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Fourth Amendment rights curtailed by Bush administration...but to what extent?

Daniel M. Smith [Colonel, USA (Ret.); Senior Fellow for Military Affairs, Friends Committee on National Legislation]: "

I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation. James Madison, 1788

October 23, 2001. For sixteen days, U.S. warplanes had been dropping the very latest GPS-guided iron bombs on Afghanistan after that country's ruling Taliban faction refused to surrender Osama bin Laden to stand trial for the murder of more than 2,935 people on 9/11. On that same October day but physically half-way around the globe and a universe apart in experience and opportunity, Deputy Assistant Attorney General John Yoo of the Department of Justice's Office of Legal Counsel, finished a classified legal memorandum that discussed the extent to which the president could restrict or suspend entirely fundamental freedoms guaranteed by the U.S. Constitution during "domestic military operations."

Somehow, citizens and legal residents of the United States had become the enemy or, at the very least, collaborators simply because of the freedoms enumerated in the Constitution. The pen, so fervently and frequently hailed as mightier than the sword in enumerating democracy's gifts, was being used to scratch all of them from the nation's chronicles.

On April 10, 2008, six years, five months, 17 days after Yoo finished his memo, members of the Senate Appropriations Committee challenged the current Attorney General, Michael Mukasey, to declassify that Yoo memo which is but one of a number of legal opinions that purported to justify radical steps to expand presidential power within the United States in the aftermath of an attack that President Bush responded to — erroneously — with military forces rather than the judicial system within the United States and the cooperation of allied nations around the world.

Regrettably, for most of the nearly 6½ years since the October memo was penned, the public failed to mount sustained pressure on Congress to repudiate the White House power grab. While more voices are being raised in protest, the administration is attempting to consolidate its "gains" by demanding that Congress not only re-authorize expanded surveillance powers that have or are about to expire but make them permanent. And because the administration can conceal so much by simply classifying documents and records, the scope of its subterfuge may never be discovered until historians gain access to government records — if then.

In truth, it was pure accident that the existence of the October 23 memo became public. Administration redactors failed to black-out a footnote in another OLC memo dated in March 2003 that described the earlier memo as concluding "that the Fourth Amendment had no application to domestic military operations." (The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.") Moreover, what was not revealed by the Attorney General is how long OLC's finding with regard to the Fourth Amendment was in force; Mukasey noted that the Justice Department "withdrew the March 2003 memo nine months after it was issued," but he declined to be drawn out on the October 2001 finding.

From what has become public through Freedom of Information (FOI) requests, associated FOI judicial rulings, and challenges to the Bush administration attempts to devise non-standard courts and associated judicial structures, it is clear that the White House was engaged in a wide-ranging effort to deprive the public of the very liberties that are the hallmark of a free society. How close we came — and how close we still may be — to the abridgement of individual rights by the administration may come to light only when the official history of the first decade of the 21st century is written.

To that end, the Congress might invite the Attorney General to come to Capitol Hill to elaborate on what he means by "the principle that the Fourth [or any other] Amendment doesn't apply.""

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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