EFF notes (h/t to diarist skisb) a troubling footnote in the newly released John Yoo memo:
... our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001). (emphasis added)
That's some memo title, isn't it? "Authority for Use of Military Force to Combat Terrorist Activities Within the United States"? Sounds important!
And you say this memo concluded that the Fourth Amendment had no application to such operations? The Fourth Amendment that bears on issues of domestic surveillance? The, uh, whaddya call it? The FISA stuff?
Well, that would explain the Bush signing statements nullifying the multiple amendments inserted into Defense Department appropriations bills by Rep. John Murtha:
None of the funds provided in this Act shall be available for integration of foreign intelligence information unless the information has been lawfully collected and processed during the conduct of authorized foreign intelligence activities: Provided, That information pertaining to United States persons shall only be handled in accordance with protections provided in the Fourth Amendment of the United States Constitution as implemented through Executive Order No. 12333.
Bush nullified it because his DOJ was telling him the Fourth Amendment (and EO 12333 -- about which you might want to see Marty Lederman at Balkinization) doesn't apply.
We should get that memo, don't you think?
Well, the chairmen of the Senate and House Judiciary Committees -- Sen. Pat Leahy and Rep. John Conyers do. Leahy's been after it since January 2005, and Conyers was still asking for it as recently as February. But to no avail, it would seem. Yay, oversight!
Did America know that all of this surveillance, all of this recording of their phone calls and reading of their e-mails was considered a "military operation?" Sure, millions of our head-in-the-sand neighbors have insisted all along that they "have nothing to hide," but did they know that in the minds of their "government," they were the targets of a military operation?
What kind of military operation is this, exactly?
Well, the DOJ has since January 2006 asserted:
that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad.
It's the DOJ position, then, that the AUMF recognized electronic surveillance as a traditional and accepted incident of the use of military force, and that that military force ought to be and is being used against... you.
Good thing it's just some kind of nebulous "use of military force" then, eh? Not this other thing:
Section 3. Treason against the United States, shall consist only in levying war against them...
Funny word, "levying."
LEVYING WAR, crim. law. The assembling of a body of men for the purpose of effecting by force a treasonable object; and all who perform any part however minute, or however remote from the scene of action, and who are leagued in the general conspiracy, are considered as engaged in levying war, within the meaning of the constitution. 4 Cranch R. 473-4.
Only this object can't be treasonable. Because Bush and Cheney were both wearing flag lapel pins when they ordered it. And, of course, because the DOJ says Congress authorized it, which makes it a consensus political decision.
But yet...
The notion that Congress authorized warrantless surveillance in the AUMF is utterly inconsistent with the Attorney General's admission that Congress was not asked for such authorization because it was assumed that Congress would say no.
Former Senate Majority Leader Tom Daschle, who helped negotiate the use of force resolution with the White House, has confirmed that the subject of warrantless wiretaps of American citizens never came up, that he did not and never would have supported giving authority to the President for such wiretaps, and that he is ``confident that the 98 senators who voted in favor of authorization of force against al Qaeda did not believe that they were also voting for warrantless domestic surveillance.''
Senator Daschle also noted that the Bush administration sought to add language to the resolution that would have explicitly authorized the use of force "in the United States," but Congress refused to grant the President such sweeping power. Maybe that was this administration's covert way to seek the authority to spy on Americans, but Congress did not grant any such authority.
And you know what's interesting about that DOJ argument on that AUMF? Yoo always carefully avoided it, insisting that the AUMF didn't independently authorize any powers the president didn't already have, but rather merely affirmed their existence. In fact, Yoo refused even to call the AUMF the AUMF -- after all, the A stands for "authorization" -- instead stubbornly insisting on referring to it only as the "Joint Resolution."
But like others of Yoo's memos that the DOJ has since had to disavow (on grounds of craziness), the DOJ has since fallen back to an only slightly less-crazy insistence that the AUMF authorized warrantless domestic surveillance, even as the Members of Congress who passed it insist it did not.
This is the gang that Jay Rockefeller (and according to their votes on final passage of Rockefeller's bill, Senators Baucus, Bayh, Carper, Casey, Conrad, Inouye, Johnson, Kohl, Landrieu, Lincoln, McCaskill, Mikulski, Ben Nelson, Bill Nelson, Pryor, Salazar, Webb and Whitehouse, and Reps. Boren, Carney, Cooper, Holden, Lampson, and Shuler) wants to work with "in good faith."
The gang that two years ago declared the NSA's domestic spying programs to have been legally authorized, and yet has convinced Rockefeller that Congress needs to add a belt to those suspenders, and retroactively immunize the telecom companies who are facilitating the spying. The House now says that perhaps a court should be asked whether the DOJ is right.
But Senator Rockefeller says he's got it covered. No need to involve those silly courts. After all, his bill would "restore civil liberty protections through proper FISA court oversight." Which would be great (minus the fact that it means Congress is abdicating its role here), if anyone believed we were going to get proper oversight from a secret court that's the DOJ is telling the Fourth Amendment doesn't apply and that federal judges are unqualified to decide on matters of national security, anyway.
Every day that passes without Jay Rockefeller being able to cajole the weak-kneed Congressional Democrats who still fear Republican attack ads more than the prospect of gutting the Constitution brings us more evidence of just how crazy the Bush-Cheney gang really is, and how agreeing to cooperate with them "in good faith" is crazier still.
Not seeing it at this point is just willful blindness.