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The Fourth Amendment and "Domestic Military Operations":
There has been a lot of press attention recently on references in the John Yoo torture memo to another classified OLC memo apparently concluding that the Fourth Amendment does not apply to "domestic military operations." For background, see here and here .

  What to make of this depends mostly on what you think the phrase "domestic military operations" might mean, and more specifically, what "military operations" are. If "domestic military operations" refers to actual active battlefields in the United States -- think the Battle of Gettysburg, or the British attack on Washington in the War of 1812, etc. -- then I think that conclusion is very likely correct.

  Why? Here caselaw doesn't do much for us. As far as I know there is no caselaw on anything like this question. Probably as close as you can get is United States v. Verdugo-Urquidez, and that's still pretty far away. But I think the problem is that the principles of the Fourth Amendment and the principles of an active battlefield are almost 180 degrees apart from each other. Fourth Amendment rules are all about proportionality; by contrast, military strategy often requires overwhelming force. I don't know how a Fourth Amendment lawyer could be expected to weigh in on questions of military strategy to try to respect some sort of Fourth Amendment constitutional values. What would the lawyer say -- that the Army should break into enemy safehouses only during day time, for fear that breaking in at night could interrupt the enemy's "period of nighttime repose"? That they should "knock and announce" their presence before the Marines take a hill? It's hard to know how the two worlds are supposed to mix; they are just totally different.

  Or at least they are very different if "domestic military operations" is given a narrow meaning, such as an active battlefield. If the phrase has some sort of broader meaning, then you start to run into problems. Obviously, the mere fact that a war is on does not eliminate Fourth Amendment rights. Nor does the fact that the President is commanding the Executive Branch to act to protect the country mean that the Fourth Amendment doesn't apply. See, e.g., United States v. United States District Court. If the OLC memo took a contrary position, then it's pretty obviously wrong.

  As for whether the OLC memo takes (or took) such a broad reading, we just don't know. The Administration has long had a very broad view of how broadly "the battlefield" is in the GWOT, so it's possible. But we just don't know, and without that it's hard to know whether the OLC memo is objectionable.
Zathras (mail):
OK: On a slightly different issue, do you think there is any plausible justification not to release this memo?

After seeing how un-nuanced Yoo's legal arguments were in justifying sweeping executive power, there is a (rebuttable) presumption that the arguments will be similar in style and outlook in this undisclosed memo.
4.10.2008 2:00pm
Chris Smith (mail):
>Fourth Amendment rules are all about proportionality; by contrast, military strategy often requires overwhelming force.

IANAL, but I'm fairly sure that the Law of Armed Conflict encourages proportional use of force, as well.
4.10.2008 2:03pm
OrinKerr:
OK: On a slightly different issue, do you think there is any plausible justification not to release this memo?

It depends what's in it, I think. If the memo discusses U.S. plans for specific kinds of domestic military operations in the event of a crisis, and then analyzes those operations under the Fourth Amendment, then that's a pretty good reason not to release it. On the other hand, if the memo is written on the generic question at a high level of abstraction, then I don't see a reason not to release it.
4.10.2008 2:03pm
Bart (mail):
Very likely Yoo is referring to the Truong line of cases which held that the 4th Amendment does not require a search warrant to conduct intelligence gathering against the agents of foreign powers. The agents of al Qaeda should fall under this precedent.
4.10.2008 2:14pm
Bill Poser (mail) (www):
How likely is it that John Yoo would even have had access to plans for military action in the event of a domestic crisis sufficiently detailed for their release to constitute a legitimate security threat? I would think that at that level of detail any legal advice would be provided by JAG lawyers. Do lawyers in the position that Yoo was in at DOJ typically hold high level security clearances?
4.10.2008 2:15pm
Bill Poser (mail) (www):
One area in which there are presumably questions as to what rules apply is that of the rights of presumptive non-combatants in the vicinity of an actual battlefield. If, hypothetically, Canada invades Vermont and establishes a beachhead in Derby Line, it is clear as you say that Marines require no warrant to capture the enemy command post or to infiltrate and steal the enemy's plans. But what rules govern, say, searches of private residences outside near but not on the battlefield? In Iraq, the fourth amendment does not apply. But what about Vermont?
4.10.2008 2:23pm
cboldt (mail):
-- What to make of this depends mostly on what you think the phrase "domestic military operations" might mean, and more specifically, what "military operations" are. --

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Or, on what the authors of the opinion thought those terms meant, or intended those terms to mean. Contemporaneous conditions "on the ground" militate toward a construction that is not "Battle of Gettysburg" in nature. But, the memo never comes out and defines its own terms in this regard, thereby keeping the argument alive!

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The WH did argue however, that the AUMF authorized the TSP surveillance. Setting the Record Straight: Democrats Continue to Attack Terrorist Surveillance Program. The phrase "domestic military operation" doesn't appear there, but the TSP implicates consideration of the fourth amendment.
4.10.2008 2:26pm
Lawyer-Wearing-Yarmulka (www):
If, hypothetically, Canada invades Vermont and establishes a beachhead in Derby Line, it is clear as you say that Marines require no warrant to capture the enemy command post or to infiltrate and steal the enemy's plans.But what rules govern, say, searches of private residences outside near but not on the battlefield? In Iraq, the fourth amendment does not apply. But what about Vermont?

Interesting question. To expound, say the Marines believe that Canadian commandos are holed up in a canuck-sympathizing Vermont residence. Do you need a warrant before assaulting the house?
4.10.2008 2:31pm
CrazyTrain (mail):
As for whether the OLC memo takes (or took) such a broad reading, we just don't know.

Sure, if we ignore everything that's happened in the last seven years and the other memos release, then it really is a complete mystery. But if we factor in what, you know, has been happening, I think we can infer that he wasn't talking about actual military zones, like Gettysburg, etc. It was this precise point I made in the last thread where this subject came up and the response was to ignore it and pretend Yoo was just talking about actual battle zones. . . . I would bet quite a bit of money that "domestic military operations" includes spying on Americans.
4.10.2008 2:31pm
Zathras (mail):
But I think the problem is that the principles of the Fourth Amendment and the principles of an active battlefield are almost 180 degrees apart from each other. Fourth Amendment rules are all about proportionality; by contrast, military strategy often requires overwhelming force. I don't know how a Fourth Amendment lawyer could be expected to weigh in on questions of military strategy to try to respect some sort of Fourth Amendment constitutional values. What would the lawyer say -- that the Army should break into enemy safehouses only during day time, for fear that breaking in at night could interrupt the enemy's "period of nighttime repose"? That they should "knock and announce" their presence before the Marines take a hill? It's hard to know how the two worlds are supposed to mix; they are just totally different.

Why couldn't one just put all of these cases under the 4th amendment doctrine of "exigent circumstances?"
4.10.2008 2:33pm
CrazyTrain (mail):
If the memo discusses U.S. plans for specific kinds of domestic military operations in the event of a crisis, and then analyzes those operations under the Fourth Amendment, then that's a pretty good reason not to release it.

