Apparently a Berkeley law professor has a pretty radical interpretation of our constitutional right to be protected from unreasonable search and seizure: It doesn’t apply to domestic military operations.

From today’s Washington Post:

The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaeda captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly yesterday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”

Although the existence of the memo has long been known, its contents had not been previously disclosed.

Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon’s general counsel on March 14, 2003, by John C. Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

John Yoo, of course, is now a professor at the University of California, Berkeley’s Boalt Hall School of Law. He already has taken a lot of heat for previously released memos in which he advocated the possible legality of torture, and for denying enemy combatants protection under the Geneva Conventions.

Read the newly released memo here, and please take a look at footnote 10 on page 8:

Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court’s treatment of the destruction of property for the purposes of military necessity, 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).

Read that sentence I emphasized once more: “(T)he Fourth Amendment had no application to domestic military operations.”

Here’s the Fourth Amendment, lest we forget: “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, support by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

But according to this footnote, Yoo — a little more than one month after the Sept. 11, 2001 attacks — issued a memo finding that doesn’t apply to everyone within our borders, a sentiment never made public until now.

The American Civil Liberties Union today issued a news release saying this still-secret 2001 Yoo memo “was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued. As a component of the Department of Defense, the NSA is a military agency.”

The ACLU has challenged the withholding of the October 2001 memo and the issue is pending before the U.S. District Court for the District of Columbia.

This just in from the office of U.S. Sen. Dianne Feinstein, D-Calif.:

Congress today approved legislation by U.S. Senators Dianne Feinstein (D-Calif.), Chuck Hagel (R-NE), and Sheldon Whitehouse (D-RI) that would require the CIA to follow the Army Field Manual’s rules on interrogations.

The legislation, which now goes to the President, will establish uniform standards on interrogation of detainees for all parts of the U.S. government. It prohibits waterboarding and other forms of coercive interrogation techniques.

“Today, the Senate stood tall and declared in a strong voice that the United States will not engage in torture,” Senator Feinstein said. “This is an historic moment, and I strongly urge the President to sign it into law. This legislation will require the CIA to follow the Army Field Manual’s protocols on interrogations. It will help restore America’s credibility abroad by establishing a single, uniform standard for the interrogation of detainees in our custody. No longer will the United States allow actions by its intelligence services which clash so sharply with the very ideals upon which this nation was founded. This legislation ensures that the United States will follow the law – the Geneva Conventions, the Conventions Against Torture, and the Detainee Treatment Act. Only by living up to our principles can we regain credibility in the eyes of the world. The President should sign this bill into law.”

[snip]

The measure was included as an amendment to the Intelligence Authorization bill, which was approved today by the Senate.

The provision reads:

“No individual in the custody or under the effective control of an element of the intelligence community or instrumentality thereof, regardless of nationality or physical location, shall be subject to any treatment or technique of interrogation not authorized by the United States Army Field Manual on Human Intelligence Collector Operations.”

It specifically requires the CIA and all other U.S. intelligence agencies to follow the Army Field Manual’s protocols on interrogations.

The Army Field Manual specifically prohibits eight interrogation techniques:
· Forcing a detainee to be naked, perform sexual acts, pose in sexual manner;
· Placing hoods or sacks over the head of a detainee, duct tape over the eyes;
· Beatings, electric shock, burns or other forms of physical pain;
· Waterboarding;
· Use of military working dogs;
· Introducing hypothermia or heat injury;
· Conducting mock executions; and
· Depriving detainee of necessary food, water, or medical care.

The Army Field Manual allows 19 interrogation approaches, mainly based on psychological techniques, such as making a detainee believe that cooperation will shorten the length of a war and therefore save his country.

Just yesterday at the Berkeley protests regarding U.S. Marine Corps recruiting in Berkeley, I heard Rabbi Michael Lerner — founder of the Tikkun community and cofounder of the Network of Spiritual Progressives — list Feinstein among lawmakers who enable the war by failing to stand up to the Bush Administration, in her case by voting to confirm Michael Mukasey as Attorney General despite his refusal to explicitly characterize waterboarding as torture. (Go see here how some protestors heckled Feinstein for this back in November.)

