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The John Yoo Torture Memos Released:
Marty Lederman has the breaking news over at Balkinization. Part 1 is here (39 pages), and Part II is here (42 pages). I'm printing out the memos now, and I hope to post more thoughts after I have read them.
CrazyTrain (mail):
April Fools?!?
4.1.2008 7:38pm
Oren:
Unfortunately, so long as Gilmore v. Gonzales stands (cert denied), there remains the haunting prospect that American citizens can be bound by a law that they cannot even read. How we allowed our Republic to degenerate to this state is a sad story indeed.
4.1.2008 7:50pm
Zathras (mail):
From footnote 10 of the first memo:

...our Office has recently concluded that the Fourth Amendment has no application no domestic military operations....

What a hack. And an extremely dangerous one too.
4.1.2008 8:03pm
ChrisIowa (mail):

I'm printing out the memos now, and I hope to post more thoughts after I have read them.


Your Printing them? Whatever happened to the paperless society?
4.1.2008 8:12pm
CrazyTrain (mail):
Zathras, I see your footnote 10, and refer you to footnote 11.

Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during
wartime:


So, you are obviously taking that footnote out of context. It's not that the Fourth Amendment (a part of the Constitution last time I checked) "does not 'apply'", it's that it has "no application" for "domestic military operations." (Emphasis original). Surely, you see the difference. In a time of war, and at least outside of the US, the Fourth Amendment "has application" and in fact "'applies'" (scare quotes original). Get it?
4.1.2008 8:19pm
Oren:
It's not that the Fourth Amendment (a part of the Constitution last time I checked) "does not 'apply'", it's that it has "no application" for "domestic military operations."
This interpretation is, like much of Yoo's work at the OLPC, indefensible.
4.1.2008 8:30pm
Mike& (mail):
Why read them before commenting? Not like anyone else will...
4.1.2008 8:33pm
Wrinkle-Free Pants (mail):
So Yoo is saying no Bivens claims for military personnel, right?
4.1.2008 8:36pm
Brian K (mail):
Why read them before commenting? Not like anyone else will...

so true.
4.1.2008 8:37pm
Zathras (mail):
So Crazy Train, it's not relevant that one of the central motives for creating the 4th Amendment was the fact that British soldiers in military operations routinely searched through and seized property of Americans? That's the only conclusion if you think the 4th Amendment does not apply to domestic military operations.
4.1.2008 8:48pm
Mike& (mail):
I have an idea for a new game. We'll call it "John Yoo's Severe Pain Game."

The rules are simple. Name something that you think would cause severe pain, but that would not, according to John Yoo, actually be severe pain. Read the discussion on pages 38-39 before playing, please.

I'll start:


Sodomizing someone with a baton;
Slicing someone on the arms with a knife;
Hitting someone in the head with a baseball bat (just not hard enough to kill them or give them brain damage);
Hitting someone in the shins with a stick;



Your turn...
4.1.2008 8:49pm
CrazyTrain (mail):
Zathras -- No, because 9/11 changed everything. pwn3d.
4.1.2008 8:51pm
George Weiss (mail) (www):
zathras-

the footnote is disturbing- but it really has no relevance to the issue of the memos-the legality of torture techniques for 'unlawful combatant' aliens outside the US
4.1.2008 9:10pm
Scotts (mail):

It's not that the Fourth Amendment (a part of the Constitution last time I checked) "does not 'apply'", it's that it has "no application" for "domestic military operations."


This interpretation is, like much of Yoo's work at the OLPC, indefensible.



I think that was the point, Oren.
4.1.2008 9:10pm
Observer:
Mike: Fortunately, for purposes of making a legal determination of the meaning of severe pain, Professor Yoo resorts to what statutes and cases say are severe pain, rather than on what he personally thinks should be severe pain. Perhaps you should consider this approach as well.
4.1.2008 9:10pm
Asher Steinberg (mail):
Mike&: Cooking enemy combatants in an oven for a few minutes, Hansel and Gretel style.

I have to say, the discussion of mental health is just hilarious. Not only does he say that as long as you didn't intend to cause profound mental harm, you have a 'complete defense' to a charge of torture, not only does he claim that mind-altering drugs are legal as long as they're not too mind-altering, he further protects would-be torturers with stuff like this:

By requiring that the procedures and the drugs create a profound disruption, the statute requires more than that the acts "forcibly separate" or "rend" the senses or personality. Those acts must penetrate to the core of an individual's ability to perceive the world around him, substantially interfering with his cognitive abilities, or fundamentally alter his personality.

Surprisingly, he does allow that rendering enemy combatants suicidal would count as profound disruption:

we think that pushing someone to the brink of suicide, particularly where the person comes from a culture with strong taboos against suicide [if they come from a culture without such tabooos, it's okay??], and it is evidenced by acts of self-mutilation, would be a sufficient disruption of the personality to constitute a "profound disruption."

How generous!
4.1.2008 9:11pm
Zathras (mail):
George, unfortunately the topic of the blank check on the 4th Amendment was central to another memo, which ASAIK has not been released. I'd love to read that one.

Crazy Train, this is my first burn for today, and it happened this late--pretty much a record for me on April Fool's Day.
4.1.2008 9:22pm
Mike& (mail):
Mike: Fortunately, for purposes of making a legal determination of the meaning of severe pain, Professor Yoo resorts to what statutes and cases say are severe pain, rather than on what he personally thinks should be severe pain. Perhaps you should consider this approach as well.



Please cite those relevant cases and statutes for me. I read that memo and didn't see any.

Maybe you read a different memo? Or like all too many commenters, you didn't read the memo at all?
4.1.2008 9:23pm
George Weiss (mail) (www):
the double talk of the administration is what really weakens their case i think:

when he interprets, 18 U.S.c. §§ 234G-2340A (the anti torture statute) he notes that it only applies to place outside the US. of course, according to them, Gitmo is outside the us for this purpose.

--But for habues purposes-as we've heard for the last 8 years-its not.

so which one is gitmo-inside or outside-(inside when it suits me and outside when its not doesn't draw you lots of credibility)


of course then when intrepreting 2441 (war crimes act-witch applies everywhere) we are told that that statute doesn't apply (because its an enforcement of hague and geneva-which we are told don't apply to 'unlawful combatants'

--but we are told that terrorists don't need trials because they are combatants-just like the prisoners caught during WWII who never even thought to ask for trial

so which one is it? are they 'unlawfuls' who need to be identified but need not be treated a certain way-or are they soldiers-who need no trial but must be treated a certain way
4.1.2008 9:28pm
OrinKerr:
So Crazy Train, it's not relevant that one of the central motives for creating the 4th Amendment was the fact that British soldiers in military operations routinely searched through and seized property of Americans?

I have never heard of this theory. Evidence?
4.1.2008 9:30pm
George Weiss (mail) (www):
shoot thats backwards-were told that for the purpose of 2340- gitmo is in the US and thus it deosnt apply-

but for habeus its OUTSIDE the US
4.1.2008 9:30pm
Wrinkle-Free Pants (mail):
I have never heard of this theory. Evidence?

I take it this is a joke. But, if it's correct, then wouldn't military personnel have a right to Bivens claims for destruction of their property, or bad dental care received in service, etc.? But they don't. Military personnel can't even sue if they're given LSD against their will. I didn't mean to be facetious, though I am still digesting the memo.
4.1.2008 9:35pm
Chris Hundt (www):
Regarding the discussion between Mike and Observe as to whether what constitutes "severe pain," there is the part on pp. 28-29 where he discusses a statute regarding medical care. It seems to me that the claim is that since an unrelated statute (possibly) implies that a "prudent layperson...could reasonably expect" severe pain to be a symptom of something that, absent, medical care, may lead to a person's health being "(i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction ofany bodily organ or part," the definition of severe pain should require injury that meets one of (i)-(iii).

Does that seem like a stretch to anyone else?
4.1.2008 9:37pm
Mike& (mail):
I have never heard of this theory. Evidence?

I've heard it bantered about, but never examined the evidence myself, so I don't know. It's a theory, at least:


Dash's book, The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft, offers a compressed history of the 800-year struggle for individual privacy rights that ranges from the Magna Carta to writing of the Fourth Amendment. For this nation, those rights were central to the American Revolution.

The Fourth Amendment declares that people in this country have the right to be secure in their houses, persons, papers and effects from unreasonable searches and seizures. It repeals the English law of "general warrants," which had enabled British soldiers to search and seize from the American colonists -- in their homes, or from their persons -- at whim. Under the Fourth Amendment, warrants must be issued upon probable cause and then only regarding specific places to be searched, and persons or things to be seized.
4.1.2008 9:42pm
alias:
It's fine to scoff, and I'm sure that Yoo's memo provides plenty of soundbites for that. At the very least I wish people would explain their disagreement with some seriousness. The OLC was charged with telling the President where the line was, legally---i.e. just how far he could permissibly go.

It's very easy to say that we should just give everyone lots of protection for their rights, and that soldiers on the battlefield shouldn't even shoot people without a full criminal trial, that wouldn't answer the question.

If anyone has substantive criticisms of Yoo's reasoning, as opposed to "wow, he's in favor of some cruel things," I'd be interested in that. Otherwise, please just blow into a paper bag for a few minutes or head over to Kos.
4.1.2008 9:43pm
Mike& (mail):
Does that seem like a stretch to anyone else?



Yes, which is why I asked for "relevant" cases and statutes.

I'm still waiting...
4.1.2008 9:45pm
Mike& (mail):
It's very easy to say that we should just give everyone lots of protection for their rights, and that soldiers on the battlefield shouldn't even shoot people without a full criminal trial, that wouldn't answer the question.



Please show me where any of Yoo's critics have made that claim.
4.1.2008 9:48pm
Duncan Frissell (mail):
Military personnel can't even sue if they're given LSD against their will.

So I guess prisoners can't sue either (if given mind-altering drugs).
4.1.2008 9:49pm
CrazyTrain (mail):
Orin Kerr -- Evidence that British officers (I don't know if they were "military" or not) conducting unreasonable searches and conducting searches pursuant to general warrants was one of the main motivations behind the Fourth Amendment can be found in the work of Akhil Amar. I recall specifically in his article about the Fourth Amendment (I forget its title, but it is something about "reclaiming the Fourth Amendment" or whatnot). I think it is also discussed a little in his book, The Bill of Rights.

Regardless, and setting aside my sarcasm above, the idea that, and I am quoting here(!), "the Fourth Amendment has no application no domestic military operations" strikes me as so bizarre that I wish I almost cannot believe he meant that. The Fourth Amendment has "no application" -- not that searches or seizures are presumptively reasonable thereunder (which itself is absurd), but that it has "no application"! Are you f*cking kidding me? This is a "respected" legal scholar?!? This guy gets to write op-eds in supposedly liberal media (eg the LA Times), which we are supposed to read and not laugh at??

