As Unreasonable As They Wanna Be

If the remake of Friday the 13th didn't do it for you, have a look (if you dare) at this heretofore secret October 2001 legal memo (PDF), released by the Justice Department yesterday. "If the President concludes that it is necessary to use military force domestically to counter [terrorists]," say the authors, Office of Legal Counsel (OLC) lawyers John  Yoo and Robert Delahunty, "the Fourth Amendment would be no more relevant than it would be in cases of invasion or insurrection." Translation: If the president hands terrorism investigations over to the Pentagon, "unreasonable searches and seizures" are A-OK. Yoo and Delahunty explain that "our forces must be free to 'seize' enemy personnel or 'search' enemy quarters, papers and messages without having to show 'probable cause' to a neutral magistrate, and even without having to demonstrate that their actions were constitutionally 'reasonable.'" Censorship aimed at defeating terrorism would be legal too, they suggest, since "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

Other OLC memos released yesterday, according to the New York Times summary, argue that "judicial precedents approving deadly force in self-defense could be extended to allow for eavesdropping without warrants," that Congress lacks "any power to limit a president's authority to transfer detainees to other countries," and that Congress has "no right to intervene in the president's determination of the treatment of detainees." In the most recent memo, dated January 15, 2009, OLC head Steven Bradbury officially repudiates these positions, which he says are "dubious propositions" that are "not sustainable" but have to be understood as the work of government lawyers confronting "novel and complex questions in a time of great danger and under extraordinary time pressure."

In essence, then, OLC lawyers told President Bush he could do whatever the hell he wanted as long as he did it in the name of fighting terrorism, and the guy in charge of the office waited until five days before Bush left office to say they were wrong. Furthermore, although the Bush administration kept these documents secret for years on national security grounds, the Obama Justice Department quickly "determined that those memos did not contain any classified material and could be made public." Obama, who in other respects has been parroting his predecessor's state secrecy arguments, deserves credit for coming down on the side of openness in this case—and, perhaps not incidentally, making his civil libertarian credentials look better in comparison with the Bush administration's extreme views on executive power.

But let's not get carried away. The Times says "President Obama has signaled a reluctance to launch a wide-ranging investigation into his predecessor's policies, saying that he prefers to fix the policies and move on." Toward that end, "he issued executive orders requiring strict adherence to anti-torture rules, and as a senator he voted for legislation that brought surveillance efforts into alignment with federal statutes." Obama's position on torture definitely is an improvement, but it would be more accurate to say that he brought federal statutes into alignment with surveillance efforts, rather than the other way around. While the legislation he supported did not go the Yoo-Delahunty route of dispensing with surveillance warrants altogether, it effectively eliminated privacy protections for international telephone calls and email involving people in the United States. The constitutionality of that policy remains an open question.

The OLC memos are available here. The ACLU has background here, including a list of still-secret memos it says the Obama administration should release.

Brian Doherty noted the newly released memos earlier today. Yesterday I discussed the administration's attempts to block litigation over the Bush administration's illegal surveillance program. Last month Radley Balko noted that the Justice Department also is pressing a state secret argument against a rendition/torture lawsuit. In a 2008 column, I pointed out that a 2003 Yoo memo on torture cited the Fourth Amendment conclusions of his then-secret October 2001 memo.

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  • ||

    The Justice Department also says that the CIA detroyed 92 videotapes from the agency's detainee interrogation program.

    I wonder why the CIA didn't retain them?

  • Taktix®||

    I don't see how any elected offician cannot prosecute Yoo, et al., after seeing this memo.

    It's in the oath of office of every elected official to "protect and defend" the Constitution. If no charges are filed over this, EVERY FEDERAL ELECTED OFFICIAL IS IN VIOLATION OF THEIR OATH OF OFFICE.

    EVERY.

    SINGLE.

    FUCKING.

    ONE.

  • Kyle Jordan||

    Not that I'm the most intelligent person on the planet, or even in the top 99.999% of them, but I literally cannot wrap my mind around Yoo's positions.

    This shit's basically outright...evil.

