Weeks after the September 11 attacks, President George W. Bush’s Justice Department issued a sweeping legal opinion declaring that American military forces operating on U.S. soil did not have to obey the Constitution’s limits on search and seizure of individuals and their property, documents released Monday show.Remember this when you think about the last 8 years. You actually didn't have a right to freedom of speech. You didn't even have protection from illegal search and seizure.
In addition, Bush’s top lawyers argued that First Amendment rights “may also be subordinated to the overriding need to wage war successfully,” said the October 2001 memo drafted by two former attorneys in the Office of Legal Counsel, John Yoo and Robert Delahunty.
The memo’s conclusions remained the official but unannounced policy of the U.S. government for nearly seven years – until October 2008, when a new head of the Office of Legal Counsel, Steven Bradbury, renounced much of the 2001 opinion, again without notice to the public.
The memo and others surfaced as President Barack Obama’s administration demonstrated his stated commitment to transparency by revealing some of the most closely guarded legal secrets of his predecessor. The documents – long sought by critics of Bush’s expansive view of executive power – show that some of those legal claims proved to be too edgy even for the Bush administration, at least by the time it prepared to leave office.
In 2001, Yoo and Delahunty argued that the Fourth Amendment protections against search-and-seizure didn’t apply to domestic military operations, as long as they were designed to deter and prevent further terrorist attacks.
“We believe that the Constitution, properly interpreted, allows the President as Commander in Chief, and the forces under his control, to use military force against foreign enemies who operate on American soil, free from the constraints of the Fourth Amendment,” the pair wrote.
Seven years later, another lawyer, Bradbury, rejected that out of hand.
The 2001 opinion “states several propositions that are either incorrect or highly questionable,” Bradbury wrote in another newly-released memo. He labeled as “erroneous” Yoo’s conclusion that the Fourth Amendment does not apply to domestic military activity. He called the opinion’s assertions about war and the First Amendment “overbroad and general” and “not authoritative.”
The American Civil Liberties Union, which filed a lawsuit to seek release of some of the opinions, said the claims about the authority of the armed forces were particularly disturbing.
“That memo takes the position essentially that the Constitution doesn’t constrain the military inside the U.S. It’s a memo that sees war as a blank check for the president,” an ACLU lawyer, Jameel Jaffer, said. “That memo provides a great argument for the transparency we’d been calling for because I don’t think if that memo had been released when it was written it could have survived public scrutiny but the result of it not being released was that the Bush administration was able to build an entire national security strategy on top of it.”
The Constitution is, apparently, no match for a conservative with pet lawyers and a war to fight.