OpEdNews - Page 2 of Article: Yoo Gave Bush White House Retroactive Legal Cover to Spy on Americans

Yoo refers to the case in his 2006 book, War by Other Means: An Insider's Account of the War on Terror, where he argues in more than 23 pages about the various legal reasons local and federal law enforcement agencies, as well as a sitting U.S. president, could ignore the Fourth Amendment.

"If Al-Qaeda organizes missions within the United States, our surveillance simply cannot be limited to law enforcement," Yoo wrote in his book. "The Fourth Amendment's warrant requirement should not apply, because it is concerned with regulating searches, not with military attacks."

The inspectors general report said Yoo's legal theories were deeply flawed. The report added that 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."

"Justice Jackson's analysis of President [Harry] 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 opinion's on the legality of the" President's Surveillance Program.

The 1952 Supreme Court case that addressed Truman's order to seize steel mills that had been shut down in a labor dispute during the Korean War. Truman believed the strike threatened national defense and thus he could act under his Article II powers in the Constitution.

Yoo's failure to cite the Youngstown case is said to also be a factor in a critical report on the legal advice Yoo and other attorneys in the Office of Legal Counsel provided the White House with regard to torture. That report was prepared by the Justice Department's Office of Professional Responsibility and reportedly going to be released sometime in the summer.

Though Yoo refused to be interviewed by the inspectors general, he did offer up a defense of his failure to cite Youngstown in his book. Yoo wrote, "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 added, "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. " ¦"

Patrick Leahy, the Democratic chairman of the Senate Judiciary Committee, renewed his calls for a bipartisan "truth commission" after the report was released Friday.

"This report underscores why we should move forward with a nonpartisan Commission of Inquiry," Leahy said. "Without a thorough, independent review of decisions that run counter to our laws and treaties, we cannot ensure that these same mistakes are not repeated. Such a Commission must have bipartisan support to be able to truly get to the bottom of these issues with objectivity and credibility."

Leahy's counterpart in the House, Rep. John Conyers, who also has been pushing for investigations and has called on Attorney General Eric Holder to appoint a special prosecutor to investigate Bush-era abuses, said the report showed that Bush "broke the law" by "personally authorizing the warrantless surveillance program" and that his actions "may have been impeachable."

Conyers thwarted efforts last year by Rep. Dennis Kucinich, D-Ohio, to hold impeachment hearings against Bush.

"This report, mandated by Congress last year, documents what many of us in Congress concluded long ago: President Bush's warrantless surveillance program was illegal from the beginning, and of questionable value," Conyers said. "It clearly violated the Foreign Intelligence Surveillance Act (FISA), which regulates domestic surveillance for intelligence purposes, and was based on legal analysis that was "factually flawed. President Bush personally approved of this program which may have been impeachable conduct.

"The refusal of key Bush administration officials such as David Addington and John Yoo to cooperate with the IGs' review underscores the need for an independent commission with subpoena power to further review these issues, as I have called for."

The Foreign Intelligence Surveillance Act was enacted by Congress in 1978 after lawmakers discovered widespread abuses by the Nixon administration involving covert activities against American citizens.

An investigation by Congress at the time, found widespread abuses by the Nixon administration and led lawmakers in 1978 to pass the Foreign Intelligence Surveillance Act to close the loophole in the law the Nixon administration claimed gave him broad powers to conduct domestic surveillance.

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