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What John Yoo's OLC Memos on the Terrorist Surveillance Program Probably Said:
Of the newly released OLC memos, one particularly interesting one is this memo dated January 15, 2009 — just a few days before the OLC changed hands from Bush's people to Obama's. The memo explains what a number of OLC's positions were in still-secret memos written in the early period following 9/11, and it then explains why the later Bush OLC rejected those early positions.

  Of particular interest to me, as a FISA/surveillance guy, the memo seems to say at page 6 that the initial OLC memos on FISA (presumably the ones that okayed the "Terrorist Surveillance Program") relied on the theory that FISA simply didn't apply to national security monitoring because it did not include a "clear statement" of that intent. We only get a summary of Yoo's reasoning in the 2009 memo, but the argument as summarized seems to be that nothing in FISA clearly indicated an intent to regulate surveillance of executive branch monitoring for national security purposes. (As far as I know, DOJ has never said that this was the basis of the OLC memos on the TSP.) The 2009 memo explains that this is not the position of OLC, as OLC had taken the position in the 2006 "White Paper" that the AUMF authorized the TSP.

  If I'm reading this correctly, then, the original Yoo memos on the TSP had argued that FISA didn't apply because there was nothing in the statute that indicated clearly an intent to regulate national security surveillance. This would have been an extremely lame analysis, though. Congress had plainly stated that FISA was the exclusive means for national security monitoring in 18 U.S.C. 2511(f): It's hard to read the phrase "procedures in . . . the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted" as not clearly indicating an intent to regulate electronic surveillance in the national security area. Indeed, much of the point of FISA was to regulate that.

  If I'm reading this correctly, it might explain why Senators Feinstein & Specter introduced legislation back in '06 , at the height of the legal controversy over the TSP, that would "re-state" that FISA was the exclusive means for national security surveillance. A lot of people giggled at this idea at the time: Why restate what Congress already said? However, if the Bush Administration at some point indicated to Specter and Feinstein what the reasoning was of the initial OLC memos, Feinstein and Specter would have known something we didn't. "Re-stating" the point in new legislation could have been designed to provide the "clear statement" that the Yoo memo argued was necessary.
My Middle Name Is Ralph:
How utterly ridiculous. The law contains a clear, unequivocal statement that covers exclusivity. You don't then pass a new law that says I really, really mean it this time. That only makes you look foolish and invites some equally frivolous argument to get around the new provision. At the end of the day, you have to enforce the law if you want people to follow it.
3.2.2009 6:56pm
Dilan Esper (mail) (www):
Personally, I don't think very much of the Terrorist Surveillance Program, at least from what I know about it. But leaving my personal opinions aside, what I will never, ever, ever for the life of me understand on a political level is why the Bush Administration didn't think it could or should get some sort of FISA reform bill through Congress after 9/11 that would allow it to do what it wanted to do.

It's almost as if they were more concerned with setting precedents about the breadth of executive power than they were about doing what they thought was necessary to protect the country.
3.2.2009 7:04pm
cboldt (mail):
-- But leaving my personal opinions aside, what I will never, ever, ever for the life of me understand on a political level is why the Bush Administration didn't think it could or should get some sort of FISA reform bill through Congress after 9/11 that would allow it to do what it wanted to do. --
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I imagine several obstacles/rationales. One being a desire to conduct the surveillance without oversight, in secret, so as to sweep in groups of people that might otherwise not be "surveilable." E.g., lets surveil all commercial airline pilots. Let's surveil certain judges, etc. - where suspicion flows from something other than probable cause. Second being that the program would not only meet resistance in Congress, but even if passed into law might be found unconstitutional by the courts. And then there is the question of whether or not Congress would be willing to pass a law that covered the unilateral surveillance that was deemed "necessary" by the administration.
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As for the original theory authorizing the TSP being in the nature of "inherent authority," I'm not surprised in the least. I had a feeling that the AUMF rationale was a cheap afterthought.
3.2.2009 7:13pm
Just an Observer:
It seems to me that a statutory restatement of FISA's "exclusive means" requirement enacted in 2006 also would have had the effect of overriding the AUMF-trumps-FISA theory, which the Bush administration had publicly advanced by then. (Notably, current language in the 2008 FISA amendment certainly does that.)

What is interesting to me in Bradbury's memo regarding FISA is the dog that didn't bark: There is no reference to the pure constitutional theory that inherent Article II power trumps FISA. Did Yoo actually not make such an assertion in his early OLC memos, or is that opinion still on the OLC books?
3.2.2009 7:25pm
http://volokh.com/?exclude=davidb:

This would have been an extremely lame analysis, though.

In some language, somewhere, "yoo" apparently means "extremely lame analysis."
3.2.2009 7:29pm
Crunchy Frog:
Look at it this way:

Bad guys doing unwise things A, B, and C. Admin wants to do X, Y, and Z to take advantage. Current law (of dubious constitutionality) sets up road blocks making at least some of X, Y and/or Z unfeasable. Admin knows that bad guys watch CNN and read the NYTimes, and that bad guys will stop doing A, B, and C, making X, Y, and Z useless, if there is a debate in congress about specifics. Admin finds (somewhat specious) justification in AUMF. Problem solved.
3.2.2009 7:30pm
Dilan Esper (mail) (www):
cboldt and crunchy are assuming that there was no way to get expanded FISA powers from Congress in the immediate time period after 9/11 without disclosing chapter and verse regarding the surveillance techniques that the Administration wanted to use.

