[Infowarrior] - Spy Memo Author to America: No Apologies for Tapping You

[Richard Forno]

Threat Level Privacy, Crime and Security Online
Spy Memo Author to America: No Apologies for Tapping You
	• By Kim Zetter
	• July 16, 2009  |
	• 12:57 pm  |
	• Categories: Surveillance
http://www.wired.com/threatlevel/2009/07/yoo-defends-spying/

Former Justice Department lawyer John Yoo is fighting back against a  
recent inspectors general report that criticized the Bush  
administration’s warrantless surveillance programs established in the  
wake of the September 11 attacks on the World Trade Center.

“The best way to find an al Qaeda operative is to look at all e-mail,  
text and phone traffic between Afghanistan and Pakistan and the U.S.,”  
Yoo wrote in a Wall Street Journal op-ed Thursday, “This might involve  
the filtering of innocent traffic, just as roadblocks and airport  
screenings do.”

Yoo was responding to a report released last week by five inspectors  
general from several agencies who questioned the government’s legal  
grounds for launching the programs without approval from the Foreign  
Intelligence Surveillance Court. The IG’s stopped short of calling the  
programs illegal but criticized the flawed memos that Yoo authored,  
which offered the government legal justification for its actions.

Yoo was a deputy assistant attorney general in the DoJ’s Office of  
Legal Counsel when the Bush administration tapped him to write the  
classified memos as an end-run around his Justice Department  
superiors. The memos have been slammed by congressional  
representatives and fellow Justice Department officials for  
misinterpreting the law in order to grant the government de-facto  
approval for powers it had already secretly seized.

In his response, Yoo accused the inspectors general of forgetting  
their U.S. history and of playing to the media-stoked “politics of  
recrimination.” He argued that in wartime, the president should have  
almost unlimited power.

Yoo, who is currently a law professor at the University of California,  
Berkeley, cited past presidents who seized the same kinds of power in  
times of war, and said that the nature of the 9/11 attacks called for  
swift action, which would have been thwarted had the administration  
followed legal procedures for surveillance.

The government has only admitted to date that it eavesdropped on phone  
calls and e-mails where one party was overseas and one party was  
suspected of being an agent of Al Qaeda or other terrorist group. It  
has never acknowledged the accounts from whistleblowers that it  
conducted wholesale collection of domestic internet communications and  
phone records, although officials have publicly hinted that there were  
surveillance programs beyond the eavesdropping on phone calls.

The IG report also states that the government’s terrorist surveillance  
program involved multiple projects.

In his defense of the Bush administration’s actions, Yoo took  
inspiration from the actions of former President Franklin Roosevelt  
who, prior to the U.S. joining World War II, authorized the FBI to  
intercept domestic and international communications of persons  
“suspected of subversive activities.”

“FDR did not hesitate long over a 1937 Supreme Court opinion (United  
States v. Nardone) interpreting federal law to prohibit electronic  
surveillance without a warrant,” Yoo writes. “Indeed, he continued to  
authorize the surveillance even after Congress rejected proposals from  
his attorney general, Robert Jackson, to authorize national security  
wiretapping without a warrant.”

Yoo, however, does not address why, if the government had historical  
precedence on its side, it needed to seek approval for its plan from  
him, while keeping his immediate boss, as well as then-Attorney  
General John Ashcroft, in the dark about the program.

Yoo’s direct supervisor, Assistant Attorney General Jay Bybee, told  
the inspectors general that he was not “read into” the surveillance  
program and had no idea how Yoo “became the White House’s guy” to  
advise it on serious constitutional matters. Attorney General John  
Ashcroft also did not learn details about the program until later.

In 2003, other Justice Department lawyers who read Yoo’s memos found  
them seriously flawed, and said his descriptions of the programs  
didn’t accurately represent the nature of the surveillance the  
government was doing. This led to a now-famous showdown at the  
hospital bedside of Attorney General John Ashcroft as the  
administration tried desperately to keep the Justice Department from  
shutting down a datamining surveillance project. FBI director Robert  
Mueller and Deputy Attorney General James Comey threatened to resign  
over the program unless it was brought under compliance with the law.

The inspectors general report criticized Yoo’s memos particularly for  
ignoring the Foreign Intelligence Surveillance Act, known as FISA,  
which requires the Justice Department to seek approval from the FISA  
Court for domestic national security surveillance.

Yoo, however, said FISA was an obsolete law that hadn’t been written  
“with live war with an international terrorist organization in mind.”

“It is absurd to think that a law like FISA should restrict live  
military operations against potential attacks on the United States,”  
he said, saying that the 9/11 Commission had found that “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.”

The wall Yoo refers to, however, was not a product of FISA but of the  
Justice Department itself, which the Commission found had, under  
former Attorney General Janet Reno, interpreted procedures to separate  
domestic law enforcement investigations from foreign intelligence  
national security investigations too rigidly, which prevented  
intelligence agencies from sharing crucial information with the FBI  
and others that might have helped prevent the 2001 terrorist attacks.

Photo: AP/Susan Walsh