Administration believes Fourth Amendment does not apply to them

[LeadMagnet]

Laws, We don't need no stinking laws! They only apply to the pions - anyways

Article

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.

Article


be sure to check out the interrogation memos linked on the bottom of the page

 

[MadRat]

Terrarrrrrrrrrrrrrr terrrrrrarrrrrrrrrrrrrrrrrrr!! /end magic funding spell

 

[bamacre]

If you're not doing anything wrong, you have nothing to worry about.

 

[feralkid]

Originally posted by: bamacre
If you're not doing anything wrong, you have nothing to worry about.

And If you are falsely accused of doing something wrong, you are screwed.

 

[heyheybooboo]

Originally posted by: bamacre
If you're not doing anything wrong, you have nothing to worry about.

(taps sarcasm meter)

Yup. We all know the justice system never makes mistakes ...

Savoring the start of life after death row
April 3, 2008

Glen Edward Chapman walked free Wednesday after nearly 14 years on death row in a case that a judge said was marred by a flawed police investigation and a faulty defense.

 

[OrByte]

It wasn't right back in 2003 and it isn't right 5 years later.

But still people don't give a sh!t.

 

[PrinceofWands]

It's absolutely time to hang the son of a bitch and be done with it. Let his body hang in the mall in DC as a warning to future politicians that such treason will not be tolerated. Seriously, we need to execute him (the country, not an individual I mean).

 

[Dari]

"I serve at the pleasure of the President."

I never fully understood what that meant.

 

[Jaskalas]

Originally posted by: PrinceofWands
It's absolutely time to hang the son of a bitch and be done with it. Let his body hang in the mall in DC as a warning to future politicians that such treason will not be tolerated. Seriously, we need to execute him (the country, not an individual I mean).

The next guy in line will hang you. Beware what you wish for. You don't scare Washington DC, our political parties have a solid power base in control of it and one death would mean nothing in the scope of things. They'd give a grand memorial with the next corrupt leader presiding over it.

If you want to restore the Bill of Rights your state needs to secede from the Union as is your god given right.

 

[maddogchen]

I'm President, P R E C I D A N T!!! I'm above the constitution!

 

[Harvey]

Originally posted by: bamacre
If you're not doing anything wrong, you have nothing to worry about.

Except from our own government. The George W. Bush and his cabal of liars, traitors, murderers and torturers are a greter threat to the rights of all Americans than Osama Bin Ladin, Al Qaeda and all the Al Qaeda wannabes in the world.

At least, they freely admit they're out to destroy us while the Traitor In Chief and his gang of thugs are actually doing it to us on a daily basis. :shocked:

 

[bamacre]

Guess I did need to add some "sarcasm tags" to my post. I thought my sig would have given it away.

 

[Moonbeam]

I happened to catch some dude expounding on the end of civilizations and his claim was that were the power elites are shielded from consequences the civilization falls.

 

[Evadman]

Well duh. Was anyone confused about this before? We just have an actual memo that proves it now.

Originally posted by: Harvey

Originally posted by: bamacre
If you're not doing anything wrong, you have nothing to worry about.

Except from our own government.

QFT. Government is here to protect us from each other, but as soon as they start protecting us from ourselves they are overstepping their bounds IMHO.

Ok, I posted my one post in P&N for the year.

 

[piasabird]

So when the country is in a state of War, doesnt that change things a bit?

 

[GarfieldtheCat]

Originally posted by: piasabird
So when the country is in a state of War, doesnt that change things a bit?

So being at war means that the President has a "ignore all laws" card?

It's really that simple? Declare war, and you become all-powerful (in Bush's view) ? No wonder he has stated this war will go on for a long time, there is no benefit to ending the war, since he would lose his omnipotent powers.

 

[RightIsWrong]

Originally posted by: Dari
"I serve at the pleasure of the President."

I never fully understood what that meant.

It means that as long as you are a "Yes, sir" kind of guy or gal....you are pleasing the president and allowed to serve in your current position or even be promoted a la Fredo...er...Alberto Gonzales.

The minute that you tell him that something he is wanting to do is unconstitutional, illegal, immoral, unethical or just plain stupid, you are no longer pleasing him and you will end up issuing your resignation "For personal reasons", "To spend more time with your family" or "to go back to the private sector".

 

[UberNeuman]

The 30% of the nation that still supports President Knob will just roll their eyes at this news, then go back to watching American Idol.....

I can't say that I'm shocked - and the next few years will be really interesting as more information about the tricks and misdeeds of this administration come out...

 

[StageLeft]

Well, they are right, it doesn't apply. There are enough bad Americans aka apologists to defend them that the public opinion is not where it should be, which is kick these fvcking thugs out of office and put in some real leaders.