I know I am supposed to read the actual memo on the subject before prejudging it, but come on. Under this theory, the Fourth Amendment does not prevent the military from walking into my house, tearing it apart, and shooting me in the head. Seriously. And I don't think Yoo is going to say that some other portion of the Constitution would stop that either. . . .
4.1.2008 10:00pm
CrazyTrain (mail):
Military personnel can't even sue if they're given LSD against their will.

Whether you can sue, and whether you have a right are not the same things. Read the case you are referring to. No competent attorney could read that case and use it as the basis for the conclusion that the military are allowed to give LSD to people against their will. (There may be other authority for that proposition, but the case you are referring to is not it.)
4.1.2008 10:01pm
CrazyTrain (mail):
If anyone has substantive criticisms of Yoo's reasoning, as opposed to "wow, he's in favor of some cruel things," I'd be interested in that.

I hereby assert that the US military has the right to stop every fifth individual on the street and kick him in the nuts. Someone please cite a case or statute saying otherwise? If you cannot, I am right and you are wrong. Some logic.
4.1.2008 10:07pm
Oren:
If anyone has substantive criticisms of Yoo's reasoning, as opposed to "wow, he's in favor of some cruel things," I'd be interested in that. Otherwise, please just blow into a paper bag for a few minutes or head over to Kos.
It's less about the cruel things per se and more about his view that the President is not bound by such trifling things as laws duly passed by Congress (18USC2441, 18USC2340, etc . .) that forbid those cruel things. Laws are not optional.
4.1.2008 10:10pm
Duncan Frissell (mail):
So those who think at the 4th does apply to military operations within the US must also think that all those darkies seized from their masters in the states and territories then in rebellion against the lawful government of the United States totally without due process should have remained slaves until the passage of the 13th Amendment.

Since Lincoln used the war powers of the President to seize enemy property when he signed the Emancipation Proclamation and he didn't get any warrants to seize souther slaves, I guess they were SOL.
4.1.2008 10:12pm
CrazyTrain (mail):
Duncan, yes if you accept that human beings can be property, and think that Dred Scott was rightly decided, you have an arguable point. Very convincing.

Setting aside your bizarre example, the context of Yoo's statement was not limited to an all-out civil war, and using the civil war as an example is intellectual laziness.
4.1.2008 10:17pm
OrinKerr:
Wow, there are some super-weird comments here. Let me back up. As i understand it, the issue we're discussing in the comment thread is whether the Fourth Amendment applies to military operations -- a question that off the of the top of my head has never been answered by the Courts. Zathras apparently thinks the answer is that obviously the Fourth Amendment applies to the military, because, in his words:
one of the central motives for creating the 4th Amendment was the fact that British soldiers in military operations routinely searched through and seized property of Americans.
My response, entirely honestly, is that I have never heard that the Fourth Amendment was a response to military operations. General warrants in treason cases, writs of assistances in customs cases, yes. But military operations? That one is new to me, so I would like to hear the evidence that backs up the claim. Yeesh.
4.1.2008 10:19pm
OrinKerr:
CrazyTrain writes:
Regardless, and setting aside my sarcasm above, the idea that, and I am quoting here(!), "the Fourth Amendment has no application no domestic military operations" strikes me as so bizarre that I wish I almost cannot believe he meant that. The Fourth Amendment has "no application" -- not that searches or seizures are presumptively reasonable thereunder (which itself is absurd), but that it has "no application"! Are you f*cking kidding me? This is a "respected" legal scholar?!? This guy gets to write op-eds in supposedly liberal media (eg the LA Times), which we are supposed to read and not laugh at??
CT, I realize that you despise John Yoo very passionately. But can you cite a case in which the Fourth Amendment has ever in the history of the United States been applied to miltary operations? Off the top of my head, I can't.
4.1.2008 10:24pm
Duncan Frissell (mail):
Under this theory, the Fourth Amendment does not prevent the military from walking into my house, tearing it apart, and shooting me in the head. Seriously.

Sad to say but that's actually correct. If you were in Vicksburg in 1863 that might well have happened. War is Heck, isn't it?
4.1.2008 10:25pm
CrazyTrain (mail):
a question that off the of the top of my head has never been answered by the Courts

I think many of us believe there is a reason it has not been addressed -- something about the other branches of government at least trying to comply with their oath to protect and defend the Constitution (including, but not limited to, the Fourth Amendment).

I don't rely on Zathras's understanding of history to believe that the conclusion that "the Fourth Amendment has no application to domestic military operations" (emphasis original) is utterly absurd. I explained why above using an example.
4.1.2008 10:26pm
Oren:
Duncan, we were discussing the application of the 4th to military operations within the US. The EP specifically only freed the slaves in Confederate territory and did not change the status of slaves in the USA.

At any rate, Lincoln was something of a tyrant - I should hope we don't aim to emulate him.
4.1.2008 10:28pm
Oren:
Sad to say but that's actually correct. If you were in Vicksburg in 1863 that might well have happened. War is Heck, isn't it?
One hopes that it could not happen in Chicago, or at least that the military officers who allowed it to happen in Chicago would face the court martial at the end of the war.
4.1.2008 10:29pm
CrazyTrain (mail):
Orin -- I don't despise John Yoo. I don't know enough about him to despise him (I do, for example, despise Dick Cheney and George W. Bush, so I am not afraid to admit despising people).

I already addressed your question: Indeed, I cannot name a case for the proposition that the Fourth Amendment prevents the military from walking into my home in California and shooting me as I lay asleep at night (again, civil war examples just are not going to cut it as a response). I also cannot cite a case that says that the President of the United States cannot be 34 years old. I also cannot cite a case saying that impeachment trials cannot be decided by a flip of the coin. Sometimes, things don't get litigated.
4.1.2008 10:32pm
Oren:
But can you cite a case in which the Fourth Amendment has ever in the history of the United States been applied to miltary operations?
Broadly speaking, Ex Parte Milligan does just that - it requires the trial in civilian court (where the 4A must be respected) in lieu of trial by military commission.
4.1.2008 10:34pm
Oren:
Even better, Ex Parte Merryman:
I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen, except in aid of the judicial power.
4.1.2008 10:37pm
Zathras (mail):
Orin, I am not aware of any such case dealing specifically with "operations" either. This is likely because we have been fortunate enough not to have had military conduct domestic operations for almost our entire history.

However, there is certainly caselaw applying the Fourth Amendment against military actors. Soldiers have Fourth Amendment rights against searches by military as well as civilian authorities. Why this would just be limited to such searches and not applied to "operations" as well is both logically and historically inconsistent.
4.1.2008 10:42pm
OrinKerr:
CrazyTrain,

If you do not despise John Yoo, you certainly act like a stark raving mad utter lunatic when his name is mentioned.

On the substance, it seems to me that it is likely right that the Fourth Amendment does not apply to bona fide domestic military operations, just as it does not apply to foreigners outside the United States and just like it does not apply at the border. In fact, I scratch my head trying to think of *how* the Fourth Amendment would apply in a military zone. A warrant requirement before breaking into enemy headquarters? A Winston v. Lee balancing test before launching a missile? Of course, the Due Process clause would apply fully, but I scratch my head trying to figure out how Fourth Amendment concerns are relevant. I realize that to you that my understanding pretty much makes me The Devil who must be stopped to save humanity. But that's my sense of things.
4.1.2008 10:42pm
Elliot Reed (mail):
I'll play too:

Repeatedly kicking someone in the balls (but stopping before you risk permanent damage),
Shoving a thin metal rod into the urinary tract
4.1.2008 10:42pm
byomtov (mail):
But can you cite a case in which the Fourth Amendment has ever in the history of the United States been applied to miltary operations?

Stop being a law professor, Orin. CrazyTrain has it right.

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.

Where does it say, "except if the army does it?"
4.1.2008 10:44pm
OrinKerr:
However, there is certainly caselaw applying the Fourth Amendment against military actors. Soldiers have Fourth Amendment rights against searches by military as well as civilian authorities. Why this would just be limited to such searches and not applied to "operations" as well is both logically and historically inconsistent.

I don't understand this. Soldiers in peacetime can have Fourth Amendment rights in their private property if the Executive decides to let them have such rights by not requiring a waiver. And this means the Fourth Amendment regulates military operations why, exactly?
4.1.2008 10:45pm
OrinKerr:
Byomtov,

It's much worse than me being a law professor -- the problem is that I'm a bona fide Fourth Amendment expert. I gather that makes me the last person you want participating in this thread! Geez.
4.1.2008 10:47pm
Oren:
In fact, I scratch my head trying to think of *how* the Fourth Amendment would apply in a military zone. A warrant requirement before breaking into enemy headquarters? A Winston v. Lee balancing test before launching a missile? Of course, the Due Process clause would apply fully, but I scratch my head trying to figure out how Fourth Amendment concerns are relevant.
Orin, I usually follow your arguments (disagreeing when necessary) but this parade of horribles (or rather, parade of horrible straw men) has nothing whatsoever to do with the hypothetical question posed:
Under this theory, the Fourth Amendment does not prevent the military from walking into my house, tearing it apart, and shooting me in the head.
To which Duncan replied:
Sad to say but that's actually correct.
My house does not reside in a military zone. I further assert that, per Taney in Merryman, the military may not detain me in my neighborhood (recall: not a war zone) except pursuant to the judicial power.
4.1.2008 10:53pm
Wrinkle-Free Pants (mail):

My response, entirely honestly, is that I have never heard that the Fourth Amendment was a response to military operations. General warrants in treason cases, writs of assistances in customs cases, yes. But military operations? That one is new to me, so I would like to hear the evidence that backs up the claim. Yeesh.



Sorry, Orin! I assumed you were dinging John Yoo and further assumed you wouldn't be snarky unless supremely confident in your position.


No competent attorney could read that case and use it as the basis for the conclusion that the military are allowed to give LSD to people against their will.



I am competent, and I wasn't making that claim. But this is actually quite a complex argument that depends on what you think the nature of a Bivens claim is (inherent in the Fourth and Fifth Amendments vs. federal common law gap-filler for the FCTA). No Bivens claim could mean no underlying Fourth or Fifth Amendment right. That depends on your position in the rights/remedy gap debate. It's not an obvious question. As for a competent attorney who might make that argument, try Erwin Chemerinksy, in his popular Federal Courts treatise.
4.1.2008 10:55pm
Oren:
Orin, I didn't mean to be excessively snarky about the previous post. My point was that there are manifestly different concerns when the military acts in a "military zone" and when they act in a "civilian zone" where the civilian government retains control (i.e. the police and courts are operating normally).

I will grant you that the 4A does not apply in the former if you'll offer some concession as to the latter. :-)
4.1.2008 10:57pm
Asher Steinberg (mail):
Regarding the discussion between Mike and Observe as to whether what constitutes "severe pain," there is the part on pp. 28-29 where he discusses a statute regarding medical care. It seems to me that the claim is that since an unrelated statute (possibly) implies that a "prudent layperson...could reasonably expect" severe pain to be a symptom of something that, absent, medical care, may lead to a person's health being "(i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction ofany bodily organ or part," the definition of severe pain should require injury that meets one of (i)-(iii).

Does that seem like a stretch to anyone else?