If the queen had balls, she'd be the king. We know that's not the case; the OLC is not generally privy to actual, planned operations --- and this point undermines your point that "we just don't know" whether this memo took a broad reading. If it did not take a broad reading, then it almost certainly was not talking about actual planned "domestic military operations" as I don't think there were any plans for a battle for Gettysburg-style military operation within the United States in the last five or six years. Call me crazy, but even I don't think Bush and Cheney were planning for a military attack on New Orleans.
4.10.2008 2:33pm
Bart (mail):
These memos all addressed our war with al Qaeda. Thus, the term "domestic military operations" most likely refers to intelligence gathering against al Qaeda in the United States. Under the Truong line of cases, the 4th Amendment does not require search warrants for conduct intelligence gathering against agents of a foreign power.
4.10.2008 2:34pm
cboldt (mail):
My first reaction to the transcript of the exchange between Senator Feinstein and AG Mukasey is that he's not responsive to the contents of the memo. He contends that the 4th amendment applies in wartime (but "in wartime" isn't the qualifier)

.

Mukasey's "I'm unaware of any domestic military operations being carried out today" is more useful, and militates toward the construction of "domestic military actions" more resembling Gettysburg than simply using military snoop orders as substitutes for DOJ snoop orders, as a means to get around the fourth amendment.

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Still, the exchange doesn't illuminate that ultimate question.
4.10.2008 2:36pm
OrinKerr:
Bart,

I believe the claim is that the Fourth Amendment doesn't apply, not that the warrant requirement doesn't apply. Given that, it seems pretty unlikely that the memo is just referring to Truong.
4.10.2008 2:36pm
CrazyTrain (mail):
If "domestic military operations" refers to actual active battlefields in the United States -- think the Battle of Gettysburg, or the British attack on Washington in the War of 1812, etc. -- then I think that conclusion is very likely correct

To beat the dead horse, I realize that we basically do know for a fact that is not what he was talking about. The very title of the memo is "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."
4.10.2008 2:37pm
Don Miller (mail) (www):
IANAL, but I was in the Army, Infantry.

The very idea that the 4th Amendment applies when the Army is in the field conducting combat operations is silly. The Army is not there to gather evidence to arrest or prosecute anyone. They are there to defeat the enemy. IE kill people.

Trying to define a battlefield in the classic sense is almost as silly. 200 years ago the battlefield could be viewed with the naked eye. If you couldn't see the armies, you probably were outside the battlefield.

Modern militaries don't form nice pretty lines. They don't bunch up in nice groups. They spread out, they hide, they use weapons that can fire over the horizon.

If you are within 5 miles of actual armies shooting at each other, you are probably in the area the commanders consider battlefield. If you are within a 100 miles, you are probably on the battlefield. If you are 500 miles away, you might still be on the battlefield if both sides are using aircraft or missiles.

As far as the International Law of Armed Conflict requiring proportionate response, this is an example of politicians and lawyers telling the military how to fight. Any military strategist will tell you the best way to win the battle is to hit the enemy hard fast and with overwhelming force. This tactic minimizes your own casualties and maximizes enemy casualties. That is the point.

Winning a war requires you to remove the enemies will to fight anymore. You use overwhelming force all the time so that you break their spirit and cause them to surrender see WWII Pacific and European Theaters for an example.

If you don't use overwhelming force all of the time, and try to use proportionate response, you never break the enemies will. You end up with long drawn out quagmires that make no one happy. See Korea, Vietnam and Iraq for examples.
4.10.2008 2:40pm
Soronel Haetir (mail):
Given that the 4th seems to mostly square with criminal proceedings (rightly or wrongly) I wonder if this is perhaps the wrong question.

the VT hypo above, say the Marines stumble onto a drug cache or some other contraband, the real question is can anyone be punished for that? Is the Marines having seen the contraband, but having been too busy to do anything about it enough to constitute PC?

So the questions that matter in an active battlefield senario seem mostly removed from the issues of operations.
4.10.2008 2:40pm
OrinKerr:
To beat the dead horse, I realize that we basically do know for a fact that is not what he was talking about.


CT, you're beating a dead horse with an argument I do not understand. Perhaps this is the "we all know what I would guess at" shtick, to add some pizzazz and snark on an otherwise boring day? Care to explain?
4.10.2008 2:42pm
cboldt (mail):
-- if we factor in what, you know, has been happening, I think we can infer that he wasn't talking about actual military zones, like Gettysburg, etc. --

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I agree. This is the most likely and natural construction, as reflecting the "military situation" that was in place on US soil at the time.

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If the US was a shooting battlezone in general (and while I appreciate that many people hold Manhattan on 9/11 to have been a shooting battlezone, that, given the nature of the enemy, could reasonably be extended to the entire US, for purposes of this comment I'm talking a position that the US wasn't and isn't a shooting battlefield), the need for a justification memorandum is muted. In shooting battleground conditions, act first, justify later.
4.10.2008 2:44pm
Ben P (mail):

Interesting question. To expound, say the Marines believe that Canadian commandos are holed up in a canuck-sympathizing Vermont residence. Do you need a warrant before assaulting the house?


I think that would be well within the definition of exigent circumstances.

I think the problem with Yoo's arguments is that they don't necessarily make the distinction between levels of what might be described as similar to exigency.

If we had solid evidence that there was a terrorist "compound" somewhere and that an attack was imminent, I don't think most people would be overly hesitant to use force to remove the danger.

But Imagine for example, with the same Canadian commandos, that they are captured in Vermont, and intelligence recovered from them showed that they were intending to rest at a safe house in Pennsylvania a week from now before contining onward.

There's no evidence this man is anything other than a sympathizer, and no evidence that he's in any way related to the military himself. Is this cause for asserting that "domestic military operations" remove any warrant requirement?


I think that's where Yoo's logic scares people, because it might well be OK to apply it to armed terrorists that are inside the US. But it can almost as easily be extended to apply to a man inside the US whos connection to islamic terrorists in Afghanistan is that he may have made bank transactions or distributed literature.

Asserting that the arrest of this man is a "domestic military operation" merely because he's tenously connected to the same enemy we're fighting overseas is a big stretch.
4.10.2008 2:45pm
LarryA (mail) (www):
As for whether the OLC memo takes (or took) such a broad reading, we just don't know.
Given that I can't see a court holding the military to higher Forth Amendment standards than a police SWAT team, I'd say that when an infantry squad raids your house they'll pretty much have free reign.

Consider the incident on the Texas border a couple of years ago where a squad of soldiers concealed in an observation post shot and killed a teenage shepherd who was carrying a .22. The legal response was, basically, "Oops. Mistakes happen."

Then there was the military participation in the Branch Davidian situation in Waco. That wasn't a petty sight.

Which is why posse comitatus is supposed to protect us from the military.
4.10.2008 2:47pm
Dilan Esper (mail) (www):
I believe the claim is that the Fourth Amendment doesn't apply, not that the warrant requirement doesn't apply. Given that, it seems pretty unlikely that the memo is just referring to Truong.

Professor Kerr is right about this. Indeed, it's very possible that this even applies to Professor Kerr's analysis-- the right answer isn't that the Fourth Amendment "doesn't apply" to military operations, but that many searches incident to military operations are per se reasonable, either because of exigent circumstances or some battlefield-specific Fourth Amendment exception that has not yet been recognized.

