John Yoo's Op Ed piece in todays WSJ proves that there is no basis for Bush's warrant-less wiretapping.
In today's WSJ, John Yoo provides the rational for warrant-less wiretapping during the Bush years. His op ed piece is ostensibly a response to the report issued by 5 Attorneys Generals of our national security agencies finding that Bush's warrant-less wiretapping violated FISA. At its core, Yoo's argument is that after 9/11 all bets were off and the the president could violate the law, FISA and presumably other laws as well, if he deemed it necessary for national security reasons. The problem with Yoo's argument is that it is wrong from the beginning:
It was instantly clear after Sept. 11, 2001, that our security agencies knew little about al Qaeda's inner workings, could not detect its operatives' entry into the country, nor predict where it might strike next.
Anyone who has read the accounts of Richard Clark, Jane Mayer and others on this point knows that Yoo is lying. In fact our national security agencies knew a lot about al Qaeda's activity, it was the Bush administration that intentionally decided to ignore Clark's repeated warnings of a terrorist attack.
Next Yoo sets up the hypothetical threat:
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.
Sounds a lot like the justification for torture doesn't it? That's it. No facts to support why our intelligence and law enforcement agencies are powerless and would face an "impossible task" when faced with al Qaeda. Again the facts are the the CIA and FBI were tracking al Qaeda operatives around the globe and were aware of their activities, including information about taking flying lessons without landing instructions.
Then comes the straw man:
It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States.
Never mind that FISA does no such thing, nor is there anyone that supposes FISA should restrict military operations. Yoo is confounding this issue with his other wrongheaded doctrine about the power he wished on the president to take preemptive military action against foreign countries if there is a "potential" threat to the United States. The confounding of issues is a favorite debating tactic, as though the Unitary Executive, Preemptive Powers, Advanced Interrogation Techniques and Warrant-less Wiretapping were all part of some enlightened view of Presidential powers.
Next, Yoo makes it clear why he is incompetent to hold any position involving national security:
The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do
Is this guy kidding? Sure, and the best way to reduce crime is to put chips in everyone's head. This is pure science fiction, and bad fiction at that. What about the cells in Germany, France, Spain, Indonesia, and the rest of the world? In fact, the best way to find an al Qaeda operative is with smart ground intelligence, of which we had plenty but which Bush refused to use.
Finally, Yoo enters fantasy land:
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.
See, this isn't about the law, this is about our Forefathers, who predicted that one day the president would have to declare himself above the law. Yoo goes on to quote, of course, Hamilton in the Federalist.
What drivel. How did this guy make it to the OLC? How did he become a law professor? A first year law student can punch holes in his argument. Let this editorial be exhibit 1 in his trial for conspiring intentionally to violate the laws of our county.