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John Yoo's Dragnet

Jameel Jaffer,
Director, Knight First Amendment Institute
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July 21, 2009

(Cross-posted to and Daily Kos.)In a recent Wall Street Journal piece, former Justice Department lawyer John Yoo defends the Bush administration’s warrantless wiretapping program with the claim that, after the September 2001 terrorist attacks, the government needed the ability to monitor communications to and from Osama bin Laden.It is no surprise that Yoo defends the warrantless wiretapping program; as a lawyer for the Bush administration’s Office of Legal Counsel, he wrote the secret legal memos that professed to supply a basis for it. But Yoo’s public defense of the program obscures what’s really at stake.When the warrantless wiretapping program was inaugurated, there was already a law in place that expressly permitted the government to monitor the communications of suspected terrorists. That law — the Foreign Intelligence Surveillance Act — was enacted by Congress in 1978 and updated several times over the next twenty-three years.The law created a specialized court to oversee government surveillance of suspected spies and terrorists, but the oversight was limited, and in practice the court granted almost every surveillance application that the government submitted. Between 1978 and 2001, the government submitted 13,102 applications and the court approved 13,100.Yoo’s suggestion that the FISA court would not have permitted the government to monitor Osama bin Laden’s communications is wrong. If the government had submitted an application to the FISA court for the surveillance of bin Laden or his associates, the court would have approved the application as a matter of course. In fact, the government could even have commenced the surveillance immediately and approached the court for approval after the fact, because in emergencies FISA allowed the government to begin surveillance unilaterally.The truth is that the warrantless wiretapping program that Yoo defends had little if anything to do with monitoring the communications of people like bin Laden. The point of the program was to eliminate judicial oversight so that the government could monitor the communications of a much broader category of people.In retrospect, we can see that the warrantless wiretapping program was just an intermediate step. Last summer, Congress ratified the Bush administration’s program and extended the government’s surveillance authority even further. Under the new law — called the FISA Amendments Act — the government can conduct warrantless dragnet surveillance of Americans’ international calls and emails. The new law eliminates the probable cause requirement and imposes no meaningful limitations on the government’s authority to retain, analyze, and disseminate the communications that it acquires. For Americans’ international communications, the new law effectively eliminates the right to privacy altogether.The question that Americans need to grapple with is not whether the government should have the authority to monitor Osama bin Laden’s communications. Of course it should, and it’s always had it. The question is whether the government should have the authority to monitor the communications of innocent people. This is what John Yoo is really proposing, and this is what the FISA Amendments Act allows. It allows the government unfettered access to Americans’ international communications without reference to whether they or the people they’re communicating with have done anything wrong.This week a federal court in New York will hear argument in the ACLU’s constitutional challenge to the FISA Amendments Act. In our legal papers, we point out that the Fourth Amendment protects against unreasonable searches and seizures and generally forecloses searches that are not predicated on probable cause. In other words, the Fourth Amendment prohibits the surveillance that the FISA Amendments Act permits.The illegality of the Act, though, is not the only reason Americans should be troubled. A recent report from five Inspectors General examined the Bush administration’s warrantless surveillance program and, in addition to finding it illegal, raised serious questions about the program’s effectiveness.According to the Inspectors General, many of the leads generated by the program were dead ends, and the CIA had trouble identifying instances in which the program had helped it identify terrorists or prevent attacks. (Yoo inveighs against the report in his Journal piece but notably he declined an invitation to be interviewed by the Inspectors General before the report was finalized.)The report of the Inspectors General focuses on the Bush administration’s warrantless wiretapping program, but it should prompt questions about the FISA Amendments Act as well. If there’s little evidence that the Bush administration’s program worked, why extend the government’s surveillance authority even further? If John Yoo’s dragnet was ineffective, what’s the argument for expanding it?

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