  • Craig||

    It would be nice to see an incoming Administration with the cojones to actually start handing out indictments for the federal crimes committed by their predecessors, but judging from the campaign results for L. Neil Smith and Michael Badnarik, it won't happen anytime soon.....

  • ||

    It's in the oath of office of every elected official to "protect and defend" the Constitution.



    The Constitution is still in one piece isn't it? Granted, the paper's a bit yellowed, and there may be a few tears in it, but it's essentially still legible, right? So they've all defended the Constitu...what's that? Oh! You thought they were supposed to protect what's IN the Constitution?? Now that's just silly.

  • I HAVE ALWAYS AND WILL ALWAYS ||

    that is all

  • Yoo2||

    "I don't see how any elected offician cannot prosecute Yoo, et al., after seeing this memo."

    whatever

  • Reinmoose||

    That's it. The world's going to pot.

    The conversation and interviews of the last 20 minutes of NewsHour = Europe is fucked

  • Lawyer looking for Govt job||

    Yeah, I'll *definitely* prosecute my former jobholders.

    ...uuhh... nOt!

    Like, what - you want to set a precedent that slavish lawyers to people in power can be *held accountable*? Nice. Good luck with that. Next, propose that congress can't spend money on like, just *anything*.

  • Dave W.||

    the guy in charge of the office waited until five days before Bush left office to say they were wrong.

    The first sign that Bush knew McCain was going to lose was when they dropped the hammer on the government patsy in the Anthrax attacks.

    Frankly, that episode is still more disturbing than these memos. Because it was real.

  • Yoo2||

    "I don't see how any elected offician cannot prosecute Yoo, et al., after seeing this memo."

    No harm, no foul.

  • Juanita||

    "That's it. The world's going to pot.

    The conversation and interviews of the last 20 minutes of NewsHour = Europe is fucked"

    You can blame the drug using Dutch for starting it.

  • ||

    John Yoo is a fucking disturbed individual.

  • Jerry||

    It seems to me these memos will be released when it is politically expedient to do so. Like when Obama administration lawyers are fighting over telco immunity lawsuits.

  • ||

    Who let the troofer in?

    Taktix®,
    I thought you were door warden tonight.

  • The Bearded Hobbit||

    Juanita-troll,

    Thank you for making Pepsi shoot out of my nose. That was excellent.

    .. Hobbit

  • ||

    John Yoo and Robert Delahunty are jackasses.

    Not that I'm the most intelligent person on the planet, or even in the top 99.999% of them, but I literally cannot wrap my mind around Yoo's positions.

    Thats probably for the best, since physically distorting your brain in that way would kill you (indeed taking it out if your head to bend it would itself be problematic).

    And I'm sure your smarter than at least 0.001% of humanity.

  • anarch||

    And this is an alternative to the terrorists' winning just how, please?

  • ||

    This evil cocksucker wiped his ass with the constitution. So, he get a to teach law at Berkely and I can't even get a job at Taco Bell. I need my Camus because this world is fucking absurd.

  • Taktix®||

    J sub,

    Sorry, I was in mid-commute.

    Dave W.,

    There's plenty of legitimate rage-generating info here that we needn't sully it with your crazypants theories...

    Shut the fuck up.

    Sincerely,

    Taktix®

  • ||

    At the risk of incurring everyone's wrath, I will point out that these memos were issued in October 2001, at a time when there was a genuine fear that more terrorist attacks of 9/11 scale might be pulled off at any time. Not unreasonably, given the DC sniper and anthrax attacks.

    Let's just pause an consider what we might do if there actually were WTC style bombings occuring every other week or so.

    I suspect that the majority of the population would be more than willing to abbrogate the fourth amendment for unreasonable search and seizures, and that the argument for defending against "invasion or insurrection" would be exactly what would justify it.

    If anything, the memos illustrate how close we were to actually having martial law imposed at that moment.

  • Anonymous Crank||

    Heaven Help me, but I think Hazel might be right. I didn't like Bush the Lesser much. But the very fact that he had this power and DIDN'T go all Musolini on the country is a T*I*N*Y tick in his favor. He still did the wiretaps, and I would like to see some thing made of that, except that Obama wants the same powers, so that is unlikely.

  • Anonymous Crank||

    Oh, and I DO agree that Mr. Yoo needs a solid kick to the yarbles.

