Who are Yoo? Who who, who who? (UPDATED TO ADDRESS THE “UNITARY EXECUTIVE THEORY” CANARD NOW MAKING THE ROUNDS ON THE LEFT AND IN SOME CIVIL LIBERTIES ABSOLUTISTS CIRCLES)
Though to listen to many on the left, John Yoo was never so much “deputy assistant attorney general” under President Bush from 2001-2003 as he was a crazed proto-totalitarian race traitor (who, when he wasn’t butchering the constitution, was sitting naked on the lap of the Lincoln Memorial fetishizing executive power), the legal case he lays out briefly to the WSJ’s Paul Gigot on the “Journal Editor Report” for authorization of the NSA’s “domestic spying” is worth rehearsing, if only so that supporters or the program—or those still keeping an open mind—can prepare themselves for the counterattacks by Glenn Greenwald (who will be commenting on the questioning of AG Gonzales, beginning Feb 6), MK, Anonymous Liberal, and others—all of whom, from my experience reviewing their arguments here, seem most interested in finding perceived inconsistencies concerning the administration of the program offered in often extemporaneous public statements by a host of officials with varying degrees of legal expertise than they do actually deciding—based on what we actually know of how the program has functioned—on the program’s legality or constitutional pretext to inherent authority.
What follows is the transcript of the interview:
Gigot: The critics of the president’s wiretapping program make a simple case. They say a 1978 law required court approval for these kinds of wiretaps. In this case, the president didn’t go to that court to get approval; therefore, what he does is illegal. What’s wrong with that argument?
Yoo: There are two different arguments that the administration is relying on. First, the most robust version of it is that the president is the commander in chief. And as the commander in chief, under the Constitution, he has the responsibility and the duty to respond to an attack on the United States, which we saw on 9/11. We saw it in New York City. And that power has to include the ability to respond with force against al Qaeda and other threats to the United States, including those that will produce a direct attack like the kind we saw on 9/11. Now, that power to use force has ancillary powers, or related powers. One would be the power to detain enemy combatants, which the Supreme Court upheld two years ago. Another related power, and in some ways maybe an even more important power, is to gain intelligence on the members of the enemy so you can use force in the best way possible. And presidents have traditionally, since at least Franklin Roosevelt on, have always used that authority to intercept the communications of members of the enemy, including intercepting–
Gigot: But why, in this case, couldn’t he just have gone to the FISA court and asked the court, OK, give—say, “Here’s the probable cause for an al Qaeda member overseas. We want to listen in.” Why couldn’t he have gone to the court?
Yoo: Well, I can’t talk about the specifics of the program, what the program exactly requires, because it’s still classified. But I can say that the FISA statute isn’t really suited to the challenge posed by al Qaeda. The FISA statute was written, as you said, in 1978. It was designed to allow us to surveil Soviet spies working at the embassy in Washington or the U.N. headquarters, who were contacting Americans. And it was written for a time of rotary telephones, when there was no email. And it was written for that kind of period. It wasn’t written to anticipate this kind of far-flung network, where members of al Qaeda could be citizens of many different countries and they’re using email, phones to call each other.
And so, just to give you some examples where FISA doesn’t quite fit, one is what happens when you’re in a world where people can change their email addresses every minute? And so that our people, who are out in cyberspace trying to find them, have to keep moving quickly to keep on their trail. Do we want our agents to have to continuously got back to the FISA court every time that happens?
Or what happens when members of al Qaeda, who we know watch our government and watch what we do and watch our political system, what happens if they know about FISA and so they realize that, in order to surveil a U.S. person, which is anyone basically in the United States who’s a citizen or a resident alien, they know that you have to get to a FISA court to get a warrant? Suppose they just started including random Americans, you know, in their coded emails. So if Osama bin Laden wanted to send an email to his second in command, Dr. Zawahiri, suppose he just cc’d some random person who appeared to be an American?
Gigot: So it’s the speed of these communications in this world. But let’s say Congress still objects here. What recourse do they have politically to be able to stop this? Do they have–can they sue? Can there be a legal way to stop this? Or does Congress have to pass legislation?
Yoo: Well, I think the Congress has a lot of checks. I don’t think the primary check is going to be by going to the courts. There is, I think, two lawsuits that were just filed against the NSA program. But I think they’re going to fail, because you need to show standing, which means that you have to show that the plaintiffs in those cases actually suffered a harm or were actually surveilled by this program. And they don’t appear to have anyone who knows or can show that that happened. Similarly, a single member of Congress isn’t going to be able to go, I think, to a court and try to stop the program. But Congress can do lots of things. Congress can cut off funding for this program if it wants to. It can reduce the NSA. It can hold up appointments. It can exercise its oversight authority as it’s going to do. Congress can use all the traditional methods it uses to control other aspects of, you know, the giant bureaucracy and administrative state.
Gigot: It sounds like what you’re saying is it’s more than a legal fight. This is really a fight–a political fight and a fight between the branches and between political actors.
Yoo: I think that’s right. I think this is a real struggle between the president and Congress and foreign affairs and national security. And that’s the way the Constitution was designed. It was designed to give both the president and Congress different powers that overlap sometimes and make it conflict, if they want it to, to try to frustrate each other. But it also allows them to cooperate when they agree. I might add that, you know, Congress hasn’t done any of the things we’ve talked about to try to block the NSA program yet.
