Bush-Era Debate: Using G.I.’s in U.S.

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?

Justice Says CIA Destroyed 92 Tapes

This is how Bush and Cheney believed in: In one memo, Department of Justice lawyers said the president could order the U.S. military to mobilize domestically to combat terrorism, in contravention of laws that generally prohibit such use of the military on U.S. soil. Other memos described the president's power to conduct surveillance without court warrants.

Bush's lackeys in effect said he could violate the constitution, deploy the military in the homeland, and ignore the courts. Nice.

Many of the legal opinions were written by John C. Yoo, a former official in the Justice Department's Office of Legal Counsel, and now a professor at the University of California, Berkeley. The Obama administration is defending Mr. Yoo and other former Bush officials who are being sued over their national-security legal work. In an October 2001 memo, Mr. Yoo asserted that "the president has both the constitutional and statutory authority to use the armed forces in military operations, against terrorists within the United States." He added that such a move wouldn't be subject to Fourth Amendment restrictions on unreasonable searches and seizures so long as they are acting in a military, not law-enforcement, function.

Defending the past administration, the current administration is obviously trying to uphold the principle that government officials should not be prosecuted. But such sweeping interpretation of what is legal is quite troublesome.

The government also released memos from the final months of the Bush administration that renounced the legal reasoning of the early post-9/11 period. In one October 2008 memo, a top Justice official called earlier opinions "either incorrect or highly questionable."

Yoo was gone from government after 2003. He has also worked as a visiting scholar at the conservative think tank American Enterprise Institute since 2003.

A former Bush official involved in national-security policy took issue with the release Monday of the memos. "I think these guys want to make a show of criticizing their predecessors, but they aren't saying clearly what they would do in the same situation," said the official, who declined to be identified. "They're trying to satisfy their...base. On the other hand they're responsible for the safety of the country, so they want to keep the same options open to them."

Fair enough; seems accurate.

The Senate Intelligence Committee is preparing to expand an existing probe of the tape destruction into a broader examination of the CIA interrogation program.

It should be investigated.

Supremes OK heat

How might the Daily News of the New York Post front page look tomorrow? Supremes OK heat is my guess.

Justices Rule for Individual Gun Rights

Divided Supreme Court Strikes Down D.C. Gun Ban

By DAVID STOUT 53 minutes ago

The 5-4 ruling was the first ever to directly address the meaning of the Second Amendment’s ambiguous text, but the decision left open the possibility that less restrictive state laws were permissible.

• Text of the Decision (pdf)
• Court Weighs Right to Guns, and Its Limits (March 19)
• Reactions: McCain and Obama | Bloomberg
• Yesterday’s Decisions: Death Penalty | Oil Spill Penalty
• Comments | Times Topics: Supreme Court | Gun Control