All right, y'all, welcome back to the show.
It's Anti-War Radio.
I'm Scott Horton, and our next guest is the other Scott Horton, heroic anti-torture international human rights lawyer, professor at Columbia University, and contributing editor at Harper's Magazine, where he keeps the blog no comment.
Welcome to the show, Scott.
Hey, great to be with you.
Beautiful spring day here in New York.
Oh, well, I'm happy to hear that.
It started out kind of great, but it's turning out kind of nice out here in LA, in fact.
So there you go.
A couple of nice days on either end of America there.
All right, so today's piece is called The President's Right of Warrantless Surveillance.
Two new OLC opinions from the Bush administration.
What's this about?
Well, these two memos go to one of the great dramatic mysteries of the Bush administration.
You may recall, 2007, we learned in dramatic testimony before a Senate committee how, in March of 2004, the White House counsel, Alberto Gonzalez and David Addington, had rushed to the hospital bedside of John Ashcroft trying to get him to sign approval for the president's program, we're told.
And it appears they did this after the acting attorney general, James Comey, had refused to give this permission.
And he did that on the advice of a series of other senior people in the Bush Justice Department who told him the program is illegal.
It violates FISA, which is a criminal statute.
And Jack Goldsmith subsequently told us he expected there was going to be a constitutional crisis as a result.
He and Comey and a number of other people, Robert Mueller, the head of the FBI, and others had threatened that they would resign over this issue.
He thought this could bring the government down, would in any event be a crisis for the Bush administration.
But then to his amazement, President Bush himself decided to relent and change the program in some way that allowed him to write these memos.
These two memos that were released are all about the program.
So let's just stop and ask, what is the program?
And the answer is not only has no one really disclosed the essence of it, even in these memos they've redacted almost every mention, even the name of the program is redacted.
They don't want us to know what the program is.
But we know the program is all about surveillance.
It's authorization that's given to the NSA, the National Security Agency, to sweep through communications involving American citizens and foreigners, and this is telephone, emails, faxes, internet chats, whatever, all forms of electronic communication, and pull out information that's of interest to the government.
And this process, the question that's being addressed in these memos is, doesn't this raise issues under the Foreign Intelligence Surveillance Act, FISA, which says the president cannot go through electronic communications without first getting authority from a special federal court called the FISA court.
So this is all about circumventing that court.
And we know John Yoo had issued a memorandum saying, oh, don't worry about it.
The president can do whatever he wants.
He's commander in chief.
This is wartime.
Fourth Amendment doesn't mean anything.
And we know that Jack Goldsmith and the other senior figures in the administration decided that that memo was completely ridiculous.
They would not agree to it.
They withdrawn it.
But here we see a second memo that's issued by Jack Goldsmith, which in its reasoning is almost exactly the same as John Yoo's memo.
So the question is, what did the administration do?
How did it change things that allowed him to basically rewrite the Yoo memo?
And is there really any difference between the Jack Goldsmith memo and the Yoo memo?
Well, you know, it's been too long since I read about that showdown at John Ashcroft's hospital bedside there, but there was in the narrative some kind of, you know, real concession of substance that was made.
Right.
Maybe it's just not reflected in the memo.
Well, you know, it has to do with the technology of the program and how it's operated.
But, you know, there's nothing reflected in the memo and it has not been disclosed to the public what that change is.
Huh.
Okay.
Well, that's interesting because everybody backed down and didn't resign.
They were all going to resign, right?
They were all going to resign.
Even Ashcroft said, wait for me.
Wait till Monday.
I want to come with you.
Exactly.
No.
And so I think this continues to be one of the great mysteries.
We're seven years later and, you know, clearly the view at the National, at the NSA and the Justice Department is all this is much too sensitive and secret for any inkling of this to creep out to the American public.
We don't want them to know what this is all about.
Well, you know, I wonder if I can try to focus on the technicality if, you know, John Hughes saying, look, the president's power to tap, you know, what may be foreign bad guys or whatever is unlimited and the Fourth Amendment doesn't apply.
It seems like he must have something there because the FISA Act certainly discriminates between, you know, a regular criminal warrant or a foreign intelligence warrant, which has a much lower standard of evidence to grant, right?
Or is that just as unconstitutional as hell too?
No, that's exactly right.
I mean, I think the Supreme Court's very clear on this issue.
The Fourth Amendment creates a fairly high standard for the issuance of a warrant in connection with a domestic criminal investigation.
Now, with respect to foreign intelligence surveillance, there is still some threshold if they're going to do it domestically, but the threshold is a far lower one.
It's just that there has to be some reason for it, not a probable cause standard.
