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Rule of Law vs. Just Gut FISA: Newly Released OLC Opinions Reveal Possible Early Tension within Bush DOJ

It was only two weeks after 9/11. The stench of the burning WTC still hung over NYC and Long Island. Firefighters and construction workers were still working round the clock on the "pile."

On September 25, 2001–two weeks to the day after 9/11–John Yoo issued an OLC opinion. It was 13 pages long and contained numerous citations to both statutes and case law.

Now that the Obama Administration has released this opinion (as well as others–see more FDL coverage from Christy and emptywheel), the first thing that strikes me is: How did he get this researched and written so fast (especially during a period when many people where spending lots of work hours reconnecting with friends and family and chewing over every scrap of information coming out of the attack sites)? Or had he started work on it earlier? And if so, why?

The second thing that stands out is the question that this memo purported to answer:

You have asked for our opinion on the constitutionality of amending the Foreign Intelligence Surveillance Act. . . so a search may be approved when the collection of foreign intelligence is "a purpose" of the search. In its current form, FISA requires that "the purpose" of the search be the collection of foreign intelligence.

The question was posed by then Associate Deputy Attorney General David Kris. David Kris is President Obama’s nominee to be Assistant Attorney General for the National Security Division and is the author of the encyclopedic National Security Investigations and Prosecutions. In addition to law review articles on national security law, he has had some well-thought-out pieces on FISA up at Balkinization (here and here).

Shorter LHP: David Kris has forgotten more national security law than John Yoo would ever know, so why was he posing this question to Office of Legal Counsel?

Well, let’s see. It mentions having Congress "amend" FISA–as opposed to the policy the White House actually adopted of ignoring FISA and wiretapping whomever they wanted whenever they wanted.

Secondly, the question deals with whether or not such an amendment would allow the fruits of a FISA warrant to be used in subsequent criminal proceedings. Clearly, the questioner anticipates that there will be criminal trials–OMG! Due process–for those accused of terrorism.

I don’t know this, I am speculating, but I find myself wondering if Kris was attempting to assemble a toolbox of options for Bush that complied with the Constitution and rule of law. And the method of doing so, on more than his own extremely expert say so, was to put a question to OLC for which he already knew the answer, so that the OLC opinion–which was binding on the Executive Branch Departments–would become de facto policy, and take on a life of its own.

The answer to Kris’s question appears strikingly similar to the Jack Goldsmith’s position that FISA cannot be ignored, and that changes to it would necessarily involve Congressional action. David Addington somehow managed to ignore this opinion when they initiated the NSA spying program. I wonder, did Kris put a rush on his OLC opinion request to try to get in front of Addington’s plan to ignore FISA?

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