Yoo vs. Yoo

John Yoo, the former Justice Department attorney responsible for opinions justifying--among other things--torture and warrantless surveillance, penned an op-ed in Sunday's New York Times once again defending the administration's actions and the legal theories underlying them.

In the op-ed, Yoo makes the extraordinary claim that "the founders intended that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action." That is such a ridiculous statement that I don't even know what to say. Glenn probably puts it best when asks:

Why is it even necessary to point out that the U.S. President does not have the power to violate laws which he thinks are "wrongheaded or obsolete," or that Presidents have no authority to disregard "wrongheaded or obsolete judicial decisions" (whatever that might mean)?

Needless to say, that's just not how our system is supposed to work. Indeed, that's not how any functioning democracy works. An argument can be made that the president has the power to disregard laws which he has good reason to believe are unconstitutional, but to my knowledge, no one other than John Yoo has ever even suggested that the president can simply disregard laws he believes to be unwise or outdated.

But let's indulge Yoo for a moment and pretend that we live in a country where the founders really did intend for the president to have such powers. Just what are these obsolete and wrongheaded laws to which Yoo refers?

Well, Yoo singles out the Foreign Intelligence Surveillance Act (FISA) for ridicule, describing it as a product of Nixon era "paranoia"; he observes, almost scornfully, that this bit of Watergate-era Congressional overreach actually "required the government to get a warrant from a special court to conduct wiretapping for national security reasons." What a nutty idea. How utterly wrongheaded and obsolete.

Yoo observes that "[t]hese statutes have produced little but dysfunction" and specifically blames FISA for erecting "the wall between intelligence and law enforcement that contributed to our failure to stop the 9/11 attacks."

He then blames Congress for failing to do anything about these obsolete laws:

Our legislators rarely turn their attention to the problems created by laws that are old and obsolete, or of dubious relevance to new issues.

And again toward the end of the op-ed:

Congress has for years been avoiding its duty to revamp or repeal outmoded parts of bygone laws in the light of contemporary threats.

But hold on a minute. Has Congress really been asleep at the switch since the 1970s? I seem to remember a major push by the White House and Congress following 9/11 to update the very laws which Yoo is describing as relics of a bygone age. Perhaps we should turn the way-back machine to 2003. Here's John Yoo again, this time in an op-ed in the Wall Street Journal (along with Eric Posner):

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 modification of FISA and unanimously found it constitutional.

Well, it's good to know that FISA is constitutional, because we certainly wouldn't want the president to have to use his power to--as Yoo puts it--"sidestep laws that invade his executive authority." But we're in Yoo-land, so the question of FISA's constitutionality takes a backseat to a more pressing question: is FISA "wrongheaded and obsolete"?

For the answer, we return to Yoo (in 2003):

Before the Patriot Act, FISA warrants were issued upon a showing that the "primary purpose" of the surveillance was to gather foreign intelligence information. Both the Department of Justice and the special FISA court that issued the warrants interpreted this language, for reasons known only to themselves, to mean that any such information gathered by counter-intelligence services could not be shared, except under rare circumstances, with law enforcement officials. This "wall" prevented law enforcement officials and counter-intelligence officials from pooling their information--a dangerous and stupid practice given that al Qaeda has demonstrated that terrorists can easily operate outside and inside the United States.

The Patriot Act changed the warrant standard from "primary purpose" to "significant purpose" in order to eliminate the wall of separation between foreign threats and domestic crimes, and to allow law enforcement to be used as a weapon against terrorism.

Okay, so according to Yoo (in 2003), Congress updated FISA right after 9/11 to eliminate the one negative aspect of the law highlighted by Yoo (in 2006). How strange.

But surely the rest of FISA is still "wrongheaded and obsolete," right? After all, the president has told us again and again that FISA was enacted at a time when there were only landlines and rotary telephones. And according to the talking points the NSA itself recently issued to Republican senators:

Current law is not agile enough to handle the threat posed by sophisticated international terrorist organizations such as al Qa'ida. This is because the Foreign Intelligence Surveillance Act of 1978, or "FISA," has not kept pace with communications technology and was not designed for the types of threats we now face. . . . FISA should be amended so that it is technologically neutral.

But wait, let's go back to John Yoo in 2003:

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.

These guys really are incredible, aren't they? It doesn't matter what they were arguing even five minutes ago. They're willing to turn on a dime and say the exact opposite thing if the need suddenly arises. Back before the warrantless surveillance program was exposed, John Yoo and others (including the President himself) were concerned only with defending the Patriot Act. They were busy arguing to anyone who would listen that the Patriot Act modernized FISA to take into account advances in technology and the threat posed by terrorism. They argued that the new, revised FISA struck the ideal balance between national security concerns and civil liberties. Indeed, when Senator DeWine proposed amending FISA further in 2002 to give the administration even more surveillance authority, the administration actually opposed the bill, arguing that the Patriot Act had rendered FISA sufficiently agile and flexible and that DeWine's amendment was unnecessary and potentially unconstitutional.

But then, almost 9 months ago, the New York Times reported that the Bush administration had been secretly conducting warrantless surveillance in violation of FISA since shortly after 9/11, something both Bush and Yoo had obviously known about as they were going around remarking how wonderful and modern FISA had become thanks to the Patriot Act. But when it became clear that the administration had not been following FISA, suddenly it was as if the Patriot Act had never existed. FISA was once again an obsolete relic, an out-dated law passed by a paranoid post-Watergate Congress that had never heard of cellphones or terrorists.

I guess what I'm trying to say is this: there is nothing these guys are unwilling to do or say when it comes to this issue. They are unburdened by any desire to stay true to the facts, the law, or even their own previous statements. Caveat lector, folks.