OLC Authorized Pentagon to Ignore Bill of Rights On U.S. Soil

By
Monday, March 02, 2009 at 7:04 pm

In an October 2001 memo released today on Monday, then-Deputy Assistant Attorney General in the Office of Legal Counsel John Yoo advised the Pentagon’s top lawyer that the president may not only deploy the military within the United States, but it may ignore the Bill of Rights in the process of doing so. Yoo and special counsel Robert Delahunty wrote to Defense Department general counsel William Haynes that the president has “ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States,” and that the use of military force “need not follow the exact procedures that govern law enforcement operations.”

Although the Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures on U.S. soil, Yoo concluded that “[a]lthough the situation is novel … we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probably cause or to obtain a warrant.”

This memo appears to have formed the legal basis for the Bush administration’s domestic warrantless wiretapping program, which at least one federal judge has since concluded was unconstitutional.

Jameel Jaffer, Director of the ACLU National Security Project, reads it as extending beyond the Fourth Amendment, however.

“This takes the position that the Bill of Rights does not constrain the military in its operations inside the United States,” Jaffer told me this afternoon. “The president can disregard the constitution during wartime, not just on foreign battlefields, but inside the United States.  We had not seen a memo saying that before.”

Of the nine memos released today, at least two — this October one written by Yoo, and another written by Bybee regarding extraordinary rendition — were responsive to earlier ACLU requests for OLC memos in the context of ongoing FOIA cases.

But many more memos the ACLU has requested still have not been released.

“There are still dozens of memos being withheld,” said Jaffer. “We’re hoping that this is a first installment.”

While the memos reveal the legal groundwork that was laid for the Bush administration’s conduct in its “war on terror”, much of which appears to have been illegal, they still don’t answer the critical question that many Bush critics want to know.

“The obvious question that’s raised by these memos is, what conduct did the administration authorize on the basis of the legal reasoning in these memos?” Jaffer said.  “That’s a question that has not been adequately answered.”

Update: After further reading of this memo, I have to update it with some more astounding quotes from John Yoo, who insists that not only the Fourth Amendment, but the First Amendment right to free speech may be overridden by the President in wartime:

“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” writes Yoo.  Yoo then reaches back to a 1931 Supreme Court case to support this idea, which said that “’When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’ . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”

Now, no one today would argue that an American has a right to publish secret details about U.S. troop movements in Iraq, either; but the First Amendment already accounts for those sorts of exigencies.  For John Yoo to take from that that the President may actually override free speech and press rights that are guaranteed by the First Amendment goes beyond stretching it — it’s just a blatant, and deliberate, misreading of the law.  After all, John Yoo — Harvard and Yale grad, Berkeley Law prof — is no dummy.

Comments

17 Comments

John H Kennedy
Comment posted March 2, 2009 @ 4:45 pm

WHY CAN'T WE PROSECUTE THESE CRIMINALS????

Holder's/Obama's pronouncements on Torture, etc
Are To Be Seen As Just Political Posturing UNLESS

A Special Prosecutor
Is Appointed VERY SOON!

We understand what our politicians really stand for by how they act and do not act, Not Just By What They Say.

So IF Obama and Holder would rather We Believe that “THEY Really believe Torture is Illegal”, the Only Way They Can Prove It To We The Voters,
IS TO APPOINT A Special Prosecutor.

Obama said,

“no one is above the law”

SO Congress must demand and the Justice Dept must appoint a Special Prosecutor with Subpoena Powers and the authority to indict all those officials found to have violated Federal Laws, Our Constitution or the Geneva Convention on Torture. The Statute of Limitations starts to run out in March. Prosecution will stop unnecessary wars and the damage to our economy caused by presidential lies and Abuse Of Power. Bush & Cheney confessed that they ordered torture. Very little additional investigation is needed.

Sen. Leahy & Rep. John Conyers' “blue ribbon commissions” will be nothing but a white wash and a burial for all time of the true facts.

We do not want a commission. We want them prosecuted.

YOU CAN HELP MAKE THEM PROSECUTE!

SIGN THE PETITION To Prosecute at

http://IndictBushNow.org

Have your local progressive group Endorse this Letter to Attorney General Holder

http://ProsecuteBushCheney.org

Prosecute so our 30,000+ US Soldiers who were killed or maimed have not suffered in vain


Marvin Cooley
Comment posted March 3, 2009 @ 1:58 am

Joh H. Kennedy wrote:

“WHY CAN'T WE PROSECUTE THESE CRIMINALS????”

When criminals are the ones who are suppose to do the prosecuting it is difficult at best to get them to prosecute other criminals. The Justice Department is full of bureaucrat lawyer criminals. They tell the president what to do and say. They select those that the President pardons and so on. Why not fire them all and start over maybe we can fine some honest lawyers, if there is such.


