The Optional Constitution

Smarter people have already commented on the release of the Yoo memos, and frankly I don't have much to add. What I can say is that I'd been tracking Congress' movement on those memos for some time. A long while back, at an event at the Georgetown Law Center, I asked Patrick Leahy whether, as chairman of the Judiciary Committee, he'd use his subpoena power to make them public and he said it might come to that. What followed, of course, was a series of very angry-sounding letters and public statements from various corners of Capitol Hill, until finally the ACLU had to step in where public servants had either failed, middled, or ignored the issue entirely. Now we learn of the existence of yet another memo, still unreleased, which, for the 16-or-more months the administration honored it, effectively "concluded that the Fourth Amendment had no application to domestic military operations." The Fourth Amendment, you'll recall, is that annoying little cockroach in the bill of rights which protects people like you from things such as warrantless wiretapping and other means of internal espionage. So, by my count, the White House has, at various times, concluded that the First, Fourth, Fifth, Sixth, and Eighth Amendments are unacceptable impediments to its violation of the First, Fourth, Fifth, Sixth, and Eighth Amendments, and, as such, chose to wish them out of existence as if they were minor headaches like congressional subpoenas or the national debt. Half of the bill of rights. Pretty neat trick, no?