2002 Legal Rationale For Warrantless Surveillance: Because The President Can Do It, Shut Up

from the how-is-john-yoo-not-in-jail? dept

Oh, John Yoo. The former top Bush administration lawyer — who is already well-known for writing that administration’s (totally bullshit) “legal defense” for torture — has also been an outspoken advocate for NSA surveillance as well. Soon after the Snowden revelations, Yoo defended the NSA arguing that the 4th Amendment shouldn’t apply to the NSA because it takes too long. Then, he said that judges shouldn’t be allowed to determine if the NSA violated the 4th Amendment because they’re too out of touch with the American public. It’s long been known that Yoo also was deeply involved in creating the legal justifications for that very warrantless surveillance program he’s been defending, and now, finally, years later, the Office of the Director of National Intelligence has released the May 17, 2002 letter that Yoo sent to the FISA Court chief judge Colleen Kollar-Kotelly. You can read it here.

As the ODNI release notes, Judge Kollar-Kotelly was allowed to read the letter, justifying the NSA’s warrantless surveillance on Americans, but “was not authorized to retain a copy or take notes” because nothing says transparency democracy like secret interpretations of the law where no one’s allowed to know the details, and the people overseeing it are only allowed to glance at the justifications. It was the “re-evaluation” of this John Yoo rationalization that created the now infamous hospital room showdown in March of 2004, when some in the administration realized that Yoo was basically full of shit.

Anyway, now the Yoo memo (with plenty of redactions, of course!) has been released, and we can see just how absolutely ridiculous the whole thing was. In short, Yoo argues that even though, historically, the NSA was not allowed to do warrantless surveillance on Americans and the Foreign Intelligence Surveillance Act (FISA) made it clear that domestic surveillance needed to first be approved with warrants to the FISA Court (which is barely a court anyway), there was nothing that said that had to be the case, and the President was basically free to turn the NSA loose to spy on Americans without any FISA approval. First, he notes that the NSA is not technically or legally limited in surveilling Americans, even if it historically avoided doing so:

In short, that says because Congress didn’t explicitly limit the NSA in the same manner as the CIA, that must mean it’s okay for the NSA to spy on Americans. This basically ignores the history and rationale for the NSA, which was entirely secret for much of its early history anyway, and created and run out of the executive branch with little Congressional oversight. Yoo then admits that the driving executive order that enables much of the NSA’s activities — the infamous Executive Order 12333 — does explicitly say that the NSA can only conduct foreign signals intelligence surveillance, but that doesn’t matter, because future Presidents aren’t bound by previous Presidents’ executive orders. He also argues that if the NSA is spying on Americans in order to seek “significant foreign intelligence,” then it’s perfectly fine as well. He then admits, generously, that even though there’s no actual legal restriction (in his mind) on the NSA spying on Americans, that it could “be in tension with FISA” since FISA requires a warrant for domestic surveillance. But fear not, evil legal genius John Yoo has a bullshit way around that as well. He goes through a detailed description of the limits of getting a warrant approved by FISA and bemoans the fact that it wouldn’t be possible to intercept all phone calls from a certain country under FISA.

And here’s where he gets really tricky. He says that FISA is not necessarily a limitation on what kind of surveillance can be done, but merely a safe harbor such that if you follow it you’re automatically presumed safe under the 4th Amendment. However, he insists that FISA cannot limit the President’s constitutional powers, and thus the President can still order warrantless domestic surveillance outside of FISA, and the only issue is that it’s outside of the FISA “safe harbors” — so it may not be automatically presumed in compliance with the 4th Amendment:

From there, he goes on for a while insisting that the President has the Constitutional power to order warrantless surveillance basically whenever he wants, with the only limitation being the 4th Amendment (which we’ll get to). And then he pulls a neat little trick, insisting that the President doesn’t require a warrant for conducting surveillance for national security related purposes (pointing to some caselaw involving questions around due process in espionage cases), and notes that, even better, FISA itself means that “surveillance conducted for national security purposes is not subject to the same Fourth Amendment standards that apply in domestic criminal cases.”