But the flip side of it is that the President shouldn't be able to circumvent the Fourth Amendment simply by couching whatever law enforcement operation he or she wants to engage in as a "military operation" or "warfare".

It should be mentioned as well that Truong and the cases following it which Bart is referring to were lower court cases. In United States v. United States District Court (Keith), the Supreme Court case cited by Professor Kerr, the Court rejected a broad argument that the executive had national security powers that overrode Fourth Amendment rights. The Court declined to decide in a footnote whether this extended to foreign intelligence surveillance within the US, as that issue was not presented. But it's certainly possible that Truong and its progeny were wrongly decided.
4.10.2008 2:52pm
Corbett (mail):
...the 4th Amendment states no exceptions for military operations
{domestic or foreign}, nor for war, nor for emergency.

It legally restricts all Federal Government search authority against the citizenry ...24/7, 365 days per year (+ leap years).

There is no difficulty in reading the 4th Amendment --- and
honestly observing NOT the slightest hint of a "military exception" to its legal requirements.
4.10.2008 3:05pm
Scrivener:
Orin,

Do you think military detaining a US citizen (Padilla) in the US 2002-2005 on suspicion of terrorism is a concrete example of a "domestic military operation"?

If this is not "domestic military operation", why not?

And if this is a "domestic military operation", why a house search in the US by the military on suspicion of terrorism cannot be called a non-law-enforcement "domestic military operations"?
4.10.2008 3:07pm
LarryA (mail) (www):
To expound, say the Marines believe that Canadian commandos are holed up in a Canuck-sympathizing Vermont residence. Do you need a warrant before assaulting the house?
Absent this being part of an active military invasion, or a compelling need to immediately neutralize the commandos, the Marines should secure the area and call in civilian law enforcement. The LEOs should get a warrant.
4.10.2008 3:07pm
SDProsecutor:
Corbett, does the qualifier "unreasonable" factor into your analysis?

The ongoing debate over the 4th Amendment during wartime is a lot of tilting at windmills. Combat and criminal prosecution do not exist on a continuum. They are wholly separate constructs, each with doctrines inapplicable to the other.
4.10.2008 3:11pm
Temp Guest (mail):
The Exclusionary Principle should handle liberal qualms. The military goes in and does what it must. Evidence that survives (if there is any) may not be used against enemy survivors (if there are any).
4.10.2008 3:11pm
Cold Warrior:
I'm glad Prof. Kerr took this one on. The media (and, indeed, the majority of law professors) seized on this statement in the Yoo memorandum as evidence of exactly how far outside the mainstream (perhaps so far as to be unethical) the Yoo memorandum really is.

But the truth is that this is one of the most innocuous/widely accepted principles in the memo. And it brings us back to the core argument between this Administration and the law prof majority. If we are at war, and if 9/11 was a series of attacks in that war, then the 4th Amendment does not apply. If we are investigating a series of criminal acts (hijacking/mass murder, etc), then the 4th Amendment does apply.

Impossible though it may seem, I take a middle ground here. I think the Nation Under Attack/Military Response mode was justified and appropriate in the months immediately following 9/11. I do not believe it is justified or appropriate today. When did the shift occur? That's the problem.
4.10.2008 3:17pm
cboldt (mail):
-- I think the Nation Under Attack/Military Response mode was justified and appropriate in the months immediately following 9/11. I do not believe it is justified or appropriate today. When did the shift occur? That's the problem. --

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Why should the justification turn on the occurrence of a successful attack? If military-style intrusion into what the public probably perceives as fourth amendment rights is justified in the wake of a successful attack, then it should be justified also on suspicion of further attack planning. The government advances evidence of disrupted plots, ergo, is the country not in the same wartime situation it was in due to the (unfortunately successful) 9/11 plans, before the plan was executed?
4.10.2008 3:27pm
Bart (mail):
Orin:

It is possible that Yoo is making that argument that the 4th Amendment is restricted to criminal justice matters and does not apply to wartime military operations. This would appear to be historically correct. The 4th Amendment hardly stopped the Union Army from searching and occupying civilian homes during military operations. The only limit which would appear to apply there is the Third Amendment.
4.10.2008 3:30pm
Thomas_Holsinger:
War is chaotic, and not merely messy. Trying to create legal bright-line distinctions of this sort in advance of enemy action is silly. What does work is noting how broad a field possible events might operate in, and laying out general principles.

Which makes the Civil War analogies useful. Jim Dunnigan of Strategy Page noted that simulations which cannot predict or reflect past events are useless. I.e., proposed rules in this field which would not authorize past Civil WAr military operations are dead on arrival.
4.10.2008 3:30pm
FWB (mail):
See Ex parte Milligan.

While the Courts differ from my and Cooley's opinion on this, reasonable search requires a warrant as is exposited in the 4th.

The "War Power" doesn't even include the simple power to suspend habeas corpus (separate grants in the Constitution), thus how can the "War Power" override something as important and extensive as the 4th?

The Rights in the BoR are not grants (US v Cruikshank) but are an enumeration of preexisting Rights. Nothing in the BoR remotely insinuates that these are only Rights of a citizen. The Framers recognized these Rights as Rights of ALL human being (see D of I).
4.10.2008 3:47pm
GV:
My understanding is that the government, in response to Yoo's memo being released, said it no longer believe that the Fourth Amendment did not apply to domestic military operations. If all Yoo's footnote was referencing was a memo that said the Fourth Amendment didn't apply to battlefield-type scenarios, why would the government back off that claim? Is it much more likely, given what we know, that the referenced memo took a very broad view of battlefield? Didn't the government previous claim that the shoe bomber was caught on a "battlefield"?
4.10.2008 3:52pm
GV:
I'm sorry, my last post wasn't clear. Let me try again:

My understanding is that the government, in response to Yoo's memo being released, said it no longer believed that the Fourth Amendment did not apply to domestic military operations. If all Yoo's footnote was referencing was a memo that said the Fourth Amendment didn't apply to battlefield-type scenarios, why would the government back off that claim? Isn't it much more likely, given what we know, that the referenced memo took a very broad view of domestic military operations? Didn't the government previous claim that the shoe bomber was caught on a "battlefield"?
4.10.2008 3:54pm
J. F. Thomas (mail):
I bet Ilya is more concerned whether there is a Yoo memo out there that justifies ignoring the 3rd amendment.

Now that would be intolerable!
4.10.2008 4:06pm
PLR:
Orin,

Do you think military detaining a US citizen (Padilla) in the US 2002-2005 on suspicion of terrorism is a concrete example of a "domestic military operation"?

... or is it more analogous to a kidnapping?
4.10.2008 4:09pm
Gary McGath (www):
Given that there is no civil war or foreign invasion occurring or threatened, and given the current administration's repeated overreaching of its powers, I want to see the memo before giving the administration the benefit of the doubt.
4.10.2008 4:23pm
Oren:
Thomas, so you are willing to concede Milligan and Merryman? That's fantastic news!
4.10.2008 4:28pm
Diplomatic Gunboat:
This is not only hypothetical. Marines were called in to respond to the LA Riots after the Rodney King police acquittals. This raised these important constitutional issues, and others including use of force, etc., on Americans. I urge extreme caution in stating that the U.S. military, sworn to support and defend the Constitution, is not subject to it while engaged in operations within the United States.

