What were they thinkin’?

Shortly after 9/11, the DOJ concluded that constitutional protections against unreasonable searches and seizures did not apply to domestic military operations. As reported in yesterday's Wall Street Journal, this “radical interpretation” of the Fourth Amendment was tucked into a footnote in some newly declassified documents released Monday by the ACLU.

As a former military prosecutor who advised military investigators and soldiers on issues relating to the Fourth Amendment, I have to ask myself, what were they thinkin’? First, you have to wonder what domestic operations the military was conducting. This is significant, since the Possee Comitatus Act (codified at 18 U.S.C. § 1385) expressly prohibits the use of the military “to execute the laws.” There is nothing wrong with amending the Act to allow the military to assist local law enforcement officials within the United States (see Hamdi v. Rumsfeld). Congress did just that in 1981 by creating a “drug exception” allowing the military to lend a hand in the war on drugs. But any tweaking of the law is up to Congress, not the Executive. Second, if the DOJ concedes that the Fourth Amendment applies on a dusty military post in West Texas, why shouldn’t it apply during domestic military operations on Main Street USA?

Maybe we all need to heed the words of Justice O’Connor in Hamdi: “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most surely tested; and it is those times that we must preserve our commitment at home to the principles for which we fight abroad.” CP