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Yoo: Warrant Schmarrant
Yesterday the ACLU noticed another of John Yoo's contributions to legal thought, tucked in a footnote of the March, 2003 memo. That footnote indicated that in a October 23, 2001 memo, Yoo had advised that the Fourth Amendment was too much bother. Here's that footnote:
The October 23, 2001 memo remains classified. And as the AP and The Wall Street Journal report, it's unclear exactly what sort of activities the memo was used to support. A White House spokesman denied that it had anything to do with the warrantless wiretapping program, but as the AP points out, "the government itself related the October memo to the [Terrorist Surveillance Program] when it included it on a list of documents that were responsive to the ACLU's request for records from the program."
And how long did the administration rely on this finding? "It was in use at least until March 2003 but not after January 2006," reports the Journal.
At the very least, it's apparent what Yoo thought about "Authority for Use of Military Force to Combat Terrorist Activities Within the United States." There seems to have been no limits to that authority. As Justin points out over at ABC, another of Yoo's infamous memos, the August 2002 "Torture Memo" signed by then-Office of Legal Counsel chief Jay Bybee, gave another indication of this:
A footnote to the Bybee document said that the October 2001 memo also concluded that Posse Comitatus –- an 1878 statute barring the military from participating in "law and order" missions domestically, under most circumstances – does not apply to the war on terror.
Josh
Zachary
As for Mr. Yoo, the following is a suggestion from a fellow commenter at CB and I completely agree.
The idea is to write Yoo’s colleagues and superiors at UC - Berkeley and ask them what they think about their reputations being soiled, as well as that of the university itself, by association with Yoo.
I applaud the effort and hope that you guys might, too. Addresses are available through the above link.
April 3, 2008 11:54 AM | Reply | Permalink
What concerns me is that this man is now in a position where he can teach this doctrine and because of where he is teaching it, approval will be assumed.
April 3, 2008 12:40 PM | Reply | Permalink
There isn't a hole deep enough to bury Yoo. His one-man assault on The Constitution and International Human Rights may be over. But it flips my wig that he's allowed to poison minds at Berkley let alone get paid for doing so.
-AF
Andrew Sullivan Is A Fraud
April 3, 2008 12:10 PM | Reply | Permalink
I can't believe this guy is teaching at a reputable law school, you know, somewhere other than Regent Law School.
April 3, 2008 12:34 PM | Reply | Permalink
When is Mr. Yoo scheduled to testify before Congress?
Just checking...
April 3, 2008 12:38 PM | Reply | Permalink
So... explain to me how what they're arguing is any different from martial law?
Seriously, if the President's powers are unlimited, just as long as it is asserted that it's in the "war on terror" (sic), exactly what is left of democracy? Or the Constitution? Or inalienable human rights?
(crickets chirping...)
April 3, 2008 12:41 PM | Reply | Permalink
The Dean of Yoo's law school's e-mail is:
edley@law.berkeley.edu
I just sent a post asking for Yoo to be sacked, and I urge all who see Yoo's assaults on our Constitution to do the same.
Goldern, these new-fangled interwebs shore are sumpin else...fight the fight!
War Crimes Tribunals '09
Pax,
M.
April 3, 2008 1:55 PM | Reply | Permalink
It has been noted at emptywheel that Yoo did not have authority to formally produce the memo(s). The questions are:
1. If Yoo did have the authority, where is the document showing that delegation of authority?
(document from Bybee??)
2. If Yoo did not have the authority, but the memo was a formal opinion, then who formally signed the opinion?
(Haynes??)
And now that we have learned that these opinions were used to support illegal domestic wiretapping, Congress cannot move forward on FISA until this information is known.
Lastly, if criminal law does not apply to military actions then why have people been prosecuted for torturing prisoners at Gitmo or for killing civilians in Iraq? Did criminal law apply to them? Not according to the authors of the opininions. Can they have it both way?
April 3, 2008 2:18 PM | Reply | Permalink
4th Amendment was the response to British domestic troop raids into private homes. The 4th Amendment applies to domestic use of US military forces, regardless whether we are or are not fighting terrorism. "Terrorism" has been this government's reckless pretext to ignore the 4th Amendment, and repeat the abuses of the British Monarchy: NLSs, warrantless interrogations, and military surveillance of civilians. Where is the DOJ OPR referral to the DC Disciplinary Board? Yoo and Addington view the catalysts for the Declaration and Bill of Rights as irrelevant. The executive does not have power to ignore the Constitution; Congress has no legal standing to remain complicit with that defiance.