Again, whatever my personal opinions about whether such powers should have been granted, it seems quite clear to me that it would have been fairly straightforward to induce Congress to actually grant them without disclosing the sources and methods of surveillance.
3.2.2009 7:34pm
Allan L. (mail):
Yoo could enter the language as a verb, like Bork, only different.
3.2.2009 7:36pm
cboldt (mail):
-- What is interesting to me in Bradbury's memo regarding FISA is the dog that didn't bark: There is no reference to the pure constitutional theory that inherent Article II power trumps FISA. --
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I haven't read the memo yet, but it seems to me that "FISA's 'exclusive means' doesn't control" is simply leaving out the "what" (inherent authority) that it (FISA) doesn't trump. IOW, "we have the authority, unless something else stands in the way, and we conclude that in the arena of foreign intelligence, FISA doesn't expressly stand in the way."
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The AUMF theory works in the opposite direction, by construing the AUMF as express authority to conduct foreign intelligence surveillance in a manner other than that prescribed in the FISA statutes.
3.2.2009 7:37pm
cboldt (mail):
-- cboldt and crunchy are assuming that there was no way to get expanded FISA powers from Congress in the immediate time period after 9/11 without disclosing chapter and verse regarding the surveillance techniques that the Administration wanted to use. --
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My assumption is that the administration was engaged in broad surveillance that would not be either (or both) prudent (as a matter of being secret and effective) or acceptable to the public. I assume the means of surveillance are fairly pedestrian - intercept communications as it transits a wire or fiber, and discern the contents. Interception takes place at convenient locations in the communications infrastructure.
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I think the policy (the breadth of surveillance undertaken without judicial oversight) is what is meant to be kept secret from the public.
3.2.2009 7:42pm
zuch (mail) (www):
Yoo: "You didn't say 'Simon says'..."

Good for sixth grade, but not for OLC memos.

Cheers,
3.2.2009 7:56pm
Andrew J. Lazarus (mail):
I think the policy (the breadth of surveillance undertaken without judicial oversight) is what is meant to be kept secret from the public.
I can't for the life of me see why the 'conservative' position on surveillance is the East Germans'.
3.2.2009 8:05pm
Brennan:
What Zuch said.

I am now significantly more sympathetic to the efforts to have Yoo disbarred. If Prof. Kerr's guess is accurate, Yoo's reasoning is truly awful and, yes, unprofessional.
3.2.2009 8:06pm
RPT (mail):
This disclosure is no surprise to many here. I am curious to see what the prior cadre of Yoo defenders will have to say.
3.2.2009 8:19pm
Splunge:
I'm so reminded of the intensity with which Jesuits argued about the correct theory of a just war.
3.2.2009 8:21pm
Anderson (mail):
I can't for the life of me see why the 'conservative' position on surveillance is the East Germans'.

Yes, I'd heard that The Lives of Others was the # 1 "conservative film," but I hadn't realized whom they were rooting for.
3.2.2009 8:21pm
ChrisTS (mail):
Allan L.: 'Yoo' could enter the language as a verb, like Bork, only different.

Transitive or intransitive? And, would David B's "extremely lame analysis" be iimplied in the meaning, or could one nontautologically say, "He yooed a really awful opinion"?

I sort of like it as a noun: 'He presented a blatant yoo.'
3.2.2009 8:24pm
cboldt (mail):
I'm on p.2 of the Jan 15, 2009 memo (That Orin Kerr links in his opening), and all I can say is "Wow."
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I read the Sept 25, 2001 memo justifying that "a purpose of the surveillance is foreign intelligence" is adequate for warrantless surveillance, over the more restrictive "the purpose" test. That memo is as controversial as the Patriot Act (where that change was implemented into legislation) and a FISCR opinion that expresses the same (vague) threshold.
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But the Jan 15, 2009 CYA memo reflects on some stupendously overreaching legal conclusions reached by OLC in the wake of the terrorist attacks on September 11, 2001.
3.2.2009 8:35pm
Dilan Esper (mail) (www):
How about a "Yoo memo"? It's like a Brandeis Brief.

A "Yoo memo" is a memorandum written by a lawyer that presents a strained legal analysis which is intended to authorize the client to do something of dubious legality but which he or she really wants to do.

Example: "when the coal company decided to dump effluent into the stream, they ordered their lawyer to prepare a Yoo memo justifying the practice".
3.2.2009 8:38pm
cboldt (mail):
-- How about a "Yoo memo"? --
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Anybody who takes the time to skim through the released letter opinions will see that Yoo isn't the only name involved. Bybee and Philbin are in there too.
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I'm wondering if the OLC operating under any previous administration has entered a housekeeping/CYA memo at about the time it exited. I can see why the government would prefer this sort of material would be kept secret.
3.2.2009 8:50pm
catchy:
Appreciate the analysis, Orin, and hope to see more.

In future, perhaps you might consider being more informative in your assessment than 'lame' however.

The salient questions are whether these opinions strike you as disingenuous, unprofessional, inconsistent with the purpose of the OLC, etc.