It would be a huge stretch, but I don't think he's saying that. What he says is that:

"severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.

Which, relying on the phrase 'ordinarily be associated,' I take to mean that the pain has to be so great that, if it were a natural pain and not one that's being caused by interrogators, it would have to be severe that you'd think you were dying, your organs were failing, or your body functions were seriously impaired. For instance, if your chest hurts so much after interrogation that you think, "if I felt this pain out in the free world, I'd think I was having a heart attack," that counts as severe. You don't have to actually be having the heart attack. Of course, this isn't a very restrictive definition of severe pain. If I hold a torch to some enemy combatant's back, the sensation of burning he would feel isn't one that would ordinarily be associated with death, organ failure, or serious impairment of body functions (though if you do it for long enough death would result, I suppose). The same's true of electrical shocks. It's a ridiculous definition.
4.1.2008 11:00pm
CrazyTrain (mail):
On the substance, it seems to me that it is likely right that the Fourth Amendment does not apply to bona fide domestic military operations, . . . . In fact, I scratch my head trying to think of *how* the Fourth Amendment would apply in a military zone.

The bolded portions are nowhere found in the quote of Yoo. Furthermore, as I understand this administration's arguments (eg in Padilla), a court is simply not allowed to inquire into those things. Sorry, but I find those arguments utterly and totally absurd. I don't need a "case" to know why. Just as I don't need a case to know that the President can't be 34.
4.1.2008 11:05pm
CrazyTrain (mail):
On the substance, it seems to me that it is likely right that the Fourth Amendment does not apply to bona fide domestic military operations, . . . just like it does not apply at the border.

You are the expert here so I ask the question legitimately. In the border cases, I understand the Court to have held not that the Fourth Amendment does not apply, but that there is no "search" at the border because there is no reasonable expectation of privacy; am I wrong? If not, this may seem like a trivial distinction, but it was part of my original critique above. I don't see how the Constitution, any part of it, does not apply to military or civil officers of the federal government. Whether provisions of it constrain those officers' actions is a separate question, but to say it has "no application" strikes me as an utterly erroneous statement.
4.1.2008 11:09pm
byomtov (mail):
Orin,

I humbly bow to your expertise. But pardon me sir, most exalted Herr Professor, I still await an answer to my simple, ignorant, question.

Where does it say "except if the army does it?"
4.1.2008 11:18pm
Chris Hundt (www):
Asher Steinberg: although I'm not sure the phrase "ordinarily be associated" is clear enough to distinguish between your interpretation and mine, I have trouble seeing how either interpretation leads to a definition of "severe pain" with respect to torture that is well supported by the health-emergency statute cited.

Regarding your example of the torch: if you were not being interrogated and experienced the pain associated with burning by a torch with no apparent cause, you would not consider it reasonable for a layman to expect that the underlying cause was something serious enough to cause failure of organs or bodily functions?

So I think my characterization of the reasoning as "a stretch" is still valid.
4.1.2008 11:28pm
courtwatcher:
Below is the actual text of what Yoo's memo says about "severe pain." I think it might be useful for people to actually read it before they comment on it further. Personally, I can't believe that anyone could seriously conclude what he does from the authority he cites.
b. "Severe Pain or Suffering"

The key statutory phrase in the definition of torture is the statement that acts amount to torture if they cause "severe physical or mental pain or suffering." In examining the meaning of a statute, its text must be the starting point. See INS v. Phinpathya, 464 U.S. 183, 189 (1984). Section 2340 makes plain that the infliction of pain or suffering per se, whether it is physical or mental, is insufficient to amount to torture. Instead, the pain or suffering must be "severe." The statute does not, however, define the term "severe." "In the absence of such a definition, we construe a statutory term in accordance with its “ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476 (1994). The dictionary defines "severe" as "[u]nsparing in exaction, punishment, or censure" or "[I]nflicting discomfort or pain hard to endure; sharp; afflictive; distressing; violent; extreme; as severe pain, anguish, torture." Webster 's New International Dictionary 2295 (2d ed. 1935); see American Heritage Dictionary ofthe English Language 1653 (3d ed. 1992) ("extremely violent or grievous: severe pain") (emphasis in original); IX The Oxford English Dictionary 572(1978) ("Of pain, suffering, loss, or the like: Grievous, extreme" and "of circumstances ...: hard to sustain or endure"). Thus, the adjective "severe" conveys that the pain or suffering must be of such a high level of intensity that the pain is difficult for the subject to endure.

Congress's use of the phrase "severe pain" elsewhere in the U. S. Code can shed more light on its meaning. 'See, e.g., West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100 (1991) ("[W]e construe [a statutory term] to contain that permissible meaning which fits most logically and, comfortably into the body of both previously and subsequently enacted law.”)

Significantly, the phrase "severe pain" appears in statutes defining an emergency medical condition for the purpose of providing health benefits. See, e.g., 8 U.S.C. § 1369 (2000); 42 U.S.C § l395w-22 (2000); id. § 1395x (2000); id. § 1395dd (2000); id § 1396b (2000); id § 1396u-2 (2000). These statutes define an emergency condition as one "manifesting itself by ,'acute symptoms of sufficient severity (including severe pain) such that a prudent lay person, who possesses an average knowledge of health and medicine, could reasonably expect the absence of 'immediate medical attention to result in-placing the health of the individual ... (i) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part." Id. § 1395w-22(d)(3)(B) (emphasis added). Although these statutes address a substantially different subject from section 2340, they are nonetheless helpful for understanding what constitutes severe physical pain. They treat severe pain as an indicator of ailments that are likely to result in permanent and serious physical damage in the absence of immediate medical treatment. Such damage must rise to the level of death, organ failure, or the permanent impairment of a significant body function. These statutes suggest that to constitute torture "severe pain" must rise to a similarly high level-the level that would ordinarily be associated with a physical condition or injury sufficiently serious that it would result in death, organ failure, or serious impairment of body functions.
4.1.2008 11:34pm
Chris Hundt (www):
courtwatcher: I also find it hard to see how his citations support his conclusion, but I don't know why you insinuate that people have been discussing this issue without reading the memo. There have only been a few quotes on this issue, and they did not demonstrate ignorance of the memo in my mind.
4.1.2008 11:38pm
Wrinkle-Free Pants (mail):
I don't understand this. Soldiers in peacetime can have Fourth Amendment rights in their private property if the Executive decides to let them have such rights by not requiring a waiver. And this means the Fourth Amendment regulates military operations why, exactly?

Okay, I see we are in agreement. Sorry for misreading your tone before. I would really like the boldface question answered, too.
4.1.2008 11:38pm
Barry P. (mail):
Orin, I'm not a lawyer nor a constitutional scholar, but a couple of thoughts arise.

Firstly, the Constitution was drafted in a time of war, so it is absurd, to my mind, to claim that it simply ceases to apply during wartime.

Secondly, when looking at the 4th side-by-side with the 3rd, it seems clear that there is a clearly defined preference for civilian rights over military powers.
4.1.2008 11:40pm
Wrinkle Free Pants (mail):

Secondly, when looking at the 4th side-by-side with the 3rd, it seems clear that there is a clearly defined preference for civilian rights over military powers.



That's not really true:

the Third Amendment has proven to be one of the least-litigated sections of the Constitution. The Supreme Court has never directly reviewed the meaning of the amendment. Indeed, only one court has ever confronted the meaning of the amendment, in a case decided nearly 200 years after it was ratified: Engblom v. Carey, 677 F. 2d 957 (2d Cir. 1982), on remand 572 F. Supp. 44 (S.D.N.Y. 1982), aff'd. per curiam 724 F.2d 28 (2d Cir. 1983).

Engblom grew out of a "statewide strike of correction officers, when they were evicted from their facility-residences ... and members of the National Guard were housed in their residences without their consent." The district court initially granted summary judgment for the defendants in a suit brought by the officers claiming a deprivation of their rights under the Third Amendment. The Second Circuit Court of Appeals, however, reversed on the ground that it could not "say that as a matter of law appellants were not entitled to the protection of the Third Amendment." 677 F.2d at 964. On remand, however, the District Court held that because the officers' Third Amendment rights had not been clearly established at the time of the strike, the defendants were protected from suit by a qualified immunity, and this decision was upheld by the Second Circuit.
4.1.2008 11:43pm
OrinKerr:
Byomtov,

Good of you to recognize your ignorance!!! That is the first step towards learning. The text does not say that, of course, but then the text of the Fourth Amendment is a poor guide without an understanding of the history of that text and the Supreme Court's precedents over the last 200 years. To pick an example, the Fourth Amendment does not say, "except by a private person," and yet it has been interpreted by the Supreme Court not to regulate individuals not acting as state agents. Similarly, the text does not say, "except by foreign governments," or "except at the border," or "except incident to arrest," or the like. But that is how the Fourth Amendment has been interpreted in light of its history. You can find a lot of this on the web; I recommend googling it.

CrazyTrain,

I don't understand where you get your understanding of what the Constitution means. What sources do you consult to reach these understandings of what is possible or impossible? I don't mean to be snarky; I'm genuinely puzzled.

Oren,

I do not understand what you are saying.

Barry P.

No, the Constitution was not drafted in wartime. The war was over.
4.1.2008 11:52pm
courtwatcher:
Chris Hundt,
I take your point and should not have been so harsh in tone. Most of the relevant comments (including yours) do reflect familiarity with the memo - but not all. I do think some commenters write without going to the source materials, and hopefully my posting of it will be helpful.
4.1.2008 11:52pm
Dave Hardy (mail) (www):
It seems to me that the question might be what are domestic "military operations."

If the meaning is that, should the US be invaded by ... someone who might invade us ... and the military has to fight, it would not be required to obtain a warrant before engaging in house-clearing operations, nor read Miranda to POWs before questioning them, this would hardly be disputable.

If it means that anytime the military gets shanghaied into doing something within the US -- and disregards what little remains of the Posse Comitatus statute -- it is exempt from the Bill of Rights, that would be a different question altogether. The Waco situation is quite instructive as to just how far the military can be deployed in a civilian law enforcement operation.
4.1.2008 11:53pm
CDU (mail) (www):
Firstly, the Constitution was drafted in a time of war, so it is absurd, to my mind, to claim that it simply ceases to apply during wartime.


What war? We signed a peace treaty with Britain ending the Revolutionary War in 1783. The constitution was drafted in 1787.
4.1.2008 11:53pm
Scrivener:
If by "domestic military operations" Yoo means actions of US soldiers inside the United States (and I do not see what else he could have meant), then the footnote 10 means that no search of my house would ever violate the Fourth if President sends soldiers to do it (instead of FBI or US Marshals).

This sounds very strange to me, but I do not see any other interpretation of "domestic military operations", especially given the context.
4.1.2008 11:59pm
Wrinkle Free Pants (mail):
This sounds very strange to me, but I do not see any other interpretation of "domestic military operations", especially given the context.

