Bush administration lawyer defends warrantless wiretapping program

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Bush administration lawyer defends warrantless wiretapping program

July 17, 2009 08:27:00 am

[JURIST] Former US Department of Justice Office of Legal Counsel [official website] lawyer John Yoo [academic profile; JURIST news archive] defended warrantless wiretapping [WSJ report] in an essay published Thursday by the Wall Street Journal [media website]. Yoo was responding to a report [text; JURIST report] released by five government agencies that alleged that the Bush administration's warrantless wiretapping program relied on flawed legal analysis and produced results of questionable effectiveness, possibly in violation of the 1978 Foreign Intelligence Surveillance Act (FISA) [text]. Yoo claims that a "wall between domestic law enforcement and foreign intelligence" created by FISA contributed to the government's failure to prevent the 9/11 attacks. Calling FISA obsolete due to the fact that it was written with the Cold War in mind, Yoo contends that the law was not enacted to address "live war with an international terrorist organization." Since the legislature is too slow to be effective, Yoo argues, only the executive branch can effectively act in emergency circumstances to protect the public. Yoo discussed the supposed shortcomings of FISA:

Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do.

The government report on the wiretapping program points out that Yoo's memorandum regarding the wiretaps do not mention the Supreme Court case of Youngstown Sheet & Tube v. Sawyer [opinion text]. In Youngstown, the Court ruled that President Harry Truman overstepped his presidential authority in ordering the seizure of steel mills shut down by labor disputes during the Korean War. Yoo claims that the case does not address the scope of the president's power over war strategy.

Yoo, a Berkeley School of Law [academic website] professor, has faced much criticism for his role in drafting controversial interrogation memos [JURIST report]. Earlier this week, Yoo declared his intent to appeal [JURIST report] a lower court ruling that allowed a lawsuit filed against him alleging complicity in torture to proceed. Last week, it was reported that US Attorney General Eric Holder [official profile] is still considering appointing a special prosecutor [JURIST report] to investigate allegations of torture during the Bush administration. Several organizations have called for drafters of the memos to be disbarred [JURIST report]. In June, a federal judge dismissed 46 lawsuits [JURIST report] against the telecom industry, upholding provisions of the FISA Amendments Act of 2008 (FISAAA), which gives immunity to telecom companies that assist the National Security Agency (NSA) with warrantless eavesdropping. The FISAAA granted the FISA court authority to review a wider range of wiretapping orders, prohibited the executive branch from overriding the court's authority, and ordered the DOJ and other agencies to issue this latest report on the country's use of wiretapping orders.

Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.