The chief function of the Constitution of the United States is to define, and therefore limit, the powers of the U.S. government. It is in the context of this function that I consider the Office of Legal Council memo, "Authority for Use of Military Force to Combat Terrorist Activities Within the U.S.," written by John Yoo and Robert Delahunty in October 2001, withdrawn by Stephen Bradbury in October 2008, and released to the public March 2, 2009 by the Justice Department.
The authors of the memo interpreted the Constitution as granting to the president “the independent, non-statutory power to take military actions, domestic as well as foreign.” They claimed that “the Fourth Amendment does not apply to domestic military operations designed to deter and prevent further terrorist attacks” and that, given certain circumstances, “Federal Armed Forces must be free to use force” against even known United States citizens “without being constrained by the Fourth Amendment.” Furthermore, they wrote, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.”
Whereas the Constitution imposes limits on what our leaders can legally do, the memorandum attributes powers to the government that reside explicitly beyond the limits of authority established by the Constitution. It presents a legal argument for usurpation and tyranny, claiming powers for the government outside of those that came from the consent of the governed. Glenn Greenwald’s description of “secret laws” is apt.
The authors of the memo justified suspending Constitution amendments not only on the grounds of keeping us safe, itself a basis for much mischief, but also on “the need to wage war successfully.” Successful war making overrides the freedom of speech and press rights in the minds of these OLC lawyers. Fighting victoriously matters more than fighting justly. In this line of thought, those who question or criticize the war effort must be silenced when they hinder waging the war successfully.
We don’t yet know exactly what influence this memo had upon domestic military operations, but as Scott Horton remarks, we need to know how it was used. Assurances that it wasn’t relied upon shouldn’t put the matter to rest. The freedom of the American people will be measured by what answers and evidence we receive about what our government has secretly done in our name.
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