In contrast to the LA riots, the subject memorandum probably addresses the domestic surveillance programs--disclosed and undisclosed--and accordingly is very highly classified. The OLC is exactly the sort of agency to address its legitimacy in light of the Foreign Intelligence Surveillance Act (FISA). Certain of the OLC lawyers have the highest of clearances. Jack Goldsmith has addressed the surveillance issue briefly, to say that it was the subject of his most contentious disputes with Addington, et al., but that much of the issue remains classified.

The subject memo probably approved the executive branch's 'domestic spying' programs largely by labeling them 'domestic military operations' even though they are probably primarily civilian, and certainly not combat, yet stating broadly that certain fundamental constitutional protections such as the 4th Amendment do not apply to DMOs, much less statutes such as FISA which would invade the executive's Commander-in-Chief power. These are spurious arguments.

Again, I urge extreme caution in stating that the U.S. military, sworn to support and defend the Constitution, is not wholly subject to it while engaged in operations within the United States.

Do not take me wrong--it is obvious that the Battles of Gettysburg, or Fredericksburg, etc., did not allow for search warrants. The Supreme Court has ably handled exigent circumstances in their warrantless police search cases, and I am confident they would do so in a military instance as well. But I ask you not to turn the military oath on its head by an utterly unnecessary exemption, further undermining this same Constitution.

Please note that, after the domestic spying program was (partially) disclosed, Congress easily amended FISA to accord the President's wishes, despite the political affiliation differences. (Retroactive immunity for past criminal behavior is and should be a separate matter.)

Incidentally, someone mentioned the Posse Comitatus Act. That statute has been amended so thoroughly, with so many exceptions added and work-arounds developed, that it now has no practical effect.
4.10.2008 5:28pm
Cold Warrior:

Given that there is no civil war or foreign invasion occurring or threatened, and given the current administration's repeated overreaching of its powers, I want to see the memo before giving the administration the benefit of the doubt.


Do you also think it's a stretch to argue that the 9/11 attacks were a "foreign invasion?"
4.10.2008 5:28pm
Diplomatic Gunboat:
The framers knew how to insert a wartime exception into constitutional protections. For example, the Third Amendment which states 'nor in time of war, but in a manner to be prescribed by law.'
Even in time of war it is subject to the law. (My post here addresses related issues.)

The Fourth Amendment contains no such exception.
4.10.2008 5:36pm
William D. Tanksley, Jr:
"IANAL, but I'm fairly sure that the Law of Armed Conflict encourages proportional use of force, as well."

IANAL either, but /jus in bello/ (justice during war) includes the concept of proportionality -- but it's proportionality in goals, not in means. If, for example, the bad guys have offended by taking some territory, your goal should be to correct the territorial situation, not to wipe their entire race off the planet. /jus ad bellum/ (justice leading up to war) contains a complementary concept of achievability, such that one should not start (or respond violently to) a war which one cannot effectively win, thus implying that if all you can do is respond in exact proportion to the attacker, you should not respond at all.
4.10.2008 5:57pm
EH (mail):
Do you also think it's a stretch to argue that the 9/11 attacks were a "foreign invasion?"

I do. In fact, as someone who lives in the US but far away from NYC or DC the 9/11 attacks did not affect me personally. The US was no more invaded on 9/11 than it was with the USS Cole. If anything I'd say it could be called an incursion.

None of which addresses the "foreign" appellation, which is complicated by the whole stateless POW/unlawful combatant critique of Al Qaeda/Afghanis/Iraqis/bad neighbors/etc.
4.10.2008 6:00pm
Kelvin McCabe:
You mean domestic military operations like - - using military satellites to do domestic spying??

They used to train those pesky space contraptions on the enemy. Now they are trained on us. I believe it was the ACLU who recently received a return on a FOIA request from the FBI where it was apparently shown that the FBI is getting DoD data from military satellites.

Respectfully, Mr. Kerr, I realize prudence is the best course for you as a professional and an academic. But to PRETEND, which is exactly what you are doing, pretending to believe that this memorandum "could have been" dealing with Gettysburg type battle field on U.S. soil as opposed to the war on terror and related issues is simply PREPOSTEROUS!

There are whistelblowers all over the place - - telling the alternative media and anyone who will listen EXACTLY what has been going down before and since 9-11 and to what extent. Just because some Government hack won't acknowledge facts because of state's secrets or ongoing investigations (or because it could incriminate them) doesn't mean the information isn't out there. I don't expect you to jump to conclusions based on 'no' evidence, that would be improper - -but c'mon. The Electronic Frontier Foundation, the ACLU, other privacy/legal groups have been putting all this information out there for years and you always seem to never have enough solid information to jump off the fence; which is disappointing because of your extensive knowledge of the 4th amendment.

Note Mukasey's answer to Feinstein's specific question regarding the 4th amendment no longer being operative: "I am unaware of any domestic military operations." Repeat the question, with Feinstein narrowing down the question to avoid the part of whether there are or are not military operations currently being conducted: "I am unaware of any military operations being conducted." What do you call that when someone avoids answering a very specific question and instead answers a closely related question that he was specifically told, "That's not the question I asked"? He didn't assert states secrets or confidentiality or anything else - he just straight up avoided and skirted the question.

I, unlike you, have no professional, academic or other pressures requiring me to be LPC&S (legally politically correct and safe) so I'll say it for you: Mukasey is lying about his knowledge (or lack thereof) of military cooperation in domestic surveillance. He is intentionally and obviously obfuscating to avoid committing further perjury with regard to the 4th amendment and its apparent lack of application to these operations. Further, the secret memo at issue deals with domestic surveillance and spying related to the global war on terror and NOT Gettysburg or any other similar analogy.

If you want to do something like this, and you need an official albeit secret 'memo'to justify it, who do you call? You going to call Jack Goldsmith? Or the guy who can find no conceivable limit to the President's authority in a time of war and will go along with the program? I think you call the "Yes sir, we can legally do that sir" guy. I don't mean to be unduly critical of Yoo, at least the guy is consistent - but it would be ridiculous to think its some mere coincidence that the most controversial legal positions on these various subjects somehow trace themselves back to Mr. Yoo. I ain't buying it and neither should anyone else. There may not be hard evidence, but there is plenty of circumstantial evidence. Take it where it leads you.

And for the love of God - take the official government position from their designated spokesperson with the appropriate grain of salt. The u.s. government has been lying about all kinds of subjects for decades. This isn't new and its all pretty well documented.
4.10.2008 6:41pm
Bill Poser (mail) (www):

/jus in bello/ (justice during war) includes the concept of proportionality -- but it's proportionality in goals, not in means.


The law governing collateral damage includes a concept of proportionality. The likely amount of collateral damage must be proportionate to the military value of the target. Thus, bombing a factory that makes fighter jets is justifiable even if it will kill a large number of civilian workers, while bombing a factory that makes rifle slings is probably not justifiable for the same level of collateral damage.
4.10.2008 6:41pm
PLR:
I do. In fact, as someone who lives in the US but far away from NYC or DC the 9/11 attacks did not affect me personally. The US was no more invaded on 9/11 than it was with the USS Cole. If anything I'd say it could be called an incursion.

