Try to guess who wrote the following paragraph:
The Patriot Act's most controversial provisions concern electronic surveillance of individuals who threaten national security. But the act did not initiate this practice. The system of secret search and wiretap warrants, granted in a secret hearing by a group of federal judges, without notice to the target, was established 25 years ago by the Foreign Intelligence Surveillance Act.
FISA was passed because before 1978 authorities could conduct searches to stop threats to national security without any judicial warrants at all. No court has ever found FISA to be unconstitutional, and just last year a special panel of federal appeals court judges reviewed the Patriot Act's central modificationof FISA and unanimously found it constitutional.
Give up? That paragraph was written by none other than John Yoo (with co-author Eric Posner) in an op-ed published in the Wall Street Journal on December 9, 2003. As most of you who are reading this already know, John Yoo is reportedly the man who wrote the classified legal opinion in late 2001 justifying the administration's warrantless surveillance program. Based on recent reports, there is every reason to believe that Yoo's 2001 opinion justified circumventing FISA on the sole grounds that FISA unconstitutionally infringed upon the president's inherent authority under Article II.
In the op-ed, Yoo goes on to assure us that:
The Patriot Act represents a modest retrenchment from an overcautious interpretation of FISA, but nothing like the pre-1978 regime of warrantless searches.
And this:
Much of the rest of the Patriot Act contains similar common-sense adjustments that modernize existing laws, like FISA. FISA warrants, for example, are now technology-neutral; i.e., they allow continuing surveillance of a terrorist target even if he switches communication devices and methods.
So let's recap. In late 2003, just as the presidential primaries were heating up, Yoo assured us that 1) FISA was constitutional, 2) the Patriot Act had modernized FISA, making it capable of dealing with new technology and with the threat posed by terrorism, and 3) FISA protected Americans from from warrantless surveillance. But at the time this article was published, the Bush administration had been engaged in secret warrantless surveillance, in contravention of FISA, for over two years, and it had been doing so pursuant to a legal opinion drafted by Yoo.
Could the deceptiveness of the Bush administration on this issue be any clearer?
Big catch, AL. Huge. Let's hope enough people are watching to run with this.
ReplyDeleteYou're quite a researcher!
Best. Catch. Ever.
ReplyDeleteAL, you are fab! And John Yoo is a despicable, hypocritocal, careerist. (You, and most of us, knew that already, but I just had to say it again.)
ReplyDeleteOh, I forgot, Yoo is a liar, too. After all, he was amember of the Bush Administration and that is one of the basic requirements.
ReplyDeleteHuh. Robert Bork didn't think so badly of FISA either, and a few years ago saw it as a "solution":
ReplyDeletePrior to 1978, and dating back at least to World War II, attorneys general of the United States routinely authorized warrantless FBI surveillance, wire taps, and break-ins for national-security purposes. Such actions were taken pursuant to authority delegated by the President as commander-in-chief of the armed forces and as the officer principally responsible for the conduct of foreign affairs. The practice was justified because obtaining a warrant in each disparate case resulted in inconsistent standards and also posed unacceptable risks. (In one notorious instance, a judge had read aloud in his courtroom from highly classified material submitted to him by the government; even under more conscientious judges, clerks, secretaries, and others were becoming privy to secret materials.)
Attorneys general were never entirely comfortable with these warrantless searches, whose legality had never been confirmed by the Supreme Court. The solution in 1978 was the enactment of the Foreign Intelligence Surveillance Act (FISA). Henceforth, sitting district court judges would conduct secret hearings to approve or disapprove government applications for surveillance.
My favorite is when they dismiss FISA as a "Carter-era law." Given that it has been amended eight separate ways on five separate occasions since 9/11, I would submit that it is better described as a "Bush-era law."
ReplyDeletewoah. nice catch.
ReplyDeleteisn't there some kind of conduct unbecoming an officer of the court issue here, w/r/t Yoo being simultaneously employed by the AGs office and a big ole liar in public?
can i at least fantasize about him being disbarred or whatever it is that happens to truly naughtly lawyers? or do i just watch too much lawnorder?
I had been a firm believer that John Yoo was the devil incarnate until I read about David Addington. Now I'm not so sure which one is worse.
