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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts "Convicting" the Torture Opinion
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Thursday, April 03, 2008
"Convicting" the Torture Opinion
Marty Lederman
While you're all anxiously awaiting my March Through the Torture Memo, you'd be advised to spend some time checking out the posts over on Slate's new Convictions blog, where my colleagues such as Emily Bazelon, Dawn Johnsen and Deborah Pearlstein are highlighting some of the most important aspects. Also, Pam Hess and Lara Lakes Jordan of the AP are onto the connection between the "Fourth Amendment" footnote in this memo and the NSA's warrantless surveillance program.
Comments:
Marty:
We will have to wait for your "March Through the Torture Memo" for any substantive legal criticisms of the issues Yoo tackles in his memo because one will not find any in the linked blogs or the AP story, nor in nearly any blawg post I have seen top date.
ELABORATION UPON TRANSLATION: "A vacuum exists between the ears of a reactionary." Plus: "It is not only nature that abhors a vacuum."
We will have to wait for your "March Through the Torture Memo" for any substantive legal criticisms of the issues Yoo tackles in his memo because one will not find any in the linked blogs or the AP story, nor in nearly any blawg post I have seen top date.
[...] And one apparently cannot find them among the commentariat. Well, if one ignores ignores the stuff that is there.... And one can say that Dubya's doing a great job if one ignores the manifold evident disasters he's gotten us into. But that takes some studied ignerrence. Cheers,
Back to the subject of this thread. Here is the "offending" footnote discussed in the AP piece:
... our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001). (emphasis added) If by "domestic military operations" Yoo is referring to intelligence gathering against al Qaeda, the cited memo would not reveal anything new. The federal circuit courts have held on multiple occasions that the 4th Amendment does not require warrants for intelligence gathering against foreign groups.
We will have to wait for your "March Through the Torture Memo" for any substantive legal criticisms of the issues Yoo tackles in his memo because one will not find any in the linked blogs or the AP story, nor in nearly any blawg post I have seen top date.
# posted by Bart DePalma : 11:38 AM Baghdad, as someone who thinks that "might makes right" is substantive legal commentary, you're not exactly in a position to be tossing stones.
It's not just the NSA program that the still secret memo referred to in footnote 10 was intended to address. The only other reference to this memo that I could find was in the Feb 26, 2002 memo on the interrogation of prisoners held in Afghanistan, also signed by Yoo. Footnote 16 refers to the memo and says, "We recently opined that the Posse Comitatus Act…which generally prohibits the domestic use of the Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States."
Sounds to me like this was the "military dictatorship authorization memo" or something close. Anyway, this is what the title indicates, "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."
joe kay said...
It's not just the NSA program that the still secret memo referred to in footnote 10 was intended to address. The only other reference to this memo that I could find was in the Feb 26, 2002 memo on the interrogation of prisoners held in Afghanistan, also signed by Yoo. Footnote 16 refers to the memo and says, "We recently opined that the Posse Comitatus Act…which generally prohibits the domestic use of the Armed Forces for law enforcement purposes absent constitutional or statutory authority to do so, does not forbid the use of military force for the military purpose of preventing and deterring terrorism within the United States." Sounds to me like this was the "military dictatorship authorization memo" or something close. Anyway, this is what the title indicates, "Authority for Use of Military Force to Combat Terrorist Activities Within the United States." After 9/11 woke them up, the Executive and most of Congress started treating our conflict with al Qaeda as a war rather than a law enforcement exercise. With the understanding that we were at war, there is no reason to believe that the Posse Comitatus Act posed any restrictions to military operations against al Qaeda or other terrorist groups within the United States. The Posse Comitatus Act bars the military from being used in a law enforcement role, not against military operations inside the United States.
The question is who in Congress is overseeing "domestic military operations" and what on earth they are exactly? He clearly didn't mean normal peacetime operations, training people in warfare, running their bases, hospitals, acquiring weapons of destruction, massive and not, etc.
From what little was revealed we know that they (Feith and military intelligence people) were involved in surveillance of some civic organization. But which and have they really? Have they done ACLU for example? [As presumably FBI is hesitant now to be as pro-active toward that organization as they used to be, chances are Feith wanted to take up the slack.] How about individuals, including US citizens? Military electronic surveillance to supplement NSA's? Warrantless searches including breaking into people's homes? How about neutralization of individuals, groups and organizations like the FBI used to do and still does? What about their domestic cyberwarfare operations? Do they actively monitor blogs, this one for example? Do they try to disrupt online communities deemed unpatriotic enough? [Several years ago their psy-op people were extremely active on several blogs TalkLeft for example, so this is not as far fetched as some may think.] Is Lederman, Balkin in their databases? The point is arrangements for overseeing the NSA, FBI, CIA are in place however ineffectual they may be but they are there. Nothing comparable appears to be there for military agencies, presumably on assumption that whatever they do falls under the presidential exercise of his Article II powers Congress has no business meddling in especially in time of war. Is this really a desirable state of things Mr. DePalma, and for you the originalists, what would founding people think of it?
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