But it seems Feinstein found a way to act on the issue, after all.

I was at Cal’s School of Law this morning to cover arguments to a 9th U.S. Circuit Court of Appeals panel in the federal civil rights lawsuit brought against San Francisco and its police department in the “fajitagate” case. Sitting on this three-judge panel was Circuit Judge Jay S. Bybee, an Oakland native who maintains his chambers in Las Vegas.

As John Roemer reported in Monday’s edition of the Daily Journal legal newspaper, attorney Dennis Cunningham, representing plaintiff Jade Santoro, filed a motion last Thursday asking Bybee to recuse himself on the basis of an August 1, 2002 memo he signed while serving as the assistant attorney general in charge of the U.S. Justice Department’s Office of Legal Counsel.

That memo narrowed the definition of torture, concluding “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” It also concluded that for purely mental pain to constitute torture it “must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”

President Bush announced Bybee’s nomination to the 9th Circuit bench in May 2002 and sent it to the Senate in January 2003; the Senate confirmed him that March. The Washington Post broke the story on the leaked “Bybee memo” — reportedly written in large part by Deputy Assistant Attorney General John Yoo, now a Cal law professor — more than a year later, in June 2004.

Cunningham’s motion argued Bybee shouldn’t hear Wednesday’s case involving police officers with a history of excessive-force accusations because “unnecessary, and gratuitous, and so often sadistic, uses of force” are among “domestic forms of torture.”

Bybee issued an order last Friday refusing to recuse himself; Cunningham filed another motion Monday asking the court to disqualify Bybee, but Senior Circuit Judge John Noonan and Circuit Judge Sidney Thomas — the other two judges on today’s panel — denied that motion Tuesday.

After hearing the case Wednesday, the panel took questions from the student audience; one young man asked whether it’s possible to predict a judge’s actions by noting the president by whom he or she was appointed. The three judges’ consensus was that it’s not, and Bybee volunteered essentially that having a lifetime appointment means never having to say you’re sorry if your rulings don’t hew to the philosophy of the president who appointed you.

The motif of a fundraiser for Republican presidential candidate Rudy Giuliani hosted by a senior fellow at the Hoover Institution at Stanford University is raising eyebrows, the Associated Press reports.

According to the invitation, “$9.11 for Rudy” is an “independent, non-denominational grass-roots campaign to raise $10,000 in small increments to show how many individual, everyday Americans support ‘America’s Mayor.’”

Can anybody say, “politicization of America’s darkest hour?”

Democratic presidential candidate Christopher Dodd‘s campaign quickly branded the gimmick “absolutely unconscionable, shameless and sickening” and suggested Giuliani “should reject and/or return any money raised” through the party, to be held this Wednesday night at the Palo Alto home of Abraham Sofaer, a legal adviser to the U.S. Department of State from 1985 to 1990.

A Giuliani spokeswoman said the idea was selected without the campaign’s knowledge and was “an unfortunate choice.”

Sofaer told the AP he had nothing to do with the decision to ask for the $9.11. “There are some young people who came up with it,” he said Monday evening, referring other questions to Giuliani’s campaign and saying, “I’m just providing support for him. He’s an old friend of mine.”

The full House Armed Services Committee is scheduled to hear testimony at 9 a.m. EDT Thursday on “Upholding the Principle of Habeas Corpus for Detainees.” Committee member Ellen Tauscher, D-Alamo, is preparing to ask pointed questions, her staff says.

Two bills to restore habeas corpus rights to non-citizen enemy combatants are pending: House Armed Services Committee chairman Ike Skelton, D-Mo., introduced one last month (with Tauscher among the 29 original co-sponsors) and a similar Senate bill was introduced in January by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Arlen Specter, R-Pa.