Sorry to be on your case as you're initially processing these memos, but 'lame' struck me as a tepid while hip word choice -- i.e. essentially a copout.

Whatever the status of the legal reasoning in the memos, the public would benefit from a more straightforward appraisal from you down the road.
3.2.2009 8:53pm
Dilan Esper (mail) (www):
cboldt:

I know what you are saying, but somehow Yoo became the public face of this (just like Ollie North was the public face of Iran-Contra even though John Poindexter and others were involved). And he certainly was particularly "good" at writing these memos. So I say name them after him.
3.2.2009 8:57pm
cboldt (mail):
-- In future, perhaps you might consider being more informative in your assessment than 'lame' however. --
.
The descriptive/informative part prepared by Orin Kerr precedes his conclusion of "lame."
... FISA simply didn't apply to national security monitoring because it did not include a "clear statement" of that intent ...

The Jan 15, 2009 letter doesn't have a heck of alot more than that in the way of mea culpa. Orin Kerr has captured that part of the letter quite well and accurately, IMO.
3.2.2009 9:03pm
jukeboxgrad (mail):
So I say name them after him.


Strictly as a matter of phonetic simplicity, the name lends itself to a variety of uses (more easily than the other names). For example: 'I didn't realize you were Yooish.' Or: 'if you won't pack more Yooisms into this memo, I'll find someone who will.' Or: 'I'd like to find a law school that teaches Yooism.' Or: 'we intend to evaluate you on your ability to perform Yooishly.'
3.2.2009 9:12pm
NTB24601:
jukeboxgrad: "For example: 'I didn't realize you were Yooish.'"

Or: "This country is being ruined by all those damn Yooish lawyers!" Hmmmm. Uh oh ...
3.2.2009 9:30pm
AGBates:
It sounds like Yoo was relying on a beefed-up national security/foreign affairs version of the canon of constitutional avoidance. The idea was discussed in the 2006 DOJ White Paper, which was created shortly after the public disclosure of the NSA program:
[T]he canon of constitutional avoidance has particular importance in the realm of national security, where the President's constitutional authority is at its highest. See Department of the Navy v. Egan, 484 U.S. 518, 527, 530 (1988); William N. Eskridge, Jr., Dynamic Statutory Interpretation 325 (1994) (describing “[s]uper-strong rule against congressional interference with the President's authority over foreign affairs and national security”). Thus, courts and the Executive Branch typically construe a general statute, even one that is written in unqualified terms, to be implicitly limited so as not to infringe on the President's Commander in Chief powers.
The theory is apparently that FISA was enacted with peacetime intelligence gathering (e.g., eavesdropping on foreign governments) principally in mind, and that it should not be read to limit the President's inherent authority to gather intelligence during wartime without a "super-strong" indication of Congressional intent. I gather that Yoo did not view the general exclusivity provision as a sufficiently clear expression of such intent.
3.2.2009 9:40pm
AGBates:
I should also point out, as Prof. Kerr and the 2009 Memorandum did, that the 2006 White Paper ultimately relied on FISA + AUMF + Canon of Avoidance to get where it needed to go. My suspicion is that Yoo's earlier analysis relied solely on FISA + Canon.
3.2.2009 9:55pm
Ricardo (mail):
The theory is apparently that FISA was enacted with peacetime intelligence gathering (e.g., eavesdropping on foreign governments) principally in mind, and that it should not be read to limit the President's inherent authority to gather intelligence during wartime without a "super-strong" indication of Congressional intent. I gather that Yoo did not view the general exclusivity provision as a sufficiently clear expression of such intent.

If that was the argument, I'm almost lost for words. The cold war was not a "real" war despite the fact that the adversary was a nuclear-armed superpower while the war on terror is a real war where "peacetime" laws don't apply?

And what's with the "super-strong" intent requirement? Why not super-duper-strong?
3.2.2009 9:56pm
Bart (mail):
Dilan Esper:

Personally, I don't think very much of the Terrorist Surveillance Program, at least from what I know about it. But leaving my personal opinions aside, what I will never, ever, ever for the life of me understand on a political level is why the Bush Administration didn't think it could or should get some sort of FISA reform bill through Congress after 9/11 that would allow it to do what it wanted to do.

Apart from the well argued points that the President does not need congressional authority to conduct foreign intelligence gathering and Article I nowhere grants Congress the power to limit presidential foreign intelligence gathering, there is the practical consideration that one should not inform the enemy of top secret intelligence gathering by publicly seeking permission from Congress to do perform it.

Try to imagine FDR asking Congress for legislation authorizing the ENIGMA program.
3.2.2009 10:01pm
AGBates:
And just to be clear, I don't endorse the reasoning described in my earlier post. As others have pointed out, 50 U.S.C. 1811 is a very clear indication that Congress intended for FISA to cover wartime surveillance. I'd be very curious to see if/how Yoo dealt with that provision.
3.2.2009 10:13pm
Bart (mail):
Dilan Esper:

cboldt and crunchy are assuming that there was no way to get expanded FISA powers from Congress in the immediate time period after 9/11 without disclosing chapter and verse regarding the surveillance techniques that the Administration wanted to use.

Again, whatever my personal opinions about whether such powers should have been granted, it seems quite clear to me that it would have been fairly straightforward to induce Congress to actually grant them without disclosing the sources and methods of surveillance.

