On Saturday, Mark Mazetti and David Johnston of the New York Times, quoting sources close to former President Bush, revealed that former Vice President Dick Cheney had advocated deploying the military for domestic policing purposes. Bush apparently declined to take Cheney’s advice. The discussions occurred against the backdrop of the so-called “Lackawanna Six” case, involving a group of six Yemeni-Americans from the Buffalo area who later pleaded guilty to charges of providing material support to Al Qaeda and received prison sentences.
The disclosures shed considerable light on two memoranda prepared in the Justice Department’s Office of Legal Counsel by John Yoo (with the help of Robert J. Delahunty on the second memo) at the request of then-White House counsel Alberto Gonzales. The principal memo was part of a group published by the Obama Administration on May 16, provoking widespread public concern. In the memo, Yoo argued that the Fourth Amendment could be viewed as suspended in the event of domestic operations by the military in war time. The second memo, not yet released but discussed here by Prof. Kim Scheppele on the basis of references to it in other documents, apparently attempted to read the Posse Comitatus Act of 1878, which forbids the domestic deployment of the military for police functions, into oblivion. In “George W. Bush’s Disposable Constitution,” I argued that Yoo’s memo was the formula for a dictatorship. Yoo responded to this objection in the Wall Street Journal, arguing that the memo had been authored with a very narrow set of facts in mind, namely an invasion like the sort of attack that was launched on Mumbai on November 26, 2008. But the latest disclosures make clear, once more, that Yoo’s claims are dishonest. [continued…]