White House Query Led Lawyer to Write Memo Saying Bush Could Ignore Fourth Amendment

Eleven days after 9/11, John Yoo, a former deputy in the Justice Department’s Office of Legal Counsel, drafted a 20-page memorandum that offered up theories on how Fourth Amendment protections against unreasonable searches and seizures would be applied if the U.S. military used “deadly force in a manner that endangered the lives of United States citizens.”

Yoo came up with a number of different scenarios. He suggested shooting down a jetliner hijacked by terrorists; setting up military checkpoints inside a U.S. city; implementing surveillance methods far more superior than those available to law enforcement; or using military forces “to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire,” says a copy of the little known Sept. 21, 2001 memo.

Yoo, the author of an August 2002 legal opinion widely referred to as the “Torture Memo” that gave CIA interrogators the legal authority to use brutal methods against suspected terrorists to extract information, drafted the memo in response to a question posed by Timothy E. Flanigan, the former deputy White House counsel, who wanted to know “the legality of the use of military force to prevent or deter terrorist activity inside the United States,” according to a copy of Flanigan’s memo.

Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”

“We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection,” Yoo’s memo stated.

Yoo also wrote in the Sept. 21, 2001 memo that domestic surveillance activities, such as monitoring telephone calls and without a court’s permission, might be proper notwithstanding the ban in the Fourth Amendment on unreasonable searches and seizures.

The Sept. 21, 2001 memo Yoo sent to Flanigan was referred to in a lengthy story published in the New York Times on October 24, 2004. The Times story said Yoo’s suggestions for suspending the Fourth Amendment was hypothetical at best.

But another legal opinion Yoo, now a law professor at the University of California at Berkeley, drafted less than two years later says that the Bush administration accepted Yoo’s legal theory as policy for more than one year beginning in late October 2001.

Earlier this week, the Pentagon declassified an 81-page memorandum Yoo drafted in March 2003 that authorized military interrogators to use brutal techniques to obtain information about terrorist plans from prisoners held at Guantanamo Bay, Cuba. The memo was publicly released as part of the American Civil Liberties Freedom of Information Act lawsuit against the Pentagon.

Buried deep within that legal document is a footnote that refers to an Oct. 23, 2001 legal memorandum written by Yoo.

“Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a 37-page document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”

Yoo based his opinion on the 1990 drug case US v. Verdugo-Urquide in which the Supreme Court refused to hear a lawsuit brought against the United States by a Mexican citizen whose home was searched by federal agents without a search warrant. In rejecting the Fourth Amendment claim, the Court said aliens could not claim the benefit of the Constitution for conduct outside the United States—such aliens were not part of the “we the people” who benefited from the Fourth Amendment. Further, the Court found that allowing such claims would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries, not just in drug cases… but in the use of armed forces abroad “for the protection of American citizens or national security.”

Yoo refers to the case in his 2006 book, War by Other Means: An Insider’s Account of the War on Terror, where he argues in more than 23 separate pages about the various legal reasons local and federal law enforcement agencies, as well as a sitting U.S. president, could ignore the Fourth Amendment. Yoo’s legal theories revolve primarily around domestic surveillance activities.

“If Al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement,” Yoo wrote in his book. “The Fourth Amendment’s warrant requirement should not apply, because it is concerned with regulating searches, not with military attacks.”

Jameel Jaffer, Director of the ACLU’s National Security Project, said Yoo helped President Bush break the law by giving the legal guidance to ignore the Constitution.

“The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power,” Jaffer said. “The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law.”

Jaffer said the Bush administration has never argued publicly that the Fourth Amendment did not apply to military operations within the U.S.

White House spokesman Tony Fratto said Thursday the administration hasn’t relied on Yoo’s Oct. 23, 2001 memo for more than five years.

Still, Congress said it has spent a considerable amount of time trying to pry loose the memo from the Department of Justice.

On Thursday, John Conyers, the Democratic chairman of the House Judiciary Committee, wrote a letter to Attorney General Michael Mukasey saying he was rebuffed on two previous occasions—on February 12 and 20th–when he wrote the DOJ requesting the Oct. 23, 2001 memo be turned over to his committee

“Based on the title of the October 23, 2001 memorandum, and based on what has been disclosed and the contents of similar memoranda issued at roughly the same time, it is clear that a substantial portion of this memorandum provides a legal analysis and conclusions as to the nature and scope of the Presidential Commander in Chief power to accomplish specific acts within the United States,” Conyers wrote.

“The people of the United States are entitled to know the Justice Department’s interpretation of the President’s constitutional powers to wage war in the United States,” Conyers added. “There can be no actual basis in national security for keeping secret the remainder of a legal memorandum that addresses this issue of Constitutional interpretation The notion that the President can claim to operate under “secret” powers known only to the President and a select few subordinates is antithetical to the core principles of this democracy. We ask that you promptly release the October 23, 2001, memorandum.”

