Secret Memo Raises New Questions on Domestic Spying

By Justin Rood

Apr 3, 2008 9:20am

Justin Rood reports:

Shortly after the Sept. 11, 2001 attacks, the Bush administration concluded constitutional protections against unreasonable searches did not apply if they were done as part of “domestic military operations,” the Wall Street Journal reports this morning.

The American Civil Liberties Union, which unearthed that tidbit, called it a "radical interpretation" of the Fourth Amendment. A Justice Department spokesman said the administration has since changed its thinking on the matter. However, the legal reasoning was in place from 2001 until possibly as late as 2006, the Journal says.

The reasoning is contained in a still-classified 37-page memo dated Oct. 23, 2001, from the Justice Department Office of Legal Counsel.  Another document, recently obtained by the ACLU, mentioned the October 2001 memo’s findings on the Fourth Amendment.

That secret memo has appeared before, however.

The October 2001 document, "Re: Authority for the Use of Military Force to Combat Terrorist Activities within the United States," was mentioned in another Bush administration legal opinion – the so-called "Bybee Memo," since rescinded, which found that torture "may be justified" in some instances.

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.  "Posse Comitatus does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States," the memo stated.

The two conclusions — that both the Fourth Amendment and Posse Comitatus do not protect Americans from government anti-terror efforts — is puzzling, experts say.  It’s simply not clear exactly what operation the October 2001 memo was meant to justify.

While some speculated it was meant to provide a legal basis for the National Security Agency’s controversial domestic wiretapping program, a White House spokesman told the Journal that effort relied on "a separate set of legal opinions."

"What kind of surveillance program was it meant to justify, then?" the ACLU’s Jameel Jaffer asked a Journal reporter.

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