Friday, October 20, 2017
OLC Authorized Pentagon to Ignore Bill of Rights On U.S. Soil

OLC Authorized Pentagon to Ignore Bill of Rights On U.S. Soil

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By Daphne Eviatar |

In an October 2001 memo released on Monday, then-Deputy Assistant Attorney General in the Office of Legal Counsel John Yoo advised the Pentagon’s top lawyer that the president may not only deploy the military within the United States, but it may ignore the Bill of Rights in the process of doing so. Yoo and special counsel Robert Delahunty wrote to Defense Department general counsel William Haynes that the president has “ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States,” and that the use of military force “need not follow the exact procedures that govern law enforcement operations.”

Although the Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures on U.S. soil, Yoo concluded that “[a]lthough the situation is novel … we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probably cause or to obtain a warrant.”

This memo appears to have formed the legal basis for the Bush administration’s domestic warrantless wiretapping program, which at least one federal judge has since concluded was unconstitutional.

Jameel Jaffer, Director of the ACLU National Security Project, reads it as extending beyond the Fourth Amendment, however.

“This takes the position that the Bill of Rights does not constrain the military in its operations inside the United States,” Jaffer told me this afternoon. “The president can disregard the constitution during wartime, not just on foreign battlefields, but inside the United States. We had not seen a memo saying that before.”

Of the nine memos released today, at least two – this October one written by Yoo, and another written by Bybee regarding extraordinary rendition – were responsive to earlier ACLU requests for OLC memos in the context of ongoing FOIA cases.

But many more memos the ACLU has requested still have not been released.

“There are still dozens of memos being withheld,” said Jaffer. “We’re hoping that this is a first installment.”

While the memos reveal the legal groundwork that was laid for the Bush administration’s conduct in its “war on terror”, much of which appears to have been illegal, they still don’t answer the critical question that many Bush critics want to know.

“The obvious question that’s raised by these memos is, what conduct did the administration authorize on the basis of the legal reasoning in these memos?” Jaffer said. “That’s a question that has not been adequately answered.”

Update: After further reading of this memo, I have to update it with some more astounding quotes from John Yoo, who insists that not only the Fourth Amendment, but the First Amendment right to free speech may be overridden by the President in wartime:

“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” writes Yoo. Yoo then reaches back to a 1931 Supreme Court case to support this idea, which said that “’When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’ . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”

Now, no one today would argue that an American has a right to publish secret details about U.S. troop movements in Iraq, either; but the First Amendment already accounts for those sorts of exigencies. For John Yoo to take from that that the President may actually override free speech and press rights that are guaranteed by the First Amendment goes beyond stretching it – it’s just a blatant, and deliberate, misreading of the law. After all, John Yoo – Harvard and Yale grad, Berkeley Law prof – is no dummy.