Administration Claimed Immunity To 4th Amendment

mrogers writes "The EFF has uncovered a troubling footnote in a newly declassified Bush Administration memo, which asserts that 'our Office recently [in 2001] concluded that the Fourth Amendment had no application to domestic military operations.' This could mean that the Administration believes the NSA's warrantless wiretapping and data mining programs are not governed by the Constitution, which would cast Administration claims that the programs did not violate the Fourth Amendment in a whole new light — after all, you can't violate a law that doesn't apply. The claimed immunity would also cover other DoD agencies, such as CIFA, which carry out offline surveillance of political groups within the United States."

Only the 4th ammendment?

'our Office recently [in 2001] concluded that the Fourth Amendment had no application to domestic military operations.

I thought the whole constitution had no application to the whole government?

After all, isn't it just a scrap of paper?

Re:Only the 4th ammendment?

I thought the whole constitution had no application to the whole government?

After all, isn't it just a scrap of paper?

No, actually Bush was wrong about that, too. The US Constitution was written on parchment [archives.gov], not paper.

The Bush crowd just can't get anything right. ;-)

(To further confuse matters, replicas of the Constitution are commonly printed on "parchment paper", which is a kind of paper treated to superficially resemble parchment. But the original was on true parchment, made from stretched animal skin. A quick google search didn't turn up info on what sort of animal it was made from, though presumably that's known.)

Real Texans keep their word.

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Re:Real Texans keep their word.

However, Bush is somewhat dyslexic. He interpreted the oath to mean that he would preserve, protect, and defend the office of President, and execute the Constitution. This may explain why he considers himself to be a great leader -- he has brilliantly lived up to the oath of office as he understood it.

Re:Only the 4th ammendment?

It's the exact opposite... that scrap of paper IS our government. For them to say that a particular law doesn't apply to a particular government action is completely ridiculous. If anyone should be held to the laws there, it's the government itself, which is supposed to be defined by that document.

Police State

Aren't you guys tired of living in a Police State and a constant state of war - when are Americans going to stand up and demand their rights back - I keep waiting,,,,

Re:Police State

The thing is, for all the claims of "living in a police state" people who dont live in the US make about the US, for the most part 99% of the population doesnt see it that way, and likely never will. The minute soldiers are marching in the street acting like cops HERE, things will change (and dont say they do now, I live right next to NYC and even AFTER 9/11 it wasnt that bad). But for Bobby Joe redneck in the middle of the US with NO ONE around for miles, the kind of people who make up half the population of the US? They are as off the grid as they where in the 30-40's.

Re:Police State

We should be able to own any sort of weaponry the military can use in case it becomes necessary to overthrow an oppressive regime. The Second Amendment is our absolute last line of defense against our government.

The American Revolution was not fought with cupcakes and daisies.

Re:Police State

The American Revolution was not fought with cupcakes and daisies.

Meh, all they had were tea and crumpets.

Re:Police State

Well, we could be a little more balanced than that. After all, there could be legitimate reasons for the military to have something like a tank, but we don't really want private companies to be driving tanks around -- that would hardly protect individual rights. Instead, I think we need some threshold; say if the military has more than 5,000 of any particular type of weapon, it becomes fair game.

Who does it apply to?

Wait, then who does it apply to? Foreign governments spying on US citizens? US government spying on foreign citizens? Foreign governments spying on foreign citizens?

I thought the whole idea behind the 4th amendment was to say that the US government spying on US citizens was off limits. I'd like to hear why they think one of the other three situations is the real reason that pesky little amendment is in there.

Re:Who does it apply to?

If I'm following their reasoning correctly, the US government spying on its citizens without a warrant would be wrong and would violate the 4th Amendment. However, because their intention is to catch terrorists, it suddenly makes the spying part of the "War on Terror", a military operation, and therefore not covered by the 4th Amendment. It seems that all the government needs to do to bypass all rules and restrictions is cry terrorism. Of course, the fact that this power of the government's would make the whole 4th Amendment pointless (due to the government saying terrorism to justify the spying even if no terrorism occurred) escapes them. Terrorism is the new communism. Either you're with them or you're against America.

For the record, I'm against America... at least America as they define it. I'm for the America where people didn't have to worry about their government spying on them or having no checks on its power simply because some government official cried out "Terrorism!"

That's outrageous

I'm one of those religious, conservative nutjobs that gets mocked on this site, and I find this outrageous. Here is the Fourth Amendment:

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That's been suspended?? Doesn't apply to military operations?? If the citizens have no rights over against the military, why do we have the Third Amendment?

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Now I see that there is a difference in the Third Amendment between "in time of peace" and "in time of war," but realistically, this "time of war" against terrorists can NEVER be officially and completely over. There are no official enemies, so there can be no official truce.

The government is overstepping its Constitutional bounds, and it needs to stop. We have to be careful that we do not lose our identity as a country of freedom via our efforts to protect that freedom.

Re:That's outrageous

Which is the whole reason for calling it the "War on Terrorism" or the "War on Drugs". It basically gives them the power to do whatever they want, as they can claim that they are in a state of war. The US needs some serious political change. I hope that they elect in somebody competent in November. Although I'm not sure who's running who would actually qualify. Hopefully whoever gets voted in, will be willing the stop the insanity that is, "The War on Terrorism".

Re:That's outrageous

The problem is that you're a two-party state. Or atleast thats one of the major problems.

The system is such that it is effectively impossible for a third party to play a major role, and the rules are unlikely to change since that would require atleast one of the big two to vote in favor of changing the rules to their own detriment.

Fat chance !

Democracies with a multi-party system has MUCH more variation among political parties, and you are much more able to vote your true opinion rather than as in the USA where you may in many situations merely choose the lesser of the two evils.

