Wednesday, April 02, 2008

This Amendment need not apply?

On Monday, in a response to a FOIA request by the American Civil Liberties Union, the Acting DoD General Counsel declassified a March 14, 2003 memorandum authored by then-Deputy Assistant Attorney General John C. Yoo (formerly of the Department of Justice Office of Legal Counsel and now a professor at Berkeley's Boalt Hall School of Law). Professor Yoo is well-known as a proponent of the "unitary executive" theory of Presidential power, and his memorandum addresses that theory in the context of the constraints, or lack of constraints, on the interrogation techniques that can be employed by Defense Department personnel when questioning persons deemed unlawful combatants.

As is the case with many legal documents, it's worth paying close attention to the footnotes. In particular, footnote 10 of the Yoo Memorandum contains a tantalizing reference to yet another memorandum, dated October 23, 2001, and summarizes its key conclusion thusly: in the context of the Global War on Terror,

... our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

(emphasis in original)

There are, of course, two questions that flow naturally from Professor Yoo's assertion: (1) how far does this doctrine extend, and (2) has anyone told CAAF?

The March 14, 2003 memorandum can be found online here: [PDF]


Berbice said...

jut wondering, has anyone heard any developments on the cases from usacil involving mills the dna examiner who gundecked his examinations. I knoW US V LUKE is at nmcca and eckard was put down by the army court. anyhting on luke and the other cases?

John O'Connor said...

Two things:

1. I think it's important to be careful in discussing the term "unitary executive" because it means different things to different people. "Unitary executive" does not necessarily equate to broad executive powers. As Justice Alito observed (correctly, in my view) the more conventional view of the concept of the "unitary executive" is that WHATEVER executive powers exist (broad, narrow, or otherwise), they are vested in the President, and executive agencies therefore are under the President's control in terms of policies. So, for instance, in theory, you wouldn't have two appellate government shops taking different positions on appealability of an Article 62 decision, or one appellate government shop challenging in court its own JAG's hiring decisions. That conception of the unitary executive, in my mind, is perfectly respectable, and sometimes gets a bad name by being associated with a use of the term that equates to broad (perhaps overly broad) conceptions of executive power.

2. I think you'd need to see the 2001 memo in order to have the context on the view that the Fourth Amendment doesn't apply to domestic military operations. In terms of actual military operations, such as repelling an invasion, I think we all would agree that there is no "search" that implicates the Fourth Amendment, even if the military operation involves busiting into somebody's house. I would be surprised (or, come to think of it, maybe I wouldn't) if the memo says that any action by the military is unrestrained by the Fourth Amendment (such as searching a barracks room for evidentiary purposes). I should note, though, that it was a respectable position sixty years ago that the Bill of Rights didn't apply to the military, though I haven't heard many proponents of that view more recently (and the Supreme Court appears to disagree).

Anonymous said...

Does the A.C.L.U. want to take everything classified and publish it?

Christopher Mathews said...

Does the A.C.L.U. want to take everything classified and publish it?

Anonymous, you'd have to ask the ACLU that question.

As I noted on the front page, however, this particular document was declassified by the DoD.

Christopher Mathews said...

JO'C, I share your belief that seeing the entire October 23 memo would be very interesting.

Anonymous said...

I am wondering what about this memo makes it subject to any level of classification, let alone secret/noforn.

I am also wondering what changed from five years ago to today that altered the justification, rendering the memo unclassified.

As far as the snarky comment on footnote 10, john o'connor nailed it in his paragraph 2.

Christopher Mathews said...

J O'C, perhaps we'll get to see that October 23, 2001 memo some day. House Judiciary Chairman John Conyers, in a letter to Attorney General Michael Mukasey, is again asking for its public release.

CAAFlog said...

In a new piece for the New Republic, Benjamin Wittes provides an answer to the problem that JO'C cites. Wittes refers to the "Yoonitary" executive theory, which might be useful distinguished from the unitary executive theory.

Wittes' writing and analysis on national security legal matters is fresh and unconstrained by the dogma of either partisan side. I sometimes disagree with him. For example, one way in which he has departed from civil libertarian national security dogma is that he does not object to military commissions for terrorism suspects as a matter of principle, though he has come to object to the military commission system's implementation. But regardless of whether I agree or disagree with his views, I always find them insightful and worthy of close study and consideration.