Comments on: Warrantless Wiretap Memos Timeline

By: Mary

Mary — Sat, 05 Apr 2008 16:49:53 +0000

The FISC opinion from May 2002 internally references the existence of another DOJ memo, a memo “addressed to the Director of the FBI and other senior Justice Dept executives and dated March 6, 2002″

That memo appears to be directed towards the standards (the reducing or doing away with the standards) to both lessen minimization standards and also to do away with some of the crosspollinization restrictions between criminal and intelligence investigations. While it may not technically be an authorization for any of the wiretap programs, the fact that it reflected on how the information from surveillance would be treated for criminal investigation purposes seems as if it should make it relevant to at least some of the requests I have seen outstanding, but it isn’t mentioned on any of the lists of the not produced documents.

The whole FISC opinion is remarkable in a sense, in that they are ruling on these matters of use, cross-use, minimization, etc. without DOJ ever referring to the amalgamation and use of all the information collected outside of FISC and outside of the 4th Amendment warrant protections and how all that information from those illegal programs is intended to be interwoven into the cloth of review/constraints. The existence of this kind of review and ruling realy does highlight why a judge from the panel that had basically been misled (other than Lamberth) as to what was being done with surveillance and with criminal/intelligence barriers, given the existence of a massive extra-judicial program - why a judge would resign after the illegal program came out.

By: Mary

Mary — Sat, 05 Apr 2008 16:00:38 +0000

Wonderful timeline and in particular thank you for the link to the FISC opinion from May 2002. No wonder Roberts resigned in protest when the illegal program came out - hard for them to consider and issue an opinion like that, relying on all those representations that leave out a massive illegal program on the side. Interesting, too, that there was supposed to be an OPR investigation from the 2000 violations (which IIRC invovled Townsend). Crickets from that, eh? Guess OPR has been dead for longer than we might have thought.

Re: you March 13, 2003 entry on Bybee, Lederman has amended that date to March 28, 2003 (”the Senate confirmed Jay Bybee to be a federal judge on March 13, 2003, Jay did not take the oath of office until March 28th, at which point his resignation from OLC became effective”)

By: sailmaker

sailmaker — Sat, 05 Apr 2008 14:06:55 +0000

Here is a tidbit from the Legal Ethics Forum in January:

So far, it appears that no one (that includes every lawyer in Pennsylvania) has filed a complaint with the Pennsylvania Supreme Court’s Disciplinary Board to get John Yoo disbarred for failure to support and defend the Constitution or for knowingly or negligently providing incorrect advice (otherwise known as malpractice) to the Justice Department.
As a member of the Pennsylvania bar, Yoo swore to defend and support the U.S. Constitution. The allegations in the Pedilla litigation, if proved, would form a clear basis for disbarment proceedings against Yoo. John Yoo’s Pennsylvania Bar membership number is: 69500
Filing a complaint is easy: Instructions are available at http://www.padisciplinaryboard.....nsumer.php and formsare available at http://www.padisciplinaryboard.....nsumer.php

Since Yoo is a resident of California, the complaint is best filed in the Philadelphia district office of the Board (the instructions direct filings depending upon place of residence in Pennsylvania, provide no instructions for out of state residents, but indicate that wherever filed they will be forwarded to the correct office for investigation):

Pennsylvania Supreme Court
Disciplinary Board
District 1 Office
16th Floor, Seven Penn Center
1635 Market Street
Philadelphia, PA 19103

Link:http://legalethicsforum.typepad.com/blog/2008/01/david-lubans-th.html

Judges get some kind of immunity from liability/damages for their rulings, which IMO should be looked into given the quasi-legal status of the OLC (not judges but not chopped liver either), after it is established that Yoo is/or was a member of the bar, somewhere. http://balkin.blogspot.com/200.....v-yoo.html

By: dude

dude — Sat, 05 Apr 2008 13:59:50 +0000

So the broad outlines are these: 1. Somewhere back in the Clinton era–maybe even the Bush-1 era– the idea of Total Information Awareness is resurrected along with proponent John Poindexter. Probably after the Cole or Twin Tower assault Number One. There is a general realization that terrorism is threat and the inclination to use Silicon Valley American Strength is high. Programs that lead to Thin Thread go into testing and development because everybody knows TIA under Reagan was just an idea ahead of its time, and a response to the “old school” politics of people like Sen. Frank Church–”who couldn’t possibly have foreseen” a nation in peril by terrorism a generation ago. 2. Government contract research does not proceed without at least a schematic understanding of the related law. Probably as early as Reagan the legal foundations for attacking rights to privacy accelerated in response to calling Ollie North a traitor and embarrassing John Poindexter in public. I imagine Dick Cheney and Donal Rumseld had their feelings hurt around then and swore if ever they had the chance, they’d find a way to get even. And so they did. 3. But it wasn’t easy because bureaucracies and career professionals have institutional memory–which means they are not malleable and suffer from the inertia of hindsight (or, they learn from experience–take your pick). By the arrival of Clinton, the technology was essentially there for test-bed application; the alarm over terrorist must have grown to a level where leaders wondered
“is this the Manhatten Project of our time” and should we have scruples about deploying it. I suspect some even thought it was like “Fat Man” and “Little Boy”—would it work just when we need it to, or is it a tantalizing fantasy? 4. Any institutional resistance was overcome with the election of Bush-2. The technology was absolutely going to be used come hell-or-high water. What’s the point of having it if you don’t? It isn’t like an A-Bomb because you can’t demonstrate it to a wary enemy and intimidate them. In fact, its effectiveness is lessened the more the enemy knows about it. This has to be the Manhatten Project that never sees the kleig light of history. People like Ashcroft and Richard Clark are viewed as anachronisms as much as they are obstacles.

