Saturday, July 18, 2009

Knock, Knock. Who's There? Yoo. Yoo Hoo?

At least for now, warrantless wiretapping and interception of electronic transmissions originating in or near Al Qaeda terrorist camps are in limbo. President Obama and his Attorney General are occasionally at odds, then in agreement, then at odds again with Congress over the issue. There is also on-again, off-again talk of investigation and trials for those involved in the program. If the investigations and trials go forward, the subject of this article will probably find himself in the dock as a defendant. He is U C Berkeley Boalt Hall Law Professor John Yoo.

If you've heard the professor's name at all, it's probably in relation to a much more exciting and overplayed topic--his opinions on enhanced interrogation techniques. But except for the possibility of show trials, that issue has pretty much been put to bed. The administration will determine the policy, and that will be it. With or without enhanced interrogation techniques, the war against terrorists goes on, and our ability to prevent attacks is being crippled by political nonsense and legal gibberish revolving around interception of foreign electronic communications.

In the wake of September 11, 2001 the nation realized that our ability to know what we need to know overseas was a mess. Our investigative agencies were forbidden to share information, lest that mystical line between CIA extraterritorially and FBI domestically be crossed. Mainland authorities knew very little about Al Qaeda, and its possible entry onto American soil was knowledge forbidden to be passed on by the CIA to the FBI and other local authorities. Yet knowledge of communication between terrorists in the Middle-East and here was critical. That was tragically demonstrated by the World Trade Center attacks.

FISA (the Foreign Intelligence Surveillance Act of 1978) was a tool of the Cold War. We had clearly-defined enemies, and huge counterintelligence agencies with a nearly one-for-one personnel ratio. For nearly every spy, we had a spy spying on him. The internet scarcely existed, so most communications were by telephone, mail or diplomatic courier. Phone wiretaps were relatively easy to obtain, because the warrant would allege "Boris Badinoff, known KGB agent, is receiving calls from his bosses in Moscow" and a judge would routinely sign the warrant.

Al Qaeda saw the weaknesses in the act, as well as the potential of cell phone and internet communications. They exploited those weaknesses. The enemy was largely unknown, and its operatives nearly impossible to locate or identify.

Immediately after 9/11 the President and his advisors recognized the weaknesses as well. Immediate information was needed about any further pending terrorist attacks, and FISA rules severely limited that ability. What was needed most was the ability to monitor communications from overseas terrorist strongholds to their operatives in the U.S. The requirement of probable cause and identity of the person(s) to be tapped (the domestic FISA standard) rendered the operation nearly impossible. Likewise, building evidence to prove past crimes as the purpose of domestic criminal wiretapping rules is completely irrelevant to monitoring the activities of unknown terrorists receiving instructions from their master overseas.

As a high-ranking member of George Bush's national security advisory group, John Yoo advised that if the agencies were scrupulously cautious about monitoring only those communications coming from the terrorist camps, and specifically Afghanistan and border regions of Pakistan, then they could proceed without violating the FISA rules or the Constitution. They were faced with looking to lengthy and often contradictory FISA rules which did not address the subject directly, since the act had long since become obsolete in terms of the new technology threats facing America after the Cold War. And they were faced with an all-new kind of threat, immediately after a horrible attack on American soil that very few saw coming.

Alexander Hamilton recognized "new dangers" early in the history of the Republic. He argued in the Federalist Papers that the power to protect the nation ought to exist without limitation because "it is impossible to foresee or define the extent and variety of national exigencies." He further argued that "decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man (the executive), in a much more eminent way than the proceedings of any greater number (the Congress and the courts)." This is an early statement of the "unitary executive" concept as it relates to the power of the President to conduct war.

Although cooler heads prevailed in the long run, the power of the President to conduct foreign affairs, particularly war, has remained with the President for overseas action ever since. Domestically, law and the Constitution prohibited the President from exercising this power (particularly the Fourth Amendment), and the power overseas was allowed as a prerogative of conducting a traditional war. September 11 changed all that. Even FISA, designed originally to speed up the process of obtaining warrants in light of speedier communications and capability of a foreign power to strike quickly, did not address the world of instant global communications from sworn enemies of the United States who had no public faces or traditional home countries.

After a honeymoon period of say, two or three days, the mainstream press and the liberal hounds started their march to the tune of "why do they hate us?" and the rhythms of "what did we do to bring this on?" followed by the mantra of "why are people in the government looking at our private communications and listening in on our private telephone calls?" The simple answer is--they're not, unless you're staying in touch with your terrorist friends in Afghanistan and Pakistan, and then only if the communication originated there. Otherwise, your communications are protected by FISA, even though it has had to be much-revised since September 11, 2001.

Once the blood was in the water, the liberal sharks (and some conservative fuddy-duddies) started the "nothing like this has ever been allowed in American history before" litany. Well, in response to a Supreme Court decision forbidding warrantless domestic wiretapping, liberal icon Franklin Roosevelt authorized the FBI before Pearl Harbor to intercept "any communications, domestic or international of persons suspected of subversive activities, including suspected spies." Bush, upon careful advice from Yoo, never went that far.