So when the country is in a state of War, doesnt that change things a bit?

It might, if this country was in a state of war, which it's not. No war was ever declared except against a methodology and thus by definition there is no conclusion to it, so I conclude the US isn't at war anyway, it's merely "warring", as a verb, not a status.

I can't say that I'm shocked - and the next few years will be really interesting as more information about the tricks and misdeeds of this administration come out...

Doesn't matter what comes out. The 30% are so criminally stupid that I am not sure anything could come out to sway more than a small portion of them anyway. They will always know Bush was better than Kerry, always support him.

 

[Lemon law]

I have to agree that its the net effect. The President is above the law.

And I have to admit that GWB&co. are very effective at ignoring the law and the constitution.

We could try the impeach and convict but the GOP has enough votes in the Senate to block convicting. The convict forces need 67 of a 100 and can't even get 60.

Its hard to get the courts to stand up and when they do, the GWB administration cites national security or quietly guts the court rulings. Or comes up with excuses like we don't torture because we hire private contractors to do it with the latter fact unrevealed.

So lets face the facts, we let them get away with because we were unwilling to be determined enough. We may later learn more of the full extent of GWB&co's treason, but by then, he is likely to be out of office.

A better generation than ours got rid of Nixon for far lesser crimes, and GWB&co, learned the lesson, you can do the crime but keep from being caught. And when caught, prevent being convicted of the crime. So far that applied lesson works very well because we let it work.

 

[ayabe]

4th amendment fell out of favor a long time ago.

Pretty much as soon as they made drug tests a legal reason to terminate or deny employment.

 

[bamacre]

Originally posted by: piasabird
So when the country is in a state of War, doesnt that change things a bit?

I'm sure Cheney would agree.

And since the "war on terror" will never end, those changes are permanent.

 

[Jaskalas]

Originally posted by: piasabird
So when the country is in a state of War, doesnt that change things a bit?

What war?

We seem to be fighting overseas. While over here instead of doing anything about the Islamic Supremacism that struck us we're harassing all Americans and beating our chests against anyone who dares suggest we recognize and act against our opponents.

There is no fighting here on our soil except with the government against its people treating us all equally criminal since September 11th. In that action, our government has proven itself illegitimate.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. ? That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, ? That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

There is no declaration of war against an enemy. Iraq is an occupation/reconstruction and is half a world away. Until we declare war on Islam?s cancer then there is no opponent and thus no legitimate war. To continue to operate under the guise of wartime powers against all Americans is to betray our constitution.

 

[Jaskalas]

Originally posted by: ayabe
4th amendment fell out of favor a long time ago.

Pretty much as soon as they made drug tests a legal reason to terminate or deny employment.

Every amendment fell as soon as the 10th fell. Do not respect the limited size of centralized authority and you sell your soul.

 

[Fern]

I have read this article carefully several times. I'm calling "BS" on it.

It starts with a decleassified publically available document:

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)

Foreign aliens abroad are not covered under the 4th Amendment. The above memo doesn't strike me as anything even remotely controversial as regards the 4th Amendment.

Then the article mentions this:

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).

It is pointed out that this memo is NOT public, so we don't know what it says. I note, however, that has not stopped the author from a HUGE and fantastic unsupported assumption:

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,....

Instead I will draw your attention to the title - see bolded portion above ^.

The subject would appear to address the application of the 4th Amendmend to foreign terrorists operating within the US.

The 4th Amendment can apply to foreigners within the US, but only under limited circumstances. In this forum we have previously discussed the SCOTUS case of a Mexican drug dealer who was captured within the USA. The court ruled the 4th did not apply to him even though he was within the US (it was a Rehnquist decision under the Clinton admin IIRC).

The question for foreigners is whether they have acquired sufficient connection to the USA so that they are granted the benefits/rights under the 4th Amendment.

In other words, it's far more plausable (Occam's razor type thing) that the unseen memo discusses whether foreign terrorists operating in the US have achieved sufficient connections to the US to obtain 4th Amendment rights and then concluded "no".

On other words, I doubt if the memo has a g*d d*mn thing to do with domestic surviellance of US citizens (note up until the author's fantastic "leap" the entire subject has been foreigners).

I'm saying the author is spreading FUD, and you guys are gobbling it up.

(Note: This might be at least interesting if the author could at least find some evidence that Congress even has the power to suspend the "unreasonable search" portion of the 4th in the event of war. I've never heard of that. I have heard of the Congressional right to suspend Habeus Corpus, but that's another matter - Habeus Corpus is specifically mentioned in the War Powers section of the Constitution - Art 1 section 8 IIRC.)

Fern