A big loophole

At the risk of repeating myself, it all comes back to 9/11. That day has been used to justify terrorizing the world and dismantling American democracy. Here is yet another example, and this is a good one: Administration Asserts No Fourth Amendment for Domestic Military Operations.

You might need to let that soak in for a sec.

The fourth amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Some lawyers in the Bush Administration concluded that this amendment does not apply to ‘domestic military operations’.

… 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). (emphasis added)

Don’t you just love the language? ‘Our Office recently concluded’? Is that like finding a twenty in your pocket? Whoa, where did this come from? Cool. I guess today is my lucky day.

Anyway, I guess theoretically this would be acceptable to some people since we don’t have any domestic military operations going on right now, right? Guess what. We do. The following excerpts are from a DOJ document entitled Legal Authorities Supporting the Activities of the National Security Agency Described by the President. You can download it (pdf) from this page. Emphasis mine.

On September 11, 2001, the al Qaeda terrorist network launched the deadliest foreign attack on American soil in history. Al Qaeda’s leadership repeatedly has pledged to attack the United States again at a time of its choosing, and these terrorist organizations continue to pose a grave threat to the United States. In response to the September 11th attacks and the continuing threat, the President, with broad congressional approval, has acted to protect the Nation from another terrorist attack. In the immediate aftermath of September 11th, the President promised that “[w]e will direct every resource at our command—every means of diplomacy, every tool of intelligence, every tool of law enforcement, every financial influence, and every weapon of war—to the destruction of and to the defeat of the global terrorist network.” President Bush Address to a Joint Session of Congress (Sept. 20, 2001). The NSA activities are an indispensable aspect of this defense of the Nation. By targeting the international communications into and out of the United States of persons reasonably believed to be linked to al Qaeda, these activities provide the United States with an early warning system to help avert the next attack. For the following reasons, the NSA activities are lawful and consistent with civil liberties.

You see? He promised to protect us using every tool of intelligence. He’s just fulfilling his promises.

The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States.

And so on.

The general thrust being that Congress authorized broad executive powers in the AUMF (Authorized Use of Military Force) legislation, which was passed just weeks after 9/11. This legislation justifies surveillance to prevent another terrorist attack, and to make a long story short, since the internet has made us a borderless world and terrorists can be anywhere, basically anything goes. Back to the EFF link:

In short, it appears that the Administration may view NSA domestic surveillance, including the surveillance of millions of ordinary Americans detailed in EFF’s Hepting case, as a “domestic military operation.” If so, this Yoo memo would blow a loophole in the Fourth Amendment big enough to fit all of our everyday telephone calls, web searches, instant messages and emails through.

That’s the mother of all loopholes, right there. And it’s all justified because al Qaeda attacked us on 9/11. Al Qaeda, an organization created by the CIA.

Believe me, the very last thing this administration wants is for people to question 9/11. Because once you see through that charade, the whole thing falls apart and it becomes painfully obvious what’s really going on. But more and more people have questioned 9/11, and they are not all kooky conspiracy theorists, no matter how desperately some people want to think so. Each person has to ask himself: Do I really want to be the last to know what’s going on? For your sake, I hope not.

Related: Glenn Greenwald parses how AG Michael Mukasey recently blamed FISA’s warrant requirement for our intelligence people missing an important phone call from the terrorists, an intercept that he claims could have prevented 3,000 deaths on 9/11. Except nobody knows what the hell he’s talking about and by the way, even if it were true FISA would not have posed any barrier to intercepting the call. It’s just another sob story designed to justify and cover up their crimes, which are legion. In this case, he’s not doing a very good job.


malcontent said...

You left out the best part! That is, why is this so darn skeeery?

No oversight. None. No one can even admit details of these existing operations for fear of the rule of law interfering, a.k.a. letting the terrorists win.

If there is one lesson of power that history can lend insight to, it is that power perverts sensibilities and abuse is inevitable. Whether that means more panty sniffers like J. Edgar Hoover or megalomaniacs like Hitler or greed monsters like Jeffrey Skilling, the transmogrification will not be denied.

Transparency in government used to be an important safeguard but now it is feared and actively shunned.

A. Peasant said...

Yes, it almost goes without saying that there's no oversight. Sadly.

legal mumbo jumbo

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