2002 Legal Rationale For Warrantless Surveillance: Because The President Can Do It, Shut Up

Oh, John Yoo. The former top Bush administration lawyer -- who is already well-known for writing that administration's (totally bullshit) "legal defense" for torture -- has also been an outspoken advocate for NSA surveillance as well. Soon after the Snowden revelations, Yoo defended the NSA arguing that the 4th Amendment shouldn't apply to the NSA because it takes too long. Then, he said that judges shouldn't be allowed to determine if the NSA violated the 4th Amendment because they're too out of touch with the American public. It's long been known that Yoo also was deeply involved in creating the legal justifications for that very warrantless surveillance program he's been defending, and now, finally, years later, the Office of the Director of National Intelligence has released the May 17, 2002 letter that Yoo sent to the FISA Court chief judge Colleen Kollar-Kotelly. You can read it here. As the ODNI release notes, Judge Kollar-Kotelly was allowed to read the letter, justifying the NSA's warrantless surveillance on Americans, but "was not authorized to retain a copy or take notes" because nothing says transparency democracy like secret interpretations of the law where no one's allowed to know the details, and the people overseeing it are only allowed to glance at the justifications. It was the "re-evaluation" of this John Yoo rationalization that created the now infamous hospital room showdown in March of 2004, when some in the administration realized that Yoo was basically full of shit. Anyway, now the Yoo memo (with plenty of redactions, of course!) has been released, and we can see just how absolutely ridiculous the whole thing was. In short, Yoo argues that even though, historically, the NSA was not allowed to do warrantless surveillance on Americans and the Foreign Intelligence Surveillance Act (FISA) made it clear that domestic surveillance needed to first be approved with warrants to the FISA Court (which is barely a court anyway), there was nothing that said that had to be the case, and the President was basically free to turn the NSA loose to spy on Americans without any FISA approval. First, he notes that the NSA is not technically or legally limited in surveilling Americans, even if it historically avoided doing so: In short, that says because Congress didn't explicitly limit the NSA in the same manner as the CIA, that must mean it's okay for the NSA to spy on Americans. This basically ignores the history and rationale for the NSA, which was entirely secret for much of its early history anyway, and created and run out of the executive branch with little Congressional oversight. Yoo then admits that the driving executive order that enables much of the NSA's activities -- the infamous Executive Order 12333 -- does explicitly say that the NSA can only conduct foreign signals intelligence surveillance, but that doesn't matter, because future Presidents aren't bound by previous Presidents' executive orders. He also argues that if the NSA is spying on Americans in order to seek "significant foreign intelligence," then it's perfectly fine as well. He then admits, generously, that even though there's no actual legal restriction (in his mind) on the NSA spying on Americans, that it could "be in tension with FISA" since FISA requires a warrant for domestic surveillance. But fear not, evil legal genius John Yoo has a bullshit way around that as well. He goes through a detailed description of the limits of getting a warrant approved by FISA and bemoans the fact that it wouldn't be possible to intercept all phone calls from a certain country under FISA. And here's where he gets really tricky. He says that FISA is not necessarily a limitation on what kind of surveillance can be done, but merely a safe harbor such that if you follow it you're automatically presumed safe under the 4