WASHINGTON — Top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.
Some of the advisers to President George W. Bush, including Vice President Dick Cheney, argued that a president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.
Mr. Bush ultimately decided against the proposal to use military force.
A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.
The Fourth Amendment bans “unreasonable” searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.
Though it received very little press attention, it is not hyperbole to observe that this October 23 Memo was one of the most significant events in American politics in the last several decades, because it explicitly declared the U.S. Constitution -- the Bill of Rights -- inoperative inside the U.S., as applied to U.S. citizens. Just read what it said in arguing that neither the Fourth Amendment -- nor even the First Amendment -- can constrain what the President can do when overseeing "domestic military operations" (I wrote about that Memo when it was released last March and excerpted the most revealing and tyrannical portions: here).
All of this underscores why it is so important to vigorously oppose the efforts of the Obama administration (a) to continue many of the radical Bush/Cheney Terrorism programs and even to implement new ones (preventive detention, military commissions, extreme secrecy policies, warrantless surveillance, denial of habeas corpus) and (b) to endorse the core Orwellian premise that enables all of that (i.e., the "battlefield" is anywhere and everywhere; the battle against Terrorism is a "War" like the Civil War or World War II and justifies the same powers). By itself, the extreme injustice imposed by our Government on the individuals subjected to such tyrannical powers (i.e., those held in cages for years without charges or any prospect for release) should be sufficient to compel firm opposition. But the importance of these issues goes far beyond that. Even if the original intention is to use these powers in very limited circumstances and even for allegedly noble purposes ("only" for Guantanamo detainees who were tortured, "only" for people shipped to Bagram, "only" for the Most Dangerous Terrorists), it's extremely dangerous to implement systems and vest the President with powers that depart from, and violently betray, our core precepts of justice.