DOJ Supported Warrantless Search and Seizure in Terror Cases

A memo issued by the Department of Justice in 2001 supported the assertion that Fourth Amendment prohibitions against unreasonable search and seizure did not apply to military members fighting terrorism in the United States. The document was recently released with several other controversial memos as a part of a Freedom of Information Act (FOIA) request by the American Civil Liberties Union (ACLU). The memo, written by controversial former Justice attorney John Yoo and sent on October 23, 2001, to the Department of Defense and the White House, examined legal issues that would be faced if US forces were deployed in the United States “in the event of further large-scale terrorist activities.” ^[1]

In addition to the Fourth Amendment memo, a 2003 Justice Department document authorizing harsh interrogation techniques was also made public. Both documents supported almost unlimited executive power during times of war, including limits on Congress’ ability to pass legislation governing interrogations of enemy combatants. The 2003 memo also asserted that federal criminal laws did not apply to military interrogators questioning al-Qaeda captives, and that Fifth Amendment guarantees of due process "do not address actions the Executive takes in conducting a military campaign against the Nation's enemies."^[2]

Such assertions have shocked many in the legal world, both in and outside of the Bush Administration. Jameel Jaffer, National Security Director at the ACLU underscored that no court ruling has ever supported the assertion that the Fourth Amendment does not apply to members of the military. "In general, the government can't send an FBI agent to search your home or listen to your phone calls without a warrant, and it can't send a soldier to do it, either," he said. "The applicability of the Fourth Amendment doesn't turn on what kind of uniform the government agent is wearing."^[3]

Even members of the military were reluctant to accept the assertions made in the Justice memos. In regards to the memo authorizing harsh interrogation techniques, Air Force Gen. Richard B. Myers (Ret.), who served as Chairman of the Joint Chiefs of Staff when the memo was written, discounted the document’s narrow definition of torture as "absolutely ludicrous."^[4] Myers further added, "I frankly don't know anyone in the military who bought into that as a good definition of when you cross the line….In the end, you want to do the right thing. I worry most about reciprocity, how other countries will treat us."^[5]

Several of the memos in question have since been withdrawn by the Justice Department, which instructed both the Defense Department and the White House to disregard the assertions made in the documents, but the Fourth Amendment memo arguing for military exceptions to search and seizure requirements has not been formally withdrawn. The document remains a “secret but unclassified document,” according to Justice spokesman Brian Roehrkasse, who declined to state whether or not the document has since been modified.^[6]

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[1] Dan Eggan and Josh White, Administration Asserted a Terror Exception on Search and Seizure, Washington Post, April 4, 2008 (available at www.washingtonpost.com).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.