Did you see the neat trick he played there? First, he showed that the President can ignore FISA and Executive Order 12333, and then used FISA (which he already said the President could ignore) to argue that the 4th Amendment standards don’t really apply either. You want to know why lawyers get a bad name for bullshit arguments? Look at John Yoo — and then remember that his bullshit arguments weren’t just around a single case, but to justify spying on all Americans without a warrant (we’ll leave aside the fact that he did the same thing for torture as well).

From there, he actually argues that a court reading FISA to restrict the President would create a constitutional conflict:

This is a pretty fascinating rewriting of history. The whole point of the Foreign Intelligence Surveillance Act was to put limits and oversight on the collection of foreign intelligence information. And here Yoo argues that Congress intended no such thing as the very purpose of the law. That’s kind of astounding.

From there, Yoo then tries to argue that warrantless wiretapping of basically everyone in America also does not violate the 4th Amendment. First, he argues that the 4th Amendment does not apply to non-US persons. Next, he said that communications that leave the US electronically are also no longer subject to the 4th Amendment due to the “border search exception” — an issue that we’ve discussed plenty of times for people who have had their laptops searched as they enter the country. This, apparently, is part of Yoo’s 4th Amendment loophole. Any communications involving Americans that happens to slip outside of US borders loses any 4th Amendment protections. The fact that it’s digital, not physical, makes no difference according to John Yoo’s extremely distorted moral compass. But, he admits that there might be some concerns about the border search theory with regards to the contents of email and phone calls, so he has a trick: how about we just say the 4th Amendment doesn’t apply to the metadata, and we’ll call it even.

Then he uses the infamous Smith v. Maryland case, that established the Third Party Doctrine to argue further that there’s no 4th Amendment issue with sucking up all metadata. We’ve heard this argument many times in court by now. Because this one 1979 ruling, which was about whether or not law enforcement could get the phone records of a single phone from a person that they were tracking for criminal behavior, that means that everyone has given up any expectation of privacy in any metadata they have on any communications record — including email. This also suggests Yoo has no clue how email works. The reason that the phone records were considered legit was because the phone company had to track all of your phone calls for billing reasons, and thus had a “legitimate business purpose” in keeping track of all your phone record metadata. That’s not how email works, but Yoo basically pretends it does:

My ISP doesn’t get access to who I email. Because that’s not how email works.

Next up, Yoo argues that because the Fourth Amendment was really designed to deal with “curbing law enforcement abuses,” it really shouldn’t apply to support for “military operations.” And since the response to 9/11 is really about military operations, the 4th Amendment shouldn’t apply to spying on all Americans because it’s to support that purpose:

Finally, he argues that even if this program were subject to the 4th Amendment, which he doesn’t think it should be, that’s still okay, because snooping on every American’s communications is still “reasonable” under the 4th Amendment… because TERRORISTS!!!!!!! In short, Yoo basically wipes aside anything that protects Americans from mass surveillance, despite the fact that the 4th Amendment was specifically designed to stop “general warrants” that allowed for mass surveillance, and despite the fact that FISA was passed to stop government abuse of surveillance powers. To Yoo, there’s an excuse for basically any kind of government intrusion on our private lives, and even if the laws and Constitution do apply, no problem, you just shout “terrorism” and all is allowed.

This is a really sickening letter. At the very least, it should have been made public at the time it was written so that it could have been debated (and trashed as ridiculous) at the time it was made. Instead, it was done in secret, given to a judge who could only read it and not keep it or take notes, and then wasn’t revealed publicly for almost 14 years. This is not how a democracy is supposed to function.

Filed Under: 4th amendment, colleen kollar-kotelly, email, fisa, john yoo, legal rationale, metadata, nsa, surveillance, warrantless surveillance, warrantless wiretapping