The Cheney Plan to Deploy the US Military on US Soil

This new report today from The New York Times'
Mark Mazzetti and David Johnston reveals an entirely unsurprising
though still important event: in 2002, Dick Cheney and David
Addington urged that U.S.

This new report today from The New York Times'
Mark Mazzetti and David Johnston reveals an entirely unsurprising
though still important event: in 2002, Dick Cheney and David
Addington urged that U.S. military troops be used to arrest and detain American citizens, inside the U.S., who were suspected of involvement with Al Qaeda. That was done pursuant to a previously released DOJ memo
(.pdf) authored by John Yoo and Robert Delahunty, addressed to Alberto
Gonzales, dated October 23, 2001, and chillingly entitled "Authority
for Use of Military Force to Combat Terrorist Activities Within the
U.S." That Memo had concluded that the President had authority to
deploy the U.S. military against American citizens on U.S. soil. Far
worse, it asserted that in exercising that power, the President could
not bound either by Congressional statutes prohibiting such use (such
as the Posse Comitatus Act) or even by the Constitution's Fourth Amendment, which -- the Memo concluded -- was "inapplicable" to what it called "domestic military operations."

it received very little press attention, it is not hyperbole to observe
that this October 23 Memo was one of the most significant events in
American politics in the last several decades, because it explicitly declared the U.S. Constitution -- the Bill of Rights -- inoperative inside the U.S., as applied to U.S. citizens.
Just read what it said in arguing that neither the Fourth Amendment --
nor even the First Amendment -- can constrain what the President can do
when overseeing "domestic military operations" (I wrote about that Memo
when it was released last March and excerpted the most revealing and
tyrannical portions: here). Here's just a small sample to convey the rancid taste of that Memo (click on images to enlarge):

. . .

. . .

Today's NYT
report is the first which reveals that high-level Bush officials
actively considered and even advocated that the power to use the
military to arrest American citizens on U.S. soil be used. In this
instance, Cheney and Addington argued that the U.S. Army should be
deployed to Buffalo to arrest six American citizens -- dubbed the
"Lackawanna Six" -- suspected of being Al Qaeda members (though not
suspected of being anywhere near executing an actual Terrorist
attack). The Cheney/Addington plan was opposed by DOJ officials who
wanted domestic law enforcement jurisdiction for themselves, and the
plan was ultimately rejected by Bush, who instead dispatched the FBI to
arrest them [all six were ultimately charged in federal court with
crimes ("material support for terrorism"); all pled guilty and were sentenced to long prison terms, and they then cooperated in other cases, once again illustrating how effective our normal criminal justice and federal prison systems are in incapacitating Terrorists].

All that said, the Bush administration did
use a very similar power when it dispatched FBI agents to arrest U.S.
citizen Jose Padilla on American soil (at Chicago's O'Hare Airport),
but then very shortly thereafter transferred him to military custody,
where he was held for the next 3 years with no trial, no charges, and
no contact with the outside world, including lawyers. The only thing
distinguishing the Padilla case from what Cheney/Addington argued be
done in the Lackawanna Six case was that the military wasn't used to
make the initial apprehension of Padilla. But Padilla was then
transferred to military custody and held on U.S. soil for years in a
brig, incommunicado and tortured,
with no charges of any kind (another U.S. citizen, Yaser Hamdi, was
treated similarly until the Supreme Court ruled he was entitled to some
sort of hearing, after which he was sent to Saudi Arabia).

All of
this underscores why it is so important to vigorously oppose the
efforts of the Obama administration (a) to continue many of the radical
Bush/Cheney Terrorism programs and even to implement new ones
(preventive detention, military commissions, extreme secrecy policies,
warrantless surveillance, denial of habeas corpus) and (b) to endorse
the core Orwellian premise that enables all of that (i.e.,
the "battlefield" is anywhere and everywhere; the battle against
Terrorism is a "War" like the Civil War or World War II and justifies
the same powers). By itself, the extreme injustice imposed by our
Government on the individuals subjected to such tyrannical powers (i.e.,
those held in cages for years without charges or any prospect for
release) should be sufficient to compel firm opposition. But the
importance of these issues goes far beyond that. Even if the original
intention is to use these powers in very limited circumstances and even
for allegedly noble purposes ("only" for Guantanamo detainees who were
tortured, "only" for people shipped to Bagram, "only" for the Most
Dangerous Terrorists), it's extremely dangerous to implement systems
and vest the President with powers that depart from, and violently
betray, our core precepts of justice.

It's the nature of
governments that powers of this type, once vested, rarely remain
confined to their original purpose. They inevitably and invariably
expand far beyond that. Powers that are endowed to address a limited
and supposedly temporary circumstance almost always endure for years if
not decades. Once a political official possesses a particular power,
they almost never relinquish it voluntarily (there are exceptions
-- Jimmy Carter in 1978 signed, and subsequent Presidents until Bush
complied with, FISA, which barred Presidents from eavesdropping without
a judicial warrant, but such instances are exceedingly rare). Perhaps
most dangerous of all, detention and punishment schemes that are
implemented in relatively normal times (such as now) will inevitably
expand, and expand wildly, in the case of some heightened threat (such
as another Terrorist attack). Put another way, once we depart for
ostensibly limited purposes from our fundamental principles of justice
-- in order to indefinitely detain "just some special cases" without
charges -- then, by definition, we're fundamentally altering our system
of justice far beyond that.