Fair enough. But why would the President send the military to your house unless there was a national security rationale, given the existence of the FBI and US Marshals?
4.2.2008 12:02am
Barry P. (mail):
Okeydoke, got my dates off a bit. Can I say that it was drafted with fresh memories of war prevalent in the public mood... :-)

Wrinkle-free: I find it instructive that to a lawyer, we don't know what the plain language of the Constitution means until some Supreme Court tells us what it means. At leasst, that's the way I take the article you cite.
4.2.2008 12:04am
Chris Bell (mail) (www):
Several commentators have touched on the real issue, with no one spelling it out.

There seems to be general agreement that the military doesn't have to follow the 4th Amendment during war time. This is certainly true overseas, and it can even be true in the United States during a state of war. (Note the comments above that reference the lack of 4A protection during the Civil War.)

The entire claim of the Bush administration is that the country is in a state of war. Not just a war overseas; a war that is going on everywhere, worldwide, including the U.S.

Terrorists are everywhere, don't you get it?

I don't care where you live; you are currently living in a war zone. Didn't you know that? (I was just as surprised as you are!) It's comparable to the Civil War, but it's going on in every single state of the Union - not just the Confederacy.

If you agree that soldiers don't have to follow the 4A during war, and you accept Bush's claim that the Great War on Terror is raging all around us, then the claim that the 4A doesn't apply in the U.S. when the military is acting is not that surprising.
4.2.2008 12:07am
Oren:
Oren, I do not understand what you are saying.
You explained how the 4A applies in a "military zone" (it doesn't, and I agree) but I want you to explain how the 4A applies to military actions in a "civilian zone".

Stipulated facts: I live in the suburbs of Boston. We have a functional (sort of) local government complete with police, courts and a legislature. We are not in a state of rebellion or insurrection nor have we in any way attempted to subvert or deny the power of the Federal government or the US Constitution. All told, it is a model "civilian zone".

Question: Does the 4A (or any other part of the Constitution) constrain the authority of the President to have the military arrest me? May he break into my house to effect such an arrest?

My Answer: Absolutely not. In a zone of functioning civilian control, the military may not act except in furtherance of the judicial power. Taney speaks directly to this in Ex Parte Merryman (I know it's not binding precedent)
I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen, except in aid of the judicial power.


I'm quite curious (and also quite afraid) to hear your answer.
4.2.2008 12:08am
Oren:
I should of course add the Ex Parte Milligan (which is bind precedent, AFAIK) adds to the conclusion that the military may not supplant the civilian judicial structure where the latter functions.
4.2.2008 12:11am
Chris Bell (mail) (www):
Oren:
Stipulated facts: I live in the suburbs of Boston. We have a functional (sort of) local government complete with police, courts and a legislature. We are not in a state of rebellion or insurrection nor have we in any way attempted to subvert or deny the power of the Federal government or the US Constitution. All told, it is a model "civilian zone".
That's pre-9/11 thinking.
4.2.2008 12:15am
GV:
Orin, is it your position that the the military could conduct a raid on a suspected drug dealer without being bound by the Fourth Amendment? Could the military have stormed David Koresh's compound?
4.2.2008 12:20am
Scrivener:
Wrinkle Free Pants: But why would the President send the military to your house unless there was a national security rationale, given the existence of the FBI and US Marshals?


To be free of the Fourth Amendment's constraints (if the footnote 10 means what it appears to mean).
4.2.2008 12:20am
MarkField (mail):
It seems to me that Dave Hardy and the subsequent posts have identified the real issue. It seems to me that the 4th must apply in such circumstances.

But isn't all this getting rather far afield from the substance of Yoo's memo?
4.2.2008 12:22am
Duffy Pratt (mail):
On his definition of severe pain, as quoted above:

It's pretty clear that the dentistry treatment in Marathon Man wouldn't cause one to fear any of the necessary consequences, ergo not severe pain, ergo not torture.

Similarly, systematically breaking a bone, then setting it, then rebreaking it, etc... so long as the bone could heal itself and not cause "permanent" damage would not cause severe pain. And of course, applying temporary pressure to the break points for extra fun wouldn't be severe either.

Taking a person for a few quick round trips in a decompression chamber, without causing the bends, would also not inflict severe pain.

This, of course, follows simply from an ordinary understanding of the phrase, as Yoo has made clear.

Where is the problem?
4.2.2008 12:22am
Wrinkle Free Pants (mail):
Wrinkle-free: I find it instructive that to a lawyer, we don't know what the plain language of the Constitution means until some Supreme Court tells us what it means.

1. The Constitution includes Article III, which creates the Supreme Court. Did you miss that plain language?

2. The Third Amendment includes the term "quarter". The only case to examine the Third Amendment seems to have trouble deciphering what quartering means. And what kinds of quarters matter. And who counts as a quarterer. Now, there are ways to answer those questions, but you can't answer them by staring at the Constitution. Perhaps you look to contemporaneous dictionaries, perhaps you look to history, precedent, traditions of interpretation, the consequences of one interpretation versus another. But none of those methods is equivalent to staring at the Constitution. I'm not sure why you're so confident that your benighted opinion of what the Third Amendment means is better than the precedent you hadn't heard of and didn't bother to read.
4.2.2008 12:24am
Wrinkle Free Pants (mail):
To be free of the Fourth Amendment's constraints

I think we both know this is circular. I am asking you to justify the rationality of your fear and your answer is "I am afraid because I have fear."
4.2.2008 12:27am
Curmudgeonly Ex-Clerk (www):
Crazy Train:

In your 10:05 p.m. comment, you fault Professor Kerr for contending that Yoo's Fourth Amendment observation is limited to "bona fide domestic military operations" in a "military zone" because those express terms do not appear in Footnote 10. But that may well be what Yoo is saying even if he fails to use those precise words:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations.
I concede that one cannot be entirely certain as to what Yoo is claiming without access to the corresponding memorandum on this topic referenced in Footnote 10. But based on the Yoo's actual phrasing (viz., "military necessity" and "military operations"), I read Footnote 10 in much the same fashion as Professor Kerr.

What is the basis for thinking that Yoo intended Footnote 10 to mean more than this (apart from the sort of hysteria exhibited by Chris Bell's 11:07 p.m. comment)?
4.2.2008 12:27am
OrinKerr:
Oren: I agree with your view.
GV: No.
4.2.2008 12:30am
Wrinkle Free Pants (mail):
It seems to me that the 4th must apply in such circumstances.

This is what you were inclined to believe in any event. And you'd believe it -- as here -- in the absence of any and all proof. That's just bias.
4.2.2008 12:32am
Wrinkle Free Pants (mail):
the military may not supplant the civilian judicial structure where the latter functions.

Under what circumstances other than the collapse of the civilian judicial structure would the President be ordering the military into people's homes?
4.2.2008 12:34am
Chris Bell (mail) (www):
"apart from the sort of hysteria exhibited by Chris Bell's 11:07 p.m. comment"

Hysteria? That's the official administration position you're mocking there buddy.

----

Just in case sarcasm doesn't carry on the internet, I think the position is ludicrous. However, it is their position.
4.2.2008 12:36am
Scrivener:
Wrinkle Free Pants:

I don't see any circularity: President may have many reasons to avoid the constraints of the Fourth (for example, to avoid having to obtain warrants), and I find it very strange that sending soldiers to do a search (thus making the search a "domestic military operation") is all it takes (as the footnote 10 apparently states).
4.2.2008 12:42am
Oren:
Under what circumstances other than the collapse of the civilian judicial structure would the President be ordering the military into people's homes?
I should hope it never comes to pass, but that was the hypothetical we were bouncing around. Duncan Frisell did, in fact, specifically endorse the power of the president to do just that (9:25PM).
4.2.2008 12:46am
Wrinkle-Free Pants (mail):
I don't see any circularity: President may have many reasons to avoid the constraints of the Fourth

Why would the President seek to avoid constraints that do not exist? And why would the President use the military to perform functions that the FBI and US Marshals already lawfully perform? And why do you think "domestic military operation" means "performing drills in the context of war games in Alexandria, Virginia" as opposed to "responding to a nuclear attack on the World Trade Center"? If this is to be your line of attack, you might as well accuse footnote 10 of sneaking VAWA into the Commander-in-Chief Clause. After all, it says "domestic".
4.2.2008 12:50am
Dilan Esper (mail) (www):
Professor Kerr:

If you search "British soldiers" "general warrants" in yahoo, you will find that there's plenty of scholarship out there that claims that the British military sometimes executed general warrants (general warrants, of course, were the main animating purpose of the Fourth Amendment), which would, I think, make any claim that the Fourth Amendment does not apply at all to military operations within the US to be quite suspect. It certainly would not make sense that the President may circumvent the Fourth Amendment simply by using the military for an ordinary law enforcement operation. That would imply that the colonists would have had no objection to general warrants as long as they were executed by the British military, and that claim seems quite untenable.

The answer to the puzzle of what happens if you have a bona fide military operation in the US is probably that if Congress either declares war or suspends habeas corpus, the Fourth Amendment becomes unenforceable.
4.2.2008 12:51am
Steve P. (mail):
Very cool responses, Prof Kerr. I'm looking forward to your post when you've had a chance to dissect and digest the full memo.
4.2.2008 12:53am
Oren:
Why would the President seek to avoid constraints that do not exist?
You mean like holding a US citizen incommunicado in a naval brig for years?

And why would the President use the military to perform functions that the FBI and US Marshals already lawfully perform?
Because the FBI and US Marshall could not lawfully do so.
4.2.2008 12:53am
Wrinkle-Free Pants (mail):
I should hope it never comes to pass, but that was the hypothetical we were bouncing around.

I just think that's a silly hypothetical.
4.2.2008 12:54am
Oren:
The answer to the puzzle of what happens if you have a bona fide military operation in the US is probably that if Congress either declares war or suspends habeas corpus, the Fourth Amendment becomes unenforceable.
Precisely. If Congress elects not to do so, the President will just have to follow the law until he can convince them otherwise.
4.2.2008 12:56am
Wrinkle-Free Pants (mail):
It certainly would not make sense that the President may circumvent the Fourth Amendment simply by using the military for an ordinary law enforcement operation.

Again, why would the President do this unless ordinary law enforcement was impossible due to a national security crisis?
4.2.2008 12:56am
Wrinkle-Free Pants (mail):
The answer to the puzzle of what happens if you have a bona fide military operation in the US is probably that if Congress either declares war or suspends habeas corpus, the Fourth Amendment becomes unenforceable.

Precisely. If Congress elects not to do so, the President will just have to follow the law until he can convince them otherwise.


Or, because Congress has been eliminated by nuke, the President simply secures order. But in that case, all this quibbling about warrants is academic.
4.2.2008 12:59am
Scrivener:
Wrinkle Free Pants:

Why would the President seek to avoid constraints that do not exist? And why would the President use the military to perform functions that the FBI and US Marshals already lawfully perform? And why do you think "domestic military operation" means "performing drills in the context of war games in Alexandria, Virginia" as opposed to "responding to a nuclear attack on the World Trade Center"?

