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«U.S. Department of Justice Seal U.S. Department of Justice Office of Legal Counsel Office of the Deputy Assistant Attorney General Washington. DC ...»

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U.S. Department of Justice Seal

U.S. Department of Justice

Office of Legal Counsel

Office of the Deputy Assistant Attorney General Washington. DC 20530

October 23,2001

MEMORANDUM FOR ALBERTO R. GONZALES

COUNSEL TO THE PRESIDENT

WILLIAM J. HAYNES, II

GENERAL COUNSEL

DEPARTMENT OF DEFENSE

FROM: John C. Yoo-SignatureofJohnC.Yoo Deputy Assistant Attorney General Robert J. Delahunty-SignatureofRobertJ.Delahunty Special Counsel RE: Authority for Use of Military Force To Combat Terrorist Activities Within the United States You have asked for our Office's views on the authority for the use of military force to prevent or deter terrorist activity inside the United States. Specifically, you have asked whether the Posse Comitatus Act, 18 U.S.C. § 1385 (1994), limits the ability of the President to engage the military domestically, and what constitutional standards apply to its use. We conclude that the President has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States. We further believe that the use of such military force generally is consistent with constitutional standards, and that it need not follow the exact procedures that govern law enforcement operations.

Our analysis falls into five parts. First, we review the President's constitutional powers to respond to terrorist threats in the wake of the September 11, 2001 attacks on the World Trade Center and the Pentagon. We consider the constitutional text, structure and history, and interpretation by the executive branch, the courts and Congress. These authorities demonstrate that the President has ample authority to deploy military force against terrorist threats within the United StatesSecond, we assess the legal consequences of S.J. Res. 23, Pub. L. No. 107-40, 115 Stat.

224 (2001), which authorized the President to use force to respond to the incidents of September

11. Enactment of this legislation recognizes that the President may deploy military force domestically and to prevent and deter similar terrorist attacks.

Third, we examine the Posse Comitatus Act, 18 U.S.C. § 1385, and show that it only applies to the domestic use of the Armed Forces for law enforcement purposes, rather than for the performance of military functions. The Posse Comitatus Act itself contains an exception that allows the use of the military when constitutionally or statutorily authorized, which has occurred in the present circumstances.

Fourth, we turn to the question whether the Fourth Amendment would apply to the use of the military domestically against foreign terrorists. Although the situation is novel (at least in the nation's recent experience), we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probable cause or to obtain a warrant.

Fifth, we examine the consequences of assuming that the Fourth Amendment applies to domestic military operations against terrorists. Even if such were the case, we believe that the courts would not generally require a warrant, at least when the action was authorized by the President or other high executive branch official. The Government's compelling interest in protecting the nation from attack and in prosecuting the war effort would outweigh the relevant privacy interests, making the search or seizure reasonable.

I.

The situation in which these issues arise is unprecedented in recent American history.

Four coordinated terrorist attacks took place in rapid succession on the morning of September 11, 2001, aimed at critical Government buildings in the nation's capital and landmark buildings in its financial center. The attacks caused more than five thousand deaths, and thousands more were injured. Air traffic and telecommunications within the United States have been disrupted;

national stock exchanges were shut for several days; damage from the attack has been estimated to run into the tens of billions of dollars. Hundreds of suspects and possible witnesses have been taken into custody, and more are being sought for questioning. In his Address to a Joint Session of Congress and to the American People on September 20, 2001, President Bush said that "[o]n September the 11th, enemies of freedom committed an act of war against our country."

President's Address to a Joint Session of Congress (Sept. 20, 2001), available at http://www.whitehouse.gov/news'releases/2001/09/20010920-8.html.

It is vital to grasp that attacks on this scale and with these consequences are "more akin to war than terrorism."1 These events reach a different scale of destructiveness than earlier terrorist episodes, such as the destruction of the Murrah Building in Oklahoma City, Oklahoma in 1994.

Further, it appears that the September 11 attacks are part of a violent terrorist campaign against the United States by groups affiliated with Al-Qaeda, an organization created in 1988 by Usama bin Laden. Al-Qaeda and its affiliates are believed to be responsible for a series of attacks upon the United States and its citizens that include a suicide bombing attack in Yemen on the U.S.S.





Cole in 2000; the bombings of the United States Embassies in Kenya and in Tanzania in 1998; a truck bomb attack on a U.S. military housing complex in Saudi Arabia in 1996; an unsuccessful attempt to destroy the World Trade Center in 1993; and the ambush of U.S. servicemen in ' Lewis Libby, Legal Authority for a Domestic Military Role in Homeland Defense, in Sidney D. Drell, Abraham D.

Sofaer, & George D. Wilson (eds.), The New Terror: Facing the Threat of Biological and Chemical Weapons 305, 305(1999).

Somalia in 1993 by militia believed to have been trained by Al-Queda.2 A pattern of terrorist activity of this scale, duration, extent, and intensity, directed primarily against the United States Government, its military and diplomatic personnel and its citizens, can readily be described as a "war."3 On the other hand, there are at least two important ways in which these attacks differ from past "wars" in which the United States has been involved. First, this conflict may take place, in part, on the soil of the United States. Except for the Revolutionary War, the War of 1812, and the Civil War, the United States has been fortunate that the theatres of military operations have been located primarily abroad. This allowed for a clear distinction between the war front, where the actions of military commanders were bound only by the laws of war and martial law, and the home front, where civil law and the normal application of constitutional law applied. September 11 's attacks demonstrate, however, that in this current conflict the war front and the home front cannot be so clearly distinguished - the terrorist attacks were launched from within the United States against civilian targets within the United States.

