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Context of 'February 23, 2008: Wiretaps Resuming ‘For the Time Being’'

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John Yoo, the Justice Department’s (DOJ) Office of Legal Counsel (OLC) deputy assistant attorney general, sends a classified memo to Attorney General John Ashcroft justifying warrantless surveillance of US persons. The National Security Agency (NSA)‘s domestic surveillance authorized by President Bush (see October 4, 2001, Early 2002, and December 15, 2005) will come to be publicly referred to as the President’s Surveillance Program (PSP). This is not the first Yoo memo supporting warrantless surveillance (see September 25, 2001), but a 2009 report on the PSP jointly issued by the inspectors general (IGs) of the Department of Defense (DOD), DOJ, CIA, National Security Agency (NSA), and Office of the Director of National Intelligence (ODNI) will refer to it as “[t]he first OLC opinion directly supporting the legality of the PSP.” The IGs’ report will quote from and comment on the memo, noting that “deficiencies in Yoo’s memorandum identified by his successors in the Office of Legal Counsel and the Office of the Deputy Attorney General later became critical to DOJ’s decision to reassess the legality of the program in 2003.” According to the IGs’ report, Yoo asserts that warrantless surveillance is constitutional as long as it is “reasonable” under the Fourth Amendment, which only protects against “unreasonable searches and siezures.” On this point, the IGs’ report will note that Yoo’s successors were troubled by his failure to discuss the Supreme Court’s decision in Youngstown Sheet & Tube Co. v. Sawyer (1952), which found the president’s wartime authority to be limited. His memo does acknowledge that the Foreign Intelligence Surveillance Act (FISA) “purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,” but asserts that it is only a “safe harbor for electronic surveillance” because it cannot “restrict the president’s ability to engage in warrantless searches that protect the national security.” Yoo also writes that Congress has not “made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area.” The IGs’ report will state that Yoo’s successors considered this problematic because Yoo has omitted discussion of the fact that FISA explicitly authorizes the president to conduct warrantless surveillance during the first 15 days following a declaration of war by Congress, which they considered an expression of Congress’s intent to restrict warrantless surveillance to a limited period of time and specific circumstances. The IGs’ report will also state that Yoo’s memo discusses “the legal rationale for Other Intelligence Activities authorized as part of the PSP,” and that Yoo concludes, “[W]e do not believe that Congress may restrict the president’s inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack.” The IGs’ report will say that “Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” and that Yoo’s successors considered his discussion of these other activities to be “insufficient and presenting a serious impediment to recertification of the program as to form and legality.” [Inspectors General, 7/10/2009, pp. pp. 11-13]
Memo's Existence Revealed by ACLU Lawsuit - On December 15, 2005, the New York Times will report that Bush authorized an NSA warrantless domestic surveillance program after the 9/11 attacks (see December 15, 2005). The American Civil Liberties Union (ACLU) will request records pertaining to the program under the Freedom of Information Act (FOIA) and then sue the Justice Department for the release of records. The existence of Yoo’s November 2 memo will first be revealed in an October 19, 2007 deposition filed by then head of the OLC Steven Bradbury in response to the ACLU lawsuit, which says that it “[concerns] the legality of certain communications intelligence activities.” After the 2009 release of the IGs’ report the ACLU will notify the court and the government will agree to reprocess four OLC memos, including Yoo’s November 2 memo. This memo and a May 6, 2004 memo by Yoo’s OLC successor Jack Goldsmith that disputes many of Yoo’s conclusions will be released in heavily redacted form on March 18, 2011. [ACLU.org, 2/7/2006; United States District Court of DC, 10/19/2007; American Civil Liberties Union, 3/19/2011]
Constitutional Experts Dispute Yoo's Legal Rationale - Numerous authorities on the law will question or reject the legal bases for warrantless domestic surveillance. In 2003, Yoo will leave the OLC. Goldsmith will begin a review of the PSP, after which he will conclude it is probably illegal in some respects and protest, within the executive branch, its continuation (see Late 2003-Early 2004 and December 2003-June 2004). Following the public disclosure of its existence, a January 5, 2006 report by the Congressional Research Service will find it to be of dubious legality (see January 5, 2006). On January 19, 2006, the DOJ will issue a 42-page white paper laying out the legal bases for the program (see January 19, 2006). These bases will be reviewed and rejected by 14 constitutional scholars and former government officials in a joint letter to Congress on February 2, 2006. [al [PDF], 2/2/2006 pdf file] The American Bar Association will adopt a resolution on February 13, 2006 that rejects DOJ’s arguments and calls on Congress to investigate the program. [Delegates, 2/13/2006 pdf file] On August 17, 2006, in the case ACLU v. NSA, US district judge Anna Diggs Taylor will reject the government’s invocation of the “state secrets privilege” and its argument that plaintiffs’ lack standing due to their being unable to prove they were surveilled, and will rule that warrantless surveillance is in violation of “the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth Amendments to the United States Constitution, the FISA, and Title III” (see August 17, 2006). Taylor’s ruling will be overturned on appeal, on the grounds that the plaintiffs lack standing as they cannot prove that surveillance has occurred. In another case, Al Haramain v. Barack Obama, the government will make the same arguments, but US district judge Vaughn Walker will reject these and conclude in 2010 that illegal surveillance occurred (see March 31, 2010). [Al-Haramain v. Obama, 3/31/2010]