One does not need to disclose precise means and methods to the enemy as did the NYT in revealing the TSP to notify the enemy how they are being surveilled.
3.2.2009 10:13pm
Hugh Jass (mail):
The Constitution provides that the President is the Commander-in-Chief of the military.

But it also states that Congress has the power to (a) declare war; (b) make rules concerning captures on land and sea; (c) raise and support armies; (d) provide and maintain a navy; (e) regulate the land and naval forces; (f) provide for calling forth the militia to repel invasions; (g) provide for organizing, arming and disciplining the militia and governing such part of them that are in service to the United States, and (h) make all laws that are necessary and proper to carry out the powers vested in the federal government.

Given this language, why is it considered gospel to argue that, for example, the President doesn't need Congress's approval to conduct foreign intelligence gathering?
3.2.2009 10:29pm
Barristers Handshake (mail):
definitely heaping a lot of blame on just one guy who wrote part of the memo, so others could justify their policies...it's almost as if he got Yoosed.

Thus reinforcing JukeBox's point.
3.2.2009 10:34pm
zuch (mail) (www):
AGBates:
The theory is apparently that FISA was enacted with peacetime intelligence gathering (e.g., eavesdropping on foreign governments) principally in mind, and that it should not be read to limit the President's inherent authority to gather intelligence during wartime without a "super-strong" indication of Congressional intent. I gather that Yoo did not view the general exclusivity provision as a sufficiently clear expression of such intent.
Only fly in the ointment here is that FISA explicitly stated what differences pertained in wartime (see 50 USC § 1811).

Cheers,
3.2.2009 10:38pm
zuch (mail) (www):
AGBates: Just saw your later post. Nevermind.....
3.2.2009 10:43pm
catchy:
Hi cboldt -- pleasure to read you here and at balkin's site.

"The descriptive/informative part prepared by Orin Kerr precedes his conclusion of "lame.""

I got that, but the conclusion is vague. Lots of things are 'lame'. Was this negligent? Evidence of intentional dereliction of duty? I'd like a clue where Orin stands.

... After reading his posts for several years, IMO Orin errs on the side of being excessively cautious and moderate ... with the possible exception of his enthusiasm for the Thelonious Monk Quartet

Obviously it serves him well, but I'm just stating my dissatisfaction with calling this 'lame' and leaving it at that. At least some of the site's readership demands more! Spill it in future, Orin!
3.2.2009 10:43pm
PC:
Apart from the well argued points that the President does not need congressional authority to conduct foreign intelligence gathering and Article I nowhere grants Congress the power to limit presidential foreign intelligence gathering, there is the practical consideration that one should not inform the enemy of top secret intelligence gathering by publicly seeking permission from Congress to do perform it.

There is also the issue of the NSA using Narus machines to hoover up data from domestic communications[0]. It's the type of intelligence gathering that is neat from a technology perspective -- like many of the programs that spread out to research centers after the TIA was disbanded -- but it's most likely something that congress does have authority over.

[0] - an interesting part being the accusation from the CEO of QWest that the NSA made the requests prior to 9/11
3.2.2009 10:45pm
Anderson (mail):
why is it considered gospel

I would never confuse Bart's views w/ the "gospel" side. More the opposite side from "gospel." Whatever that is.
3.2.2009 11:01pm
Oren:


Try to imagine FDR asking Congress for legislation authorizing the ENIGMA program.

If Congress had passed a law (of course, in the pre-Dec-7th days, when they had no idea blah blah blah) the regulated ENIGMA, then I would imagine he would have some Senator tuck an authorization to break it somewhere discreet.

As other's have pointed out, it's not that Bush was incapable of getting Congress' stamp, it was that Cheney &Addington were determined not to admit they need it.
3.2.2009 11:09pm
cboldt (mail):
I got that, but the conclusion is vague. Lots of things are 'lame'. Was this negligent? Evidence of intentional dereliction of duty? I'd like a clue where Orin stands.
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Ahh, I see the distinction you are looking for; a judgment call as to something resembling "culpability."
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You didn't ask for mine, but when an author misses basic and prominent constitutional clauses on the way to an outcome-oriented outcome, I come to the conclusion that the author is a willful enabler who sees the law as fully mutable to suit the desired ends.
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How much is 2 + 2? How much do you want it to be?
3.2.2009 11:09pm
Oren:
sed/other's/others/ sheesh
3.2.2009 11:10pm
Bart (mail):
Hugh Jass (mail):

The Constitution provides that the President is the Commander-in-Chief of the military.

But it also states that Congress has the power to (a) declare war; (b) make rules concerning captures on land and sea; (c) raise and support armies; (d) provide and maintain a navy; (e) regulate the land and naval forces; (f) provide for calling forth the militia to repel invasions; (g) provide for organizing, arming and disciplining the militia and governing such part of them that are in service to the United States, and (h) make all laws that are necessary and proper to carry out the powers vested in the federal government.

Given this language, why is it considered gospel to argue that, for example, the President doesn't need Congress's approval to conduct foreign intelligence gathering?


Well, lets see...

Military commanders carry out intelligence gathering and none of the Article I powers to which you cited give Congress command power in general or the power to direct intelligence gathering specifically.

