The Yoo “Exclusivity” Opinion: More Outrageous Hackery
By: emptywheelAfter significant efforts, Senator Whitehouse has finally gotten the Administration to declassify the fourth of the four outrageous opinions John Yoo wrote to justify the warrantless wiretap program (the other three Pixie Dust provisions basically allow the President to write his own laws). This one pertains to the exclusivity provision of FISA, which states clearly that FISA was the "exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted."
Here’s what that purported genius, John Yoo, did with FISA’s exclusivity provision:
Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.As it happens, DOJ actually appears to be somewhat cognizant of the legal hackery of this Yoo opinion. When he learned DNI had declassified the passage from the opinion, Brian Benczkowski sent a letter to Senators Whitehouse and DiFi, trying to claim that Yoo’s opinion is unremarkable:
The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President’s constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties.
I’m a little out of the loop, being unaware of the declassification of the Yoo Memo, but even with that, what emptywheel quotes here deserves commentary. What they’re talking about is the F.I.S.A. law that sets up a special court to oversee wiretaps. It says:
… the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance … and the intercept of domestic [communications] may be conducted.
That sounds pretty clear to most of us, yet the government has set up an N.S.A. Domestic Surveillance Program that operates without warrant from the F.I.S.A. Court. So how is that possible within the Law. The Yoo-ism quoted above is presumably how they purport to get around the Law. It says, "Unless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area – which it has not – then the statute must be construed to avoid such a reading." emptywheel uses the word "hackery" to describe this particular Yoo-ism. I would’ve chosen something a bit more fecal. He’s saying that "exclusive" [which to me means "only"] isn’t clear enough. I suppose the Law would have to be written, "the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance … and the intercept of domestic [communications] may be conducted – including restricting presidential authority to conduct warrantless searches in the national security area."
Sound familiar? This is the Unitary Executive, Imperial Presidency, Absolute Power malarkey that they’ve been so enthralled with in every area of their reign – unlimited presidential powers, signing statements, executive priviledge, war powers, etc. It’s a made-up thing, conceived by David Addington, presumably – put into practice by John Yoo, secretly – bearing no real relationship to anything I know of except their own megalomaniacal fantasies. No wonder they want to keep the Office of Legal Counsel opinions secret.
ex·clu·sive [ik-skloo-siv, -ziv]
– adjective
- not admitting of something else; incompatible: mutually exclusive plans of action.
- omitting from consideration or account (often fol. by of): a profit of ten percent, exclusive of taxes.
- limited to the object or objects designated: exclusive attention to business.
- shutting out all others from a part or share:
Isn’ there anything like the bar association or something that that decides when a lawyer is committing crimes against the constitution or our country with lawyer trickery? I really don’t know. Id like to ask John Dean those questions. Yoo is teaching many young students about the law. I wonder if he teaches them to get around the law too. He makes me very angry. He is what you would call an enabler.
[…] to be written to block the President’s ability to ignore the Law [in Yoo’s estimation]. I said: What they’re talking about is the F.I.S.A. law that sets up a special court to oversee […]