John Yoo takes the the WSJ opinion pages to provide a highly disingenuous and legally lacking defense of the Bush administration's warrantless wiretap program in answer to last week's inspectors general report. From the outset, there is one critical to keep in mind: post-9/11, Congress was ready and willing to provide the administration everything it said it needed to protect the country, and in fact did so with the PATRIOT Act--programs conducted without the consent or knowledge of Congress were utterly unnecessary.
The Bush administration, with Cheney, Addington, Yoo, and Gonzales at the legal helm were not acting with the sole purpose of protecting the nation. Paramount to their efforts was creating a unitary executive, rolling back the post-Watergate era restrictions. So the straw argument Yoo sets up his piece with is entirely predictable:
Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden's Afghanistan headquarters. What better way of detecting follow-up attacks? And what president -- of either political party -- wouldn't immediately order the NSA to start, so as to find and stop the attackers?
Evidently, none of the inspectors general of the five leading national security agencies would approve. In a report issued last week, they suggested that President George W. Bush might have violated the 1978 Foreign Intelligence Surveillance Act (FISA) by ordering the interception of international communications of terrorists without a judicial warrant.
As Anonymous Liberal points out, in a detailed and devastating take down of Yoo, that's hardly the point. It doesn't matter whether intelligence gathering of terrorists is a good idea--there's no argument among anyone that an effective intelligence operation is critical to the nation's security. The issue is whether it was done legally. And whatever justification Yoo strains to provide, the IGs concluded it was not.
I'm going to quote extensively from AL, because his really is the definitive takedown.
Yoo eventually gets around to addressing FISA, but quickly dismisses any notion that FISA might constrain the president:
It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission found, FISA's wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government's failure to prevent the 9/11 attacks. . .
In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind.
It is difficult to overstate how absurdly dishonest this argument is. The "wall" Yoo is referring to was removed by the Patriot Act, which amended FISA. The Patriot Act was signed into law by President Bush on October 26, 2001, a full week before Yoo submitted his now infamous memo authorizing the NSA program. That day, when the President Bush signed the Patriot Act into law, he said:
Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law [FISA] was written in the era of rotary telephones. This new law I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology.
But let's not take President Bush's word for it, here's what John Yoo himself wrote in 2003, in another op-ed in the Wall Street Journal:
Before the Patriot Act, FISA warrants were issued upon a showing that the "primary purpose" of the surveillance was to gather foreign intelligence information. Both the Department of Justice and the special FISA court that issued the warrants interpreted this language, for reasons known only to themselves, to mean that any such information gathered by counter-intelligence services could not be shared, except under rare circumstances, with law enforcement officials. This "wall" prevented law enforcement officials and counter-intelligence officials from pooling their information--a dangerous and stupid practice given that al Qaeda has demonstrated that terrorists can easily operate outside and inside the United States. The Patriot Act changed the warrant standard from "primary purpose" to "significant purpose" in order to eliminate the wall of separation between foreign threats and domestic crimes . . .
The argument that FISA was some obsolete relic of a law that no longer applied after 9/11 is ludicrous. At the Bush administration's behest, Congress amended FISA in numerous ways. That was the primary purpose of the Patriot Act.
That's just a snippet of AL's use of Yoo v. Yoo to show how dishonest today's effort from him his. You really need to read the whole piece. I'm just going to include this snippet, as well, for the lawyers.
In today's op-ed Yoo finally gets around to a subject that he didn't bother to mention in his original opinion, the relevance of the Youngstown case. In an almost childish bit of sophistry, Yoo asserts that "Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president's power involving military strategy or tactics in war." Needless to say, this is an interpretation of Youngstown shared by precisely no one. Youngstown explicitly involved a conflict between the president's power to direct the Korean War and Congress. In every case since then, the Supreme Court has applied the Youngstown framework to presidential claims of Article II authority. In the recent Hamdan case, the Court relied on Youngstown in striking down the Bush administration's military commissions. Suggesting that Youngstown was about a "labor dispute" is like suggesting that Marbury v. Madison was about a judicial appointment. It entirely misses the point of the case. Yoo writes:
Moreover, earlier Justice Departments -- reaching across several administrations from both parties -- had likewise concluded that Youngstown did not limit the president's legitimate conduct of foreign affairs and national security policy.
This is just not true. There are undoubtedly some OLC opinions, particularly ones that address the War Powers Resolution, that conclude that some provisions of that Act go beyond even the broad Congressional authority recognized in Youngstown, but no administration (before the Bush administration) ever claimed that FISA was such a statute. And if you're going make that rather audacious argument, you at least have to discuss and distinguish Youngstown and its progeny, something Yoo did not even attempt to do in his opinion.
There's another point to be made here, as well, that needs to be made in conjunction with the basic idea that conducting this program outside the bounds of law was unnecessary. This secret program, run without any Congressional or judicial oversight or input, was almost wholly ineffective. Yoo might dispute, dishonestly, that the program really wasn't illegal, but he does nothing to dispute the finding that "[M]ost PSP leads were determined not to have any connection to terrorism."
Kind of like Yoo's other baby, torture. It wasn't about what the Bush administration should do to keep the nation safe, it was about what the administration could do, in the name of national security. That's John Yoo's reality. Unfortunately, we all have to live in it.