Mukasey Refuses to Say Yoo Fourth Amendment Memo Withdrawn

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During a Senate Appropriations Committee hearing this morning, Sen. Dianne Feinstein (D-CA) questioned Attorney General Michael Mukasey about that October, 2001 Justice Department memo in which John Yoo found that the Fourth Amendment, which protects citizens against “unreasonable searches and seizures,” had “no application to domestic military operations.”

Has that memo been withdrawn? If not, was it still in force? Feinstein wanted to know.

She found it difficult to pry an answer loose. “I can’t speak to the October, 2001 memo,” Mukasey said when she asked whether it had been withdrawn. He said that Yoo’s later March, 2003 memo — which broadly authorized the use of torture by military interrogators on unlawful combatants — had been withdrawn, but refused to discuss that October, 2001 memo.

Here’s video of the exchange:

That memo remains classified, and Mukasey said that working to declassify portions of or entire secret Justice Department legal memos by Yoo and others was a “priority” of his, but he refused to supply a timeline for when he might make those determinations. He was very mindful of Congress’ “legitimate oversight role,” he said.

“This isn’t a question of oversight,” Feinstein said. “I’m just asking you, ‘Is this memo in force that the Fourth Amendment does not apply?”

“The principle that the Fourth Amendment does not apply in wartime is not in force,” Mukasey replied.

“That’s not the principle I asked you about,” Feinstein countered. The memo referred to domestic military operations, she said.

“There are no domestic military operations being carried out today,” Mukasey replied.

“I’m asking you a question. That’s not the answer.”

“I’m unaware of any domestic military operations being carried out today,” he repeated.

“You’re not answering my question,” she said.

Finally, Mukasey responded, “The Fourth Amendment applies across the board whether we’re in wartime or peacetime. It applies across the board.”

When Feinstein pronounced herself satisfied, Mukasey said, “with due respect, I don’t think there’s anything really new about that answer.” He went on to imply that Yoo’s discussion of the applicability of the Fourth Amendment had not been a crucial aspect of that memo. “The discussion of which that was a part… means the inaptness… the suggested inapplicability of the Fourth Amendment as an alternative basis for finding that searches discussed there would be reasonable.”

“But Mr. Yoo’s contention was that the Fourth Amendment did not apply and that the President was free to order domestic military operations,” Feinstein replied.

“Without regard to the Fourth Amendment?”

“Yes.”

“My understanding is that is not operative.”

The Washington Post reported last week that the Justice Department “repudiated the idea that there are no constitutional limits to military searches and seizures in a time of war, saying it depends on ‘the particular context and circumstances of the search.'”