Legal Commentary

Cheney Wanted to Use Military to Make U.S. Terror Arrests

By Jeralyn

Remember the Buffalo/Lackawanna Six? It's now coming out that Dick Cheney urged former President Bush to ignore the Posse Comitatus Act and send the military into Buffalo to make the arrests. Bush ended up rejecting the idea.

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.

What did Cheney use as support for his view that the military could be used for a law enforcement operation if national security was involved? A 2001 Justice Department memo co-authored by John Yoo and directed to then White House Counsel Alberto Gonzales. [More...]

Who was in favor? The usual neocons, Cheney, David Addington and Defense Department officials. Who opposed?

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.

How unusual was the suggestion?

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.

Why was it even being discussed? The evidence against the Lackawanna Six was believed too weak to survive a federal court proceeding.

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.

In a sense, Cheney prevailed anyway. According to more than one defense counsel for the Lackawanna defendants, the reason they ended up pleading guilty is they were threatened with dismissing the federal charges, declaring them enemy combatants and shuttling them off to Guantanamo.

The first defendant to plead guilty, Mukhtar al-Bakri, got ten years. What were the facts?

[He] went to Afganistan and attended a training camp. He heard Osama bin Laden speak there. Then he got married. The day after his wedding, while in Bahrain, he got arrested. Then charged with providing material support to a terrorist organization.

The Government acknowledged it had no evidence that al-Bakri or his confederates planned a terrorist act. What it had was a theory dependent upon guilt by association and perceived thought.

Reaction at the time:

"It's the first time in American history where people are going to prison for going to a training camp," said David D. Cole, a Georgetown University law professor ..... "It's wrong. . . . It's unconstitutional." Cole said he believes that the section of law used to convict the six men is unconstitutional and will be struck down by the U.S. Supreme Court within the next couple of years.

Elaine Cassel, a Virginia lawyer and civil rights advocate, calls the Lackawanna case "one of the worst examples of the vengeful Bush and Ashcroft battle against terrorism." "It's like the movie "Minority Report,' " Cassel said. "The idea is, "Let's go out and arrest people before they actually commit a crime, or even think of a crime.' "

More background on the Lackawanna case here. In 2003, the New York Times published this 13 page account of the case.

Full post as published by TalkLeft on July 25, 2009 (boomark / email).