In an October 23, 2001, Office of Legal Counsel memo released today, the Bush Administration concluded that "the Fourth Amendment does not apply to domestic military operations," including "intercepting electronic or wireless communications" by "employing surveillance methods more powerful and sophisticated than those available to law enforcement agencies." See Authority for Use of Military Force to Combat Terrorist Activities Within the United States at pp. 4, 18, and 25 (emphasis original).
When news of this memo first surfaced in a footnote to another memo, we wondered if it meant that the Administration's lawyers advised that the National Security Agency (a component of the military) could spy on Americans with impunity and face no Fourth Amendment claim.
Turns out that the Bush Administration did think it could spy on Americans in the U.S. without regard to the Constitution.
We had suspected as much, but the confirmation is still chilling. Our suspicions were raised back in 2006 when the DOJ asserted that "that warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF" and that "the NSA activities fit squarely within the sweeping terms of the AUMF. The use of signals intelligence to identify and pinpoint the enemy is a traditional component of wartime military operations." As the DOJ saw it, "In the present conflict, unlike in the Korean War, the battlefield was brought to the United States ..." Thus, we were deeply concerned that the "domestic military operations" authorized by the OLC memo included domestic surveillance of Americans, without regard to their constitutional rights.
Now we know. The recently released October 23, 2001 Memo confirms a disregard for the Constitution that was only hinted at before. In finding the Bill of Rights over-ridden by the President's authority to use military force, it also asserts that the "use of force ... might include ... employing surveillance methods more powerful and sophisticated than those available to law enforcement agencies."(p. 4) and that domestic "[m]ilitary action might encompass ... intercepting electronic or wireless communications." (p. 18). The opinion's sweeping scope was not limited to terrorists, asserting the "Government's ability to 'search' and 'seize' even innocent United States persons," (p. 31, emphasis added), and that it was not "necessary that the military forces on our soil be foreign." (p. 27, emphasis original).
The October 23, 2001 Memo did not limit itself to the Fourth Amendment, asserting that the President's war powers superseded the "takings" clause of the Fifth Amendment (p. 33), and that "First Amendment speech and press rights may also be subordinated to the overriding need to wage a war successfully." (p. 24).
This legal opinion, written by John Yoo and Robert Delahunty, remained in effect until October 6, 2008, when the OLC issued a memo recommending that "caution be exercised before relying in any respect on the 10/23/01 memorandum."
Thus, between October 23, 2001, and October 6, 2008, resting on legal analysis that they now admit was "doubtful," the OLC took the unqualified position that the Fourth Amendment did not apply to domestic wiretapping conducted by a military entity, such as the NSA. Chilling indeed.