Department of Justice releases superseded memos on presidential authority regarding treaties, detentions, and other matters.

• Author: Crook, John R.

In March 2009, the U.S. Department of Justice released nine previously undisclosed documents prepared in the Office of Legal Counsel (OLC) relating to such matters as presidential power to suspend articles of the Anti-ballistic Missile (ABM) Treaty, the transfer of detainees to other countries, military detention of U.S. citizens, and other domestic and international law aspects of the Bush administration's antiterrorism policies. (1) These documents included memorandums from October 2008 and January 2009 indicating that propositions adopted in OLC opinions between 2001 and 2003, which asserted novel and expansive interpretations of constitutional and international law, were no longer operative. Some of the released documents were sought in a civil lawsuit filed in California by Jose Padilla against former OLC official John Yoo. (Padilla, a U.S. citizen, was held for several years as an enemy combatant before being transferred to civilian authorities and convicted in federal court in 2007 of terrorism-related charges.) (2)

Excerpts from the department's announcement of the documents' release follow:

The Department of Justice today released two previously undisclosed Office of Legal Counsel (OLC) memoranda and seven previously undisclosed opinions. The two memoranda memorialized that certain legal propositions in ten OLC opinions issued between 2001 and 2003 no longer reflected the views of OLC and "should not be treated as authoritative for any purpose." They further explained that some of the underlying opinions had been withdrawn or superseded and that "caution should be exercised" by the executive branch "before relying in other respects" on the other opinions that had not been superseded or withdrawn. In light of the legitimate and substantial public interest in many of the questions raised in those opinions and in the evolution of OLC's views on those questions, the Department has released the six of those underlying opinions from 2001-2003 that are not classified and that had not previously been disclosed. In November 2008, the Department filed a motion in a pending civil action to submit two of those underlying OLC opinions, along with one other, to the court under seal. The Department has determined that there is no longer any reason the three opinions should remain under seal and is therefore withdrawing its motion. The opinions and memoranda are available at http://www.usdoj.gov/opa/documents/olc-memos.htm. (3) The following...