Now, by the way, we also have this clear division.
That is, there's no limitation on the president's ability to snoop overseas.
We're not talking about that.
We're talking about snooping in the United States.
That's the concern here.
Well, that was one of their loopholes too, was that foreign-to-foreign communications sometimes route through Mississippi or something.
Exactly.
That, you know, they would use a switch that would come into the United States and it would go there, but it is still foreign, they would say.
Yeah, so that's part of it.
But I think, you know, at this point, we know that there is some astonishing technology that the NSA holds and uses that it allows them to sweep through millions of communications every single day without actually reading them or listening to them.
It has a system of logarithms that pull out from this great pile of communications things that are interesting to the American intelligence community.
So it'll sift through them and it'll pull out the messages that really should be examined and scrutinized.
Now, the problem is that, you know, to pull out those messages, the intelligence community should go to a court and explain why they need this.
And the logarithm isn't enough of an explanation, I don't think.
Well, when we get back, we got to talk a little bit about how the Democrats ex post facto legalized a lot of this in 2008, I guess it was, right?
It is eight.
Yeah.
All right.
Hold tight right there, everybody.
It's the other Scott Horton from Harper's Magazine, heroic anti-torture international human rights lawyer, anti-wiretapping too.
All right, y'all, welcome back.
It's Anti-War Radio.
I'm the evil Scott Horton, the evil twin of this guy, the heroic anti-torture human rights lawyer, the real Scott Horton from Harper's Magazine.
And he writes the blog, no comment there.
The latest is the president's right of warrantless surveillance to new OLC opinions.
And so I think I'm not I'm still not clear about how the Supreme Court says that the Fourth Amendment doesn't apply to agents of a foreign power.
It seems like it applies to the national government, any U.S. person, right?
Well, I think they say it does apply, but it applies in a different way.
And it applies within the United States and that their Fourth Amendment protections are extremely limited, simply that the U.S. that the government has to have a reason to want to survey them.
That's it.
And if they're outside the United States, the Fourth Amendment doesn't impose any limitation at all.
All right.
So now when George Bush, well, the New York Times, finally, after holding it for a year, released the James Risen, Eric Lickblau story about the warrantless surveillance, Bush came out the next day and gave a press conference and said, yeah, that's right.
And I do it again.
I'm doing it now.
And what are you going to do about it?
And the Congress said, well, I guess we'll go ahead and make it legal.
And but and yet that FISA Act, as I understand it, was passed kind of in reaction to Richard Nixon and some of his articles of impeachment actually included these various sorts of things.
And they wanted to criminalize it.
And that thing is a felony statute.
Right.
You can go to prison for a long time and be forced to give up all your bank accounts for violating the FISA statute.
Now, five years is the presumed term for a federal government official who violates FISA.
And it goes back to things that happened in the in the early 1970s when Nixon was spying on political opponents, domestic political opponents.
And when caught and challenged on this, he said, well, you know, this is foreign intelligence surveillance.
I believe they were consorting with the enemy in wartime.
And I was entitled to tap into them.
And Congress sort of raised its collective eyebrows and said, doesn't look that way to us.
So we're going to create a special statute that will regulate your ability to use this right.
So they said basically the president has the right to engage in surveillance of, you know, suspected foreign espionage or foreign intelligence operations, including those involving American citizens.
But he's got to make a presentation to a special federal court for this purpose, which has to authorize it.
And the federal court is going to apply a low threshold standard.
Just there has to be some reasonable basis for it.
Well, so obviously you have a difference of legal opinion here with John Yu, formerly of the Bush administration.
But is it just that?
Or is he a criminal for telling Bush that somehow he does not understand the obvious fact truth that you just referenced?
You know, that it's not just a difference of opinion.
He was conspiring with Bush to break this law.
Well, you know, I think Yu's opinion, we have only about eight lines from the whole opinion which have been reproduced and the rest of it evidently is so horrendously embarrassing that the Justice Department doesn't want us to see any of it.
In fact, Jack Goldsmith himself in his book says that these things were classified secret because the White House was afraid of embarrassment that would result from people knowing what the legal reasons were.
They were so stupid.
You know, Yu was essentially saying that the Fourth Amendment doesn't exist and the Supreme Court got it wrong when it said that the Fourth Amendment applied to this foreign espionage area.
He's basically saying this is all commander-in-chief powers and that the president's powers in wartime trump everything.
So this is basically a presidential dictatorship and we know that when Goldsmith, who is every bit as arch-conservative as Yu, in fact, they were viewed as sort of bobsy twins in the legal academic world, when he saw the Yu memorandum he says he was appalled by it and he insisted it be withdrawn immediately.
