In a secret 23 October 2001 37-page memo (.pdf; 11.9Mb) to then-White House counsel Alberto Gonzales, John Yoo—then a deputy assistant attorney general in the Office of Legal Counsel—and Robert Delahunty—a special counsel in the office—authorized the US military to operate domestically. President Bush had asked Yoo and Delahunty if he could use the military against terrorist activities inside US borders. Bush got the answer he wanted; the Yoo-Delahunty memo authorized raids on terrorist cells domestically and also authorized property seizures. Yoo and Delahunty rationalized the position by writing that deadly force is a legitimate self-defense. As such, it would override any Fourth Amendment privacy breaches, or pretty much anything else.
Yoo and Delahunty took the position that the Posse Comitatus Act—which specifically bars domestic military law enforcement operations—wouldn’t apply because the military would be performing a national security function, not law enforcement.
Neil Lewis, writing for the New York Times, reports that the memo also stated that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully” and that “the current campaign against terrorism may require even broader exercises of federal power domestically.”
Nine such previously-secret legal opinions were publicly disclosed by the Justice Department on Monday. According to the Washington Post‘s R. Jeffrey Smith and Dan Eggen, the Bush administration had maintained that the memos must be kept secret as recently as November.
Additional secret memos asserted that the federal government could legally conduct raids without search warrants, unilaterally repeal foreign treaties, ignore Congress with regard to treatment and rendition of suspected terrorist detainees, and conduct the infamous warrantless wiretapping program.
Office of Legal Counsel head Steven Bradbury wrote a memo on 15 January 2009—five days before Bush left office—repudiating the secret legal opinions issued by Yoo and Delahunty. As Smith and Eggen point out in their Washington Post article, “The new batch of opinions does not include any repudiated for the first time by the Obama administration or reflect a government shift on the underlying legal issues since Bush’s departure.”
Smith and Eggen report that on 6 October 2008, Bradbury declared that Yoo’s 23 October 2001 memo “contained several ‘propositions that are either incorrect or highly questionable.’ He said that in fact, the Fourth Amendment prohibition against warrantless search and seizure was ‘fully applicable to domestic military operations’ and called the claims about ignoring free speech and press rights ‘overbroad’ and ‘not sufficiently grounded.’”
The question one has to ask is why John Yoo—widely known as the author of a 2002 legal opinion memo authorizing torture—remains on the payroll of the University of California, Berkeley as a law professor.
Smith and Eggen quote Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, as saying the previously-secret documents “read like a how-to document on how to evade the rule of law.”
In another revelation Monday, federal prosecutors disclosed the Central Intelligence Agency (CIA) November 2005 destruction of 92 videotapes documenting the probable torture of two terrorism suspects in Thailand. The disclosure came as a result of an American Civil Liberties Union Freedom of Information Act lawsuit. The videotapes were destroyed just as the judicial and legislative branches of the US government were ratcheting up their interest in the CIA’s detention and interrogation programs.
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