    ...And I'm out.

  • KG||

    I just got an email that Yoo will be speaking at an OC Federalist Society event, the topic is "Lincoln and War Powers". I can't bring myself to go, mainly because I'd probably cause great bodily injury to Mr. Yoo.

  • KG||

    But the very fact that he had this power and DIDN'T go all Musolini on the country is a T*I*N*Y tick in his favor.



    Also a tiny tick in Bush's favor is that he didn't launch any ICBM's.

  • Anonymous Crank||

    "Also a tiny tick in Bush's favor is that he didn't launch any ICBM's."

    True, but then I am unaware of a policy wonk in his Administrator writing official memos that said launching ICBM's was perfectly OK whenever he felt like it. Mr. Yoo, on the other hand, said it was just hunky-dory to shut down the NY Times if he wanted to, in the name of "fighting terrorism." That Bush Jr. didn't do any such thing raises him SLIGHTLY in my opinion. Slightly.

    One wonders (as libertarians are wont to do) what Mr. Obama would do with the same policy recommendation if the NY Times or the rest of the media turned on him?

  • ||

    Hazel Meade, you have incurred my wrath...

    Just kidding. But seriously though, if such attacks were being pulled off every week or so, that would justify some kind of strong government action. But it would not justify restrictions on freedom of speech or freedom of the press, as those have nothing to do with combating terrorism. And if the government claimed they don't need a warrant to take actions against enemy combatants on US soil, there would still need to be a reasonable way of determining who is an enemy combatant and who isn't.

    At any rate, it was never likely that terrorists would be able to pull off something like that every week.

    By the way, the D.C. sniper attacks occurred in 2002.

    http://en.wikipedia.org/wiki/Beltway_sniper_attacks

  • jk||

    Yoo's memo describes executive actions during times of war and rebellion and the court decisions that followed. Why the memo was ever considered secret is strange, but the content is not. Yoo is saying that the several other presidents have gotten away with ignoring some constitutional protections during times of crisis so you [Bush] probably can too.

  • Curious George||

    Yup let's prosecute all those presidents that did the very same thing in the name of national security. Shall we start with Lincoln?

  • ||

    if such attacks were being pulled off every week or so, that would justify some kind of strong government action. But it would not justify restrictions on freedom of speech or freedom of the press, as those have nothing to do with combating terrorism.

    Well, I suspect what he was referring to was restrictions on revealing information that might be useful to the enemy. The kind of stuff that they did during World War Two where the press would refrain from discussing military preparations or locations of battles and so forth.
    At least, that's what I think could be legally justified.

    And if the government claimed they don't need a warrant to take actions against enemy combatants on US soil, there would still need to be a reasonable way of determining who is an enemy combatant and who isn't.

    Yes, but I suspect that would be determined after the fact. What happens under martial law, in an insurrection, say, is that lots of people get rounded up, and then they sift through them and figure out who they need to continue holding. Though the record on Guantanamo suggests that they would have fucked up that part anyway.

    At any rate, it was never likely that terrorists would be able to pull off something like that every week.

    You say that in hindsight. But at the time, anything looked possible. For all we knew, there might have been hundreds of sleeper cells with pre-planned attacks ready to be carried out. There was a real fear that the WTV would turn out to be just the first wave.

  • Richard Stands||

    These memos spurred me to go look it up, and sure enough, there it was in Article 2, Section 2:

    The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

    He shall have Power, in unitary Isolation, to abrogate any and all Sections of this document if He, or any other Citizen of the Several States is frightened or angry.

    He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

  • Kolohe||

    You say that in hindsight. But at the time, anything looked possible

    There is a saying 'if you can keep your head about you when everyone else is losing theirs, clearly you don't understand the seriousness of the situation'

    But there is also a basic small c conservative axiom that while it's hitting the fan is precisely when you fall back on your core tried and true principles and don't make up (too much) shit as you go along.

    Take ol Sully for example. Clearly, there's no precedent for landing an Airbus on the Hudson. But by doing everything else by the book, he was able to walk away with his big brass ones. Contrast this with the Continental crew in Buffalo. If first reports are correct, they had a major procedural violation which lead to tragedy when they hit adverse conditions.

