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spokesman Peter Carr said, "As the attorney general explained in his testimony, the statement in footnote 10 of the withdrawn March 2003 opinion does not reflect the current views of the Department of Justice.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."
In relation to the authorities of the NSA program, Carr said, "The memorandum cited in footnote 10 was not directly addressed to the NSA surveillance activities, since those activities relied on a separate set of legal memoranda."
Along the same lines, Mukasey was asked whether remarks he made last month in a speech in San Francisco in which he alluded to what seemed to be previously unknown details about the 9/11 attacks and communications among the hijackers when he said, "We knew that there has been a call from someplace that was known to be a safe house in Afghanistan, and we knew that it came to the United States. We didn't know precisely where it went."
Asked about that statement Thursday, Mukasey told the senators that he misspoke and that he "had the geography wrong."
Mukasey said he was discussing a terrorist facility in the Middle East, which was being monitored by the NSA. Details of that location had been previously reported.