Dozens of secret documents justifying the Bush administration's spying and interrogation programs could see the light of day because of a new presidential directive.
The American Civil Liberties Union asked the Obama administration Wednesday to release Justice Department memos that provided the legal underpinning for harsh interrogations, eavesdropping and secret prisons.
For years, the Bush administration refused to release them, citing national security, attorney-client privilege and the need to protect the government's deliberative process.
The ACLU's request, however, comes after President Obama last week rescinded a 2001 Justice Department memo that gave agencies broad legal cover to reject public disclosure requests. Obama also urged agencies to be more transparent when deciding what documents to release under the Freedom of Information Act.
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The ACLU now sees a new opening.
“The president has made a very visible and clear commitment to transparency,” said Jameel Jaffer, director of the ACLU's National Security Project. “We're eager to see that put into practice.”
The collection of memos, written by the Justice Department's Office of Legal Counsel, are viewed as the missing puzzle pieces that could help explain the Bush administration's anti-terrorism policies.
Critics of the prior administration also see the documents' release as necessary to determine whether former administration officials should be held accountable for legal opinions that justified various antiterrorism measures, including the use of waterboarding, an interrogation technique that simulates drowning.
Attorney General nominee Eric Holder recently denounced waterboarding as torture, but details about how the method was used have remained secret.
“We don't have anything resembling a full picture of what happened over the last eight years and on what grounds the Bush administration believed it could order such methods,” Jaffer said. “We think the… memos are really central to that narrative.”
Even though some key memos have been released or leaked to the media, at least 50 remain secret, Jaffer said, including a dozen memos related to the warrantless wiretapping program.
In one case, the ACLU found out about a memo because it was cited in a footnote. The government has refused to elaborate on the 2002 document, other than to describe it as a discussion of the Fourth Amendment's application to domestic military operations.
Jaffer said it could reveal whether the Justice Department was advising the National Security Agency that the Fourth Amendment didn't apply to its eavesdropping program, but he's not certain. The amendment guards against unreasonable search and seizure.
“There are about a dozen memos where we just have one or two lines about the subject matter and that's it,” he said. “When you put it all together you realize how much is still being held secret.”
Dean Boyd, a Justice Department spokesman, said he had no immediate comment.