DOJ Lawyers Kept Out of the Loop on Wiretapping Program
By Joe Palazzolo | July 10, 2022 6:36 pm

Only three Justice Department lawyers, including then-Deputy Attorney General John Yoo, were privy to the details of the Bush administration’s warantless eavesdropping program, according to a report released today by inspectors general from various intelligence and law enforcement agencies. Click here for The Washington Post story.

John Yoo (Berkeley)

John Yoo (Berkeley)

The watchdogs — from the CIA, the Defense Department, the Justice Department, the Office of the Director for National Intelligence, and the National Security Agency — could not determine how Yoo “came to deal directly with the White House on legal issues related to the TSP.”

Only Yoo, then-Attorney General John Ashcroft and intelligence policy lawyer James Baker were aware of the program initially. The watchdogs called the arrangement ”extraordinary and inappropriate” and concluded that the secrecy hindered the Justice Department’s ability to render legal advice.

From the WaPo:

One former department lawyer, Jay S. Bybee, told investigators that he was Yoo’s superior in the Office of Legal Counsel but was never read into the program and “could shed no further light” on how Yoo became the point man on memos that confirmed its legality. By following this route, the memos avoided a rigorous peer review process.

Yoo prepared hypothetical documents in in the fall of 2001 before writing a formal legal memo in November. By then, Bush had already authorized the initiative.

In that memo, Yoo concluded that the FISA law could not “restrict the president’s ability to engage in warrantless searches that protect the national security” and that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not- then the statute must be construed to avoid such a reading,” according to the report.

Once higher-level DOJ officials read his analysis in late 2003 and 2004, they questioned the program’s legality. The report is scant on details of the program, but the watchdogs said Yoo failed to “accurately describe the scope” of the other activities — the ones not disclosed by The New York Times in 2005 — which created “a serious impediment to recertification of the program.”

After Yoo left the department, OLC lawyers Patrick Philbin and Jack Goldsmith were briefed on the program and began meeting with Alberto Gonzales, then White House Counsel, and Vice President Dick Cheney’s chief of staff, David Addington. The White House lawyers said they would terminate the program if became a serious problem, but they continued to lobby the Justice Department to support it while the legal problems were sorted out.

Then:

On March 9, 2004, intelligence officials and Cheney met to discuss the issue without inviting Justice Department leaders. Cheney suggested that the president “may have to reauthorize without [the] blessing of DOJ,” according to previously unreported notes taken by Mueller described in today’s report. Mueller told the investigators he would have a problem with that approach.

After the now-infamous hospital rush, in which Gonzales and Andy Card tried to prevail on an ailing Ashcroft to reauthorize the program, Deputy Attorney General James Comey threatened to resign, and with him FBI Director Robert Mueller III, among other Justice officials.

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