How much damage did the Times do? part 3

I wrote about the Inspectors’ General unclassified report on the Bush administration’s terrorist eavesdropping program here and here. In my posts I concentrated on the part of the report (pages 31-36) that was highlighted by the New York Times regarding the program’s purported inefficacy.

In another part of the report (pages 10-14), the Inspectors General are critical of then-Deputy Assistant Attorney General John Yoo for approving the legality of the program. Yoo responds in the Wall Street Journal column “Why we endorsed warrantless wiretaps.” Reading the case law as John Hinderaker did here in December 2005 at the time that the program was exposed, Yoo writes:

Every federal appeals court to address the question has agreed that the president may gather electronic intelligence to protect against foreign threats. This includes the special FISA appeals court, which in a 2002 sealed case upholding the constitutionality of the Patriot Act held that “the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” The court said it took the president’s power “for granted,” observing that “FISA could not encroach on the President’s constitutional power.”

The report of the Inspectors General notes that Yoo’s superior at the Department of Justice (Jay Bybee) was unaware that Yoo had been solicited directly by the White House for his opinion on the legality of the program. The report states that the Department of Justice Inspector General “does not know how Yoo came to deal directly with the White House on legal issues related” to the program.

The report also quotes Bybee as being “surprised” and “a little disappointed” to learn that Yoo had addressed the legal issues without Bybee’s knowledge. Unfortunately, Yoo’s column today does not deal with any of the issues raised by the report other than the program’s legality.

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