Yoo's "Argument" for Ignoring FISA
I finally had a chance to glance through the Bush administration OLC opinions released yesterday and they're rather stunning. They deserve much more attention than they're getting from the press.
One in particular I want to highlight is the January 15, 2009 memo issued on the way out the door by Bush's OLC. It's essentially a CYA memo that disavows the craziest legal arguments asserted by John Yoo early on in the Bush administration. In doing so, the memo attempts to paraphrase what Yoo's arguments were.
Of particular interest to me is the "argument" that Yoo apparently offered to justify the NSA's warrantless surveillance program. As a chorus of lawyers (including myself) pointed out as soon as the existence of the NSA program was first reported, the President does not have the power to disregard the Foreign Intelligence Surveillance Act (FISA), which makes it felony to conduct warrantless surveillance of Americans within the United States. Though Yoo's memos have never been released, most of us assumed that they asserted that Article II of the Constitution gave the President some kind of exclusive authority with respect surveillance activities in war time and that FISA could not constitutionally restrict that power. That argument -- which was made over and over again by Bush apologists -- had no merit and was contradicted by mountains of precedent, but at least it had some internal logic to it. If FISA is unconstitutional (which it isn't), then the President would indeed not be bound by it.
But apparently that's not the argument that Yoo actually made. According to the January 15, 2009 OLC memo:
The entire purpose of FISA was to restrict presidential authority to conduct warrantless surveillance activities in the national security area. Such surveillance in other contexts (i.e. law enforcement) was already covered by Title III. But the Church Committee had uncovered all sorts of examples of abusive warrantless surveillance being done under the guise of "national security" and was determined to end that abuse. That's why FISA makes absolutely clear that it is to be the "exclusive means" through which such surveillance is conducted. It clearly and unambiguously purports to restrict presidential authority to conduct such surveillance through any other means.
Lest there be any doubt about this, here's what the Senate report that accompanied the passage of FISA had to say about the intent of the legislation:
Another part of the report states that Congress, by passing FISA, was intending to assert its maximal authority in this area under the framework of Youngstown, thereby reducing the president's powers to their "lowest ebb."
The claim, therefore, that Congress was somehow not clear about its intent to restrict presidential authority is almost pathological. That an attorney of Yoo's intelligence and training would sign his name to such an argument is astounding.
The description of the merits of Yoo's argument in the January 15, 2009 memo is comical in its understatement. The memo states:
One in particular I want to highlight is the January 15, 2009 memo issued on the way out the door by Bush's OLC. It's essentially a CYA memo that disavows the craziest legal arguments asserted by John Yoo early on in the Bush administration. In doing so, the memo attempts to paraphrase what Yoo's arguments were.
Of particular interest to me is the "argument" that Yoo apparently offered to justify the NSA's warrantless surveillance program. As a chorus of lawyers (including myself) pointed out as soon as the existence of the NSA program was first reported, the President does not have the power to disregard the Foreign Intelligence Surveillance Act (FISA), which makes it felony to conduct warrantless surveillance of Americans within the United States. Though Yoo's memos have never been released, most of us assumed that they asserted that Article II of the Constitution gave the President some kind of exclusive authority with respect surveillance activities in war time and that FISA could not constitutionally restrict that power. That argument -- which was made over and over again by Bush apologists -- had no merit and was contradicted by mountains of precedent, but at least it had some internal logic to it. If FISA is unconstitutional (which it isn't), then the President would indeed not be bound by it.
But apparently that's not the argument that Yoo actually made. According to the January 15, 2009 OLC memo:
[Yoo's] opinions reasoned that unless Congress had made clear in FISA that it sought to restrict presidential authority to conduct warrantless surveillance activities in the national security area, FISA must be construed to avoid such a reading, and these opinions asserted that Congress had not included such a clear statement in FISA.That is quite possibly the weakest, most frivolous, most obviously ahistorical legal argument that I have ever seen asserted in a legal memorandum.
The entire purpose of FISA was to restrict presidential authority to conduct warrantless surveillance activities in the national security area. Such surveillance in other contexts (i.e. law enforcement) was already covered by Title III. But the Church Committee had uncovered all sorts of examples of abusive warrantless surveillance being done under the guise of "national security" and was determined to end that abuse. That's why FISA makes absolutely clear that it is to be the "exclusive means" through which such surveillance is conducted. It clearly and unambiguously purports to restrict presidential authority to conduct such surveillance through any other means.
Lest there be any doubt about this, here's what the Senate report that accompanied the passage of FISA had to say about the intent of the legislation:
[FISA] puts to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillance in the United States outside of the procedures contained in chapters 119 and 120.Still not clear? Well, consider this. Prior to FISA, there was a provision in the federal code that stated the following:
Nothing in this chapter shall limit the constitutional power of the President to take such measures as he deems necessary to protect the nation against actual or potential attack . . . or to protect national security against foreign intelligence activitiesFISA expressly repealed that provision. The Committee Report explained that the repeal of this provision “eliminat[ed] any congressional recognition or suggestion of inherent Presidential power with respect to electronic surveillance."
