Yoo Must Be Kidding: Professor Argues That Bush Could Negate Both The Fourth Amendment and The Posse Comitatus Act By Simply Declaring Deployment To Be A National Security Matter

180px-john-yooThe debate continues to rage this week over the push by Vice President Dick Cheney and others to have former President George Bush deploy active military units in a suburb of Buffalo to arrest a small group of men who were suspected of supporting terrorism (here). Nor surprising, Bush officials went to Berkeley law professor John Yoo to tell them that (surprise!) the President was not bound by the Fourth Amendment or federal law if he unilaterally declared the operation to be a national security matter. Yoo and his former colleague conclude that “the president has the legal and constitutional authority to use military force within the United States to respond to and combat future acts of terrorism, and that the Posse Comitatus Act does not bar deployment.” I discussed the controversy on this segment of Countdown.

DelahuntyThe military intervention memo follows the blanket theories of executive power that we saw in the torture memos. Yoo (at that time deputy assistant attorney general in the Office of Legal Counsel) co-authored the memo with Robert J. Delahunty, a special counsel in the office. Delahunty is also an academic — a law professor at the University of St. Thomas School of Law in Minneapolis, Minnesota (a religious based law school and integrates faith and law). Yoo and Delahunty basically argued that the only thing needed to circumvent the Fourth Amendment and federal law was a unilateral declaration by the President that these men were being captured as part of a national security rather than a law enforcement operation. Presumably, they would then be tried in Bush’s (now Obama’s) custom-made, outcome-determinative military tribunal system.

Once the President defines the operation as a national security matter, Yoo and Delahunty conclude “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.”

It is an argument ready-made for authoritarian rule. Yoo and Delahunty believe that our laws are so malleable and porous that both constitutional and statutory protections become purely discretionary once a President re-defines a given operation in this opportunistic way. The Lackawanna case is an excellent example of the transparent use of such arguments. This was clearly a routine law enforcement operation that became a conventional terrorism case. The defendants were found guilty of material support, not plotting an actual attack.

The fact that two law professors would make such an argument is unsettling. If accepted (and it came within one man of being executed), it would have opened the door to a classic form of tyranny.

Yoo have been teaching at Chapman law school, though he has been followed by protests like the one below in his classroom:

[I do not approve of such displays in classrooms. While I do not understand the decision of Chapman to invite Yoo to serve as a visiting professor, the classroom is not the place for such displays. It is not fair to the students and undermines the traditional protections of the classroom. The way to protest Yoo is not to try to keep him from speaking or teaching, but to educate citizens about the extremism of his views.]

This controversy is made more disturbing by the obviously opportunistic use of 9-11 to realize long-held visions of an all-powerful and imperial presidency by people like Cheney, Yoo, and others. The Lackawanna case was viewed as an opportunity to try out the theory and expand the President’s power. There were some who viewed the September 11th attacks as an irresistible opportunity and moved quickly to re-shape the country in a more authoritarian image. Even recently a Fox guest Michael Scheuer openly opined on the need for another attack to achieve such policy objectives, here.

Nevertheless, the Yoo-Delahunty memo reminds us that, even those people teaching our legal traditions and values, can be hostile to those very traditions and seek their curtailment. The lack of any limiting principle in this memo reflects a fundamental disagreement with the basic precepts of our governing system. Whether it was the result of ambition or antipathy, it is a chilling document for everyone in the teaching academy.

For the memo, click here.

52 thoughts on “Yoo Must Be Kidding: Professor Argues That Bush Could Negate Both The Fourth Amendment and The Posse Comitatus Act By Simply Declaring Deployment To Be A National Security Matter”

  1. Perhaps we should deport Jon Yoo… to a jurisdiction where he can get a fair trial, say Pakistan..?

  2. That lump, btw, is apparently where you brain and heart are supposed to be, sport.

  3. Well well well. I am about to be actually angry.


    WH ask for dismissal for Yoo.

    Screw you, Barry. You’re wiping yourself with the Constitution just like Bush did. That’s not why people voted for you asshole. That can only mean one thing.

    I’ll take an order from you when Hell freezes solid, ace. So please, try to draft me when you run out of bodies to throw into your meat grinder for money and see how that works out for you. You and every douche bag on the Hill from K to Penn. should be given a gun and made to go fight for your masters yourselves before a SINGLE American soldier is harmed. R & D alike. We might even pick up the survivors afterward, but since your lot started this mess, I think letting there to rot afterward would be appropriate too.

    You aren’t any more legitimate in your execution of the Office than Bush was. The only difference? You actually got elected. Daddy’s Saudi buddies didn’t buy it for you. WHICH MAKES IT EVEN WORSE. Other than that? You’re as vile a POS as he was and your unethical and unconstitutional actions prove it. You’re a disgrace as President, as an attorney and as a man. You’re a shitty person, Mr. President. If you think that language crude? Too bad. You earned it the old fashioned way just like your fascist predecessor.

