The Volokh Conspiracy

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.

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?

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.

So Yoo is saying no Bivens claims for military personnel, right?

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.

Zathras -- No, because 9/11 changed everything. pwn3d.

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.

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!

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?

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?

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.

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.

Does that seem like a stretch to anyone else?

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

I'm still waiting...

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).

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.)

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.

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.

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.

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.

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.

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.

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.

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

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?

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.

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. :-)

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.

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?"

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.

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.

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.

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.

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.

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?

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.

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.

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?

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?

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.

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)?

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.

"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.

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).

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.

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.

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.

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.

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?"

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?

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.

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.

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.

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)

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

Of course we're still reading!

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.

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.

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.

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?

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?

I conclude that JerryF was satirizing John Yoo's torture memo.

Sorry I didn't catch that quicker, man!

CDU- we agree there too

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?

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"?

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.

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?

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?

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.

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.

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.

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.

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?

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.

Great catch, Philistine!

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?

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.

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.

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..