Global Policy Forum

By Jason Leopold

The Pentagon's declassification of a five-year-old memo authorizing military interrogators to use brutal methods to extract information from prisoners at Guantanamo Bay sheds new light into the dark corners of the Bush administration's legal theories that put the President and his subordinates beyond domestic and international law.

In the March 14, 2003, memo - which was released this past week - administration lawyer John Yoo cited the principle of national "self-defense" in combating terrorism as grounds for justifying harsh treatment of detainees up to and including death. Yet, as Yoo advanced his argument for virtually unfettered presidential war-time powers regarding the treatment of prisoners, the memo also pointed to other still-secret documents suggesting the administration was prepared to take its authority even further, into domestic military operations that would brush aside constitutional protections.

Yoo footnoted one of his earlier memos, dated Oct. 23, 2001, entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States." According to the footnote, that memo "concluded that the Fourth Amendment had no application to domestic military operations." The memo - with its provocative title - has remained a closely held administration secret, kept even from the House Judiciary Committee which renewed its request for the document on Thursday. It's now clear, however, that from inside the Justice Department's Office of Legal Counsel, Yoo and his colleagues were churning out a series of memos that fit with President George W. Bush's desire to be "forward-leaning" - or extremely aggressive - in the wake of the 9/11 attacks.

Though the Oct. 23, 2001, memo is still secret, some of Yoo's thinking on domestic military operations was revealed in an even earlier memo, written 10 days after the 9/11 attacks, on Sept. 21, 2001. In that memo, Yoo cited hypothetical cases in which U.S. military action against suspected terrorists on U.S. territory - such as a raid against a hideout or use of military checkpoints - might endanger Americans or intrude on their constitutional rights. Yoo argued that 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."

The Fourth Amendment to the U.S. Constitution states that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." But Yoo's Sept. 21, 2001, memo argued that the "war on terror" could justify domestic surveillance activities, such as monitoring telephone calls without a court warrant, that otherwise might violate the Fourth Amendment. [NYT, Oct. 24, 2004]

In his 2006 book, War by Other Means: An Insider's Account of the War on Terror, Yoo cites various arguments for local and federal law enforcement agencies, as well as a sitting U.S. President, to ignore the Fourth Amendment, especially regarding domestic surveillance. "If al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement," Yoo wrote. "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 the Bush administration has never argued publicly that the Fourth Amendment did not apply to military operations within the United States.

Though Yoo's hypothetical domestic military actions, as described in his Sept. 21, 2001, memo, have not come to pass, his position that the "war on terror" justifies setting aside the Fourth Amendment's protection against warrantless searches did survive. Starting in the months after the 9/11 attacks, Bush chose to override the Foreign Intelligence Surveillance Act and authorize warrantless wiretaps of international communications to and from the United States. Bush acknowledged the existence of these warrantless wiretaps in December 2005, after they were disclosed by the New York Times.

White House spokesman Tony Fratto said Thursday that the administration hasn't relied on Yoo's Oct. 23, 2001, memo for more than five years, but Congress still has spent a great deal of effort trying to pry it loose from the Justice Department. Rep. John Conyers, D-Michigan, House Judiciary Committee chairman, renewed that effort on Thursday in a letter to Attorney General Michael Mukasey, saying the committee was rebuffed on two previous occasions - Feb. 12 and Feb. 20 - when requesting a copy of the memo.

"Based on the title of the Oct. 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."

John Yoo left the Justice Department in 2003 and some of his memos were later rescinded. However, the administration continues to assert broad powers for Bush as Commander in Chief during the "war on terror."

Yoo is now a law professor at the University of California at Berkeley.