April 11, 2008
Mukasey Distances Himself From a Memo on Searches
By PHILIP SHENON
WASHINGTON -- Attorney General Michael B. Mukasey tried Thursday to distance himself from a Justice Department memorandum written weeks after the Sept. 11 attacks that suggested the Constitution's protections against unreasonable searches did not apply to the military when it operated on American soil.
"The Fourth Amendment applies across the board, whether we're in wartime or peacetime," Mr. Mukasey told the Senate Appropriations Committee when asked about the October 2001 memorandum, which is still classified.
Still, the attorney general did not repudiate the entire document. He also did not say if its findings had been formally withdrawn or when it might be turned over to the Senate Judiciary Committee, which has requested a copy.
The memorandum's existence was revealed last week when the Bush administration released a copy of a separate Justice Department document from 2003 that referred to the October 2001 memorandum in a footnote.
The footnote said the 2001 memorandum, which has not been shared outside the administration, concluded that the Fourth Amendment, which bars unreasonable searches and seizures, did not apply to "domestic military operations" against terrorist threats.
The 2001 and 2003 memorandums were both written by John Yoo, then an influential senior Justice Department lawyer, whose opinions on government wartime powers were seized on by the administration to expand presidential authority broadly after the Sept. 11 attacks.
Mr. Mukasey, who became attorney general in November, faced sometimes contentious questioning on the memorandum on Thursday during the Senate hearing, which was supposed to focus on the Justice Department's 2009 budget.
Senator Dianne Feinstein, Democrat of California, repeatedly pressed Mr. Mukasey to say whether Mr. Yoo's October 2001 memorandum was still in effect. "Is this memo in force -- that the Fourth Amendment does not apply to the domestic military?" she asked.
Mr. Mukasey did not answer directly, saying, "The principle that the Fourth Amendment doesn't apply in wartime is not in force."
Mrs. Feinstein tried again: "Is the Fourth Amendment today applicable to domestic military operations."
Mr. Mukasey again declined to answer directly, saying, "I don't know of any military operations being carried out today."
Clearly flustered with the attorney general, Mrs. Feinstein then said, "I'm asking you a question. That's not the answer. The question is, Does it apply?"
Mr. Mukasey again responded that he was unaware of any domestic military operations.
She tried one last time: "You're not answering my question. Is this memo binding today?"
Mr. Mukasey replied with a broader answer, that the Fourth Amendment applied in wartime or in peacetime. "It applies across the board," he said.
That appeared to satisfy the senator. "Thank you very much," she said. "That's what I wanted to know."