The New York Times reported in its Late Edition on Saturday, July 25, 2009 that “top Bush administration officials in 2002 debated testing the Constitution by sending American troops into the suburbs of Buffalo to arrest a group of men suspected of plotting with Al Qaeda.”

The idea to deploy troops domestically made it to a “high level meeting” and, as the New York Times, advisers like Dick Cheney and David S. Addington argued in favor of deploying troops. Advisers believed that “the president had the power to use the military on domestic soil to sweep up the terrorism suspects, who came to be known as the Lackawanna Six, and declare them enemy combatants.”

Just below a summary of the proposed idea to deploy troops is the uncompromising truth:

A decision to dispatch troops into the streets to make arrests has few precedents in American history, as both the Constitution and subsequent laws restrict the military from being used to conduct domestic raids and seize property.

The Fourth Amendment bans ''unreasonable'' searches and seizures without probable cause. And the Posse Comitatus Act of 1878 generally prohibits the military from acting in a law enforcement capacity.

An article in Telegraph from the UK says, “the proposal, which would have risked falling foul of the US constitution if enforced, called on the president to deploy troops to make arrests on American soil for the first time since the Civil War.”

If the Constitution is so clear on this, if the rule of law is so plain in what it says is lawful and unlawful, why would anyone, even Dick Cheney, in the Bush Administration ever have considered sending troops to make arrests in Buffalo?

The answer to that involves a memo written by John Yoo and Robert J. Delahunty in 2001 which concluded:  

“…that the President has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States. We further believe that the use of such military force generally is consistent with constitutional standards that it need not follow the exact procedures that govern law enforcement operations.”

Members of the Bush Administration asked Yoo and Delahunty to create legal justification for violating the rule of law. Such a request seems to have been routine in the Bush Administration; Yoo created the legal justification for torture when asked to do so by the Bush Administration.

By suggesting that military forces could deploy and not “follow the exact procedures that govern law enforcement operations,” the memo allowed Cheney and others to claim “there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna” and so declaring them enemy combatants and using the military to take them into custody would be easier.

Lackawanna officials say the idea to deploy the military domestically was a “bad idea.” 

Buffalo News reports that a former special agent in charge of the FBI’s Buffalo office, Peter J. Ahearn, told the newspaper:

“There was a lot of armchair quarterbacking going on, people outside the FBI who just didn’t understand the process and the law, and that included the Department of Defense, the CIA and others,” Ahearn said, adding he was never involved in any discussions on troops but was kept in the loop on talks about declaring the men enemy combatants. “It was more the issue of military justice versus the rule of law.”

On wanting to label the suspects “enemy combatants,” Ahearn said, “Why would we be doing this when we are inside the borders of the United States and this is domestic? Treating them as combatants, to me, was unnecessary. They were American citizens.”

Unnecessary isn’t quite the word I would use to describe it. Unconstitutional, unlawful, and unacceptable seem to be much better words.

Take a poll and I bet the same Americans who think it permissible for our military to torture would think it permissible to arrest so-called terror suspects who live in a neighborhood near you. They would be wrong.

Had the military been deployed, they would not have been defending our freedom. They would have been effectively blurring a distinction that so often distinguishes America from other countries.

Jonathan Turley, a George Washington University law professor who regularly appears on MSNBC to discuss issues concerning the rule of law, writes:

"...most of the framers opposed a standing army rather than a people’s militia because of their fear of the tendency of the military in history to exert political and social control over countries. We have seen how a domestic role of the military in other countries has produced instability and abuses.

What is truly frightening is how close we came. A single person stood in the way of tearing down one of our most important legal and political traditions. The bar on domestic law enforcement activities distinguishes this country from other countries where the military holds tremendous power like Iran. The recent military takeover in Honduras is an example of the dangers. We have long believed that people raised under our freedoms (and particularly trained in our laws) would be opposed to such attacks on our traditions and values. Yet, a vice president and top legal advisers facilitated an effort that was not just unlawful but unnecessary. It shows that, even in the most successful democracy in history, we can still stand just one vote away from a path of abuse or even tyranny. The alarm over this story is magnified by the utter failure of both Democrats and Republicans in Congress to exercise checks and balances during this period. We came down to George Bush — no civil libertarian — to block this effort — though this may have been more of a political and legal calculation."

In the end, while Bush did refuse to allow the military to deploy, I cannot help but remember this Bushism:

Our enemies are innovative and resourceful, and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we.” ."—Washington, D.C., Aug. 5, 2004

All of this is further proof that America needs a special prosecutor to further investigate and prosecute the lowest and highest ranking officials involved in lawless and criminal actions committed by the Bush Administration.