AMY GOODMAN: We move now to another legacy of the Bush administration: the secret Justice Department memos on detention, interrogation, surveillance and prosecution. These opinions were issued by the Office of Legal Counsel and advised the executive branch on the legality of a range of tactics in fighting the so-called “war on terror.” A few of these records have been made public, but many remain secret, including those relating to the Bush administration’s domestic surveillance program.

The investigative website ProPublica has compiled the first public database of all that’s currently known about these memos. It’s available at propublica.org.

The Bush administration claims the memos had to remain secret for reasons of security and internal confidentiality.

Dawn Johnsen, Obama’s nominee to head the Office of Legal Counsel, has been an outspoken critic of the Justice Department under the Bush administration. This is an excerpt of a speech she gave at the American Constitutional Society in October of 2007, discussing the key principles that ought to govern the Office of Legal Counsel.

DAWN JOHNSEN: When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the pursuit of desired administration policies. So, in short, OLC and the Attorney General have to be prepared to tell the President no. And that’s what the law requires.


Last, but very far from least, avoid secret law. And here, I quote: ”OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or [non]disclosure.” Now, of course, there are situations where secrecy is needed, such as to protect the identity of a covert agent, but public disclosure is — it’s especially critical whenever the executive branch does not fully comply with a federal statute.

AMY GOODMAN: That was Dawn Johnsen, Obama’s nominee to head up the Justice Department’s Office of Legal Counsel. She was speaking before the American Constitution Society in October 2007.

We’re joined now by two guests here in the firehouse studio to discuss the secret memos and if and how soon we can expect them to be released. Chisun Lee is an award-winning reporter, now with ProPublica. Her latest piece is at propublica.org; it’s called “Bush’s Secret Counterterrorism Law Book — and the Demands to Release It.” Scott Horton is staying with us, of Harper’s Magazine.

Welcome, Chisun, to Democracy Now! Explain these memos, how you got a hold of them, their significance.

CHISUN LEE: Sure. Well, some of these memos have been public for some time, and the content of some of these memos, most famously the so-called torture memos that were authored in 2002, leaked to the media and eventually made public in 2004, those have been very much debated.

But in speaking with some open government advocates, I was surprised to discover that actually the universe of memos that the Bush administration has said it has relied on for a lot of its most controversial counterterrorism policies — interrogation, detention, claims of unilateral presidential authority, warrantless wiretapping — the contents of these memos remain withheld, sometimes because they’re classified, the government has said in FOIA litigation, in Freedom of Information law litigation, or on a variety of privilege grounds — executive privilege, attorney-client privilege, agency privilege and so forth.

And so, what we did at ProPublica was survey the universe of these memos having to do with counterterrorism policy. And the Office of Legal Counsel passes upon many questions that have to do with executive agencies that don’t have to do with counterterrorism. And so, we tried to identify, to the best — you know, as much as is possible, given what we know, the universe of memos. We came up with about eleven that are public, many of them having to do with interrogation policies, the legality of them, and then a whole slew — we came up with almost forty that can be identified with some specificity by date, author, recipient, subject matter, that have not been disclosed but seem to have to do with warrantless wiretapping, military ability abroad to detain or interrogate in secret, and so forth. So we’ve compiled this database that people can go to and look at, by author, date, subject matter, and see what is known and see what is not yet known.

AMY GOODMAN: And what most surprised you? Talk about the content of these memos.

CHISUN LEE: Well, I think the most discussed have been these so-called torture memos. They were authored in 2002, and these are — the most famous one dated August 1st of 2002, that talked about the sort of definition of what would constitute torture. And this has been the subject of great public debate. This is the one that was signed by Jay Bybee, who was the head of the Office of Legal Counsel at the time, and has been sort of publicly established as having been primarily authored by John Yoo, who is now a professor at Berkeley Law School. And this discusses, in detail that’s been talked about a lot, the sort of threshold of pain where you would start to call interrogation tactics torture. And this is where we’ve heard about, you know, bodily pain amounting to what you feel when there’s organ failure and that sort of thing. So this caused a great public outcry when it was released, when it was leaked to the media in 2004 shortly after of the Abu Ghraib scandal broke and became public news.