Or mass murder.
4.10.2008 7:06pm
Anderson (mail):
Or mass murder.

Right. Tim McVeigh did not "invade" Oklahoma City. The 9/11 hijackers, largely Saudis, were not agents of the Saudi gov't or of any other state.

If one were for some reason reluctant to call them "criminals" (who do not "invade"), then they would be more analogous to pirates; if anyone has any case law on whether a boatload of pirates who raided Miami would be "invaders," that would be interesting.
4.10.2008 7:22pm
Nice to see the(?) legal isssue re: Yoo (mail) (www):
Just maybe to add another legal/political issue in relation to being upset over arrogation of power by a president, didn't Lyndon Johnson direct the 82 Airborne to Detroit where it fired on rioters after the murder of MLK? Not that the rioters weren't firing on the Detroit Fire Department trying to rescue people.
4.10.2008 8:50pm
molon labe (mail):
The 9/11 hijackers, largely Saudis, were not agents of the Saudi gov't or of any other state.

And how will you respond if there is an attack within the US by Iranian special forces in their various disguises, including as leaders of some Hezb'allah cells?

The huge difficulty that no one is mentioning here is that the nice neat distinctions you all would like have broken down. What is and is not an agent of the state has been deliberately obscured. What is and is not a military attack on the US or elsewhere is likewise a lot harder to delineate.

I am not in favor of thereby giving carte blanche to the feds. But I have some reason given my job to realize that this administration is wrestling with seriously challenging dangers. Those who snark from their safe legal desks do so in the smug knowledge that they will never have to bear the moral burden of trying to strike the right balance between short and long-term consequences of their choices.
4.10.2008 8:55pm
Adam J:
Cold Warrior- Do you also think it's a stretch to argue that the 9/11 attacks were a "foreign invasion?"

I think it's a very large stretch indeed... don't you?

The remarkable thing is you also claim that the whole domestic military operations section is innocuous... that's only true if Bush doesn't attempt expand the definition of "domestic military operations" to include any security measure taken by the government within the US. And that kind of implausible definition would certainly be par for the course for this administration.
4.10.2008 9:01pm
SteveMG (mail):
I am not in favor of thereby giving carte blanche to the feds. But I have some reason given my job to realize that this administration is wrestling with seriously challenging dangers.

Here, here.

The men and women struggling to find the right mix between liberty and security, the "one-and-the-many", freedom versus safety did so under pressures that we sitting here simply cannot comprehend.

That doesn't, in any way, excuse abuse of their powers. But I would hope that those today who are so sure about how wrong those decisions were - and as an admitted layperson they seem to me to have made some pretty potentially dangerous decisions about their authority - would understand the situation they were operating under.

Sure, that's what they get paid to do. But the pay ain't that good.
4.10.2008 9:29pm
Heh:

But I would hope that those today who are so sure about how wrong those decisions were - and as an admitted layperson they seem to me to have made some pretty potentially dangerous decisions about their authority - would understand the situation they were operating under.


I'm sorry, your statement is too sane for here. If you're not yelling for impeachment, and telling us how much of a criminal and baddy Yoo is, then I don't think I want you posting here.

I mean, how on earth could anyone actually take into account the mindset of these guys, and the information they had that day?? Man! We've got hindsight, even without having all the facts and memos! We know they're wrong, even though
we don't actually have enough facts to prove it!

Whe
4.10.2008 10:25pm
Heh:

Whe


We hit "post comment" before we clean up the comment!!
4.10.2008 10:27pm
OrinKerr:
Kelvin McCabe writes:
You mean domestic military operations like - - using military satellites to do domestic spying??
No.
Respectfully, Mr. Kerr, I realize prudence is the best course for you as a professional and an academic. But to PRETEND, which is exactly what you are doing, pretending to believe that this memorandum "could have been" dealing with Gettysburg type battle field on U.S. soil as opposed to the war on terror and related issues is simply PREPOSTEROUS!
kelvin, I am not pretending anything. I am simply recognizing what I don't know. I apologize if you find this offensive.

You and George W. Bush both seem to have a tremendous amount of certainty about the world around you. I take a different approach.
4.10.2008 11:37pm
Al Maviva:
It isn't difficult to imagine a couple situations where military forces would be used on domestic soil, short of the Saracens massing and rushing up Little Round Top.

Hypo 1: Battlefield intelligence indicates that suspected AQ are holed up in a house near an airport in the U.S. with designs on taking out a couple passenger jets. They are suspected to have man portable air defense weapons - anti-aircraft missiles. Along with that, there is good evidence that they have RPGs, and a couple heavy machine guns to cover any approaches to the house from nearby fields. Cursory investigation reveals the house is occupied and the men in the house appear to be the ones discussed in the foreign intel information. Should an FBI swat team be called in to mount what sure looks like a military attack, or should one of the military special operations teams, that routinely deals with heavy weapons issues along with assaults on buildings, be called in to do it? Assuming the military element takes prisoners, will the evidence seized on site be available for use in a court of law? Is a warrant necessary to enter the property? (You may remember that antiaircraft missile threats were sort of a big issue post-9/11.)

Hypo 2: Unusual radiological traces are detected in a major urban area. The contamination is of a sort associated with weapons. The contamination is localized, and tracked back to a particular building. The tactical choice is to send in civilian law enforcement agents, or a military unit. Do all constitutional protections apply? If so a warrant is required, and the force used must be proportional to the threat. What exactly is proportional threat where possible WMD (radiological or nuclear) is concerned? Assume that Congress has authorized military operations of this sort involving suspected WMD, rendering Posse Comitatus concerns irrelevant. Or maybe not - does the AUMF cover a military operation against a suspect AQ cell, in residence in the U.S., in possession of a nuclear weapon? If not please explain what laws ought to govern, because I'm convinced the AUMF probably would, or, failing that, that this probably is a situation where "broad executive powers of the President" could colorably be argued as supporting such a raid.

These are non-trivial questions. Reducing them to a partisan talking point and stating that even thinking about the problems is just a Bush power grab, makes me wonder if there's not some brain wasting disease afoot. Preventing the unthinkable at times probably requires contemplating the undesirable. The lesson I take away from the spreading Yoo debacle is that no government attorney, ever, should encourage the government to exercise its powers to the limits of the law. A government attorney will not pay the price for government failures to act; only those needlessly endangered or injured, and possibly the elected leaders, will pay that price. There's simply no upside in attempting to consider tough questions ahead of time, or in giving honest opinions when they do arise, other than "don't do it," no matter what "it" is.
4.11.2008 12:52am
Jim Rhoads (mail):
Even, Count Almaviva, when your job is precisely to consider tough questions ahead of time you mustn't use your imagination on pain of being shunned by those "in the know".

