What John Yoo's OLC Memos on the Terrorist Surveillance Program Probably Said:
Of the newly released OLC memos, one particularly interesting one is this memo dated January 15, 2009 — just a few days before the OLC changed hands from Bush's people to Obama's. The memo explains what a number of OLC's positions were in still-secret memos written in the early period following 9/11, and it then explains why the later Bush OLC rejected those early positions.
Of particular interest to me, as a FISA/surveillance guy, the memo seems to say at page 6 that the initial OLC memos on FISA (presumably the ones that okayed the "Terrorist Surveillance Program") relied on the theory that FISA simply didn't apply to national security monitoring because it did not include a "clear statement" of that intent. We only get a summary of Yoo's reasoning in the 2009 memo, but the argument as summarized seems to be that nothing in FISA clearly indicated an intent to regulate surveillance of executive branch monitoring for national security purposes. (As far as I know, DOJ has never said that this was the basis of the OLC memos on the TSP.) The 2009 memo explains that this is not the position of OLC, as OLC had taken the position in the 2006 "White Paper" that the AUMF authorized the TSP.
If I'm reading this correctly, then, the original Yoo memos on the TSP had argued that FISA didn't apply because there was nothing in the statute that indicated clearly an intent to regulate national security surveillance. This would have been an extremely lame analysis, though. Congress had plainly stated that FISA was the exclusive means for national security monitoring in 18 U.S.C. 2511(f): It's hard to read the phrase "procedures in . . . the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted" as not clearly indicating an intent to regulate electronic surveillance in the national security area. Indeed, much of the point of FISA was to regulate that.
If I'm reading this correctly, it might explain why Senators Feinstein & Specter introduced legislation back in '06 , at the height of the legal controversy over the TSP, that would "re-state" that FISA was the exclusive means for national security surveillance. A lot of people giggled at this idea at the time: Why restate what Congress already said? However, if the Bush Administration at some point indicated to Specter and Feinstein what the reasoning was of the initial OLC memos, Feinstein and Specter would have known something we didn't. "Re-stating" the point in new legislation could have been designed to provide the "clear statement" that the Yoo memo argued was necessary.
Of particular interest to me, as a FISA/surveillance guy, the memo seems to say at page 6 that the initial OLC memos on FISA (presumably the ones that okayed the "Terrorist Surveillance Program") relied on the theory that FISA simply didn't apply to national security monitoring because it did not include a "clear statement" of that intent. We only get a summary of Yoo's reasoning in the 2009 memo, but the argument as summarized seems to be that nothing in FISA clearly indicated an intent to regulate surveillance of executive branch monitoring for national security purposes. (As far as I know, DOJ has never said that this was the basis of the OLC memos on the TSP.) The 2009 memo explains that this is not the position of OLC, as OLC had taken the position in the 2006 "White Paper" that the AUMF authorized the TSP.
If I'm reading this correctly, then, the original Yoo memos on the TSP had argued that FISA didn't apply because there was nothing in the statute that indicated clearly an intent to regulate national security surveillance. This would have been an extremely lame analysis, though. Congress had plainly stated that FISA was the exclusive means for national security monitoring in 18 U.S.C. 2511(f): It's hard to read the phrase "procedures in . . . the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted" as not clearly indicating an intent to regulate electronic surveillance in the national security area. Indeed, much of the point of FISA was to regulate that.
If I'm reading this correctly, it might explain why Senators Feinstein & Specter introduced legislation back in '06 , at the height of the legal controversy over the TSP, that would "re-state" that FISA was the exclusive means for national security surveillance. A lot of people giggled at this idea at the time: Why restate what Congress already said? However, if the Bush Administration at some point indicated to Specter and Feinstein what the reasoning was of the initial OLC memos, Feinstein and Specter would have known something we didn't. "Re-stating" the point in new legislation could have been designed to provide the "clear statement" that the Yoo memo argued was necessary.