Very quickly: Firstly, for good or ill (many of those on the progressive left and civil libertarian absolutists will conclude it’s for ill), the case Yoo lays out roughly matches the case I’ve been making all along—and which some of my critics have been denying that I have reason to make: specifically, that the Executive authorization for the program draws its authority from both the President’s inherent authority Art II, and secondly that AUMF, granted by Congress, renders certain FISA prohibitions / checks statutorily impotent, as the AUMF acts as a legal exemption (the overriding resolution) to FISA’s authority in times of war (as was part of its legislative design)—a position held by the FISA review court, who noted as much in plain language:
We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the PresidentÃ¢â‚¬â„¢s constitutional power.
Secondly, what we are witnessing is not so much an actual legal battle—though the show being put on by opponents of the program are using all the trappings to lend their complaints an air of forced gravitas – as it is a battle over separation of powers, with the now highly partisan liberal-left minority leadership, taking advantage of an illegal (and certainly punishable) leak of highly classified information disseminated through the NYT to try to tie what they know to be a perfectly legally and constitutionally defensible program, upon which they rely on worst-case hypotheticals to hit their scare points, into their 2006-2008 official narrative that the Republicans are engaging in a “culture of corruption,” the crowning action to which is Bush’s Nixonian-decision to “spy” on “ordinary Americans.”
This is, of course, a load of crap, which is why—as Yoo points out in the interview, and as I and others have pointed out on numerous occasion—we hear many protests from legislative critics, but almost no calls to end the program, an eventuality that President continues to highlight, rightly, by maintaining (in complete defiance of the media, progressive, an civil-libertarian hysterics) that he will go right on authorizing the program.
Instead, we get showy law suits and FOA requests from the ACLU that the organization knows are bound to be tossed out, a) because such classified info doesn’t obtain under FOA, and; b) as Yoo and others point out, the law suit filed against the NSA program has no standing.
Finally, the specifics of the technology involved, those in the know continue to make clear to those reading between the line, simply cannot work within the old FISA system. Had the President gone to the full Congress to try to address the issues, there is no doubt he would have been met with a few grandstanding opposition legislators who could have either held up or jeopardized the program by providing clues to its functionality; instead, the President relied on his AUMF authority—under both Article II and the FISA exemption—to institute the program after having it legally vetted by DoJ, NSA counsel, DoD, and then taking it for (appropriately) limited Congressional oversight, as well as running it through the FISA review court.
Continued protestations against the case—particularly those that pretend to rely on hypothetical scenarios that have been repeatedly professed as inapposite, in this case—should therefore been seen for what they are: either a fidelity to finding and exploiting potential tensions in legal language between the Congressional FISA statute and the President’s constitutional mandate (tensions that never meant to weaken national security, I think it safe to assume); or else a disingenuous desire to use the current highly partisan political ethos to affect a legislative power grab while adding ever new editorial layers (presented as “fact”) to this narrative of Republican corruption.
The obvious rejoinder to this rhetorical ploy—and the one that I believe the administration has been playing beautifully—is to treat this for what it is: an obvious gambit that, when reframed properly, has liberal Democrats and their media cohorts looking far more desirous of trapping the President in some strained illegality (and even then, to do so they are forced more and more to rely on hypothetical scenarios, or implausible instance of abuse that suffer from having very little information about how the program actually operates) than in protecting the country against terrorists.
They can scream and protest all they want that such a reframing questions their patriotism—and that real patriotism involves a kind of neo-Watergate press out actively investigated Executive malfeasance—but making that narrative fly [which, ironically, requires more and more a strange projection of this sinister media manipulation project onto conservatives] relies on a public trust that he press is interested in covering the news and not actively out trying to make it. Similarly, it relies on the public’s trust that such investigation is done evenhandedly—and no one with a shred of intellectual honesty would say that the current configuration of our (rather lazy, it seems to me) legacy media is interested in evenhandedness when “advocacy” and an “adversarial stance” are now their preferred methods of self description (even as they continue to cleave to “objectivity” for their claim to an informational moral highground).
(Thanks to Terry Hastings)
update: With thanks to Jamie, here’s a Vanderbilt Law Journal article addressing the topic of the “unitary” executive—which is simply a fraught way of noting how executive power is given Constitutional precedence under certain conditions. Here’s the nut:
Just as we found in each of the preceding periods, we conclude that every president between 1945 and 2001 defended the unitariness of the executive branch with sufficient ardor to rebuff any claims that institutions such as independent counsels and independent agencies have been foreclosed as a matter of history. From Harry TrumanÃ¢â‚¬â„¢s removal of General Douglas MacArthur to Bill ClintonÃ¢â‚¬â„¢s removal of each president during in[sic] this period has proved to be a vigorous defender of the unitary executive.
The story of the rise and fall of both the Tenure of Office Act and the Ethics in Government Act are eerily similar and stand as stark reminders of the dangers that can occur when the power to execute the law is placed outside of presidential control.
(My previous posts on the subject are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here, and they contain comprehensive sourcing).