This is rather elementary.
3.2.2009 11:15pm
OrinKerr:
Catchy, if you genuinely do not know what "extremely lame" means, I would think this reflects your lack of understanding of everyday English rather than a flaw in my choice of words. Of course, to the extent you just want me to go all Glenn Greenwald on these issues, you first need to take me out for beers first: you can't just get that version for free, ya know.
3.2.2009 11:25pm
Bart (mail):
Oren:

BD: Try to imagine FDR asking Congress for legislation authorizing the ENIGMA program.

If Congress had passed a law (of course, in the pre-Dec-7th days, when they had no idea blah blah blah) the regulated ENIGMA, then I would imagine he would have some Senator tuck an authorization to break it somewhere discreet.

If Congress had passed a law... Tellingly, no Congress prior to the radical post Vietnam body had ever conceived that it had the power to direct foreign intelligence gathering.

As for the idea of sneaking in a law gutting FISA as if it were an earmark, the problem is that you would have had a substantial number of Dems who would have objected to such a change and demanded that the TSP be made public even if that meant disclosing it to the enemy. You may recall the debates over years leading up to the final reform gutting FISA.

Our enemies much surely think us mad for disclosing our most closely held military secrets in newspapers and arguing to extend legal protections to their agents attempting to attack us.
3.2.2009 11:26pm
Steve:
We all know that if a law was passed by the "radical post Vietnam Congress" then it's not really a law and can be safely disregarded.
3.2.2009 11:39pm
jukeboxgrad (mail):
shake:

it's almost as if he got Yoosed.


Well done.

================
bart:

disclosing our most closely held military secrets in newspapers


You mean the codes to control the nuclear football are listed in the paper? I hadn't noticed.

Or maybe you just mean when the paper prints the name of a CIA employee.

Our enemies much surely think us mad


Some of them "think us mad" for believing in liberty, democracy and self-government. Which entails the public ultimately having complete oversight, one way or another, over the activities of the government. When did the proper standard become what our enemies "think?"
3.3.2009 12:11am
catchy:
Orin I wouldn't have suspected there *was* a Greenwald version available even after a few beers (I myself tend to get happy when I drink vs. obsessive compulsive.)

... I believe I've got a grip on what 'extremely lame' means.

It's an expression indeterminate between 'grounds for disbarment', 'grounds for academic dismissal', 'disingenuous legal analysis', 'shoddy work, but within professional standards', 'mentions Captain Kirk too many times', etc.

I'm just saying Enquiring Minds are dying to know which sense you had in mind.
3.3.2009 12:52am
Dilan Esper (mail) (www):
To those who believe that there would be no way to amend FISA post 9/11 without revealing to terrorists how they would be surveilled are either unaware of how our intelligence statutes are written or deliberately being misleading.

FISA, before 9/11, set a number of conditions under which a warrant would be required from the secret FISA court (basically, that there was a United States person that was the subject of a foreign intelligence wiretap) and set the standard that the court would use to issue the warrant (that the predominant purpose of the tap was intelligence gaterhing).

Now, if you hypothetically changed the law to say that (a) certain persons in the United States aren't covered, or (b) a different standard would be used to issue the warrant, or (c) warrants would issue without individualized determinations, how, exactly, would that reveal to terrorists what we were doing to eavesdrop on them?

Further, the USA Patriot Act was passed quickly and contained numerous provisions relating to such things as national security letters. Did they reveal to terrorists, e.g., the criteria for issuing such letters?

I have to insert a personal note here. I am really sick of hearing for the last almost eight years how we can't even debate or discuss anything related to fighting terrorism that Republicans don't want to debate or discuss (please note that other "secrets" were leaked or revealed by the Bush Administration to promote their initiatives and increase their popularity) on the grounds that it will supposedly reveal some incredible secret to "the enemy". It is perfectly clear that (1) we are a democracy that needs and requires public debate on our important anti-terrorism policies, and (2) at the same time, terrorists, if they are thinking, can well imagine what we are doing to eavesdrop on them and catch them. So even if there was some risk of revealing something to terrorists, it's really a price we should probably pay anyway.

But here, of course, the argument is just BS. It's perfectly possible to do a FISA amendment without telling terrorists exactly what we are doing. The Bush Administration didn't want to do so, because apparently winning a legal argument about executive power was worth doing something that they felt would put the public at risk. What kind of monsters were these people?
3.3.2009 3:02am
Splunge:
It's the type of intelligence gathering that is neat from a technology perspective -- like many of the programs that spread out to research centers after the TIA was disbanded -- but it's most likely something that congress does have authority over.

God forbid they use it. It would be like circus clowns designing launch protocols for nuclear missiles.
3.3.2009 3:28am
Bart (mail):
Dilan:

Al Qaeda members did not know we were successfully surveilling their US telephone communications in the first instance. Gutting FISA to clear the way for such surveillance is like waving a sign at the enemy saying: "Hi boys, we will be listening to your phones!" Having the Congress then publicly debate the measure and then having the media digging around to disclose the TSP would only multiply the number of such signs being waved at the enemy.

Imagine if the 1930s Congress had passed a law prohibiting the use of computers in conducting foreign intelligence gathering without a warrant. Should FDR have sought a public revision of this obviously unconstitutional law to permit the ENIGMA program and thus notify the enemy that we were going to use computers to break their codes?

