I was too busy early this week to pay attention to the disclosure of the John Yoo memos. Most of the drama seems to be circling around this peculiar footnote, which makes reference to another memo that remains classified:

10: Indeed, drawing in part on the reasoning of Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity, our Office recently concluded that the Fourth Amendment had no application to domestic military operations. See Memorandum for Alberto R. Gonzales, Counsel to the President, and William J. Haynes, n, General Counsel, Department of Defense, from John C. Yoo, Deputy Assistant Attorney General and Robert J. Delahunty, Special Counsel, Re: Authority for Use of Military Force to Combat Terrorist Activities Within the United States at 25 (Oct 23, 200 I).

There is a bunch of discussion at the link about this footnote. It raises disturbing questions. What is a domestic military operation? If the President wants to avoid obtaining a warrant need he merely send the army instead of the police? Is domestic NSA spying a military operation, removing not only the 4th amendments warrant requirement, but its reasonableness requirement as well? More here. I would add, are there acts not regulated by FISA which would not meet the "reasonableness" requirement of the 4th amendment which this administration engaged in under this memo's advice?

Also interesting is the following footnote:

11: Our analysis here should not be confused with a theory that the Constitution somehow does not "apply" during wartime: The Supreme Court squarely rejected such a proposition long ago in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 119-20 (1866), and at least that part of the Milligan decision is still good law. See, e.g., Kennedy v. MendozaMartinez, 372 U.S. 144, 164-65 (1963); United States v. L. Cohen Grocery Co., 255 U.S. 81, 88 (1921) ("[T]he mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the Fifth and Sixth Amendments ...."). Instead, 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.

Get it? The Constitution "applies" during wartime, but only to the acts of Congress, not the actions of the Executive.

Yoo's Footnote 10 and Footnote 11