http://www.aclu.org/safefree/torture/34757prs20080402.html
Bush Administration Memo Says Fourth Amendment Does Not Apply To
Military Operations Within U.S. (4/2/2008)
ACLU Calls For Immediate Release Of Withheld Legal Memo
FOR IMMEDIATE RELEASE
CONTACT: (212) 519-7829 or (646) 785-1894; media@[EMAIL PROTECTED]
YORK – A newly disclosed secret memo authored by the Department of
Justice's Office of Legal Counsel (OLC) in March 2003 that asserts
President Bush has unlimited power to order brutal interrogations of
detainees also reveals a radical interpretation of the Constitution's
Fourth Amendment protection from unreasonable search and seizure. The
memo, declassified yesterday as the result of an American Civil
Liberties Union lawsuit, cites a still-secret DOJ memo from 2001 that
found that the "Fourth Amendment had no application to domestic
military operations."
The October 2001 memo was almost certainly meant to provide a legal
basis for the National Security Agency's warrantless wiretapping
program, which President Bush launched the same month the memo was
issued. As a component of the Department of Defense, the NSA is a
military agency.
"The recent disclosures underscore the Bush administration's
extraordinarily sweeping conception of executive power," said Jameel
Jaffer, Director of the ACLU's National Security Project. "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."
The Bush administration has never argued publicly that the Fourth
Amendment does not apply to military operations within the nation's
borders. The memo released yesterday publicizes this argument for the
first time.
The ACLU has been aware of the Justice Department's October 2001 memo
since last year, but until now, its contents were unknown. The Justice
Department informed the ACLU of the memo's existence as a result of a
FOIA lawsuit seeking information concerning the NSA's warrantless
wiretapping program. The Justice Department acknowledged the existence
of "a 37-page memorandum, dated October 23, 2001, from a Deputy
Assistant Attorney General in OLC, and a Special Counsel, OLC, to the
Counsel to the President, prepared in response to a request from the
White House for OLC's views concerning the legality of potential
responses to terrorist activity." Until now, however, almost nothing
was known about the memo's contents – except that it was related to a
request for information about the NSA's warrantless wiretapping
program. The ACLU has challenged the withholding of the October 2001
memo and the issue is pending before the U.S. District Court for the
District of Columbia.
The memo released to the ACLU yesterday cites the October 2001 memo
but takes its argument even further. Relying on the earlier memo, the
March 2003 memo argues that the president has authority as
Commander-in-Chief to bypass not only the Fourth Amendment but the
central due process guarantee of the Fifth Amendment as well.
"This memo makes a mockery of the Constitution and the rule of law,"
said Amrit Singh, a staff attorney with the ACLU. "That it was issued
by the Justice Department, whose job it is to uphold the law, makes it
even more unconscionable."
The March 2003 memo was declassified in response to a lawsuit filed by
the ACLU, the New York Civil Liberties Union, and other organizations
in June 2004 to enforce Freedom of Information Act (FOIA) requests for
records concerning the treatment of prisoners in U.S. custody abroad.
The ACLU has been fighting for the release of the March 2003 Yoo memo
since filing the lawsuit. A few weeks ago, after the court ordered
additional briefing on whether the Defense Department could continue
to withhold the memo, the government reluctantly agreed to conduct a
declassification review by March 31. The Defense Department released
this memo after conducting the review.
The 2003 Department of Justice memo can be found online at:
www.aclu.org/safefree/torture/34745res20030314.html
Do***ents relating to the ACLU's NSA FOIA lawsuit are available online
at:
www.aclu.org/safefree/nsaspying/30022res20060207.html
To date, more than 100,000 pages of government do***ents have been
released in response to the ACLU's FOIA lawsuit related the abuse of
prisoner in U.S. custody abroad. These do***ents are available online
at: www.aclu.org/torturefoia
--
"Now, by the way, any time you hear the United States government
talking
about wiretap, it requires -- a wiretap requires a court order.
Nothing has
changed, by the way. When we're talking about chasing down terrorists,
we're
talking about getting a court order before we do so"
-George W. Bush, April 20, 2004
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