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John Yoo Defends Warrant-less Wiretapping

This is a partial transcript from "The Journal Editorial Report," January 28, 2006, that was edited for clarity.

PAUL GIGOT, HOST: The Bush administration mounted a vigorous defense this week of its warrant-less wiretapping program, hoping to bolster public support for a policy that many on the left are hoping to turn into a political liability.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I have the authority, both from the constitution and the Congress, to undertake this vital program.

The American people expect me to protect their lives and their civil liberties, and that's exactly what we're doing with this program. I'll continue to re-authorize this program for so long as our country faces a continuing threat from Al Qaeda and related groups.

(END VIDEO TAPE)

GIGOT: As a deputy assistant attorney general from 2001 to 2003, my guest this week was a chief architect of many of the Bush administration's post-September 11 policies, including the one currently at the center of the political storm.

John Yoo joins me now from Berkeley, California.

John, thanks for being here.

JOHN YOO, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL, U.S. JUSTICE DEPARTMENT: I'm happy to be with you.

GIGOT: The critics of the president's wiretapping program make a simple case. They say a 1978 law required court approval for these kinds of wire tapes. In this case, the president didn't go to that court to get approval, therefore, what he does is illegal.

What's wrong with that argument?

YOO: There are two different arguments that the administration is relying on.

First, the most robust version of it is that the president is the commander in chief. And as the commander in chief, under the constitution, he has the responsibility and the duty to respond to an attack on the United States, which we saw on 9/11. We saw it in New York City.

And that power has to include the ability to respond with force against al Qaeda and other threats to the United States, including those that will produce a direct attack like the kind we saw on 9/11.

Now, that power to use force has ancillary powers, or related powers. One would be the power to detain enemy combatants, which the Supreme Court upheld two years ago.

Another related power and, in some ways and maybe an even more important power, is to gain intelligence on the members of the enemy so you can use force in the best way possible. And presidents have traditionally, since at least Franklin Roosevelt on, have always used that authority to intercept the communications of members of the enemy, including intercepting...

GIGOT: But why, in this case, couldn't he just have gone to the FISA Court and asked the court, "Here's the probable for an Al Qaeda member overseas. We want to listen in." Why could he have gone to the court?

YOO: Well, I can't talk about the specifics of the program, what the program exactly requires because it's still classified. But I can say that the FISA statute isn't really suited to the challenge posed by Al Qaeda.

The FISA statute was written, as you said, in 1978. It was designed to allow us to surveil Soviet spies working at the embassy in Washington or the U.N. headquarters, who were contacting Americans. And it was written for a time of rotary telephones, when there was no e-mail. And it was written for that kind of period.

It wasn't written to anticipate this kind of far-flung network, where members of Al Qaeda could be citizens of many different countries and they're using e-mail, phones to call each other.

And so, just to give you some examples where FISA doesn't quite fit, one is what happens when you're in a world where people can change their e- mail addresses every minute. And so that are people, who are out in cyberspace trying to find them, have to keep moving quickly to keep on their trail.

Do we want our agents to have to continuously got back to the FISA court every time that happens?

Or what happens when members of Al Qaeda, who we know watch our government and watch what we do and watch our political system, what happens if they know about FISA and so they realize that, in order to surveil a U.S. person, which is anyone basically in the United States who's a citizen or a resident alien, they know that you have to got to a FISA court to get a warrant.

Suppose they just started including random Americans, you know, in their coded e-mails. So, if Usama bin Laden wanted to send an e-mail to his second in command, Dr. Zawahiri, suppose he just CC'ed some random person who appeared to be an American?

GIGOT: So it's the speed of these communications in this world.

But let's say Congress still objects here. What recourse do they have politically to be able to stop this? Can they sue? Can there be a legal way to stop this? Or does Congress have to pass legislation?

YOO: Well, I think the Congress has a lot of checks. I don't think the primary check is going to be by going to the courts.

There is, I think, two lawsuits that were just filed against the NSA program. But, I think, they're going to fail because you need to show standing, which means that you have to show that the plaintiff's in those cases actually suffered a harm or were actually surveilled by this program. And they don't appear to have anyone who knows or can show that that happened.

Similarly, a single member of Congress isn't going to be able to go, I think, to a court and try to stop the program.

But Congress can do lots of things. Congress can cut off funding for this program if it wants to. It can reduce the NSA. It can hold up appointments. It can exercise its oversight authority as it's going to do.

Congress can use all the traditional methods it uses to control other aspects of, you know, the giant bureaucracy in the administrative state.

GIGOT: If sounds like what your saying is it's more than a legal fight. This is really a political fight and a fight between the branches and between political actors.

YOO: I think that's right. I think this is a real struggle between the president and Congress and foreign affairs and national security. And that's the way the constitution was designed. It was designed to give both the president and Congress different powers that overlap sometimes and make it conflict, if they want it to, to try to frustrate each other. But if also allows them to cooperate when they agree.

I might add that, you know, Congress hasn't done any of the things we've talked about to try to block the NSA program yet.

GIGOT: OK, John Yoo, author of "The Powers of War and Peace." Thanks. Keep your head down in Berkeley.

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