An explanation of habeas corpus and a list of tomorrow’s witnesses, after the jump… Read the rest of this entry »

House sources say Armed Services Committee Chairman Ike Skelton, D-Mo., and Judiciary Committee Chairman John Conyers Jr., D-Mich., tomorrow will introduce a bill restoring the right of habeas corpus to foreign-born unlawful enemy combatants held by the federal government in the war on terror. Armed Services Committee member Ellen Tauscher, D-Alamo, has been saying for weeks that she’ll be an original co-sponsor of this bill.

Habeas corpus, for the Latin-challenged, essentially is the right to be brought to the court for a determination of whether one is imprisoned lawfully and whether one should be released. It dates back to the 12th Century, preceding its 1215 codification in the Magna Carta‘s section 39; our Constitution‘s Article I, Section 9, says it “shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.” Yet under last year’s Military Commissions Act of 2006, non-citizens whom the government deems “unlawful enemy combatants” no longer have this right.

There had been rumors last month that the Armed Services Committee would attach a rider restoring habeas corpus to the National Defense Authorization Act for 2008, H.R. 1585, which approves Pentagon spending for the next year. But no such rider materialized; Skelton’s staff said he felt so strongly about the issue that it deserved a bill of its very own.

A similar Senate bill was introduced in January by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Arlen Specter, R-Pa.; their committee reported it out favorably June 7. California’s Senators, Barbara Boxer and Dianne Feinstein, are among that bill’s 22 co-sponsors.

Kevin Lawlor, spokesman for Rep. Ellen Tauscher, D-Alamo, told me today that he’s heard House Armed Services Committee Chairman Ike Skelton, D-Mo., will introduce a bill next week to restore habeas corpus rights to all within U.S. jurisdiction.

Habeas corpus, for the Latin-challenged, essentially is the right to be brought to the court for a determination of whether one is imprisoned lawfully and whether one should be released. It dates back to the 12th Century, preceding its 1215 codification in the Magna Carta‘s section 39; our Constitution‘s Article I, Section 9, says it “shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.” Yet under last year’s Military Commissions Act of 2006, non-citizens whom the government deems “unlawful enemy combatants” no longer have this right.

There had been rumors that the Armed Services Committee, on which Tauscher serves, would attach a rider restoring habeas corpus to the National Defense Authorization Act for 2008, H.R. 1585, which approves Pentagon spending for the next year. But no such rider materialized; Skelton’s staff said he felt so strongly about the issue that it deserved a bill of its very own.

So people have been waiting eagerly since HR 1585 passed last week to see when the habeas bill might drop. Lawlor said today the delay has been because Skelton was waiting for the Senate Judiciary Committee to assemble an equivalent bill of its own.

“We’re going to go at the same time as they do it so it’s easy to reconcile the two bills in conference,” he said. “It’s going to be when we come back from this recess. … We’ll look at it next week.”

And when Skelton’s bill does drop, Lawlor said, Tauscher will be among the original co-sponsors.

House Armed Services Commitee press secretary Loren Dealy just told me she’s not aware of any amendment being offered to the Defense Department Authorization bill — now in markup — to restore habeas corpus rights rescinded under the Military Commissions Act of 2006. Dealy said it’s an issue that chairman Ike Skelton, D-Mo., cares deeply about, and so he’s in the process of drafting a stand-alone bill rather than trying to insert it into this gi-normous bill.

Habeas corpus, for the Latin-challenged, essentially is the right to be brought to the court for a determination of whether one is imprisoned lawfully, and whether or not one should be released. It dates back to the 12th Century, preceding its 1215 codification in the Magna Carta‘s section 39; our Constitution‘s Article I, Section 9, says it “shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.” Yet under last year’s new law, those deemed “unlawful enemy combatants” no longer have this right.

Some blogs had posted the rumor of a habeas-corpus rider to the DOD bill — here, for instance — and this one called on readers to urge Rep. Ellen Tauscher, D-Alamo, to use her seat on the committee to support it.

