Torture Memos - Revised Opinions, 2009

Revised Opinions, 2009

Near the end of the Bush administration, Bradbury signed two memoranda for the files, explaining that during his tenure, OLC had determined that certain legal propositions previously stated in ten OLC opinions issued between 2001 and 2003 concerning executive power in the War on Terror no longer reflected the views of OLC. His memos said the 10 earlier opinions "should not be treated as authoritative for any purpose" and further explained that some of the underlying opinions had been withdrawn or superseded and that "caution should be exercised" by the Executive Branch "before relying in other respects" on the other opinions that had not been superseded or withdrawn.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 the 15 January 2009 Memorandum Regarding Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001, Steven G. Bradbury, Acting head of the OLC from 2005 to January 20, 2009, during the Bush administration, stated,

We have also previously expressed our disagreement with the specific assertions excerpted from the 8/1/02 Interrogation Opinion: The August 1, 2002, memorandum reasoned that "ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." I disagree with that view.

and further that

The federal prohibition on torture, 18 U.S.C. §§ 2340-2340A, is constitutional, and I believe it does apply as a general matter to the subject of detention and interrogation of detainees conducted pursuant to the President's Commander in Chief authority. The statement to the contrary from the August 1, 2002, memorandum, quoted above, has been withdrawn and superseded, along with the entirety of the memorandum, and in any event I do not find that statement persuasive. The President, like all officers of the Government, is not above the law. He has a sworn duty to preserve, protect, and defend the Constitution and to execute the laws of the United States faithfully, in accordance with the Constitution.