1 Boring Old Man

Why We Endorsed Warrantless Wiretaps
The inspectors general report ignores history and plays politics with the law.
Wall Street Journal
By JOHN YOO
07/16/2009

It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al Qaeda’s inner workings, could not detect its operatives’ entry into the country, nor predict where it might strike next.

Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden’s Afghanistan headquarters. What better way of detecting follow-up attacks? And what president — of either political party — wouldn’t immediately order the NSA to start, so as to find and stop the attackers?

Evidently, none of the inspectors general of the five leading national security agencies would approve. In a report issued last week, they suggested that President George W. Bush might have violated the 1978 Foreign Intelligence Surveillance Act (FISA) by ordering the interception of international communications of terrorists without a judicial warrant. The report also suggests that "other" intelligence measures — still classified only because they are yet to be reported on the front page of the New York Times — similarly lacked approval from other branches of government.

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. As the 9/11 Commission found, FISA’s wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government’s failure to prevent the 9/11 attacks.

Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do…

blah, blah, blah…

John Yoo’s editorial in the Wall Street Journal this morning explains to us why the F.I.S.A. Law was a problem for President Bush after 9/11, and explains the rationale for President Bush’s policy in some detail. Even Yoo’s op-ed title points out his importance in setting out the policy the President chose to follow [in secret]: Why We Endorsed Warrantless Wiretaps.

But, according to the DoJ Web Site, the Office of Legal Counsel is described as follows:

So, like John Yoo’s previous op-ed writings, he explains the rationale for Bush’s decisions, policy decisions, from his perspective as a former Assistant Attorney in the Office of Legal Counsel. His arguments are always defenses of Bush’s actions [based on his memos]. They are hardly the arguments of a Lawyer interpreting the Law or giving Legal advice. He seems like a reasonably smart guy, so surely it occurs to him that he’s operating way outside the charge of the Department of Justice – upholding the Law. The very form of his op-ed title [We] and his policy arguments make it clear that he didn’t understand his job description and should have been dismissed, or maybe moved into the White House as a Policy maker. Perhaps he didn’t read his job description on the DoJ site.