ReplyDeleteIncidentally, Orin Kerr has noted that Yoo once wrote the following:
President ____ exercised the powers of the imperial presidency to the utmost in the area in which those powers are already at their height — in our dealings with foreign nations. Unfortunately, the record of the administration has not been a happy one, in light of its costs to the Constitution and the American legal system. On a series of different international relations matters, such as war, international institutions, and treaties, President ____ has accelerated the disturbing trends in foreign policy that undermine notions of democratic accountability and respect for the rule of law.
Shockingnly, the blanks are about Clinton, not Bush. A few years after criticizing Clinton for abusing executive power, he went on to write the Torture Memo and argue that if Bush wanted to make someone confess by threatening to crush his kid's testicles, Congress couldn't stop him. He's also argued that Congress couldn't stop bush from using nuclear weapons if he wants to. So much for fearing the imperial presidency.
It's clear by now that Yoo doesn't believe a word he writes, that he's simply a partisan hack. Scary.
Incidentally, I believe Addington has been appointed to be Cheney's right-hand man now that Libby is gone. As my links above note, Addington was a driving force behind Yoo's influence, at least with regard to torture.
ReplyDeleteDave
Don't get me wrong -- I appreciate the way that you and many introduce the hypocracy of this administration to the masses. It is important work and I am grateful good people are up to the challenge.
ReplyDeleteLet's not kid ourselves, however, you don't win battles with lying liars by talking about platitudes of "right" and other ideals. After all, these people don't care.
They didn't care when they stole the 2000 election, they didn't care when they cynically used 9/11 to "legitimize" a government that was ilegitimately appointed by the SCOTUS, they did not care when they started wars of conquests based on lies, outed CIA assets to cover that crime, alllowed Iraq to become a quagmire (newt calls it a 70 year war now), and stole the 2004 election.
Not surprised you can find any number of statements from this crowd that contradicts the proclaimations they make today -- that is what lying liars do...
they lie
The real question is who are they lying for?
That one is not hard, follow the money trail.
You post here is valid and probably the only way some will even begin to contemplate the nature of this administration.
IMHO, Real change will require going beyond this realization, however.
Sorry about the triple post, but here are a couple good eviscerations of Yoo. I just couldn't resist.
ReplyDeleteCass Sunstein argues that "There are not many issues on which James Madison, Thomas Jefferson, John Marshall, Alexander Hamilton, George Washington, James Wilson, John Adams, and Pierce Butler can be said to agree," yet they all agree that Yoo's article II argument is wrong.
David Cole spanks Yoo as well. I recommend both articles highly.
Just be glad that Yoo isn't officially part of the government anymore, so he can't put your sons' testicles in a vice (or the functional equivalent if you only have daughters or no children).
Dave
The Bush administration never said FISA was unconstitutional. In fact, they defended it in the FISA Court of Review, and they used it extensively.
ReplyDeleteWhat they have said is, FISA cannot infringe on the President's inherent powers. So they are covered constitutionally. Since some have claimed it was illegal, they said they are covered by AUMF.
There is nothing deceptive about it whatsover. They said FISA is one tool, not THE ONLY tool.
I know it doesn't serve your purpose to say FISA covers everything and the Patriot Act and FISA are one and the same and that the President has no inherent powers and the AUMF does not apply and that they are all deceptive.
Every one know that ever since FISA was enacted and even with Clinton's experience with it that the inherent powers issue was still there. I don't know why you think that somehow FISA magically took that away.
Hey, liars lie. Criminals commit crimes. Haters hate. 'Nuff said.
ReplyDeleteJohn Yoo is a lawyer impersonating a judge. Isn't there a law about that? I mean, Yoo just reinterpreted our Constitution and interpreted the people out of it. Who gave him that authority? WHO THE FUCK IS HE ANYWAY?
ReplyDeleteI don't know why you think that somehow FISA magically took that away.
ReplyDeleteI don't know, perhaps because Bush essentially said as much, when he said that anytime the government wiretaps, it is required to and does get a court order.
I'm relatively new to all of this, but my understanding is that most constitutional (relatively) non-partisan experts think the inherent powers argument dubious at best.
ReplyDeleteYoo almost seems to take a morbid pleasure in lying through his teeth - and the more I read the propaganda from Bush apologists, the more I'm in wonderment of it all. The seeming impotency of the media and the citizenry is truly a shame. Obviously the blogosphere contributes to the dialogue (and in a greater sense IS the dialogue as far as I'm concerned), but what now?
The research and analysis done by Glenn and AL is top-notch, without question. And I understand that it may be starting to have a substantial affect on actual events and not just in dispersed minds.
