On Monday the Department of Justice released a previously classified opinion entitled “Authority for Use of Military Force To Combat Terrorist Activities Within the United States” (.pdf), which concluded, among other things, that “the Fourth Amendment [of the U.S. Constitution] does not apply to domestic military operations designed to deter and prevent further terrorist attacks.” This may come as a shock to some because the Fourth Amendment expressly prohibits the government from searching or seizing individuals or their property absent a warrant and probable cause, without any special carve out for domestic military operations. The DOJ opinion, written by Deputy Assistant Attorney General John C. Yoo and Special Counsel Robert J. Delahunty, also concluded that these constitutionally exempt counter-terrorism operations would include “making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, and searching for suspects.” The evidence recovered from these operations could then be used “for criminal investigations or prosecutions.”
Commentators have reacted with concern to the opinion as it placed the power to decide whether or not the Fourth Amendment applied to a military action in the hands of the President (“If the President concludes that it is necessary to use military force domestically to counter [terrorists], the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.”). Many have also noted that have noted that because NSA is part of the military, this opinion was probably part of the justification for the past administration’s warrantless wire-tapping program, which caused great concerns among civil libritarians.
It is unlikely that this opinion will govern during the Obama presidency: the DOJ formally renounced this opinion on January 15, 2009. However, the disclosure of this opinion does help shed light on (or confirm) the last administration’s view of privacy during the war on terror.
- Department of Justice website
- The October 23, 2001 opinion can be found here (.pdf) or from the DOJ’s website here (.pdf)
- Department of Justice Press Release announcing the disclosure of the opinion memorandum is available here or from the DOJ’s website here
- Glenn Greenwald’s column “The newly released secret laws of the Bush administration” is available here
- National Security Agency website
- New York Times article “Memos Reveal Scope of the Power Bush Sought” is here (registration required)
- New York Times article first reporting on the warrantless wiretapping program is here (registration required).