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. 

Getting Worse With Age.

It has been almost fourteen years since the letter was written, so it might be helpful to glance back at our timeline on NSA surveillance to brush up on the history of post-September 11th national security surveillance expansion. Briefly: the executive branch secretly decided that the express limitations Congress placed in the Foreign Intelligence Surveillance Act (“FISA”) didn’t apply. 

For those familiar with the work of John Yoo’s tenure in OLC, the gist of the basic legal arguments are not new, but for those looking to see how things went so terribly wrong, let’s take a look.

Youngstown? Never heard of it. (Or, secrecy permits excessive executive power plays.)

In the letter, Yoo argues that the Constitution forbids Congress from imposing restrictions on the President’s inherent chief executive and commander-in-chief powers. According to Yoo, the only check on the executive’s national security surveillance practices is the Fourth Amendment; and any limitations Congress passes that raise this constitutional floor are either unconstitutional (because they intrude on the executive’s inherent constitutional authority), or must be narrowly interpreted (that is, subject to a “saving construction”) that bends them back in line with the Fourth Amendment minimum.

With this in mind, Yoo sets his sights on FISA—a law passed by Congress that dictates the terms of the executive branch’s domestic national security surveillance. FISA, and other surveillance statutes, are the “exclusive means by which electronic surveillance and the interception of domestic . . . communications may be conducted.” 50 U.S.C. § 1812.

The letter notes that the surveillance the executive is currently conducting “would be in tension with FISA.” Here’s a legal tip: when you’re telling a federal judge you’ve been violating federal law for the past year, describe your actions as “in tension with” the law, not a violation. Nonetheless, at least he noted that FISA on its face didn’t allow the surveillance.

But here’s another tip: if you’re going to say that violating the law is ok because the law is unconstitutional, you have to cite the leading case on the question. And that’s where Yoo’s letter starts to fall apart. He doesn’t discuss, or even cite, Youngstown Sheet & Tube Co. v. Sawyer—the seminal case on the scope of the executive branch’s inherent wartime constitutional powers.   

And there’s a reason he didn’t mention it: the case is difficult, if not impossible, to harmonize with his desired conclusion.

Youngstown involved actions taken by President Truman to prevent labor strikes at several steel mills during the Korean War. Believing that a strike would cause serious harm to domestic steel production while the country was at war, Truman just went ahead and seized them and ran the mills himself (well, the federal government did). But the Supreme Court said that went too far. The President’s inherent wartime authority is not limitless, and seizing domestic steel mills, in the absence of explicit Congressional approval, went beyond that authority. The most enduring legal principle to emerge from the case is Justice Jackson’s test for determining scope of the executive’s inherent power. According to that test, the executive’s inherent power ebb and flow depending on the circumstances. However, the executive’s constitutional power is at its “lowest ebb” when Congress has explicitly spoken, and disapproved, of actions the executive would like to take.

The NSA’s surveillance program fails Justice Jackson’s test: Congress, through FISA, set out the “exclusive means” for the executive branch to conduct national security surveillance. It also, specifically, included a provision that dealt with FISA surveillance in times of war. And it did so in direct response to the surveillance overreach of the 1970s, so there’s no room for misunderstanding. That means the executive’s inherent authority is at its “lowest ebb,” and it doesn’t get to pick and choose which authorities apply to its surveillance.

(And don’t get us started on the Fourth Amendment analysis.)

Too Little Too Late?

The government’s ponderous declassification process released this letter far too late to have much more than historical impact. But, in the end, the secrecy clouds parted, and the pattern is clear; we’re back in a place we’ve been time and again. One-sided legal arguments lead to one-sided legal interpretations. The government’s secret process let it get away with drafting an entire 22-page letter that did not even cite let alone grapple with these issues.  We don’t know what Judge Kollar-Kotelly did in response to this letter either, something we’d be very curious to learn. 

But if there is a silver lining in this belated disclosure it is that it came out the same month as EFF was granted permission to begin discovery in Jewel v. NSA. In Jewel we may finally be able to take a closer look at what happened in the past, and hopefully get some clear judicial rulings about it, so that we know how to stop it in the future. Stay tuned.