Memo On Illegal Searches Comes To Light

Disavowed Justice Dept. Memo Justified Warrantless Domestic Surveillance Long After 9/11

(CBS/AP)  For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil did not apply to its efforts to protect against terrorism.

That view was expressed in a Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency's Terrorist Surveillance Program, or TSP.

That program intercepted phone calls and e-mails on U.S. soil, bypassing the normal legal requirement that such eavesdropping be authorized by a secret federal court. The program began after the Sept. 11 terrorist attacks and continued until Jan. 17, 2007, when the White House resumed seeking surveillance warrants from the Foreign Intelligence Surveillance Court.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.

"TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU's request for records from the program. It refused to hand them over.

Late Wednesday, Justice Department spokesman Brian Roehrkasse said the October 2001 memo was not about the eavesdropping program but he did not explain why it was included on requests for documents linked to the TSP.

He said the memo "simply addressed generally the legal rules that would apply to the possible use of the military, if that had become necessary, to combat al Qaeda in the United States in the event of further large-scale terrorist activities as a follow-on to 9/11."

Earlier, Roehrkasse said the statement in the footnote does not reflect the current view of the department's Office of Legal Counsel.

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

Roehrkasse would not say exactly when that legal opinion was overturned internally. But he pointed to the January 2006 white paper.

"The white paper does not suggest in any way that the Fourth Amendment does not apply to domestic military activities, and that is not the position of the Office of Legal Counsel," he said.

Suzanne Spaulding, a national security law expert and former assistant general counsel at the CIA, said she found the Fourth Amendment reference in the footnote troubling, but added: "To know (the Justice Department) no longer thinks this is a legitimate statement is reassuring."

"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."

"Each time one of these memos comes out you have to come up with a more extreme way to characterize it," Jaffer said.

The ACLU is challenging in court the government's withholding of the October 2001 memo. CBS News Justice Department producer Stephanie Lambidakis reported the department had repeatedly rebuffed demands for the release of the memo that approved the use of harsh interrogation techniques against terror suspects. However, the ACLU prevailed in its FOIA litigation in getting the memo.

[randynason]

Is this good ammunition for proceeding with impeachment, Congress? Isn''t it about time we tried this criminal for the many crimes he has committed?

[alphaa10-2009]

CBS reports, "The October memo was written just days before Bush administration officials, including Vice President *** Cheney, briefed four House and Senate leaders on the NSA''s secret wiretapping program for the first time..."
---
Then-Deputy Assistant AG John Yoo wrote the memo for Gonzales, probably to justify the on-going practice of violating the Fourth Amendment on the pretext of "fighting terrorism".

What is most interesting is the violations had continued ad hoc, all the while Yoo scrambled to find a justification. Perhaps he sensed a law-breaking POTUS might alarm certain members of congress.

To make such seat-of-the-pants decisions is characteristic of an appalling hubris and comparable ignorance. The practice of "do it-- then apologize" has characterized the Bush term since he entered office.

The only thing remotely close for sheer ignorance of the law is the statement of Alexander Haig, after hearing news Reagan had been shot. Haig-- clearly unconcerned about something called the Presidential Succession law, announced to a roomful of press people, "I''m in charge here."

[trishab4]

"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."

"Each time one of these memos comes out you have to come up with a more extreme way to characterize it," Jaffer said.

-GOPers will pretend this is written in the Bi-bull to violate the law and the privacy of people. God said that.

[gkc99]

""Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."


And isn''t it a curious coincidence how the Darth Bushit regime has recently been beating the drums about supposed "homegrown terrorism", that will doubtless soon be expanded to cover all dissent, all counterculture activity. So the US military will in essence be declaring war on the US citizenry at the behest of the US Fascist Party.

Welcome to 1984, only 25 years later than predicted.

[gkc99]

F*CK YOO!!!

I urge all UC alums to withhold contributions from the University as long as this monster is on the faculty of UC Berkeley Law School.

His position goes beyond advocacy to being a point man for a military junta in the US.

[cyberus-2009]

----
Welcome to 1984, only 25 years later than predicted.

Posted by gkc99
----
IMO 1984 was a warning .. which some people took note of .. however 1984 is now history, and we all know what happens when one fails to learn from history.

[brianbwb-2009]

"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, ..."

"The white paper does not suggest in any way that the Fourth Amendment does not apply to domestic military activities, and that is not the position of the Office of Legal Counsel," he said."

