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Constitutional Exception Not Valid, Mukasey Says

Wartime or not, searches must be reasonable, Mukasey testified.
Wartime or not, searches must be reasonable, Mukasey testified. (By Susan Walsh -- Associated Press)

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By Carrie Johnson
Washington Post Staff Writer
Friday, April 11, 2008

Attorney General Michael B. Mukasey told senators yesterday that a 2001 Justice Department memo insisting that Fourth Amendment safeguards against unreasonable searches did not cover military activities within the United States is "not in force."

Under sharp questioning from Sen. Dianne Feinstein (D-Calif.) at an Appropriations Committee hearing, Mukasey said that the "Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime," even though the memo by the department's Office of Legal Counsel had concluded otherwise.

Lawmakers pressed Mukasey to publish the unclassified document after department spokesmen said it was being withheld under a doctrine of attorney-client confidentiality. Members of the House and Senate have also sought other controversial memos issued by the OLC that underpinned the administration's counterterrorism efforts.

While promising the release of documents will be a "priority" this year, Mukasey cautioned members of the Appropriations Committee that other factors are at play.

The Justice Department, he said, needs to consider the interests of other federal agencies and to protect the flow of ideas, so that government lawyers are free to make judgments "without having their thinking then become the subject of congressional hearings simply because they offered an idea."

The House Judiciary Committee has asked John Yoo, a former OLC deputy who wrote many of the counterterrorism memos at issue, to testify at a hearing next month. Yoo, now a law professor at the University of California at Berkeley, has indicated he would prefer not to appear.


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