I guess the only answer is, "this is too tough, we must surrender".
4.11.2008 1:59am
ohgoodgrief (mail):
Interesting discussion. May I make the observation that the opinions of lawyers are ALWAYS expressed through the lens of their profession. IANAL but I taught S&S to police officers. The 4th Amendment clearly was not intended to act as a deterrent to military action. George Washington used the Army to suppress farmers in the Whiskey Rebellion. I am not aware of any case-law emerging from this. Common sense (however rare it is) prevailed more during those times than now. If the Marines were to go after the Canucks hiding in a Vermont pot grower's house and find marijuana, the courts would have as much time as needed to sort out the mess AFTER THE FACT. That's what the 4th Amendment is about.
4.11.2008 2:30am
Synova:
I've got a short SF story manuscript from before 9-11 (9-11 actually made it unsalable at the time) which has a plot that rests on the assumption by one party that war requires the actions of a State and assumptions by the other party that they can wage war on anyone they darn well please and that calling the aggressions of the not-State (in this case corporation) a not-War was... well, I suppose they considered it foolish lawyering.

"The 9/11 hijackers, largely Saudis, were not agents of the Saudi gov't or of any other state."

Why not let the 9/11 hijackers and Bin Laden define the parameters of their own activity? Bin Laden quite formally declared war with a nicely written document. Who are we to tell him he's not allowed because he doesn't have borders?

Nations and States are essentially human constructs that exist within our imaginations. Since we all believe together our collective will is manifest. Why does this require geography at all?
4.11.2008 2:43am
J_A:

Nations and States are essentially human constructs that exist within our imaginations. Since we all believe together our collective will is manifest. Why does this require geography at all?


It requires geography because since at least Westphalia, in 1643, our collective will determined that there is a difference between states and rogue individuals, and that for purposes of international relations, including wars -except civil wars-, only states count, not rogue individuals.

Osama can no more declare "war" on the US than we can declare "war" on drugs or on poverty. Osama can mass murder thousands, and that is called terrorism.

Yes, we should fight terrorism. Yes we should pursue rogue mass murderers (last time I checked, looking for Osama didn't seem to be a high priority any more, but that's neither here nor there). What we would do only at our peril is subvert the international framework that has been in place for 350 years, unless we want chaos to roam free.

And please lert me know when drugs surrend, and we win that war too
4.11.2008 9:35am
ParatrooperJJ (mail):
It is basic common sense. Of course the 4th does not apply to military operations. The military is concerned with killing people, not prosecuting them.
4.11.2008 10:02am
Howard Gilbert (mail):
The first POW of WWII was Ensign Sakamaki, commander of a small Japanese submarine that was supposed to take part in the Pearl Harbor attack. His submarine was beached and he was captured by military personnel in Hawaii on Dec. 8. As an enemy sailor covered by Article 4 of the Fourth Geneva convention, he had combatant immunity and could not be charged with any civilian crime. Lawful enemy combatants are not subject to the criminal justice system but may only be detained by the military. There is, therefore, no probable cause to present to a judge, because that term refers to a criminal investigation. Legitimate domestic military operations do not require a "battlefield" or an "invasion", but they probably require lawful enemy combatants or an enemy force reasonably believed to consist of lawful enemy combatants. It is the handling of unlawful combatants (spies and saboteurs) where things get ambiguous and reasonable people may disagree.
4.11.2008 10:25am
Happyshooter:
Consider the incident on the Texas border a couple of years ago where a squad of soldiers concealed in an observation post shot and killed a teenage shepherd who was carrying a .22. The legal response was, basically, "Oops. Mistakes happen."

Nice spin.

Esequiel Hernandez Jr, the 18 year old man in question, had a history of shooting at Border Patrol agents. He took several shots at the Marine patrol, and the patrol leader shot him.

The locals and the left tried to spin the event because Hernandez was shot in the side, not the front.

After being shot he ducked into a dry well, and the Marines waited 20 minutes to approach him, letting the left claim that the .mil wanted him to die (as opposed to waiting out an ambush).
4.11.2008 11:14am
Adam J:
Al Maviva- warrants aren't required in either scenerio you post- both have probable cause coupled with exigent circumstances.
4.11.2008 11:41am
SG:
It requires geography because since at least Westphalia, in 1643, our collective will determined that there is a difference between states and rogue individuals, and that for purposes of international relations, including wars -except civil wars-, only states count, not rogue individuals.

So it's your contention that the US didn't fight the Barbary Wars (the first US declaration of war...) or the Indian Wars?
4.11.2008 12:17pm
MarkField (mail):

George Washington used the Army to suppress farmers in the Whiskey Rebellion.


Not the Army, the militia.


Westphalia, in 1643


1648.
4.11.2008 12:23pm
Ranger (mail):

Legitimate domestic military operations do not require a "battlefield" or an "invasion", but they probably require lawful enemy combatants or an enemy force reasonably believed to consist of lawful enemy combatants. It is the handling of unlawful combatants (spies and saboteurs) where things get ambiguous and reasonable people may disagree.


The "battlefield" is created by the act of "invasion" (the decision on the part of those conducting military operations to attempt to conduct them on US soil). The status of those conducting the operations as "lawful" or "unlawful" combatants does not change the act of "invasion" or the creation of the "battlefield." All it takes to become an unlawful combatant is to remove the uniform and continue to conduct military operations. Also, one becomes an unlawful combatant simply by engaging in military operations outside the recognized military formations (though this becomes more problematic where insurgencies are concerned).

Members of AQ are unlawful combatants for multiple reasons:

1) They engage in military operations outside of recognized military organizations.

2) They conduct operations that deliberately violate the law of war (for example: They do not identify themselves on the battlefield, the deliberate targeting of civilians and piracy).

The soldier that is captured gathering information in uniform simply becomes a EPW because they are not in violation of the law of war. But, if the soldier wears civilian clothes, that act become espionage, and is illegal because they violated one of the key provisions of the law of war and can be executed for it.

For example, Padilla was engaged in several violations of the law of war when he was picked up at the airport.

1) He was a member of an unlawful military organization (AQ).

2) He was scouting for targets out of uniform.

3) He was part of a military operation that was, as intended, a war crime (the deliberate targeting of civilians).

Given those facts, there is no reason that I can see why he couldn't simply have been detained by military personnel and taken directly to a military facility to be dealt with. The fact that his unlawful military activities were also a violation of US civil law simply creates options as to how to deal with him, but I don't see how it creates an obligation to use the civil court system to deal with him. He was a US citizen, but he was captured on the battlefield conducting military operations for a foreign enemy.
4.11.2008 12:54pm
J. F. Thomas (mail):
Esequiel Hernandez Jr, the 18 year old man in question, had a history of shooting at Border Patrol agents. He took several shots at the Marine patrol, and the patrol leader shot him.

Link please. There is no evidence that his old .22 rifle was used for anything more than shooting the occasional rattlesnake. You 2nd amendment fans should be appalled by this incident.

I don't blame the Marines btw. They were not trained for border patrol duty and had no business being out there. It was a tragic accident, but don't try and shift the fault to the innocent victim.
4.11.2008 1:18pm
J. F. Thomas (mail):
For example, Padilla was engaged in several violations of the law of war when he was picked up at the airport.

1) He was a member of an unlawful military organization (AQ).

2) He was scouting for targets out of uniform.

3) He was part of a military operation that was, as intended, a war crime (the deliberate targeting of civilians).


