valkyrie usual suspects
marika
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...
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.