Former Vice President Dick Cheney pressured President George W. Bush and other top administration officials to deploy US soldiers to a Buffalo, New York, suburb to arrest suspected terrorists, according to a report.
Using American soldiers for domestic law enforcement purposes would have been unprecedented. The Posse Comitatus Act of 1878 generally prohibits the armed forces from acting in a law enforcement capacity.
The Fourth Amendment to the US Constitution states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”
“Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants,” says a report published Friday evening in the New York Times.
Bush ultimately opposed the idea.
But Cheney, according to the Times, said a 37-page October 23, 2001, legal opinion prepared by John Yoo, the former deputy assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC), authorized the president to use the military for domestic matters. Yoo’s legal opinion, “Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” was declassified and released along with other OLC memos in April.
Yoo, who is a visiting law professor at Chapman University in Orange, California, asserted that the president had unlimited powers to prosecute the “war on terror” on American soil and could ignore constitutional rights, including First Amendment freedoms of speech and the press and Fourth Amendment requirements for search warrants.
“The current campaign against terrorism may require even broader exercises of federal power domestically,” Yoo wrote. “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully. The current campaign against terrorism may require even broader exercises of federal power domestically.”
The memo also said that Bush had the legal authority to order searches and seizures without warrants against individuals whom he judged to be terrorists.
“We do not think a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant,” said the memo, which was prepared by Yoo for then-White House Counsel Alberto Gonzales and Defense Department attorney William Haynes. Another OLC attorney, Robert Delahunty, was identified as a co-author of the memo.
“We think that the better view is that the Fourth Amendment does not apply to domestic military operations designed to deter and prevent future terrorist attacks.”
Just three months before Bush exited the White House, Stephen Bradbury, as acting chief of the OLC, renounced the October 23, 2001, legal opinion in a “memorandum for the files” that called Yoo’s opinion about suspending First Amendment protections “overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario.”
In a memo written October 6, 2008, Bradbury wrote that Yoo’s legal opinion “states several specific propositions that are either incorrect or highly questionable.” But Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”
The October 23, 2001, memorandum “represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law,” Bradbury wrote.
It’s still unclear what prompted Bradbury to draft the memo to the file, although his legal work, along with Yoo’s and that of Yoo’s boss, Jay Bybee, a federal judge, was the subject of an internal Justice Department investigation by the Office of Professional Responsibility, which is expected to release its report sometime this summer.
Yoo was sharply criticized in an inspector general’s report released two weeks ago for using flawed legal theories and failing to cite legal precedent when he authorized Bush’s domestic surveillance program. The report said Yoo worked closely with Cheney’s attorney, David Addington, in drafting the legal memo that permitted domestic spying – the same memo Cheney cited when he told Bush he could deploy American soldiers to upstate New York to arrest suspected terrorists.
Some of Yoo’s thinking on domestic military operations was revealed in an even earlier memo than the one dated October 23, 2001– another written 10 days after the 9/11 attacks, on September 21, 2001. The memo was drafted in response to a question posed by Timothy E. Flanigan, the former deputy White House counsel, who wanted to know “the legality of the use of military force to prevent or deter terrorist activity inside the United States,” according to a copy of Flanigan’s memo.
Yoo suggested some scenarios, such as the need to shoot down a jetliner hijacked by terrorists; to set up military checkpoints inside a US city; to implement surveillance methods far superior to those available to law enforcement; or to use military forces “to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire,” according to his memo.
Yoo argued that President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.... We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.”
Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the US meant that President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”
In his 2006 book, War by Other Means: An Insider’s Account of the War on Terror, Yoo cites various arguments for local and federal law enforcement agencies, as well as a sitting US president, to ignore the Fourth Amendment, especially regarding domestic surveillance.
“If al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement,” Yoo wrote. “The Fourth Amendment’s warrant requirement should not apply, because it is concerned with regulating searches, not with military attacks.”
The Times report said that “at least one high-level meeting was convened to debate the issue, at which several top Bush aides argued firmly against the proposal to use the military, advanced by Mr. Cheney, his legal adviser David S. Addington and some senior Defense Department officials.”
“Among those in opposition were Condoleezza Rice, then the national security adviser; John B. Bellinger III, the top lawyer at the National Security Council; Robert S. Mueller III, the director of the Federal Bureau of Investigation; and Michael Chertoff, then the head of the Justice Department’s criminal division.”
However, senior military officials, including Richard Myers, the chairman of the Joint Chiefs of Staff, were never consulted about the proposal.
“Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna,” the Times reported. “Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.”
Bush eventually ordered the FBI to arrest five Yemeni Americans suspected of having ties to al-Qaeda in Lackawanna. A sixth person was arrested in Bahrain immediately thereafter. All six pleaded guilty to guilty to terrorism-related charges.