A sweeping investigation into the Bush administration's domestic surveillance program has concluded that former Justice Department attorney John Yoo provided the White House with retroactive legal cover for covert intelligence activities and that the legal opinion he drafted authorizing the program failed to cite an historic Supreme Court case on the "distribution of government powers."
A 38-page declassified report prepared by inspectors general of the CIA, National Security Agency, Department of Justice, the Department of Defense, and the Office of National Intelligence released Friday said that the first legal opinion "explicitly addressing the legality of the [President's Surveillance Program] was not drafted [by Yoo] until [Nov. 2, 2001] after the program had been formally authorized by President Bush in October 2001" by executive order.
The President's Surveillance Program (PSP) was far more expansive than the Terrorist Surveillance Program (TSP), the report said, while the TSP allowed the NSA to spy on Americans' telephone calls without a warrant. The PSP went much further and remains classified and Yoo worked directly with White House officials on the PSP as he was the only official in the Justice Department's Office of Legal Counsel who was aware of the program.
But Yoo's Nov. 2, 2001 memo "focused almost exclusively on the activity that [Bush] later publicly confirmed as the Terrorist Surveillance Program," the report said. But it also supported the legality of intelligence collection activities covered under the PSP.
In September and October of 2001 Yoo, now a UC Berkeley law professor, "prepared several preliminary opinions relating to hypothetical random domestic electronic surveillance activities..."
Although the report does not go into details about the "hypothetical" scenarios, an investigation based on previously released government documents showed that 11 days after 9/11 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 came up with a number of different scenarios. He suggested shooting down a jetliner hijacked by terrorists; setting up military checkpoints inside a U.S. city; implementing surveillance methods far more superior than those available to law enforcement; or using 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," says a copy of the little known Sept. 21, 2001 memo.
The Sept. 21, 2001 memo was drafted in response to a question posed by Timothy E. Flanigan, the former deputy White House counsel, who wanted to know "the legality of the use of military force to prevent or deter terrorist activity inside the United States,'' according to a copy of Flanigan's memo.
Yoo wrote that his ideas would likely be seen as violating the Fourth Amendment. But he said the terrorist attacks on 9/11 and the prospect that future attacks would require the military to be deployed inside the U.S. meant President Bush would "be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."
"We think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection," Yoo's memo stated.
Yoo also wrote in the Sept. 21, 2001 memo that domestic surveillance activities, such as monitoring telephone calls and without a court's permission, might be proper notwithstanding the ban in the Fourth Amendment on unreasonable searches and seizures.
Early references to the surveillance program were also included in a 37-page legal opinion Yoo wrote that was one of nine the Obama administration released in April. That memo, titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States," concluded "that the Fourth Amendment had no application to domestic military operations."
Yoo based his opinion on the 1990 drug case US v. Verdugo-Urquidez in which the Supreme Court refused to hear a lawsuit brought against the United States by a Mexican citizen whose home was searched by federal agents without a search warrant.
In rejecting the Fourth Amendment claim, the High Court said aliens could not claim the benefit of the Constitution for conduct outside the United States-such aliens were not part of the "we the people" who benefited from the Fourth Amendment.
Further, the Supreme Court found that allowing such claims would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries, not just in drug cases...but in the use of armed forces abroad "for the protection of American citizens or national security."