Thursday, April 03, 2008

Yoo Says the Fourth Amendment Does Not Apply To Bush

John Yoo's damage to our Constitution and the nation it created is even worse than we thought. We now discover that in 2001 he told BushCo that they were free to violate the Fourth Amendment of the Constitution. This little part of that quaint document says,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yoo, on behalf of the Office Of Legal Counsel of the Justice Department, the office that tells DOJ what the law is, advised

Our office recently concluded that the Fourth Amendment had no application to domestic military operations,"

We do not yet have a copy of the 2001 memo. The language above is found in a footnote in Yoo's 2003 memo which holds that Bush can order the torture of anyone as long as he deems it necessary.

The full text of the footnote in the 2003 opinion states,

10 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 Terorist Activities Within the United States at 25 (Oct 23, 200 I).

If U.S.v Verdugo-Urquidez is the opinion relied on by Yoo, that is a slender reed indeed. That opinion involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government.

There is another footnote in the 2003 opinion which is almost comical. Note 11 provides.

11 Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) . 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. Mendoza­ Martinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, we conclude that the restrictions outlined in the Fifth Amendmenr:simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies.

It would not be surprising if we find a similar statement in the Yoo's 2001 regarding the Fourth Amendment, because that is the nature of his "opinions." They are filled with citations, most of which don't support and in many cases contradict the conclusions reached. After thousands of words we are then given conclusory statements to the effect that the President has the power to do whatever he wishes. While the Constitution applies to the President, it just doesn't apply in such a way that would restrict him from doing whatever he, in his sole omnipotent discretion, deems necessary.

The Justice Department has since disavowed both memoranda, they claim. A DOJ spokesman said

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

There is confusion as to whether this memo was the legal underpinning for Bush's so-called Terrorist Surveillance Program.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program. "TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

That sounds like horsepuckey to me since Yoo's memo

was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The importance of this memo, though, is not whether it was used to justify one program or another, or even whether it was subsequently disavowed. Rather, it illustrates the mindset of the lawless group of people running our government. We have seen much evidence of this by their deeds in the last seven years. We know understand better why they have such utter contempt for the Constitution. Their lawyers had seen written in the Document a new Article that says,

"Nothing in this document shall in any way constrain, restrict or inhibit the authority of the 43d President from doing whatever he wishes in his role as Commander in Chief. In that role he shall have all the powers possessed by the King of England prior to the Magna Carta plus such other additional powers as he deems necessary."

My apologies for being so snarky, but the outrage of these guys leaves little room for intelligent discussion. That will come later when we have the actual text of this memo to read.

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