Posse Cheneytatus

John Yoo is the Sherlock Holmes of government lawyers. While other U.S. attorneys were telling the Bush administration that the Constitution guarded against things like “illegal searches and seizures” and “cruel and unusual punishment”, Yoo was hard at work combing through the Constitution with a magnifying glass, perhaps from his den with a large pipe in his mouth, uncovering presidential powers that no other legal scholar in U.S. history had managed to find. Among Yoo’s flabbergasting deductions about the Constitution: the Fourth Amendment doesn’t prevent warrantless wiretaps and the Eighth Amendment doesn’t prevent torture. When the Cheney-Rumsfeld ideological wing of the Bush administration needed a legal justification for something egregious, Yoo was their go-to man at the White House Office of Legal Council. His constitutional theory revolves around the idea that the president must protect the nation during wartime and therefore may justify nearly anything, Constitution or no Constitution.

Yesterday, the latest product of Yoo’s absurd legal reasoning came to light. In 2002, Yoo and fellow OLC lawyer Robert Delahunty wrote a memorandum authorizing President Bush to use the military on United States grounds to perform arrests. U.S. intelligence had determined that an al Qaeda cell was operating out of Lackawanna, a suburb of Buffalo, and Dick Cheney wanted to treat the arrest like a Special Forces assault. According to the astonishing memo, “The president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States.”

Cheney and his ferocious legal beagle David Addington then delivered this memo to the president, provoking a firestorm among his other advisors. National Security Advisor Condoleeza Rice, National Security Council lawyer John Bellinger, FBI Federal Director John Mueller, and Justice Department attorney Michael Chertoff all voiced strong opposition. While the Constitution may not directly outlaw the use of the military on domestic soil (although amendments forbidding quartering soldiers in homes and “unreasonble” searches and seizures seem to come pretty close), involving the military in domestic criminal affairs has been illegal since the Civil War thanks to the Posse Comitatus Act. Additionally, the Insurrection Act of 1808 deliberately ties the president’s hands in issues involving “insurrection, domestic violence, unlawful combination, or conspiracy.” Any matters falling under those categories are the responsibility of the states.

With one stroke of the pen, Yoo rendered all that law and legal precedent irrelevant for no reason other than the U.S. was at war. Fortunately, Bush resisted taking such a heavy hand and ordered the FBI to Lackawanna to make the arrests. The agents were successful; evidently Navy Seals weren’t required to subdue a handful of Arabs living in a suburban house. But the fact that Cheney and his legal team attempted to overthrow two centuries of law simply to exercise executive power is frightening.

Yoo is the same legal prodigy who wrote a legal justification for unlimited domestic wiretapping. According to James Bamford’s book “The Shadow Factory,” Cheney wanted unlimited power for the National Security Agency to eavesdrop on any phone call or internet communication, domestic or foreign, no warrant required. Once again, the law was crystal clear. The Fourth Amendment forbade government searches and seizures without a warrant. It’s protections had been extended to all electronic communications in the 1967 case Katz v. United States, in which the conviction of an illegal gambler was overthrown because it was based on evidence obtained from a warrantless wiretap. Additionally, the Foreign Intelligence Surveillance Act (FISA) of 1978 outlawed any warrantless eavesdropping on domestic communications and required the government to appear before a special court before snooping around foreign communications.

Again, this legal privacy barricade was destroyed by Yoo in a single legal opinion, in which he wrote simply in a footnote, “Our office recently concluded that the Fourth Amendment had no application to domestic military operations.” That settled it. The NSA could wiretap at will.

The NSA swung into action, floating a huge surveillance net that resulted in countless abuses. NSA sleuths in Iraq listened in not just on suspected terrorists, but on aid workers, Red Cross employees. They laughed and jeered at the phone sex conversations of officers stationed in the Green Zone. The NSA browbeat communications companies like AT&T into rerouting the phone and internet traffic of every American into government computers which sifted through them. One whistle blower recounted a story where NSA analysts had listened in on the phone conversation of an irate mother who exclaimed that her son had “bombed” in a soccer game the previous day. The NSA’s computer sifter detected the word “bomb” and the woman’s private communication was subjected to government spies.

Yoo frequently defends his opinions by noting that the government would use its extralegal powers to foil terrorists, not innocents. But America does not cease to become a nation of laws because it’s on the warpath. Yoo’s legal justifications are dangerous because they could lead to the following conversation:

GENERAL: Mr. President, we’re set to begin our campaign to kill off all the left-handed people.

PRESIDENT: I don’t know Jim, I’ve been having second thoughts about this. Doesn’t Posse Comitatus prevent us from using the military against domestic targets?

GENERAL: It does sir. But we have legal precedent from a man named John Yoo who wrote a memo stipulating that such laws are inapplicable during wartime.

PRESIDENT: Ah, excellent! Well that assuages my doubts. You may commence immediately.

GENERAL: Yes sir.

Precedents of any sort matter in government and Yoo should know this.

The entire purpose of America and its Constitution is to prevent one man or faction from obtaining too much power. When they signed the 1787 Constitution, the Founding Fathers had just finished a bloody war against a tyrannical British government triggered by a series of unjust tax increases. The Founders weren’t particularly keen on any excessive government power. To suggest that they would consider the Constitution inapplicable so long as the president could produce a declaration of war is fatuous. The president has the authority to fight a war, but not at any cost.

Yoo is now a controversial columnist for the Philadelphia Inquirer and a regular on the legal lecture circuit, proof that bad behavior is often rewarded, I suppose. As Attorney General Eric Holder tinkers with the idea of opening a criminal probe into the Bush administration’s wartime excesses, he should start by examining the yes-man legal reasoning of men like John Yoo.