Jason Leopold is an investigative reporter and a two-time winner of the Project Censored award. He is the author of the National Bestseller, News Junkie, a memoir, and he has launched a new online investigative news magazine, The Public Record. Read other articles by Jason, or visit Jason's website.

10 comments on this article so far ...

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  1. Don Hawkins said on April 5th, 2008 at 8:13am #

    updated 8:10 a.m. ET, Wed., Oct. 27, 2004
    IOWA CITY, Iowa – The Bush administration is trying to stifle scientific evidence of the dangers of global warming in an effort to keep the public uninformed, a NASA scientist said Tuesday night.
    “In my more than three decades in government, I have never seen anything approaching the degree to which information flow from scientists to the public has been screened and controlled as it is now,” James Hansen told a University of Iowa audience.

    Information flow remember that brand of insanity from Bush and company before the Iraq war. Yes the thinking with these people looks to be above it all and we all see how well it is working out. Yes waging war in the United States the last eight years of twisted logic and misinformation.

  2. John Wilkinson said on April 5th, 2008 at 1:27pm #

    If you say “lawyer” fast enough, it sounds like “liar”. That may be the origin of the word, and that’s why everything’s falling apart. Everything has been taken over by the “liars” in this country, the truth, justice and reality don’t matter any more. You can pretty much prove anything (or be prevented from proving anything) in a “court of law” (what a misnomer). And the rights or the lack thereof, are to be worked out by the more fluent “liar”. Even the ones who ostensibly work for the people are slimy bastards, getting rich off someone’s pain.

  3. John Wilkinson said on April 5th, 2008 at 1:29pm #

    And this bastard teaches law at a prestigious University. It can only go downhill from now. And let’s not forget the likes of the Pat Robertson school of “law”.

  4. Don Hawkins said on April 5th, 2008 at 2:51pm #

    Pat Robertson and Al Sharpton just filmed an ad for the We Campaign, sitting on a couch on the beach. In the ad, now being produced, they say that while they may not agree on many things, they do agree that they have to work to save the planet.

    Pat Robertson thinks the Earth is only six thousand years old and now doing a commercial for Gore’s 300 million campaign on climate change. Somebody but myself has to find that absolutely fascinating. Then think Presidential campaign or maybe not insanity is not one of my favorite subjects. Prestigious

  5. Don Hawkins said on April 5th, 2008 at 3:38pm #

    The age of the Earth is 4.5 billion years. The age of the Universe is about 13.73 billion after the big bang. Now is there a god? To me is there a create tor? Well logic would say that the first atoms, hydrogen atoms had to come from some where. The question who or what. I’ll bet we are not alone in this Universe and that some are further along than us but have not answered that question.

  6. hp said on April 5th, 2008 at 4:33pm #

    ‘A lawyer is someone who protects us against robbers by taking away the temptation.’

  7. hp said on April 5th, 2008 at 4:39pm #

    ‘We must respect the other fellow’s religion, but only in the sense and to the extent that we respect his theory that his wife is beautiful and his children smart.’

  8. Colby said on April 5th, 2008 at 6:16pm #

    ‘The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion, the public Safety may require it’.

    The Bush administration attempts to play it both ways, citing our Constitution when it behooves them; then playing with the definitions. Bush calls it the War on Terror – although the new phrase is the ‘The War on Extremism’ – I believe. So it’s a war, right? Well, most of the world already knew that, but, in legalese, the names of things are salient.
    The emerging point is if we’re fighting a war, then Guantanamo detainees are ‘Prisoners of War’, and Writ of Habeas Corpus applies.
    So the Justice Department, in collusion with the Pentagon, labels them ‘enemy combatants’ – tossing Habeas out the window.
    Run ‘Morris Davis’ and ‘Guantanamo’ on a news search, for more information.

  9. DavidG. said on April 6th, 2008 at 10:37pm #

    I agree with the above sentiments about lawyers. They’re parasites.

    If we could get rid of lawyers, politicians, entrepreneurs and priest-like shamans our world would blossom into a peaceful Garden of Eden, one without any serpents.

    Interested in ‘Saving America’? Checkout my blog.

  10. corylus said on April 9th, 2008 at 9:22am #

    John Yoo should be dragged from his comfy confines on the Berkeley campus and subjected to the same types of treatments he claims are “not torture.” That this war criminal continues to take up space on the planet without being held accountable, as an adviser to fascist imperialism and promoter of violations of the Geneva Conventions, is testament to the demagoguery and cowardly capitulations of university administrations. Some of those detention centers being built by Halliburton will come in handy once Americans realize that the only terrorists and war criminals worth putting in prison are those who sit in supposedly esteemed places. Time to pull them from their thrones and start the fires.