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The Obama Administration Has Embraced Legal Theories Even Broader Than John Yoo’s

Big Brother is watching you.
Big Brother is watching you.
Patrick Toomey,
Deputy Director,
ACLU National Security Project
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April 7, 2016

The Justice Department recently released another of the now-notorious Office of Legal Counsel memos written by John Yoo — memos that authorized torture, warrantless wiretapping, and indefinite detention. The new memo, written as a “letter” to then-presiding FISC Judge Colleen Kollar-Kotelly in May 2002, addresses the legal basis for the NSA’s warrantless wiretapping of Americans’ communications under the “Stellar Wind” program.

Unsurprisingly, Yoo’s memo is extremely broad and poorly reasoned — but we knew that much already, thanks to Jack Goldsmith and Jim Comey. Still, it would be a mistake to think of Yoo’s memo as just an historical artifact, full of long-repudiated legal arguments. In fact, many of the arguments Yoo made behind closed doors in 2002 continue to appear in the Obama administration’s briefs defending warrantless surveillance under Section 702 of FISA today. And, in at least one key respect, the Obama administration’s arguments are even broader than the ones that Yoo felt he could justify.

Americans’ Expectation of Privacy in Their International Communications

Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion.

But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad.

On top of that, the government assumes that any communication entering or leaving the country has a foreigner on one end — and thus is eligible for warrantless searching. As the new Brennan Center report makes clear, the implications of this position are especially dire given the global structure of the Internet, where even Americans’ domestic communications may be routed or stored abroad without the parties to those communications even knowing. In short, it is the Obama administration’s view that Americans forfeit the core protection of the Fourth Amendment whenever their private communications cross an international border. And, in today’s globally connected world, that is happening more and more.

Foreign Intelligence Surveillance and the Warrant Requirement

The Obama administration has also followed Yoo in arguing that intelligence agencies may disregard the Fourth Amendment’s warrant requirement simply because they are conducting surveillance for a foreign intelligence purpose. But as Yoo ultimately acknowledged in his memo — and as the Privacy and Civil Liberties Oversight Board observed in its report on Section 702 — no court has ever endorsed such a sweeping exception to the warrant requirement. Instead, courts analyzing this question have limited the exception to surveillance of foreign powers and their agents (in addition to recognizing other requirements). That is a far cry from the warrantless surveillance the government is conducting under Section 702, which can be used to target almost any foreigner abroad, including individuals who are not suspected of any wrongdoing whatsoever — people like journalists, cryptography researchers, human rights advocates, and IT system administrators.

Upstream Surveillance: Too Far for Yoo?

Perhaps most remarkably, however, the Obama Justice Department has pressed legal theories even more expansive and extreme than Yoo himself was willing to embrace. Yoo rounded out his Stellar Wind memo with an effort to reassure Judge Kollar-Kotelly that the government’s legal interpretation had limits, saying: “Just to be clear in conclusion. We are not claiming that the government has an unrestricted right to examine the contents of all international letters and other forms of communication.” But that is essentially the power the NSA claims today when it conducts Upstream surveillance of Americans’ Internet communications. The NSA has installed surveillance equipment at numerous chokepoints on the Internet backbone, and it is using that equipment to search the contents of communications entering or leaving the country in bulk. As the ACLU recently explained in Wikimedia v. NSA, this surveillance is the digital analogue of having a government agent open every letter that comes through a mail processing center to read its contents before determining which letters to keep. In other words, today the Obama administration is defending surveillance that was a bridge too far for even John Yoo.

It is hard to explain how astonishing this is. Yoo was at the center of the Bush administration’s effort to radically expand executive power, opening the door to widespread electronic surveillance of Americans without any individualized judicial approval. His efforts are widely understood to have been extreme, analytically indefensible, and contrary to the basic values of our country. Yet many of the legal arguments that Yoo made nearly 15 years ago have now been endorsed by the Obama administration to continue and expand the warrantless surveillance of Americans — surveillance that is even more pervasive than the wiretapping Yoo felt comfortable defending in secret.

At the same time, the Obama administration has fought to keep the public courts from scrutinizing these legal arguments, relying on secrecy and standing doctrines to short circuit challenges to mass surveillance programs. Whether it is John Yoo’s OLC memos, expansive reinterpretations of the law in the FISC, or ex parte criminal proceedings, by now it should be clear that good law is not made in secret.

This post originally appeared at Just Security.

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