We’ve heard a lot this election year about the threat to democracy. But nothing is scarier than the Bush administration’s cavalier attitude toward civil liberties, and its willingness to use the military at home. The readiness to declare dead the Posse Comitatus tradition, which bars the use of military force at home, and the creation of Northern Command, the first U.S. military command designed for domestic deployment of the armed forces, is only part of the story. Now we know the Justice Department wanted to go a lot further.
Here, from Tim Golden’s Sunday New York Times piece on how the Bush administration rewrote military law, is the relevant section on how John Yoo, the man who wrote the PATRIOT Act, pushed for an open-ended ability to deploy the U.S. armed forces within the homeland—an unprecedented concept:
In the days after the Sept. 11 attacks, Mr. [Tim] Flanigan [former White House deputy general counsel] sought advice from the Justice Department's Office of Legal Counsel on "the legality of the use of military force to prevent or deter terrorist activity inside the United States,'' according to a previously undisclosed department memorandum that was reviewed by The New York Times .
The 20-page response came from John C. Yoo, a 34-year-old Bush appointee with a glittering résumé and a reputation as perhaps the most intellectually aggressive among a small group of legal scholars who had challenged what they saw as the United States' excessive deference to international law. On Sept. 21, 2001, Mr. Yoo wrote that the question was how the Constitution's Fourth Amendment rights against unreasonable search and seizure might apply if the military used "deadly force in a manner that endangered the lives of United States citizens."
Mr. Yoo listed an inventory of possible operations: shooting down a civilian airliner hijacked by terrorists; setting up military checkpoints inside an American city; employing surveillance methods more sophisticated than those available to law enforcement; or using military forces "to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire."
Mr. Yoo noted that those actions could raise constitutional issues, but said that in the face of devastating terrorist attacks, "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties." If the president decided the threat justified deploying the military inside the country, he wrote, then "we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection."
The prospect of such military action at home was mostly hypothetical at that point, but with the government taking the fight against terrorism to Afghanistan and elsewhere around the world, lawyers in the administration took the same "forward-leaning" approach to making plans for the terrorists they thought would be captured.
Military checkpoints inside the United States? High-tech, intelligence-style surveillance of Americans? Army-led raids on American dwellings?