It's just frustrating. How can our government operate this way? Is our democracy dictated solely by hubris? Absolute power corrupts absolutely? How can so many smart people act so stupidly?
The Patriot Act's most controversial provisions concern electronic surveillance of individuals who threaten national security.
ReplyDeleteThere's a presumption of guilt w/out the benefit of warrant or trial. As we know anyone who opposes the Administration's policies is perceived of as a threat to national security. That ambiguous phrase could represent the entire Democratic Party, by Yoo's standards.
solitaire said...
ReplyDeleteJohn Yoo is a lawyer impersonating a judge. Isn't there a law about that? I mean, Yoo just reinterpreted our Constitution and interpreted the people out of it. Who gave him that authority? WHO THE FUCK IS HE ANYWAY?
My understanding is that Yoo's memos (e.g. the torture memo) for the Office of Legal Counsel (OLC) have the force of law unless overruled by the Attorney General. The Justice Department, and the OLC in particular, determine how the executive acts on laws, which is a quasi-judicial power within the executive branch. this article (which I linked to above when discussing Yoo's stunt-double, David Addington) discusses how far top executive officials went in forcing Yoo's interpretations on the military and how it led to torture of U.S. detainees.
In answer to your last question (who is he), I'd recommend the Wikipedia article on him and the articles it links to.
There is nothing deceptive about it whatsover. They said FISA is one tool, not THE ONLY tool.
ReplyDeleteBut FISA itself says it is THE ONLY tool. By its own terms, it provides the "exclusive means" for conducting this type of surveillance. There's no way around that. That's why the DOJ was forced to argue in its white paper that FISA is unconstitutional.
AL:
ReplyDeleteMaybe it missed your notice, but the op-ed piece was written by two law school professors, Posner and Yoo. Neither were working for Justice, nevertheless the Administration.
Posner had no knowledge of the NSA Program and I am not aware that Yoo had any knowledge either.
Yoo's 2001 opinion as a deputy AG didn't address the NSA program.
Rather, Posner and Yoo are commenting on the public laws as written.
BTW, given that you folks automatically disregard the opinions of Professor Yoo as a matter of course, his defense of the FISA law should also be discarded, right?
David Shaughnessy said...
ReplyDeleteCNN: No FISA/NSA hearings in Senate Intelligence Committee.
No surprise...
The NYT must be crapping in its proverbial diaper now with its Watergate whistleblower defense going down the tubes.
If they haven't already engaged some damn fine criminal and constitutional defense lawyers, they better get cracking. Justice will probably be delivering subpoenas to appear before a criminal grand jury this fall...
Yoo's 2001 opinion as a deputy AG didn't address the NSA program.
ReplyDeleteNot according to the New York Times. The Times has reported twice now that Yoo was the author of the original legal opinion allowing for warrantless surveillance.
Not according to the New York Times. The Times has reported twice now that Yoo was the author of the original legal opinion allowing for warrantless surveillance.
ReplyDeleteGiven the NYT penchant for fabrication and relying on questionable single anonymous sources, pardon me if I ask to see the opinion.
They obviously do not have it otherwise they would have released it. After you have trashed national security by blowing the NSA program to the enemy, why would they decline to publish a legal opinion?
"Revelations that the U.S. government has conducted domestic electronic surveillance without express legal authority indeed warrants Congressional examination. I believe the Congress – as a coequal branch of government – must immediately and expeditiously review the use of this practice."
ReplyDelete- Olympia Snowe, December 21, 2005.
"He [Bush] just can't unilaterally decide that that 1978 law is out of date and he will be the guardian of America and he will violate that law."
- Chuck Hagel, January 29, 2006.
While our little Stalinist trolls salivate over the prospect of executing journalists who dare to expose and publish wrongdoing and illegal activity of a criminal administration, the inability of even moderate Republicans to put their respect the law and the Constitution above “party loyalty” out of fear, speaks not only to the weakness of the party, but to the radical and criminal nature of the “party” and what has become an authoritarian cult.
ReplyDeleteWe would expect this sort of frightened response and “party loyalty” under tyrannical regimes, but not in a healthy democracy. Sadly, the Republican Party under the increasingly authoritarian Cheney regime is beginning to resemble the frightened Baathist Party under Saddam Hussein and other dictatorships. Never question, always obey.
It is a sad moment for the country, and only those who loathe freedom and democracy are gloating. Is their little tax cut really worth that? What pathetic, greedy, despicable creatures they are.