Is being able to read not a prerequisite for the job?

[rudy654-2009]

John Yoo needs to move to communist China or North Korea. He will be more at home in either place.

[shamrocker6]

"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."

For the government to bypass the ''Warrant upon probable cause'' and just entitle itself to barge in and secretly spy on the citizens IS in violation of the 4th Amendment. We have due process for a reason... abuse of our rights will not be tolerated!

[feelfree1]

Let''s see....facilitating torture......illegally spying on Americans without a warrant...that''s a real crack team we have in our "Justice" Department, eh?

I hope that the rope manufacturers are anticipating a spike in demand.

[sistatee-2009]

Does anybody think the government gives a rat''s -ss what''s in the Constitution?

[skyk-2009]

What concerns me is that SOME, admittedly just a few, want to elect a man who sat by as a leader in the GOP Senate and Okayed all these people who helped trash our Constitution. It only makes you wonder how much Mr. McCain believes in that saccred Document. A man can do a lot of damage with a little fear, this we now know.

[samael2014]

The outrage and denegration of our Constitution has and always will be for the remainder of our attenuated history, not what this piece of ammoral sociopathic *** in the White House has done to our country, its constitution and its people, but what Congress refused to do about it. There is no political choice about impeachment, and success is not a consideration. This is about due process and a mandate to Congress, a promise to the American people by a Congress more than 220 years ago, that our Constitution and democracy would not be betrayed under any circumstances by the executive branch, that Congress is REQUIRED TO ACT, and can proceed to do so with nothing more than a simple majority. Due process and democracy NEVER weigh the success of the outcome. NEVER you god-*** betrayers of the American people and over two centuries of trust in democry.

History will record that you DID NOTHING, when you had EVERY OBLIGATION to attempt to IMPEACH. Bush is the DISEASE that tested our democracy, and it FAILED miserably by the CHOICE of our elected Congress.

If Nancy Pelosi had even the slightest respect for our Constitution, Americans or democracy, she would have resigned a long time ago. But she clearly does not and her personal agenda, like George Bush''s, is apparently something that the American people unwittingly gave them through the electoral process. Apparently the Constitution that proceeded them both was meaningless paper.

[mcvet]

With only months left for this sorry excuse for a President I need some answers from those who would replace him. I know Obama has said he would not do things like this, he would follow the law and the Constitution. I have NOT heard McCain say anything about it one way or the other, IF he actually knows it was going on. I''m begining to think this poor fool McCain is stuck thinking about the "good old days" and hasn''t a clue about what is going on in the here and now. Sieg Heil Bush

[singingrick]

This is just one of many laws the Bu$hies have broken.

[samrensho]

So what''s new? they still don''t believe any laws apply to them. God is on GW''s side and that''s enough.

[navyretired2]

"And isn''''t it a curious coincidence how the Darth Bushit regime has recently been beating the drums about supposed "homegrown terrorism", that will doubtless soon be expanded to cover all dissent, all counterculture activity. So the US military will in essence be declaring war on the US citizenry at the behest of the US Fascist Party.

Welcome to 1984, only 25 years later than predicted. -- gkc99"

I can almost roll with ya on this one, but this has been foretold on this board since Sept 2001, and it hasn''t happened.

[navyretired2]

"This is just one of many laws the Bu$hies have broken.

Posted by singingrick at 08:49 AM : Apr 03, 2008"

EVERY administration breaks several laws...this one''s just worse at hiding it.

[parrot123-2009]

Where did all the loyal Dumbya Repugs go ? I haven''t seen anything yet from Mudrose, Infidel, perp2, Mike, James or even Singer Rick .... What''s going on ???

[walt1944-2009]

The Great Emperor Bush II is highly upset that the Pentagon is "leaking" secret documents indicating that the Great Emperor Bush and VP Darth Vader Cheney are guilty of crimes against humanity!

First came the leaking of the memo yesterday stating that the Great Emperor Bush II authorized the use of torture against suspected "terrrrrrrrorists" while he publicly, repeatedly denied the US(SA) was torturing anybody.

Now comes another leaked memo stating that the Great Emperor pooped on the Constitution authorizing unlawful searches and seizures within the US(SA).

Both memos expressly state that because the Great Emperor IS the Great Emperor, he IS, therefore above both domestic and international law and answerable to absolutely NO ONE!