One of the interesting things is that, you know, Ashcroft didn't know anything about this NSA program.
Yu was the only person in the Justice Department who was read into it and it looks like they picked him as someone who would give them whatever legal opinion they wanted, no matter how absurd.
Well, is that just because he really is absurd?
Because I think he has a history of absurdity, right?
So I wonder if that makes him a criminal or does it all come down to whether he knew he was wrong or not?
I think he's basically a political hack and, you know, in fact, several of his colleagues in the Justice Department said in email communications that were subsequently published, John Yu desperately wants to be Assistant Attorney General in charge of the OLC and he'll do anything to get that office and they have the view that he would issue any opinion, no matter how preposterous or ridiculous, in order to get that appointment.
At the end of the day, he didn't get that appointment.
Well, you know, there's lots of talk this week about the war powers.
It's funny, I remember, well, Dennis Kucinich was saying Obama could be impeached over it and it reminded me of a hearing that took place, I guess, a couple of years back where James Baker and others had signed on to this proposed revision to the War Powers Act, which to hear Baker tell it was meant to restrict the president even more from this kind of thing happening again, he said, referring to Iraq, which is, of course, the war that he got us into back when he was Secretary of State.
And, but I just wonder, you know, whether it's, did everything change when the UN Charter was passed or is it a crime for Barack Obama to just take us to war without consulting the Congress?
Well, you know, impeachment turns on largely on political offenses and Congress gets to decide what those political offenses are.
So certainly something that undermines congressional authorities under the Constitution can be taken as a basis for impeachment and historically has been.
But I'd say, you know, what's happened with Libya really is astonishing in many ways.
Completely apart, you may think that Libya is a great case for humanitarian intervention, that's fine, that's a separate question.
Just look at the political process in the United States.
So I think there's been a broad consensus that a president, if he wants to go to war, has a political responsibility to make the case for going to war to the American people and a legal responsibility to go to Congress and get Congress' approval, either a declaration of war or at least a congressional resolution or statute that authorizes his war making.
And in this case, President Obama, on Wednesday of last week, his national security advisor, Donald was making statements to the media in Washington that Libya did not affect the United States national security interests, essentially saying we're not going to war in Libya, we're not going to be involved in military operations there.
Within 48 hours, we had 111 Tomahawk missiles launched at Libya.
And that's without securing any resolution in Congress and without the president even making a speech, making the case for doing this.
So this is extraordinary.
And President Obama, as a candidate, was harshly critical of Bush and the way he used presidential war making powers, saying that there had not been adequate consultation with Congress and not adequate congressional authority, particularly with respect to the Iraq war.
But President Obama, as president, has way outdone Bush on that score.
Well, you know, there was a report of Salon.com where he was saying, well, if Qaddafi wins, and that could destabilize other countries, and then those other countries being destabilized could threaten our national security interests.
So therefore, it was an emergency.
And then, you know, he got the Russians and the Chinese to not veto it.
So it's legit on the UN Security Council, too.
Well, I would say that those all may be fine arguments.
I mean, you know, I put aside the question of the merits of the military action, just focus on the process and how it should work.
Right.
Well, but what about the UNSC, right?
No, that's no substitute for the Constitution.
Absolutely not.
I mean, and I think that's a big concern that arises from this, that power players in Washington today, including people in the White House and the National Security Council, are really focused on getting the clearance of the Security Council, but they seem totally disinterested in going to Congress and making the case to the American people, which is outrageous.
Well, and it's ironic, too, really, that the Congress most times is worse than the president or the generals or whoever on these issues.
Well, the big concern, the big concern I have here is that congressional leaders are not standing up for the prerogatives of Congress.
You know, they're acting like they're potted palms.
And I think in this case, the problem is the congressional leaders, Democrats and Republicans, were out there making the case for intervention in Libya.
And so they were so happy with his decision on this and his commitment that they didn't insist on their own prerogatives, which is the right of congressional review and authorization.
That's a horrible precedent.
Yeah, well, and I'm afraid this thing's going to spiral out of control now that they're picking sides over there.
They're going to have to follow through.
Oh, come on.
This is just going to be a matter of a couple of days, right?
Yeah.
Cakewalk.
That's what we're always told at the beginning of these conflicts, and it never works out that way.
That's the Filipinos.
I'll tell you.
All right.
Well, thanks very much for your time, as always.
I really appreciate it, Scott.
Great to be with you.
All right, everybody, that is the other Scott Horton heroic international anti-torture human rights lawyer and contributing editor at Harper's Magazine.
Read his blog.
No comment at Harper's dot org and hear him lecture at Columbia Law School.