Worse still, if -- after eight years
of Yoo memos and theories of presidential omnipotence and denial of
habeas corpus -- a Democratic President with a Democratic Congress
implements his own kinder, gentler version of such programs, then they
will cease to be a twisted aberration from the post-9/11 Bush era and
will instead become the new bipartisan, American consensus approach to
justice. We'll have a national (rather than right-wing) endorsement of
the "principle" that national security threats justify denial of the
most basic rights when it comes to detention and imprisonment. When I interviewed The New York Times' Charlie Savage in May, after he wrote another article detailing the similarities between the Bush/Cheney and Obama approaches to Terrorism, this is how he put it:

had this interesting conversation when I was working on this article
that came out this morning with Jack Balkin at Yale Law School, and he
compares this moment to when Dwight Eisenhower took over, in 1953, and
after FDR and then Truman had built up the New Deal administrative
state, which Republicans hated, but then Eisenhower, instead of
dismantling it, just sort of adjusted it with his own policies a little
bit, and kept it going. And at that point, there was no longer
any sort of partisan controversy about the fact that we were going to
have this massive administrative state; it just sort of became a
permanent part of the governing structure of the country.

in the same way he said in 1969 when Richard Nixon took over from LBJ,
he did some adjustments to the great society welfare state that LBJ had
built up, but he didn't scrap it. And at that point, Republicans and
Democrats had both presided over the welfare state and the welfare
state became part of just how government worked.

That in the
same way, Obama now, by continuing the broad outlines of the various
surveillance and detention and counter-terrorism programs, is draining
them of plausible partisan controversy, and so they are going to become entrenched and consolidated as permanent features of American government as well, going forward.

are the stakes when it comes to debates over Obama's detention,
surveillance and secrecy policies. To endorse the idea that Terrorism
justifies extreme presidential powers in these areas is to ensure that
we permanently embrace a radical departure from our core principles of
justice. It should come as no surprise that once John Yoo did what he
was meant to do -- give his legal approval to a truly limitless
presidency, one literally unconstrained even by the Bill of Rights,
even as applied to American citizens on U.S. soil -- then Dick Cheney
and David Addington sought to use those powers (in the Buffalo
case) and Bush did use them (in the case of Jose Padilla). That's how
extreme powers work: once implemented, they will be used, and used far
beyond their original intent -- whether by the well-intentioned
implementing President or a subsequent one with less benign motives.
That's why it's so vital that such policies be opposed before they
take root.

UPDATE: On a mostly (though not entirely) unrelated note, here is a prime example of Digby's excellence: her commentary on the prevailing authoritarian mentality towards government and police power in the U.S., as reflected by the Gates controversy.

UPDATE II: As Kitt notes in Comments, Obama himself, as a candidate, repeatedly embraced these ideas. Here is what he said
in February, 2008, after he convinced Chris Dodd to endorse him during
the primary and while he tried to convince Dodd voters, who made civil
liberties and a restoration core Constitutional values one of their
highest priorities, to support him as well:

know it's time to time to restore our Constitution and the rule of law.
This is an issue that was at the heart of Senator Dodd's candidacy, and
I share his passion for restoring the balance between the security we
demand and the civil liberties that we cherish.

The American
people must be able to trust that their president values principle over
politics, and justice over unchecked power. I've been proud to stand
with Senator Dodd in his fight against retroactive immunity for the
telecommunications industry . Secrecy
and special interests must not trump accountability . We must show our citizens -- and set an example to the world
-- that laws cannot be ignored when it is inconvenient. Because in
America -- no one is above the law .

time to reject torture without equivocation. It's time to close
Guantanamo and to restore habeas corpus . It's time to give our
intelligence and law enforcement agencies the tools they need to track
down and take out terrorists, while ensuring that their actions are
subject to vigorous oversight that protects our freedom . So let me be perfectly clear: I have
taught the Constitution, I understand the Constitution, and I will obey
the Constitution when I am President of the United States.

Barack Obama who understands those things still exists. That's why the
effort to induce him to act on -- rather than violate -- those
principles is so imperative.

UPDATE III: As several commenters note, this revelation about Cheney sheds new light on the reason many people were concerned by prior reports that a U.S. Army brigade, for the first time, was being permanently deployed to the domestic U.S. Many of us expressing that concern
were accused of indulging bizarre paranoia that the U.S. Army would
ever be deployed against U.S. citizens on U.S. soil. I wonder how those who made such shrill accusations feel now in light of today's revelation that Cheney was advocating for precisely that.

On a different note, I was on The Mike Malloy Show last night, with guest host Brad Friedman, discussing Obama and civil liberties. Those interested can hear the segments I did here, beginning at the start of HOUR ONE.

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