  • Dave W.||

    There's plenty of legitimate rage-generating info here that we needn't sully it with your crazypants theories...

    Shut the fuck up.


    FIRST:

    My "crazypants" theories are perfectly relevant here. Because the Bush administration is saying the things in these memos that it is saying, it certainly suggests to me that they were morally capable of doing worse things in secret.

    Right now these memos are being used as a limited hang-out. "look, we said some crazy stuff back then, and, heck, we all got a little crazy in October 2001, but we never followed up on it by DOING anything bad to the American people." I don't buy it. To me, the memos suggest just the opposite. They suggest that we need to dig deeper and find out the secret ways in which the permissions of these memos were carried out in secret.

    SECOND:

    The official line on the anthrax terrorism is that a person employed by the American military got the anthrax from a US military facility. In this sense, we know that element(s) operating within the American military sent the anthrax. What we don't know is how deep the executive branch involvement went. People seem to assume that it didn't go past the man who conveniently committed "suicide." I guess they believe this because: (i) nobody else has confessed yet; and (ii) they trust the US government (that is, the same US government that wrote these memos). I am not the crazypants here.

  • Guy_Smiley||

    This is an example of the real-world catastrophe that can come from everybody taking metaphors literally without realizing it.

    The antidote is to say that a "war", literally, is an armed conflict between two governments, or, in the case of civil war, two parties that are both trying to be the government. (Which disqualifies the American "Civil War", by the way.)

    Mr. Yoo, The Drug War and War On Terrorism, are METAPHORICAL WARS! So, all of your talk about what a president can or cannot do in wartime is irrelevant.

    I think that's wherefrom the con gets all its power.

  • Guy_Smiley||

    mr u will not be missed
    who as an anthologist
    sold the many on the few
    not excluding mr u




    -- e e cummings

  • ||

    I suspect that Yoo's position (no, I haven't read the memo) can be boiled down as follows:

    The Fourth Amendment doesn't apply to the warfighting activities of the military. I think this is (or used to be) pretty self-evident.

    Military responses to terrorists are a warfighting activity of the military.

    Ergo, military responses to terrorists are not subject to the Fourth Amendment.

    Its not a self-evidently crazy argument. Certainly, as applied to military operations in, say Afghanistan, it seems unexceptional. If a large and well-armed training camp/base were identified in the US, better suited for reduction by US Marines than the serving of warrants by the local constabulary, I suspect few would object.

    The problems arise when you try to apply some definitions and limiting principles on the middle premise to military responses within the USA.

  • Xeones||

    Yo, fuck John Yoo.

  • ||

    Shit! Dave W.'s on to me!

  • ||

    Hazel Meade and RC Dean FTW. Taktix and the "string Yoo up" posse, not so much.

    I say this as a guy who has taken the military oath to support and defend the Constitution of the United States, against all enemies, foreign and DOMESTIC.

    The pendulum swings away from personal liberty in times of crisis and back when the crisis is perceived to have passed. See also, Civil War, WW1, WW2, Red Scare, Cold War, etc. etc. ad nauseum.

    As for ICBM's not being launched as a tick in Bush's favor, it should probably be a whole column unto itself. Here's the counter-factual:

    Sadly, there are some presidents (and candidates who never made the cut) who were probably quite capable of raining nuclear hell-fire across large swaths of the non-nuclear-capable Middle East on 9/12.

    Exit strategy: on 9/13, turn over the reins to the VP who would pardon him/her on the way out the door. One deeply sincere apology for any loss of innocent life via satellite feed from an undisclosed safe location later - which is more than Truman ever did for the Japanese - and Iraq and Afghanistan would look merciful by comparison.

    The ensuing lack of further attacks (which we would probably have seen regardless of the U.S. response) would probably catapult the former president into the pantheon of "All-Time Great U.S. Presidents" along with all the others who seem to make it to the top of the list in direct correlation to the body count on their watch.

  • Mark||

    rob, RC Dean: There are mechanisms for suspending the Constitution, and unless and until the president goes through those steps, the constitution applies. To sit around saying that, 'well if I'm scared enough, the we can scrap all your civil liberties is utter poppycock'. Get me a frakking state of emergency and then all the legal reasoning would have a leg to stand on.

