ROBERT SIEGEL, host:
From NPR News it's ALL THINGS CONSIDERED. I'm Robert Siegel.
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And I'm Melissa Block.
This week the Justice Department took what it described as step toward greater transparency, it declassified a handful of legal memos from the years following 9/11. These documents laid the foundation for some of the Bush administration's most controversial national security policies. Among other things, they argued that the president has sweeping authority to search Americans' homes and send detainees to other countries.
As NPR's Ari Shapiro reports, there are plenty more documents where these came from.
ARI SHAPIRO: About a month ago, the ACLU sent the Justice Department's Office of Legal Counsel a letter and a chart. The chart listed more than 50 classified Bush administration legal memos on national security issues. The letter basically said, release these memos. Well, yesterday, the Justice Department declassified nine significant memos about national security. And some of them were not even on the ACLU's list. Jameel Jaffer directs the ACLU's national security project.
Mr. JAMEEL JAFFER (Director, ACLU National Security Project): So there's still dozens of memos that are secret, including memos that provided the basis for the national security agency's warrantless wiretapping program, memos that provided the basis for the CIA's torture program.
SHAPIRO: One secret memo from 2002 lists the specific interrogation tactics that the CIA could use. Jaffer knows they exist because the government has summarized or listed them in court documents.
Mr. JAFFER: So those are critical memos, and they're all still secret.
SHAPIRO: Some secret memos have been mentioned with no description of their contents. And presumably some memos have never been mentioned at all. So, to quote former Defense Secretary Donald Rumsfeld, there are unknown unknowns.
Mr. JAFFER: Not just unknown unknowns, but there are also known unknowns.
SHAPIRO: One reason there's a lot of interest in these memos is that they could contain some surprises. Take the ones that were declassified yesterday. Everyone knew that at one point the Justice Department said the military could search Americans' homes without a warrant. When that memo came out yesterday, it contained a very surprising line.
Quote, "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully." The public didn't know the Justice Department had given the president that advice. The Justice Department withdrew all nine of those memos in the last days of the Bush administration. The acting head of the office of legal counsel basically said these memos were bad advice, legal errors.
Duke Law Professor Chris Schroeder was acting head of the Office of Legal Counsel during the Clinton administration, and he was on the Obama administration's Justice Department transition team.
Professor CHRIS SCHROEDER (Duke University School of Law): It's self-evaluation of the kind that for which I commend the outgoing folks.
SHAPIRO: And from your experience at OLC, is the overturning of so many opinions unusual?
Prof. SCHROEDER: Absolutely unprecedented. I know of no comparable experience that comes remotely close.
SHAPIRO: Liberal activists say that's evidence of just how far off the rails the Justice Department went during the Bush administration. Conservatives say it's a sign that things are going off the rails right now. David Rivkin worked at the Justice Department under President Reagan and the first President Bush. He says he never would've written these legal memos. He might've even withdrawn them, but not like this.
Mr. DAVID RIVKIN (Former Justice Department Official): In a normal environment, you gently pull it back. In an abnormal environment, you engage in recrimination, vilification, demonization and public repudiation, almost, you know, show trial-like. That's a very, very bad way to proceed.
SHAPIRO: The government seems committed to pulling back the curtain further than it has already. The attorney general and other justice officials have said they want to declassify more documents from the Office of Legal Counsel. And tomorrow, the Senate Judiciary Committee has a hearing into whether to create a Truth Commission, an independent panel to investigate Bush administration policies.
The ACLU's Jameel Jaffer says a truth commission could investigate a question that the Justice Department cannot answer.
Mr. JAFFERS: What conduct was authorized on the basis of these legal memos? Because, in some senses, these legal memos tell us what the Justice Department thought that the executive branch was authorized to do, but they don't actually tell us what the executive branch did.
SHAPIRO: So, for example, we know the military was told it could secretly search Americans' homes. Now the question is, did those searches ever happen?
Ari Shapiro, NPR News, Washington.
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