Second, the belligerent parties in a war are traditionally nation-states, see The Prize Cases, 67 U.S. (2 Black) 635, 666 (1862), or at least groups or organizations claiming independent nationhood and exercising effective sovereignty over a territory, id.; see also Coleman v. Tennessee, 97 U.S. 509, 517 (1878).4 Here, Al-Qaeda is not a nation (although they have been harbored by foreign governments and may have received support and training from them). Like terrorists generally, Al-Qaeda's forces bear no distinctive uniform, do not carry arms openly, and do not represent the regular or even irregular military personnel of any nation.

Rather, it is their apparent aim to intermingle with the ordinary civilian population in a manner that conceals their purposes and makes their activities hard to detect. Rules of engagement designed for the protection of non-combatant civilian populations, therefore, come under extreme pressure when an attempt is made to apply them in a conflict with terrorism.

This, then, is armed conflict between a nation-state and an elusive, clandestine group or network of groups striking unpredictably at civilian and military targets both inside and outside See generally Sean D. Murphy, Contemporary Practice of the United Slates Relating to International Law, 93 Am.

J. Int'lL. 16] (1999); Ruth Wedgwood, Responding to Terrorism: The Strikes Against Bin Laden, 24 Yale J. Int'l L.

559 (1999).

On September 12, 2001, the North Atlantic Council of the North Atlantic Treaty Organization ("NATO") agreed that the September 11 attack was directed from abroad against the United States, and decided that it would be regarded as an action covered by article 5 of the 1949 NATO Treaty, which states that an armed attack against one or more of the Allies in Europe or North America shall be considered an attack against them all. Press Release, NATO, Statement by the North Atlantic Council, available at http://www.nato.int/docu/update/2001/1001/el002a.htm. Article 5 of the NATO Treaty provides that if an armed attack against a NATO member occurs, each of them will assist the Party attacked "by taking forthwith, individually or in concert with the other Parties, such action as it deems necessary, including the use of armed force." North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat 2241,2244, 34 U.N.T.S. 243,246.

* It is true, however, that a condition of "war" has been found to exist for various legal purposes in armed conflicts between the United States and entities that lacked essential attributes of statehood, such as Indian bands, see Montoya v. United States, 180 U.S. 261, 265, 267 (1901) and insurrections threatening Western legations, see Hamilton v. McClaughry, 136 F. 445,449 (C.C.D. Kan. 1905} (Boxer Rebellion).

the United States. Because the scale of the violence involved in this conflict removes it from the sphere of operations designed to enforce the criminal laws, legal and constitutional rules regulating law enforcement activity are not applicable, or at least not mechanically so. As a result, the uses of force contemplated in this conflict are unlike those that have occurred in America's other recent wars. Such uses might include, for example, targeting and destroying a hijacked civil aircraft in circumstances indicating that hijackers intended to crash the aircraft into a populated area; deploying troops and military equipment to monitor and control the flow of traffic into a city; attacking civilian targets, such as apartment buildings, offices, or ships where suspected terrorists were thought to be; and employing electronic surveillance methods more powerful and sophisticated than those available to law enforcement agencies. These military operations, taken as they may be on United States soil, and involving as they might American citizens, raise novel and difficult questions of constitutional law.

II.

We believe that Article II of the Constitution, which vests the President with the power to respond to emergency threats to the national security, directly authorizes use of the Armed Forces in domestic operations against terrorists. Although the exercise of such authority usually has concerned the use of force abroad, there have been cases, from the 1794 Whiskey Rebellion on, in which the President has deployed military force within the United States against armed forces operating domestically. During the Civil War and the War of 1812, federal troops fought enemy armies operating within the continental United States. On other occasions, the President has used military force within the United States against Indian tribes and bands. In yet other circumstances, the Armed Forces have been used to counter resistance to federal court orders, to protect the officials, agents, property or instrumentalities of the federal Government, or to ensure that federal governmental functions can be safely performed. We believe that the text, structure, and history of the Constitution, in light of its executive, legislative, and judicial interpretation, clearly supports deployment of the military domestically, as well as abroad, to respond to attacks on the United States.

The Text. Structure and History of the Constitution. The text, structure and history of the Constitution establish that the Founders entrusted the President with the primary responsibility, and therefore the power, to ensure the security of the United States in situations of compelling, unforeseen, and possibly recurring, threats to the nation's security.

Drawing on their experiences during the Revolutionary War and the Articles of Confederation, the Framers designed a Constitution that would vest the federal Government with We note that Washington's use of the militia to suppress the "Whiskey Rebellion" in western Pennsylvania was authorized by statute. See Edward S. Corwin, The President: Office and Powers 166(1940).

See generally Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 66 (1993).

Among the Presidents who have used troops domestically to protect federal functions or to enforce federal law are President Hayes in the railroad strike of 1877; President Cleveland in the Pullman strike of 1895; President Hoover in response to the "Bonus Army" in 1932; and President Eisenhower against Governor Faubus' resistance to school desegregation in 1957. President Theodore Roosevelt intended to use federal troops to take over mines and work them in the coal strike of 1902, had he not been able to settle the strike by other means. Theodore Roosevelt, Theodore Roosevelt: An Autobiography 489 (1985 reprint) (1913).

sufficient authority to respond to any national emergency. In particular, the Framers were aware of the possibility of invasions or insurrections, and they understood that in some cases such emergencies could be met only by the use of federal military force. By definition, responding to these events would involve the use of force by the military within the continental United States.



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