Yoo's piece defiantly speaks out against critics (including the Inspector General's report) who fault Yoo for providing legal advice that was not in good faith and worked to achieve the political goals of the Bush Administration.
Yoo sights the attacks of 9/11 as the catalyst for the warrantless wiretapping program and justifies it on the grounds of the need to protect America from another attack:
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?
Similar to the justification for the torture of detainees in U.S. custody, Yoo sights the supposed unprecedented timeframe immediately following 9/11 and the need to adopt means that were unconventional (or in Yoo's eyes, very conventional) due to this "new" and threatening enemy. Yoo continues:
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 was to meet such emergency circumstances that the Founders designed the presidency. As John Locke first observed, foreign threats "are much less capable to be directed by antecedent, standing, positive laws." Legislatures are too slow and their members too numerous to respond effectively to unforeseen situations. Only the executive can act to protect the "security and interest of the public."
Here we have the crux of Yoo's defense. He claims that the FISA law was not created during wartime and was an obsolete law that was not up-to-date for the threats that we are currently facing in the so-called "War on Terror". He also claims that the process of changing the law is too slow, so it makes sense that the executive branch is the only branch that can make these decisions to "protect the 'security and interest of the public.'"
To address the claim that FISA is in fact an "obsolete law" that was "not written with live emergency circumstances" in mind, I find it helpful to review an analysis from May 21, 2007 written by Glenn Greenwald. Greenwald has written extensively on the issue of warrantless wiretapping over the last few years and in this entry he addressed the claims made by Mike McConnell in an op-ed that the FISA bill was, in fact, obsolete.
From that entry:
In the wake of the 9/11 attacks, the Bush administration demanded a whole slew of changes to FISA which expanded the President's eavesdropping powers and which the administration claimed were necessary in order to bring FISA into the 21st Century by allowing surveillance of modern communication methods. Congress, needless to say, complied in full, and in October of 2001 -- contrary to McConnell's misleading Op-Ed -- it enacted, and the President signed, sweeping "modernizing" changes to FISA.
and what did President Bush say at the signing ceremony in October, 2001?:
The changes, effective today, will help counter a threat like no other our Nation has ever faced. . . .
We're dealing with terrorists who operate by highly sophisticated methods and technologies, some of which were not even available when our existing laws were written. The bill before me takes account of the new realities and dangers posed by modern terrorists. It will help law enforcement to identify, to dismantle, to disrupt, and to punish terrorists before they strike. . . .
Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law 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. . .
Yoo's claim, that the FISA legislation was "obsolete" and not "written with an international terrorist organization in mind", is simply not accurate. As shown above, the FISA legislation was amended shortly after 9/11 in order to give President Bush the tools to (in Bush's words) "meet the technological challenges posed by this proliferation of communications technology". Yoo is simply advancing the false claim that the FISA legislation had not been amended since 1978.
Also important to point out is that Congress explicitly proposed amendments to the FISA legislation in order to expand its scope and make in easier for warrants to be obtained, in 2002. The Bush Administration rejected them. Greenwald again:
...it is also critical to recall that the administration had multiple opportunities since those post-9/11 changes to expand the scope of FISA, and it was the administration which refused those changes on the ground that they were unnecessary. In 2002, multiple Senators sought to make it easier to obtain FISA warrants, and the Bush administration opposed those changes, insisting that it already had sufficient eavesdropping powers. And all throughout last year, Senators such as Diane Feinstein and Arlen Specter proposed endless FISA amendments to expand the scope of government eavesdropping (in response to claims that FISA was too narrow), and the Bush administration was completely uninterested in all of them.
It is clear that the Administration was not simply trying to protect the public from these "new" and never before seen threats, but their goal was to expand executive power and authority no matter what the law stated. Not only were they undertaking these actions, but they were doing it in secret and lying about it. To take one example, in April, 2004 Bush stated:
Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
The above can be interpreted in no other way, except that it is a lie.
In his piece, Yoo goes on to cite FDR eavesdropping on domestic and foreign communications (before Pearl Harbor and with a lack of Congressional authority) to justify the actions of President Bush. Interesting how Yoo does not address that the FISA legislation was passed over thirty years after this took place and was passed in order to protect people from being spied upon without just cause. Yoo's underlying point in citing the FDR example, as well as other examples that he references, is to make the point that during wartime the Presidential responsibility to protect the population Constitutionally supersedes all else. In his concluding paragraph Yoo states:
Our Constitution created a presidency whose function is to protect the nation from attack. Gathering intelligence -- including intercepting enemy communications -- has long been a key aspect of war. Our military and intelligence agencies cannot attack or defend the nation unless they know where to aim. As we confront terrorists who remain intent on attacking the U.S., using weapons we cannot anticipate, we should be skeptical of those who insist that we radically change the way this country has always made war.
Yoo's argument essentially boils down to that during wartime, Presidential authority is supreme and the decisions that the President makes to protect the population, are protected even if his actions would break the law during times of peace...after all, FDR did it. Yoo's response does not clear things up or provide any kind of more rational explanation on this issue. Yoo's continued defense of unchecked executive power (especially during wartime) only continues to enforce the criticisms that he gave opinions to meet political goals and that relied on a warped sense of the law. I will be interested to see how his Wall Street Journal piece is perceived around the media and blogosphere.
This piece is crossposted here.
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