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I’d say there’s a very good reason they hid the memo (and, by association, the evidence that it had not been withdrawn when Mukasey equivocated wildly).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.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+0Email to someone

82 Responses to OLC Restores 4th Amendment after Hounding from Congress

  • 1
  • 2
  • 3
  • 4
  • 5
  • 6
  • 7
  • 8
  • 9
  • 10
  • 11
  • 12
  • 13
  • 14
  • 15
  • 16
  • 17
  • 18
  • 19
  • 20
  • 21
  • 22
  • 23
  • 24
  • 25
  • 26
  • 27
  • 28
  • 29
  • 30
  • 31
  • 32
  • 33
  • 34
  • 35
  • 36
  • 37
  • 38
  • 39
  • 40
  • 41
  • 42
  • 43
  • 44
  • 45
  • 46
  • 47
  • 48
  • 49
  • 50
  • 51
  • 52
  • 53
  • 54
  • 55
  • 56
  • 57
  • 58
  • 59
  • 60
  • 61
  • 62
  • 63
  • 64
  • 65
  • 66
  • 67
  • 68
  • 69
  • 70
  • 71
  • 72
  • 73
  • 74
  • 75
  • 76
  • 77
  • 78
  • 79
  • 80
  • 81
  • 82
Emptywheel Twitterverse
bmaz No problem with it, overall he's decent chap, but why is AZ CJ Stan Feldman being recalled to duty for a swearing in? http://t.co/zA8JPvBIPJ
54sreplyretweetfavorite
bmaz @PogoWasRight Yep. I won't even have to try. One side or other, irrespective of the type of case, will hate me. I don't blame them either.
4mreplyretweetfavorite
JimWhiteGNV RT @NBCLA: JUST IN: Dallas nurse Amber Vinson no longer has Ebola, her family says http://t.co/ttx1MtHAIe http://t.co/nRW2xA0cQM
6mreplyretweetfavorite
bmaz I've just been selected as a superior court juror! Yay! I'd truly love to sit on a jury, any jury, civil or crim, but it will never happen.
22mreplyretweetfavorite
emptywheel @AllThingsHLS Spent some time last weekend w/a guy in charge of it. He wasn't interested when i pointed that out.
48mreplyretweetfavorite
bmaz Because the rush, whether feel good or just media hurry, that failed to mention the same, was totally lame+ineffective.
55mreplyretweetfavorite
bmaz Total hats off to @JulieATate Spencer Hsu+WaPo for being ONLY big media to note Due Process+MEJA issues in Blackwater http://t.co/oAG06AsOKH
56mreplyretweetfavorite
emptywheel @KailiJoy Did you also make fun of Chuck Todd? Cause I'm only clicking through if you made fun of him too.
2hreplyretweetfavorite
emptywheel @mgsledge That's not even the beginning of the nonsense in @daveaitel's piece. Not a very good propangandist, sadly.
2hreplyretweetfavorite
emptywheel RT @NSArchive: Poland to appeal European Court ruling that it violated human rights commitments by hosting #CIA "black prison" #FOIA http:/…
2hreplyretweetfavorite
bmaz MSNBC already gathering a production team for "Lockout: Canadia"...Probably.
2hreplyretweetfavorite
JimWhiteGNV RT @cliffschecter: Didi notice that #OttawaShooting gunman--if early reports right--had double barrel shotgun, not ASW or HCM. But, u know,…
3hreplyretweetfavorite