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MEMO
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U.S. Department of
Justice
Office of Legal Counsel
Washington, D.C. 20530
Office of the
Principal Deputy Assistant Attorney General
October 6, 2008
MEMORANDUM FOR
THE FILES
Re: October
23, 2001 OLC Opinion Addressing the Domestic Use of Military Force to
Combat Terrorist Activities
The purpose of this
memorandum is to advise that caution should be exercised before relying
in any respect on the 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, Office of Legal Counsel, Re: Authority
for Use of Military Force to Combat Terrorist Activities Within the
United States (Oct. 23, 2001)
("10/23/01 Memorandum")
as a precedent of the Office of Legal Counsel, and that certain
propositions stated in the 10/23/01 Memorandum, as described below,
should not be treated as authoritative for any purpose.
It is important to
understand the context of the 10/23/01 Memorandum. It was the product of
an extraordinary -- indeed, we hope, a unique -- period in the history
of the Nation: the immediate aftermath of the attacks of 9/11. Perhaps
reflective of this context, the 10/23/01 Memorandum did not address
specific and concrete policy proposals; rather it addressed in general
terms the broad contours of hypothetical scenarios involving possible
domestic military contingencies that senior policymakers feared might
become a reality in the uncertain wake of the catastrophic terrorist
attacks of 9/11. Thus, the 10/23/01 Memorandum represents a
departure, although perhaps for understandable reasons, from the
preferred practice of OLC to render formal opinions only with respect to
specific and concrete policy proposals and not to undertake a general
survey of a broad area of the law or to address general or amorphous
hypothetical scenarios that implicate difficult questions of law.
We
also judge it necessary to point out that the 10/23/01 Memorandum states
several specific propositions that are either incorrect or highly
questionable. The memorandum's treatment of the following propositions
is not satisfactory and should not be treated as authoritative for any
purpose:
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The memorandum
concludes in part V, pages 25-34, that the Fourth Amendment would
not apply to domestic military operations designed to deter and
prevent further terrorist attacks. This conclusion does not reflect
the current views of this Office. The Fourth Amendment is fully
applicable to domestic military operations, though the application
of the Fourth Amendment's essential "reasonableness" requirement to
particular circumstances will be sensitive to the exigencies of
military actions. The 10/23/01 Memorandum itself concludes in part
VI, pages 34-37, that domestic military operations necessary to
prevent or address further catastrophic terrorist attacks within the
United States likely would satisfy the Fourth Amendment's
reasonableness requirement, if the Fourth Amendment were held to
apply; thus, the erroneous conclusion in part V was not necessary to
the opinion.
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Part V of the memorandum also contains
certain broad statements on page 24 suggesting that First Amendment
speech and press rights and other guarantees of individual liberty
under the Constitution would potentially be subordinated to
overriding military necessities. These statements, too, were
unnecessary to the opinion, are overbroad and general, and are not
sufficiently grounded in the particular circumstances of a concrete
scenario, and therefore cannot be viewed as authoritative.
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The memorandum
concludes in part IV(A), pages 16-20, that the domestic deployment
of the Armed Forces by the President to prevent and deter terrorism
would fundamentally serve a military purpose, rather than a law
enforcement purpose, and therefore the Posse Comitatus Act, 18 U.S.C.
§ 1385 (2000), would not apply to such operations. Although the
"military purpose" doctrine is a well-established limitation on the
applicability of the Posse Comitatus Act, the broad conclusion
reached in part IV(A) of the 10/23/01 Memorandum is far too general
and divorced from specific facts and circumstances to be useful as
an authoritative precedent of OLC.
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The memorandum, on pages 20-2 1,
treats the Authorization for Use of Military Force ("AUMF"), enacted
by Congress in the immediate wake of 9/11, Pub. L. No. 107-40, 115
Stat. 224 (Sept. 18, 2001), as a statutory exception to the Posse
Comitatus Act's restriction on the use of the military for domestic
law enforcement. The better view, however, is that a reasonable and
necessary use of military force taken under the authority of the
AUMF would be a military action, potentially subject to the
established "military purpose" doctrine, rather than a law
enforcement action.
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The memorandum reasons, on pages
21-22, that in the aftermath of the 9/11 attacks, the Insurrection
Act, 10 U.S.C. § 333 (2000), would provide general authority for the
President to deploy the military domestically to prevent and deter
future terrorist attacks; whereas, consistent with the longstanding
interpretation of the Executive Branch, any particular application
of the Insurrection Act to authorize the use of the military for law
enforcement purposes would require the presence of an actual
obstruction of the execution of federal law or a breakdown in the
ability of state authorities to protect federal rights.
For all of the
foregoing reasons, we have concluded that appropriate caution should be
exercised before relying in any respect on the 10/23/01 Memorandum as a
precedent of OLC, and that the particular propositions identified above
should not be treated as authoritative. We have advised the Counsel to
the President, the Acting General Counsel of the Department of Defense,
and appropriate offices within the Department of Justice of these
conclusions.
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