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Posted on 04/03/2008 1:31:41 PM PDT by zeugma
What Could It Mean for Warrantless Domestic Surveillance?
Update: Click here to read the AP article on the Yoo memo and the Fourth Amendment.
Today's Washington Post reports on a newly released memo, "Memorandum for William J. Haynes II, General Counsel of the Department of Defense Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States" (March 14, 2003) , which which was declassified and released publicly yesterday. Balkinization has commentary on the very troubling opinion.
While the newly released memo focuses on "asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators," it contains a footnote referencing another Administration memo that caught our eye:
... our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001). (emphasis added)
This earlier memo has not been publicly released, though Senator Leahy and Rep. Conyers have asked to see it.
Does this mean that the Administration's lawyers believed that it could spy on Americans with impunity and face no Fourth Amendment claim? It may, and based on the thinnest of legal claims -- that Congress unintentionally allowed mass surveillance of Americans when it passed the Authorization of Use of Military Force in October 2001.
In their arguments on the warrantless surveillance program, they try to portray them as "military" in nature, even though they occurred in the United States, far from the military theater.
In 2006, the Department of Justice has asserted that "that warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF." The DOJ also asserted that "the NSA activities fit squarely within the sweeping terms of the AUMF. The use of signals intelligence to identify and pinpoint the enemy is a traditional component of wartime military operations." As the DOJ sees it, "In the present conflict, unlike in the Korean War, the battlefield was brought to the United States ..." The NSA is part of the Department of Defense.
In short, it appears that the Administration may view NSA domestic surveillance, including the surveillance of millions of ordinary Americans detailed in EFF's Hepting case, as a "domestic military operation." If so, this Yoo memo would blow a loophole in the Fourth Amendment big enough to fit all of our everyday telephone calls, web searches, instant messages and emails through.
Of course, the DOJ's public defense of the NSA program also asserted that warrantless surveillance did not violate the Fourth Amendment. (EFF and numerous scholars disagree). But the memo referenced above raises serious questions. The public deserves to know whether the 2001 Yoo memo on domestic military operations -- issued the same month that the NSA program began -- asserted that the Fourth Amendment did not apply to domestic surveillance operations conducted by the NSA.
And of course it reinforces why granting immunity aimed at keeping the courts from ruling on the Administration's flimsy legal arguments is wrongheaded and dangerous.
Read the Interrogation Memo: Pages 1-19, 20-39, 40-59, 60-81.
busy day...
Well, there’s no Fourth Amendment for Customs at the border.
There are a couple of things going on here. First, this talks about warrantless searches being ok if it’s for military purposes. Second, it talks about domestic (i.e. internal to the country) military operations. If the NSA is now part of DOD, that gets awfully close to the borders of the Posse Comitatus. Once Posse Comitatus is irrelevant, things have the potential to get a lot uglier.
WTF??? That’s all I’ve got to say about this.
PING!
I”m putting my money on Major Beck!
That thinking is so 9/10.
Sorry, missed that reference.
I seem to recall a recent presidential memorandum of some sort which has pretty much accomplished that result.
I'll look for it, but I may not have saved it.
I may be wrong, and probably am, but it seems to me that communications (telephone, internet, fax, radio or otherwise) originating OUTSIDE the United States would be fair game for the government to intercept and monitor at their will. How is this any different than bringing in goods, such as fruit, vegetables or meat, that are routinely stopped and inspected whenever the government decides? If a call is coming INTO the US, we should have every possible line that is used monitored or readily available to be intercepted and recorded.......
Posse Comitatus is not a constitutional doctrine. It is a legislative one, and it can be changed or abolished by majority vote of Congress.
With the drug exemption passed in the last decade to the cheers of police state supporters here and elsewhere, I'd say Posse Comitatus has been pretty much irrelevant for some time now.
Yeah, because since 9/11, the Constitution has been as irrelevant as the rest of our "rights".
Impeach, take them to the Hague/Sarc
Not exactly coming from outside the USA AO. Consider the NSA monitoring all FR traffic and tracing all users and their electronic shadows because of the ‘Anti-Gov’t’ movement.
Scary things are under the bed.
I worked at a NSA facility once, as a contractor/vendor. A guy there told me that, “We can receive and record every transmission on earth. If a guy in Siberia makes a phone call to his wife at 3am, we got it.”...............
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