September 25, 2001: Justice Department: US Can Conduct Warrantless Surveillance against Citizens

John Yoo, a deputy assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC), issues an opinion that says the US can conduct electronic surveillance against its citizens without legal warrants. Yoo says that judicial precedents approving deadly force in self-defense cover such warrantless surveillance. [US Department of Justice, 9/25/2001 ; American Civil Liberties Union, 1/28/2009 ; New York Times, 3/2/2009] Yoo’s legal rationale, involving the boundaries set by the Foreign Intelligence Surveillance Act, is almost “perfunctory,” according to a 2009 analysis by Ars Technica reporter Julian Sanchez. But Yoo uses the memo to “veer… into what can only be described as a lengthy and unsolicited digression, laying out his view of the primacy of the president in the national security arena, and the scant limits on presidential discretion to order surveillance targeting foreign terrorists,” Sanchez will observe. Yoo’s memo claims that during a “time of… grave and unforeseen emergencies” such as the aftermath of the 9/11 attacks, only the president—and not Congress—has the “unity in purpose and energy in action” to make critical national security decisions. “As the commander in chief, the president must be able to use whatever means necessary to prevent attacks upon the United States,” he writes; “this power, by implication, includes the authority to collect information necessary for its effective exercise.” As for the Foreign Intelligence Surveillance Act, Yoo finds it almost irrelevant: “FISA itself is not required by the Constitution, nor is it necessarily the case that its current standards match exactly to Fourth Amendment standards.” [Ars Technica, 3/2/2009]