# Yoo and Rights: 4th Amendment And War **URL:** \ **Category:** Great Debates\ **Created:** [April 4, 2008, 11:33am UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906 "2008-04-04T11:33:46Z")\ **Posts on this page:** 9\ **Page:** 1
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [April 4, 2008, 11:33am UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/1 "2008-04-04T11:33:46Z")
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? > **[Administration Asserts No Fourth Amendment for Domestic Military Operations](https://www.eff.org/deeplinks/2008/04/administration-asserts-no-fourth-amendment-domestic-military-operations)** > > What Could It Mean for Warrantless Domestic Surveillance? Update: Click here to read the AP article on the Yoo memo and the Fourth Amendment. Today's Washington Post reports on a newly released memo, "Memorandum for William J. Haynes II, General... Do note the AP link. And how would this affect the TALON program? > **[No Real Threat: The Pentagon's Secret Database on Peaceful Protest](https://www.aclu.org/report/no-real-threat-pentagons-secret-database-peaceful-protest?redirect=cpredirect%2F27988)** > > No Real Threat: ACLU Report on the Pentagon's Secret Database \> Complete Report (PDF) \> Press Statement (1/17/2007) LEARN MORE \> Government Spy Files ACLU Comics: Spy Files \>\> ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 4, 2008, 2:27pm UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/2 "2008-04-04T14:27:27Z")
[QUOTE=E-Sabbath] 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? > **[Administration Asserts No Fourth Amendment for Domestic Military Operations](https://www.eff.org/deeplinks/2008/04/administration-asserts-no-fourth-amendment-domestic-military-operations)** > > What Could It Mean for Warrantless Domestic Surveillance? Update: Click here to read the AP article on the Yoo memo and the Fourth Amendment. Today's Washington Post reports on a newly released memo, "Memorandum for William J. Haynes II, General... Do note the AP link. And how would this affect the TALON program? [http://www.aclu.org/safefree/spyfiles/27988pub20070117.html](http://www.aclu.org/safefree/spyfiles/27988pub20070117.html) [/QUOTE] As I understand the administration’s position, they do not adopt the reasoning in this memo for support of the NSA’s eavesdropping: > [@Associated Press](#): > > White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program. > > “TSP relied on a separate set of legal memoranda,” Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times. 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. ---
**Author:** ![Paul\_in\_Qatar](https://avatars.discourse-cdn.com/v4/letter/p/ccd318/32.png) [@Paul\_in\_Qatar](https://boards.straightdope.com/u/Paul_in_Qatar)\ **Post date:** [April 4, 2008, 2:44pm UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/3 "2008-04-04T14:44:17Z")
Who the heck writes an 81-page memo? I would fire my lawyer for that. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [April 4, 2008, 3:01pm UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/4 "2008-04-04T15:01:20Z")
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. > [@The AP article linked](#): > > 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, or TSP. > > 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. > > Late Wednesday, Justice Department spokesman Brian Roehrkasse said department officials believe the October 2001 memo was not about the eavesdropping program, but he did not explain why it was included on requests for documents linked to the TSP. > > Earlier, Roehrkasse said the statement in the footnote does not reflect the current view of the department’s Office of Legal Counsel. 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? ---
**Author:** ![Ale](https://avatars.discourse-cdn.com/v4/letter/a/f19dbf/32.png) [@Ale](https://boards.straightdope.com/u/Ale)\ **Post date:** [April 4, 2008, 3:02pm UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/5 "2008-04-04T15:02:02Z")
Pardon my dumbness, but wouldn´t all this be moot since, in fact, the US is not in a declared state of war? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 4, 2008, 3:02pm UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/6 "2008-04-04T15:02:31Z")
[QUOTE=Bricker] Not being able to see the actual memo, it’s unclear to me what claims it makes. [/quote] [Click here for Part I](http://gulcfac.typepad.com/georgetown_university_law/files/march.14.memo.part1.pdf) [and click here for Part II](http://gulcfac.typepad.com/georgetown_university_law/files/march14.memo.part2.pdf). I’m trying to decide if I want to slog through all 81 pages of Yoo’s “writing”. On edit: Sorry, that’s Yoo’s memo of the 14th, not the one that memo references. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [April 4, 2008, 3:07pm UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/7 "2008-04-04T15:07:40Z")
Apparently, the Justice Department has disavowed Yoo’s earlier (2001) memo. [From here](http://jurist.law.pitt.edu/paperchase/2008/04/fourth-amendment-not-applicable-to.php) ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [April 4, 2008, 3:08pm UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/8 "2008-04-04T15:08:28Z")
Check the Balkinzation link in the EFF link, too. Weird stuff. ---
**Author:** ![Ravenman](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ravenman/32/2929_2.png) [@Ravenman](https://boards.straightdope.com/u/Ravenman)\ **Post date:** [April 4, 2008, 3:49pm UTC](https://boards.straightdope.com/t/yoo-and-rights-4th-amendment-and-war/443906/9 "2008-04-04T15:49:44Z")
[QUOTE=E-Sabbath] And how would this affect the TALON program? [http://www.aclu.org/safefree/spyfiles/27988pub20070117.html](http://www.aclu.org/safefree/spyfiles/27988pub20070117.html) [/QUOTE] It appears that the program which sponsors TALON is on its last legs: [NYT story](http://www.nytimes.com/2008/04/02/washington/02intel.html) > [@](#): > > The Pentagon is expected to shut a controversial intelligence office that has drawn fire from lawmakers and civil liberties groups who charge that it was part of an effort by the Defense Department to expand into domestic spying. > > The move, government officials say, is part of a broad effort under Defense Secretary Robert M. Gates to review, overhaul and, in some cases, dismantle an intelligence architecture built by his predecessor, Donald H. Rumsfeld. In any case, that particular database is being shut down: > [@](#): > > Pentagon officials said that the database that housed information about the war protesters was built to track terrorist threats against domestic military bases and that reports about war protesters were put into it by mistake. Mr. Clapper ordered an end to the database, called Talon, last year.