Based on law, constitutional precedent, and the opinions of every appellate court which addressed the issue, including the FISA appellate court, and in tandem with the provisions of the Patriot Act in 2002, Yoo advised the President that he was free to intercept and investigate any communications from terrorists in Afghanistan and Pakistan which were addressed to persons physically present in the United States. The 2002 FISA court decision included the following clear words: "The President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. FISA cannot encroach on the President's constitutional power."

Five Inspectors General, ignoring everything cited above, have advised President Obama and Attorney General Holder that Professor Yoo was entirely wrong in the advice he gave President Bush, and have stated that they believe the overseas interceptions were both unlawful and unconstitutional. They relied on the rules which have been applied to Presidential power in peacetime, while ignoring the exigent circumstances, and the clear inability of Congress to declare war on a faceless enemy that was nevertheless conducting a war against America. Had Congress been able to declare war, then everything the left is throwing at Professor Yoo and his boss would be completely moot. In fact, it is clear that Yoo erred on the side of caution by advising Bush not to follow FDR's example.

But a political show trial is a political show trial, so facts mean next-to-nothing. In the early going, the pro-investigation, pro-trial forces on the left have singled out Professor Yoo as a particularly juicy target because of the wiretap advice as well as some things he has subsequently suggested about enhanced interrogation (but did not advise Bush on directly).

Even if it never happens, what makes this situation unique is the nature of what might be charged against Yoo. For the first time in modern American history, the President, Congressmen, Senators, and the Attorney General have been seriously considering the investigation and prosecution of a legal advisor to the President for offering legal advice. Even if some court, somewhere, sometime, should decide that Yoo was wrong in his opinion, that has never been grounds for prosecuting the advisor. Think of it this way: If Woo had advised President Bush that overseas wiretaps were illegal and unconstitutional, but that the President should go ahead and do so anyway out of emergency necessity, there might be a case. But exactly the opposite is true, and even the leftists out for Woo's scalp have never claimed otherwise.

Yoo is important only because he is a rather unknown figure outside legal and political circles, and as important as his advice was, it's not clear that he was personally important enough to the fortunes of political types on the right to warrant circling the wagons. They are wrong. In the event that such a thing should happen, the importance of the matter is that the Obama administration will have established the idea that is is perfectly acceptable to put a man on trial solely because he is on the wrong side of the political fence from a triumphalist political party-in-power. That slippery slope could easily lead to the end of two-party government in the United States.

Minor disclaimer: Although Professor Yoo teaches constitutional law at my alma mater, he arrived after I left, I have never met the man, and I have no ties to Boalt Hall other than my Alumni Club membership.

17 comments:

CrisD said...

I can actually FEEL myself getting smarter.

But seriously, your account dovetails perfectly with my recollections of 9/11 and events proceeding.
It make me wonder:
Is it possible that the bad guys are in power?

StanH said...

Great article Lawhawk, and spells out the absurdity of the left. I believe it was Jamie Gorelick that put the wall between the CIA and the FBI in the Clinton Admin. Wherein the two agencies could not share information no matter the danger to Americans. I’ve seen Professor Yoo several times in legal debates on TV he doesn’t strike me as an imbecile that makes Constitutional decisions willy-nilly. The man should be an honored hero, not the mark of an insipid leftist witchhunt. But, Barry and his minions must have villains to detract from the obscene power grab of this administration, and I believe that this will get Mr. Cheney out again for their public defense (if I were Barry I would stay away from this, Cheney made him look like the empty suit that he is.) In the long run this to will come around and bite the left, I just hope that it’s not a terrible attack on Americans.

Writer X said...

I agree with Stan. The more the Left highlights the situtation, the more inept it makes them look and god forbid there's another attack. Yoo deserves a medal of honor.

The more the Left cries "investigation" and "hearings" in the media, the more suspicious the public gets. It's like "who's minding the store?" while all this is going on. The only ones who support it are those people on the fringe. I hope.

BevfromNYC said...

This is wonderful. I want to be clear in my head. What you are saying is basically, that the present Administration and Congress are setting precedent of investigating and possibly prosecuting a person who was asked by the former Administration to render an opinion; not for any action taken, at this point, but just for rendering an written opinion.

Tennessee Jed said...

Hawk, I think this is my favorite post of any of yours I have read. It reinforces my opinion of how these Chicago thugs will stop at nothing to achieve their objectives. This sounds so Sol Alinsky or Josef Stalin it makes one's head swim. Your piece deserves a larger audience.

LawHawkSF said...

CrisD: So much of what the Obama administration has done comes right after I've said to myself, "no, they wouldn't try that, would they?" But what they are contemplating now is something only banana republics do. Win an election, put your opposition on trial for things that aren't even crimes, become the only party in town.

