White House asked DOJ how Bush could sidestep Fourth Amendment
By Jason Leopold
Online Journal Contributing Writer
Apr 7, 2008, 00:18
Last week, the Pentagon declassified an 81-page memorandum
John Yoo, a former deputy in the Justice Department�s Office of Legal Counsel,
drafted in March 2003 that authorized military interrogators to use brutal
techniques to obtain information about terrorist plans from prisoners held at
Guantanamo Bay, Cuba.
The memo was publicly released as part of the American Civil
Liberties Union�s Freedom of Information Act lawsuit against the Pentagon.
Buried deep within that legal document is a footnote that
refers to an Oct. 23, 2001, legal memorandum written by Yoo.
�Our office recently concluded that the Fourth Amendment had
no application to domestic military operations," the footnote states,
referring to a 37-page document titled "Authority for Use of Military
Force to Combat Terrorist Activities Within the United States.�
Jameel Jaffer, director of the ACLU's National Security
Project, said the Bush administration has never argued publicly that the Fourth
Amendment did not apply to military operations within the U.S..
But an investigation has found that that this controversial
policy adopted by the White House in October 2001 took shape 10 days after
9/11. It was then that Yoo drafted a 20-page memorandum offering up suggestions
on how Fourth Amendment protections against unreasonable searches and seizures
would be applied if the U.S. military used "deadly force in a manner that
endangered the lives of United States citizens."
Yoo came up with a number of different scenarios. He
suggested shooting down a jetliner hijacked by terrorists; setting up military
checkpoints inside a U.S. city; implementing surveillance methods far more
superior than those available to law enforcement; or using military forces
"to raid or attack dwellings where terrorists were thought to be, despite
risks that third parties could be killed or injured by exchanges of fire,"
says a copy of the little known Sept. 21, 2001, memo.
Yoo, the author of an August 2002 legal opinion widely
referred to as the �Torture Memo� that gave CIA interrogators the legal
authority to use brutal methods against suspected terrorists to extract
information, drafted the memo in response to a question posed by Timothy E.
Flanigan, the former deputy White House counsel, who wanted to know "the
legality of the use of military force to prevent or deter terrorist activity
inside the United States,'' according to a copy of Flanigan�s memo.
Yoo wrote that his ideas would likely be seen as violating
the Fourth Amendment. But he said the terrorist attacks on 9/11 and the
prospect that future attacks would require the military to be deployed inside
the U.S. meant President Bush would �be justified in taking measures which in
less troubled conditions could be seen as infringements of individual
"We think that the Fourth Amendment should be no more
relevant than it would be in cases of invasion or insurrection," Yoo�s
Yoo also wrote in the Sept. 21, 2001, memo that domestic
surveillance activities, such as monitoring telephone calls and without a
court's permission, might be proper notwithstanding the ban in the Fourth
Amendment on unreasonable searches and seizures.
The Sept. 21, 2001, memo Yoo sent to Flanigan was referred
to in a lengthy story
published in the New York Times on October 24, 2004. The Times story said
Yoo�s suggestions for suspending the Fourth Amendment was hypothetical at best.
Yoo based his opinion on the 1990 drug case, US v.
Verdugo-Urquide, in which the Supreme Court refused to hear a lawsuit brought
against the United States by a Mexican citizen whose home was searched by
federal agents without a search warrant. In rejecting the Fourth Amendment
claim, the court said aliens could not claim the benefit of the Constitution
for conduct outside the United States -- such aliens were not part of the �we
the people� who benefited from the Fourth Amendment. Further, the Court found
that allowing such claims would have significant and deleterious consequences
for the United States in conducting activities beyond its boundaries, not just
in drug cases . . . but in the use of armed forces abroad �for the protection
of American citizens or national security.�
Yoo refers to the case in his 2006 book, �War by Other
Means: An Insider's Account of the War on Terror,� where he argues in more
than 23 separate pages about the various legal reasons local and federal law
enforcement agencies, as well as a sitting U.S. president, could ignore the
Fourth Amendment. Yoo�s legal theories revolve primarily around domestic
�If Al-Qaeda organizes missions within the United States,
our surveillance simply cannot be limited to law enforcement,� Yoo wrote in his
book. �The Fourth Amendment�s warrant requirement should not apply, because it
is concerned with regulating searches, not with military attacks.�
The Bush administration accepted Yoo�s legal theory as
policy for more than one year, beginning in late October 2001.
White House spokesman Tony Fratto said last Thursday the
administration hasn�t relied on Yoo�s Oct. 23, 2001, memo for more than five
Still, Congress said it has spent a considerable amount of
time trying to pry loose the memo from the Department of Justice.
Last Thursday, John Conyers, the Democratic chairman of the
House Judiciary Committee, wrote a letter to Attorney General Michael Mukasey
saying he was rebuffed on two previous occasions -- February 12 and 20 -- when
he wrote the DOJ requesting the Oct. 23, 2001, memo be turned over to his
�Based on the title of the October 23, 2001, memorandum, and
based on what has been disclosed and the contents of similar memoranda issued
at roughly the same time, it is clear that a substantial portion of this
memorandum provides a legal analysis and conclusions as to the nature and scope
of the Presidential Commander in Chief power to accomplish specific acts within
the United States,� Conyers wrote.
�The people of the United States are entitled to know the
Justice Department�s interpretation of the President�s constitutional powers to
wage war in the United States,� Conyers added. �There can be no actual basis in
national security for keeping secret the remainder of a legal memorandum that
addresses this issue of Constitutional interpretation The notion that the
President can claim to operate under 'secret' powers known only to the
President and a select few subordinates is antithetical to the core principles
of this democracy. We ask that you promptly release the October 23, 2001,
Leopold is the author of "News Junkie," a memoir. Visit
www.newsjunkiebook.com for a
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