Yoo’s actions were dishonest and inappropriate on so many different levels that I’m going to try to break them up into three categories: (1) procedural abuses; (2) legal inaccuracies; and (3) factual inaccuracies.
First, procedure. As Ackerman has already noted, Yoo was the only member of OLC who analyzed and knew about the PSP from 2001 to 2003. Notably, his immediate superior – Jay Bybee – didn’t even know Yoo was working on it. The upshot is that the PSP was legally approved in secret by one man – Yoo – without any sort of legal input or peer review from the rest of OLC, including his boss.
The IG Report described this arrangement as “extraordinary and inappropriate” (p.30). Other OLC officials explained that this type of program would generally get a rigorous peer review. Of course, avoiding peer review is exactly why only Yoo was invited. The Addington cabal knew that Yoo would give them exactly what they needed (which was, essentially, a conclusion that the President had unlimited authority).
So that’s the procedural abuse. Next, law.
Yoo’s legal inaccuracies were so egregious and blatant that they surprised even me. Yoo’s basic argument was that FISA didn’t apply to the surveillance program. His reasoning was that the statute lacked a “clear statement” that FISA limited the President’s wartime authority. Here’s the IG Report:
In other words, the statute explicitly enacted to limit executive surveillance authority didn’t clearly limit executive surveillance authority. And as Ackerman notes, the statute is actually extremely clear on this point by using the term “exclusive means.” Here’s 18 U.S.C. 2511(2)(f):
“Exclusive means” is pretty strong language. On top of that, another provision in FISA gives the President a 15-day exemption from seeking FISA warrants following a declaration of war (p.12). The clear implication is that FISA applies even in wartime.
And here’s what future OLC chief Steven Bradury had to say about all this (p.12 n.12):
In short, Yoo started with a conclusion and ignored all law to contrary. It’s not so much his conclusion that is surprising, but the cavalier way he utterly ignored clearly-applicable law. He just pretended like it didn't exist. (And we haven’t even discussed Youngstown, which he also completely -- and amazingly -- ignored). Interestingly enough, these potential problems are precisely why the OLC has things like peer review.
And finally, we have the factual inaccuracies. To back up, there are other aspects of the surveillance program beyond what we actually learned in 2005. According to the IG Report, later OLC officials like Goldsmith thought that Yoo had inaccurately described the facts surrounding these other programs in his legal analysis approving them. Here’s the Report (p.13):
In short, he lied about the program too.
It’s all pretty convenient. Present a false version of the surveillance program. Then conclude that it’s legal by lying about the law. And then hide your analysis from everyone else in the department.
Was Jay Bybee really such a threat to national security that even he couldn’t see the analysis? Of course not. The isolation of Yoo is strong evidence that everyone involved knew precisely how egregiously flawed his analysis was.