George W. Bush justified his warrantless wiretapping by relying on Justice Department attorney John Yoo’s theories of unlimited presidential wartime powers, and started the spying operation even before Yoo issued a formal opinion, a government investigation discovered.
Essentially, President Bush took it upon himself to ignore the clear requirement of the 1978 Foreign Intelligence Surveillance Act that all domestic intelligence-related electronic spying must have a warrant from a secret federal court, not just presidential approval. Illegal wiretapping is a felony under federal law.
The July 10 report by the inspectors general of the CIA, National Security Agency, Justice Department and Defense Department also didn’t identify any specific terrorist attack that was thwarted by what was known as the President’s Surveillance Program (PSP), although Bush has claimed publicly that his warrantless wiretapping “helped detect and prevent terrorist attacks on our own country.”
In a 38-page unclassified report, the inspectors general said most U.S. intelligence officials who were interviewed “had difficulty citing specific instances where PSP reporting had directly contributed to counterterrorism successes.”
Bush authorized the PSP in October 2001, the month after the 9/11 terror attacks on New York and Washington, but Yoo’s first legal opinion “explicitly addressing the legality of the PSP was not drafted” by Yoo until Nov. 2, 2001.
The inspectors general ‘s report also makes clear that the full PSP was more expansive than the Terrorist Surveillance Program, the warrantless wiretapping that was revealed by the New York Times in December 2005. The TSP involved intercepting calls between the United States and overseas if one party was suspected of links to al-Qaeda or to an al-Qaeda-affiliated group.
Though the undisclosed elements of the PSP remain highly classified, the report gave some hints to its scope by noting that the program originated from a post-9/11 White House request to NSA Director Michael Hayden to consider “what he might do with more authority.”
Hayden then “put together information on what was operationally useful and technologically feasible,” the report said. “The information formed the basis for the PSP.”
In other words, the PSP stretched the limits of what the NSA could accomplish with its extraordinary capabilities to collect and analyze electronic communications around the world. Various journalistic accounts have suggested that Bush’s spying program crossed the line from zeroing in on specific surveillance targets to “data-mining” a broad spectrum of electronic communications.
Suggesting that the government gathered information on many innocent people, the inspectors general stated that “the collection activities pursued under the PSP ... involved unprecedented collection activities. We believe the retention and use by IC [intelligence community] organizations of information collected under the PSP ... should be carefully monitored.”
In creating the PSP, the Bush administration engaged in a pattern of factual and legal justifications that paralleled what was done with other controversial “war on terror” programs, such as the “enhanced interrogation” of detainees that included the near-drowning of waterboarding and other brutal practices widely denounced as criminal torture.
As with the torture policies, President Bush relied on exaggerations of dangers and on legal theories that were essentially pre-cooked.
Regarding the PSP, Bush’s White House guided the CIA in hyping the threat of more terrorist attacks, the inspectors general found. At the end of the first CIA-prepared threat assessment after 9/11, the chief of staff for CIA Director George Tenet added a paragraph saying the groups discussed in the memo “possessed the capability and intention to undertake further terrorist attacks within the United States,” the report said.
Tenet’s “Chief of Staff recalled that the [alarming] paragraph was provided to him initially by a senior White House official,” the report said. “The paragraph included the [CIA director’s] recommendation to the President that he authorize the NSA to conduct surveillance under the PSP.”
Having the CIA present as grim a terrorism threat as possible – producing what became known inside the government as the “scary memos” because they were made as scary as possible – was institutionalized as the PSP continued through periodic reauthorizations by Bush, the report said.
“CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP,” the report said. “If either was lacking, an OGC attorney would request that the analysts provide additional threat information or make revision to the draft memoranda.”
Once the first threat assessment was in place, the next part of this minuet was performed by John Yoo, a right-wing legal theorist assigned to the Justice Department’s powerful Office of Legal Counsel.
According to Yoo’s OLC boss, Jay Bybee, Yoo was “the White House’s guy” on national security issues. Yoo also was “read into” the secret details of the PSP, though his titular superior, Bybee, was kept out of the loop, the report said.