Does this sound about right?

By: sailmaker

sailmaker — Sat, 05 Apr 2008 13:59:29 +0000

Here is a tidbit from the Legal ethics forum:

So far, it appears that no one (that includes every lawyer in Pennsylvania) has filed a complaint with the Pennsylvania Supreme Court’s Disciplinary Board to get John Yoo disbarred for failure to support and defend the Constitution or for knowingly or negligently providing incorrect advice (otherwise known as malpractice) to the Justice Department.
As a member of the Pennsylvania bar, Yoo swore to defend and support the U.S. Constitution. The allegations in the Pedilla litigation, if proved, would form a clear basis for disbarment proceedings against Yoo. John Yoo’s Pennsylvania Bar membership number is: 69500
Filing a complaint is easy: Instructions are available at http://www.padisciplinaryboard.....nsumer.php and formsare available at http://www.padisciplinaryboard.....nsumer.php

Since Yoo is a resident of California, the complaint is best filed in the Philadelphia district office of the Board (the instructions direct filings depending upon place of residence in Pennsylvania, provide no instructions for out of state residents, but indicate that wherever filed they will be forwarded to the correct office for investigation):

Pennsylvania Supreme Court
Disciplinary Board
District 1 Office
16th Floor, Seven Penn Center
1635 Market Street
Philadelphia, PA 19103

Link: http://legalethicsforum.typepa.....ns-th.html

There is a bit on Balkinization about whether or not quasi judicial legal opinions get the same legal immunity as real judicial legal opinions, which IMO should be looked at after it is established that Yoo was a member of the bar- somewhere. http://balkin.blogspot.com/200.....v-yoo.html

By: Peterr

Peterr — Sat, 05 Apr 2008 13:37:07 +0000

Don’t know — the PA Bar site doesn’t seem to have a list of current members, nor did Yoo show up in a general search there.

It also makes me wonder: why PA? I don’t know enough of his background to say whether he once practiced there, or whether PA has an easier bar exam than other states, or whether there is some other reason why PA was the bar of choice. The first position listed on that bio (not including the two clerkships) is General Counsel for the Senate Judiciary Committee — perhaps PA is an homage to Haggis, or Haggis guided him to the PA Bar.

By: wavpeac

wavpeac — Sat, 05 Apr 2008 13:34:41 +0000

Thank you god (universe, science) for this site. I have to work all day but I can’t wait to continue reading. This is a fascinating thread and timeline (as always) but it feels like we are getting closer to the unraveling than we have been before. I could be wrong her but the last 10 or so posts on this site have ignited my flame of hope again. I fear the only way to restore our democracy is the impeachement and/or (if it doesn’t occur while they are in office) prosecution of crimes against this traitorous and destructive administration. Every american needs to be fully educated about how this administration was able to grab so much power that it could take us to war, line it’s pockets with wealth, gut our constitution and then say “see ya!” I want my children and children’s children to understand the impact to our constitution, our democracy, and all that has been validated about our way of life, by the universe. America has been undone by capitalism almost as fully as the Soviet Union was undone by communism. (not Reagan…what a lucrative lie for the republicans).

By: emptywheel

emptywheel — Sat, 05 Apr 2008 13:27:12 +0000

That’s 2002. Is he STILL a member of these two bars?

By: Peterr

Peterr — Sat, 05 Apr 2008 13:21:36 +0000

The Institute for Corean-American Studies [sic] honored Yoo in Jan 2002 with their annual Liberty Award, along with co-recipient Becky Norton Dunlop of the Heritage Foundation. Here is the bio for Yoo that they produced for the award ceremony. According to this, Yoo is (or was in 2002) a member of the “Bar of the Commonwealth of Pennsylvania” and the “Bar of the U.S. Court of Appeals for the Ninth Circuit.”

If you click through the links there, Yoo gave a speech at the dinner on “The Immigrant and Civic Duty.” I couldn’t bring myself to click on the speech to see what he said. At least not before coffee.

By: emptywheel

emptywheel — Sat, 05 Apr 2008 12:19:57 +0000

Trust me, Conyers will not impeach W without also impeaching Cheney. He says it has to be a double impeachment every time he talks about impeachment.

Though I don’t know why he didn’t just start with Dick./