According to John Yoo, the president's powers under the Constitution are so broad that the Constitution itself cannot restrain them. In a recently declassified 2003 memo, the former Justice Department official asserted that Congress, despite its Article I powers to "make rules concerning captures on land and water" and "for the government and regulation of the land and naval forces," has no business regulating the treatment of military prisoners. Yoo also cited a 2001 memo in which he had concluded that "the Fourth Amendment had no application to domestic military operations."
Compared to Yoo, all three of the remaining major-party candidates for president sound moderate when they talk about executive power. But Barack Obama is the one who seems to care most about restoring the rule of law and the separation of powers after eight years of an administration that has sorely abused both.
Even the Justice Department has backed away from Yoo's maximalist position, although exactly how far isn't clear. In Senate testimony last week, Attorney General Michael Mukasey repeatedly dodged the question of whether he thinks the Pentagon is free to conduct unreasonable searches and seizures.
Such immunity from the Fourth Amendment would allow not just warrantless surveillance of international communications involving people in the United States but monitoring of purely domestic phone calls and email as well. Indeed, it would allow warrantless domestic searches and seizures of any kind, provided they are carried out by a branch of the Defense Department that asserts a connection to terrorism or some other national security threat.
Yet the strongest reassurance Mukasey could offer was to say that "the Fourth Amendment applies across the board, regardless of whether we're in wartime or in peacetime." Asked specifically whether that means it applies to "domestic military operations," he said, "I'm unaware of any domestic military operations being carried out today."
Mukasey's evasiveness is especially troubling in light of his refusal during his confirmation hearings to acknowledge that Congress has the constitutional authority to restrict National Security Agency wiretaps. Unlike Yoo, he did at least concede that the president is bound to obey a congressional ban on torture.