John Yoo: Still Lying

In this morning's Wall Street Journal, John Yoo has an op-ed defending himself from the malpractice charges set forth in the recent Inspecter General's report. As with the opinions themselves, the op-ed is deeply disingenuous and misstates the law repeatedly.

Not surprisingly, Yoo begins the op-ed with a collosal straw man. He points out how important it is to intercept al Qaeda communications and writes: "Evidently, none of the inspectors general of the five leading national security agencies would approve." Of course, the issue is not whether intercepting communications is a good idea, but whether the program violated the law. Yoo was not a policy maker. He was a lawyer. His job was to state what the law was, not what it should be.

Yoo eventually gets around to addressing FISA, but quickly dismisses any notion that FISA might constrain the president:

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 is difficult to overstate how absurdly dishonest this argument is. The "wall" Yoo is referring to was removed by the Patriot Act, which amended FISA. The Patriot Act was signed into law by President Bush on October 26, 2001, a full week before Yoo submitted his now infamous memo authorizing the NSA program. That day, when the President Bush signed the Patriot Act into law, he said:

Surveillance of communications is another essential tool to pursue and stop terrorists. The existing law [FISA] 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.

But let's not take President Bush's word for it, here's what John Yoo himself wrote in 2003, in another op-ed in the Wall Street Journal:

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 . . .

The argument that FISA was some obsolete relic of a law that no longer applied after 9/11 is ludicrous. At the Bush administration's behest, Congress amended FISA in numerous ways. That was the primary purpose of the Patriot Act.

In today's op-ed, Yoo writes:

Every federal appeals court to address the question has agreed that the president may gather electronic intelligence to protect against foreign threats. This includes the special FISA appeals court, which in a 2002 sealed case upholding the constitutionality of the Patriot Act held that "the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The court said it took the president's power "for granted," observing that "FISA could not encroach on the President's constitutional power."

Yoo is deliberately misleading his readers here. There's no question that the president has the power "to gather electronic intelligence to protect against foreign threats." The question is whether he can do so in a way that is prohibited by FISA, and NO court has ever held that he can. The 2002 sealed case that Yoo quotes did not make that claim. In fact, the court in Sealed Case actually upheld the constitutionality of FISA, a fact Yoo trumpeted back in 2003:

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.

Moreover, it's worth noting that Yoo's current position--that FISA cannot constrain the president in war time--has NEVER been the official position of even the Bush administration. Even Yoo's original memo was not that bold. It merely claimed that the issue of whether FISA could constrain the president's power was a difficult one and therefore should be avoided because Congress made no clear statement that it intended FISA to apply in wartime. As I've explained previously, this is a ridiculous argument. But it was framed this way precisely because even Yoo was not willing to argue that FISA was unconstitutional--especially as the administration was busy amending and re-affirming the statute publicly. And since 2003, even the Bush administration has disavowed Yoo's argument. So this is really fringe stuff.

In today's op-ed Yoo finally gets around to a subject that he didn't bother to mention in his original opinion, the relevance of the Youngstown case. In an almost childish bit of sophistry, Yoo asserts that "Youngstown correctly found that the Constitution gives Congress, not the president, the exclusive power to make law concerning labor disputes. It does not, however, address the scope of the president's power involving military strategy or tactics in war." Needless to say, this is an interpretation of Youngstown shared by precisely no one. Youngstown explicitly involved a conflict between the president's power to direct the Korean War and Congress. In every case since then, the Supreme Court has applied the Youngstown framework to presidential claims of Article II authority. In the recent Hamdan case, the Court relied on Youngstown in striking down the Bush administration's military commissions. Suggesting that Youngstown was about a "labor dispute" is like suggesting that Marbury v. Madison was about a judicial appointment. It entirely misses the point of the case. Yoo writes:

Moreover, earlier Justice Departments -- reaching across several administrations from both parties -- had likewise concluded that Youngstown did not limit the president's legitimate conduct of foreign affairs and national security policy.

This is just not true. There are undoubtedly some OLC opinions, particularly ones that address the War Powers Resolution, that conclude that some provisions of that Act go beyond even the broad Congressional authority recognized in Youngstown, but no administration (before the Bush administration) ever claimed that FISA was such a statute. And if you're going make that rather audacious argument, you at least have to discuss and distinguish Youngstown and its progeny, something Yoo did not even attempt to do in his opinion.

Yoo is not even trying to make honest arguments here. He would be laughed out of court if he ever made any of these claims before an actual judge. But for some reason he continues to be given valuable op-ed space (and a professorship at Berkeley!) to make these completely disingenuous and unsupportable claims.