Bush Administration Claimed Fourth Amendment Did Not Apply to NSA Spying

In an October 23, 2001, Office of Legal Counsel memo released today, the Bush Administration concluded that "the Fourth Amendment does not apply to domestic military operations," including "intercepting electronic or wireless communications" by "employing surveillance methods more powerful and sophisticated than those available to law enforcement agencies.

When news of this memo first surfaced in a footnote to another memo, we wondered if it meant that the Administration's lawyers advised that the National Security Agency (a component of the military) could spy on Americans with impunity and face no Fourth Amendment claim. Our suspicions were raised back in 2006 when the DOJ asserted that "that warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF" and that "the NSA activities fit squarely within the sweeping terms of the AUMF. The use of signals intelligence to identify and pinpoint the enemy is a traditional component of wartime military operations."

As the DOJ saw it, "In the present conflict, unlike in the Korean War, the battlefield was brought to the United States ..." Thus, we were deeply concerned that the "domestic military operations" authorized by the OLC memo included domestic surveillance of Americans, without regard to their constitutional rights.

The recently released October 23, 2001 Memo confirms a disregard for the Constitution that was only hinted at before. The October 23, 2001 Memo did not limit itself to the Fourth Amendment, asserting that the President's war powers superseded the "takings" clause of the Fifth Amendment , and that "First Amendment speech and press rights may also be subordinated to the overriding need to wage a war successfully.

This legal opinion, written by John Yoo and Robert Delahunty, remained in effect until October 6, 2008, when the OLC issued a memo recommending that "caution be exercised before relying in any respect on the 10/23/01 memorandum. Thus, between October 23, 2001, and October 6, 2008, resting on legal analysis that they now admit was "doubtful," the OLC took the unqualified position that the Fourth Amendment did not apply to domestic wiretapping conducted by a military entity, such as the NSA.

And now, we have the Telecom Immunity Act protecting the conspirators in this wholesale violation of the Constitution which is being challenged in courts seeded with "conservative" sympathizer puppets in robes. And what is even worse, the past administration is still claiming "executive privilege" and while trying to cover their own exposed behinds, are simultaneously trying to protect their conspirators in the Telecom industry.

While the U.N. demands that the new administration initiate investigations into the excesses of the previous administration, the Obama team continues to recite the mantra of "look forward, not back". And while that is all good karma and good politics, it disregards one of the oldest admonitions of society, "He who fails to remember the past is doomed to repeat it".

As I see it, until the Obama Administration, and President Obama his self, admit, investigate, and prosecute the excesses of the previous administration, he is merely a bit player in the conspiracy to rape, pillage and plunder the people and the lands of this great world society. Protectionism and patriotism aside, ¡Somos uno! ¡Somos iguales!