| MEMO 
		__ U.S. Department of 
		JusticeOffice 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: 
			
			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.
			
			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.
			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.
			
			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.
			
			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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