Bye Bye Fourth Amendment

This is an article that appeared in yesterday's EFF website:

April 2nd, 2008
Administration Asserts No Fourth Amendment for Domestic Military Operations
Posted by Kurt Opsahl

What Could It Mean for Warrantless Domestic Surveillance?



Today's Washington Post reports on a newly released memo, "Memorandum for William J. Haynes II, General Counsel of the Department of Defense Re: Military Interrogation of Alien Unlawful Combatants Held Outside the United States" (March 14, 2003) , which which was declassified and released publicly yesterday. Balkinization has commentary on the very troubling opinion.

While the newly released memo focuses on "asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators," it contains a footnote referencing another Administration memo that caught our eye:

... 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). (emphasis added)

This earlier memo has not been publicly released, though Senator Leahy and Rep. Conyers have asked to see it.

Does this mean that the Administration's lawyers believed that it could spy on Americans with impunity and face no Fourth Amendment claim? It may, and based on the thinnest of legal claims -- that Congress unintentionally allowed mass surveillance of Americans when it passed the Authorization of Use of Military Force in October 2001.

In their arguments on the warrantless surveillance program, they try to portray them as "military" in nature, even though they occurred in the United States, far from the military theater.

In 2006, the Department of Justice has asserted that "that warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF." The DOJ also asserted that "the NSA activities fit squarely within the sweeping terms of the AUMF. The use of signals intelligence to identify and pinpoint the enemy is a traditional component of wartime military operations." As the DOJ sees it, "In the present conflict, unlike in the Korean War, the battlefield was brought to the United States ..." The NSA is part of the Department of Defense.

In short, it appears that the Administration may view NSA domestic surveillance, including the surveillance of millions of ordinary Americans detailed in EFF's Hepting case, as a "domestic military operation." If so, this Yoo memo would blow a loophole in the Fourth Amendment big enough to fit all of our everyday telephone calls, web searches, instant messages and emails through.

Of course, the DOJ's public defense of the NSA program also asserted that warrantless surveillance did not violate the Fourth Amendment. (EFF and numerous scholars disagree). But the memo referenced above raises serious questions. The public deserves to know whether the 2001 Yoo memo on domestic military operations -- issued the same month that the NSA program began -- asserted that the Fourth Amendment did not apply to domestic surveillance operations conducted by the NSA.

And of course it reinforces why granting immunity aimed at keeping the courts from ruling on the Administration's flimsy legal arguments is wrongheaded and dangerous.