Having the CIA present as grim a terrorism threat as possible -- producing what became known inside the government as the "scary memos" because they were made as scary as possible -- was institutionalized as the PSP continued through periodic reauthorizations by Bush, the report said.
"CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP," the report said. "If either was lacking, an OGC attorney would request that the analysts provide additional threat information or make revision to the draft memoranda."
Once the first threat assessment was in place, the next part of this minuet was performed by John Yoo, a right-wing legal theorist assigned to the Justice Department's powerful Office of Legal Counsel.
"In September and early October 2001, Yoo prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities, but the first OLC opinion explicitly addressing the legality of the PSP was not drafted until after the program had been formally authorized by President Bush in October 2001," the report said.
"The first OLC opinion directly supporting the legality of the PSP was dated November 2, 2001, and was drafted by Yoo," the report said. "Yoo acknowledged that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence,' but opined that "[s]uch a reading of FISA would be an unconstitutional infringement on the President's Article II authorities.'"
Yoo said the law "cannot restrict the President's ability to engage in warrantless searches that protect the national security."
Challenges to Yoo
The report noted that after Yoo's departure from government in 2003, other Justice Department lawyers challenged Yoo's legal scholarship, noting for instance that he had ignored one of the key Supreme Court rulings on presidential authority, the repudiation of President Harry Truman's decision to nationalize the steel industry during the Korean War.
Yoo "omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, a leading case on the distribution of government powers between the Executive and Legislative Branches," the report said.
"Justice [Robert] Jackson's analysis of President Truman's Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC's subsequent reevaluation of Yoo's opinions," the report said.
Though Yoo -- now a University of California at Berkeley law professor -- refused to be interviewed by the inspectors general, he defended his failure to cite Youngstown in his 2006 book, War by Other Means.
"We didn't cite Jackson's individual views in Youngstown because earlier OLC opinions, reaching across several administrations, had concluded that it had no application to the President's conduct of foreign affairs and national security," Yoo wrote, adding:
"Youngstown reached the outcome it did because the Constitution clearly gives Congress, not the President, the exclusive power to make law concerning labor disputes. It does not address the scope of Commander-in-Chief power involving military strategy or intelligence tactics in war."
Just days after the 9/11 attacks, Yoo drafted a 20-page memorandum that offered up theories on how the Bush administration could sidestep Fourth Amendment protections against unreasonable searches and seizures in the event the U.S. military used "deadly force in a manner that endangered the lives of United States citizens."
Yoo suggested some scenarios, such as the need to shoot down a jetliner hijacked by terrorists; to set up military checkpoints inside a U.S. city; to implement surveillance methods far superior to those available to law enforcement; or to use military forces "to raid or attack dwellings where terrorists were thought to be, despite risks that third parties could be killed or injured by exchanges of fire," according to Yoo's memo of Sept. 21, 2001.
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