responses to Kennedy (that is, a passage unique to this memo) he says,
We recognize that a law that is constitutional in general may still raise serious constitutional issues if applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II.
To Teddy Kennedy: The torture ban is constitutional and the President is not above the law.
To the file earlier this year: … unless "applied in particular circumstances to frustrate the President’s ability to fulfill his essential responsibilities under Article II."
Psych!!
We Remain Noncommittal about the President’s Authority to Suspend Treaties
And then, in his discussion about whether or not the President is above the law, Bradbury cited a 2007 OLC memo (which we didn’t get yesterday), to say that OLC had not yet weighed in on whether the President can suspend treaties.
The above critique is not meant to be a determination that under the Constitution the President lacks authority to suspend treaties absent authorization from Congress, the text, or background law. The White House did not directly ask that question … and we did not purport to resolve it.
The Loopholes Remaining and the Outstanding Memos
Now, I consider these Bradbury comments very troubling given the memos that DOJ did not turn over.
For example, there are a series of memos from late 2001 and early 2002 that address the Geneva Conventions, OLC/DOJ/AG/State authority to "interpret" treaties, and possible "interpretations" of Article 3 of the Geneva Convention. Plus, there’s one from July 2002 and two from late 2003 on the "applicability" of the Convention Against Torture and the Geneva Conventions. So while Bradbury’s public opinions suggest OLC has never ruled on whether or not the President can suspend treaties, it’s clear that DOJ is still hiding a great deal of discussion about how the President can "interpret" treaties and decide whether treaties are "applicable." And, of course, there’s a giant loophole still in place regarding the question that–per Steven Bradbury–OLC has not "resolved."
But there’s another, more pressing reason why I’m disturbed about what we got and what Steven Bradbury said in his 2009 "no harm no foul" memo.
In that memo, he reproduced a statement that he–Steven Bradbury–made to Teddy Kennedy at a time when he was angling for a promotion to head OLC, which made it seem that he–Steven Bradbury–absolutely believed the President had to abide by Congressional laws prohibiting torture. Then, in his memo from this January, he seems to dramatically limit the statement he made publicly to Kennedy–as much as saying the President is not above the law unless laws have been passed to "frustrate the President’s ability to fulfill his essential duties." The "Presidential frustration" loophole (as I’ll call it) is enough to raise some concerns.
But even more so when you consider two of the other memos that have not been turned over–Steven Bradbury’s own March 2005 memos, memos he wrote as an audition to try to convince David Addington he’s make a good head of OLC. The memos have been reported as re-authorizing the torture approach that Jack Goldsmith had withdrawn in 2004.
In other words, the memos released yesterday do as much to point to the loopholes that they’ve exploited to be able to keep torturing as they reveal any big reversal from those policies.