The New York Times reports that in 2002, Vice President Cheney and his administration allies urged President Bush to deploy American troops into the suburbs of Buffalo to apprehend a group of terrorist suspects (the “Lackawanna Six”) and declare them enemy combatants. The Times notes:
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.
Cheney cited a DoJ memo co-authored by John Yoo which claimed that “the president has ample constitutional and statutory authority to deploy the military against international or foreign terrorists operating within the United States.” Siding with Condoleezza Rice, FBI Director Robert Mueller, and others, Bush rejected Cheney’s advice and “ended up ordering the F.B.I. to make the arrests.”