Administration Asserted a Terror Exception on Search and Seizure.
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.
I can’t repeat what I said upon reading this, and in fact don’t remember the exact words I shouted, because my head felt so hot and my vision was swimming.
You know that I don’t generally blog about politics. But I do sometimes blog about people trying to mess with the U.S. Constitution. And this Justice Department memo was a nasty attempt to mess with the Bill of Rights. As the Post notes:
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.”
No kidding. Here’s the text of the Fourth Amendment.
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.
Listen. The courts have long interpreted the Fourth Amendment to allow warrantless arrests and searches in emergencies or dire circumstances. What circumstances? When the cops witness somebody committing a crime. When they’re in hot pursuit. When there’s an imminent risk of evidence being destroyed. When contraband is in plain sight — say, in a car.
So when the Justice Department says the military isn’t bound by the Fourth Amendment when operating in the United States (and think long and hard about that), it’s not because the cops and the army are handcuffed by legal technicalities that force them go to court for a warrant before they can stop a suicide bomber. If a guy’s about to self-detonate, the authorities already have the power to stop him. The Justice Department memo asserts something very different: that if the Commander in Chief calls something an anti-terror operation, or declares that we’re in “a time of war,” then guys in army camo can break down your door, tear up your house, and arrest you, your family and your dog — without any legal checks on their behavior. It’s saying: law? What law?
Al Qaeda can’t destroy the United States. This smug, slimy misinterpretation of constitutional law can corrode the country from the inside out.
The Fourth Amendment assertion was disclosed via 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.”
John Yoo, who wrote the memo, “has defended his work as a ‘near boilerplate’ defense of presidential prerogatives and said subsequent criticism has been motivated by politics.”
No. This is beyond politics. It doesn’t matter whether the president is a Republican, a Democrat, or a living saint. He could be Mahatma Gandhi and we should object to this. “Unlimited presidential power” has a synonym. It’s tyranny.
Surrey Life magazine puts me on the back page as part of its monthly “My Surrey Weekend” feature. If you’re dying to find out my dog’s name and what kind of concerts I go to, you can grab a copy of the magazine at the supermarket.
