The government recently declassified a secret letter, written in 2002 laying out the executive branch’s initial legal justifications for the vast expansion of electronic surveillance after September 11, 2001. Like many others, it was written by former DOJ Office of Legal Counsel attorney John Yoo, and it was directed to the then-presiding judge of the Foreign Intelligence Surveillance Court (“FISC”), Judge Colleen Kollar-Kotelly.
The letter wasn’t a filing with the FISC: instead, in Yoo’s view, it was more of a “heads up”—in the words of the letter, a gesture of goodwill in the interest of “comity” between co-equal branches of government.
The heads up he was giving? The fact that, for over a year prior to this letter, the executive branch had been flagrantly violating federal surveillance laws.
Of course today we know that the government did this. But one thing that we still hear from government officials is that it was all “legal.” That while pushing things to the “edge,” the government even under Bush, had at least some legal basis for what it was doing.
Not so. After fourteen years and lots of hand waving this release gives us an even better picture of the reasoning that underlay years of mass surveillance. And boy is it weak.
It’s also a lesson in how to subvert the constitution and law: keep your legal reasoning in a drawer, and tightly control who has access to that drawer.