View Full Version : Fourth Amendment Does Not Apply To Military Operations Within U.S.?

04-11-2008, 10:34 PM
Fourth Amendment Does Not Apply To Military Operations Within U.S.?


Larisa Alexandrovna
Posted April 2, 2008 | 07:16 PM (EST)

Welcome to the Monkey House. I will be your tour guide for the duration of this particular shocker. The ACLU issued the following presser this evening (a stiff drink will be needed before you delve into this):

Bush Administration Memo Says Fourth Amendment Does Not Apply To Military Operations Within U.S.
ACLU Calls For Immediate Release Of Withheld Legal Memo


April 2, 2008

CONTACT: James Freedland, (212) 519-7829 or (646) 785-1894; media@aclu.org

NEW YORK - A newly disclosed secret memo authored by the Department of Justice's Office of Legal Counsel (OLC) in March 2003 that asserts President Bush has unlimited power to order brutal interrogations of detainees also reveals a radical interpretation of the Constitution's Fourth Amendment protection from unreasonable search and seizure. The memo, declassified yesterday as the result of an American Civil Liberties Union lawsuit, cites a still-secret DOJ memo from 2001 that found that the "Fourth Amendment had no application to domestic military operations."

The October 2001 memo was almost certainly meant to provide a legal basis for the National Security Agency's warrantless wiretapping program, which President Bush launched the same month the memo was issued. As a component of the Department of Defense, the NSA is a military agency.

"The recent disclosures underscore the Bush administration's extraordinarily sweeping conception of executive power," said Jameel Jaffer, Director of the ACLU's National Security Project. "The administration's lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law."

The Bush administration has never argued publicly that the Fourth Amendment does not apply to military operations within the nation's borders. The memo released yesterday publicizes this argument for the first time.

The ACLU has been aware of the Justice Department's October 2001 memo since last year, but until now, its contents were unknown. The Justice Department informed the ACLU of the memo's existence as a result of a FOIA lawsuit seeking information concerning the NSA's warrantless wiretapping program. The Justice Department acknowledged the existence of "a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC's views concerning the legality of potential responses to terrorist activity." Until now, however, almost nothing was known about the memo's contents - except that it was related to a request for information about the NSA's warrantless wiretapping program. The ACLU has challenged the withholding of the October 2001 memo and the issue is pending before the U.S. District Court for the District of Columbia.

The memo released to the ACLU yesterday cites the October 2001 memo but takes its argument even further. Relying on the earlier memo, the March 2003 memo argues that the president has authority as Commander-in-Chief to bypass not only the Fourth Amendment but the central due process guarantee of the Fifth Amendment as well.

"This memo makes a mockery of the Constitution and the rule of law," said Amrit Singh, a staff attorney with the ACLU. "That it was issued by the Justice Department, whose job it is to uphold the law, makes it even more unconscionable."

The March 2003 memo was declassified in response to a lawsuit filed by the ACLU, the New York Civil Liberties Union, and other organizations in June 2004 to enforce Freedom of Information Act (FOIA) requests for records concerning the treatment of prisoners in U.S. custody abroad. The ACLU has been fighting for the release of the March 2003 Yoo memo since filing the lawsuit. A few weeks ago, after the court ordered additional briefing on whether the Defense Department could continue to withhold the memo, the government reluctantly agreed to conduct a declassification review by March 31. The Defense Department released this memo after conducting the review.

The 2003 Department of Justice memo can be found online at: www.aclu.org/safefree/torture/34745res20030314.html (http://www.aclu.org/safefree/torture/34745res20030314.html)

Documents relating to the ACLU's NSA FOIA lawsuit are available online at: www.aclu.org/safefree/nsaspying/30022res20060207.html (http://www.aclu.org/safefree/nsaspying/30022res20060207.html)

To date, more than 100,000 pages of government documents have been released in response to the ACLU's FOIA lawsuit related the abuse of prisoner in U.S. custody abroad. These documents are available online at: www.aclu.org/torturefoia"
If I am reading this correctly, it seems to me that this administration has justified its crimes by NOT suspending the state of emergency that went up on September 11, 2001. They are using emergency powers if you look at the whole of the spying, military actions inside the US, etc. I would wager that if asked, this administration will admit that we have been in a state of emergency for their tenure in office. Congress? Was the state of emergency lifted, yes or no?

Oh, just one more question: what are "military operations inside the U.S" actually and how often have these "operations" been carried out? Anyone? Bueller? Congress? Impeachment Table? Anyone?

Mukasey Declines To Tell Senators If Classified Memo Is Still In Force


Kris Alingod - AHN News Writer
April 11, 2008 1:18 p.m. EST

Washington, D.C. (AHN) - Justice Department Secretary Michael Mukasey was caught unprepared on Thursday when he was asked about a classified memo during a Senate hearing about his agency's 2009 budget. After repeatedly declining to answer questions about whether the memo, which says the Fourth Amendment is not applicable to military personnel in the U.S., had been withdrawn, Mukasey declared that the constitutional right against unreasonable searches was still in force.

Reports of the October 2001 memo in question first appeared after another memo, this one issued in March 2003, was declassified last week. The second document was written by John Yoo, then deputy assistant attorney general at the Office of Legal Counsel. It gave legal basis for the use of "enhanced" interrogation techniques by the Bush Administration, and said that the President's authority during times of war is paramount to the rights of detainees.

Testifying to the Senate Appropriations Committee on Thursday, Mukasey told Sen. Dianne Feinstein (D-CA) he "can't speak" about the October 2001 memo, which was also penned by Yoo, and that "the principle that the Fourth Amendment does not apply in wartime is not in force." He later declared, "The Fourth Amendment applies across the board, whether we're in wartime or peacetime."

Mukasey says Fourth Amendment applies to domestic military terror ops


Patrick Porter at 1:06 PM ET

[JURIST] US Attorney General Michael Mukasey [official profile] Thursday disavowed a 2001 memo [JURIST report] advising the Bush administration that Fourth Amendment [text] protections against unreasonable searches and seizures did not apply to "domestic military operations." Appearing before the Senate Appropriations Committee, Mukasey testified [recorded video] that the 2001 memo is not currently endorsed by the Justice Department and said that the "Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime."

The October 23, 2001 memo, authored by former Deputy Assistant Attorney General John Yoo, was referenced in a footnote of a 2003 memorandum [PDF text; JURIST report] on military interrogations, which was made public by the American Civil Liberties Union last week. The 2001 memo remains classified, but the ACLU has said that it will seek disclosure of document. The Washington Post has more.