If you think the enemy is not listening, we have intelligence analysts who do nothing but read media reports to glean just such information from our enemies. Why should we assume our enemies are stupid? For heavens sake, you do not provide the enemy anything except for misinformation.
3.3.2009 8:28am
Anderson (mail):
Al Qaeda members did not know we were successfully surveilling their US telephone communications in the first instance.

How do you know that?

Second question: why would we assume that al-Qaeda was STUPID enough not to suspect we'd be surveilling those calls? Even if they hired a telecom lawyer to write them a (non-Yoo) memo, how does any individual know that he's not being tracked by CIA/FBI and is not the target of an individual FISA warrant?
3.3.2009 8:57am
jukeboxgrad (mail):
bart:

Why should we assume our enemies are stupid?


Indeed. But that's exactly what you're doing when you say this:

Al Qaeda members did not know we were successfully surveilling their US telephone communications


Right. They "did not know" because the word "wiretap" has never been translated into Arabic. Shh! Don't tell them that such a thing exists!
3.3.2009 9:04am
Steve H (mail):

Al Qaeda members did not know we were successfully surveilling their US telephone communications in the first instance.


These guys didn't know the feds could intercept phone calls? They must be the stupidest terrorists ever.
3.3.2009 9:15am
J. Ralph Ralphson (mail):

These guys didn't know the feds could intercept phone calls? They must be the stupidest terrorists ever.


It's true—terrorists can't be technologically sophisticated-it's not as if they could ever understand complicated, modern technology—airliners
3.3.2009 9:43am
J. Ralph Ralphson (mail):

These guys didn't know the feds could intercept phone calls? They must be the stupidest terrorists ever.


It's true—terrorists can't be technologically sophisticated-they could never understand complicated, modern technology—like airliners.
3.3.2009 9:44am
Anderson (mail):
Ralph posted twice! He doesn't understand modern technology! He's a terrorist!
3.3.2009 9:47am
Just an Observer:
The more I think about it, the more important it seems to remember one big caveat about these released documents: They are not at all a comprehensive catalog of the OLC war-on-terror opinions.

In the first place, DOJ said in releasing the opinions and summary memos that six underlying opinions had been released because, in part, "they are not classified." Other documents remain classified.

Also, the purported purpose of Bradbury's 1/15/2009 memo to the files was to summarize to his successors some holdings in prior opinions that had been superseded in practice, including some that had already been withdrawn. But that does not rule out other opinions that may already have been withdrawn. (Jack Goldsmith reportedly withdrew quite a few from the Yoo era.) If some other "classified" opinion was already formally withdrawn, theoretically there would be no need to describe it in Bradbury's unclassified memo to the new occupants of the office.

So while the Bradbury memo sheds additional light on the matter by revealing the previously unknown (and obviously specious) theory that FISA's "exclusive means" didn't mean what it said, there still may have been other rationalizations for the early surveillance program.
3.3.2009 10:04am
Anderson (mail):
Balkin has some similar caveats at his blog. In essence, he says, the theory that's been withdrawn is "the president is a dictator." Yay.
3.3.2009 10:08am
Just another poor country lawyer (mail):
The provision begins, "Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications ...."

It also provides that the exclusivity applies to "electronic surveillance, as defined in section 101 of such Act" [FISA]. The thrust of that definition seems to envisage acquisition of the content of electronic communications.

Thus, we would have to know the fact situation to which the memos applied to determine whether they fit into the definition of "electronic surveillance" or whether they fit into one of the areas not affected by the statute.

Perhaps the provision is not so "exclusive" as one would initially think. Facts and definitions of terms are critically important in understanding statutes, especially criminal ones.

Cheers.
3.3.2009 10:22am
ChrisTS (mail):
I we really are worried about spreading the eponymous blame:

"The client yoosed him to produce a philbin." Or, would that be redundant?

I'm still working on 'Bybee.'
3.3.2009 12:07pm
Anderson (mail):
I'm still working on 'Bybee.'

by-bee, v. -- to escape the consequences of one's actions through appointment to high office, particularly a lifetime judicial appointment.

"There was some talk about some shady real estate transactions, but he bybeed out of it."
3.3.2009 12:20pm
jukeboxgrad (mail):
steve:

the stupidest terrorists ever


Speaking of stupid terrorists: Bush tried to convince us that his wiretapping was a success because it supposedly helped us catch Iyman Faris. A mentally ill person who thought he could disassemble the Brooklyn Bridge with a blowtorch.

Iyman Faris probably has no idea what a wiretap is, so I suppose there is some logic to Bart's statement.
3.3.2009 12:49pm
zuch (mail) (www):
Bart:
Military commanders carry out intelligence gathering and none of the Article I powers to which you cited give Congress command power in general or the power to direct intelligence gathering specifically.
As I've told you many times before (and you have never refuted), Congress, in its role as organising, arming, and regulating the armed forces, does thousands of things that impinge on the "power" of the executive as CinC (think all of Title 10 of the US Code, which, FYI, includes volumes more than just the UCMJ). As one example, they could insist that troops go into battle armed with only sporks, should they think such proper (and the founders left it up to the good sense of Congress assembled not to do such a thing). Why you insist that, given this broad mandate to organise and regulate the military, they have no power to regulate the process, methods and procedure of collection of military intelligence is beyond me. I'd note that your insistence on the word "direct" (as opposed to "regulate") is a 'straw man' of your own construction, and that most sapient readers understand the difference between general regulation of procedures and specific direction as to targets.
This is rather elementary.
... to those that want to flog their own very peculiar, unpopular, and unsupported view of the structure of the U.S. government, and who want to ignore (rather than address) all comments by those that would beg to differ...