Sorry, but Padilla was only actually charged with the first of those three. And if that is true, does that mean we can lock up every member of a white supremacist group who has declared war on the Zionist Occupation Government or claims the U.S. is controlled by the UN?
4.11.2008 1:24pm
Synova:
"Osama can no more declare "war" on the US than we can declare "war" on drugs or on poverty. Osama can mass murder thousands, and that is called terrorism."

We've actually changed the definition of terrorism to fit and I think that's too bad. Terrorism had been a political tool, though certainly a deadly one, that relied on leveraging the uninvolved population as a force multiplier. What we call terrorism now uses the media in that deliberate way but what Al Qaida has been doing is a slightly different beast.

And of course Bin Laden can declare war. He did so very nicely in a traditional sort of way. And then he followed up with what he'd have considered "lawful" attacks since the forms had been followed.

Borders used to be oceans or mountains or rivers that actually separated populations. Not even an ocean will do it anymore. Our world is going to continue to change and move away from the constraints of geography. It's best that we figure out how to conceptually deal with that.
4.11.2008 1:27pm
Howard Gilbert (mail):
When Padilla was picked up, the US had documents proving his status as an enemy combatant in 2000, but they had no evidence of his current status. If I robbed a bank two weeks ago I am still a bank robber today. However, if I was a combatant two weeks ago and last week I was discharged from military service, then today I am a civilian. Padilla was held initially on a material witness warrant and questioned in the Federal lockup in NYC by the FBI. There he admitted to being an active duty member of an enemy military force and that his trip to the US was a military mission assigned to him by his commanding officer. Only once they had this information from Padilla himself was it possible to transfer him to military custody.

According to Jane's, on 9/11 the Afghan Army consisted of 45,000 front line troops including a unit of 1,000 al Qaeda soldiers. Al Qaeda itself had an estimated total of 18,000 trained soldiers, mostly in Afghanistan. Nineteen guys boarded the planes, supported by fewer than a dozen people in the support cadre under KSM. The actions of one Special Operations unit do not transfer half a world away and determine the military status of an army of 45-60 thousand men, and when any Military Commissions get going in Guantanamo I would be surprised if the military judges adopt the same questionable judgement that the civilians at the DOJ have applied to this issue.

Several comments have asserted that the 9/11 hijackers were not associated with a country. They were members of the Afghan Army although they themselves were not Afghan citizens (citizenship is not a requirement for enlistment in even the US army). The government that ruled Afghanistan at the time, the Taliban, were not recognized by most of the world, but recognition is not required by Geneva Convention III Article 4 item 3. Afghanistan was a signatory to the GC, the Taliban were the ruling government, and al Qaeda was part of its army. Mullah Omar specifically signed off on "the planes operation" as they referred to 9/11, so it was a military operation approved by Afghanistan's ruler. It was also piracy and illegal, but that makes it a war crime, not a civilian action. The Taliban were not defeated and continue to engage in combat with NATO troops in Afghanistan.

It is not unreasonable to anticipate a possible future small scale suicide commando attack upon the largely undefended East Coast of the US. Should such an attack occur, we could see a "domestic military operation" to which the 4th Amendment does not apply.
4.11.2008 1:33pm
Synova:
And yes, "war" on drugs or poverty is stupid, but it's meant to be metaphorical. Osama wasn't being metaphorical.
4.11.2008 1:33pm
Ranger (mail):

Sorry, but Padilla was only actually charged with the first of those three.


That doesn't mean he wasn't engaged in the other two. But I guess it is possible AQ sent him here on "home leave" and had not interest in him scouting targets for future attacks.


And if that is true, does that mean we can lock up every member of a white supremacist group who has declared war on the Zionist Occupation Government or claims the U.S. is controlled by the UN?


Obviously, no, because those are domestic groups based in and conducting operations within the borders of the US. As US courts have already ruled where wire taps are concerned, there is a defining diference in the law between foreign organizations and domestic ones, even if they are both engaged in similar activities.
4.11.2008 1:36pm
Ranger (mail):

When Padilla was picked up, the US had documents proving his status as an enemy combatant in 2000, but they had no evidence of his current status. If I robbed a bank two weeks ago I am still a bank robber today. However, if I was a combatant two weeks ago and last week I was discharged from military service, then today I am a civilian.


I would argue otherwise. Your argument is premised on a "traditional" military structure with enlistments for regular terms of service and a formal process of discharge. AQ does not follow that model, therefore, based on their organizational model, any member is assumed to be part of the organization in perpetuity. The only ways to leave the organization seems to be death or desertion. In other words, once it is determined that someone was formally part of AQ in the past it must be assumed they are still part of AQ until they can prove otherwise. Therefore, it would be perfectly appropriate to use military assets to capture them and military interrogation to determine their status as an active member or a deserter from AQ.
4.11.2008 1:50pm
Scrivener:
So, the emerging consensus seems to be that military detaining a US citizen (Padilla) in the US 2002-2005 on suspicion of terrorism IS INDEED a concrete example of a "domestic military operation".

From this I conclude that a house search in the US by the military on suspicion of terrorism would also be called a non-law-enforcement "domestic military operation" unconstrained by the Fourth Amendment's reasonableness requirement under the Yoo's memo, footnote 10.

I wonder if footnote 10 is still the Administration's understanding.
4.11.2008 2:47pm
SG:
And if that is true, does that mean we can lock up every member of a white supremacist group who has declared war on the Zionist Occupation Government or claims the U.S. is controlled by the UN?

Only if Congress were to pass an Authorization of Use of Military Force against white supremacist organizations. You know, like it did against Al Qaeda.


That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.


Is this really so difficult to understand that Congress granted the president war time authority in this matter? It passed 518-1. You can debate the appropriateness of using war as a matter of policy, but it is right there in black and white.
4.11.2008 2:51pm
Happyshooter:
Link please. There is no evidence that his old .22 rifle was used for anything more than shooting the occasional rattlesnake. You 2nd amendment fans should be appalled by this incident.

Look it up yourself. There was not only a grand jury, in additional to the military investigation, but Congress held hearings.

Even the left wing admitted the first two shots in their movie about the event, The Ballad of Esequiel Hernandez. They disagreed that the shooter was in postion for a shot at one of the patrol who was moving up a rise, when the patrol leader shot him first.
4.11.2008 3:12pm
Howard Gilbert (mail):
During WWII the US detained 435,000 Axis POWs inside the US, but I don't think that anyone would call this a "domestic military operation". However, it is true that detained POWs lack any Constitutional rights [they have rights under the GC III, but in general have a military duty to obey the orders of superior officers even when those orders are contrary to US constitutional norms]. Padilla was never in a position to raise any 4th Amendment claims, but al Marri (a resident, not a citizen) is still being held under the same classification and there was a search of his computer by the FBI long before he was determined to have been an enemy combatant on a military mission assigned to him by KSM and UBL.
4.11.2008 3:47pm
Scrivener:
Howard Gilbert:

A person is seized in the 4th Amendment sense when, by means of physical force or a show of authority, his freedom of movement is restrained (US v. Mendenhall); why do you think that "Padilla was never in a position to raise any 4th Amendment claims"?
4.11.2008 4:27pm
J. F. Thomas (mail):
Look it up yourself. There was not only a grand jury, in additional to the military investigation, but Congress held hearings.

