Illegal Wiretapping-Program Started W/O Legal Authorization-NOT EVEN YOO Approved!

[kpete]

Not Even John Yoo Approved of the Illegal Wiretap Program
By: emptywheel Sunday March 30, 2008 11:54 am

I do hope that Eric Lichtblau's book gets enough coverage this week to further stall Jello Jay's attempts to ram through telecom immunity. The excerpt in the NYT today reveals that when the illegal wiretap program started in 2001, it had no specific legal authorization--not even from the compliant John Yoo!

http://www.nytimes.com/2008/03/30/washington/30nsa.html?_r=2&ref=us&oref=slogin&oref=slogin Robert S. Mueller III, the F.B.I. director, assured nervous officials that the program had been approved by President Bush, several officials said. But the presidential approval, one former intelligence official disclosed, came without a formal legal opinion endorsing the program by the Office of Legal Counsel at the Justice Department.

...........

Aides to Mr. Ashcroft were worried, however, that in approving a surveillance program that appeared to test the limits of presidential authority, Mr. Ashcroft was left legally exposed without a formal opinion from the Office of Legal Counsel, which acts as the legal adviser for the entire executive branch.

At that time, the office had already issued a broad, classified opinion declaring the president’s surveillance powers in the abstract in wartime, but it had not weighed in on the legality or the specifics of the N.S.A. operation, officials said.

The nervousness among Justice Department officials led the administration to secure a formal opinion from John Yoo, a deputy in the Office of Legal Counsel, declaring that the president’s wartime powers allowed him to order the N.S.A. to intercept international communication of terror suspects without a standard court warrant.

The opinion itself remains classified and has not been made public. It was apparently written in late 2001 or early 2002, but it was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers.

So they started the program--purportedly--in October 2001. They bullied John Ashcroft into "approving" the program. But it took them several months before they went to John "organ failure" Yoo to get him to craft an opinion justifying the program. And that opinion--perhaps typically, for John Yoo--was "shoddy" enough that Comey and Goldsmith and Philbin had to rewrite it in 2004--after staging their hospital confrontation.

This passage also reveals how precarious Ashcroft's position was, having approved the original program with no legal backing, and then learning in 2004 that he had had no business doing so. It makes his support of Comey and Goldsmith in the hospital confrontation much more akin to stories of how Comey convinced Ashcroft to recuse himself in the CIA Leak investigation--because it badly tainted his own authority--rather than a heroic stand from his ICU ward. Lucky for Ashcroft, then, that he's getting rich at the DOJ teat. No wonder Ashcroft complained at that point that his staffers hadn't had the authority to review the program. That was his defense for approving the program. Ignorance.

Which is, of course, what we still have operating--ignorance. And on that basis--on the same faulty basis Ashcroft used--Jello Jay and his Republican allies want to sign away our right to know.

more at:
http://emptywheel.firedoglake.com/2008/03/30/not-even-john-yoo-approved-of-the-illegal-wiretap-program/

[ColbertWatcher]

1. Oh, well, when you say it like that...

...no one supported it!

"Specific legal authorization" has too many conditions for loophole GOPhers.

[Peace Patriot]

2. I still want to know why they WANTED a wiretap program without court authorization

when they could apply to FISA courts AFTER THE FACT, in any situation they chose, but designed for emergencies. What did they not want any FISA court judge to see, ever--even after the fact? Spying on Eliot Spitzer? Spying on Donald Seigelman? Spying on, literally, everybody--for purposes of blackmail, control, obedience, and setting people up, in the political sphere, and, who knows what else? Spying for business purposes? Spying for purposes of covering up their own massive crimes?

I think the same thing about torture. Why round up thousands of people, many of them innocent, and torture them--if not for cover for their real targets, perhaps people who could "connect the dots" on the Al Qaeda money trail to Bushites, or torture to control illicit weapons and drug routes, torture for "business" purposes? Could be torture for terror--just to instill fear. But I suspect more focused greed and cover up motives.

Again, specifically, why did WANT a wiretap program without court authorization, when the application is to a SECRET court--the FISA court--and can be done AFTER THE FACT? Why did they want to circumvent this SECRET oversight, with its "emergency" situation provisions? If they were spying on real terrorists, it would be obvious to a FISA judge--before or after the fact. They don't have to prove the targeted person guilty of anything before or after the fact. Just probable cause--suspicion of terrorist connections. But if they were fishing for non-terrorist information, that would not stand scrutiny. And that is the obvious answer--what they were doing could NOT stand scrutiny, even in a secret FISA court, and even after the fact, with the evidence of the spying to bolster their justification.

The Bush 'Justice' Department machinations, to cover Bushite asses, are interesting, and whether or not some of them can be caught and punished for illegal spying is certainly worth pursuing. But the bigger question of WHO they were spying on is the important one, because it involves violation of the Constitution, and the oaths of office of all involved, and the question of potentially far deeper criminality. Indeed, it involves the issue of tyranny.