Suppose al Qaeda branched out from crashing airliners into American cities. Using small arms, explosives, or biological, chemical or nuclear weapons they could seize control of apartment buildings, stadiums, ships, trains or buses. As in the November 2008 Mumbai attacks, texting and mobile email would make it easy to coordinate simultaneous assaults in a single city.
In the weeks after the Sept. 11, 2001, strikes on New York City and Washington, D.C., these were hypotheticals no more. They became real scenarios for which responsible civilian and military leaders had to plan. The possibility of such attacks raised difficult, fundamental questions of constitutional law, because they might require domestic military operations against an enemy for the first time since the Civil War. Could our armed forces monitor traffic in a city where terrorists were preparing to strike, search for cells using surveillance technology, or use force against a hijacked vessel or building?
In these extraordinary circumstances, while our military put al Qaeda on the run, it was the duty of the government to plan for worst-case scenarios--even if, thankfully, those circumstances never materialized. This was not reckless. It was prudent and responsible. While government officials worked tirelessly to prevent the next attack, lawyers, of which I was one, provided advice on unprecedented questions under the most severe time pressures.
Judging from the media coverage of Justice Department memos from those days--released this week by the Obama administration--this careful contingency planning amounted to a secret plot to overthrow the Constitution and strip Americans of their rights. As the New York Times has it, Bush lawyers "rush into sweeping away this country's most cherished rights." "Irresponsible," harrumphed former Clinton administration Justice Department officials.
According to these critics, the overthrow of constitutional government in the United States began with a 37-page memo, confidentially issued on Oct. 23, 2001, which concluded that the September 11 attacks triggered the government's war powers and allowed the president to use force to counter force. Alexander Hamilton saw things differently than critics of the Bush administration. He wrote in Federalist 74: "The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority."
Congress agreed with Hamilton. Restrictions on deploying the military for domestic law enforcement (originally passed to end Reconstruction in the South) did not apply to self-defense of the nation. Congress blessed military action on Sept. 18, 2001, when it authorized President Bush "to use all necessary and appropriate force against those nations, organizations, or persons" connected to the September 11 attacks, "in order to prevent any future acts of international terrorism against the United States." Passed as the sound of Air Force combat air patrols flew over the Capitol, Congress must have understood that its words included stopping domestic attacks, since the hijacked airliners of 9/11 took off and crashed on American soil.
The government faced another fundamental question, which we addressed in our memo. Does the Fourth Amendment's requirement of a search warrant based on probable cause regulate the use of the military against terrorists on our soil. In portraying our answer, the media has quoted a single out-of-context sentence from our analysis: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully."
This line deliberately misrepresents the memo. The sentence only summarized a 1931 holding of the Supreme Court in the case of Near v. Minnesota concerning press freedom: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right." The Court continued: "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops."
Our memo had nothing to do with the First Amendment. It only referred to the case to show that constitutional rights apply differently during the exigencies of warfare than during peacetime. The 1931 case bolstered a point that the Supreme Court recognized in 2000 in Indianapolis v. Edmond, striking down random traffic stops to search for illegal drugs. "The Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack," the Court wrote. Courts have understood that law-enforcement standards could not govern military operations against wartime enemies. They have rejected, to take one example, claims that the Constitution required compensation for the destruction of oil facilities before the invading Japanese in World War II.
Imposing Fourth Amendment standards on military action would have made the Civil War unwinnable--combat occurred wholly on U.S. territory and enemy soldiers were American citizens. The military does not have the time to obtain warrants before soldiers fire upon enemy targets and personnel; the battlefield does not provide the luxury to collect evidence needed to meet probable cause standards in civilian courts. Even if the Fourth Amendment applied, we believed that courts would judge military action under a standard of "reasonableness"--as they might review a police officer who fires in self-defense--rather than demand a warrant to use military force to stop a terror attack.
In releasing these memos, the Obama administration may be attempting to appease its antiwar base--which won't bother to read the memos in full--or trying to look good for the chattering classes.
But if the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today's intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future. President Obama has said he wants to "look forward" rather than "backwards." If so, he should not restore risk aversion as the guiding principle of our counterterrorism strategy.
John Yoo is a visiting fellow at AEI.