Re:That's outrageous

Have you seen "V for Vendetta?" One of the most telling lines, read over the top of news footage of current and past US campaigns and riots, is "As America's wars expanded, the rest of the world got drawn in deeper and deeper"*

Not to call a Godwin on George Orwell, but it's a theme that's been around in literature since the second world war, and is now starting to be seen in the real world. In a time of war, unusual powers are granted to government.

To get those unusual powers in a time of peace, a war must be created. But since conventional wars may be won, you declare it on a concept, series of countries ("Axis of evil") or race/religion.

After convincing the voting public that this really is as dangerous a threat as a "real" war (after all, the "war on terror" has so far included at least two real wars in the Middle East), the extra-ordinary wartime powers may be granted.

The constitution is specifically designed to prevent this abuse, but has been so thoroughly swept away by successive governments since it was created that attacks like this are not met with the lynchings they are actually supposed to be met with - the "right" to bear arms (which I personally think is one of the biggest things wrong in the US) is specifically provided to allow protection of citizens from the military.

*Or words to that affect

a misreading

See, the whole thing is just a misunderstanding of the phrase, "No warrant shall issue but upon probable cause." It doesn't mean they can't search, it means they don't need a warrant. How silly is that?

I intended this as a joke, but upon reflection... *sigh*

Secret Government

The part of all this that really gets to me is that the administration feels that they have the right to do all of this in such an underhanded fashion. This is a democracy, they work for the people. If the government really felt that the fourth amendment didn't apply or was somehow holding back effective terror efforts, and that most people would not object to them taking on this extra dimension of authority, there are ways to change that. Amendments can be themselves amended, for example. At the very least, some kind of public announcement or passage of some clarifying law is called for. This kind of thing, where they decide the law doesn't matter, and then they don't tell anyone about it, is indicative of a government that feels itself to be above the people, or, at best, the feel that they 'know what`s good for us'. It may be a '$f-bomb piece of paper'... but the theory of open, participatory government ruled by the people, with oversight, checks-and-balances, and restraint is what this nation was founded on. Given the inability to directly preserve these ideas in a concrete form, we substitute symbols in their place. Its just a piece of paper. Its just a bolt of cloth (flag). Its just an amalgamation of stone and concrete (the White House). But these things represent something greater, some over-arching idea to which we have all subscribed. Nobody, not me, not you, not Mr. Bush, can just go and decide its meaningless because its inconvenient. And the fact that we have to find out about this kind of thing from watchdog-style organizations and not from our government directly is evidence of the idea that there are people in government who have forgotten what its all about.

The Law

"The law applies to you, not us.

Sincerely,
The Administration"

Summary sucks...again

given the breathless nature of the summary, I actually read the RTFA. Some points.

1) It's a speculative footnote - the memo authors were speculating that the 4th amendment may not apply during military operations in the US proper. The summary takes that and runs with it to its own speculation.

2) The basis of the footnote was the fact that Congress authorized military operations in the US, and typically the 4th amendment doesn't apply to military operations - if a soldier is going to search a house, his warrant is permanent and engraved into the sole of the bot he uses to kick down the door. Why in the HELL Congress decided to chuck posse comitatus overboard I'll never understand, except ibn light of tehm being a bunch of cowardly pussies who were so afraid of a jetliner crashing into the Capitiol and killing them all that they would do ANYTHING to protect their pampered asses.

Well, this is an issue...

The Constitution is not a law. It's the framework of how the country operates. It applies to everyone in this country regardless of political position, military rank or accumulated wealth. Unlike laws, which can be written to exclude certain groups, the Constitution applies to everyone in all 50 states, all citizens abroad, and all people in US facilities abroad. To think any differently is treason.

Posse Comitatus ain't what it used to be.

Posse Comitatus was altered by the National Defense Authorization Act of 2007. It's not really what it used to be anymore.

Here are some articles:

http://www.towardfreedom.com/home/content/view/911/ [towardfreedom.com]

http://www.globalresearch.ca/index.php?context=va&aid=5150 [globalresearch.ca]

http://www.americanfreepress.net/html/martial_law_made_easy.html [americanfreepress.net]

And here are Senator Leahy's remarks on the Senate floor about this Act, which has since been passed and signed into law. The first paragraph is all you really need to read:

http://leahy.senate.gov/press/200609/092906b.html [senate.gov]

And the wiki, for good measure:

http://en.wikipedia.org/wiki/Insurrection_Act [wikipedia.org]

Re:perhaps the slightest bit bitter

Isn't the Republican party traditionally the one that raises the biggest fuss about the Bill of Rights?

Not really. That depends on what you consider traditional.

The Republican Party, aka the GOP (Grand Old Party) was founded by anti- slavery supporters. They sold out their base supporters in 1876 in exchange for electoral votes, rejecting Reconstruction ( http://en.wikipedia.org/wiki/Reconstruction [wikipedia.org] ).

They [Republicans] have been seen as the party of the "rich" ever since, with the Democratic party touting itself as the party of the people.

This really only proves that politicians (on both sides of the aisle)don't make a fuss over anything unless it is self serving. Ok, that isn't fair to the "good" politicians out there, but IMO they lack the numbers and conviction to make a difference on a grander scale.

Re:perhaps the slightest bit bitter

Yeah, and it'll stay that way until someone figures out how to fix the gerrymandering problem. As long as the parties decide who gets the safe seats, they'll pick the people who can raise the most money and avoid the people who have a spine.

Re:perhaps the slightest bit bitter

Only if it's the second amendment, apparently.

The Bush administration doesn't speak for every Republican or Conservative in America. You might have noticed his dismal approval rating...to get that low he ticked off a lot of Republicans too.

As far as the original point of the story. The fourth amendment doesn't apply to 'domestic military operations' because the whole idea was to NOT have domestic military operations against regular citizens.