The Washington Post reports today on an interesting tidbit to be gleaned from the March 2003 John Yoo memo:
The Justice Department
concluded in October 2001 that military operations combating terrorism
inside the United States are not limited by Fourth Amendment
protections against unreasonable searches and seizures, in one of
several secret memos containing new and controversial assertions of
The memo, sent on Oct. 23, 2001, to the Defense Department and the White House
by the Office of Legal Counsel, focused on the rules governing any
deployment of U.S. forces inside the country "in the event of further
large-scale terrorist activities" by al-Qaeda, a Justice Department official said yesterday.
The actual memo still hasn't been released (its existence was revealed in a footnote of the 2003 memo), so it's difficult to know what the Justice Department's reasoning was. But suffice it to say this is troubling, even when one takes into consideration the mindset that prevailed immediately after 9/11. It seems unlikely that the Framers would have been A-OK with unreasonable searches and seizures as long as they were being performed by members of the federal military. It's unclear what (if any) domestic military operations were under consideration--the Posse Comitatus Act and Insurrection Act limit the president's authority to deploy troops domestically, but presumably Yoo and company aren't too enamored of those laws either.