Thursday, April 3, 2008

No Fourth Amendment for You

In an October 2001 memo, the Department of Justice put forward the argument that the Fourth Amendment’s protection against unwarranted searches did not apply in counter-terrorism investigations in the United States.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

“Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.”

Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency’s Terrorist Surveillance Program, or TSP.

That program intercepted phone calls and e-mails on U.S. soil, bypassing the normal legal requirement that such eavesdropping be authorized by a secret federal court. The program began after the Sept. 11 terrorist attacks and continued until Jan. 17, 2007, when the White House resumed seeking surveillance warrants from the Foreign Intelligence Surveillance Court.

Count on some right-wing Bush blatherer to shrug and say that it was done in the name of fighting terrorism, and sometimes you have to bend the rules to keep us safe. Okay, so let’s see what they would say if the Department of Justice decided that in the name of fighting terrorism, they decided that the Second Amendment had no application to domestic military operations. Perhaps they’d say nothing, since the perhaps the DOJ also decided that the First Amendment didn’t apply, either.

HT to TPM.