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Secret Memo Raises New Questions on Domestic Spying
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ShareApril 03, 2008 9:20 AM
Justin Rood reports:
Shortly after the Sept. 11, 2001 attacks, the Bush administration concluded constitutional protections against unreasonable searches did not apply if they were done as part of “domestic military operations,” the Wall Street Journal reports this morning.
The American Civil Liberties Union, which unearthed that tidbit, called it a "radical interpretation" of the Fourth Amendment. A Justice Department spokesman said the administration has since changed its thinking on the matter. However, the legal reasoning was in place from 2001 until possibly as late as 2006, the Journal says.
The reasoning is contained in a still-classified 37-page memo dated Oct. 23, 2001, from the Justice Department Office of Legal Counsel. Another document, recently obtained by the ACLU, mentioned the October 2001 memo’s findings on the Fourth Amendment.
That secret memo has appeared before, however.
The October 2001 document, "Re: Authority for the Use of Military Force to Combat Terrorist Activities within the United States," was mentioned in another Bush administration legal opinion – the so-called "Bybee Memo," since rescinded, which found that torture "may be justified" in some instances.
A footnote to the Bybee document said that the October 2001 memo also concluded that Posse Comitatus –- an 1878 statute barring the military from participating in "law and order" missions domestically, under most circumstances – does not apply to the war on terror. "Posse Comitatus does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States," the memo stated.
The two conclusions -- that both the Fourth Amendment and Posse Comitatus do not protect Americans from government anti-terror efforts -- is puzzling, experts say. It's simply not clear exactly what operation the October 2001 memo was meant to justify.
While some speculated it was meant to provide a legal basis for the National Security Agency's controversial domestic wiretapping program, a White House spokesman told the Journal that effort relied on "a separate set of legal opinions."
"What kind of surveillance program was it meant to justify, then?" the ACLU's Jameel Jaffer asked a Journal reporter.
April 3, 2008 | Permalink | User Comments (4)
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I read somewhere on the internets a few years ago that if The President does something then it is by Law legal.
Posted by: The Commander Guy | Apr 3, 2008 9:26:12 AM
Attorney General Michael Mukasey told a San Francisco audience last week that the Bush administration was aware in the days before the 9/11 attacks that an Al Qaeda official was making calls from a “safe house in Afghanistan” to U.S. but that our government failed to act on that.
Mukasey said the U.S. lacked the legal authority, a flat falsehood as legal commentators have pointed out. But why aren’t journalists pursing what Salon’s Glenn Greenwald explains is a huge question: Mukasey’s story is either true or false — and, more importantly, nothing like it happened. He can’t claim that he just misspoke or was confused.
Posted by: Sid | Apr 3, 2008 5:26:32 PM
This puts a whole new light on Bush's attempt to federalize the Louisiana National Guard after Katrina, doesn't it? The fact that Gov. Blanco resisted that spelled doom for rescue efforts in New Orleans.
Remember that? What were the bushies trying to do?
Posted by: Tom Traubert | Apr 4, 2008 4:09:55 AM
This is just another in a long line of the complete degradation of the US constitution and what it and this country are supposed to be founded on. As someone who is 21 I cant remember the days of national pride or the warm feelings for this country that so many of my elders talk about. Did the founding fathers really want a country where freedoms can be thrown out as easily as a pizza box. I hope not. At one time we as a nation would have fought till there was none of us left to protect our freedom and our flag but not any longer. Are we as a nation really diserving of freedom? Our four fathers shed blood for the idea of a truely free nation and they must be rolling in there graves right now to think that what they fought so hard to give us we have allowed to be taken from right under our noses, with out as much as a second look. IT MAKES ME SICK! Does anyone remember give me liberty or give me death, or the thought behind that simple idea. A life that is not free is not worth living we freed slaves because of this same reason but we cant free ourselfs because we as a nation have become spineless to worried about the next hand out the government throws to us like dogs instead of wondering why do we have to sacrifice freedom for saftey. The government are the true terrorists. MOre people die from lack of proper healh care in this country in a month then those who died in 911. In 6 months more die then 9/11, iraq, and the rest of the war on terror. But they want you to belive that you are in danger that behind every corner is a bomber or extreamist. It is all to keep us distracted well they swipe no STEAL the last of the freedoms we have left in this country we as a nation need to wake up. Start small just start asking. Start questioning. MOST OF ALL START WATCHING.
Posted by: NO FREEDOM TO DEFEND | Apr 22, 2008 12:43:33 PM
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