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Memo Confirms Bush's Disregard of Constitution on Wiretaps

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Message Dion B. Lawyer-Sanders

Justice Department Memo Issued in 2001 Shows White House Regarded Its Anti-Terror Surveillance Program as 'Immune' From Fourth Amendment's Requirement for Court Warrants; New Book Reveals Heated Dissension in FBI and Justice Department Over Program's Legality

(Updated 5:30 a.m. Wednesday, April 9, 2008)

By Skeeter Sanders

For more than two years -- almost from the time The 'Skeeter Bites Report was launched -- this blogger has argued over and over and over again that the Bush administration's warrantless surveillance program against terrorism suspects was -- and is -- unconstitutional.

For more than two years, this blogger has repeatedly cited a unanimous 1972 U.S. Supreme Court decision and a 1975 U.S. Court of Appeals ruling in arguing that the program violates the Fourth Amendment's ban on unreasonable government searches and seizures by not obtaining court warrants for such surveillance.

Now, it turns out, the Bush administration knew all along that what it was doing was unconstitutional -- but concocted a rationale to claim that its warrantless anti-terror wiretapping was exempt from the Fourth Amendment's requirements.

A secret legal memorandum issued by the Justice Department in 2001 made precisely that argument. It was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time.

Gonzales, who would go on to become attorney general in 2005, asserted the president has the "inherent authority" to unilaterally order secret intercepts by the National Security Agency of telephone and e-mail exchanges between people inside the United States and their contacts abroad without first obtaining court warrants.

So controversial is the government’s eavesdropping program that it sparked heated legal concerns and silent protests inside the Bush administration within hours of its adoption in October 2001, according to a newly-published book.

In making its case to Congress for broadened spy powers, the White House has emphasized what it claimed were the firm legal foundations of the program conducted after the September 11, 2001 terrorist attacks -- and had even taken the unusual step of giving lawmakers access to classified presidential orders from 2001 and early legal opinions to try to show that the program was on sound legal footing from the start, the book says.

New York Times reporter Eric Lichtblau's new volume, Bush's Law: The Remaking of American Justice is based on interviews with scores of current and former Bush administration officials.

Memo's Existence Disclosed in Pentagon Response to ACLU Lawsuit

The memo, dated October 23, 2001, was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The memo remains secret, but its existence was disclosed last Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency's Terrorist Surveillance Program, or TSP.

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I'm a native of New York City who's called the Green Mountain state of Vermont home since the summer of 1994. A former freelance journalist, I'm a fiercely independent freethinker who's highly skeptical of authority figures -- especially when (more...)
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