“No surprise...The NYT must be crapping in its proverbial diaper now with its Watergate whistleblower defense going down the tubes.”
ReplyDeleteBart, I know that many here have not been hospitable to you and your comments. Some have been downright insulting. However, the news that there will be no hearings is a crushing blow to them and courtesy would suggest that you forbear exulting until the shock has worn off a little. Bringing up a detriment to the iconic NYT is further rubbing sand in a wound. Are you sure you want to do this?
On the other hand, looking at the latest Anonymous comment, perhaps some do need a good slap in the face. This fight is not over; the Democrats have lost round one. How close it was is yet to be determined. Yes, it is hard, but we are countrymen with misguided bile-spewing Anonymous and we are, in our own ways, working toward the same thing. I don't buy his doom and gloom. And, we have some new information on our "weak" President. Maybe going after his policies instead of him is a better idea after all.
anonymous of 8:12 is dead on:
ReplyDeletethey are frightened, the bush-cult. they are frightened of the "other", and they will give up my freedom in exchange for the assuaging of their fear. shitty deal for me. because, see, as someone whose parents live mere blocks from 9/11 itself and who lost friends there myself--i'm still not afraid. i won't live governed by fear.
i've said it before, i'll say it again--you want to give away all of my rights that we fought the world's largest empire for? well, you are going to have take them from my cold dead hands. all of you intellectual bush defenders, the ones with the fancy degrees, you care about two things: (i'm going to quote killing joke here for the cognoscenti) "feather the nest and fuck the rest yes yes" and two, sitting in a puddle of your own urine while you run our country down.
christ are you types despicable.
I suspect the resident contrarians honestly believe *they* won't be targeted, and therefore won't suffer any negative consequences.
ReplyDeleteThat or they honestly believe George W Bush is an honorable man who wouldn't dream of breaking the law.
Yes, statistically speaking, there can be people out there who are really that naive. The alternative - that they acknowledge the same reality as the rest of us, yet persist in their support of the administration - is just too far beyond the ration pale to contemplate.
yankeependragon--you are hopelessly naive. there are no points of principle here. none. everytime one is mooted, it is eviscerated moments later by people like A.L. or Glenn or others.
ReplyDeletethere are no principled conservatives any more. if there were, more people would have quit the administration.
what you have are people who are in it to get rich and live in a big house and send their kids to private school. everything they do is to make sure all that happens. the people who come here to defend this crap aren't thomas frank's "what wrong with kansas" types who genuinely don't know much about this and probably don't care. The enemy here is the eternally corrupting power of money and...power. Lord Acton and all that.
notherbob2 said...
ReplyDeleteBart, I know that many here have not been hospitable to you and your comments. Some have been downright insulting. However, the news that there will be no hearings is a crushing blow to them and courtesy would suggest that you forbear exulting until the shock has worn off a little. Bringing up a detriment to the iconic NYT is further rubbing sand in a wound. Are you sure you want to do this?
Sorry. I am not aiming this at you as much as the NYT.
I have family and friend in the service fighting al Qaeda. This is not political to me, it is personal.
So far as I am concerned, what the NYT did was borderline treason committed to sell papers and to take partisan political shots, not in some noble effort to preserve the rule of law.
I have absolutely no sympathy for Risen & Co. They should be chucked in solitary for a couple decades.
If it were up to me, we'd have Nuremberg-style tribunals for Bush, Yoo, Cheney, Addington, Rumsfeld, Haynes, and Miller. Probably more, too. This is NOT an argument that their crimes are on par with Hermann Goering's; they're obviously not. But a similar judicial set-up to Nuremberg seems to me like the only way out. The world needs to be made aware of their role in U.S. torture of detainees, and the U.S. needs to cleanse itself of them. Only once we know who is responsible and remove them will we be able to move forward.
ReplyDeleteOf course, that will never happen. I can dream, though.
Baathist Party under Saddam Hussein
ReplyDeleteWell who do ya think installed and taught that little dictator how to run iraq?
Dig this freerepublic post by Philip Colangelo from 2000:
ReplyDeletehttp://freerepublic.com/forum/a3a27337612f5.htm
"The aftershock of the Oklahoma City bombing sent Congress scurrying to trade off civil liberties for an illusion of public safety. A good ten weeks before that terrible attack, however with a barely noticed pen stroke President Bill Clinton virtually killed off the Fourth Amendment when he approved a law to expand the already extraordinary powers of the strangest creation in the history of the federal judiciary."