Cheers,
3.3.2009 12:50pm
zuch (mail) (www):
Prof. Kerr:Of course, to the extent you just want me to go all Glenn Greenwald on these issues, you first need to take me out for beers first: you can't just get that version for free, ya know.You're on, and the price is right. I'd love the opportunity. Next time I'm in DC. :-)

Cheers,
3.3.2009 12:54pm
zuch (mail) (www):
Bart:
Tellingly, no Congress prior to the radical post Vietnam body had ever conceived that it had the power to direct foreign intelligence gathering.
... well, outside of the National Security Act of 1947 and numerous laws prior to and since then (your 'straw man' about "direct" versus "regulate" notwithstanding).

Cheers,
3.3.2009 12:59pm
Total (mail):
no Congress prior to the radical post Vietnam body had ever conceived that it had the power to direct foreign intelligence gathering.

First, pre-Vietnam Congresses had certainly involved themselves in spying. There was a heck of a lot of squabbling over spying in the 19th century between administration and the legislative. Second, there's this thing called 'Watergate' which tended to cause trust issues between the administration and Congress.
3.3.2009 1:54pm
Anderson (mail):
they could insist that troops go into battle armed with only sporks

"Forward, the Spork Brigade!"
Was there a man dismay'd?
Not tho' the soldier knew
Congress had blunder'd ....
3.3.2009 2:05pm
Fury:
jukeboxgrad:

"Bush tried to convince us that his wiretapping was a success because it supposedly helped us catch Iyman Faris. A mentally ill person who thought he could disassemble the Brooklyn Bridge with a blowtorch."


In all fairness, there's a little more to it than that. He pled guilty to "providing material support and resources to Al Qaeda and conspiracy for providing the terrorist organization with information about possible U.S. targets for attack."

He may have been mentally ill, but he also had the wherewithal to pass on the plan as the New York Times reported:

"Officials said that Mr. Faris had planned to sever the suspension cables using blowtorches, but was discouraged by the bridge's structure and the level of security."
3.3.2009 2:33pm
jukeboxgrad (mail):
he also had the wherewithal to pass on the plan


I think you're pointing out that in the end he was sane enough to realize that his plan was insane. And that's my point: that we were expected to be afraid of people who created plans that were insane (insane in the sense of impossible to carry out). And this was supposed to be a significant example of how important and successful the wiretapping was.

And the JFK plot was another example of where the government made a big deal about some people who turned out to be "the gang that couldn’t shoot straight."
3.3.2009 3:44pm
Anderson (mail):
I do take JBG's point, but had the 9/11 plot been foiled, I wonder how many of us would even remember those wacky guys who thought they could fly an airplane.
3.3.2009 3:46pm
Suzy (mail):
You would be amazed at how often I have heard--in full earnestness and seriousness--this argument that the terrorists would not realize we were trying to monitor their communications if we didn't debate the legality of the issue openly.
3.3.2009 4:13pm
Ken Arromdee:
You would be amazed at how often I have heard--in full earnestness and seriousness--this argument that the terrorists would not realize we were trying to monitor their communications if we didn't debate the legality of the issue openly.

Some terrorists are stupid. One perpetrator of the 1993 WTC bombing demanded back his security deposit for the van used in the bombing.
3.3.2009 4:31pm
EIDE_Interface (mail):
So why hasn't Yoo been frog marched along with Karl Rove? I'm waiting Obama! You promised change!
3.3.2009 4:49pm
jukeboxgrad (mail):
anderson:

had the 9/11 plot been foiled, I wonder how many of us would even remember those wacky guys who thought they could fly an airplane.


I think an important difference is that there has never been a serious plan to dismantle a bridge with a blowtorch. Or (as far as we know) to create a major fuel explosion at an airport. On the other hand, there had already been serious plans to use airplanes as missiles.

We often hear the claim that no one anticipated the use of hijacked airplanes as missiles, but this claim is false. So even before 9/11, it was understood that the idea wasn't so wacky.
3.3.2009 4:54pm
Brian Garst (www):
<i>You would be amazed at how often I have heard--in full earnestness and seriousness--this argument that the terrorists would not realize we were trying to monitor their communications if we didn't debate the legality of the issue openly.</i>

There's a huge difference in knowing we are trying to monitor terrorists (which any terrorist can figure out) and knowing the exact mechanism of how we determine who to monitor, what we monitor and what we do with it. It is stupid beyond belief to broadcast the latter to those we are attempting to catch. That's like SWAT announcing on the bullhorn how they plan to raid a building full of hostage takers before they do it.
3.3.2009 4:54pm
jukeboxgrad (mail):
the exact mechanism of how we determine who to monitor, what we monitor and what we do with it


Except that changing the law would not have required broadcasting "the exact mechanism of how we determine who to monitor, what we monitor and what we do with it."
3.3.2009 5:02pm
jukeboxgrad (mail):
One perpetrator of the 1993 WTC bombing demanded back his security deposit for the van used in the bombing.


