Phillip Carter, now blogging over at the Washington Post, discovers an especially rancid paragraph from the John Yoo torture memo released last week claiming that whatever 4th Amendment protections we have left no longer apply when it's the U.S. military doing the searching and seizing:
Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for military necessity, 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). [italics in original]
Carter tries to figure out what it all means:
It could refer to the National Security Agency's now-well-publicized surveillance program—a program grounded in many of the same constitutional theories of presidential power that underlie the torture memoranda. It could also refer to deployment of federal military forces within the United States and action they could take against U.S. citizens, such as hypothetically searching someone's bag for suspected explosives at an airport. (It should be noted that most soldiers deployed for homeland security are state National Guard soldiers, who for complex reasons are subject to different legal rules than federal soldiers.) Or the footnote could refer to clandestine domestic military operations conducted by the Defense Department and its intelligence components—things we can only guess at.
UPDATE: Senior Editor Jacob Sullum was all over this last week. Excerpt:
That position provides a legal rationale not just for the National Security Agency's warrantless surveillance of international communications involving people in the U.S. but for monitoring of purely domestic phone calls and email as well. Indeed, it justifies warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.
The Justice Department has repudiated both Yoo's March 2003 memo and his August 2002 memo addressing torture. But it's not clear to what extent it still concurs with Yoo's sweeping view of executive power. During his confirmation hearings, Attorney General Michael Mukasey conceded that the president is bound to obey statutes regulating the treatment of military prisoners. But he dodged the question of whether Congress has the authority to regulate domestic surveillance conducted in the name of national security. No one thought to ask him whether the president is bound to obey the Fourth Amendment, presumably because no one imagined that even this administration would claim otherwise. Now we know better.