http://www.anonymousliberal.com/2009/07/case-against-john-yoo.htmlThe Case Against John Yoo
The Anonymous Liberal
Who Am I? For what it's worth, I'm a litigator at a large national law firm (at least until I figure out how to make a living doing this). Until then, I'll just have to go by A.L.The OIG has finally released a declassified version of its report on the NSA surveillance program. Much of the information contained in the report has already been reported, but it still makes for an interesting read. I'm convinced that the Ashcroft/Comey hospital episode will someday serve as the basis of a major Hollywood movie. I'm sure someone's already working on the screenplay.
The most damning part of the report, however, is the part describing the role John Yoo played in authorizing the program. It turns out that from 2001 to 2003, Yoo was the only person at the OLC who was "read in" to the program. His boss, Jay Bybee, had no idea what Yoo was doing and first learned of the NSA program from media reports. That's simply astounding. As the report points out, OLC opinions were supposed to be peer-reviewed and represent the studied opinion of the Justice Department. But Yoo was issuing official OLC opinions that no other lawyers at the OLC had reviewed, including the head of the OLC.
Yoo was completely unaccountable. And these were the results:
Yoo's November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program. Yoo acknowledged that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence," but opined that "{s}uch a reading of FISA would be an unconstitutional infringement on the President's Article II authorities." Yoo characterized FISA as merely providing a "safe harbor for electronic surveillance," adding that it "cannot restrict the President's ability to engage in warrantless searches that protect the national security." According to Yoo, the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA. You wrote that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area--which it has not--then the statute must be construed to avoid such a reading."
It's difficult to put into words how insanely deficient this legal "analysis" is. The entire point of FISA was to constrain the president's ability to conduct warrantless surveillance for national security purposes. Prior to FISA, Title III already prohibited warrantless surveillance in the law enforcement context. FISA was intended to provide similar protections in the national security context. Not only did FISA make clear that it provided the "exclusive means" for conducting electronic surveillance, but, as the report points out, it has a provision that suspends its requirements for 15 days following a declaration of war, a clear indication that the statute was intended to apply in war time as well as peace time.
snip//
Which brings me to another glaring omission from Yoo's opinion. From the OIG Report:
Yoo's legal memorandum omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of governmental powers between the Executive and Legislative Branches. Justice Jackson's analysis of President Truman's Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC's subsequent reevaluation of Yoo's opinions on the legality of the PSP.
This is putting things very diplomatically. Youngstown is not just a leading case; it is THE leading case addressing the extent of the president's Article II authority. Writing an opinion like this without mentioning Youngstown is like writing an opinion about the legality of an abortion-related statute without citing Roe v. Wade. It's flat out malpractice, particularly when the case in question completely undermines your argument.
The OIG Report details a number of other obvious flaws in Yoo's opinion, but I think you get the idea.
Yoo disregarded the law. He gave the administration a legal opinion that fell far short of any acceptable professional standards. And he issued it in the name of the OLC, without even letting his boss know what he was doing. Unbelievable.
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