A 38-page declassified report prepared by inspectors general of the CIA, National Security Agency, Department of Justice, the Department of Defense, and the Office of National Intelligence released Friday said that the first legal opinion "explicitly addressing the legality of the [President’s Surveillance Program] was not drafted [by Yoo] until [Nov. 2, 2001] after the program had been formally authorized by President Bush in October 2001" by executive order.
The President’s Surveillance Program (PSP) was far more expansive than the Terrorist Surveillance Program (TSP), the report said, while the TSP allowed the NSA to spy on Americans’ telephone calls without a warrant. The PSP went much further and remains classified and Yoo worked directly with White House officials on the PSP as he was the only official in the Justice Department's Office of Legal Counsel who was aware of the program.
But Yoo's Nov. 2, 2001 memo "focused almost exclusively on the activity that [Bush] later publicly confirmed as the Terrorist Surveillance Program," the report said. But it also supported the legality of intelligence collection activities covered under the PSP.
In September and October of 2001 Yoo, now a UC Berkeley law professor, "prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities..."
Although the report does not go into details about the "hypothetical" scenarios, an investigation based on previously released government documents showed that 11 days after 9/11 Yoo drafted a 20-page memorandum that offered up theories on how the Bush administration could sidestep Fourth Amendment protections against unreasonable searches and seizures in the event the U.S. military used "deadly force in a manner that endangered the lives of United States citizens."
Yoo came up with a number of different scenarios. He suggested shooting down a jetliner hijacked by terrorists; setting up military checkpoints inside a U.S. city; implementing surveillance methods far more superior than those available to law enforcement; or using military forces "to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire," says a copy of the little known Sept. 21, 2001 memo.
The Sept. 21, 2001 memo was drafted in response to a question posed by Timothy E. Flanigan, the former deputy White House counsel, who wanted to know "the legality of the use of military force to prevent or deter terrorist activity inside the United States,'' according to a copy of Flanigan's memo.
Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would "be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."
"We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection," Yoo's memo stated.
Yoo also wrote in the Sept. 21, 2001 memo that domestic surveillance activities, such as monitoring telephone calls and without a court's permission, might be proper notwithstanding the ban in the Fourth Amendment on unreasonable searches and seizures.
Early references to the surveillance program were also included in a 37-page legal opinion Yoo wrote that was one of nine the Obama administration released in April. That memo, titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States,"
concluded "that the Fourth Amendment had no application to domestic military operations."
Yoo based his opinion on the 1990 drug case US v. Verdugo-Urquidez in which the Supreme Court refused to hear a lawsuit brought against the United States by a Mexican citizen whose home was searched by federal agents without a search warrant.
In rejecting the Fourth Amendment claim, the High Court said aliens could not claim the benefit of the Constitution for conduct outside the United States-such aliens were not part of the "we the people" who benefited from the Fourth Amendment.
Further, the Supreme Court found that allowing such claims would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries, not just in drug cases...but in the use of armed forces abroad "for the protection of American citizens or national security."
Yoo refers to the case in his 2006 book, War by Other Means: An Insider's Account of the War on Terror, where he argues in more than 23 pages about the various legal reasons local and federal law enforcement agencies, as well as a sitting U.S. president, could ignore the Fourth Amendment.
"If Al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement," Yoo wrote in his book. "The Fourth Amendment's warrant requirement should not apply, because it is concerned with regulating searches, not with military attacks."
The inspectors general report said Yoo’s legal theories were deeply flawed. The report added that Yoo "omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, a leading case on the distribution of government powers between the Executive and Legislative Branches."
"Justice Jackson’s analysis of President [Harry] 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 opinion’s on the legality of the" President's Surveillance Program.
The 1952 Supreme Court case that addressed Truman’s order to seize steel mills that had been shut down in a labor dispute during the Korean War. Truman believed the strike threatened national defense and thus he could act under his Article II powers in the Constitution.
