Constitutional Law

The Surveillance Memos, and a Suggestion for Jack Goldsmith

By Jameel Jaffer, Center for Democracy

As I noted in a previous post, the two Bush administration surveillance memos we obtained last Friday are very heavily redacted. They're 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 'purports' (Yoo's word) to regulate government surveillance. It also contends that Congress doesn't have the power to regulate the president's authority to gather intelligence for national security purposes. And it contends that intelligence gathering in support of military operations 'does not trigger constitutional rights against illegal searches and seizures.' These are radical and insupportable claims, but they're 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's warrantless wiretapping program in October 2001. Under that program, the NSA intercepted some Americans' international communications without first obtaining warrants from federal judges (i.e., without complying with FISA). The warrantless wiretapping program was exposed by the New York Times in December 2005 and was the subject of an ACLU lawsuit.

But the warrantless wiretapping program wasn't the only surveillance program that President Bush authorized in October 2001. When President Bush authorized that program, he also authorized 'a number of new, highly classified intelligence activities' about which we still know almost nothing. Yoo wrote a series of memos, including the November 2001 memo mentioned above, to provide these activities — collectively called the 'President's Surveillance Program', or 'PSP' — with a veneer of legality. In 2003, though, both Yoo and his boss, Jay Bybee, resigned from Justice Department's 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's 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't have the power to regulate the president's authority to gather intelligence for national security purposes — certainly not during wartime, and probably not during peacetime, either. And like Yoo, Goldsmith suggests — without fully committing to the proposition — that intelligence gathering in support of military operations does not trigger the Fourth Amendment at all. Here's footnote 30 from Goldsmith's memo:

Goldsmith may have disagreed with Yoo's November 2001 memo, but one wouldn't know that from reading Goldsmith's May 2004 memo. To the contrary, the unredacted portions of the memos are remarkably similar.

I say 'the unredacted portions,' 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 note on his blog, Goldsmith suggested on Friday evening that the redactions are unfair or misleading — he wrote that 'An understanding of my views and actions requires reading the memorandum and other classified documents in their entirety, which is not possible today.' 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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Full post as published by Blog of Rights on March 25, 2011 (boomark / email).