The Fourth Amendment imposes some constraints (such as warrant and reasonableness requirements), and violating these constraints by the FBI and US Marshals is unlawful; but footnote 10 states that these constraints do not apply to "domestic military operations", making violating these constraints by soldiers lawful.

So all it takes, under footnote 10, to avoid Fourth Amendment constraints is sending soldiers instead of FBI to do the same thing, which is odd, in my opinion.
4.2.2008 1:02am
Andrew Edwards (mail):
As a non-lawyer, and very much not a 4th amendment expert, I'd like to note my shock at the tenor of these comments.

Q: "Can the military kick in my door in my home without grounds, arrest me, and then zap me in the testicles with electrical wires, so long as the voltage won't kill me?"

John Yoo: "Yes."

Orin: "This is a complex legal question."

Come on. The answer is easy: "No, never. God no. Is this what the greatest country in the world has come to?"
4.2.2008 1:04am
Wrinkle-Free Pants (mail):
So all it takes, under footnote 10, to avoid Fourth Amendment constraints is sending soldiers instead of FBI to do the same thing, which is odd, in my opinion.

I think your reading is just wrong, frankly. I'm not a fan of Yoo, but I don't think childishly distorting his memos is necessary to disagree with them substantively.
4.2.2008 1:07am
CDU (mail) (www):
Come on. The answer is easy: "No, never. God no. Is this what the greatest country in the world has come to?"


So are you contending that the soldiers who searched the Garrett's barn for John Wilkes Booth, set it ablaze, and shot him were acting unconstitutionally?
4.2.2008 1:11am
Wrinkle-Free Pants (mail):
The Fourth Amendment imposes some constraints (such as warrant and reasonableness requirements),

Within its proper scope, yes. The question is whether it applies in cases outside of its scope, and the answer is no, even without considering every hypothetical of a borderline case. But pretending "domestic military operation" = "any and all uses of the military within the Continental United States" is just not on point.
4.2.2008 1:13am
Scrivener:
Wrinkle Free Pants:

I do not see how "domestic military operations" may mean something other than actions of the US soldiers, marines etc. in the US.

And I do not see why I am "childishly distorting" the footnote 10 by saying that it states that the Fourth does not apply to "domestic military operations".

From this I conclude that, under the footnote 10 and especially given the context, any search performed by soldiers in the US (being a "domestic military operation") is free of any Fourth Amendment's constraints.
4.2.2008 1:15am
Oren:
I just think that's a silly hypothetical.
Then pose a more salient one, if you prefer.

Again, why would the President [order the military to arrest a civilian] unless ordinary law enforcement was impossible due to a national security crisis?
I think you have placed an undue weight on motive here. I don't care why the President would order such a thing, it's simply not allowed in an area of "civilian control" (as defined by my post@11:08).
4.2.2008 1:15am
Asher Steinberg (mail):
Mr. Hundt, I agree it's a stretch, but I took you to mean that "severe pain," by definition, has to actually cause death or organ malfunction, not that it would be the sort of pain associated with death/organ failure if it were naturally caused pain. Either way, it's a pretty bizarre and underinclusive definition because there are all sorts of pains that one simply can't imagine happening under ordinary circumstances or that are plenty severe (that is to say, plenty painful) but that aren't ordinarily associated with death or organ failure. For instance, burning or stabbing pains, when not caused by burns or stab wounds, are much more likely to be symptomatic of a pinched nerve than organ failure, serious impairment of body functions, or impending death, but that doesn't mean that they're not severe. Also, the definition isn't even correct for the statute he's deriving it from, which defines emergency medical conditions and only refers to severe pain parenthetically as one admissible sign of an emergency medical condition. It certainly doesn't follow that any other severe pains in the law have to be symptomatic of medical emergencies.

As for the Third Amendment, it does say that soldiers can be quartered in your home in wartime so long as it's "in a manner to be prescribed by law," so I don't know that it's much help to Yoo's critics.
4.2.2008 1:17am
Dilan Esper (mail) (www):
Wrinkle:

In situations where Congress can't act, remember that even where the Fourth Amendment does apply, warrantless searches and seizures are permissible when there are exigent circumstances.

So in your nightmare scenarios where Congress can't suspend habeas or declare war, I don't see how the President's actions are going to violate the Fourth Amendment even if the provision remains technically applicable.
4.2.2008 1:18am
Andrew Edwards (mail):

So are you contending that the soldiers who searched the Garrett's barn for John Wilkes Booth, set it ablaze, and shot him were acting unconstitutionally?


Sure, whatever. I don't care about John Wilkes Booth. I care about whether the US military has unrestricted power of search, seizure, and torture on all commenters on this thread.

Look. I'm not gonna say I know more about history or law than you. I will however venture that granting unrestricted power to armed agents of the state over the citizens of that state has not typically gone well for anyone. Nor has granting those armed agents the right to torture people held indefinitely without charges or trial.

Less law and history, more common sense.
4.2.2008 1:22am
Wrinkle-Free Pants (mail):
I do not see how "domestic military operations" may mean something other than actions of the US soldiers, marines etc. in the US.

It doesn't say actions of military members that occur in the continental United States. It says "domestic military operations".

In situations where Congress can't act, remember that even where the Fourth Amendment does apply, warrantless searches and seizures are permissible when there are exigent circumstances.

So in your nightmare scenarios where Congress can't suspend habeas or declare war, I don't see how the President's actions are going to violate the Fourth Amendment even if the provision remains technically applicable.


No. I agree with you. That's my point.
4.2.2008 1:23am
George Weiss (mail) (www):
OrinKerr:
Oren: I agree with your view.

thats what makes footnote 10 so disturbing-it seems to take the opposite view without giving any reason why the military may have special exceptions to the fourth for domestic operations....

it may be true that there is no court president directly applying the fourth to domestic military operations..and its also clear that the fourth has exceptions...

but why is there some doubt that the fourth wouldn't apply domestically to the military? is there some doctrine of fourth amendment jurisprudence (such as the well known incident to arrest doctrine or probable cause/exigent circumstances combination etc..) or something that would even suggest that the fact that the government acts through a military agent-rather than a police agent-somehow changes the equation?

if not-then how can the OLC say something like this just because 'the court hasn't specifically said the fourth applies to the military domestically?


if there was/is some reason to think that the point of the fourth amendment-or its history-or its president-or even some policy demand would make it even conceivable that the 4th doesn't apply just because a military guy is doing the search-then maybe i can see OLC counsel saying that we think the 4th doesn't apply there-and although there is no court ruling to back us up-we stand by our understanding of the 4th.

but if there is no reason why the governmental actor being a military man as opposed to a cop-should make the 4th inapplicable-even domestically-then simply saying "the courts have never said it does apply-is not enough to base your legal counsel on.

if there is no case on the issue-then you need to use your brain to find out what courts might do-and if you cant find any reason it might be inapplicable to domestic military searches-then you say 'the fourth applies'

otherwise you reach the absurd conclusion that the gov can do whatever it wants until the exact facts have come up before the courts before-i.e. -ok no court has never specifically said the fourth applies to actors named "fred"-so our counsel is that its legal for the police to search without a warrant-(and without pc, without consent, pc, or some other exception)
4.2.2008 1:25am
Scrivener:
Wrinkle-Free Pants:

Are you saying that Yoo's phrase "domestic military operations" means something substantively different from actions of military members under the President's command in the US?

I do not see how it's possible.
4.2.2008 1:29am
CDU (mail) (www):
Look. I'm not gonna say I know more about history or law than you.

Well, I'm not a lawyer, so you'd have a pretty good shot at claiming you know more about the law than I do. I do claim a pretty fair knowledge of history, though.

I will however venture that granting unrestricted power to armed agents of the state over the citizens of that state has not typically gone well for anyone.

I agree with you, but your and my normative views don't have much bearing on whether or not such practices are constitutional. History and law do, which is why you should care about John Wilkes Booth.
4.2.2008 1:34am
Soronel Haetir (mail):
Wrinkle Free Pants:

Why would he do it?

Because at some point we're dumb enough to elect a crazy power hungry moron? Witness the reference to Padilla a little while ago, I found that situation terrifying. And the fact that so few seemed concerned scared me even more.
4.2.2008 1:36am
CDU (mail) (www):
if not-then how can the OLC say something like this just because 'the court hasn't specifically said the fourth applies to the military domestically?


What about a history of domestic military searches and seizures in combat zones, sans warrant, during time of war? I've pointed out the Booth example already, and I'm sure there are countless more from the Civil War, the War of 1812, the Indian Wars, heck probably even the Whiskey Rebellion.
4.2.2008 1:37am
Wrinkle-Free Pants (mail):
What about a history of domestic military searches and seizures in combat zones, sans warrant, during time of war?

That sounds like "domestic military operations." Drills in Alexandria, Virginia during peacetime, not so much.
4.2.2008 1:43am
George Weiss (mail) (www):
cdu-

if the shooting of JWB was a constitutional seizure under the 4th-the reason was not because they were soldiers-

its would be because the shooting was done under the president at the time-witch allowed cops to shoot fleeing felons without violating the 4th-now they can only shoot fleeing dangerous felons under Tennessee v garner-or when the force is otherwise constitutionally reasonable scott v harris)

but wither way-the fact that they were soldiers in a domestic operation had nothing to do with it.

the idea that the 4th doesn't apply to domestic military ops would indicate that all the president need do is send a temporary military commission letter to every police constable or government official wanting to search who didn't have probable cause-thereby eliminating any 4th amendment case ever.

of course-the military is now statutorily prohibited from engaging in law enforcement-but that would mean that for the 100 years or so that they were not prohibited-the fourth could be circumvented by a letter from the president.
4.2.2008 1:45am
Oren:
What about a history of domestic military searches and seizures in combat zones, sans warrant, during time of war?
So can the President simply declare that my neighborhood is a combat zone and have us all shot or are there objective standards determined by a neutral magistrate that constrain his ability to do so?
4.2.2008 1:47am
Wrinkle-Free Pants (mail):
So can the President simply declare that my neighborhood is a combat zone and have us all shot or are there objective standards determined by a neutral magistrate that constrain his ability to do so?

Let's say a nuke kills all the judges.
4.2.2008 1:48am
Wrinkle-Free Pants (mail):
Or it's so chaotic, what with all the war going on, that judges cannot convene a hearing.
4.2.2008 1:49am
Oren:
What about a history of domestic military searches and seizures in combat zones, sans warrant, during time of war?
A history of illegality provides no refuge. Merryman and Milligan both stand for the proposition that the vast majority of those seizures were, in fact, illegal.
4.2.2008 1:51am
CDU (mail) (www):
So can the President simply declare that my neighborhood is a combat zone and have us all shot or are there objective standards determined by a neutral magistrate that constrain his ability to do so?


Now there's the tricky part. What sort of line or standard can be articulated that would both prevent the sort of think you're talking about yet maintain the ability for the military to operate in genuine instances of insurrection or invasion? To me, that is the interesting part of this discussion, not the "the 4th amendment applies to the military" "no it doesn't" that's made up a lot of the last 100 posts.
4.2.2008 1:52am
Oren:
WFP, if nukes are landing in the US then I'll grant the President temporary power to assume all the functions of government until such time as shit is sorted out. In the meantime, why don't we focus on scenarios that are within the realm of reality?
4.2.2008 1:54am
CDU (mail) (www):
Merryman and Milligan both stand for the proposition that the vast majority of those seizures were, in fact, illegal.


