Deputy Assistant Attorney General advised Pentagon in 2001 that military may ignore Bill of Rights on U.S. soil

OLC Authorized Pentagon to Ignore Bill of Rights On U.S. Soil

The Washington Independent | By Daphne Eviatar | 3/2/09

In an October 2001 memo released on Monday, then-Deputy Assistant Attorney General in the Office of Legal Counsel John Yoo advised the Pentagon’s top lawyer that the president may not only deploy the military within the United States, but it may ignore the Bill of Rights in the process of doing so. Yoo and special counsel Robert Delahunty wrote to Defense Department general counsel William Haynes that the president has “ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States,” and that the use of military force “need not follow the exact procedures that govern law enforcement operations.”

Although the Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures on U.S. soil, Yoo concluded that “[a]lthough the situation is novel … we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probably cause or to obtain a warrant.”

This memo appears to have formed the legal basis for the Bush administration’s domestic warrantless wiretapping program, which at least one federal judge has since concluded was unconstitutional.

Jameel Jaffer, Director of the ACLU National Security Project, reads it as extending beyond the Fourth Amendment, however.

“This takes the position that the Bill of Rights does not constrain the military in its operations inside the United States,” Jaffer told me this afternoon. “The president can disregard the constitution during wartime, not just on foreign battlefields, but inside the United States. We had not seen a memo saying that before.”

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