Wiretaps Program Originated From DOJ

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Warrentless Wiretaps Program Originated From DOJ Legal Memos
by Jason Leopold   
The idea for the National Security Agency’s warrantless domestic surveillance program appears to have originated out of two different legal memorandums drafted by John Yoo, a former deputy assistant attorney general at the Department of Justice’s Office of Legal Counsel, and Special Counsel Robert Delahunty, according to a congressional report released Tuesday on the “imperial Presidency” of George W. Bush

The report was prepared by John Conyers, the chairman of the House Judiciary Committee. The Michigan Democrat seized upon Yoo and Delahunty’s Oct. 23, 2001, legal memo to demonstrate how President George W. Bush had implemented policy directives immediately after 9/11 that may have been unlawful.

Conyers said that although the 37-page Oct. 23, 2001 memo is unclassified, the DOJ has refused to turn it over to his committee or release it publicly. He said that his staff had been given “limited access” to the document and could only review it at the DOJ with “no ability to make copies or to take detailed notes.” He has been trying to access a copy of the memorandum for more than a year.

Still, “from that limited review, it is clear that this is a very troubling memorandum which should immediately be released,” Conyers said in his 487-page report released Tuesday.

The memo was titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States” and it was sent to then-White House Counsel Alberto Gonzales and Pentagon General Counsel William Haynes.

The memo said President Bush, as commander-in-chief of the armed forces, had the authority, under Article II of the Constitution and the Sept. 23, 2001, use of force resolution passed by Congress, to implement extraordinary domestic military measures such as “using military-level eavesdropping and surveillance technology on domestic targets” without having to show probable cause or first obtaining warrants from a secret court designed to approve such measures.

Though the memo is still secret, some of Yoo’s thinking on warrantless domestic surveillance activities was actually revealed in an even earlier memo, written 10 days after the 9/11 attacks, on Sept. 21, 2001.

In that memo, Yoo cited hypothetical cases in which U.S. military action against suspected terrorists on U.S. territory – such as a raid against a hideout or use of military checkpoints – might endanger Americans or intrude on their constitutional rights.

Yoo, now a law professor at the University of California at Berkeley, argued that President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties. … We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection."

The Fourth Amendment to the U.S. Constitution states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”

But Yoo’s Sept. 21, 2001, memo argued that the “war on terror” could justify domestic surveillance activities, such as monitoring telephone calls without a court warrant, that otherwise might violate the Fourth Amendment.

Both memos suggest that the Bush administration used the legal guidance, however murky from a legal standpoint, to immediately implement warrantless domestic surveillance policies immediately after 9/11.

Indeed, In December 2005, The New York Times broke the story about the Bush administration’s warrantless surveillance program, reported “months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.”

According to Conyers, Yoo and Delahunty advised the president that Fourth Amendment protections against unreasonable search and seizure had no application to domestic military operations.

“This unclassified memorandum suggests broad power of the president as Commander in Chief to use military force inside the United States, contemplating even seizure and detention of United States citizens (or lawfully admitted aliens) in some circumstances,” according to Conyers’ description of the memo.

It appears that Yoo based his Oct. 23, 2001, legal memorandum on the 1990 drug case US v. Verdugo-Urquide, in which the Supreme Court refused to hear a lawsuit brought against the United States by a Mexican citizen whose home was searched by federal agents without a search warrant.

In rejecting the Fourth Amendment claim, the Supreme Court said aliens could not claim the benefit of the Constitution for conduct outside the United States—such aliens were not part of the “we the people” who benefited from the Fourth Amendment. Further, the Court found that allowing such claims would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries, not just in drug cases...but in the use of armed forces abroad “for the protection of American citizens or national security.”

Yoo refers to the case in his 2006 book, War by Other Means: An Insider's Account of the War on Terror, where he argues in more than 23 pages about the various legal reasons local and federal law enforcement agencies, as well as a sitting U.S. president, could ignore the Fourth Amendment. Yoo’s legal theories revolve primarily around domestic surveillance activities.

In the book, Yoo cites various arguments for local and federal law enforcement agencies, as well as a sitting U.S. President, to ignore the Fourth Amendment, especially regarding domestic surveillance.

“If al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement,” Yoo wrote. “The Fourth Amendment’s warrant requirement should not apply, because it is concerned with regulating searches, not with military attacks.”

According to Conyers’ report, “the [Oct. 23, 2001] memorandum... addresses whether the president has constitutional or statutory authority to use military force inside the United States in terrorism-related situations and, if so, whether such domestic military operations would be barred by either the Fourth Amendment or the federal Posse Comitatus statute.

“Examples of the type of force considered for purposes of the analysis include, but are not limited to: (1) destroying civilian aircraft that are believed to have been hijacked; (2) deploying troops to control traffic in and out of a major American city; (3) seizing or attacking civilian property, such as apartment buildings, office complexes, or ships, believed to contain terrorism suspects; and, (4) using military-level eavesdropping and surveillance technology on domestic targets.”

But Conyers said several of the hypothetical examples dealing with domestic military operations were proposed to Congress by the White House immediately after 9/11 when the administration sought congressional approval to use military force in Afghanistan and terrorist cells in general. Conyers said in his report that Congress outright rejected granting Bush such sweeping powers.  

“The memorandum also contains extended discussion of a hypothetical example which posits that a domestic military commander has received information, not rising to the level of probable cause, suggesting that a terrorist has hidden inside an apartment building and may possess weapons of mass destruction,” Conyers’ report said.

“According to the memorandum, not only does the Constitution permit the commander to seize the building, detain everyone found inside, and then interrogate them – all without obtaining any sort of warrant – but information gathered by military commanders in this way could used for criminal prosecution purposes as long as the primary reason for the seizure was the military fight against terrorism and not law enforcement. This memorandum was referenced in a subsequent OLC memorandum for the legal conclusion “that the Fourth Amendment had no application to domestic military operations.”

The OLC memo Conyers referred to was another opinion authored by Yoo. It was dated March 14, 2003, and cited the principle of national “self-defense” in combating terrorism as grounds for justifying harsh treatment of detainees up to and including death.

Details about the March 14, 2003, memo have been previously reported. That memo was declassified by the Pentagon last year as part of the American Civil Liberties Union’s Freedom of Information Act lawsuit against the government. In that memo, Yoo footnoted the Oct. 23, 2001, legal opinion, which “concluded that the Fourth Amendment had no application to domestic military operations.”

But Conyers’ report is the first known instance in which the Oct. 23, 2001, memo includes a reference warrantless eavesdropping activities to combat terrorism.

Conyers has called for an independent criminal probe and the creation of a blue-ribbon panel to investigate Bush’s broad claims of executive powers.  

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