Another part of the report states that Congress, by passing FISA, was intending to assert its maximal authority in this area under the framework of Youngstown, thereby reducing the president's powers to their "lowest ebb."
The claim, therefore, that Congress was somehow not clear about its intent to restrict presidential authority is almost pathological. That an attorney of Yoo's intelligence and training would sign his name to such an argument is astounding.
The description of the merits of Yoo's argument in the January 15, 2009 memo is comical in its understatement. The memo states:
[Yoo's conclusion] that FISA does not contain a clear statement that Congress intended the statute to apply to the President's exercise of his constitutional authority is problematic and questionable, given FISA's express references to the President's authority. The statements to this effect in earlier opinions of OLC were not supported by convincing reasoning.Yeah, I'll say. The reality is that Yoo's argument was simply not a good faith legal argument. And there really should be some professional (if not legal) repercussions for it. Our government attorneys need to be held to a much higher standard of conduct.
posted by A.L. at 12:57 PM
14 Comments:
As I read the 1-15-09 memo, the post-Yoo position of OLC is that while FISA itself constitutes a clear statement limiting presidential authority, when FISA is read in light of the AUMF there is no longer a clear statement, thus permitting the warrantless wiretapping. Is that how you understand it?
If my understanding is correct, the difference between the Yoo and the post-Yoo positions doesn't seem all that great, particularly given that we are relying on the 1-15-09 memo to characterize Yoo's position. Its hard to believe that Yoo didn't rely heavily on the AUMF to substantiate his position.
The obvious point of the 1-15-09 memo is to distance the post-Yoo OLC from Yoo's reasoning, and presumably therefore from the condemnation that is widely expected to issue from OPR's investigation. Perhaps there is a defensible distinction there, perhaps not. I would not leap to any conclusions based just on the 1-15-09 memo.
MLS,
The AUMF argument is actually quite different. It's the argument the DOJ has been relying on since the 2004 Goldsmith/Comey rebellion. In essence, they're arguing that FISA recognizes that surveillance can be authorized by other statutes and that the AUMF is such a statute. Therefore, Congress authorized the president's surveillance activities.
This argument is also frivolous. It too ignores FISA's exclusivity clause and a number of different canons of statutory construction. But they want to cling to this one because it's the only argument they can make in defense of their activities from 2001 to 2006.
The argument is irrelevant going forward because Congress amended FISA to allow what the executive wanted to do, and because the AUMF is too stale now to be used for any such arguments going forward (not that the Obama administration would use such an argument anyway).
On a scale of 1 to 10 (with 10 being the most frivolous), the AUMF argument is about a 9.5. Yoo's original argument is about about a 172.
Well, this is what the 1-15-09 memo says: “Congress, [through the AUMF], confirmed and supplemented the President’s Article II authority to conduct warrantless surveillance to prevent further catastrophic attacks on the United States, and such authority could reasonably be, and therefore had to be, read consistently with FISA, which explicitly contemplated that Congress could authorize electronic surveillance by a statute other than FISA.”
The problem with this argument (I take it) is that there is nothing in either the text or legislative history of the AUMF to suggest that Congress was giving the President the authority to conduct warrantless wiretapping outside of FISA. Therefore, the argument must go something like this: (1) the President has inherent Article II authority to conduct warrantless surveillance to protect the country; (2) statutes in derogation of this authority must be narrowly construed; (3) even though FISA, standing alone, constitutes a clear statement limiting the President’s authority, the AUMF, by giving the President broad authority to protect the nation without expressly reiterating FISA’s limitations, created an ambiguity which must be resolved in favor of the President’s authority and (4) the President thus is not bound to follow FISA when acting pursuant to the AUMF.
You say that this argument is frivolous but still quite different than Yoo’s argument, which was that FISA itself failed to contain a clear statement limiting the President’s authority. I agree that these are different arguments, but they are both fundamentally premised on the idea that the President’s Article II authority here is so extraordinarily strong as to require reading statutes in a manner that is strict in theory, but fatal in fact. Saying that the AUMF, by silence, created an exception to FISA is not all that different than saying that FISA was insufficiently clear to cover the situation that the AUMF addressed. Maybe Yoo’s expression of that argument was particularly sloppy, but at the end of the day they both come to the same conclusion and it seems odd that one would merit professional discipline and the other would not.
As for your observation that Yoo’s position was a 172 on the frivolity scale, that’s nothing. The arguments in support of the DC Voting Rights Act have to be a 375 at least.
Here's the larger question - if the OLC threw out all the old "ideas" because the reasoning is flawed, then can we prosecute Bush Administration officials more easily bcause they worked off of flawed/illegal reasoning?
Well, I'm sure impressed by the reasoning that, unless it explicitly states that "this AUMF does not over-ride existing law", it can be taken as over-riding existing law.
Especially since the AUMF explicitly stated that it was in line with the war powers act, meaning, by inference, that it was intended to be in line with all existing laws, since the war powers act is the law governing the use of the military for interventions abroad.
Note: I am not a lawyer. This means I am not qualified to come with ridiculous arguments that are insane on the face of them and have them considered as remotely plausible. Still, within that constraint, Yoo's (and MLS's) argument makes no sense whatsoever.
