Bush Weighed Using Military in Arrests

Published on
by
The New York Times

Bush Weighed Using Military in Arrests

by
Mark Mazzetti and David Johnston

WASHINGTON — Top Bush administration officials in 2002 debated
testing the Constitution by sending American troops into the suburbs of
Buffalo to arrest a group of men suspected of plotting with Al Qaeda, according to former administration officials.

Some of the advisers to President George W. Bush, including Vice President Dick Cheney,
argued that a president had the power to use the military on domestic
soil to sweep up the terrorism suspects, who came to be known as the
Lackawanna Six, and declare them enemy combatants.

Mr. Bush ultimately decided against the proposal to use military force.

A decision to dispatch troops into the streets to make arrests has
few precedents in American history, as both the Constitution and
subsequent laws restrict the military from being used to conduct
domestic raids and seize property.

The Fourth Amendment bans “unreasonable” searches and seizures
without probable cause. And the Posse Comitatus Act of 1878 generally
prohibits the military from acting in a law enforcement capacity.

In the discussions, Mr. Cheney and others cited an Oct. 23, 2001,
memorandum from the Justice Department that, using a broad
interpretation of presidential authority, argued that the domestic use
of the military against Al Qaeda would be legal because it served a
national security, rather than a law enforcement, purpose.

“The president has ample constitutional and statutory authority to
deploy the military against international or foreign terrorists
operating within the United States,” the memorandum said.

The memorandum — written by the lawyers John C. Yoo and Robert J. Delahunty — was directed to Alberto R. Gonzales,
then the White House counsel, who had asked the department about a
president’s authority to use the military to combat terrorist
activities in the United States.

The memorandum was declassified in March. But the White House debate
about the Lackawanna group is the first evidence that top American
officials, after the attacks of Sept. 11, 2001, actually considered
using the document to justify deploying the military into an American
town to make arrests.

Most former officials interviewed for this article spoke only on the
condition of anonymity because the deliberations about the case
involved classified information. They agreed to talk about the internal
discussions only after the memorandum was released earlier this year.

New information has recently emerged about the deliberations and
divisions in the administration over some of the most controversial
policies after the Sept. 11 attacks, like the decision to use brutal interrogation methods on Qaeda detainees.

Former officials in the administration said this debate was not as
bitter as others during Mr. Bush’s first term. The discussions did not
proceed far enough to put military units on alert.

Still, at least one high-level meeting was convened to debate the
issue, at which several top Bush aides argued firmly against the
proposal to use the military, advanced by Mr. Cheney, his legal adviser
David S. Addington and some senior Defense Department officials.

Among those in opposition were Condoleezza Rice, then the national security adviser; John B. Bellinger III, the top lawyer at the National Security Council; Robert S. Mueller III, the director of the Federal Bureau of Investigation; and Michael Chertoff, then the head of the Justice Department’s criminal division.

“Frankly, it was a bit of a turf war,” said one former senior
administration official. “For a number of people, crossing the line of
having intelligence or military activities inside the United States was
not worth the risk.”

Mr. Bush ended up ordering the F.B.I. to make the arrests in
Lackawanna, near Buffalo, where the agency had been monitoring a group
of Yemeni Americans with suspected Qaeda ties. The five men arrested
there in September 2002, and a sixth arrested nearly simultaneously in
Bahrain, pleaded guilty to terrorism-related charges.

Scott L. Silliman, a Duke University
law professor specializing in national security law, said an American
president had not deployed the active-duty military on domestic soil in
a law enforcement capacity, without specific statutory authority, since
the Civil War.

Senior military officials were never consulted, former officials said. Richard B. Myers, a retired general who was chairman of the Joint Chiefs of Staff, said in a recent interview that he was unaware of the discussion.

Former officials said the 2002 debate arose partly from Justice
Department concerns that there might not be enough evidence to arrest
and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the
officials said, had argued that the administration would need a lower
threshold of evidence to declare them enemy combatants and keep them in
military custody.

Earlier that summer, the administration designated Jose Padilla
an enemy combatant and sent him to a military brig in South Carolina.
Mr. Padilla was arrested by civilian agencies on suspicion of plotting
an attack using a radioactive bomb.

Those who advocated using the military to arrest the Lackawanna
group had legal ammunition: the memorandum by Mr. Yoo and Mr.
Delahunty.

The lawyers, in the Justice Department’s Office of Legal Counsel,
wrote that the Constitution, the courts and Congress had recognized a
president’s authority “to take military actions, domestic as well as
foreign, if he determines such actions to be necessary to respond to
the terrorist attacks upon the United States on Sept. 11, 2001, and
before.”

The document added that the neither the Posse Comitatus Act nor the Fourth Amendment tied a president’s hands.

Despite this guidance, some Bush aides bristled at the prospect of
troops descending on an American suburb to arrest terrorism suspects.

“What would it look like to have the American military go into an
American town and knock on people’s door?” said a second former
official in the debate.

Chief James L. Michel of the Lackawanna police agreed. “If we had
tanks rolling down the streets of our city,” Chief Michel said, “we
would have had pandemonium down here.”

The Lackawanna case was the first after the Sept. 11 attacks in
which American intelligence and law enforcement operatives believed
they had dismantled a Qaeda cell in the United States.

In the months before the arrests, Mr. Bush was regularly briefed on the case by Mr. Mueller of the F.B.I. and George J. Tenet, the director of central intelligence. The C.I.A. had been tracking the overseas contacts of the Lackawanna group.

In a Wall Street Journal op-ed article in March, Mr. Yoo defended
his 2001 memorandum and its reasoning, saying that after Sept. 11 the
Bush administration faced the real prospect of Qaeda cells undertaking
attacks on American soil. “The possibility of such attacks raised
difficult, fundamental questions of constitutional law,” he wrote,
“because they might require domestic military operations against an
enemy for the first time since the Civil War.”

Eric Schmitt contributed reporting.

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