September 25, 2001: OLC Lawyer Yoo Authorizes Warrantless Surveillance of Communications Entering and Departing US

John Yoo of the Justice Department’s Office of Legal Counsel (OLC) writes a legal memo authorizing the warrantless surveillance of electronic communications entering and departing the US. (In the same memo, Yoo asserts that the president has no legal restrictions on his ability to wage war—see September 25, 2001). Since 1978, such warrantless wiretapping as Yoo authorizes has been prohibited by federal law. But Yoo’s legal brief authorizes such surveillance, in secret, “incident to” the authority Congress has just granted the president to pursue terrorists (see October 10, 2002). Author Craig Unger will write, “The memo dramatically enhanced the power of the executive branch by leaving the courts and Congress out of the loop.” Vice President Cheney, through his legal counsel David Addington, even keeps the senior national security lawyer, John Bellinger, out of the loop on the surveillance authorization. Bellinger should have been apprised of the eavesdropping program, but because Addington holds him in what White House officials call “open contempt,” and has accused Bellinger of selling out presidential authority for good “public relations” or bureaucratic consensus, does not inform him of the program. Bellinger’s deputy Bryan Cunningham will later say: “Bellinger didn’t know. That was a mistake.” Had Bellinger, who reports directly to National Security Adviser Condoleezza Rice, been apprised of the program, Cunningham says, he would have recommended vetting the program with the Foreign Intelligence Surveillance Court that governs such surveillance. Bruce Fein, an associate deputy attorney general under Ronald Reagan, will say that the domestic surveillance program stemming from Yoo’s memo flouts the Foreign Intelligence Surveillance Act (FISA) by directing the NSA to spy on US citizens “on [the president’s] say-so alone.” Fein will write that the surveillance program is based on “an imperial theory of inherent constitutional power that would empower [the president] to open mail, break in and enter homes, or torture detainees, even in violation of federal criminal statutes” (see July 14, 1970). [Unger, 2007, pp. 221-222]