    At this point, I wish the birthers weren’t manifestly insane so you could be removed from office you human rights violating sack of graft purchased dog shit.

    Happy Holidays

    You got a lump of coal.

  4. Prof.,

    I respect the institutions of higher learning. But I’m going to have to go with TAFKAFFN on this one. The scope of Yoo’s crime merit challenging and protesting him every time he opens his traitorous mouth. If I were closer? I’d be in his fascist unconstitutional grille every day. I don’t give a damn where he would happen to be at the time either. What he did is just that serious a crime against the Constitution. He should be shouted down and ridiculed every time he slinks out of the house like the snake he is.

  5. Addendum:

    Not that I believe there is any reason to protest Prof. Turley in the classroom, of course.

  6. “I do not approve of such displays in classrooms. While I do not understand the decision of Chapman to invite Yoo to serve as a visiting professor, the classroom is not the place for such displays. It is not fair to the students and undermines the traditional protections of the classroom.”

    Prof. Turley,

    Do you not think it ‘fair’ to protest these people in other places, or are the places where demonstrations are off-limits only limited to places in which you do your job (that is, the classroom)? It seems to me you are making a self-serving argument here that isn’t quite compelling. What is unique about the classroom that stops your argument from generalizing to all places? As an activist, “this is not the time nor place” is something I hear all the time when demonstrating. Of course, it is not a falsifiable hypothesis — I can’t convincingly prove that a certain situation IS the time or place to protest. But if I listened to the nay-sayers, all protest would cease.

    If not the classroom, one of the few places one can reliably encounter Yoo, then where? What is so special about the classroom that should prohibit this activity?



  7. Full text at: http://www.nytimes.com/2009/07/30/opinion/30thu1.html?_r=1&hpw

    New York Times Editorial

    The Military Is Not the Police

    July 29, 2009

    editorial excerpt: “Mr. Cheney and others cited a legal memorandum co-written by John C. Yoo (author of the infamous torture memo), which made the baseless claim that the military can go after accused Al Qaeda terrorists on United States soil because it would be a matter of national security, not law enforcement.

    The Lackawanna Six controversy is history, but there are troubling signs the military may be injecting itself today into law enforcement. The American Civil Liberties Union has been sounding the alarm about the proliferation of “fusion centers,” in which federal, state and local law enforcement cooperate on anti-terrorism work. According to the A.C.L.U., the lines have blurred, and the centers have involved military personnel in domestic law enforcement. Congress should investigate.

    Janet Napolitano, the homeland security secretary, said Wednesday that fusion centers were not intended to have a military presence, and that she was not aware of ones that did. She promised greater transparency about what role, if any, the active military was playing.

    Civil libertarians are also raising questions about a program known as the Chemical, Biological, Radiological/Nuclear and High-Yield Explosives Consequence Management Response Force. The Army says its aim is to have active-duty troops ready to back up local law enforcement in catastrophic situations, like an attack with a nuclear weapon. That could be legal, but the workings of these units are murky. Again, Congress should ensure that the military is not moving into prohibited areas.

    Some of the military’s line-crossing seems ad hoc. Earlier this year, when a man in a small town in Alabama went on a shooting spree, Army troops reportedly went out on the streets to participate in the law enforcement effort. It is still unclear precisely what role they played. It is important that the military be thoroughly trained on what the law does and does not permit.” (end of excerpt)

  8. From the first article of the previous series of “Wired” stories –

    “The CIA and other agencies are sitting on a trove of documentary evidence of actual and suspected wrongdoing under the Bush administration, and the Electronic Frontier Foundation plans to file a lawsuit Wednesday to force the intelligence community to come clean, the group says.”

  9. Here’s an idea:

    Re-draft the 9/11 Authorization for use of military force to read something more specific than “all of them who the president may think they are.”

  10. This is the opinion of CCR:

    “These top U.S.officials are liable for war crimes under the U.S. War Crimes Act, and for violation of the Convention Against Torture and the Geneva Conventions, which are all part of U.S.law. They ordered the torture which was carried out by the interrogators.

    But John Yoo and the other Justice Department lawyers, including David Addington, Jay Bybee, William Haynes and Alberto Gonzales, are also liable for the same offenses. They were an integral part of a criminal conspiracy to violate U.S.laws. In U.S. v. Altstoetter, Nazi lawyers were convicted of war crimes and crimes against humanity for advising Hitler on how to “legally” disappear political suspects to special detention camps. The United Statescharged that since they were lawyers, “not farmers or factory workers,” they should have known their technical justifications for circumventing the Hagueand Geneva Conventions were illegal.
    The cases of Altstoetter and those of the Bush lawyers share common aspects. Both dealt with people detained during wartime who were not POWs; in both, it was reasonably foreseeable that the advice they gave would result in great physical or mental harm or death to many detainees; and in both, the advice was legally erroneous. More than 108 people have died in U.S.detention since 9/11, many from torture. And the Department of Justice’s Office of Legal Counsel later withdrew the memoranda, an admission that the advice in them was defective.”

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