OLC Restores 4th Amendment after Hounding from Congress

 

In her post on Steven Bradbury’s October 6, 2008 OLC opinion withdrawing the October 23, 2001 OLC memo eviscerating the 4th Amendment, Christy asks some important questions.

In fact, it reads like a thinly veiled, but ever-so-politely worded, call of “bullshit.”

It’s laugh out loud funny.  Or would be if it weren’t for the fact that it took more than 7 years to issue it — during which time the government was still operating under the craptastic legal assumptions, one presumes.

Why was this kept hidden?

I’ve got a pretty good answer why Bradbury’s opinion was kept hidden.

In the exchange between DiFI and Michael Mukasey above–which took place on April 10, 2008–Mukasey equivocated, badly, about whether or not that October 23, 2001 opinion remained in force.

DiFi: Is this memo in force? That the Fourth Amendment does not apply in domestic military.

Mukasey: The principle that the Fourth Amendment does not apply in wartime is not in force.

DiFi: No. The principle that I asked you about? Does it apply to domestic military operations? Is the Fourth Amendment, today, applicable to domestic military operations?

Mukasey: [unclear] don’t know of domestic military operations being carried out today.

DiFi: I’m asking you a question. That’s not the answer. The question is, does it apply?

Mukasey: I’m unaware of any domestic military operations being carried out today.

[back and forth]

Mukasey:  The Fourth Amendment applies across the board regardless of whether we’re in wartime or in peacetime.

[snip]

Mukasey: In my understanding it is not operative.

Well, it turns out it took another six months for Bradbury to withdraw the opinion.

Given Mukasey’s equivocations, I’d say there’s a very good reason they hid the memo (and, by association, the evidence that it had not been withdrawn when Mukasey equivocated wildly). I’d also suggest that, Mukasey knew well of a domestic military operation–DOD’s NSA wiretapping Americans domestically–that was ongoing at the time. And which, until the passage of the FISA Amendment Act, may well have been relying on Yoo’s October 2001 memo for legal cover.

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Emptywheel Twitterverse
emptywheel Wait. Did Bibi just say Saudi Arabia is about to get nukes?
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emptywheel This is stage of speech where every line should be finished w/"like Israel" in same way all fortune cookie fortunes end "between the sheets"
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emptywheel Shorter Bibi: Imagine if a Middle Eastern country were hiding nuke facilities?!?!? That would be HORRIBLE. Such countries cannot be trusted!
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bmaz @Popehat @ggreenwald @jamesrbuk @blakehounshell He's also sought ability to use a whistleblower justification defense, but no path for that.
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emptywheel @AllThingsHLS No no no. That's Petraeus' hand slap, surely.
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emptywheel @AliWatkins As I said, poetry.
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emptywheel I'd find this speech more convincing if Bibi had brought his Wile E Coyote graphics.
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emptywheel Petraeus plea deal is a lot like bank deals. A hand slap. I wonder if he, too, will find a way to profit off it, like a bank?
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bmaz RT @adamsteinbaugh: Curt Schilling shames creeps who tweeted about his daughter: cool. Gets one suspended from public school: not cool. ht…
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emptywheel Shorter Bibi: Greatest danger in world is marriage of militant Islam w/nukes (except in the case of Pakistan, but no biggie).
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emptywheel @JimWhiteGNV I'm just shocked I havent' started drinking yet.
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bmaz @randiego2 It is unclear, but accounts were taken down.
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