April 3, 2008 2:27 PM | Reply | Permalink
On accusation alone, or dubious reasons, someone could be classified a potential terrorist, and subject to secret, warranatless military intrusion without judicial oversight. We're back to pre-1776. The abused "writs of assistance" are no different than the NSLs, or private telecom-NSA cooperation outside the Judiciary. These General warrants and their abuse prompted the American Revolution.
April 3, 2008 2:43 PM | Reply | Permalink
"Authority for Use of Force to Combat Terrorism Activities WITHIN the United States"
Excuse me? Authority to use force WITHIN the US?
Doesn't the FBI already have it's own "rules of engagement"? Hasn't FBI already had to 'Combat Terrorism Activities" within the US?
If not FBI, for what dept/agency of Gov't was this Oct 2001 memo written?
I think we need more digging on this 10/2001 memo. I think we deserve a judiciary review or legislative investigation into this.
I cannot even conceive of a need to give new legal opinions on 'the Use of Force' within the US, I think 200+ years of precedent exists.
oh4real
April 3, 2008 3:06 PM | Reply | Permalink
Step back a moment, and it's all of a piece. According to Yoo, just as long as the president asserts there is a military threat to the US he is effectively an absolute monarch.
April 3, 2008 3:15 PM | Reply | Permalink
Another TPM reader led me to Scott Horton's article in yesterday's Salon called "The Green Light," a discussion about whether the legal opinions put out by Yoo, Bybee, et al. were to justify actions that had already occurred or, as Horton believes the evidence shows, "these memoranda have been crafted not as an after-the-fact defense to criminal charges, but rather as a roadmap to committing crimes and getting away with it. They are the sort of handiwork we associate with the consigliere, or mob lawyer."
Horton notes that Sands ultimately draws a parallel between the charges against "Generalissimo Augusto Pinochet, the Chilean strong man whose life ended in a swarm of indictments and criminal proceedings" and those that could be level at Bush:
*Philippe Sands’s article “The Green Light” in the current Vanity Fair.
April 3, 2008 3:53 PM | Reply | Permalink
Sorry, that was Harper's for Scott Horton's article (got there via Salon somehow).
http://harpers.org/archive/2008/04/hbc-90002779
April 3, 2008 3:57 PM | Reply | Permalink
Just to expand on the point about the British abuse of the power to search at will before the revolution, it's worth emphasizing two things. First, these searches were one of the causes of the revolution and second, the British did these searches during the war. In other words, rather than intending the 4th amendment, or the Bill of Rights for that matter, to apply only in peacetime, the founding fathers were thinking quite specifically of wartime abuses. That's for conservatives who think civil liberties are a luxury of peacetime.
April 3, 2008 4:09 PM | Reply | Permalink
Conservatives think the entire Constitution is an obstacle to their entire agenda.
April 3, 2008 6:39 PM | Reply | Permalink
Where the Hell is Congressional Oversight?
Madam Speaker you disgrace your office , you shirk your solemn duty to protect OUR Constitution
You should step down Madam Speaker - or at least unleash Wexler on these fascist wannabees that now run our Excuetive Branch,,,
LEAD FOLLOW OR GET THE HELL OUUTTHEWAY NANCY !!
April 4, 2008 7:15 PM | Reply | Permalink
judyinn @ 6:39pm 3 April ,
Its getting real important to bring any one & every one that opposes this putsche by bushcheney to the fight we soon must have for the hear & soul of America. To that end something possible- politically a paradigm shift has occurred here in Texas - The Texas GOP caucus has been overpowered by the "Ron Paul Revolution " - Which means maybe we progressives can agree to disagree with the "Ron Paul Revolutionaries " on certain issues such as saving social security & and monetary policy per se -But we the RPR 's can make common cause in protecting & preserving our Constitution -Its seems to me that this is worth pondering - Hardly any Patriot I know would want federal armed forces in their homes ,,
Yoo actually might just bring us all togather !
April 5, 2008 8:08 PM | Reply | Permalink
Someone check the constitution, there could be notes in the margin.
April 7, 2008 9:59 PM | Reply | Permalink