Obama DOJ: John Yoo Memos on Spying Must Stay Secret

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The American people should be allowed to know the legal reasoning offered to justify warrantless surveillance during the Bush Administration

john yoo fullness.jpg

What was Bush Administration lawyer John Yoo thinking when he wrote various legal memos declaring that the president has the power to spy on American citizens without getting a warrant or telling anyone about it?

The Obama Administration isn't telling:

The Obama administration has refused to declassify a secret memo from the George W. Bush presidency that justified the warrantless spying conducted by the National Security Agency (NSA).
 
Matthew Aid, a writer who's covered the NSA and surveillance policy, requested a copy of a 2001 Office of Legal Counsel (OLC) opinion by John Yoo that discussed the legal grounds for electronic spying without permission from a special federal court. The Department of Justice mostly denied Aid's Freedom of Information Act request, saying the redacted information in the OLC opinion was "classified, covered by non-disclosure provisions contained in other federal statutes, and is protected by the deliberative process privilege."

They did release 8 sentences from a 21 page memo.

Said John Yoo: "Intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures."

In contrast, the 4th Amendment to the U.S. Constitution states the following: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It's no wonder that, evaluating other memos Yoo wrote, the ethics lawyers in the Office of Professional Responsibility concluded that he was guilty of "professional misconduct," a judgment he escaped when a higher up concluded that his reasoning was "flawed" and "extreme" but sincerely held. By keeping Yoo's legal reasoning secret, the Obama Administration is once again siding with the Bush Administration and against the innocent Americans it victimized. When the executive branch takes an unprecedented action, in secret, that is later deemed illegal, the American people have an obvious, legitimate interest in understanding how it happened. Shame on the Obama Administration for standing in the way of transparency.

Image credit: Reuters 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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