It seems our good friend, John Yoo, notorious fighter of civil liberties and promoter of the executive presidency wrote an interesting memo. In it, it seems, he provided an argument that the Fourth Amendment has no application to domestic military operations. I find that a fascinating concept. The President has interestingly expanded powers during wartime, it is true. And we are, technically, at war. Does this give him the right to spy on Americans without warrant? It is true that the military is a different beast than the police, and their power comes from the barrel of a gun. But in these modern times, another question comes to mind. The NSA, you see, operates under the Department of Defense. Can they legally spy on Americans during wartime without any warrant, legally?
It strikes me as a bit odd of a concept, and a bit outrageous. I am, in fact, somewhat offended. But there are legitimate questions. What rights does a citizen have during wartime? Do they change if the citizen is in a war zone? Or in a location that is not in rebellion? What does the AUMF permit the President to do?
If the Fourth no longer applies, do any? Have we any rights at all?
As I understand the administration’s position, they do not adopt the reasoning in this memo for support of the NSA’s eavesdropping:
Not being able to see the actual memo, it’s unclear to me what claims it makes.
However, at a very basic level, I agree that the Fourth Amendment may not apply to domestic military operations.
For example, during the Civil War, the Army of the Potomac under Meade would not have required a search warrant when they captured a house outside Petersburg that was serving as a outpost for forces under the command of A. P. Hill. They would legally be able to search the house, the persons of captured Confederate soldiers, and anything else they damn well pleased.
This is also true if, say, India decided to get belligerent and land a couple of divisions of men in a Normandy-style assault on southern Florida. A captured Indian forward command post would not be safe from search or seizure.
But wait, I hear you cry! That’s not what’s happening here now!
True. And I don’t agree that the AUMF gives military forces the right to break into a home in Ames, Iowa, and search it because we’re at war in Iraq and Afghanistan.
And that’s the point – without knowing what the memo says, I can’t judge further. It’s true that during domestic military wartime, our military is not constrained by the Fourth Amendment. To what extent and in what areas the memo’s author believes we find ourselves now is a key question.
Clearly, without the memo, we can not explore Mr. Yoo’s… interesting ideas. I’m sure it’ll show up shortly.
Further, the spokesman appears to be saying something that is currently true.
There are some handy links in the EFF document, which is why I chose that. The AP article is good.
What I’m focusing on, for the moment, is your evaluation of such a situation. Could, during WWII, Truman order a house in, say, Ohio searched because there is a possibility of maybe a Nazi being in the area, according to statistics?
How does this cover the NSA, relative to them being DoD? Are they military?
If you were Yoo, what sort of precedents or settled law could you apply to this?