Those evil fisa judges were rubber stamping Clintons trampling of our privacy rights (!)
Hey Yoo, Don't piss on my back and tell me it's raining.
ReplyDeleteBart said:
ReplyDeleteSorry. I am not aiming this at you as much as the NYT.
I have family and friend in the service fighting al Qaeda. This is not political to me, it is personal.
So far as I am concerned, what the NYT did was borderline treason committed to sell papers and to take partisan political shots, not in some noble effort to preserve the rule of law.
I have absolutely no sympathy for Risen & Co. They should be chucked in solitary for a couple decades.
Yeah, they can serve their time with Bush who knew about it a year in advance and did nothing to stop the publication of the article on grounds of National security.
More on John Yoo. From the David Cole article I linked to above:
ReplyDeleteYoo wrote that threats of death are permissible if they do not threaten "imminent death," and that drugs designed to disrupt the personality may be administered so long as they do not "penetrate to the core of an individual's ability to perceive the world around him." He said that the law prohibiting torture did not prevent interrogators from inflicting mental harm so long as it was not "prolonged." Physical pain could be inflicted so long as it was less severe than the pain associated with "serious physical injury, such as organ failure, impairment of bodily function, or even death."
Even this interpretation did not preserve enough executive "flexibility" for Yoo. In a separate section of the memo, he argued that if these loopholes were not sufficient, the president was free to order outright torture. Any law limiting the president's author-ity to order torture during wartime, the memo claimed, would "violate the Constitution's sole vesting of the Commander-in-Chief authority in the President."
dave said:
ReplyDeleteIf it were up to me, we'd have Nuremberg-style tribunals for Bush, Yoo, Cheney, Addington, Rumsfeld, Haynes, and Miller.
For the others yes, but not for Yoo. If you get my drift.
Robert Green said...
ReplyDeleteyankeependragon--you are hopelessly naive. there are no points of principle here. none. everytime one is mooted, it is eviscerated moments later by people like A.L. or Glenn or others.
That was my point actually.
I'm just having a hard time understanding why this little point hasn't sunk in with the Democratic leadership, who seem to think these characters are motivated by some high-minded principle.
Right on... Good show mate! These "crazy" NEOCON (con-men) sons-o-bitches lie...
ReplyDeleteas-a-matter-of-course.
Great analysis, Herb.
John Yoo is quality. Just when I thought that his supporting and championing of the Unitary Executive Theory, and the many scholarly papers he wrote or co-wrote that claim that the constitution gives all the executive power to the President couldn't be topped, he goes and does this.
ReplyDeleteImagine what the legacy of a man like Yoo, who has managed to become a constitutional law professor and "expert" without apparently ever once reading the Constitution will be. He's a modern day Madison except retarded and not one bit of common sense, or even any of that retard power like Rain Man had.
But as long as the shit Yoo makes up and puts in the Constitution keeps me safe from the TERRORISTS and gets rid of that pesky freedom crap asap, while expanding government power, then Yoo will be my no common sense, severely retared, with no Rain Man retard powers, Facist enabler.
Yoo = 21st century founding father, except better cuz minority, and no understanding of the law based in legal precedent or natural law or access to a dictionary to properly define and use any words, or reading ability.
Yoo = V.C.
BTW, given that you folks automatically disregard the opinions of Professor Yoo as a matter of course, his defense of the FISA law should also be discarded, right?
ReplyDeleteMost of Yoo's opinions are based on gross misinterpretation and/or misapplication of the law, or simply ignoring anything relevant that does not support his views.
Here I thought that I was disregarding the opinions of Yoo because of my fancy law school learnin' & legal schoolin' and observing that nearly all of Yoo's opinions have little to no reasonable legal basis or legal precident supporting them at all.
I was stunned to learn that I wasted all that time gettin me a fancy lawyerin' 'n' book learnin like them city folk likes. I thought that I was, but I wasn't usin' any of my fancy college learnin to dismiss Yoo's opinions.
Foolish me, I was dismissing Yoo's opinions automatically as a matter of course.
I'm glad you brought this to my attention. I now know that my fancy education was poor and left me lacking any knowledge of my profession, maybe if I study extra hard I can learn as much as John Yoo knows, and one day fancy law school learnin folk will dismiss my opinions out of hand too.