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I’d say there’s a very good reason they hid the memo (and, by association, the evidence that it had not been withdrawn when Mukasey equivocated wildly).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 @benwizner @Ali_Gharib Good planning.
12mreplyretweetfavorite
bmaz RT @benwizner: US criminal investigation of @Wikileaks has been a farce from Day 1-- notion that foreign publishers are bound by US secrecy…
28mreplyretweetfavorite
bmaz @benwizner @wikileaks The farce of the DOJ crim investigation is surpassed only by that of the clucks claiming there is a secret indictment
28mreplyretweetfavorite
bmaz RT @Ali_Gharib: Idea being floated by Israeli officials of manufacturing a "crisis" in #Iran talks b/c then Iran will give up more is batsh…
36mreplyretweetfavorite
bmaz Concerned Ali is using up critical supplies too fast for coming #SNOMG RT @Ali_Gharib brb - tearing up my floorboards for firewood.
38mreplyretweetfavorite
bmaz RT @cjproctor74: For the @NewYorker, a well-told, exhaustively reported version of the long-troubled @ABQPOLICE story. By @RachelAviv: http…
45mreplyretweetfavorite
bmaz I used to be a free speech absolutist. Charlie Hebdo changed that. http://t.co/9sVhytuhM8 A shameful take on free speech by @andresDCmtz
46mreplyretweetfavorite
emptywheel @fordm Grand aspirations?
2hreplyretweetfavorite
emptywheel @fordm Won't happen anyway. Only happens for those whose beheadings and extremism we need to gloss over.
2hreplyretweetfavorite
bmaz RT @radleybalko: John McCain thinks the NFL should be run more like D.C. That's what politicians tend to think about most things. http://t.…
2hreplyretweetfavorite
emptywheel RT @normative: We all remember where Modi got the "stitch your name in a pinstripe suit" idea, right? http://t.co/boCRULFXn9 http://t.co/11
2hreplyretweetfavorite
emptywheel RT @tweetsintheME: It is so messed up that Gen. Dempsey is sponsoring an essay competition about King Abdullah. So, so messed up. http://t.…
2hreplyretweetfavorite