Tauscher press secretary Kevin Lawlor this morning e-mailed to me a statement Tauscher and four other Armed Services Democrats had released last September in dissent from the Military Commissions Act, in which they said that “by extinguishing the court’s jurisdiction over pending and future habeas corpus petitions, this legislation contradicts the Constitution and numerous Supreme Court rulings.”

“Her thinking on this has not changed,” Lawlor told me a few minutes ago. “She will be supporting Chairman Skelton’s efforts; when we get a bill, she’ll be supporting it.”

UPDATE @ 12:26 P.M. WEDNESDAY: Lawlor just told me Tauscher will be an original co-sponsor of Skelton’s bill, which is expected to be introduced next week.

U.S. Sen. Dianne Feinstein, D-Calif., introduced a bill today to close the miltary prison for enemy combatants at Guantanamo Bay, Cuba, within one year of the bill’s enactment — the first Senate measure to require closing the controversial facility.

A news release from Feinstein, a member of the Senate Intelligence Committee, said she’s worried that open-ended detentions and documented reports of detainee abuse at the prison have tarnished America’s reputation and complicated efforts to fight global terrorism.

The prison “has become a lightning rod for international condemnation,” she said. “This has greatly damaged the nation’s credibility around the world. Rather than make the United States safer, the image projected by this facility puts us at greater risk. The time has come to close it down.”

“I want to be clear. I am absolutely opposed to releasing any terrorists, Taliban fighters or anyone else held at Guantanamo who is committed to harming the United States,” she added. “At the same time, we must recognize the sustained damage this facility is doing to our international standing. We are better served by closing this facility and transferring the detainees elsewhere.”

Feinstein’s bill would require that within a year of its enactment, the president close the Guantanamo Bay prison and move the detainees to:

Detainees found by the Defense Department to pose no continuing security threat to the United States or its allies, and who have committed no crime, could be released.

“The abuses at Guantanamo Bay are well-documented and cover a period of several years. The President himself has said that he would like the detention facility closed. Yet it is clear that the Administration shows no inclination to close it,” Feinstein. “My bill takes action where the Administration has failed to do so. I urge the Senate to support it, and I urge the President to sign it into law.”

More from DiFi’s news release, including a chronology of Gitmo criticisms, after the jump… Read the rest of this entry »

Eight canine-handler law enforcement officers, including four from the Bay Area, leave for Israel tomorrow to attend a two-month training course meant to help them integrate bomb-sniffing dog techniques into local anti-terrorism efforts. California is the first — and for now, the only — state involved in this program, according to a news release from the governor’s Office of Homeland Security.

One handler each from the Alameda, San Mateo and Santa Clara sheriffs’ departments; one from the San Francisco Police Department; and two each from the Sacramento Sheriff’s Office and the Los Angeles Sheriff’s Department are being trained through Pups for Peace, a U.S-Israeli charity that raises money to send bomb-sniffing dogs to Israel for civilian patrols. The $411,000 cost of these officers’ training is being paid out of California’s share of federal homeland security grants.

“Pups for Peace provides unique training opportunities to California law enforcement that focuses on the very kinds of threats we are seeing around the world,” OHS director Matthew Bettenhausen said in the news release. “Through the Pups for Peace program, we are trying to anticipate and counter the next generation of terrorist attacks before they occur.”

“We are always in search of best practices for homeland security and law enforcement issues,” he added. “This is an important opportunity to work with world-renowned experts on canine and anti-terrorism training.”

The handlers will be trained by antiterrorism, canine and explosives experts on terrorism awareness and use of explosive-detection dogs in preventing and deterring terrorist acts. They’ll train at actual bombing sites, and with explosive materials that aren’t available in the United States but that potentially could be used here, the release says. Law enforcement executives from the six jurisdictions will go to Israel to observe the training’s final week; when it’s all done, the handlers will come home each with two canines trained in the program to be deployed in their communities.