Washington - For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.

    That view was expressed in a Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

    The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

    The 37-page memo has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

    "Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

    Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency's Terrorist Surveillance Program, or TSP.

    That program intercepted phone calls and e-mails on U.S. soil, bypassing the normal legal requirement that such eavesdropping be authorized by a secret federal court. The program began after the Sept. 11 terrorist attacks and continued until Jan. 17, 2007, when the White House resumed seeking surveillance warrants from the Foreign Intelligence Surveillance Court.

    White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the Terrorist Surveillance Program.

    "TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the TSP was revealed by The New York Times.

    The October memo was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

    The government itself related the October memo to the TSP program when it included it on a list of documents that were responsive to the ACLU's request for records from the program. It refused to hand them over.

    Late Wednesday, Justice Department spokesman Brian Roehrkasse said department officials believe the October 2001 memo was not about the eavesdropping program, but he did not explain why it was included on requests for documents linked to the TSP.

    Earlier, Roehrkasse said the statement in the footnote does not reflect the current view of the department's Office of Legal Counsel.

    "We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

    Roehrkasse would not say exactly when that legal opinion was overturned internally. But he pointed to the January 2006 white paper.

    "The white paper does not suggest in any way that the Fourth Amendment does not apply to domestic military activities, and that is not the position of the Office of Legal Counsel," he said.

    Suzanne Spaulding, a national security law expert and former assistant general counsel at the CIA, said she found the Fourth Amendment reference in the footnote troubling, but added: "To know (the Justice Department) no longer thinks this is a legitimate statement is reassuring."

    "The recent disclosures underscore the Bush administration's extraordinarily sweeping conception of executive power," said Jameel Jaffer, director of the ACLU's National Security Project. "The administration's lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law."

    "Each time one of these memos comes out you have to come up with a more extreme way to characterize it," Jaffer said.

    The ACLU is challenging in court the government's withholding of the October 2001 memo.

 

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    Go to Original

    Memo Sheds New Light on Torture Issue

    By David Johnston and Scott Shane

    The New York Times

    Thursday 03 April 2008

    Washington - A newly disclosed Justice Department legal memorandum, written in March 2003 and authorizing the military's use of extremely harsh interrogation techniques, offers what could be a revealing clue in an unsolved mystery: What responsibility did top Pentagon and Bush administration officials have for abuses committed by American troops at the Abu Ghraib prison in Iraq and in Afghanistan; Guantánamo Bay, Cuba; and elsewhere?

    Some legal experts and advocates said Wednesday that the document, written the month that the United States invaded Iraq, adds to evidence that the abuse of prisoners in military custody may have involved signals from higher officials and not just irresponsible actions by low-level personnel.

    The opinion was written by John C. Yoo of the Office of Legal Counsel, the executive branch's highest authority on the interpretation of the law. It told the Pentagon's senior leadership that inflicting pain would not be considered torture unless it caused "death, organ failure or permanent damage," and it is the most fully developed legal justification that has yet come to light for inflicting physical and mental pressure on suspects.

    While resembling an August 2002 memorandum drafted largely by Mr. Yoo, the March 2003 opinion went further, arguing more explicitly that the president's war powers could trump the law against torture, which it said could not constitutionally be enforced if it interfered with the commander in chief's orders.

    Scott L. Silliman, head of the Center on Law, Ethics and National Security at Duke University and a former Air Force lawyer, said he did not believe that the 2003 memorandum directly caused mistreatment. But Mr. Silliman added, "The memo helped to build a culture that, in the absence of leadership from the highest ranks of the Pentagon, allowed the abuses at Abu Ghraib and elsewhere."

    Because opinions issued by the Office of Legal Counsel are "binding on the Defense Department," Mr. Silliman said, Mr. Yoo's opinion effectively sidelined military lawyers who strongly opposed harsh interrogation methods.

    In an e-mail message, Mr. Yoo, now a law professor at the University of California, Berkeley, rejected the idea that his memorandum helped create a culture for mistreatment.

    "The 'culture of abuse' theory has no reliable evidence to support it," Mr. Yoo wrote. He noted that several military investigations had found that what he called "the appalling abuses" at Abu Ghraib were not authorized by any military policy.

    "While each case of abuse is regrettable," Mr. Yoo wrote, "it is not possible for a large organization charged with protecting the national security, under extraordinary pressure, to perform its mission error-free."

    Top Pentagon officials including Donald H. Rumsfeld, the former defense secretary, have said they never condoned mistreatment of prisoners. But the role played by senior military and civilian officials at the Pentagon has never been fully explained, and it is not clear how the legal memorandum, which was addressed to William Haynes, then the top Pentagon lawyer, influenced interrogations.

    Several Democratic lawmakers asserted on Wednesday that the memorandum led directly to the abuses of detainees at Abu Ghraib, although the document specifies that it applies only to "unlawful combatants," a label that would not apply to the largely Iraqi population captured during the Iraq war.

    The memorandum did apply to all unlawful combatants detained outside the United States, at a time when the Pentagon was struggling with the rules for interrogations of detainees at Guantánamo Bay and in other places, like Afghanistan.

    William C. Banks, a specialist on national security law at Syracuse University, said that the memorandum shed critical light on the Bush administration but that it was "far fetched" to think it might be used to overturn convictions of soldiers for abuse at Abu Ghraib or elsewhere.

    The document was made public on Tuesday after it was declassified in response to a request by the American Civil Liberties Union under the Freedom of Information Act.

    Both the August 2002 and March 2003 memorandums were formally withdrawn by the Justice Department in 2004, after Mr. Yoo's successors at the Office of Legal Counsel concluded that they went too far.

    Jonathan Hafetz, a lawyer representing Ali al-Marri, a Qatar citizen arrested in the United States after the Sept. 11 attacks, said he believed that the March 2003 opinion explained why his client was removed from the criminal justice system and placed in a military jail in Charleston, S.C., in June 2003.

    "I think they moved him to the military system to be able to use the harsh techniques blessed in the Yoo memo," said Mr. Hafetz, of the Brennan Center for Justice.

    Mr. Marri said he was subjected to cold, shackled in uncomfortable positions, deprived of sleep and otherwise mistreated.

    Congressional Democrats used the 2003 memorandum on Wednesday to renew their criticism of the administration for policies that Senator Patrick J. Leahy of Vermont, chairman of the Judiciary Committee, said threatened "our country's status as a beacon of human rights."

    Senator Edward M. Kennedy, Democrat of Massachusetts, said the memorandum showed that the administration "adopted arguments that could be used by other nations to try to justify the torture of American troops."

    Both senators called for the release of other Justice Department opinions on interrogation. At least two major ones written in May 2005 by Steven G. Bradbury, the acting head of the Office of Legal Counsel, to justify harsh methods remain secret.

    David B. Rivkin, a former White House and Justice Department lawyer in the Reagan and first Bush administrations, said that the wording of the 2003 opinion might be "overly broad," but that legal advisers like Mr. Yoo set out only what might be done legally, not what should be done.

    "In a post-Sept. 11 environment, the lawyers tried to give decision makers broad legal flexibility," Mr. Rivkin said. "I don't want to substitute my judgment for John Yoo's as I sit in a comfortable office on a spring day in 2008."

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