That's true:

Needing more money for an adult fare, he tried to get his van deposit back by telling the rental agency that the van had been stolen. With either desperate or inane persistence, he returned three times before he was finally arrested on March 4.


I don't think we should put much effort into worrying about the ones who are that stupid. And the ones who are that stupid are probably not likely to be following the fine details of a new FISA law moving through Congress.
3.3.2009 5:08pm
Fury:
jukeboxgrad:

I think you're pointing out that in the end he was sane enough to realize that his plan was insane. And that's my point: that we were expected to be afraid of people who created plans that were insane (insane in the sense of impossible to carry out). And this was supposed to be a significant example of how important and successful the wiretapping was.

The issue concerning using a blowtorch to cut cables to the bridge is but one minor part of the what Faris was accused of, and ultimately pled guilty to:

"Faris has admitted traveling to a training camp in Afghanistan in late 2000, where he was introduced to Usama bin Laden. Faris admitted that during a meeting in late 2000, one of bin Laden’s men asked him about “ultralight” airplanes, and said al Qaeda was looking to procure an “escape airplane.” Faris admitted that about two months later, he performed an Internet search at a café in Karachi, Pakistan and obtained information about ultralights, which he turned over to a friend for use by al Qaeda."

and:

"Faris also admitted that during a visit to Karachi in early 2002, he was introduced to a senior operational leader in al Qaeda. A few weeks later, the operational leader asked what he could do for al Qaeda. Faris said he discussed his work as a truck driver in the United States, his trucking routes and deliveries for airport cargo planes, in which the al Qaeda leader said he was interested because cargo planes would hold “more weight and more fuel.”"

and:

"According to Faris’ admission, the operational leader then told Faris that al Qaeda was planning two simultaneous attacks in New York City and Washington, D.C. The al Qaeda leader spoke with Faris about destroying a bridge in New York City by severing its suspension cables, and tasked Faris with obtaining the equipment needed for that operation. The leader also explained that al Qaeda was planning to derail trains, and asked Faris to procure the tools for that plot as well."

- see http://www.usdoj.gov/opa/pr/2003/October/03_crm_589.htm

Faris had apparently been of interest to the United States considering his traveling to an al Qaeda training camp (which led to him being asked to gather information for al Qaeda). Some kook who wanted to cut through some bridge cables is one thing if there was no other history of the person wishing to do harm to the United States. Given the context and history of Faris, it would seem (to me) to validate the usefulness and significance of the wiretapping program.
3.3.2009 5:16pm
Anderson (mail):
it would seem (to me) to validate the usefulness and significance of the wiretapping program.

I think the usefulness is evident -- even if it hasn't nailed anybody important, who's to say it won't tomorrow?

The issue that vexed most of us, IIRC, was whether the program was *legal*.
3.3.2009 5:36pm
jukeboxgrad (mail):
fury:

Some kook who wanted to cut through some bridge cables is one thing if there was no other history of the person wishing to do harm to the United States.


I realize there's evidence that he was "wishing to do harm to the United States." I don't think I've said anything to suggest otherwise. But the key word is "wishing." My point is that he's a kook who was not likely to ever be able to carry out much harm.

And to the extent that he was made a poster-boy for the value of surveillance, I take that as an indication that either we don't face many non-kooks, or that our surveillance is not good at catching the non-kooks. Either way, I'm left wondering why it was so important to break the law.
3.3.2009 7:25pm
ChrisTS (mail):
Anderson:

Excellent. And, it has the virtue of precision.

Of course, in no time at all people will just be talking about bybeeing as any old form of ducking the consequences. The language is dying you know.
3.3.2009 7:57pm
ChrisTS (mail):
Ah, wait! We need a modifier:

"It was a perfect example of philbinnical reasoning."
3.3.2009 8:00pm
Fury:
jukeboxgrad:

This will be one of those issues which we will see differently. I'm persuaded by the totality of the evidence that it was appropriate for the U.S. to respond in the manner that it did to Faris, regardless of his kookery concerning a bridge.

As far as using Faris as a "poster-boy", your point is well taken.
3.3.2009 9:14pm
jukeboxgrad (mail):
I'm persuaded by the totality of the evidence that it was appropriate for the U.S. to respond in the manner that it did to Faris


I don't think I said anything contrary to that. I think I was just making a statement about the "poster-boy" aspect. So I think there might not be any difference between the way the two of us are viewing this. (How boring! Just kidding.)
3.3.2009 10:12pm
disinformation indeed:
Bart says,

"For heavens sake, you do not provide the enemy anything except for misinformation."


so i guess that made us, the country, "the enemy" during the bush era, b/c disinformation is all we got from the reactionary fascists you miss so much
3.4.2009 9:34am
Egypt Steve (mail):
Bart writes:

Article I nowhere grants Congress the power to limit presidential foreign intelligence gathering.



Article I does grant Congress the power to:
make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.



I'm no lawyer but it seems to me that a straightforward reading of the Constitution means that the President has no "plenary" powers whatsoever -- even allegedly unlimited powers like that of granting pardons and reprieves can only be actually executed purusant to act of Congress -- much less so in the area of warmaking and national security, where Congress enjoys far more enumerated Constitutional powers than the Executive. It's time for the Congress to stand up for itself!
3.4.2009 9:57am

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