[Infowarrior] - Memo Justified Warrantless Surveillance

[Richard Forno]

Memo Justified Warrantless Surveillance
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Apr 2, 7:47 PM (ET)

By PAMELA HESS and LARA JAKES JORDAN


 http://apnews.myway.com/article/20080402/D8VQ1NG80.html

WASHINGTON (AP) - For at least 16 months after the Sept. 11 terror attacks
in 2001, the Bush administration believed that the Constitution's protection
against unreasonable searches and seizures on U.S. soil didn't apply to its
efforts to protect against terrorism.

That view was expressed in a secret Justice Department legal memo dated Oct.
23, 2001. The administration on Wednesday stressed that it now disavows that
view.

The October 2001 memo was written at the request of the White House by John
Yoo, then the deputy assistant attorney general, and addressed to Alberto
Gonzales, the White House counsel at the time. The administration had asked
the department for an opinion on the legality of potential responses to
terrorist activity.

The 37-page memo is classified and has not been released. Its existence was
disclosed Tuesday in a footnote of a separate secret memo, dated March 14,
2003, released by the Pentagon in response to a Freedom of Information Act
lawsuit by the American Civil Liberties Union.

"Our office recently concluded that the Fourth Amendment had no application
to domestic military operations," the footnote states, referring to a
document titled "Authority for Use of Military Force to Combat Terrorist
Activities Within the United States."

Exactly what domestic military action was covered by the October memo is
unclear. But federal documents indicate that the memo relates to the
National Security Agency's Terrorist Surveillance Program.

That program intercepted phone calls and e-mails on U.S. soil, bypassing the
normal legal requirement that such eavesdropping be authorized by a secret
federal court. The program began after the Sept. 11 terrorist attacks and
continued until Jan. 17, 2007, when the White House resumed seeking
surveillance warrants from the Foreign Intelligence Surveillance Court.

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.

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.

On Wednesday, Justice Department spokesman Brian Roehrkasse said the
statement in the footnote does not reflect the current view of the
department's Office of Legal Counsel.

"We disagree with the proposition that the Fourth Amendment has no
application to domestic military operations," he said. "Whether a particular
search or seizure is reasonable under the Fourth Amendment requires
consideration of the particular context and circumstances of the search."

Roehrkasse would not say exactly when that legal opinion was overturned
internally. But he pointed to a January 2006 white paper issued by the
Justice Department a month after the TSP was revealed by The New York Times.

"The white paper does not suggest in any way that the Fourth Amendment does
not apply to domestic military activities, and that is not the position of
the Office of Legal Counsel," he said.

Suzanne Spaulding, a national security law expert and former assistant
general counsel at the Central Intelligence Agency, said she found the
Fourth Amendment reference in the footnote troubling, but added: "To know
(the Justice Department) no longer thinks this is a legitimate statement is
reassuring."

"The recent disclosures underscore the Bush administration's extraordinarily
sweeping conception of executive power," said Jameel Jaffer, director of the
ACLU's National Security Project. "The administration's lawyers believe the
president should be permitted to violate statutory law, to violate
international treaties, and even to violate the Fourth Amendment inside the
U.S. They believe that the president should be above the law."

"Each time one of these memos comes out you have to come up with a more
extreme way to characterize it," Jaffer said.

The ACLU is challenging in court the government's withholding of the October
2001 memo.