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?
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