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More analysis, this time from Wired's security blog Threat Level

Citing cases that prevented companies from suing the U.S. government for losses they sustained overseas during wartime, You writes "These cases and the untenable consequences for the President's conduct of a war that would result from the application of the Due Process Cluse demonstrate its inapplicability during wartime--whether to the conduct of interrogations or the detention of enemy aliens."

Lest it not be clear enough that Yoo is arguing the President is King in wartime, thanks to the Constitution's Article II powers, two footnotes surrounding the former sentence make it clear.

In footnote 10, Yoo writes "our Office recently concluded that the Fourth Amendment had no application to domestic military operations."

Remember that Bush said the wiretapping program was part of his war on terrorism.
And there it is. In the war on terrorism, the bill of rights does not apply.

Footnote 11 adds to it: "We conclude that the restrictions outlined in the Fifth Amendment simply do not address actions the Executive takes in conducting a military campaign against the Nation's enemies."

As Threat Level then goes on to point on, Yoo now teaches constitutional law at UC-Berkeley.

This really is quite simple. The Constitution of the United States was a document that was created and ratified in 1787, just four short years after the completion of the Revolutionary War. That war, one in which all of the men who wrote the constitution committed treason and therefore risked their lives, was sparked by a series of abuses of power by King George, many of which came either during or after British participation in the French-Indian War, and most of which are set out in detail in the Declaration of Independence. So if there is anything the men who wrote our constitution understood, it was the nature of governmental power during a time of war.

During the debate over ratification, one issue dominated like no other. And as most people who have completed a basic high school civics or history class can tell you, that issue was how to best limit the power of the federal government, and more specifically, how best to limit the power of the presidency. The separation of powers, the checks and balances, the bicameral legislature, the Electoral College - all of it was done, at least in part if not in whole, to protect the rights of the individual against inevitable encroachment by the state. Both despite and because of their recent experiences with governmental abuse of power during a time of war, they did everything they possibly could to limit the power of the state.

Now I can already hear the critics firing up their emails in response: what about all of those pro-federalist arguments made by Hamilton? Surely those count for something? To which I would respond: yes, of course they do. But let's be clear about this. All three - even Hamilton! - went to great pains to make explicit the wide variety of ways presidential power was contained even in a time of war. Here, for example, is what Hamilton himself wrote in Federalist 69:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature.

Could that possibly be any more clear? Yoo explicitly argues in his memo that congress has no role during a time of war. But even Hamilton knew otherwise. Even Hamilton, a man many claimed wished he could be king, recognized the limited nature of presidential power under the new constitution. Yoo, it would appear, is completely unaware of this very basic historical fact.

Now in the end, as we all know, the arguments in the Federalist won the day and the constitution was ratified. But that victory did not come without compromise. There were of course many of them along the way, but none were more famous or important than the compromise that led to the Bill of Rights. Although Madison initially vehemently opposed the Amendments, he did so because he believed they were unnecessary. The constitution, he argued, granted the government a very limited set of powers. Unless a power was explicitly granted, it did not exist. Therefore, as just one example in his early opposition to the Bill of Rights, he argued that an amendment protecting freedom of speech was unnecessary because nothing in the constitution granted the federal government the power to regulate speech. The constitution, Madison argued, meant precisely what it said but no more.

Eventually, however, Madison's textual arguments gave way to much more pragmatic ones. By the time of the New York and Virginia conventions, he recognized that unless he and his fellow Federalists promised a series of amendments to protect essential liberties, his fight for ratification would fail. And it was that recognition that led him not only to give way on the issue of amendments, but to personally spearhead the fight for ratification during the 1st Congress in 1789.

Now to repeat: All of this was done in the shadow of war. War had just been completed, and many, most notably Hamilton, believed that was was soon to come. And here is the essential point: it was not simply despite concerns of war that the constitution and Bill of Rights passed. It was because of them. To the men who created and signed this document it could not possibly have been more clear: it was during a time of war that basic liberties most needed protection. King George's worst abuses of power had coming not during peace but during war. This was a fundamental, inescapable truth which quite literally all of them had just lived.

Despite yet all of this, Yoo wants to argue that the men who wrote the constitution and the Bill of Rights intended for them to give way to unchecked and unlimited presidential authority during a time of war? Really? Really?

Two questions.

One: If this really was their intention, why didn't they write this into the constitution? There are no emergency war powers in the constitution. There are no provisions for its suspension, nor for the suspension of the rights protected in the various amendments. If this is what the Framers intended, why didn't they write it down?

Two: If executive power truly was intended to be unlimited during a time of war, how do we explain the Third Amendment?

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Yoo's reading of the constitution doesn't merely suggest that the president can ignore the Third Amendment, it demands it. But to do so implies that the Third Amendment literally does not mean what it actually says. How would Yoo explain this? If presidential power during war was to be unlimited, why does this Amendment explicitly say that when it comes to Quartering, even during a time of war the president must only act in a manner prescribed by law?

Laws, you might recall, are - at least according to out constitution - written and passed by the Congress, and not the Executive.

How would Yoo explain this? How?

UPDATE: Good to see that the AP has picked this up:

For at least 16 months after the Sept. 11 terror attacks in 2001, the Bush administration believed that the Constitution's protection against unreasonable searches and seizures on U.S. soil didn't apply to its efforts to protect against terrorism. That view was expressed in a secret Justice Department legal memo dated Oct. 23, 2001. The administration on Wednesday stressed that it now disavows that view.

The October 2001 memo was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time. The administration had asked the department for an opinion on the legality of potential responses to terrorist activity.

The 37-page memo is classified and has not been released. Its existence was disclosed Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

''Our office recently concluded that the Fourth Amendment had no application to domestic military operations,'' the footnote states, referring to a document titled ''Authority for Use of Military Force to Combat Terrorist Activities Within the United States.''

Remember that for the Colonists, and thus for the men who wrote the constitution, many of the abuses that spurred the creation of the Fourth Amendment came during the either the Revolutionary or French-Indian Wars. The Fourth Amendment was created in part to protect people from their government during a time of war.

And please, none of this "Sept 11" changed everything nonsense. Either the constitution means what it plainly says or it means nothing. We can't simply wish away the Bill of Rights because we are scared. If the world has changed such that the Amendment is a luxury we cannot afford, we can repeal it. But we cannot simply ignore it. It exists. That fact has consequences, and one of them is that we, the people, are to be safe "in our persons, houses, papers, and effects, against unreasonable searches and seizures."

An exemption in the constitution for "domestic military operations?" Really? Where? And more to the point, why? What part of early American history would have led the men who created this Amendment to intend that? In 1791, how many Americans had "houses, papers, and effects" that were anywhere other than inside the United States? And assuming that there were any, how would the US government extended its reach to search them?

This whole thing quite literally makes no sense. None.