I read the Military's investigation. And contrary to what you claim, he had no history of shooting "at" Border Patrol agents. Apparently he had fired his rifle in the vicinity of BP agents and apoligized when he realized they were nearby.

It was twenty minutes between the time he fired two shots--which the Marines thought were directed at them--and the time he was killed. During which time he displayed absolutely no aggresive or evasive actions. There is absolutely no evidence he even knew the Marines were there.
4.11.2008 4:30pm
J. F. Thomas (mail):
Obviously, no, because those are domestic groups based in and conducting operations within the borders of the US. As US courts have already ruled where wire taps are concerned, there is a defining diference in the law between foreign organizations and domestic ones, even if they are both engaged in similar activities.

According to Yoo's memo, I don't think this is true. Any person the President determines is at "war" with the U.S. becomes an enemy combatant and the Constitution is suspended.

That is why Yoo is such an evil man.
4.11.2008 4:37pm
kelvin mccabe:
Thanks Prof Kerr for responding, if only briefly. Perhaps I was a bit rude - I apologize.

That being said, unlike President Bush and the rest of the executive branch - who are as you say so sure of their view of the world/reality - I dont try to hide mine behind massive veils of secrecy and pull out all the stops to prevent a court from getting into the details.

Again, i understand not wanting to take a position based on 'no' evidence. But circumstantial evidence - if there is enough of it - is still persuasive evidence. And the circumstantial evidence thus far leads me to conlcude that 1) the war on terror and preventing another domestic terrorist attack was priority #1 of this administration 2) the constitution, as it was designed to do, gets in the way of doing all the things the executive branch wanted to do 3) so the executive branch found creative ways to get around- as it were - the constitution.

The whistleblowers, especially At&T's in the Electronic Frontier Foundation's lawsuit, add highly credible, if only circumstantial, evidence for my view.

I operate from the position that the global war on terror and the fight against the terrorists is not worth trashing the constitution over. Others disagree. They have every right to disagree and present their arguments - but in my view, in a free and democratic republic, nobody has the right to secretly implement what I consider constitution wrecking policies, apply them against citizens, and then when someone cries foul, actively prevent any meaningful review while at the same time lie consistently about what is really happening to the Congress, to the People, and to the world.

I dont know what it will take to get you on board the liberty train - but something so shocking will likely come out eventually that it will change your perspective. I look forward to that day.
4.11.2008 5:42pm
J_A:
SG:

So it's your contention that the US didn't fight the Barbary Wars (the first US declaration of war...) or the Indian Wars?

the Barbary Wars were fought against the Barbary states, quoting Wikipedia:

The First Barbary War (1801--1805), also known as the Barbary Coast War or the Tripolitan War, was the first of two wars fought between the United States of America and the North African states known collectively as the Barbary States. These were the independent Sultanate of Morocco, and the three Regencies of Algiers, Tunis, and Tripoli, which were quasi-independent entities nominally belonging to the Ottoman Empire.

"Barbary" was almost never a unified political entity. From the sixteenth century onwards, it was divided into the familiar political entities of Morocco, Algiers, Tunis, and Tripolitania (Tripoli). Major rulers during the heyday of the barbary states were the Pasha or Dey of Algiers, the Bey of Tunis and the Bey of Tripoli, all nominally subjects of the Ottoman sultan, but de facto independent rulers. Before then it was usually divided between Ifriqiya, Morocco, and a west-central Algerian state centered on Tlemcen or Tiaret, although powerful dynasties such as the Almohads, and briefly the Hafsids, occasionally unified it for short periods. From a European perspective its "capital" or chief city was often considered to be Tripoli, in modern-day Libya, although Algiers, in Algeria, and Tangiers, in Morocco, were also sometimes seen as its "capital" by Europeans of the era.

So yes, the Barbary Wars were fought against a recognized polity.

And so were the Indian Wars, which were fought against Indian Nations, that still today have a degree of sovereignty within the territory of the US.

Finally, it has been comented that AQ fought as part of the army of Afganistan, a recognized polity. Are we in war with AQ or with Afganistan?

By the way, a similar problem was faced by the Allied forces fighting in Waterloo in 1815. Were they fighting Napoleon, or France? (At the end, they agreed that they were fighting against Napoleon, not France, but by the time of the battle of Waterloo, they still did not know who the enemy was)
4.11.2008 5:54pm
LarryA (mail) (www):
Incidentally, someone mentioned the Posse Comitatus Act. That statute has been amended so thoroughly, with so many exceptions added and work-arounds developed, that it now has no practical effect.
Which is why I said it was supposed to protect us.
You 2nd amendment fans should be appalled by this incident.
I am.
I don't blame the Marines btw. They were not trained for border patrol duty and had no business being out there.
Absolutely. People who want the U.S. military to patrol the border haven't read their history books. Most of the scenarios posted here above should be handled by law enforcement. Given the militarization of SWAT teams, there's not much difference in firepower.
4.11.2008 6:16pm
Howard Gilbert (mail):
"Are we in war with AQ or with Afghanistan?" We are at war with "those nations, organizations, or persons he [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons" (AUMF)

The attacks were planned by KSM and his cadre, with approval and authorization by Bin Laden, the Shura Council of al Qaeda, Mullah Omar, and the Taliban government. The government of the country of Afghanistan authorized and aided the attacks, and therefore is included in the AUMF. Al Qaeda was a part of that government structure, though according to rules and conventions that do not translate into Western governmental models.

The Army of that government and country consisted of Afghan tribal militia, Pakistani tribal militia, a unit of foreign soldiers trained by the Taliban, units of foreign soldiers trained by al Qaeda, and commanders who, in many cases, were high ranking Pakistani officers from security and intelligence who "retired" from active service, crossed the border into Afghanistan, and "volunteered" to staff the Taliban army. Again, the structure of the Army did not meet Western conventions but was based on local tradition. Making strategy involved sitting down together, drinking lots of tea, and trading favors. Omar got the assassination of Ahmad Shad Massood, and UBL got 9/11.

There was a country, government, and army at the time. We were attacked by a unit of that army with approval from the highest ranks of the government of that country. Although we have installed a different government in Kabul, the enemy has not been destroyed, nor surrendered, nor has it made peace. It is still in the field in that country engaged in combat at this moment with US troops.

At any moment a boatload of enemy commandos could drop over the side of a ship 12 miles off our coast, land on a beach, and attack some soft target. They would achieve no militiary purpose, but neither did the Dolittle raid. It would have a tremendous psychological impact. We can almost hear certain candidates claiming that Iraq is at fault and we should bring the National Guard home immediately to defend Atlantic Beach. That is what "domestic military operations" will respond to, and when they do so they don't need no stinking warrants.
4.11.2008 8:28pm
TokyoTom (mail):
Orin, why mount a theoretical defense for a secret memo that you haven`t seen?

I`m scratching my head, espcially based on what we know of memos that others have had to fight to have released.
4.12.2008 2:08am
Synova:
"And so were the Indian Wars, which were fought against Indian Nations, that still today have a degree of sovereignty within the territory of the US."

If word "Nation" can be stretched to include Indian tribes and peoples as they were organized at the time of the French/Indian Wars it can certainly be stretched to include Al Qaeda.
4.12.2008 5:08pm