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.
Even the Times article makes clear that other considerations drove the preparation of the Yoo memoranda, namely to “test the Constitution.” The Lackawanna Six were being tightly monitored by the FBI, which believed it had the situation well in hand. But Cheney lacked confidence in the nation’s criminal justice system, as many of his public comments reflect.
Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody. Earlier that summer, the administration designated Jose Padilla an enemy combatant and sent him to a military brig in South Carolina. Mr. Padilla was arrested by civilian agencies on suspicion of plotting an attack using a radioactive bomb.
Those who advocated using the military to arrest the Lackawanna group had legal ammunition: the memorandum by Mr. Yoo and Mr. Delahunty. The lawyers, in the Justice Department’s Office of Legal Counsel, wrote that the Constitution, the courts and Congress had recognized a president’s authority “to take military actions, domestic as well as foreign, if he determines such actions to be necessary to respond to the terrorist attacks upon the United States on Sept. 11, 2001, and before.” The document added that neither the Posse Comitatus Act nor the Fourth Amendment tied a president’s hands.
So the Yoo memoranda were almost certainly prepared in order to support a case for the domestic use of the military and in the hopes that by deploying the military, the Constitutional limitations on police action and arrests could simply be avoided. The Yoo memoranda set the stage for a military dictatorship, following exactly the sort of phased introduction that occurred in the cone of South America in the seventies and eighties. As Yale law professor Jack Balkin puts it, “This is not a debate about whether the army would have to read Miranda rights to suspects captured on the battlefield in Afghanistan. It was a plan to have the military arrest people in the United States in order to get around civil liberties guaranteed by the Constitution.” A large number of memoranda written by Yoo appear to be a quest for a “state of exception” to the Constitution. Effectively, he was looking for a way to make the president into a dictator.
The latest disclosures occur during a mounting feud between Bush and Cheney that was launched with Time magazine’s disclosure that Bush rebuffed Cheney’s aggressive play to secure a full pardon for his close friend and former chief of staff, Scooter Libby. Cheney responded to the Time article with a barely civil statement to the effect that Libby had been entitled to the pardon. The new disclosure seems again designed to show Cheney as an extremist whose advice was not always followed by Bush.
But it is relevant to another issue now looming before the Obama Administration. The theories that Yoo and his colleagues concocted on White House commission were realized in a sense when Bush agreed to designate certain individuals as “enemy combatants” and then have them held by the military outside of the American legal system. This step was uncontroversial when applied to a person captured on a foreign battlefield. But when applied to an American citizen who arrived off a plane at O’Hare Airport (Jose Padilla), or to a foreign national lawfully in the country on a student visa (Ali Saleh Kahlah al-Marri), it raised serious questions. President Obama has stated that he is now considering whether he has the power to order the detention of persons outside of both the laws of armed conflict and the U.S. criminal justice system. While the Yoo memoranda have been repudiated, their arguments of almost limitless presidential power seem almost as appealing to the current White House as the old one.
But the Times story shows that Cheney’s concerns that the criminal justice system couldn’t properly cope with the problems in Lackawanna were simply false. The six were arrested, pleaded guilty, and were sentenced. This would not have been the case had soldiers been sent onto the streets of Buffalo to enforce the president’s orders. A recently updated report by two retired federal prosecutors, Richard B. Zabel and James J. Benjamin, makes this case convincingly. It shows that counterterrorism cases have been brought in federal courts in substantial numbers and that they tend to swiftly move to convictions, with little to suggest that claimed shortcomings in the use of evidence and intelligence in the process stand in the way of successful prosecution. In sum, the shortcomings that form the constant basis of claims from figures like Cheney and Karl Rove are without a sound basis in fact. Considered carefully, without hysterical fear, they fall apart.