Judge awards $2.5 million to attorneys in Yoo case

John Yoo's November 2001 legal justification for a secret wiretapping program was a hit with George W. Bush's White House but got bad reviews from other quarters, including Yoo's successors in the Justice Department and the department's inspector general.

Add another critic to the list: Chief U.S. District Judge Vaughn Walker in San Francisco, who awarded more than $40,000 in damages and $2.5 million in attorneys' fees this week to a target of Bush-era wiretapping.

"Wholly apart from the apparent weakness of Yoo's legal analysis, it is disquieting that for more than a year and a half, sole responsibility for determining the legality of the (program) was reposed in a single official," Walker wrote.

He said that because Bush administration officials had relied on Yoo's flawed advice in authorizing surveillance, the White House did not deliberately violate the rights of the Al-Haramain Islamic Foundation during more than seven months of warrantless wiretapping in 2004.

That means there is no basis for punitive damages against the government, Walker said. But he awarded more than $20,000 each in compensation to two Al-Haramain lawyers whose calls were intercepted.

Ruled illegal

Walker ruled the wiretapping illegal in March, rejecting arguments - based on Yoo's 2001 Justice Department memo - that the president has constitutional authority to override a 1978 law requiring court approval for electronic surveillance in national security cases.

Tuesday's decision on damages may have been Walker's last major ruling. A judge since 1989, he is retiring in February and is scheduled to teach a course in the spring at UC Berkeley Law School, where Yoo is a tenured professor.

Walker was "giving the government a fall guy (by saying) it's John Yoo's fault," said attorney Jon Eisenberg, who has represented Al-Haramain in the nation's only successful challenge to the wiretap program. "This is quite an indictment of John Yoo."

Yoo has not responded to requests for comment. But he defended himself last year after the Justice Department's inspector general, joined by auditors from four other agencies, criticized his work on the surveillance program.

The auditors "were responding to the media-stoked politics of recrimination," Yoo wrote in a July 2009 column in the Wall Street Journal. He said the 1978 statute requiring judicial warrants for security-related wiretapping was "an obsolete law not written with live war with an international terrorist organization in mind."

In fact, however - as Yoo's Justice Department successors pointed out when they repudiated his opinion - the 1978 law contained wartime provisions that gave the president 15 days to wiretap before seeking court approval.

How it happened

Yoo was a lawyer in the department's Office of Legal Counsel, which analyzes legal issues for the president, in October 2001 when Bush authorized federal agents to intercept phone and e-mail messages between Americans and foreign terror suspects without a warrant.

Several weeks later, Yoo - the only attorney in the office to be told about the program - wrote a still-classified opinion finding that the surveillance was legal.

Bush's power

His memo, quoted in last year's audit, said the 1978 law did not restrict Bush's authority to order surveillance - and that any such limitation would violate the president's "inherent constitutional powers" to protect the nation.

Bush relied on Yoo's advice in reauthorizing the program every 45 days. After Yoo left the department in May 2003, his successor and the office's new director rejected Yoo's analysis, saying he had ignored key provisions of the 1978 law and a 1952 Supreme Court ruling limiting the president's power to defy Congress.

The two took their concerns to Attorney General John Ashcroft, who refused to reauthorize the program from his hospital bed in March 2004 in a confrontation with Bush's chief of staff, Andrew Card, and legal counsel Alberto Gonzales.

After FBI Director Robert Mueller and several Justice Department officials threatened to resign, Bush agreed to make still-undisclosed changes in the program and renewed it with department approval. Congress authorized a modified surveillance program in 2007.

The inspector general's July 2009 report found that Yoo, in his November 2001 memo and later documents, misrepresented the scope of the surveillance program and caused a "serious impediment to recertification."

E-mail Bob Egelko at begelko@sfchronicle.com.

This article appeared on page A - 10 of the San Francisco Chronicle

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