Yoo’s failure to cite the Youngstown case is said to also be a factor in a critical report on the legal advice Yoo and other attorneys in the Office of Legal Counsel provided the White House with regard to torture. That report was prepared by the Justice Department’s Office of Professional Responsibility and reportedly going to be released sometime in the summer.
Though Yoo refused to be interviewed by the inspectors general, he did offer up a defense of his failure to cite Youngstown in his book. Yoo wrote, "we didn’t cite Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the President’s conduct of foreign affairs and national security."
Yoo added, "Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war. …"
Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, renewed his calls for a bipartisan "truth commission" after the report was released Friday.
"This report underscores why we should move forward with a nonpartisan Commission of Inquiry," Leahy said. "Without a thorough, independent review of decisions that run counter to our laws and treaties, we cannot ensure that these same mistakes are not repeated. Such a Commission must have bipartisan support to be able to truly get to the bottom of these issues with objectivity and credibility."
Leahy’s counterpart in the House, Rep. John Conyers, who also has been pushing for investigations and has called on Attorney General Eric Holder to appoint a special prosecutor to investigate Bush-era abuses, said the report showed that Bush "broke the law" by "personally authorizing the warrantless surveillance program" and that his actions "may have been impeachable."
Conyers thwarted efforts last year by Rep. Dennis Kucinich, D-Ohio, to hold impeachment hearings against Bush.
"This report, mandated by Congress last year, documents what many of us in Congress concluded long ago: President Bush’s warrantless surveillance program was illegal from the beginning, and of questionable value," Conyers said. "It clearly violated the Foreign Intelligence Surveillance Act (FISA), which regulates domestic surveillance for intelligence purposes, and was based on legal analysis that was 'factually flawed. President Bush personally approved of this program which may have been impeachable conduct.
"The refusal of key Bush administration officials such as David Addington and John Yoo to cooperate with the IGs’ review underscores the need for an independent commission with subpoena power to further review these issues, as I have called for."
The Foreign Intelligence Surveillance Act was enacted by Congress in 1978 after lawmakers discovered widespread abuses by the Nixon administration involving covert activities against American citizens.
An investigation by Congress at the time, found widespread abuses by the Nixon administration and led lawmakers in 1978 to pass the Foreign Intelligence Surveillance Act to close the loophole in the law the Nixon administration claimed gave him broad powers to conduct domestic surveillance.
Publicly, President Bush and then Attorney General Alberto Gonzales had said at the time the domestic spying activities were revealed in December 2005 the administration circumvented the FISA court because the approval process was too "cumbersome."
In a December 22, 2005 letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "President determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."
The report also said Yoo’s opinion authorizing the Bush administration to circumvent the FISA court jeopardized the the Justice Department’s relationship with the court.
Indeed, in December 2005, after the New York Times exposed the existence of the domestic surveillance program, US District Court Judge James Robertson sent a letter to Chief Justice John G. Roberts Jr., notifying him of his resignation from the FISA court.
Robertson, who was appointed to the Federal Intelligence Surveillance Court by the late Chief Justice William H. Rehnquist, told colleagues that President Bush's unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.
Yoo’s Nov. 2, 2001 legal opinion said FISA "cannot restrict the President’s ability to engage in warrantless searches that protect the national security."
"According to Yoo," the report said, "the ultimate test of whether government may engage in warrantless electronic surveillance activities is 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."
Yoo added 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."
"Yoo’s analysis of this point would later raise serious concerns for other officials in [the Office of Legal Counsel] and the Office of the Deputy Attorney General [headed at the time by James Comey] in late 2003 and 2004," the report said. "Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war."
Yoo’s successors in [the Office of Legal Counsel] criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance during wartime."
The report noted that with the release earlier this year on the nine Justice Department opinions on torture and domestic surveillance, one stated that the legal analysis Yoo provided the White House in this area "is problematic and questionable, given FISA’s express references to the President’s authority" and is "not supported by convincing reasoning."
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