Then-Vice President Dick Cheney promised that the Bush administration’s war on terrorism would be fought on "the dark side." We are still finding out how dark that was.
On Oct. 23, 2001, the Justice Department’s Office of Legal Counsel, the source of so much bad advice during those years, produced a memo arguing that the president could ignore the Constitution, the 1878 Posse Comitatus Act barring the military from being used for law enforcement, and precedent going back to the Civil War to deploy the military against U.S. citizens on American soil.
According to The New York Times in a report this past weekend, Cheney and his top legal adviser, David Addington, urged that U.S. troops be used to arrest a group of young Yemeni Americans living just outside Buffalo who later came to be known as the Lackawanna Six. Bush officials believed that they had located an al-Qaeda sleeper cell.
The proposal was taken seriously enough, according to the Times, to be the subject of at least one meeting of Bush’s senior advisers who were deeply divided on the issue. Until the notes of that meeting become public, we won’t know why Cheney felt civilian law enforcement agencies, like the FBI and the local police, were inadequate to the task. But if the military had been sent into Lackawanna, it would have been a terrible erosion of very vital constitutional and legal safeguards. If the Times is correct, it is very telling that the senior military officials were never consulted.
In the end, President George W. Bush personally vetoed the plan, a rare instance when he acknowledged some constitutional constraints in the war on terror.
Ultimately, the FBI arrested without incident five Yemeni Americans in Lackawanna and later a sixth in Bahrain. They had indeed attended a terrorist training camp in Afghanistan in early 2001 but got cold feet and returned home. They pleaded guilty to supporting terrorism and were given sentences of 7 years to 10 years.
One of the arguments in favor of special tribunals with reduced defendant rights and less restrictive rules of evidence is that the civilian criminal justice system isn’t up to the task. Clearly it is. And we didn’t even have to send tanks to Lackawanna.