Thursday, April 03, 2008

Has John Yoo found the footnotes to the US Constitution that no one else bothered to read ?

David Kurtz congratulates Pamela Hess and Lara Jakes Jordan for finding a shocking fact in a footnote.

Memo justified warrantless surveillance

Secret Memo That Justified Warrantless Domestic Surveillance Comes to Light

PAMELA HESS and LARA JAKES JORDAN
AP News

Apr 02, 2008 19:20 EST

For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.
The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.


Now I have been wondering about this secret Constitution business. Since OLC opinions are supposed to describe and interpret the Constitution and the laws, which are, you know, public, how can these memos be secret ?

If they are reasonable interpretations of the Constitution and the laws, they don't introduce anything which isn't there already. How can national security be damaged by our adversaries knowing what our Constitution means ? I mean it's not supposed to be a secret.

These memos are not like the discussion of the facts of a case by an attorney discussing and her client. They are more like judicial opinions except less authoritative and issued on request and not when there is an actual case or contestation.

I see no possible public interest in keeping them secret, and the costs so far have obviously been enormous.

Why is the Bush administration allowed to classify OLC memos ? Can congress forbid this (it will take two thirds of each house to over-ride a certain veto)

John Conyers can't understand how OLC memos can be classified either.

Second, in the March, 2003 Office of Legal Counsel (OLC) memorandum publicly released on April 1, 2008, the contents of a secret October, 2001 OLC memorandum were partially disclosed. Specifically, the 2003 memorandum explains that in an October 23, 2001 memorandum, OLC “concluded that the Fourth Amendment had no application to domestic military operations.”3 On two prior occasions – in letters of February 12 and February 20, 2008, – Chairman Conyers requested that the Administration publicly release the October 23, 2001, memorandum .4 The memorandum has not been received despite these specific requests.

Based on the title of the October 23, 2001 memorandum, and based on what has been disclosed and the contents of similar memoranda issued at roughly the same time, it is clear that a substantial portion of this memorandum provides a legal analysis and conclusions as to the nature and scope of the Presidential Commander in Chief power to accomplish specific acts within the United States. The people of the United States are entitled to know the Justice Department’s interpretation of the President’s constitutional powers to wage war in the United States. There can be no actual basis in national security for keeping secret the remainder of a legal memorandum that addresses this issue of Constitutional interpretation. The notion that the President can claim to operate under “secret” powers known only to the President and a select few subordinates is antithetical to the core principles of this democracy. We ask that you promptly release the October 23, 2001, memorandum.

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