Bush Lawyers Approved Constitution-Free Domestic Military Ops, Docs Show
By Ryan Singel March 02, 2009 | 5:55:25 PM
The Justice Department secretly authorized President George Bush to use the military inside the United States to snoop on, raid and even kill citizens in order to fight terrorism without regard to the Fourth or Fifth Amendment, according to a Oct 23, 2001 memo released by the Obama Administration Monday.
"We do not think a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant," the Office of Legal Counsel memo (.pdf) said. "We think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent future terrorist attacks."
Department of Justice special counsel Robert Delahunty and John Yoo, a deputy assistant attorney general best known for penning a memo authorizing government agents to torture suspected terrorists, wrote the memo after the administration asked whether it could use the military inside the United States.
Government employees rely on the Office of Legal Counsel's memos for binding advice as to what activities are and are not legal.
American Civil Liberties Union attorney Melissa Goodman says that's why the memos are so disturbing.
"The fact we had the OLC in the business of stretching the law to create an outcome and create legal cover for illegal activities is a dangerous thing," Goodman said. "There is no serious question that the Fourth Amendment applies to U.S. government officials acting on U.S. soil."
The memo was sent to then White House counsel Alberto Gonzales and the top lawyer for the military William Haynes II.
The memo found that the military could be deployed widely within the United States without being subject to the limits of the Constitution and the Bill of Rights. Those actions include using the National Security Agency to spy on communications inside the United States without getting court approval -- as the Bush Administration admitted it did for years.
"Military action might encompass making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses and searching for suspects," the duo wrote.
The memo is just one of nine previously unreleased memos that outside groups like the ACLU have been trying to make public. The most recent, dated January 15, 2009 -- one of the last days of the Bush Administration -- anticipates the release of the memo and attempts to distance the last inhabitants of the OLC from the earlier ones (.pdf). The other memos largely focus on the legality of torture.