And just the public debate surrounding these memos and some subsequent memos, one that redacted some of — or withdrew some of the torture definition but left in place some of the claims of presidential power — the fact that there was all of this public debate, to us, illustrates how important it is to have more of these memos be released, if it’s deemed proper by courts, by this administration that we’re not going to have risk to our national security by disclosing them, so that the public can talk about what these legal opinions really meant and if fair minds who disagree, so that the public can hear the benefit of that disagreement.

AMY GOODMAN: You have called, Scott Horton, for the prosecution of Bush administration officials around issues of torture and detention. Chisun Lee writes in her piece accompanying these memos — she quotes Dick Cheney in a parting interview, television interview, touching on aggressive interrogation, Cheney saying, “I can’t claim perfection,” but “I can tell you that we had all the legal authorization we needed to do it, including the sign-off of the Justice Department.” He told Larry King, “I got legal opinions that said whatever we’re going to do is legal.”

SCOTT HORTON: And President Bush made almost exactly the same claim, which is essentially — in legal terms, it is a reliance on advice of counsel defense that’s being set up. And I think, you know, the Office of Legal Counsel right now is being viewed by the Obama administration as a sort of crime scene. I mean, they are very concerned about what went on inside of this office. They very carefully selected three top-notch — three of the best lawyers of their generation to take over and run that department. And in one of the first orders that President Obama issued, he instructed the government to disregard office — opinions issued by the Office of Legal Counsel during the administration of George W. Bush. That’s a striking measure that has no precedent previously.

But we’ve got to go back and look at the fact that historically, lawyers have been prosecuted and imprisoned for issuing opinions like the opinions that were issued here that enabled torture and enabled the violation of the laws of war. And we also have opinions issued, evidently, although we haven’t seen them all, that pave the way for illegal, felonious surveillance of American citizens by the National Security administration. And we have memoranda issued that lay the basis for the program of extraordinary renditions, which was also a felony program. All these programs were shut down by President Obama in the orders he issued in the first three days.

AMY GOODMAN: But Obama, also Nancy Pelosi, have been quite clear — Pelosi more clear when she said impeachment is off the table — really pushing these issues aside. Dennis Kucinich, notably, continuing to call for prosecution of officials. He was calling for the impeachment of the President and the Vice President. What about this issue of looking back — not looking back and looking forward, as President Obama is fond of saying?

SCOTT HORTON: I think you have to listen to President Obama, and I think he means exactly what he says. That is, he is focused on his affirmative agenda going forward and doesn’t want to be distracted by these other things. He has not said, “No, I’m giving immunity or impunity to people from the prior administration. No, there will be no criminal investigations of criminal acts.” I think he trusts in process to run itself to its — run its course properly. And the only reason that process, criminal justice process, didn’t run its course properly before was there was political obstruction of that process, which we just saw in the last segment involving Karl Rove. There were criminal investigations commenced that were shut down by officials of the Bush administration. I think under Obama, we will see that process run to the end, and I don’t think we’re going to see an effort by the administration or the White House to interfere with it one way or the other.

AMY GOODMAN: Well, I want to thank you both for being with us. Last comment on how people can access these memos, Chisun?

CHISUN LEE: Well, come to our website, propublica.org, and this will be a running feature of memos, both known and missing. And the missing ones will have as much identifying information as possible. We’ll update this as possibly the new administration releases some of these memos, as Dawn Johnsen has said she believes that disclosure and public knowledge is very important.

AMY GOODMAN: Thank you both. Chisun Lee is an award-winning reporter. She’s with propublica.org. Scott Horton, New York attorney specializing in international law, he’s also legal affairs contributor to Harper’s Magazine, where he writes the blog “No Comment.”