Our Man in OLC

by publius

As I noted earlier, John Yoo played a starring role in the new IG report (pdf) on the Bush administration’s surveillance program (PSP).  And it wasn’t a flattering one.

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:

Yoo wrote 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.”

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):

[T]he Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.

“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):

Bradbury stated that [Yoo’s] proposition “is problematic and questionable, given FISA’s express references to the President’s authority” and is “not supported by convincing reasoning.”

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):

[The DOJ OIG found that] Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities.  Yoo’s factual discussion . . . was later identified by his successors . . . as insufficient[.]

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.

There’s a lot more to talk about in the IG Report, but I’ll stop there and just send you to Spencer and Marcy Wheeler for the rest.

Comments

[dmbeaster]

The whole point of the Yoo legal opinion was to create intentionally the argument that executive branch personnel were relying on legal opinions indicating that their activity was lawful, and thereby avoid prosecution. It is the same intentional charade used to dodge culpability for torture, and it is a phony act done with the express purpose of creating this bad faith and fig leaf defense.

Yoo is a disgrace and should be disbarred and also dismissed from Cal's faculty. The fact that he still gets space on editorial pages to spew his crap is amazing and sickening.

[efgoldman]

Question (not a suggestion, because I am not a lawyer and don't play one on TV):
Can a citizen, or another attorney, or a group (ACLU comes to mind) file a complaint against an attorney (Yoo) with the California bar?
Just asking.

[Anderson]

Okay, but I'm still waiting for the "worse than I thought" part ....

[Johnny Canuck]

What effect has the Yoo saga had on the reputation of the Law School which employs him?

[Anderson]

Can a citizen, or another attorney, or a group (ACLU comes to mind) file a complaint against an attorney (Yoo) with the California bar?

Yoo isn't a member of the CA bar, so no. A complaint was filed w/ the PA bar, but they basically shrugged it off on the "these things are being investigated elsewhere" basis, IIRC. Where's Ugh? He knows all about that.

There was also a statute of limitations problem re: the PA bar, I think, though stuff like today's revelations would be covered by the "discovery rule," which means the SOL doesn't begin to run until a reasonable person would be on notice of the wrongdoing.

[Nate W.]

And we haven’t even discussed Youngstown, which he also completely -- and amazingly -- ignored).

I'm not surprised at all. When Yoo spoke at a forum when I was at law school, I explicitly asked him about Youngstown. He replied that Justice Jackson's opinion was so vague as to be totally meaningless. I have never met someone quite so intellectually dishonest as Prof. Yoo.

[Hartmut]

But, but, there was no declaration of war, so that limitation obviously does not apply. And each new act of eavesdropping would start the clock anew anyway, so only if the phone call lasted more than 15 days uninterrupted there would be a need to ask the FISA court. Don't you understand basic NatSec logic?

[liberal japonicus]

I'm wondering what happens concerning Yoo and Berkeley, as he took a visiting prof prof slot at a new uni in Orange County, so I assume he will be going back to Boalt Hall in September. This article starts off from Brad DeLong's discussion on his blog and gives a range of opinions.

[Redhand]

The didn't call him "Mr. Yes" for nothing. I don't think there is anything they (Cheney, Addington) would have asked that he wouldn't have signed off on.

For this reason, it's almost a moot point how poor his legal reasoning was. Just wrap your mind around the core concept that he would say "yes" to anything and it all starts to make "sense."

[Anderson]

He replied that Justice Jackson's opinion was so vague as to be totally meaningless.

Maybe he just sees a big inkblot there, like Bork looking at the Ninth Amendment.

[russell]

"Maybe he just sees a big inkblot there, like Bork looking at the Ninth Amendment."

Maybe he's a venal, mendacious, power-worshipping weasel.

You know, Occam and all that.

Marty, apologies in advance if I've offended your sensibilities with my rude language. But sometimes you really do have to call things by their proper names.

[byrningman]

I wonder how ignorant all these other people, such as Bybee, really were about Yoo's activities. Picking a relatively junior person to work solo and "in secret" on something so politically dangerous is standard bureaucratic practice. It seems to me that Yoo has always been the patsy, and like most patsies he flattered himself that he was being admitted to the inner circle.

[russell]

"It seems to me that Yoo has always been the patsy, and like most patsies he flattered himself that he was being admitted to the inner circle."

Tough luck for him.

[Bernard Yomtov]

It seems to me that Yoo has always been the patsy, and like most patsies he flattered himself that he was being admitted to the inner circle.

Well, Wilmer, I'm sorry indeed to lose you, but I want you to know I couldn't be fonder of you if you were my own son. Well, if you lose a son, it's possible to get another. There's only one Maltese falcon.