Okay, not only did the DoJ claim it was okay to torture folks if the President said to do it, someone at the EFF spotted a footnote in the original memo.
... our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, II, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 2001). [emphasis added]
That memo hasn't yet been released (and it's not clear whether it's ever been rescinded).
Now, wait ... the Fourth Amendment? Which one's that? I get so confused by all those silly Constitutional protections ...
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Oh, that Fourth Amendment.
In other words, if the Administration asserts (whether it believes it or not) that something is a "domestic military operation," then it can search (including wiretap) anyone or anything to its heart's content. It can also take whatever the heck it wants. There's no Constitutional protection against it. Or so said the Dept of Justice.
But that's talking about "military operations," right? Like, army men and all that, in case of a national emergency, right? Well, what the Administration deems to be a "domestic military operation" is a bit broader than that.
In 2006, the Department of Justice has 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." The DOJ also asserted 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 sees it, "In the present conflict, unlike in the Korean War, the battlefield was brought to the United States ..." The NSA is part of the Department of Defense.
AUMF is the "Authorized Use of Military Force" passed by Congress in October 2001.
In other words, if the NSA wants to listen to your phone calls, all it has to claim is that it's in pursuit of the "enemy" and it's fully authorized (by the AUMF, according to this memo) to do so. Which is what the Administration has claimed -- only hypothetically, until very recently -- it was doing, and why the telcos that supported it (perhaps because the above-mentioned memo was waved around at them) need immunity (according to the Administration) so that judges aren't in a position to rule on these various assertions of essentially unlimited executive power by the DoJ.
In a government of Laws, not Men, we're not supposed to have to rely on the benignity and goodwill of those in authority to preserve our rights and not do anything evil or tyrannical. That's why we have a Constitution in the first place. If we can only rely on this Administration -- or the next, or the next, or the next -- all being good eggs and not exploiting any of the "We're from the government -- trust us, it's an emergency" security crap that this one has put on the record, we might as well all give up and move to China.
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See, you're still assuming that Darth Cheney and George II give up power...
"Power is the ultimate aphrodisiac."
-- Henry Kissinger
And this is another brick in the wall built by people saying: "I'm not a criminal and have nothing to hide, why should I care?"
It's funny that the Fourth amendment was added specifically to keep troops out of American homes, here's a ruling that says that the entire reasoning behind that amendment was meaningless.
If the Founding Fathers could rise from their graves as vengeful revenants then the Bush Administration would find themselves at the heart of a horror movie in the role of the promiscuous teenagers.
Actually, that would be the Third Amendment.
But I agree with the rest of what you say.
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