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.

Share
Single Page

More from Scott Horton:

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

August 2015

In the Shadow of the Storm

= Subscribers only.
Sign in here.
Subscribe here.

Measure for Measure

= Subscribers only.
Sign in here.
Subscribe here.

The Trouble with Israel

= Subscribers only.
Sign in here.
Subscribe here.

A Camera on Every Cop

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
“The campaign music stopped. Hundreds of people, their faces now warped by the dread of a third bomb, began running for cover.”
Photograph © Guy Martin/Panos.
Article
Part Neither, Part Both·

= Subscribers only.
Sign in here.
Subscribe here.

“Eight months pregnant I told an old woman sitting beside me on the bus that the egg that hatched my baby came from my wife’s ovaries. I didn’t know how the old woman would take it; one can never know. She was delighted: That’s like a fairy tale!”
Mother with Children, by Gustav Klimt © akg-images
Article
What Recovery?·

= Subscribers only.
Sign in here.
Subscribe here.

“Between 2007 and 2010, Albany’s poverty rate jumped 12 points, to a record high of 39.9 percent. More than two thirds of Albany’s 76,000 residents are black, and since 2010, their poverty rate has climbed even higher, to nearly 42 percent.”
Photograph by Will Steacy
Article
Rag Time·

= Subscribers only.
Sign in here.
Subscribe here.

From a May 23 commencement address delivered at Hofstra University. Doctorow died on Tuesday. He was 84.
“We are a deeply divided nation in danger of undergoing a profound change for the worse.”
Photograph by Giuseppe Giglia
Article
The Trouble with Israel·

= Subscribers only.
Sign in here.
Subscribe here.

“We think we are the only people in the world who live with threat, but we have to work with regional leaders who will work with us. Bibi is taking the country into unprecedented international isolation.”
Photograph by Adam Golfer

Percentage change since 1990 in serious golf-cart-related injuries:

+132

Vegetarians are more intelligent than normal people.

A leopard gained access to a private school in India.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today