Yoo Just Don’t Get It


Friend of all things waterfall hat-related, Stein Time contributed the following.

John Yoo recently wrote an op-ed for the Wall Street Journal, titled Why We Endorsed Warrantless Wiretapping, defending the decision to violate the Foreign Intelligence Surveillance Act (FISA) and allow the NSA to intercept the communications of U.S. citizens, regardless of whether there was probable cause.  He employs the same trusted rhetorical devices: doomsday scenarios, fear-mongering, straw-men arguments, selective disclosure of facts, an appeal to patriotism, and quotes from past patriots, like Alexander Hamilton and John Locke.  But something struck me as worthy of pointing out.  The editorial is not a denial of wrongdoing.  Instead, it is a tacit admission that he and others knowingly broke a law they deemed to be “outdated” or, more precisely, inconvenient and prohibitive.  Rather than working to adapt FISA to fit the current geopolitical landscape and the war they claimed it prevented them from waging, the Bush administration, with cover from Yoo, chose to circumvent the law and allow the NSA to illegally wiretap American citizens.  On top of it all, the Inspector Generals’ report purports that the program went to extraordinarily lengths to yield little useful information in the war on terror.  There are enough fallacies in Yoo’s argument to fill a book, but I’ll do my best to take on as many as I can.

FISA was first created in 1978 in reaction to Nixon’s questionable intelligence-gathering practices, employed to spy on political opposition and activist groups.   It called for greater judicial and congressional oversight over domestic intelligence techniques, requiring notification if any of the parties involved were US persons.  Fast forward to 2001, in the wake of 9/11, when the ability of our federal security agencies to protect against terrorist attacks was obviously in question.  In his editorial, Yoo presents this unpleasant hypothetical and pitches the only logical course of action (in his mind):

“Suppose an al Qaeda cell in New York, Chicago or Los Angeles was planning a second attack using small arms, conventional explosives or even biological, chemical or nuclear weapons. Our intelligence and law enforcement agencies faced a near impossible task locating them. Now suppose the National Security Agency (NSA), which collects signals intelligence, threw up a virtual net to intercept all electronic communications leaving and entering Osama bin Laden’s Afghanistan headquarters.”

Here, Yoo conveniently fails to mention that we had actually had the ability to arrest several of the 9/11 hijackers , had greater communciations between our domestic and foreign intelligence agencies been present.  A lack of communication between the CIA and the FBI led to the exposure of a major blind-spot once a foreign surveillance target made their way into the U.S.  The NSA, which is responsible for intercepting, analyzing, and interpreting foreign communications, has no jurisdiction within the United States.  In other words, they can listen to calls coming into the U.S., but not the other way around.  The CIA is responsible for intelligence outside the United States.  The FBI, in contrast, has jurisdiction within the U.S., and can act on intelligence gathered by the NSA, but is limited to domestic operations.  In fact, in the case of the the 9/11 hijackers, two FBI agents were working with the CIA on its Bin Laden team prior to the attack, and were aware of their presence in the U.S.  They were prevented by the CIA from disclosing this information to the FBI, which would’ve resulted in tracking and surveillance of the subjects.  James Bamford, author of The Shadow Factory describes this dynamic:

The CIA had FBI operatives working within their bin Laden unit, but when the FBI operatives found out that one, and possibly two, of the terrorists had visas to the United States, were heading for the United States, the CIA wouldn’t let them tell their headquarters that they were coming. Only the FBI could have put out alerts to stop Khalid al-Mihdhar and Nawaf al-Hazmi if they tried to enter the United States….The CIA was forbidden from operating within the United States, and the FBI didn’t know they were here, so the only way to track the terrorists was if NSA continued to monitor the conversations as they called back to the house in Yemen.

The house in Yemen refers to Al Qaeda’s base of operations prior to 9/11.  This brings me to the straw man argument I alluded to in my introduction:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States.  As the 9/11 Commission found, FISA’s wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government’s failure to prevent the 9/11 attacks.

Actually, the wall to which Mr. Yoo refers was created by the agencies themselves.   Furthermore, the actual metaphorical wall created by FISA was designed to protect the government from illegally listening to the conversation’s of its citizens.  Other countries have employed similar tactics ,but Yoo’s sense of American exceptionalism prevents such a comparison from being made.  Further, isn’t that why the Department of Homeland Security was created; so that there would be greater inter-organizational cooperation?  I freely admit that my security clearance (or lack thereof) limits my understanding the secrets of our national security apparatus, but, in the events leading up to 9/11, the NSA lived up to its nick-name of “Never Say Anything.”  It seems to me that, if we have two complementary security organizations, it makes more sense for them to work in tandem, sharing intelligence and allotting the necessary resources, rather than illegally expanding the jurisdiction of one to overlap and effectively compete with the others.

Regardless of whether or not violating FISA and the fourth amendment were necessary for the protecting the country against terrorism, violated they were.  This leads to another question: what is the point of a constitution, or laws, if there is no incentive to uphold them?  Let’s for a minute assume that the only recourse the U.S. had after 9/11 to prevent another terrorist attack was warrantless wiretapping by the NSA.  If that is the case, the constitution is really not sacrosanct after all, and the founders only gave us a living document that evolves with the times (a point I happen to agree with, though Yoo and David Addington, who keeps a copy of the constitution on his person at all times, would argue the contrary).  More importantly, it means the president of the United States has the power to violate any law he chooses, providing it is in the interest of protecting the nation.  In fact, this is something Yoo fully endorses:

In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency. As John Locke first observed, foreign threats “are much less capable to be directed by antecedent, standing, positive laws.” Legislatures are too slow and their members too numerous to respond effectively to unforeseen situations. Only the executive can act to protect the “security and interest of the public.”

Translation: as long as the case can be made that violating the law is in the interest of national security, it is fine to do so.  Fortunately for President Bush, the subject of your correspondents’ piece, Mr. Yoo, was in charge of making the case.  Yoo’s point seems to be this: it is fine to break the law, as long as we are protecting the country.  If so, he should say so.  Then, we should collectively decide whether that was really the intention of the founders, as Mr. Yoo contends, and accept it, or whether we believe that no one is above the law, and we are bound by law to investigate and potentially prosecute those who break it.  And keep this in mind:

While the Bush administration had defended its program of wiretapping without warrants as a vital tool that saved lives, a new government review released Friday said the program’s effectiveness in fighting terrorism was unclear.

This is not to say that  we should start prosecution of Bush administration officials.  I understand that we were and are at war.  But I do believe it is important to be a nation of laws, and we need to begin a dialogue about what to do with those who violate those laws, no matter who they are and why they thought it was justified.


2 Responses to Yoo Just Don’t Get It

  1. Alexander Bezdek says:

    The language through much of your post seems to argue more that you take issue with the fact that the current intelligence firewalling doesn’t allow agencies to share information gathered through spying rather than actually arguing against its practice.

  2. Alexander Bezdek says:

    Very well-written, though.

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