“In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities, but the first OLC opinion explicitly addressing the legality of the PSP was not drafted until after the program had been formally authorized by President Bush in October 2001,” the report said.
“The first OLC opinion directly supporting the legality of the PSP was dated November 2, 2001, and was drafted by Yoo,” the report said. “Yoo acknowledged that FISA ‘purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,’ but opined that ‘[s]uch a reading of FISA would be an unconstitutional infringement on the President’s Article II authorities.’”
Yoo said the law “cannot restrict the President’s ability to engage in warrantless searches that protect the national security.”
The report noted that after Yoo’s departure from government in 2003, other Justice Department lawyers challenged Yoo’s legal scholarship, noting for instance that he had ignored one of the key Supreme Court rulings on presidential authority, the repudiation of President Harry Truman’s decision to nationalize the steel industry during the Korean War.
Yoo “omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, a leading case on the distribution of government powers between the Executive and Legislative Branches,” the report said.
“Justice [Robert] Jackson’s analysis of President Truman’s Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC’s subsequent reevaluation of Yoo’s opinions,” the report said.
Though Yoo – now a University of California at Berkeley law professor – refused to be interviewed by the inspectors general, he defended his failure to cite Youngstown in his 2006 book, War by Other Means.
“We didn’t cite Jackson’s individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the President’s conduct of foreign affairs and national security,” Yoo wrote, adding:
“Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war.”
Just days after the 9/11 attacks, Yoo drafted a 20-page memorandum that offered up theories on how the Bush administration could sidestep Fourth Amendment protections against unreasonable searches and seizures in the event the U.S. military used "deadly force in a manner that endangered the lives of United States citizens."
Yoo suggested some scenarios, such as the need to shoot down a jetliner hijacked by terrorists; to set up military checkpoints inside a U.S. city; to implement surveillance methods far superior to those available to law enforcement; or to use military forces "to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire," according to Yoo’s memo of Sept. 21, 2001.
Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would "be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."
Yoo also wrote in the memo that domestic surveillance activities, such as monitoring telephone calls without a court's permission, might be proper notwithstanding the Fourth Amendment’s ban on the government conducting unreasonable searches and seizures, without court warrants.
Early references to Bush's surveillance program were also included in one of Yoo’s legal opinions released by the Obama administration in April. That memo, titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States,” concluded “that the Fourth Amendment had no application to domestic military operations."
The report by the inspectors general also said Yoo’s opinion letting Bush circumvent the FISA court jeopardized the Justice Department’s relationship with the court.
Indeed, in December 2005, after the New York Times exposed the existence of the domestic surveillance program, U.S. District Court Judge James Robertson resigned from the FISA court.
Robertson told colleagues that President Bush's unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.
After the inspectors generals’ report was released Friday, Sen. Patrick Leahy of Vermont, Democratic chairman of the Senate Judiciary Committee, renewed his calls for a bipartisan “truth commission” to examine abuses of power during the Bush administration.
“This report underscores why we should move forward with a nonpartisan Commission of Inquiry,” Leahy said. “Without a thorough, independent review of decisions that run counter to our laws and treaties, we cannot ensure that these same mistakes are not repeated. Such a Commission must have bipartisan support to be able to truly get to the bottom of these issues with objectivity and credibility.”
Leahy’s counterpart in the House, Rep. John Conyers of Michigan, who also has been pushing for investigations and has called on Attorney General Eric Holder to appoint a special prosecutor to investigate Bush-era abuses, said the report showed that Bush “broke the law” by “personally authorizing the warrantless surveillance program.”
Conyers added, “The refusal of key Bush administration officials such as [Vice President Dick Cheney’s chief counsel] David Addington and John Yoo to cooperate with the IGs’ review underscores the need for an independent commission with subpoena power to further review these issues, as I have called for.”
Jason Leopold has launched his own Web site, The Public Record, at www.pubrecord.org.
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This story was published on July 12, 2009.