WSJ falsely suggests that DOJ memos on interrogation were attacked only by “some members of Congress and civil libertarians”

Written by Christine Schwen

Published

The Wall Street Journal reported, “Following the Sept. 11, 2001, terror attacks, the [Justice] department produced legal opinions that have been attacked by some members of Congress and civil libertarians for allowing harsh interrogation tactics.” In fact, critics of the Justice Department's interrogation opinions also include Jack Goldsmith, who served as the head of the department's Office of Legal Counsel under Bush.

In a January 15 Wall Street Journal article, reporter Evan Perez asserted, “Following the Sept. 11, 2001, terror attacks, the [Justice] department produced legal opinions that have been attacked by some members of Congress and civil libertarians for allowing harsh interrogation tactics.” But Perez's suggestion that “some members of Congress and civil libertarians” were the only critics of the Justice Department's Office of Legal Counsel (OLC) interrogation opinions is false. Critics of the Justice Department's interrogation opinions include Jack Goldsmith, who served as the head of OLC from 2003 to 2004.

Indeed, as Media Matters for America has noted, Goldsmith withdrew OLC memos from August 2002 and March 2003 -- issued before Goldsmith's tenure as head of OLC -- that concluded the president has broad powers to authorize “rough” interrogation of terrorists. Goldsmith 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]. He also called the broad conclusion of the August 2002 memo that "[a]ny effort by Congress to regulate the interrogation of battlefield detainees would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President" “an extreme conclusion [that] has no foundation in prior OLC opinions, or in judicial decisions, or in any other source of law” [Page 148].

From the January 15 Wall Street Journal article:

On national security, Mr. Holder says he plans to pursue tough measures to protect the nation from terrorism. “I will use every available tactic to defeat our adversaries, and I will do so within the letter and spirit of the Constitution,” he says, making an apparent reference to Bush administration's terrorism tactics that some critics believe violated the law. “Adherence to the rule of law strengthens security by depriving terrorist organizations of their prime recruiting tools.”

For senators from both parties, a major concern is the perceived damage done to the Justice Department's reputation during the Bush administration. Following the Sept. 11, 2001, terror attacks, the department produced legal opinions that have been attacked by some members of Congress and civil libertarians for allowing harsh interrogation tactics and government surveillance without court oversight.

Alberto Gonzales resigned as attorney general in 2007 amid a political scandal over the firings of prosecutors. A series of reports produced by the department's own internal watchdogs, concluded that hiring and firing decisions became tainted by political partisan considerations in violation of civil service laws.