Constitutional Freedoms in Peril

Two important articles have been published at AlterNet in the past week. Liliana Segura discusses a crucial footnote in the newly declassified Yoo memo, referring to another secret memo, written shortly after 9/11, and, in the name of national security, dispensing with the Fourth Amendment."

Yoo's footnote (page 8 of the memorandum) arrives during a discussion of the purported inapplicability of the Fifth Amendment Due Process clause in wartime. Yoo cites the inapplicability of the Fourth Amendment, too, overseas, and then, in a footnote, continues (emphasis mine):

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, 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, n, 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).

For those who may have forgotten, or don't know, Segura explains the import of the matter:

The Fourth Amendment, of course, lays out "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Critics of the Bush administration's warrantless wiretapping program -- which was started in the same weeks the memo was written -- have staked their claims in part on its violation of this right. Proof that the program originated at the same time that the White House officially jettisoned the Fourth Amendment in the name of national security is a damning -- if not surprising -- revelation.

Robert Parry of consortiumnews.com wonders "Will the Constitution Be Altered to Eliminate Key Liberties?"

Though little discussed on the campaign trail, a crucial issue to be decided in November is whether the United States will return to its traditions as a constitutional Republic respecting "unalienable" human rights or whether it will finish a transformation into a frightened nation governed by an all-powerful President who can do whatever he wants during the open-ended "war on terror"....

While most news coverage of Yoo's March 14, 2003, memo has focused on the legal gymnastics justifying harsh treatment of detainees -- including possible use of mind-altering drugs -- the centerpiece of Yoo's argument is that at a time of war the President's powers are essentially unfettered.

While refusing to do much about the situation, even Senator Dianne Feinstein was surprised enough about the inclusion of the secret 10/23/01 memo referenced in Yoo's footnote, and it's reference to the suppression of the Fourth Amendment for domestic military activities, she questioned Attorney General Michael Mukasey about it at an Appropriations Committee session on April 10. According to the Washington Post:

Attorney General Michael B. Mukasey told senators yesterday that a 2001 Justice Department memo insisting that Fourth Amendment safeguards against unreasonable searches did not cover military activities within the United States is "not in force."

Under sharp questioning from Sen. Dianne Feinstein (D-Calif.) at an Appropriations Committee hearing, Mukasey said that the "Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime," even though the memo by the department's Office of Legal Counsel had concluded otherwise.

The Post story is misleading, however, although correctly noted that Mukasey was dragging his feet on declassifying the Oct. 2001 memo. But The Post's lie is telling, because in fact Mukasey would not say whether the ruling that the Fourth Amendment is inapplicable to "domestic military operations" (like, say... domestic military spying!) is "in force" or not.

Paul Kiel at TPMMuckraker caught the exchange -- which I also saw -- and reported it correctly:

Has that memo been withdrawn? If not, was it still in force? Feinstein wanted to know.

She found it difficult to pry an answer loose. "I can't speak to the October, 2001 memo," Mukasey said when she asked whether it had been withdrawn. He said that Yoo's later March, 2003 memo -- which broadly authorized the use of torture by military interrogators on unlawful combatants -- had been withdrawn, but refused to discuss that October, 2001 memo....

"This isn't a question of oversight," Feinstein said. "I'm just asking you, 'Is this memo in force that the Fourth Amendment does not apply?"

"The principle that the Fourth Amendment does not apply in wartime is not in force," Mukasey replied.

"That's not the principle I asked you about," Feinstein countered. The memo referred to domestic military operations, she said.

"There are no domestic military operations being carried out today," Mukasey replied.

"I'm asking you a question. That's not the answer."

"I'm unaware of any domestic military operations being carried out today," he repeated.

"You're not answering my question," she said.

Finally, Mukasey responded, "The Fourth Amendment applies across the board whether we're in wartime or peacetime. It applies across the board....

"The discussion of which that was a part... means the inaptness... the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable."

"But Mr. Yoo's contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations," Feinstein replied.

"Without regard to the Fourth Amendment?"

"Yes."

"My understanding is that is not operative."

Maybe Mukasey's last statement is what the Post jumped on, but given the previous exchange, I don't think anyone can say for sure (although Feinstein was reportedly satisfied.) I've bolded Mukasey's key sentence, which sounds like a lot of gobblety-gook to this non-attorney. Anyway, here's the video and you can decide: