Following up to the March revelation that the Bush Administration had concluded that it had the legal authority to effectively suspend civil liberties, comes a piece in the New York Times about how they almost used that authority in 2002:

Bush Weighed Using Military in Arrests

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.

OK, so in March we found out that the Bush Administration had constructed a legal theory that would allow it to suspend at least some of the Bill of Rights. From the initial Harper’s article:

Yesterday the Obama Administration released a series of nine previously secret legal opinions crafted by the Office of Legal Counsel to enhance the presidential powers of George W. Bush. Perhaps the most astonishing of these memos was one crafted by University of California at Berkeley law professor John Yoo. He concluded that in wartime, the President was freed from the constraints of the Bill of Rights with respect to anything he chose to label as a counterterrorism operations inside the United States.

And, curiously, the author of that article did wonder about how it may have been considered being used by the Administration:

We need to know how the memo was used. Bradbury suggests it was not much relied upon; I don’t believe that for a second. Moreover Bradbury’s decision to wait to the very end before repealing it suggests that someone in the Bush hierarchy was keen on having it.

It’s pretty clear that it served several purposes. Clearly it was designed to authorize sweeping warrantless surveillance by military agencies such as the Defense Intelligence Agency and the National Security Agency. Using special new surveillance programs that required the collaboration of telecommunications and Internet service providers, these agencies were sweeping through the emails, IMs, faxes, and phone calls of tens of millions of Americans. Clearly such unlawful surveillance occurred. But the language of the memos suggest that much more was afoot, including the deployment of military units and military police powers on American soil. These memos suggest that John Yoo found a way to treat the Posse Comitatus Act as suspended.

As Glenn Greenwald says:

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].

Greenwald goes on to argue that it is critical for the Obama Administration to renounce the legal decisions behind the Bush Administration policies:

Those 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.

Just consider for a moment how the Obama Administration (or some subsequent administration) might construe this same authority to “suspend” other components of the Bill of Rights. To shut down some particularly troublesome “fringe” religious group. To impose “limited” censorship on internet traffic. To “stop the terrorism of handgun violence”.

This is the legacy of the Bush Administration, and why so many of us were so very nervous about the precedents being set by it. Because history is long, and freedom is easily lost.

Jim Downey

(Via BalloonJuice. Cross posted to UTI.)