Yes, We Can Be Both Safe and Free

I’ve just read an Unclassified Report on the President’s Surveillance Program, which was posted on the ACLU website this week

http://www.aclu.org/safefree/general/40267prs20090710.html?s_src=RSS

The report is an investigation by the Inspectors General of various government agencies, reviewing President Bush’s warrantless surveillance program, which became public in 2005.

The report outlines the actions taken by John Yoo of the White House Office of Legal Counsel, the only lawyer responsible for addressing the legality of the President’s surveillance program before it was implemented. Yoo’s legal memoranda caused concern in the Justice Department because he ignored traditional OLC protocol of rigorous peer review, as well as ignoring an act of Congress.

Yoo rejected the relevancy of the Foreign Intelligence Surveillance Act, saying “the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA” (p. 11).

Yoo then asserted the Fourth Amendment did not apply because “the Authorizations applied to non-US persons involved outside the United States” (p. 12).

The integrity of re-authorizations to the surveillance program was also severely compromised by the following:

“The DCI (Director of Central Intelligence) Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to undertake further terrorist attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP” (p.7, emphasis added)

Yoo’s legal analysis is flawed and deficient, an erosion of Congressional authority, an unchecked expansion of Executive authority, and a blatant violation of the Fourth Amendment. Yoo’s initial legal analysis for the program is only the tip of the iceberg. His manipulation of the justice system to substantiate the program’s re-authorization every 45 days all-too-eerily recalls Nixon’s infamous line to David Frost: “Well, when the president does it that means that it is not illegal.” We must not forget that these Presidents took oaths to “preserve, protect and defend the Constitution of the United States.”

We should not hold back from reminding our President, a former law professor himself, and Attorney General Eric Holder, that our legal system and national security are not mutually exclusive.  The depth of the dark side is reflected in this report, and unfortunately it is survived by the current Administration’s openness to indefinite detention without charge or trial.  It's time to get involved in the ACLU's "Safe and Free" campaign to restore our constitutional rights.