Whither the 4th Amendment?

A great deal was written this past week about the latest torture memo to surface. I don't think this memo adds much to the continuing debate over detention and interrogation policy. We already knew, from previously released memoranda, that Justice Department arguments lay the groundwork for coercive interrogation practices at Guantanamo Bay -- practices that, according to multiple sources, eventually migrated to Iraq and Afghanistan with disastrous effect.

Buried within the memo, however, is an extremely interesting and potentially important footnote alluding to far-reaching uses of executive power within the United States. On page 8, footnote 10 reads:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001). [italics in original]

What exactly does this mean?

It could refer to the National Security Agency's now-well-publicized surveillance program -- a program grounded in many of the same constitutional theories of presidential power that underlie the torture memoranda. It could also refer to deployment of federal military forces within the United States and action they could take against U.S. citizens, such as hypothetically searching someone's bag for suspected explosives at an airport. (It should be noted that most soldiers deployed for homeland security are state National Guard soldiers, who for complex reasons are subject to different legal rules than federal soldiers.) Or the footnote could refer to clandestine domestic military operations conducted by the Defense Department and its intelligence components -- things we can only guess at.

The footnote generates all these questions and more. I imagine the House and Senate judiciary committees would be quite interested to learn the answers. So would I. What do you think the memo is alluding to?

By Phillip Carter |  April 6, 2008; 11:48 AM ET  | Category:  Domestic Military Operations
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"What do you think the memo is alluding to?"

a) The "Ticking Bomb" scenario? Then ," Al Qaeda Operatives/Sleeper Cells are inside of the US." (whether that's the case or not.) So...... the "Ticking Bomb" scenario is all the time , so the 4th Amendment can be disregarded, at any time, by use of active-duty personnel. How to justify their use? -More contortions . MPs? Or
b) NSA wiretapping = a military operation.

c) ???? Whatever led Ashcroft,Mueller, and Comey to threaten to resign.

I hope it was only hypothetical, but given this regime, probably not.

Posted by: mikeinportc | April 7, 2008 1:59 PM

I think it "alludes" use of military forces againt U.S citizens who may be prosecuted under the "homegrown Terrorism and Radicalization Bill. This bill has already been passed by the House (H.R. 1955) and currently is in the Senate (S. 1959) for passage. The bill, with it's ambiguous and vague wording, could potentially be used to label citizens who speak out against the government as "terrorists. It has been referred to as the "Thought Police Bill" and is itself terrifying to contemplate. Why it has not been given more press is another question to which I'd like to know the answer.

Posted by: esperanza369 | April 7, 2008 3:12 PM

so coercive interrogation is now torture.
we are our own worst enemy!
Thank God we knew what had to be done during WWII,but it looks like socialist fascism is winning again.

Posted by: Greg | April 7, 2008 5:25 PM

I think it alludes to the use of "terrorist activities" as a justification for suspending the Constitution and the eventual installation of a Protectorate to protect Americans from the "Terrorist Threat". Of course, the definition of the "Terrorist Threat" would criminalize the making of utterances that could be deemed critical of those responsible for governing / enforcing the edicts of the Protectorate. Ever hear of Coercive Acts?

Posted by: Stephen Johnson | April 7, 2008 5:40 PM

Who knows what they mean? I think it's a shotgun approach - let's have the military or NSA do some dirty work because we can't undo the 4th amendment so easily for Justice or Treasury employees.

Lord knows the rest of the memo eviscerates other inconvenient strictures of the Bill of Rights - the right to legal representation and not to incriminate oneself.

I certainly hope that Congress investigates all of this - they're going to be too busy campaigning to do it this year though, hope some workhorses get elected in November on a platform of reigning the executive back in.

Thanks for the entry on this, it sort of slipped through in the hubbub about torture, which has better picture potential for TV.

Posted by: Utec | April 7, 2008 8:11 PM

I believe the footnote is at first an to expand as far as possible the President's authority as CinC. The President is CinC of federal military forces. If it is etermined that the Fourth Amendment does not apply to Federal military forces, then the President can direct military resources to conduct operations such as warrentless surveillancesuch as snooping all Internet traffic (Total Awareness, which seems to still be alive in one form or another), telephony, and physical searches, etc

Posted by: jim hillhouse | April 8, 2008 12:37 AM

I'm guessing it refers to unreasonable search and seizure performed without a warrant on Americans.

As audacious as it is unconstitutional.

Posted by: Bullsmith | April 8, 2008 2:58 PM

I have a good friend who was an officer in military intel during WWII. He never saw a captured POW physically abused in the way that became so common under the Bush admin. He told me that determining which POW would be the most likely to open up was easy.

My uncle helped transport Japanese POWs from China back to US control in Japan. The captives were stunned by the kindness shown to them by the American military.I have read about German POW's who after being returned home after years in US camps, immigrated to the US because of the generous character of the American people.

Those stories made me so proud of my country. Bush's "toughness" is born of weakness, fear, and a desire for unchecked political power. THAT is fascism.

Posted by: orientyourself | April 9, 2008 12:12 AM

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