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

The 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.

The 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.