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Civil Case Kick-Started Release of Terror Memos
The Recorder
March 03, 2009
Northern District Judge Jeffrey White
image: Jason Doiy/The Recorder
Civil libertarians and Democrats on Capitol Hill cheered on Monday as the Justice Department released memos that illuminate the Bush administration's legal reasoning in the war on terror.
They might want to send a few claps to Northern District of California Judge Jeffrey White for hurrying the government along.
White has been presiding over litigation brought by Jose Padilla, a U.S. citizen detained as an enemy combatant for years without a hearing. Padilla accuses UC-Berkeley School of Law professor John Yoo of violating his constitutional rights, via the legal opinions Yoo wrote during his time at the Office of Legal Counsel.
In a bid to toss the case, the Justice Department sought to introduce three of the OLC terror memos to show that Yoo's advice really wasn't very substantive. But when it asked that those memos be available only to the lawyers in the case, not to the public, Padilla's attorneys balked.
After President Obama's inauguration, though, the government asked for more time to consider its position. Weeks passed, and nothing was filed. Finally, White issued an order on Thursday directing the government to state its position on the protective order.
By Monday, the Justice Department gave its answer by posting the three memos -- plus six more -- on its Web site. In withdrawing the motion for a protective order as moot, the government said that it was Yoo himself who asked that the memos be filed in the first place.
"Yoo received permission to submit the documents, but only under seal and pursuant to the safeguards of a protective order," DOJ senior trial counsel Mary Mason wrote.
Sen. Patrick Leahy, whose Judiciary Committee had been denied access to the memos, praised Attorney General Eric Holder for releasing them.
"These documents, and those released late last year in response to a Senate Judiciary Committee subpoena, begin to provide details of some of the Bush administration's misguided national security policies," the Vermont Democrat said in a press release.
Among the documents posted Monday is one penned by Jay Bybee, former OLC chief turned 9th U.S. Circuit Court of Appeals judge. In it, Bybee argues that the Posse Comitatus Act does not bar the military from designating Padilla an enemy combatant. Another, which lists Yoo as a co-author, authorizes measures against terrorist threats in the United States that included suppression of freedom of the press.
