Mukasey Pressed on Counterterror Memo

April 10, 2008— -- Lawmakers pressed Attorney General Michael Mukasey about controversial Bush administration counterterrorism policies, including a note in a recently declassified memo that seemingly exempted the U.S. military from affording rights to those in its domestic custody.

At the Senate Appropriations Committee hearing Thursday on the Justice Department's budget request, which the administration wants to cut by 2 percent for fiscal year 2009, the subject quickly turned from cash to counterterrorism.

Sen. Dianne Feinstein, D-Calif., asked Mukasey about the recent release of the March 14, 2003, Office of Legal Counsel memorandum, which concluded that the Fifth and the Eighth Amendments -- providing for due process and prohibiting cruel and unusual punishment -- do not apply to alien enemy combatants held abroad.

Feinstein focused in on a footnote in the memo, which noted, "Our Office recently concluded that the Fourth Amendment had no application to domestic military operations."

Feinstein created a bit of stir in the hearing room when she seemed to indicate that the memo authorized the Pentagon to conduct military operations inside the United States. "The president is free to order domestic military operations?" she asked.

Mukasey said the Fourth Amendment "applies across the board" and said of the footnote…"It is not operative."

Sen. Barbara Mikulski, D-Md., said, "Someone should have told that to Mr. Rumsfeld," in referring to controversial Defense Department programs and databases that tracked domestic terrorist threats and war protestors.

Some legal experts and bloggers have speculated that an unreleased memo laid the legal basis for the National Security Agency to operate the Terrorist Surveillance Program. The October 2001 memorandum is still secret; the Justice Department has not released it, citing attorney client privilege.

After the hearing Justice Department spokesman Peter Carr said, "As the attorney general explained in his testimony, the statement in footnote 10 of the withdrawn March 2003 opinion does not reflect the current views of the Department of Justice. We disagree with the proposition that the Fourth Amendment has no application to domestic military operations."