In a January 9 column, Dick Morris launched attacks based on a falsehood against President-elect Barack Obama's choices for positions at the Department of Justice. Morris asserted that Obama's choice for attorney general, Eric Holder, “approved of the Clinton/Reno 'wall' preventing intelligence from finding out what criminal investigators had found out.” But it is not a “Clinton/Reno 'wall.' ” In fact, as Media Matters for America has previously noted, the so-called “wall” policy was established well before President Clinton took office and was retained by the Bush administration prior to September 11, 2001.

Morris also claimed that “without warrantless FISA wiretaps,” which Morris claimed Obama's Justice Department appointees would have blocked, “we could never have uncovered the plot to destroy the Brooklyn Bridge.” However, contrary to Morris' claim, some officials with direct knowledge of the case have reportedly said wiretaps conducted under the the National Security Agency's warrantless wiretap program -- which were in fact in defiance of FISA as then written and not “FISA wiretaps,” as Morris claims -- did not play a significant role in the capture of Iyman Faris, who pleaded guilty in the case.

In addition, Morris stated that Dawn Johnsen, Obama's choice to head the Justice Department's Office of Legal Counsel (OLC), “called the legal reasoning that gave the president broad powers to authorize 'rough' interrogation of terrorists 'shockingly flawed ... bogus ... outlandish.' She said it allowed 'horrific acts' and demanded to know, 'Where is the outrage? The public outcry?' ” Morris added: “This is the person who will decide how to interrogate terrorists. If she errs on the side of weakening methods of questioning, there's no chance her boss, Eric Holder, the new attorney general, will reverse her.” However, Morris did not note that the Bush administration has withdrawn the March 2003 OLC opinion to which Johnsen was referring.

Additionally, Harvard law professor Jack Goldsmith, who withdrew that opinion during his tenure as head of the OLC, wrote in his book The Terror Presidency (W.W. Norton & Co., 2007) that “OLC's analysis of the law of torture in the August 1, 2002, opinion and the March 2003 opinion was legally flawed, tendentious in substance and tone, and overbroad and thus largely unnecessary” [page 151].

From Morris's January 9 column:

President-elect Obama's new head of the Office of Legal Counsel in the Justice Department, Dawn Johnsen, called the legal reasoning that gave the president broad powers to authorize “rough” interrogation of terrorists “shockingly flawed ... bogus ... outlandish.” She said it allowed “horrific acts” and demanded to know, “Where is the outrage? The public outcry?”

This is the person who will decide how to interrogate terrorists. If she errs on the side of weakening methods of questioning, there's no chance her boss, Eric Holder, the new attorney general, will reverse her. He approved of the Clinton/Reno “wall” preventing intelligence from finding out what criminal investigators had found out and took the lead in pardoning the FALN terrorists.

What is Obama thinking? How could he weaken so dramatically our protections against terrorism? Doesn't he realize that without warrantless FISA wiretaps, we could never have uncovered the plot to destroy the Brooklyn Bridge (how could we have gotten a warrant for conversations about the bridge when we didn't yet know that al Qaeda had it in its sights?)? Has he forgotten that we only found the name of the operative who was tasked with destroying the bridge because we subjected Khalid Sheikh Mohammed, the mastermind of Sept. 11, 2001, to “rough” interrogation techniques? Does he really mean to leave us vulnerable to terrorist attacks?

Yes, he does. Not because he is callous or fiendish, but because the new president seems to carry the thinking that animated the decisions of the Warren Court on defendants' rights over into the battle against terror. When the Warren Court first ruled that all defendants deserved free lawyers, that they had to be explicitly told of their right to remain silent, that evidence not obtained through warrants was inadmissible -- as were any “fruits of the poisonous tree” -- it occasioned great controversy (enough to help Nixon get elected president). Law-and-order types said that these decisions would lead to the release of thousands of criminals who would otherwise be in prison and would cause tens or hundreds of thousands more innocent people to become victims of serious crime. And they were right. The decisions of the Warren Court had exactly this effect.

But we have come to feel that these new procedural safeguards established by the court are fair and reasonable, even if it does result in more homicide victims and unsolved rapes. Unquestionably, the Warren Court decisions put American lives in danger. But we accepted that as the price for honoring our Constitution.