I think that Merryman and Milligan can be distinguished from Booth's death, and countless other searches and seizures by Union solders, by the fact that Merryman and Milligan concerned events that took place on northern soil, distant from the battlefield.
4.2.2008 1:55am
Wrinkle-Free Pants (mail):
In the meantime, why don't we focus on scenarios that are within the realm of reality?

If we did that, we'd obviously have nothing to discuss.
4.2.2008 1:57am
Scrivener:
I thought that even if by some magic all judges die and courthouses fall apart, the reasonability requirement of the Fourth would still apply to searches and seizures.
4.2.2008 1:57am
George Weiss (mail) (www):
What about a history of domestic military searches and seizures in combat zones, sans warrant, during time of war?

i already rebuffed your booth example-

as for your other examples-i would similarly point to the issue of whether the searches and seizures fell within another 4th exception (consent-PC, exigence, incident to arrest). if they did-then the searches were not constitutional because they were done by the military-they were constitutional because they were not a violation of the 4th for some other reason.
4.2.2008 1:57am
George Weiss (mail) (www):
Wrinkle-Free Pant-

well if there were no judges-why would it matter whether something is a 4ht violation?
4.2.2008 1:58am
CDU (mail) (www):
as for your other examples-i would similarly point to the issue of whether the searches and seizures fell within another 4th exception (consent-PC, exigence, incident to arrest).


I don't buy that. Out of all the searches carried out on American soil during the Civil War, you're saying they were all (or even mostly) pursuant to an arrest or required to immediately protect lives or property? That really strains credulity to the breaking point.
4.2.2008 2:00am
Oren:
What sort of line or standard can be articulated that would both prevent the sort of think you're talking about yet maintain the ability for the military to operate in genuine instances of insurrection or invasion?
IMO (and I'm no legal scholar), the operative test is the functioning of the local civilian government within the accepted Constitutional structure (i.e. no anarchy, no insurrection, no rebels).

Furthermore, I'm willing to grant wide latitude for the President to act in case of emergency provided that he defer to Congress and the Judiciary as soon they reconvene. If the Soviets invade Seattle on Saturday, I think he can suspend Habeas on Sunday pending official Congressional suspension on Monday (just to give a really dumb example). If they chose not to suspend on Monday, however, then he's just gotta fight the war with the rules he's given.
4.2.2008 2:00am
Oren:
Out of all the searches carried out on American soil during the Civil War, you're saying they were all (or even mostly) pursuant to an arrest or required to immediately protect lives or property? That really strains credulity to the breaking point.
Those searches were not in the United States of America but rather in the Confederate States of America, a distinct (albeit short-lived) entity with it's own civilian structure. Lincoln's bullshit aside, those states the seceded from the Union lost their Constitutional rights until readmission.
4.2.2008 2:02am
Hoosier:
>>> the Constitution was drafted in a time of war

Yes, the Austro-Turkish War. And I think everyone should go READ about this war before posting comments.
4.2.2008 2:13am
George Weiss (mail) (www):
I don't buy that. Out of all the searches carried out on American soil during the Civil War, you're saying they were all (or even mostly) pursuant to an arrest or required to immediately protect lives or property? That really strains credulity to the breaking point.

maybe. maybe some of the searches had no judicially recognized 4th amendment exception.

but then that would just mean that occasionally-the government did illegal things..i don't think that strains credulity.

it doesn't mean-as your suggesting-that QED-there must be a free pass for the military domestically on the 4th.
4.2.2008 2:14am
CDU (mail) (www):
Lincoln's bullshit aside, those states the seceded from the Union lost their Constitutional rights until readmission.


U.S. v. Lee (the Arlington case) would seem to contradict you. George Washington Custis Lee successfully sued the U.S. government for illegally seizing his family's estate in northern Virginia in violation of the fifth amendment during the war.
4.2.2008 2:16am
George Weiss (mail) (www):
i forgot to mention that in a 'combat zone' as you describe it-i would expect to find lots of exigence and probable cause-so i would bet the vast majority of the cases your describing would not have any 4th amendment problem whatsoever.
4.2.2008 2:22am
CDU (mail) (www):
i forgot to mention that in a 'combat zone' as you describe it-i would expect to find lots of exigence and probable cause-so i would bet the vast majority of the cases your describing would not have any 4th amendment problem whatsoever.

Perhaps so, though that may take a somewhat lower standard of immediacy in the definition of exigence than is usually used for police searches today. It any case, it would seem that if fourth amendment exceptions are sufficient to cover the vast majority of Civil War era searches, then the exceptions would have to be broad enough to effectively give the military a free pass during domestic combat operations. Effectively we get to the same result from a different direction.
4.2.2008 2:31am
Mike& (mail):
Dang, thread grew, not sure if anyone is reading! But here is a "global" criticism of Yoo's memo.

Let's look at Yoo's discussion of "severe pain." It takes up all of 2 pages. Here is how it should have been reasoned:

1. Ordinary meaning. "Observer" made a smart alec remark, above, but his remark only showed an ignorance of this canon or statutory construction. Legislative language will usually be given its ordinary meaning.

Thus, if you, me, and Dupree would think that having a baton rammed up your nether region would cause severe pain, maybe, in fact, it would have. Yoo just cites the dictionary (which supports you, me, and Dupree) and then moves on without any other discussion of whether the ordinary meaning rule should or should not apply.

2. Legislative meaning/term of art. Is "severe pain" a term of arm? That is, we don't look to ordinary meaning, since it's something specifically defined somewhere. Well, it's not defined anywhere. It's briefly mentioned in the Aliens and Nationality title in the context of emergency medical situations. But that's it. "Severe pain" is not specifically defined (it's actually mentioned in a parenthetical).

Yoo doesn't say why this "definition" he gleaned from the Alien and Nationality Act should apply. He just says, "It does."

3. Case law. There are about 10,000 cases mentioning "severe pain." All anyone has to do is type a variation of that strand into Westlaw or Lexis. Lots of cases will pop up. A consciousness researcher would have looked to court cases and discussed them.

So Yoo's memo is just poorly reasoned. He doesn't look to cases arising under state or federal law that discuss what "severe pain" might be. He doesn't discuss counter-arguments. He doesn't explain why the emergency medical language from the Aliens and Nationality title should apply. He just says, "It does."

It's hard to explain how bad Yoo's memo is, since it's hard to explain how legal reasoning and thinking should be done to people who aren't trained in it. But, generally, as with all argument, you consider and (where applicable) dismiss counter-arguments. You actually explain why you're relying on something. You support your assertions. Yoo, a Yale educated lawyer and Boalt Hall law professor, did nothing of the sort in his memo.

You don't just ignore counter-arguments and state conclusions. There's not a law professor (even those who support Yoo) who would give his discussion of "severe pain" a grade higher than a "C" if he had been a student discussing the issues for class.
4.2.2008 2:35am
George Weiss (mail) (www):
It any case, it would seem that if fourth amendment exceptions are sufficient to cover the vast majority of Civil War era searches, then the exceptions would have to be broad enough to effectively give the military a free pass during domestic combat operations. Effectively we get to the same result from a different direction

hmm sort of-but the historical situations you present involved relatively insurgents in a 'combat zone'-presumably described as such because it looked like a pretty dangerous situation-shooting looting violent protesting-etc..henc e rising to the level of exigence.

terrorists generally operate in secret (until they execute)-and its hard to tell if theres an exigence or not without knowing a great deal-enough that would get you a warrant anyway in the first place

its sometimes really hard to tell them from you and me-thats the problem the fourth tries to protect against-someone searching me thinking im a criminal when im not.
4.2.2008 2:42am
EH (mail):
Of course we're still reading!
4.2.2008 2:44am
Oren:
U.S. v. Lee (the Arlington case) would seem to contradict you. George Washington Custis Lee successfully sued the U.S. government for illegally seizing his family's estate in northern Virginia in violation of the fifth amendment during the war.
CDU, you are correct. I will rephrase: "The citizens of the seceding states lost temporarily inactivated their constitutional rights pending readmission.

I think that Merryman and Milligan can be distinguished from Booth's death, and countless other searches and seizures by Union solders, by the fact that Merryman and Milligan concerned events that took place on northern soil, distant from the battlefield.
Then we substantially agree. I have no problem holding the bill of rights inapplicable in the war zone itself. What Yoo appears to be endorsing, however, is waiving the Constitution everywhere the military goes.

Do you agree with the "functioning civilian government" criteria I put forward earlier? If so, how does that impact the GWOT?
4.2.2008 2:51am
CDU (mail) (www):
hmm sort of-but the historical situations you present involved relatively insurgents in a 'combat zone'-presumably described as such because it looked like a pretty dangerous situation-shooting looting violent protesting-etc..henc e rising to the level of exigence.

terrorists generally operate in secret (until they execute)-and its hard to tell if theres an exigence or not without knowing a great deal-enough that would get you a warrant anyway in the first place

That's what makes this discussion interesting, the edge cases that we face. To borrow a bit more from the Civil War example (at the risk of beating a dead horse), it seems pretty clear that in the middle of a battle troops don't have to stop and ask for a warrant. On the other hand, Merryman and Milligan make it clear that in a calm area under civil government, the military can't act contrary to the constitution. But there's a lot of room between those extremes. What about areas that aren't battlefields but are under martial law? What about areas that aren't being contested by conventional military forces but are the subject of guerrilla warfare like Mosby's Raiders? These sorts of edge cases are the ones that are relevant to today's situation.
4.2.2008 2:57am
George Weiss (mail) (www):

On the other hand, Merryman and Milligan make it clear that in a calm area under civil government, the military can't act contrary to the constitution



thats what makes the OLC footnote such a problem.


What about areas that aren't battlefields but are under martial law? What about areas that aren't being contested by conventional military forces but are the subject of guerrilla warfare like Mosby's Raiders? These sorts of edge cases are the ones that are relevant to today's situation


not really-those cases involve things that anyone can see by going into those areas.

in contrast
in the case of a few radical Muslims hanging out in a basement plotting to destroy the capitol building...unless you have some external source of info you wont know about it

-that source of info is what the fourth is asking you to get before you break in. and thats because if you say that you don't need it when its not obvious like that-then there is really no 4th amendment protections anywhere-since terror 'could be' anywhere
4.2.2008 3:08am
CDU (mail) (www):
not really-those cases involve things that anyone can see by going into those areas.


