THE BLOG
04/02/2008 07:16 pm ET Updated May 25, 2011

Fourth Amendment Does Not Apply To Military Operations Within U.S.?

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

FOR IMMEDIATE RELEASE

April 2, 2008
CONTACT: James Freedland, (212) 519-7829 or (646) 785-1894; media@aclu.org

NEW YORK - A newly disclosedsecret memo authored by the Department of Justice's Office of LegalCounsel (OLC) in March 2003 that asserts President Bush has unlimitedpower to order brutal interrogations of detainees also reveals aradical interpretation of the Constitution's Fourth Amendmentprotection from unreasonable search and seizure. The memo, declassifiedyesterday as the result of an American Civil Liberties Union lawsuit,cites a still-secret DOJ memo from 2001 that found that the "FourthAmendment had no application to domestic military operations."

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

"The recent disclosuresunderscore the Bush administration's extraordinarily sweepingconception of executive power," said Jameel Jaffer, Director of theACLU's National Security Project. "The administration's lawyers believethe president should be permitted to violate statutory law, to violateinternational treaties, and even to violate the Fourth Amendment insidethe U.S. They believe that the president should be above the law."

The Bush administration hasnever argued publicly that the Fourth Amendment does not apply tomilitary operations within the nation's borders. The memo releasedyesterday publicizes this argument for the first time.

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

The memo released to the ACLUyesterday cites the October 2001 memo but takes its argument evenfurther. Relying on the earlier memo, the March 2003 memo argues thatthe president has authority as Commander-in-Chief to bypass not onlythe Fourth Amendment but the central due process guarantee of the FifthAmendment as well.

"This memo makes a mockery ofthe Constitution and the rule of law," said Amrit Singh, a staffattorney 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 wasdeclassified in response to a lawsuit filed by the ACLU, the New YorkCivil Liberties Union, and other organizations in June 2004 to enforceFreedom of Information Act (FOIA) requests for records concerning thetreatment of prisoners in U.S. custody abroad. The ACLU has beenfighting for the release of the March 2003 Yoo memo since filing thelawsuit. A few weeks ago, after the court ordered additional briefingon whether the Defense Department could continue to withhold the memo,the government reluctantly agreed to conduct a declassification reviewby March 31. The Defense Department released this memo after conductingthe review.

The 2003 Department of Justice memo can be found online at: 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

To date, more than 100,000pages of government documents have been released in response to theACLU's FOIA lawsuit related the abuse of prisoner in U.S. custodyabroad. 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?