Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.
Testing the Constitution?
Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.
Cheney, of course; he seems to have believed anything he decided to do would be legal. Surely John Yoo could have written him a memo declaring the actions constitutional.
Mr. Bush ultimately decided against the proposal to use military force.
For whatever reason, he made the right decision.
A decision to dispatch troops into the streets to make arrests would be nearly unprecedented in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.
The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.
In the discussions, Mr. Cheney and others cited an Oct. 23, 2001, memorandum from the Justice Department that, using a broad interpretation of presidential authority, argued that the domestic use of the military against Al Qaeda would be legal because it served a national security, rather than a law enforcement, purpose.
A broad interpretation? Isn't that akin to judicial activism?