No Comment — March 21, 2011, 12:01 pm

Two New OLC Opinions on Warrantless Surveillance

Under cover of the quasi-war against Libya and the Japanese nuclear crisis, the Justice Department released two significant and long-outstanding Bush-era legal memoranda on Friday evening. Both deal with an intelligence community program so secret that even its name has to be redacted. Referred to by Bush Administration lawyers as simply “the program,” it apparently granted the Defense Department (and particularly its National Security Agency) authority to sweep through millions of communications—on telephone, by fax, in emails, through Internet visits, at home and abroad, involving U.S. citizens and foreigners. Josh Gerstein provides more context at Politico.

The program seems to have been given an initial greenlight by Berkeley law professor John Yoo, then a deputy assistant attorney general at the Office of Legal Counsel. Yoo’s 21-page memorandum, shards of which can be examined here (PDF), apparently concluded that Congress never intended to restrict the president’s power to engage in “warrantless searches that protect the national security” when it enacted a law that made it a felony for officers of the executive branch to engage in domestic intelligence surveillance without first securing the approval of a special intelligence surveillance court. The second memorandum (PDF), dated May 6, 2004 and issued by Yoo’s successor, Harvard law professor Jack Goldsmith, survived the redaction process with considerably more flesh on the bone. In his book The Terror Presidency, Goldsmith criticized “Yoo’s unusually expansive and self-confident conception of presidential power.” But Goldsmith’s own memorandum seems remarkably redolent of Yoo’s outré notions of a president outfitted with dictatorial wartime powers.

In this memorandum, Goldsmith fashions two major arguments: first, that Congress, in passing the Authorization for the Use of Military Force (AUMF) implicitly gave the president a pass on the stringent approval requirements for intelligence surveillance; second, that if it did not and were construed, as applied to “the program,” to require approval, that would be an unconstitutional infringement on the commander-in-chief powers. Goldsmith cautions would-be critics against going at him too unkindly without knowing the totality of the memo, and it’s true that it’s hard to take a whack at an object that has been so methodically obscured. Nevertheless, both arguments are exceptionally weak. The idea that Congress intended in passing AUMF to grant an exception to a highly particularized criminal statute designed to restrict specific kinds of domestic surveillance is a non-starter. If the Bush Administration felt it needed such clearance, it should have asked for this. It didn’t. The second prong puts forward the notion that the president can override a criminal statute based on an aggressive construction of his own commander-in-chief powers, a proposition that lacks support in judicial precedent and rests on an eccentric view of presidential war powers–one linked, moreover, to Jack Goldsmith and John Yoo.

In Goldsmith’s rehabilitation campaign, in Newsweek, The New Yorker, and other publications, he is presented as a noble counterpoint to Yoo and Addington. Yoo’s approval of the NSA program was uncovered by Goldsmith soon after he moved in at OLC and quickly judged legally untenable. Goldsmith tells us that he was prepared to resign over the matter. After the dramatic 2004 effort by Alberto Gonzales to secure Attorney General Ashcroft’s approval at a bedside visit at a Washington hospital, Goldsmith says that he thought a crisis would tear the government apart, but instead President Bush relented and agreed to changes in the program that enabled Goldsmith to write the second memo. There is much speculation about those changes, but we still don’t know what they are. Without that information it is very difficult to assess the space between Goldsmith’s and Yoo’s views of the law, which on the basis of these memos doesn’t appear to be much.

Both memos are heavily redacted, and it seems clear that the redactions reach heavily into legal reasoning rather than technical or scientific aspects of the surveillance program. The redactions may be designed to protect the Justice Department from embarrassment, by concealing legal arguments that are far below minimum professional standards. Goldsmith himself reinforces this impression. “They blew through [FISA] in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes, suggesting that the secrecy assertions were directly connected to the poverty of the legal arguments. Three federal courts have in fact reached the fairly obvious conclusion that the NSA program, as carried out, is criminal.

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