The War On Terror — and the First Amendment

Earlier this week the Obama Administration released John Yoo’s 2001 Office of Legal Counsel memo on the use of military force to prevent or deter terrorist activity inside the United States.

To be sure, there’s a lot going on in this memo. But I want to focus for just a moment on a single remarkable sentence buried in a long discussion of how the Fourth Amendment applies to domestic military operations against terrorists: “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” This assertion is followed by a string of cites and parentheticals but the authors (Yoo and OLC Special Counsel Robert Delahunty) offer no further First Amendment analysis before returning to their Fourth Amendment discussion.

Surely a conclusion with such sweeping legal and practical implications deserves more in the way of development and justification. Instead, we get something of a drive-by attack on the First Amendment.

Nearly seven years later, Stephen Bradbury (Yoo’s successor as OLC Deputy Assistant Attorney General) advised in a 2008 OLC Opinion that “caution should be exercised before relying in any respect” on the Yoo memorandum. The Bradbury memo observes, among other things, that the Yoo memo’s First Amendment remarks “were unnecessary to the opinion, are overbroad and general, and are not sufficiently grounded in the particular circumstances of a concrete scenario, and therefore cannot be viewed as authoritative.”

(hat tip to First Amendment Law Prof blog)

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