Article: Yoo Gave Bush White House Retroactive Legal Cover to Spy on Americans

Publicly, President Bush and then Attorney General Alberto Gonzales had said at the time the domestic spying activities were revealed in December 2005 the administration circumvented the FISA court because the approval process was too "cumbersome."

In a December 22, 2005 letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "President determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."

The report also said Yoo's opinion authorizing the Bush administration to circumvent the FISA court jeopardized the the Justice Department's relationship with the court.

Indeed, in December 2005, after the New York Times exposed the existence of the domestic surveillance program, US District Court Judge James Robertson sent a letter to Chief Justice John G. Roberts Jr., notifying him of his resignation from the FISA court.

Robertson, who was appointed to the Federal Intelligence Surveillance Court by the late Chief Justice William H. Rehnquist, told colleagues that President Bush's unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.

Yoo's Nov. 2, 2001 legal opinion said FISA "cannot restrict the President's ability to engage in warrantless searches that protect the national security."

"According to Yoo," the report said, "the ultimate test of whether government may engage in warrantless electronic surveillance activities is whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA."

Yoo added that "unless Congress made a clear statement in FISA 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."

"Yoo's analysis of this point would later raise serious concerns for other officials in [the Office of Legal Counsel] and the Office of the Deputy Attorney General [headed at the time by James Comey] in late 2003 and 2004," the report said. "Among other concerns, Yoo did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war."

Yoo's successors in [the Office of Legal Counsel] criticized this omission in Yoo's memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government's authority to conduct electronic surveillance during wartime."

The report noted that with the release earlier this year on the nine Justice Department opinions on torture and domestic surveillance, one stated that the legal analysis Yoo provided the White House in this area "is problematic and questionable, given FISA's express references to the President's authority" and is "not supported by convincing reasoning."

Last Updated on Saturday, 11 July 2009 08:13

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