The Nazis in Germany in the 1930''s and early 1940''s felt that way too. Look what happened to them and the countries they occupied!!!

No matter who says what, GEORGE ORWELL WAS RIGHT ON!!!!!

SIG HEIL, BUSH!!!!
sig heil, (more of the same) McCain????

[hotpaulie]

King George has been pissing on the Constitution since 9/11. This is just the tip of the iceberg pertaining to secret documents that are coming forth highlighting the lawlessness of this administration.

[hotpaulie]

I don''t think King George is going to stick around very long after his "presidency" is over. Paraguay''s tourism outlook for 2009 is looking good.

[notblue]

obvioously this program didn''t go far enough as floydzepp, feelfree, j-whitman and the rest of the terrorist propaghandists were never arrested.

[cfin5]

After 9/11, which Clinton could have spared us had this issue been important to him, there were things that just had to be done "Lincoln Style". After things have been proven to cool off, relight onto the Constitution. After all, our Founding Fathers meant it to be for us citizens, not aliens. When aliens threaten what we have to do with, I say give them double according to the rules they play by. It''s the only thing they will understand......But nation building, that''s gone too far over the line,.....even the Presidents campaign promise line.

[smiley676]

FloydZepp
Constitutional rights can be suspended during times of war in order to protect the nation as a whole. As long as those rights are returned once the danger has passed.

Although, every liberal today believes that in 2001 he/she was against the war and didn''t want rights taken away, if you actually look at the facts from 2001, you''ll see that the liberals were pushing to remove people''s rights and over 80% of Americans were in favor of the war.

[lochlan-2009]

"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."

And every American just sat and watched as the most corrupt administration since Nixon demolished their country and freedoms, (some on here cheered), at the expense of our treasury ($3,000,000,000,000.00 in trade debt and $1,500,000,000,000.00 in war related spending), thousands of American soldiers lives and limbs, and every asset in Iraq including hundreds of thousands of Iraqi peoples lives.

The largest heist in history at the expense of our country for the organised crime ring called the Bush Regime.

[gorilla400lb]

Lochlan...Your right on the money!!! The Bush Regime is worse than Nixon. This administration will go down in history as the worst ever!!!

[bustardo]

"Memo On Illegal Searches Comes To Light"

This is a misleading title. Who has officially characterized the elements of the memo relating to searches as being illegal? Some CBS editor no doubt.

[papabc]

Yawn...
After 9/11 there must of be a lot of thing going end on how to deal with Islamic terrorist already inside the United States.

This story is not that important.

[papabc]

Lochlan...Your right on the money!!! The Bush Regime is worse than Nixon. This administration will go down in history as the worst ever!!!
-------------------------------------------------
Posted by Gorilla400lb
\\\\\\\/////////////////

So if the Administration did nothing you would have cried the other way. Esp if there had been more attacks. Get real.

[papabc]

Bush Derangement Illness is still with the far left liberals.

There is not cure and they will soon cease to exist in their own poop and sloberings.

[antoniof123]

The neo con party applies monkey logic to every thing they refuse to have a conversation they choose to start an argument and then say Bill Clinton got a BJ.

Neo cons you talk big but we know that your are getting scared because the election is right around the corner.

[sgtrds]

John Yoo is scum. Always has been and always will be.

[sgtrds]

There is not cure and they will soon cease to exist in their own poop and sloberings.

Posted by papabc at 12:32 PM : Apr 03, 2008

Sounds like John McCain every morning before the nurses aides change his diaper and clean him up for the day.

[dennishart4]

Is Bush a criminal? Take the poll. we add it to AP.ORG www.theoandavirus.com

[quetzal0666]

I Really do hope to see Interpol get involved at some point in time,

[liberalme]

So if the Administration did nothing you would have cried the other way. Esp if there had been more attacks. Get real.

Posted by papabc at 12:21 PM :

Sigh----the "Administration" did do nothing--that''s why they sent a "token" of troops to Afganistan (to look good) and the majority of troops to iraq as bait to get the terrorists to go there--no, there were no weapons in Iraq, no there were not terrorist or terrorist training camps, only Bush driven at any cost ( of human life or limb) to get the oil and pipeline.

So in reality, Bush did nothing to protect Americans--he did what he had planned all along--911 was just a "convenient" event for him.