AFTER 9/11, A SECRET MEMO
Administration Asserted a Terror Exception on Search and Seizure
Friday, April 4, 2008
The Justice Department concluded in October 2001 that military operations combating terrorism inside the United States are not limited by Fourth Amendment protections against unreasonable searches and seizures, in one of several secret memos containing new and controversial assertions of presidential power.
The memo, sent on Oct. 23, 2001, to the Defense Department and the White House by the Office of Legal Counsel, focused on the rules governing any deployment of U.S. forces inside the country "in the event of further large-scale terrorist activities" by al-Qaeda, a Justice Department official said yesterday.
Administration officials declined to detail what domestic military operations were being contemplated at the time, and the legal status of the secret memo is now unclear. Although the memo has not been formally withdrawn, the Justice Department yesterday repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on "the particular context and circumstances of the search," according to a statement.
The Fourth Amendment assertion is one of several far-reaching legal arguments revealed by the disclosure Tuesday of a 2003 Justice Department memo that authorized harsh military interrogations. In its footnotes, asides and central text, that 81-page memo asserted nearly unlimited presidential powers during a time of war, although the Justice Department later said the military should not rely on its reasoning.
The document disclosed, for example, that the administration's top lawyers had declared that the president has unfettered power to seize oceangoing ships as commander in chief; that Congress has no ability to pass legislation governing the interrogations of enemy combatants; and that federal laws prohibiting assault and other crimes did not apply to military interrogators who questioned al-Qaeda captives.
One section discussed to what extent the president might be allowed to legally maim a prisoner, such as through the use of a "scalding, corrosive, or caustic substance." A footnote argued that Fifth Amendment guarantees of due-process rights "do not address actions the Executive takes in conducting a military campaign against the Nation's enemies."
These bold assertions surprised many experts, including career officials and Bush appointees at the Justice and Defense departments, who said the previously secret opinions are overly broad and improperly granted vast powers to the president without adequate internal debate or judicial oversight.
No court has ever ruled that the Fourth Amendment does not apply to the military, said Jameel Jaffer, national security director at the American Civil Liberties Union. "In general, the government can't send an FBI agent to search your home or listen to your phone calls without a warrant, and it can't send a soldier to do it, either," Jaffer said. "The applicability of the Fourth Amendment doesn't turn on what kind of uniform the government agent is wearing."
The memo was made public Tuesday in response to an ACLU lawsuit and requests from Congress; the Fourth Amendment issue was first noted by the Associated Press.
Attorneys for soldiers charged with abuse at Iraq's Abu Ghraib prison said they should have received copies of the memo as part of the legal-discovery process, and argued that it shows that the highest levels of government condoned activities that were later practiced in U.S. detention facilities abroad.
Retired Air Force Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff when the memo was written, said that he never saw the document authorizing harsh military interrogations and that its narrow definition of torture is "absolutely ludicrous."
"I frankly don't know anyone in the military who bought into that as a good definition of when you cross the line," Myers said this week. "In the end, you want to do the right thing. I worry most about reciprocity, how other countries will treat us."
Neither the attorney general at the time, John D. Ashcroft, nor his deputy, Larry D. Thompson, were aware of the 81-page memo when it was written and sent to the Pentagon in March 2003, according to several former senior department officials. The Pentagon was told in December 2003 to disregard the legal advice in the memo after Justice Department lawyers raised objections.
The memo was written by John C. Yoo, then a deputy in the Justice Department's Office of Legal Counsel, who also wrote or co-wrote many of the key legal opinions that asserted an expansive view of presidential power in the Bush administration's early years. Now a California law professor, Yoo has defended his work as a "near boilerplate" defense of presidential prerogatives and said subsequent criticism has been motivated by politics.
Two memos written or drafted by Yoo, including the 2003 memo released this week, have been formally withdrawn by the Justice Department. However, the October 2001 memo arguing for unregulated military searches on U.S. soil has not been formally withdrawn and remains a secret but unclassified document, according to Justice Department spokesman Brian Roehrkasse.
Roehrkasse declined to say whether the document has been formally modified in any way, and refused to comment further because the memo is the subject of ongoing litigation seeking its public release.
Roehrkasse and other officials said the 2001 memo is not related to the administration's controversial warrantless surveillance program, which allowed a military organization -- the National Security Agency -- to monitor communications between the United States and overseas without warrants.
Justice Department officials also declined to explain a reference in Yoo's 2003 memo that said the Criminal Division "concurs in our conclusion" that federal criminal laws do not apply to the military during wartime. The division was led at the time by Michael Chertoff, now head of the Department of Homeland Security.
The Justice Department has dropped 22 out of 24 cases of alleged detainee abuse by civilian employees and contractors referred by the CIA and the Defense Department. A U.S. official said the Yoo memo's legal arguments that interrogators are exempt from such criminal liability could have been part of the reason why those cases were dropped.
"Could it conceivably have played a role in deciding whether to prosecute or not? Certainly, in theory," said a law enforcement official involved in the deliberations, who spoke on the condition of anonymity. "If there was a memo blessing behavior at a certain point in time, and someone relied on legal guidance, could they have formed the necessary intent" to break the law?
Charles Gittins, a lawyer representing Army Pvt. Charles A. Graner Jr. in his appeal of his abuse convictions tied to Abu Ghraib, said Yoo's memo appears to show that President Bush suspended maltreatment laws for the military during a time of war. He said he plans to submit the document to Graner's parole board when it meets in a few weeks.
Staff writers Carrie Johnson and Jerry Markon and staff researcher Julie Tate contributed to this report.