But I agree with MLS about the DC Voting Rights. It may be right, and just, to give DC a representative, but let's not just set aside the Constitution because it's inconvenient. Amend it, sure, but, until you do, follow it.
Guys, the problem with your Constitutional arguement about DC voting is this - when Congress retroceded Arlington and Alexandria to Virgina (they were the "other half" of DC as decribed in the Constitution), Congress broke that Article without Constitutional amendment. So the precedent is already there, and has yet to be challenged in court.
Philip,
So it's your position that:
a) when the Constitution says "not to exceed 10 miles square", that it specified the District as the full size?
b) that, when Congress retroceded that portion across the river back to Virginia, it broke Article I? All of it, or just the part that deals with the District? Because once you start down that slope, it seems slippery to me.
c) even if you think Article I has been broken, wouldn't that mean the rest of DC should simply go back to Maryland?
Back on topic A, which is the Yoo and OLC opinions: I just don't care for this legal wormhole chasing. Perhaps, if the legal situation has in truth become so difficult to understand, it's time to convene that constitutional convention Professor Levinson, et al, think we should have.
It might just as well have been:
[Yoo's] opinions reasoned that unless Congress had made clear in FISA that it sought to restrict presidential authority to conduct warrantless surveillance activities while the earth is in orbit around the sun, FISA must be construed to avoid such a reading.
Shorter John Yoo: FISA does not restrict presidential authority because Congress did not say "Simon says . . ."
or to sum the yoo reasoning without a bunch of legal mumbo-jumbo ,"because i said so...."
@C2H5OH:
I am focusing on Article 1, Section 8, which reads:
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings.
I'm also looking at the Residency Act of 1790, which actually created the District. That Act set down the formal location of the District, and codified the size at "10 miles squre", which today is interpreted as 100 square miles. Later, 1847 to be exact, Congress retroceded back 31 square miles to Virginia, retaining the portion on the Maryland side as a separate destirct, not returning it back to Maryland. Though DC was granted limited home rule in the 1970's it remains an independent entity, largely controlled by Congress.
Interestingly, the reason that retrocession occured is because the residents of the District had been deprived of representation in Congress by its creation. We also know that the 23rd Amendment gave District residents the right to vote for PResident, which they had previously been denied.
So, if we gave Virginia back their portion of the District (in probable violation of the COnsitiution) by COngressional action to remedy the lack of Congressional voting rights, why can we not, using the same approach, give Congressional voting rights to the remaining District Residents?
“So, if we gave Virginia back their portion of the District (in probable violation of the COnsitiution) by COngressional action to remedy the lack of Congressional voting rights, why can we not, using the same approach, give Congressional voting rights to the remaining District Residents?”
The short answer is that the Constitution requires that representation in the House be apportioned among the states. DC is not a state. Members of the House are chosen by the people of the several states. The “remaining District residents” do not live in a state. To be eligible to vote for a Representative in the House, one must have the qualifications requisite for electors of the most numerous branch of the state legislature. DC residents don’t have such qualifications because they don’t live in a state.
The 23rd Amendment, of course, was necessary was necessary precisely because DC is not a state. That’s why it gives DC the number of electors “equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State.”
I am not sure that you have accurately characterized the reasons for retrocession of the Virginia portion, but it doesn’t matter. Retrocession of the remaining portions of DC to Maryland (presumably excepting the purely federal areas that are under the jurisdiction of the Architect of the Capitol) would be constitutional and would permit the current residents of DC to vote in both House and Senate elections as citizens of Maryland. That is not at all the same approach as the DC Voting Rights Act.
I suppose one might argue that the Virginia retrocession was unconstitutional, on the theory that the Constitution doesn’t have any explicit provision for such retrocession. On the other hand, it doesn’t have any explicit prohibition against it either. In any event, the Virginia retrocession would stand as significant historic precedent for the constitutionality of a proposed retrocession to Md., but I certainly do not see how the alleged unconstitutionality of the Va. retrocession could support giving DC representation in Congress.
I would note that all of these issues were exhaustively covered in Judge Garland’s opinion in Adams v. Clinton.
With respect to the original subject of this thread, I was not in any way endorsing Yoo’s reasoning. From what I have seen of Yoo’s OLC work (not to mention my personal interaction with him), I am unimpressed. However, I haven’t actually seen the memo regarding the warrantless wiretapping, which is apparently not publicly available. Therefore, I am simply trying to understand what Yoo’s argument was, what the post-Yoo argument was and whether the differences are as substantial as some claim. If we are going to judge Yoo’s arguments as a matter of professional responsibility, we should do so in a measured and analytical way, and we should compare his arguments fairly with those that may be made by other lawyers who, at the moment, are less unpopular.
And there really should be some professional (if not legal) repercussions for it.
So what do you suggest? Can and should Yoo be disbarred?
Hi, Anonymous Liberal: Here is a humorous video on Bush, that you might enjoy: http://www.youtube.com/watch?v=CGxYqv-PCtY&fmt=18
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