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.
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