Entity Tags: Steven Bradbury, Vaughn Walker, Ronald Dworkin, George W. Bush, John C. Yoo, American Bar Association, Office of Legal Counsel (DOJ), American Civil Liberties Union, John Ashcroft, Anna Diggs Taylor, US Department of Justice

Timeline Tags: Civil Liberties

Retired Lieutenant General Brent Scowcroft leads a presidential panel which proposes that control of the National Security Agency, the National Reconnaissance Office, and the National Imagery and Mapping Agency be transferred from the Department of Defense to the head of the CIA, the director of central intelligence (DCI). The plan is favored by the Congressional 9/11 joint inquiry but opposed by Defense Secretary Donald Rumsfeld and Vice President Dick Cheney. For years experts have argued that the US intelligence community’s 13 disparate agencies—“85 percent of whose assets reside in the Defense Department”—should be consolidated under the head of the CIA. [US News and World Report, 8/12/2002; Washington Post, 8/19/2004]
Intelligence Community Still Focused on Cold War Needs, Scowcroft Finds - Scowcroft, the head of the Foreign Intelligence Advisory Board and a close friend and confidant of former President George H. W. Bush, actually revises a report he began before the 9/11 attacks. The report concludes that the US intelligence apparatus had been designed to meet the needs of the Cold War era and should now be overhauled. The 9/11 attacks are evidence of this, Scowcroft believes. The attacks came from rogue Islamist terrorists, not a superpower like China or the old USSR.
Opposition from Rumsfeld, Cheney - But, as Ron Suskind will write in his 2006 book The One Percent Doctrine, Rumsfeld is “strongly opposed” to Scowcroft’s idea, presumably because, by transferring control of the NSA from the Pentagon to the CIA, it would take power away from him. Scowcroft approaches Cheney with the dilemma. Scowcroft is well aware of Cheney and Rumsfeld’s long political partnership, and gives Cheney an easy out. If his proposals are overly “disruptive,” Scowcroft says, “I’ll just fold my tent and go away. I don’t want to… but I’ll be guided by you.” Cheney now has a choice. Knowing this is a battle Scowcroft will not win, he can either call Scowcroft off now and defuse a potential political conflict within the administration, or, in author Craig Unger’s words, he can “send Scowcroft off on a fool’s errand, pitting Bush 41’s close friend, as Suskind noted, against Bush 43’s cabinet secretary [Rumsfeld], who just happened to be Bush 41’s lifelong nemesis (see September 21, 1974 and After). Cheney chose the latter.” Cheney tells Scowcroft to “go ahead, submit the report to the president.” He knows President Bush will listen to Cheney and Rumsfeld’s advice and ignore the report. Unger later notes, “Scowcroft had once been Cheney’s mentor, his patron. Now the vice president was just humoring him.” [Unger, 2007, pp. 225-226]

Entity Tags: National Security Agency, National Reconnaissance Office, Ron Suskind, Richard (“Dick”) Cheney, George W. Bush, National Imagery and Mapping Agency, Issuetsdeah, Central Intelligence Agency, Brent Scowcroft, Craig Unger, Donald Rumsfeld, George Herbert Walker Bush

Timeline Tags: US Military

The Office of the Director of National Intelligence (ODNI) announces that Intelligence Director John Negroponte has appointed J. Patrick Maher as a new acting mission manager to collect “timely and accurate intelligence” on Cuba and Venezuela. Maher, who will continue to serve his current position as National Intelligence Officer for the Western Hemisphere, is a Latin American specialist and has been with the CIA since 1974. The appointment was made shortly after news surfaced on July 31 that Fidel Castro was in the hospital and that his brother Raul Castro had temporarily taken over. According to a statement released by the ODNI, this task is “critical” because “policy-makers have increasingly focused on the challenges” that the two countries “pose to American foreign policy.” Iran and North Korea are the only other countries for which there are currently mission managers. [Office of the Director of National Intelligence, 8/18/2006; Washington File, 8/21/2006]

Entity Tags: John Negroponte, Office of the Director of National Intelligence, J. Patrick Maher

Timeline Tags: US International Relations, US-Venezuela (1948-2005)

Carl Kropf, chief of media relations for the Office of the Director of National Intelligence, says that Venezuela and Cuba “have deepened their relationship and both countries continue to stifle opposition and constrict democracy.” [Washington File, 8/21/2006]

Entity Tags: Carl Kropf, Office of the Director of National Intelligence

Timeline Tags: US-Venezuela (1948-2005)

The Bush administration says all major US telecommunications firms have agreed to cooperate “for the time being” with US intelligence agencies’ wiretapping, regardless of the recent expiration of the Protect America Act (PAA) (see February 16, 2008). According to a joint statement from the Justice Department and the Office of the Director of National Intelligence, wiretaps will resume under the current law “at least for now.” The statement says in part, “Although our private partners are cooperating for the time being, they have expressed understandable misgivings about doing so in light of the ongoing uncertainty and have indicated they may well discontinue cooperation if the uncertainty persists.” Attorney General Michael Mukasey and Director of National Intelligence Mike McConnell said earlier that intelligence agencies have missed critical intelligence because of the expiration of the PAA, a claim they retracted hours later (see February 23, 2008). [Reuters, 2/23/2008]

Entity Tags: Bush administration (43), US Department of Justice, Protect America Act, Office of the Director of National Intelligence

Timeline Tags: Civil Liberties

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