Can you? It seems to me that if you can tell a guerrilla force's operating area that easily they aren't doing a very good job of it. Sure, you can tell where they're carrying out attacks, but you can't tell where their bases, safehouses and support network are. Those are the things a counter-insurgency force in really interested in, and the problem of locating that sort of guerrilla infrastructure doesn't seem that different from the problem of locating a terrorist cell.
4.2.2008 3:18am
George Weiss (mail) (www):
alright thats fair-but its also clear that the possibility of the court seeing that as an exception-is not enough information on the subject for OLC to simply conclude that the 4th doesn't apply to the military domestically-and thats what people are bothered by
4.2.2008 3:24am
Jerry F:
When it comes to defining torture, it seems to me that, at a minimum, torture should be sufficiently narrow that it doesn't include acts that would not be torture if consented to by the "victim." Throwing acid on someone would be torture and illegal even if the victim were to consent to it. When it comes to sodomy, it seems to me that the two consistent views are (1) sodomy is torture so it should be illegal even when consented to (apparently unconstitutional given Lawrence v. Texas) or (2) sodomy is not torture. To have actions become torture only because of lack of consent seems to cheapen the meaning of the word.
4.2.2008 3:28am
CDU (mail) (www):
alright thats fair-but its also clear that the possibility of the court seeing that as an exception-is not enough information on the subject for OLC to simply conclude that the 4th doesn't apply to the military domestically-and thats what people are bothered by


I don't know if the OLC is necessarily forbidden from issuing an opinion in an area that's not settled law (after all, if the law is settled what do you need an OLC opinion for?). However, the opinion certainly doesn't do much to convey just how far out on a limb it's going in certain areas. Given that people are relying on this opinion for legal protection, I think it ought to be more upfront about just how speculative some of this legal reasoning is (which would have the added bonus of deterring OLC lawyers from crawling out that far on the limb in the first place).
4.2.2008 3:37am
Angeleno:
Jerry F,
Consent is crucial in other related areas of the law - sexual intercourse and rape, for example. What is the inconsistency or "cheapness" there? Rape, and other sex crimes whose distinction from other sexual acts is defined solely by lack of consent, are considered among our most serious crimes. Why is making consent relevant any different if we're defining "torture" rather than some other crime, given the broad recognition in our society that forced sexual acts (including sodomy) are entirely different from consensual sexual acts?
4.2.2008 3:43am
Mike& (mail):
When it comes to defining torture, it seems to me that, at a minimum, torture should be sufficiently narrow that it doesn't include acts that would not be torture if consented to by the "victim."


I imagine you have this case in mind, no doubt. Thus, cutting off one's "organ" and then killing a person can't be torture. Because, hey, someone consented to that before.

When it comes to sodomy, it seems to me that the two consistent views are (1) sodomy is torture so it should be illegal even when consented to (apparently unconstitutional given Lawrence v. Texas) or (2) sodomy is not torture.


What? So in you world there is no difference between sex and rape?
4.2.2008 3:44am
Oren:
When it comes to defining torture, it seems to me that, at a minimum, torture should be sufficiently narrow that it doesn't include acts that would not be torture if consented to by the "victim."
I'm sorry to say, but this it the stupidest definition I've ever heard. I won't gross you out with the details but there are plenty of (pornographic) sites on the internet the depict sadomasochistic activity between consenting adults (usually in real restraints) that would clearly be torture in the absence of consent. A quick google search for (no quotes) "bdsm pain" yields more than enough examples/

Did you not know that people willingly whip each other and stick needles in sensitive places for sexual kicks?
4.2.2008 4:21am
Chris Hundt (www):

I imagine you have this case in mind, no doubt. Thus, cutting off one's "organ" and then killing a person can't be torture. Because, hey, someone consented to that before.


Well, actually, I don't think what Jerry said would imply this, since in that case the consent did not legitimize the action, so according to Jerry's rule, it would still be illegal.

That said, honestly, Jerry F? Maybe you were joking. But all kinds of things are legal with consent that would be ridiculous to do without consent. It is so easy to come up with examples (sex, tooth extraction, beating into unconsciousness (martial arts)) that it's hard for me to believe you thought much about this suggestion before you posted it, if you were even serious.
4.2.2008 4:25am
Mike& (mail):
I conclude that JerryF was satirizing John Yoo's torture memo.

Sorry I didn't catch that quicker, man!
4.2.2008 4:29am
Chris Hundt (www):
Maybe it's still April 1 where he lives.
4.2.2008 4:31am
George Weiss (mail) (www):
CDU- we agree there too
4.2.2008 4:32am
Kathryn In California (mail):
My grandfather was a POW for 4 years in WWII. Before he died (25 years ago), he told the grandkids some of what he'd gone through. Once we were adults, we heard more from other, older relatives.

It's funny, I'd spent much of my life thinking he'd undergone torture at times in those POW camps. Yet nothing that was done to him rises to Yoo's standards.

I suppose my grandfather would owe his former captors an apology for calling them torturers.

That's the problem when I read the memo: I can't remove the thought "substitute 'grandpa' for POW when reading about POWs." Do we get to do things that we punished Japanese or German soldiers for?

(Yes, I know some of the captured detainees were fighting without uniforms. On the other hand some of the detainees were bought for a $25,000 reward, so they may or may not have been fighters (and may/may not have had uniforms).)

And I can't shake the sense that the memo authorizes an interrogator to be able to do anything or everything, as long as the interrogator has the good of the US in mind. That is, as long as a person thinks he is doing good, then he must, in fact, be doing good.
4.2.2008 6:50am
Cornellian (mail):
To have actions become torture only because of lack of consent seems to cheapen the meaning of the word.

You see no difference between having sex and being raped?
4.2.2008 9:02am
Milhouse (www):
People seem to be missing two basic points:

1. Yoo wrote these memos for use here and now, not in some hypothetical universe where Posse Comitatus is not in effect. In this universe, the military can't be used in domestic law enforcement; therefore when he wrote "domestic military operations" he was referring only to bona fide war-related actions that take place on USA soil. It's the military nature of the operation that exempts it from the fourth amendment, not the fact that it's soldiers doing it. Had Posse Comitatus not existed, perhaps he would have written a different memo, which specified this in greater detail; since it does, there was no need.

2. This is not a court decision or an Act of Congress, but legal advice given to the President by his legal adviser. Yoo was entitled to assume that the President would act in good faith. He had no need to specify that, let alone to write safeguards in case the President were to act in bad faith. People here seem essentially to be worrying "what happens if the President pretends a raid is a genuine military operation, when in fact it's just domestic law enforcement, or even political thuggery"; I don't know what happens then, but this memo doesn't cover such scenarios. All it says is what soldiers are allowed to do on genuine military operations; the person it's addressed to knows which operations are genuine.
4.2.2008 9:26am
Scrivener:
Milhouse:

Was the military detaining Jose Padilla (a US citizen in the US) for over two years "a genuine military operation" or "domestic law enforcement"?
4.2.2008 10:01am
Chris Bell (mail) (www):
Also, note this on page 3:
Pursuant to his authorities as Commander in Chief, the President in October, 2001, ordered the Armed Forces to attack al Qaeda personnel and assets in Afghanistan, and the Taliban militia that harbored them Although the breadth of that campaign has lessened, it is still ongoing. Congress has provided its support for the use of forces against those linked to the September 11 attacks, and has recognized the President's constitutional power to use force to prevent and deter future attacks both within and outside the United States.
It doesn't get much clearer than this. The President thinks he has the power to use military force against perceived threats. The power and the choice are his alone, but Congress can chime in its support if it wants to.
4.2.2008 10:23am
advisory opinion:
Not law enforcement, as the NYSD and the 4th Circuit subsequently held. See also Kennedy's concurrence in on the change in theoretical basis on which the government was holding Padilla (implicit reference to the change from civilian custody to military custody).

That said, it's mostly irrelevant to the Fourth Amendment issues being discussed here, so you're raising a red herring.
4.2.2008 10:24am
Scrivener:
So military detaining a US citizen in the US 2002-2005 (I think it qualifies as "here and now") is a concrete example of a genuine "domestic military operation" for those of us who are worried about the Fourth not applying to "domestic military operations" under the footnote 10.
4.2.2008 10:30am
byomtov (mail):
Again, why would the President do this unless ordinary law enforcement was impossible due to a national security crisis?

Because he wants to avoid the legal constraints ordinary law enforcement operates under?

BTW, I share Andrew Edwards' response to this discussion. In the midst of all this wonderful legal expertise is there truly no one willing to respond as he suggests.

Just as a reminder, here's his question:

"Can the military kick in my door in my home without grounds, arrest me, and then zap me in the testicles with electrical wires, so long as the voltage won't kill me?"

and his recommended answer:

"No, never."

Is everyone so wrapped up in ex parte this and that and Schlemiel v. Schlimazl to be unable to agree with that?
4.2.2008 10:50am
Elliot Reed (mail):
Mike&: basically, yes. The legal analysis on that point is essentially nonexistent. How is citing the dictionary and moving on to an analysis of an unrelated statute that uses the phrase in a parenthetical a sound legal argument? No discussion of case law at all?
4.2.2008 11:16am
Curmudgeonly Ex-Clerk (www):
Scrivener:

I'm not sure what Padilla has to do with this Footnote 10 / Fourth Amendment issue. Padilla was not seized in domestic military operations of any sort, but rather was arrested by conventional law enforcement (the FBI) pursuant to a material witness warrant. He was later transferred to military detention. I think there's plenty of perfectly fair criticism that can be made of the administration's conduct in in the Padilla case, but its facts don't really seem to line up with the Fourth Amendment concerns regarding domestic military operations being expressed in this thread. Or do I misunderstand?
4.2.2008 11:17am
Anderson (mail):
So, now that John Yoo's true legal skills are a matter of public record ... is it time for Berkeley Law to reconsider his presence on the faculty?

Letting this guy teach law is disgusting. Absolutely disgusting.
4.2.2008 11:45am
Richard Aubrey (mail):
Seems to me that the question of torture--which is what most of Yoo's non-lawyer opponents think of when they hear his name--is based on what Yoo thinks of as precedent, existing definitions, or other existing authorities of greater or lesser applicability.
So the question is whether Yoo made this stuff up and backed it with bad scholarship, or if a case could be made for supporting his conclusions.
IOW: Does he "support torture" or does he think that certain techniques are not forbidden, according to his research? Did he make this stuff up or did he find it out there already existing?

It is not at all uncommon in disputes of this type to accuse somebody who points out an issue of supporting it. Of accusing somebody who points out a question with no good answers of supporting some bloody solution. IOW, misrepresenting the case altogether.
So, I would be careful to take anybody's word for what Yoo did. From the memos and the discussions of the memos, Yoo seems to have found a basis for his line-drawing. Maybe we should have looked at the assembled sources before this and discovered they allowed more than we think reasonable, not blamed Yoo for finding it.
4.2.2008 12:01pm
Anderson (mail):
Noting the newly released memos, Scott Horton takes the opportunity to plug the new article by Philippe Sands, part of his book Torture Team.

Here's a bit of Horton's post, including a quote from Sands (boldfacing mine):


Sands’s work is important because he has looked carefully at the chronology: what came first, the decision to use torture techniques, or the legal rationale for them?