NORTON
Comment posted March 3, 2009 @ 5:43 am

fucin treason…. hang the bstrd


Elliott Hurwitt
Comment posted March 3, 2009 @ 7:29 am

You're doing great work here, Daphne Eviatar. First rate reporting. Keep up the pressure on this issue – it shouldn't be allowed to just blow away with the culprits left unpunished.


Jonah_Arc
Comment posted March 3, 2009 @ 9:21 pm

It is disquieting to think what the actions would be of the current man in the White House. Scares me to death thinking of his response to our next 9-11.


OLC Authorized Pentagon to Ignore Bill of Rights On U.S. Soil « ACGR’s “News with Attitude”
Pingback posted March 4, 2009 @ 10:22 am

[...] The story continues ….. [...]


Kim
Comment posted March 4, 2009 @ 1:00 pm

It looks like a few people in the government need to be hanged in a public place — after being tarred and feathered.


the remnant
Comment posted March 5, 2009 @ 9:32 am

true news about what is really going on can be found here: operation cloverleaf, echelon, maincore lists, hr 645 and fema camps at thomas.gov, strangedaysstrangeskies, whatdoesitmean.com, haarp, cern enoch, jasher, cutting edge ministries, center for global research, operation red sky, illuminati, satanic symbols dia, freemasons and nwo agenda, ipto, op dragnet, north american union, book rise of the fourth reich, book 2008 god's final witness, amero, put on the full armor believers, this is spiritual warfare 106. ps biters, party on with all that you have stolen and have a big laugh at all of the misery you have caused over the past 6,000 years because your date with destiny fast approaches. till the day in 2012 love to all others


Bill
Comment posted March 5, 2009 @ 10:08 am

Oh, you don't like it when government wants take away your first amendment, huh?
Maybe the media should think about that the next time the government wants to take away any of the other constitutional rights that are included with that one.
I speak specifically about the 2nd amendment, which the media seems to conveniently forget, is just as valid as the 1st.


B
Comment posted March 5, 2009 @ 11:19 am

People Bush Did what Any of us would do to protect American Lives


B
Comment posted March 5, 2009 @ 11:23 am

You all seem to forget What would happen if a nuke went off in NY, La, Kansas City,Orlando Then what would Mickey mouse look like


Bryan
Comment posted March 5, 2009 @ 2:51 pm

The fatal flaw in the argument is that “guaranteed by the First Amendment ” is incorrect. Those rights are bestowed by GOD and re-affirmed in the Bill of Rights. This is a critical difference. Man cannot override what GOD has put in place but can change and warp what man has decreed. If you view the Bill of Rights as the guarantee then Yoo's argument can be correct. If you understand that the Bill of Rights re-affirms GOD's mandate for man then Yoo's argument is patently wrong. However, Yoo's view is backed up by history in the United States, President Lincoln ordered imprisoned multiple people for speaking out (both verbally and in print) against the Civil War and his policies without warrant or trial or even access to legal council and used the military to carry out his orders.


Booger
Comment posted March 5, 2009 @ 11:25 pm

In my opinion-
The key term is 'time of war.'
It must be a congressionally declared [by majority vote] state of war against another nation or people.
In all cases, previous Gov restrictions or imprisonment occured
during periods of US declared state of war. [until recent times]

Iraq is not a US declared state of war against another nation.
Iraq, is a UN sanctioned [multi-national police action] operation that authorizes use of force.
Just as the Korean 'war' was a UN sanctioned police action.
Vietnam 'war' was a UN sanctioned police action.
BUT NOT A US DECLARED STATE OF WAR!

Just going about saying we are at war is wrong, misleading, and usually
[in recent times] used intentionally to misrepresent authorization for actions.


Booger
Comment posted March 6, 2009 @ 7:25 am

In my opinion-
The key term is 'time of war.'
It must be a congressionally declared [by majority vote] state of war against another nation or people.
In all cases, previous Gov restrictions or imprisonment occured
during periods of US declared state of war. [until recent times]

Iraq is not a US declared state of war against another nation.
Iraq, is a UN sanctioned [multi-national police action] operation that authorizes use of force.
Just as the Korean 'war' was a UN sanctioned police action.
Vietnam 'war' was a UN sanctioned police action.
BUT NOT A US DECLARED STATE OF WAR!

Just going about saying we are at war is wrong, misleading, and usually
[in recent times] used intentionally to misrepresent authorization for actions.


» SFAWBN Archive » “They” don’t need a warrant…
Pingback posted March 10, 2009 @ 1:02 pm

[...] The Washington Independent – 10 Mar ‘09 [...]


Ari Melber: Big Questions for President Obama’s Big Press Conference | BlackNewsTribune.com
Pingback posted March 24, 2009 @ 12:20 am

[...] the President has the power to suspend the Bill of Rights? Obama rightly released a series of disturbing claims to presidential power by the Bush administration, but the public discussion has not advanced much [...]


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