    However, no legal standing is going to get the US out of the clusterfuck that is the moral stain of torture. We need to accept several members of the Bush administration and perhaps Bush himself will be up on war crimes sometime somewhere. Let them explain themselves and let the chips fall where they may. If they're tried and found guilty, so be it, if not, that's fine too.

  • mark||

    and personally, I'd be more ok with tactical nuclear strikes into Afghanistan than the bullshit invasion of another country which had nothing to do with the actual attacks of 9/11.

    How does the US look knowing that the people who enabled the attacks in the first place are stronger than ever and we've been wasting our time in another war that looked like a personal vendetta by Bush against Saddam because Bush was offended that Saddam tried to hire hit men to go after the Bushes after the first gulf war.

    In war, you target your enemy, not some random asshole.

  • ||

    There are mechanisms for suspending the Constitution, and unless and until the president goes through those steps, the constitution applies.

    Which part of my post @ 10:36 are you arguing with, Mark?

  • ||

    How does the US look knowing that the people who enabled the attacks in the first place are stronger than ever

    AQ circa 2009, unable to mount any operations outside of Afghanistan and Pakistan, is stronger than AQ circa 2001? Really?

  • ||

    There are mechanisms for suspending the Constitution, and unless and until the president goes through those steps, the constitution applies. To sit around saying that, 'well if I'm scared enough, the we can scrap all your civil liberties is utter poppycock'. Get me a frakking state of emergency and then all the legal reasoning would have a leg to stand on.

    I'm with you on that. I think the problem is that we havn't had martial law in this country since ... heck, I dunno, the War of 1812? If ever?

    If there actually was an "invasion or insurrection" level of bombings going on, that would obviously be what would have to happen. That would be the correct procedure to give the president the power to suspend search and seizure, press freedoms, habeas corpus, etc.

    There was maybe a couple of months in late 2001 when, IF more terrorist attacks had occured of 9/11 scale, that might have actually happened.

    Fortunately, there were no further attacks.

  • ||

    Er, I should say it's not a "problem" that we havn't had martial law. It's just the fact that it hasn't been done means that there was a lot of floundering to figure out what the president could do with respect to terrorism short of imposing it. Sort of trying to see if there was a way to give the president emergency-like powers without actually having to suspend the constitution. Inevitably, a dangerous precedent.

  • ||

    Mark - Where in the Constitution does it lay out the mechanism required for the Executive to suspend the Constitution? (Hint: It's not in there... the closest precedent is probably a Constitutional Convention or the Amendment process.)

    Has the Constitution been repeatedly ignored by the Executive branch at various times of crisis throughout the nation's history? Yes.

    Has there been a process/mechanism followed? Not really. Sometimes there's been a regal nod in that direction for appearance's sake, but for the most part the answer is no.

    Folks who argue for observing a "due process" in scrapping the rule of law usually do so because they want to continue to revere our bloodiest presidents (like Lincoln, FDR, etc.) while pretending to be appalled by far lesser transgressions by more recent presidents.

    Assassination wasn't taken off the table until Carter, and you seriously believe that "several members of the Bush administration and perhaps Bush himself will be up on war crimes sometime somewhere"?

    You actually believe that "the moral stain of torture" is something new or unique to the Bush administration? Nations, including the U.S., have unofficially sanctioned torture while officially decrying it for most of human history.

    The things spelled out in the Bush administration memos don't even rise to the level of torture (including waterboarding, which is generally considered the worst tactic sanctioned).

    On the other hand, there have been detainees who were tortured - some to death - that clearly go beyond the sanctions of the Bush administration. Again, I think it's going to be hard to establish official sanction of those actions, so hauling U.S. officials to the dock is going to be tough.

    Just to be clear: I'm not arguing that suspending the Consititution or individual rights is ever a good idea, just that it's not new - or even particularly egregious - during the Bush administration.

  • ||

    """Ergo, military responses to terrorists are not subject to the Fourth Amendment."""

    It goes way beyong that.

