September 25, 2001 - Memo OLC to WH: “The President's Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them”; [47] It is written by Yoo at OLC to David S. Kris, Ass. Deputy AG, and is called “Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the “Purpose” Standard for Searches. It concludes: “For the foregoing reasons, we believe that changing FISA’s requirement that “the” purpose of a FISA search be to collect foreign intelligence to “a” purpose will not violate the Constitution.” Memo at [109]

October 23, 2001 - Memo OLC to WH; concludes that the Fourth Amendment's protections against warrantless search and seizure don't apply to military operations, even in US; remains secret [2/1/09] [47] The memo, written by Yoo and Delahunty at OLC to Gonzales and Haynes, is made public on March 2, 2009 and concludes: “that the President has both constitutional and statutory authority to use the armed forces in military operation, against terrorists, within the United States. We believe that these operations would generally not be subject to the constraints of the Fourth Amendment, so long as the armed forces are undertaking a military function. […]” Memo at [108] On October 6, 2008, Steven Bradbury of the OLC wrote a memo advising caution in “relying in any respect on the [October 23, 2001 OLC] memo as a precedent of the OLC, and that certain propositions [as described below] should not be treated as authoritative for any purpose.” See October 2008 document at [102]

November 15, 2001-Memo is written by Yoo and Delahunty at OLC to Bellinger, Senior Associate Counsel to President and Legal Advisor to NSC. It is called “Authority of the President to Suspend Certain Provisions of the ABM Treaty”. It concludes: “Accordingly, we do not think that a partial suspension of the ABM Treaty should be considered a treaty “amendment” that is subject to Senate advice and consent.” Memo at [107]

January 22, 2002 - Department of Justice writes “Memorandum for Alberto O. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel of the Department of Defense”. It begins: “You have asked for our Office's views concerning the effect of international treaties and federal laws on the treatment of individuals detained by the U.S. Armed Forces during the conflict in Afghanistan. […] “[…] arguing that the Geneva Conventions do not apply to "non-state actors" and they are not entitled to prisoner of war status.” The Memo was signed by Jay Bybee. [For pdf of Memo, see (VV)] This memo finds that hardly any laws apply. If the detainees are held at Gitmo and tried by military commissions, the memo explains, POW status and other protections of the Geneva Convention from torture or inhumane treatment won't apply, and the U.S. personnel overseeing their detention couldn't be prosecuted for war crimes in U.S. courts [47] This memo is repudiated in the March 2, 2009 OLC Memo called: “Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2002.” [110]

March 13, 2002 - Memo OLC to DoD; asserts CIC’s power to rendition; remains secret [1/29/09] [47] This memo is made public on March 2, 2009. It is written by Bybee at OLC to Haynes at DoD. It concludes: “We conclude that as CiC and Chief Executive, the President has the plenary constitutional power to detain and transfer prisoners captured in war. We also conclude that neither the GPW nor the Torture Convention restrict the President’s legal authority to transfer prisoners captured in the Afghanistan conflict to third countries [because] neither Al-Qaeda nor Taliban prisoners are legally entitled to POW status. […] The Torture Convention […] does not apply extraterritorially.” Memo at [106]

April 8, 2002 - Memo within OLC; absolute executive power over military operations and commissions asserted; remains secret [1/29/09] [47] This memo is made public on March 2, 2009. It is written by Patrick Philbin, OLC to Bryant, Office of Legislative Affairs. It responds to Philbin’s questions about Sen. Leahy’s proposed “Swift Justice Act” which would specify procedures for military tribunals. It concludes that the proposed legislation would attempt “to impose substantive limits on the President’s authority that […] are unconstitutional” and would “likely trigger meritless […] litigation […] including petitions for habeas corpus in Federal Courts.” Memo at [105]

June 8, 2002-Bybee in OLC writes memo to AG Ashcroft. It begins: “You have asked our opinion whether you should recommend to SoD that Jose Padilla […] qualifies as an enemy combatant under the laws of armed conflict, and whether he may be detained by US Armed Forces.” Conclusion: “We believe that you have ample grounds to recommend to the SoD that Jose Padilla qualifies as an enemy combatant […] and that he may be detained as a prisoner by the US Armed Forces. […] The Posse Comitatus Act poses no bar […]” Memo at [104] Ashcroft announces the capture of Padilla on June 10, 2002.

June 27, 2002 - Memo within OLC; asserts CIC’s military operation’s power to extend to detention of US citizens; remains secret [1/29/09] [47] This memo is made public on March 2, 2009. See [103] It was written by Yoo to Daniel J Bryant, AAG, Office of Legislative Affairs and is “Re: Applicability of 18 U.S.C.-4001(a)(2000) to Military Detention of United States Citizens”, on transfer of Jose Padilla from custody of the DoJ to the control of the DoD. “[…] subsection (a) does not apply to the detention of US citizens held as enemy combatants by US Armed Forces under the direction of the President in the exercise of his constitutional authority as CiC.”

[cont'd]