Gonzales and Haynes laid out their case with considerable care. The only flaw was that every element of the argument contained untruths. The real story, pieced together from many hours of interviews with most of the people involved in the decisions about interrogation, goes something like this: The Geneva decision was not a case of following the logic of the law but rather was designed to give effect to a prior decision to take the gloves off and allow coercive interrogation; it deliberately created a legal black hole into which the detainees were meant to fall. The new interrogation techniques did not arise spontaneously from the field but came about as a direct result of intense pressure and input from Rumsfeld’s office. The Yoo-Bybee Memo was not simply some theoretical document, an academic exercise in blue-sky hypothesizing, but rather played a crucial role in giving those at the top the confidence to put pressure on those at the bottom. And the practices employed at Guantánamo led to abuses at Abu Ghraib.

The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse.
4.2.2008 12:06pm
J. F. Thomas (mail):
Maybe we should have looked at the assembled sources before this and discovered they allowed more than we think reasonable, not blamed Yoo for finding it.

Umm, we have been for the last four years or so since these memos became known. There is no doubt that Yoo's definition of torture (and his opinion that the President can ignore duly ratified treaties and laws) is wrong, wrong, wrong.

Anyone who defends him is not entitled to be called civilized or a believer in our system of government. They are no better than the torturers of tinpot Latin American dictatorships, Nazi Germany, or Stalinist Soviet Union.

That Yoo, Rumsfeld, Bush, Tenet, Stephen Cambone, and others have not been impeached (where necessary) and tried for war crimes is a shame and stain on this country that we will never live down.
4.2.2008 12:11pm
Scrivener:
I am trying to figure out what Yoo meant by "domestic military operations" (which he asserts are unconstrained by the Fourth) in the relevant context, and, in particular, would he call President sending soldiers to search a house in the US ("here and now"), for example, for terrorists or terrorism-related stuff a "domestic military operation".

Some people here seem to suggest that this kind of activity would properly be called "law enforcement" and not a "genuine domestic military operation".

In light of Padilla, where a detention of a US citizen in the US by the military on suspicion of terrorism "here and now" is called a non-law-enforcement "domestic military operations", I do not see how a house search in the US by the military on the same grounds cannot be called a non-law-enforcement "domestic military operations".
4.2.2008 12:15pm
Wrinkle-Free Pants (mail):
In light of Padilla, where a detention of a US citizen in the US by the military on suspicion of terrorism "here and now" is called a non-law-enforcement "domestic military operations", I do not see how a house search in the US by the military on the same grounds cannot be called a non-law-enforcement "domestic military operations".

Padilla was arrested by the FBI and local police in the international section of an airport. And he was an actual member of a terrorist organization that declared war on the United States. He was flying into the United States after receiving training in bomb-making and poison-making on a mission to blow up apartment buildings for panic-creation purposes. That has nothing to do with search someone's house for drugs. Absolutely nothing.
4.2.2008 12:34pm
Anderson (mail):
Btw, everyone's referring to this memo as "the one we've all been waiting for."

That's inaccurate, I think. The "second memo" that's attracted the most attention is the one that Sands mentions in the article linked above --

"The second memo, requested by John Rizzo, a senior lawyer at the C.I.A., has never been made public. It spells out the specific techniques in detail." IOW, based on Yoo's notions about "severe pain," etc., what exactly can be done to prisoners?

That one is still classified and hasn't been leaked. Maybe we'll learn one day that all the copies were accidentally destroyed.
4.2.2008 12:37pm
J. F. Thomas (mail):
He was flying into the United States after receiving training in bomb-making and poison-making on a mission to blow up apartment buildings for panic-creation purposes.

What? I thought it was to scout out locations to set off a dirty bomb! Oh yeah, he wasn't charged with that or the apartment building plot either. Those fanciful tales were probably extracted out of someone by torture.

What he was charged with was little more than filling out an application to join Al Qaeda.
4.2.2008 12:43pm
Scrivener:
Wrinkle-Free Pants:

Are you denying that Padilla was detained by the military in 2002-2005, if not, why are you bringing up "the FBI and local police"?

Did you notice that I said "on the same grounds", i.e. on suspicion of terrorism, if yes, why are you bringing up drugs?
4.2.2008 12:45pm
Anderson (mail):
What he was charged with was little more than filling out an application to join Al Qaeda.

Apropos of which, did anyone besides me get an irrelevant little hoot out of the fact that al-Qaeda has applications?
4.2.2008 12:56pm
Anderson (mail):
Oh, and as for Prof. Kerr's uncharacteristically embarrassing remark that the memos "look lawyerly," I suppose that a charitable reading of his remark might take it as meaning what LizardBreath @ Unfogged said:

It doesn't read like serious legal work, it reads like someone trying to convince non-lawyers that legal work has been done.
4.2.2008 12:59pm
Philistine (mail):
For an interesting look at what the Military itself thinks of the issue of the 4th Amendment's application to domestic military operations, here is an Article from the Marine Corps Gazette. The discussion is the difference between Rules of Engagement (ROE) and Rules on Use of Force (RUF) — and discusses the 1997 shooting by a Marine at a border observation post of a US citizen (who had shot at the Marine first). The 4th Amendment issue arises in the context of killing a person being a "seizure" for purposes of the 4th Amendment.


The second, and arguably most predominant, domestic RUF legal concern, the 4th Amendment to the U.S. Constitution, prohibits government agents from executing “unreasonable searches and seizures” and applies fully to the U.S. military during the conduct of domestic missions and in the exercise of domestic force protection.


The ostensible author of the piece is The Center for Law and Military Operations which is described as:


CLAMO is a resource organization that provides legal support for both Marine and Army operational lawyers. Created at the direction of the Secretary of the Army in 1988, it is located at The Judge Advocate General’s School, U.S. Army, in Charlottesville, VA. HQMC JA (JAO) exercises HQMC staff cognizance over international and operational law matters. This article has also been staffed with the International and Operational Law Division of the Office of The Judge Advocate General, U.S. Army.
4.2.2008 1:18pm
Kurt Opsahl (mail) (www):
In 2006, the Department of Justice issued a memo defending the NSA warrantless surveillance program that asserted "that warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF." The DOJ also asserted that "the NSA activities fit squarely within the sweeping terms of the AUMF. The use of signals intelligence to identify and pinpoint the enemy is a traditional component of wartime military operations." As the DOJ sees it, "In the present conflict, unlike in the Korean War, the battlefield was brought to the United States ..." The NSA is part of the Department of Defense.

Thus, the NSA domestic surveillance may be an example of what the Administration saw as a "domestic military operation" subject to the Yoo memo.
4.2.2008 1:35pm
Anderson (mail):
Great catch, Philistine!
4.2.2008 1:36pm
2d Amendment Dood:
Well, this reinforces a lot of what the paranoid ultra-2cd amendment types have been saying for a long time. What else could resist such tyranny other than a well-armed citizenry?
4.2.2008 1:42pm
Semper Why (mail):
So, to throw out a non-lawyerly hypothetical that doesn't involve drugs or wiretaps...

If Task Force 87 in the middle of the Afghanistan mountains grabs a terrorist and interrogates him (quite lawfully for a military war zone and all that), they gain intelligence. If that insurgent says "Yes, my brother is currently living in your city known as Detroit on something called '1234 M Street NW'. He will be destroying your biggest museum next month." does this now become a law enforcement issue?

Seriously, I would think that information gained under battlefield interrogation would not pass a judge to justify probable cause, no? In that case, would the military be tasked with surrounding and capturing the brother in Detroit? Would that be considered a domestic military operation? Or do they ask the FBI to do it (how would you justify that warrant?) and then take custody?
4.2.2008 5:42pm
advisory opinion:
Not a "great catch" at all.

The article refers to "domestic support to civil authority missions and 'nonoperational' force protection" - that is, military operations outside of war. By contrast, Yoo's 4th amendment position is taken in the context of military operations executed pursuant to the AUMF, which is an authorization of war.

The two contexts are utterly different for 4th amendment purposes.
4.2.2008 6:23pm
Oren:
The article refers to "domestic support to civil authority missions and 'nonoperational' force protection" - that is, military operations outside of war. By contrast, Yoo's 4th amendment position is taken in the context of military operations executed pursuant to the AUMF, which is an authorization of war.
That's quite a distinction. Where the difference is, however, remains to be seen.
4.2.2008 7:48pm
courtwatcher:
Richard Aubrey,
You say:
So, I would be careful to take anybody's word for what Yoo did. From the memos and the discussions of the memos, Yoo seems to have found a basis for his line-drawing.

But some of us actually have read the memos, and disagree with his basis. Some of his reasoning is remarkably weak - not persuasive statutory interpretation at all. For example, take a look at the excerpt from the memo in my post from April 1, 10:34 pm. Do you think he has articulated a sound legal basis for his definition of "severe pain"? Why? (See also Mike&'s 1:34 am 4/2 post.)

Also, now that the Supreme Court has held that our facilities are subject to Common Article III of the Geneva Convention, the premise for much of his memo seems to be simply incorrect. No?
4.2.2008 9:33pm
Anderson (mail):
Seriously, I would think that information gained under battlefield interrogation would not pass a judge to justify probable cause, no?

Why not? Probable cause is a pretty weak standard to meet, and military interrogation -- being bound by the Army Field Manual -- isn't going to be coercive such that the magistrate would be compelled to exclude the evidence.

I am always puzzled by the notion that our law enforcers and courts are too namby-pamby to do their job, so that Real Men have to step in, the law be damned, etc.
4.2.2008 10:09pm
regulararmyfool:
This bird does nest over at the Boalt Hall School of Law at the University of California - Berkeley.

Brendan over at brendancalling is trying to light a few small fires in his nest.

You might check this out and if you can get behind it do and pass it on.

http://brendancalling.com/2008/04/02/shaming-and-shunning/
4.2.2008 11:19pm
George Weiss (mail) (www):
milhouse-

in this universe-the memo's stating that there is no 4th amendment protections for a domestic military action have everything to do with Warentless domestic wiretaps (where they had trouble getting a warrant prior to fisa being reshaped)...they wanted to get around the idea that fisa hadn't been reshaped by saying they don't need a warrant.

very little to do with statutory prohibitions on military law enforcement...everything to do with the 4th.

thats this universe..
4.3.2008 7:30am
cboldt (mail):
-- On the substance, it seems to me that it is likely right that the Fourth Amendment does not apply to bona fide domestic military operations --

.

Likely "lost" due to the passage of time, but I'm compelled to add a thought here.

.

The issue will eventually resolve to a question of what constitutes a bona fide domestic military operation. In the comments above, the term seems to necessarily imply the physical presence of armed soldiers. But what if the administration viewed the act of telesurveillance ALONE as constituting a military operation? No "physical presence," no "active military zone" in the sense that one views streets void of civilians; but simply the military conducting "discrete" surveillance.

.

And so, if the administration asserts that surveillance only, with no intention of deploying military physical presence domestically, constitutes a bona fide domestic military operation, is the fourth amendment inapplicable? The administration says it held this view for some 16 months (from Oct 21), but has since repudiated it.
4.3.2008 9:53am