Tuesday, March 3, 2009

Terrorism: A Crime or an Act of War?

Memos Reveal Scope of Power Bush Sought:

WASHINGTON — The secret legal opinions issued by Bush administration lawyers after the Sept. 11 attacks included assertions that the president could use the nation’s military within the United States to combat terrorism suspects and to conduct raids without obtaining search warrants.

The opinion authorizing the military to operate domestically was dated Oct. 23, 2001, and written by John C. Yoo, at the time a deputy assistant attorney general in the Office of Legal Counsel, and Robert J. Delahunty, a special counsel in the office. It was directed to Alberto R. Gonzales, then the White House counsel, who had asked whether Mr. Bush could use the military to combat terrorist activities inside the United States.

The use of the military envisioned in the Yoo-Delahunty reply appears to transcend by far the stationing of troops to keep watch at streets and airports, a familiar sight in the wake of the Sept. 11 attacks. The memorandum discussed the use of military forces to carry out “raids on terrorist cells” and even seize property.

“The law has recognized that force (including deadly force) may be legitimately used in self-defense,” Mr. Yoo and Mr. Delahunty wrote to Mr. Gonzales. Therefore any objections based on the Fourth Amendment’s ban on unreasonable searches are swept away, they said, since any possible privacy offense resulting from such a search is a lesser matter than any injury from deadly force.
The latter point may be one of the funniest and convoluted lines of "reasoning" I've ever seen. Governmental self-defense supplants the individual's 4th amendment rights? And deadly force (which is permissible in self-defense) could be used against American citizens, and justified by the government in the name of self-defense? So the government was no longer the people? But wait, it gets better.

The Oct. 23 memorandum also said that “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” It added that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

Mr. Yoo and Mr. Delahunty said that in addition, the Posse Comitatus Act, which generally bars the military from domestic law enforcement operations, would pose no obstacle to the use of troops in a domestic fight against terrorism suspects. They reasoned that the troops would be acting in a national security function, not as law enforcers.

In another of the opinions, Mr. Yoo argued in a memorandum dated Sept. 25, 2001, that judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants.

Still another memo, issued in March 2002, suggested that Congress lacked any power to limit a president’s authority to transfer detainees to other countries, a practice known as rendition that was widely used by Mr. Bush.
Widely used and yet which evidence the CIA destroyed, nearly 100 interrogation videotapes of with these "high value detainees," and the extraordinary renditions engaged in.

As we've discussed in 3150 for the past five years or so, the scope and breadth of the power seized by the government in the months following 9/11 was astonishing. And that was based on what little legal memoranda had been released during the War on Terror itself.

Like a jigsaw puzzle, each new piece released continues to fill out the puzzle (1st and 4th amendments irrelevant; Posse Comitatus expendable), and the picture emerging is truly breathtaking.

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