吃瓜大本营

As I noted in a previous post, the two Bush administration surveillance memos we obtained last Friday are very heavily redacted. They鈥檙e interesting nonetheless.

The first memo, written by Office of Legal Counsel lawyer John Yoo in November 2001, contends that the president has authority as Commander in Chief of the Armed Forces to disregard the Foreign Intelligence Surveillance Act (FISA), a statute that 鈥減urports鈥� (Yoo鈥檚 word) to regulate government surveillance. It also contends that Congress doesn鈥檛 have the power to regulate the president鈥檚 authority to gather intelligence for national security purposes. And it contends that intelligence gathering in support of military operations 鈥渄oes not trigger constitutional rights against illegal searches and seizures.鈥� These are radical and insupportable claims, but they鈥檙e consistent with the claims that Yoo made in other OLC memos.

The second memo, written by Jack Goldsmith in May 2004 is more surprising, but to understand why, you need to know a little bit of recent history.

President Bush first authorized the National Security Agency鈥檚 warrantless wiretapping program in October 2001. Under that program, the NSA intercepted some Americans鈥� international communications without first obtaining warrants from federal judges (i.e., without complying with FISA). The warrantless wiretapping program was and was the subject of an ACLU lawsuit.

But the warrantless wiretapping program wasn鈥檛 the only surveillance program that President Bush authorized in October 2001. When President Bush authorized that program, he also authorized 鈥溾�� about which we still know almost nothing. Yoo wrote a series of memos, including the November 2001 memo mentioned above, to provide these activities 鈥� collectively called the 鈥淧resident鈥檚 Surveillance Program鈥�, or 鈥淧SP鈥� 鈥� with a veneer of legality. In 2003, though, both Yoo and his boss, Jay Bybee, resigned from Justice Department鈥檚 Office of Legal Counsel. Their successors, Goldsmith and Patrick Philbin, disagreed with the memos that Yoo had written. Goldsmith and Philbin shared their concerns with others, and in March 2004 several senior Justice Department officials almost resigned when the president reauthorized the PSP without making adjustments to it. Goldsmith wrote his memo after the White House agreed to modify the PSP.

Given that background, what鈥檚 striking about the memo that Goldsmith wrote in May 2004 is how similar it is to the one that Yoo wrote in November 2001. Like Yoo, Goldsmith contends that the president has authority as Commander in Chief to disregard FISA. Like Yoo, Goldsmith contends that Congress doesn鈥檛 have the power to regulate the president鈥檚 authority to gather intelligence for national security purposes 鈥� certainly not during wartime, and probably not during peacetime, either. And like Yoo, Goldsmith suggests 鈥� without fully committing to the proposition 鈥� that intelligence gathering in support of military operations does not trigger the Fourth Amendment at all. Here鈥檚 footnote 30 from Goldsmith鈥檚 memo:

Goldsmith may have disagreed with Yoo鈥檚 November 2001 memo, but one wouldn鈥檛 know that from reading Goldsmith鈥檚 May 2004 memo. To the contrary, the unredacted portions of the memos are remarkably similar.

I say 鈥渢he unredacted portions,鈥� though, because, as noted above, large swaths of the Goldsmith memo are redacted, and, except for eight sentences, all of the Yoo memo is redacted. In a , Goldsmith suggested on Friday evening that the redactions are unfair or misleading 鈥� he wrote that 鈥淎n understanding of my views and actions requires reading the memorandum and other classified documents in their entirety, which is not possible today.鈥� If Goldsmith really thinks that some of the redactions are unwarranted, perhaps he might consider pressing the Obama administration to release the memo with fewer redactions.

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