It’s possible you’ve had your fill on secret memos written for the Bush administration by John Yoo. But just in case, you may also find it interesting to know that for over a year after 9/11, the Bush gang operated under the assumption that the “war on terror” trumped the Fourth Amendment. Seriously.
For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution’s protection against unreasonable searches and seizures on U.S. soil didn’t apply to its efforts to protect against terrorism.
That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.
The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.
The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.
Specifically, the footnote said Yoo and Gonzales had concluded that the Fourth Amendment to the Constitution “had no application to domestic military operations.” The name of the memo was, “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” (Yes, counter-terrorism trumps Posse Comitatus, too.)
In other words, unreasonable searches and seizures on American soil were perfectly acceptable, without warrants or due process, just so long as Bush decided it was part of the war on terror.
What we don’t know, unfortunately, is exactly what the Bush gang did with the options it had given itself. It appears the president’s lawyers may have used them to justify warrantless searches of Americans’ phone calls and emails.
That program intercepted phone calls and e-mails on U.S. soil, bypassing the normal legal requirement that such eavesdropping be authorized by a secret federal court. The program began after the Sept. 11 terrorist attacks and continued until Jan. 17, 2007, when the White House resumed seeking surveillance warrants from the Foreign Intelligence Surveillance Court.
White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.
“TSP relied on a separate set of legal memoranda,” Fratto told The Associated Press. The Justice Department outlined that legal framework in its January 2006 white paper.
The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.
The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.
Bush officials insisted yesterday that the footnote no longer reflects the administration’s thinking — they used to think the Fourth Amendment didn’t count anymore, but they’ve since changed their minds — but they won’t say when they made the transition back to the rule of law.
Brian Beutler added this observation:
So, by my count, the White House has, at various times, determined that the First, Fourth, Fifth, Sixth, and Eighth Amendments are unacceptable impediments to its violation of the First, Fourth, Fifth, Sixth, and Eighth Amendments, and, as such, chose to wish them out of existence as if they were minor headaches like congressional subpoenas or the national debt. Half of the bill of rights. Pretty neat trick, no?
Indeed.