StanH: You are absolutely correct. Jamie Gorelick didn't invent the "wall" between domestic and overseas operations, but she carried it to such an extreme that it became an all-new thing. The wall was sensibly erected by the Truman and Eisenhower administrations with the creation of the CIA to prevent treating American citizens as if they were potential foreign agents. It was never designed to inhibit the various law enforcement and investigation agencies from sharing information necessary to prevent the convergence of foreign enemies and domestic operatives. Yet Gorelick turned a sensible separation of duties into "hear no evil, see no evil, speak no evil."

AndrewPrice said...

Lawhawk, this is a horrible precedent. But that's the kind of precedent the left creates isn't it?

I'm all for oversight and making sure that no one in the government is breaking the law, but this strikes me as a witch hunt. How do you pursue someone who acts as an advisor and not as a decision maker?

What do they think will happen in the future when they call upon their own advisors?

LawHawkSF said...

WriterX: In football, the tactic is called "misdirection." Create a big flurry of apparent activity, get everyone looking in the wrong direction, then do what you're really up to before anyone can stop you. The Obama administration is comprised of masters of misdirection.

Bev: Technically, the action was taken on communications, but it was done immediately after 9/11 and Professor Yoo merely confirmed that the action was legal and constitutional, and advised that it could be ongoing. No formal legal memorandum from either administration has yet cited law to demonstrate that Yoo was anything but absolutely correct, which makes any future investigation or trial all politics, no law.

LawHawkSF said...

Tennessee: Stalin came to mind for me as well, although I think the paranoia is evident more among his advisers than with Obama himself. First, go after your enemies. Then, go after your imagined enemies. Then, go after your potential enemies. Finally, go after your friends who might someday become enemies. The Alinsky parallel, though, works perfectly. Make your opponent look foolish, dangerous, or criminal, and you can push your agenda forward to save the world while recruiting the public to help you.

LawHawkSF said...

Andrew: I'll say one thing. You and I would become butchers, bakers or candlestick makers, because what we do is give advice that people are expected to rely on. As we both know, in every trial there's a winner and a loser, and if every losing attorney was investigated and disbarred after the trial, the legal community would become very small, very quickly. On the other hand, is that such a bad thing? LOL

DCAlleyKat said...

Lawhawk, I think this was one of your best!

DCAlleyKat said...

I found this article authored by none other than John Yoo, and thought I'd post the link here for those interested in doing some further research on the issues Lawhawk brings forth.

I hope this is okay.
www.heritage.org/Research/PublicDiplomacy/fp4.cfm

LawHawkSF said...

DCAlleyKat: Thank you for your high compliment. Professor Yoo is not exactly a household word, and I was hoping to get everyone to understand his possible plight early on. His fellow professors at Boalt Hall have admirably rallied around him despite the fact that most of them are on the "living Constitution," legislate from the bench side of the legal fence.

My noble assistant, Kitty Kelly, thanks you as well.

LawHawkSF said...

DCAlleyKat: I nearly forgot. Links to related articles are always welcome. The article you cited was highlighted in the Cal Alumni magazine in 2006, and it's what originally got me following the good professor's writings. Thanks for the reminder. Yoo also wrote a recent editorial for the Wall Street Journal, which is what triggered my article. Of course the professor is too much of a professional to raise his own defense, so it was my small way of doing that for him.

AndrewPrice said...

DCAlleykat, let me agree with Lawhawk. We always welcome any kind of input -- comments, thoughts, links etc. Someday we may start a forum, but until then, please feel free to say whatever you like in the articles.


Lawhawk, if you start punishing lawyers for giving advice, then you won't get advice, it's that simple. It's already hard enough to get true advice out of lawyers (and accounants) because they're afraid of being sued by the client. No imagine adding the possibility that you will be held responsible for how the client uses your advice? Forget it.

But then, that's a long term effect and the left doesn't think long term.

Mike Kriskey said...

LawHawk, this is somewhat besides the point, but you mentioned possible legal action regarding "enhanced interrogation," so I'll ask this here.

I was wondering what, if any, conflict of interest regulations would apply to Holder and the many other Justice Dept. brass whose firms represent detainees and other terrorists.

LawHawkSF said...

MikeKriskey: That's a very fair question. There are actually two legal strictures relating to Holder and his former firms. Conflict of interest is one, the other is incompatiblity of office. The latter is probably the more significant of the two, but either way Holder's involvement is sleazy. The actual problem is that the larger the firm, the more the attorney can claim he is not directly involved in the conflict or the incompatibility. Hillary pulled the same thing in relation to the Rose Law Firm back during Bill's tenure. "I just worked there, and I had no idea of what they were doing, nor did I have any involvement in the litigation." If Holder or any of his Justice Department deputies are directly involved in the matters before the courts, they should recuse themselves, but the firms themselves are probably on solid ground by staying on the cases. Remember all the fuss the left made during the Bush administration about the "appearance of impropriety?" That seems to have gone down the election rathole with the ascension of the Harvard Law grad.

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