March 7, 2009


Yes, We Did Plan for Mumbai-Style Attacks in the U.S.: Why the latest assault on Bush antiterror strategy could make us less safe. (John Yoo, 3/06/09, WSJ)

According to these critics, the overthrow of constitutional government in the United States began with a 37-page memo, confidentially issued on Oct. 23, 2001, which concluded that the September 11 attacks triggered the government's war powers and allowed the president to use force to counter force. Alexander Hamilton saw things differently than critics of the Bush administration. He wrote in Federalist 74: "The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority."

Congress agreed with Hamilton. Restrictions on deploying the military for domestic law enforcement (originally passed to end Reconstruction in the South) did not apply to self-defense of the nation. Congress blessed military action on Sept. 18, 2001, when it authorized President Bush "to use all necessary and appropriate force against those nations, organizations, or persons" connected to the September 11 attacks, "in order to prevent any future acts of international terrorism against the United States." Passed as the sound of Air Force combat air patrols flew over the Capitol, Congress must have understood that its words included stopping domestic attacks, since the hijacked airliners of 9/11 took off and crashed on American soil.

The government faced another fundamental question, which we addressed in our memo. Does the Fourth Amendment's requirement of a search warrant based on probable cause regulate the use of the military against terrorists on our soil. In portraying our answer, the media has quoted a single out-of-context sentence from our analysis: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."

This line deliberately misrepresents the memo. The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota concerning press freedom: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right." The Court continued: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."

Our memo had nothing to do with the First Amendment. It only referred to the case to show that constitutional rights apply differently during the exigencies of warfare than during peacetime. The 1931 case bolstered a point that the Supreme Court recognized in 2000 in Indianapolis v. Edmond, striking down random traffic stops to search for illegal drugs. "The Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack," the Court wrote. Courts have understood that law-enforcement standards could not govern military operations against wartime enemies. They have rejected, to take one example, claims that the Constitution required compensation for the destruction of oil facilities before the invading Japanese in World War II.

Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable -- combat occurred wholly on U.S. territory and enemy soldiers were American citizens.

As Lincoln recognized, you have to defend and preserve the Republic and then we can hash out differences over legal niceties afterward.

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Posted by Orrin Judd at March 7, 2009 7:09 AM
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