By now, you’ve noted the footnote in the Torture Memo referencing a different OLC opinion declaring the 4th Amendment invalid.
[O]ur office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct. 23, 2001).
Scribe and I have been in a bit of a dispute whether or not that October 23, 2001 document was written to justify the illegal wiretapping program. I’m going to try to lay out what we know about it here.
The Case for Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program
The basis for arguing that the opinion is the rationale for the illegal wiretapping program is simple. First, the timing is right. As the AP notes, the opinion was written just two days before Dick briefed the Gang of Four on the program.
The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA’s secret wiretapping program for the first time.
Then there’s the argument that DOJ included the document in a list of materials withheld in response to an ACLU FOIA.
The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU’s request for records from the program. It refused to hand them over.
The document they’re referring to is this Steven Bradbury declaration. In the declaration, Bradbury writes,
OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity OLC 146 is withheld under FOIA Exemption Five.
I’m going to add an update below, showing the other OLC documents Bradbury withheld in this declaration. But note that this one does not specifically address communications (some of the others do).
The last reason it would make sense is the content. By all appearances, the warrantless wiretap program is a clear violation of the Fourth Amendment’s prohibition against unreasonable searches. Thus, it would be logical that the Administration simply invalidated the Fourth Amendment in an OLC opinion to make its illegeal wiretap program legal.
Update: Here’s part of scribe’s logic for arguing the opinion relates to domestic spying (click through to the comment for his complete argument).
The NSA is part of the military .
The title of Yoo’s 10/23/01 memo is, what: “Authority for Use of Military Force to Combat Terrorist Activities Within the United States”
But the proposition for which that memo is cited* in footnote 10 of the memo is:
Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.
So, what does this mean? Depends on how you define “domestic military operations”, don’t it?
I argue the 10/23/01 memo was the lawyerly justification for:
(a) NSA (military) wiretapping and surveillance operations inside the United States;
(b) domestic military operations of the intel-gathering sort – e.g., CIFA, physical surveillance, black-bag jobs, etc.;
(c) the incarceration of suspected terrists in military brigs, regardless of citizenship status (e.g., Jose Padilla, etc.), their removal from the civilian criminal justice system and their transportation from place to place;
(d) when done by the military, the odd kidnapping, interrogating, whacking of suspected terrists who happened to be within the United States (none of which we know about actually having occurred, but which could have been deemed “legitimate” under the analysis we know about so far).
All of those things are military operations.
The Case against Believing the 10/23/01 Memo Authorized the Warrantless Wiretap Program
But there are several reasons to believe the opinion has nothing to do with the warrantless wiretap program. Least credibly, there’s Tony Fratto’s insistence that it doesn’t.
White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.
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