WASHINGTON (Reuters) – The US military could have kicked in doors to raid a suspected terrorist cell in the United States without a warrant under a Bush-era legal memo the Justice Department made public yesterday.
The memo, from October 23, 2001, also said constitutional free-speech protections and a prohibition on unreasonable search and seizure could take a back seat to military needs in fighting terrorism inside the country.
It was one of nine previously undisclosed memos and legal opinions which shed light on former US President George W. Bush’s legal guidance as he launched a war against terrorism after the September 11 attacks.
They depict an administration apparently determined to expand the president’s power after the shock of September 11, and add fuel to critics’ charges that fundamental constitutional protections were threatened in the process. “The current campaign against terrorism may require even broader exercises of federal power domestically,” Justice Department officials John Yoo and Robert Delahunty wrote White House counsel Alberto Gonzales in the October 23 memo.
“We do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a (search) warrant,” they said.
The US Supreme Court has held that the Constitution’s Fourth Amendment ordinarily requires a probable cause and a warrant to execute a search. However, the memo said those requirements “are unsuited to the demands of wartime.”
Furthermore, it said, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” “The government’s compelling interests in wartime justify restrictions on the scope of individual liberty,” it said. The Justice Department under Bush had fought a lawsuit which sought to make the memo public.
But the department disavowed most of the advice in a final memo dated days before US President Barack Obama took office in January, and Obama later declared all of the memos no longer valid.
“The following propositions contained in the opinions …. do not currently reflect, and have not for some years reflected, the views of the (Justice Department legal counsel),” a January 15, 2009 memo from the Bush Justice Department said.
It said the counsel’s office had not relied on the opinions since 2003 “and on several occasions we have already acknowledged the doubtful nature of these propositions,” the memo said.
The release of the memo was the latest move in the Obama administration’s swift repudiation of many of Bush’s counterterrorism policies, which have been criticized by US allies and advocates of human rights and civil liberties.
US Attorney General Eric Holder said he hoped to release future legal counsel opinions “while still protecting national security information and ensuring robust internal executive branch debate and decision-making.” “Americans deserve a government that operates with transparency and openness,” he said.
The American Civil Liberties Union, which has sued to secure release of numerous Bush legal memos on the terrorism war, welcomed the decision to make the documents public but said it hoped this was the first step in a broader release.