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Cheney's War On Terror plan: Troops vs Terrorists on U.S. soil

Thanks again to U.S. political journalist Jason Leopold for allowing us to republish this piece, which first appeared on US site The Public Record today.

Former Vice President Dick Cheney Cheney pressured George W. Bush and other top administration officials to deploy U.S. soldiers to a Buffalo NY suburb to arrest suspected terrorists, according to a report.

Using American soldiers for domestic law enforcement purposes would have been unprecedented. The Posse Comitatus Act of 1878 generally prohibits the armed forces from acting in a law enforcement capacity.

The Fourth Amendment to the U.S. Constitution states that “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”

“Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants,” says a report published Friday evening in the New York Times.

Bush ultimately opposed the idea.

But Cheney, according to the Times said a 37-page Oct. 23, 2001 legal opinionprepared by John Yoo, the former deputy assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC), authorized the president to use the military for domestic matters. Yoo’s legal opinion–“Authority for Use of Military Force to Combat Terrorist Activities Within the United States”–was declassified and released along with other OLC memos in April.

Yoo, who is a visiting law professor at Chapman University in Orange, Calif., asserted that the President had unlimited powers to prosecute the “war on terror” on American soil and could ignore constitutional rights, including First Amendment freedoms of speech and the press and Fourth Amendment requirements for search warrants.

“The current campaign against terrorism may require even broader exercises of federal power domestically,” Yoo wrote.

Just three months before Bush exited the White House, Stephen Bradbury, as acting chief of the OLC, renounced the Oct. 23, 2001, legal opinion in a “memorandum for the files” that called Yoo’s opinion “overbroad and general and not sufficiently grounded in the particular circumstance of a concrete scenario.”

In an Oct. 6, 2008, memo, Bradbury wrote that Yoo’s legal opinion “states several specific propositions that are either incorrect or highly questionable.” But Bradbury attempted to justify or forgive Yoo’s controversial opinion by explaining that it was “the product of an extraordinary period in the history of the Nation: the immediate aftermath of the attacks of 9/11.”

The Oct. 23, 2001, “memorandum represents a departure, although perhaps for understandable reasons, from the preferred practice of OLC to render formal opinions only with respect to specific and concrete policy proposals and not to undertake a general survey of a broad area of the law or to address general or amorphous hypothetical scenarios that implicate difficult questions of law,” Bradbury wrote.

Some of Yoo’s thinking on domestic military operations was revealed, however, in an even earlier memo than the one dated Oct. 23, 2001. There was another one, written 10 days after the 9/11 attacks, on Sept. 21, 2001. The memo was drafted in response to a question posed by Timothy E. Flanigan, the former deputy White House counsel, who wanted to know “the legality of the use of military force to prevent or deter terrorist activity inside the United States,” according to a copy of Flanigan’s memo.

Yoo suggested some scenarios, such as the need to shoot down a jetliner hijacked by terrorists; to set up military checkpoints inside a U.S. city; to implement surveillance methods far superior to those available to law enforcement; or to use military forces “to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire,” according to Yoo’s memo.

Yoo argued that President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties. … We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.”

Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would “be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties.”

In his 2006 book, War by Other Means: An Insider’s Account of the War on Terror, Yoo cites various arguments for local and federal law enforcement agencies, as well as a sitting U.S. President, to ignore the Fourth Amendment, especially regarding domestic surveillance.

“If al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement,” Yoo wrote. “The Fourth Amendment’s warrant requirement should not apply, because it is concerned with regulating searches, not with military attacks.”

The Times report said, “at least one high-level meeting was convened to debate the issue, at which several top Bush aides argued firmly against the proposal to use the military, advanced by Mr. Cheney, his legal adviser David S. Addington and some senior Defense Department officials.”

“Among those in opposition were Condoleezza Rice, then the national security adviser; John B. Bellinger III, the top lawyer at the National Security Council; Robert S. Mueller III, the director of the Federal Bureau of Investigation; and Michael Chertoff, then the head of the Justice Department’s criminal division.”

However, senior military officials, including Richard Myers, the chairman of the Joint Chiefs of Staff, were never consulted about the proposal.

“Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna” New York, the Times reported. “Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody.”

Bush eventually ordered the FBI to arrest five Yemeni Americans suspected of having ties to al-Qaeda in Lackawanna. A sixth person was arrested in Baharain immediately immediately thereafter. All six pleaded guilty to guilty to terrorism-related charges.

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Yoo Who?

While Webdiarists will appreciate that I do not pretend to understand the mindset of the Rebel Colonists in the Americas, this is beyond the belief of any rational or even part-rational lawyer.

The military is not authorised to operate domestically unless under the doctrine of aid to the civil power and that has been a doctrine firmly established since at least the Civil War (no dimwits - not the civil war amongst the rebel colonists - the real Civil War).

Now, there are a few glaring breaches of that doctrine: impressment, the Peterloo massacre, and various violations of civil liberties in Northern Ireland. Apart from that, the doctrine still applies.

This article also fundamentally misunderstands the concept (as do most people) of a Federal Governmental system which combines States and a Commonwealth. Essentially, it is bullshit.

It would appear that Mr Yoo has as much intellectual rigour to hold an academic position as, oh, let's just think, Mr Keating.

F... Yoo!

Trust these bastards...

No way!!

The protection that make laws part of a justice system, have only evolved thru a milleniums-long long historical process of trial and error, costing the lives of millions, going back beyond Cicero, Socrates and Solomon, to Hammurabi and Abraham, four thousand years ago.

If it ain't broke; dont fix it!!

Especially when the motives of those pushing for the changes are suspect and there is no way that anyone's motives or eventual behaviours under pressure, might not be found wanting.

As I said above, history provide us with many precedents for what happens when the wrong people get control of the system.

One that comes to mind is the overthrow of the Weimar Republic by Hiutlers lot and the resulting culmination of actual lawlessness apparent from the Night of the Long Knives, thru Reichstag fire, thru Krystallsnacht,  to the eventual tragedy of 60 million people killed in WW2, on no better say so than the  delusions of madmen and thugs rendered unaccountable thru the overthrow of a legal system based on thought-thru ethical principles rather than the prejudice based whims these neutralise.

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