CommunityEmptywheel Archive

Activities and Yoo

Anonymous Liberal is trying to sort through something I’ve been looking at for a while: to what degree was Ashcroft fully read into the warrantless wiretap program? I think there’s a two-part answer to this question. As I’ll show below, I think BushCo had Ashcroft approve the multiple aspects of "the program" in isolation from each other, giving him an incomplete picture of how the parts worked together. Furthermore, as they did with Congress, they made sure that no one who could offer any real advice on the program every got read into it, forcing Ashcroft to make his determinations from a position of ignorance. And all of this likely fits into a larger process, whereby Cheney and Addington worked directly with John Yoo to obtain the substantive approvals from DOJ, thereby bypassing Ashcroft on the larger issues. All of which might explain why Ashcroft raised the issue after Gonzales and Card tried to manhandle him while he was recuperating the ICU ward.

Contrary to what Spencer Ackerman claims, this is not "the first time" the allegation that Ashcroft wasn’t adequately read into this program has been made. Aside from Whitehouse’s questioning of Gonzales in his last SJC appearance and the correction Gonzales submitted after that appearance, a number of reports have laid out the Cheney-Addington approach to shredding the Constitution more generally.

Cheney and Addington’s MO

Take this article from December 2005, laying out how John Yoo bypassed normal review processes when writing opinions that justified these expansive policies (including the warrantless wiretapping program):

Within weeks [of 9/11], Mr. Yoo had begun to establish himself as a criticalplayer in the Bush administration’s legal response to the terroristthreat, and an influential advocate for the expansive claims ofpresidential authority that have been a hallmark of that response.

Whilea mere deputy assistant attorney general in the legal counsel office,Mr. Yoo was a primary author of a series of legal opinions on the fightagainst terrorism, including one that said the Geneva Conventions didnot apply and at least two others that countenanced the use of highlycoercive interrogation techniques on terror suspects. Recently, currentand former officials said he also wrote a still-secret 2002 memorandumthat gave legal backing to the administration’s secret program toeavesdrop on the international communications of Americans and othersinside the United States without federal warrants.

A genial, soft-spoken man with what friends say is a fiercelycompetitive streak, Mr. Yoo built particularly strong workingrelationships with several key legal officials in the White House andthe Pentagon. Some current and former government officials contend thatthose relationships were in fact so close that Mr. Yoo was able tooperate with a degree of autonomy that rankled senior JusticeDepartment officials, including John Ashcroft , then the attorney general.


Mr. Yoo’s belief in the wide inherent powers of the president ascommander in chief was strongly shared by one of the most influentiallegal voices in the administration’s policy debates on terrorism, DavidS. Addington, then the counsel to Vice President Dick Cheney.Documents and interviews suggest that those views have been part of thelegal arguments underpinning not only coercive interrogation and theprosecution of terrorism suspects before military tribunals but alsothe eavesdropping program.

Some current and former officials saidthe urgency of events after Sept. 11 and the close ties that Mr. Yoodeveloped with Mr. Addington (who is now Mr. Cheney’s chief of staff),Mr. Gonzales, Mr. Flanigan and the general counsel of the DefenseDepartment, William J. Haynes II, had sometimes led him to bypass theelaborate clearance process to which opinions from the legal counseloffice were normally subjected.


"They were not getting enough critical feedback from within O.L.C.,or from within the Justice Department, or from other agencies," oneformer official said of Mr. Yoo’s opinions. Officials said senior aidesto Attorney General Ashcroft also complained that they were notadequately informed about some of the Mr. Yoo’s frequent discussionswith the White House.

Mr. Yoo said he had always duly notifiedJustice Department officials or other agencies about the opinions heprovided except when "I was told by people very high in the governmentnot to for classification reasons."

So, we know Yoo wrote the opinion justifying the warrantless wiretapping program. We know Yoo sometimes bypassed normal clearance processes. And we know he did this when Dick Cheney "people very high in the government" told him not to share the opinions with others "for classification reasons." This method has been mapped in a number of articles since then, including the WaPo’s Angler series (though that article specifically maps what happened with military commissions). So we’ve known for some time that Cheney and Addington worked directly with John Yoo in an effort to bypass normal vetting processes and John Ashcroft himself.

Previous post

Finally someone asks the right question!

Next post

If you're tired of posts about Bob Allen, keep scrolling...



Marcy Wheeler aka Emptywheel is an American journalist whose reporting specializes in security and civil liberties.