Posted by Orin Kerr:
What John Yoo's OLC Memos on the Terrorist Surveillance Program Probably Said:
http://volokh.com/archives/archive_2009_03_01-2009_03_07.shtml#1236036389
Of the newly released OLC memos, one particularly interesting one is
[1]this memo dated January 15, 2009 -- just a few days before the OLC
changed hands from Bush's people to Obama's. The memo explains what a
number of OLC's positions were in still-secret memos written in the
early period following 9/11, and it then explains why the later Bush
OLC rejected those early positions.
Of particular interest to me, as a FISA/surveillance guy, the memo
seems to say at page 6 that the initial OLC memos on FISA (presumably
the ones that okayed the "Terrorist Surveillance Program") relied on
the theory that FISA simply didn't apply to national security
monitoring because it did not include a "clear statement" of that
intent. We only get a summary of Yoo's reasoning in the 2009 memo, but
the argument as summarized seems to be that nothing in FISA clearly
indicated an intent to regulate surveillance of executive branch
monitoring for national security purposes. (As far as I know, DOJ has
never said that this was the basis of the OLC memos on the TSP.) The
2009 memo explains that this is not the position of OLC, as OLC had
taken the position in the 2006 "White Paper" that the AUMF authorized
the TSP.
If I'm reading this correctly, then, the original Yoo memos on the
TSP had argued that FISA didn't apply because there was nothing in the
statute that indicated clearly an intent to regulate national security
surveillance. This would have been an extremely lame analysis, though.
Congress had plainly stated that FISA was the exclusive means for
national security monitoring in [2]18 U.S.C. 2511(f): It's hard to
read the phrase "procedures in . . . the Foreign Intelligence
Surveillance Act of 1978 shall be the exclusive means by which
electronic surveillance . . . may be conducted" as not clearly
indicating an intent to regulate electronic surveillance in the
national security area.
If I'm reading this correctly, it might explain why Senators
Feinstein & Specter [3]introduced legislation back in '06 , at the
height of the legal controversy over the TSP, that would "re-state"
that FISA was the exclusive means for national security surveillance.
A lot of people giggled at this idea at the time: Why restate what
Congress already said? However, if the Bush Administration at some
point indicated to Specter and Feinstein what the reasoning was of the
initial OLC memos, Feinstein and Specter would have known something we
didn't. "Re-stating" the point in new legislation could have been
designed to provide the "clear statement" that the Yoo memo argued was
necessary.
References
1. http://www.usdoj.gov/opa/documents/memostatusolcopinions01152009.pdf
2. http://www4.law.cornell.edu/uscode/18/2511.html
3. http://feinstein.senate.gov/06releases/r-fisa-exclusive.htm
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