    We are screwed if government decided to make the war on drug a narco-terrorist war. For pro-drug warriors, that should be the next step. The President wouldn't need Congress since defending the country from terrorist is an executive function not banned under Article II. If Yoo is right.

  • ||

    Well, I suspect what he was referring to was restrictions on revealing information that might be useful to the enemy. The kind of stuff that they did during World War Two where the press would refrain from discussing military preparations or locations of battles and so forth.
    At least, that's what I think could be legally justified.


    Did John Yoo say that only those kinds of restrictions would be allowed? I think its already illegal to broadcast classified information in a way that jeopardizes National security.

    You say that in hindsight. But at the time, anything looked possible. For all we knew, there might have been hundreds of sleeper cells with pre-planned attacks ready to be carried out. There was a real fear that the WTV would turn out to be just the first wave.

    It seemed plausible that there would be more terrorist attacks in the near future, but not "WTC style bombings occurring every other week or so".

    The tactic of hijacking planes and flying them into buildings obviously could not be repeated. And you need some pretty serious firepower to commit an atrocity of similar scale if you can't get your hands on airplanes.

    So I thought it would be possible that things might be sort of like in Israel during the first Intifada, with a few smaller bombings and shootings. But I didn't think terrorists were likely to bring down the Empire State building or Sears Towers any time soon.

  • ||

    "I think its already illegal to broadcast classified information in a way that jeopardizes National security."

    Not exactly... even the Pentagon Papers case, in which Nixon tried to claim that the reporters were guilty of felony treason under the Espionage Act, ended up with a Supreme Court decision that more rather than less supported freedom of the press in these instances.

  • ||

    Not exactly... even the Pentagon Papers case, in which Nixon tried to claim that the reporters were guilty of felony treason under the Espionage Act, ended up with a Supreme Court decision that more rather than less supported freedom of the press in these instances.

    According to wikipedia, the holding in that case was:

    In order to exercise prior restraint, the Government must show sufficient evidence that the publication would cause a "grave and irreparable" danger.



    So that would allow very few acts of prior restraint. But things like publishing the details and dates of planned troop movements would seem to qualify.

  • ||

    """"But I didn't think terrorists were likely to bring down the Empire State building or Sears Towers any time soon.""""

    But they could one day, which is why the war on terror will last forever or at least as long as the government desires. Even if AQ quit today, it wouldn't matter. The boogeyman will come and go as the government feels the need.

  • ||

    "So that would allow very few acts of prior restraint. But things like publishing the details and dates of planned troop movements would seem to qualify."

    BG, Supreme Court has even said that prior restraint should apply to troop movements. But prior restrain is a far cry from prosecution for treason!

    When has anyone ever actually been punished for that? Has the U.S. government ever successfully tried and convicted a journalist for espionage for something of this sort?

    The closest they got was the Pentagon Papers case, and that is considered to be a win for the press in the ongoing cage match series I like to think of as UFC INFINITUM: 1st Amendment Versus Executive Branch...

    I mean, the worst thing that's happened that comes to memory was Geraldo Rivera being "volun-told" to go home for trying to detail the 101st Airborne's general vicinity and upcoming travel itinerary in the sands of Iraq for the world to see.

    Apparently, even being a total bone-head like that won't get you slapped in irons.

    Frankly, I'll take the odds of getting away scot-free for treasonously publishing troop movements in the NY Times, even if I honestly intended to harm the war effort and the prosecution can prove intent, against the odds of being wrongly convicted for sitting on my couch and bothering no one when the local cops decide to dress up like ninjas and mistakenly kick in my door to get a "known drug dealer"...

    How about you?

  • DannyK||

    If anything, the memos illustrate how close we were to actually having martial law imposed at that moment.

    Um, wasn't the US in martial law for seven years? If the 4th Amendment is suspended and the military can do whatever it likes at home, as long as it's fighting terror, then that's martial law by definition. They just didn't tell anyone about it.

    The govt didn't do that much with it, as least not that we know, but they could have. I wouldn't assume that all the "dark side stuff" has come out in the open yet, either.

    The bigger question for me is, how can we keep this from becoming a precedent that every President can get his guys to suspend bits of the Constitution when things get tense?

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