The Obama Administration Has Embraced Legal Theories Even Broader Than John Yoo’s

The Justice Department recently released another of the now-notorious Office of Legal Counsel memos written by John Yoo — memos that authorized torture, warrantless wiretapping, and indefinite detention. The new memo, written as a “letter” to then-presiding FISC Judge Colleen Kollar-Kotelly in May 2002, addresses the legal basis for the NSA’s warrantless wiretapping of Americans’ communications under the “Stellar Wind” program.

Unsurprisingly, Yoo’s memo is extremely broad and poorly reasoned — but we knew that much already, thanks to Jack Goldsmith and Jim Comey. Still, it would be a mistake to think of Yoo’s memo as just an historical artifact, full of long-repudiated legal arguments. In fact, many of the arguments Yoo made behind closed doors in 2002 continue to appear in the Obama administration’s briefs defending warrantless surveillance under Section 702 of FISA today. And, in at least one key respect, the Obama administration’s arguments are even broader than the ones that Yoo felt he could justify.

Like Yoo, the Obama administration has argued that Americans have a “greatly reduced” expectation of privacy in their international communications — so diminished, in fact, that no warrant is necessary for the government to intercept and search those communications. That might come as a surprise to the millions of Americans who regularly engage in personal or confidential communications with family, friends, business associates, and others overseas. When you pick up the phone to call a family member abroad, there is no reason to believe that your communication is any less private than calling a friend across town. The Supreme Court has certainly never said any such thing. Indeed, Yoo eventually admitted in his memo that the case law did not support the suspicionless interception of “the contents of telephone or other electronic communication[s]” — though he then proceeded to ignore his own conclusion.

But that has not stopped the government from making the same claims in the Section 702 cases now moving through the courts. The government has embraced Yoo’s position, arguing that the privacy interests of US persons in international communications are “significantly diminished, if not completely eliminated,” when those communications are sent to or from foreigners abroad...

https://www.justsecurity.org/30460/obama-administration-embraced-legal-theories-broader-john-yoos/

OLC: President May Withhold WMD Info from Congress

Despite an explicit statutory requirement to keep Congress “fully and currently informed” about the proliferation of weapons of mass destruction, the President may withhold proliferation-related information from Congress if he determines that doing so could harm the national security, according to a sweeping opinion from the Justice Department Office of Legal Counsel (OLC) that was prepared in 2003.

The opinion, written by then-OLC deputy John C. Yoo, was released this week under the Freedom of Information Act. See Presidential Authority to Protect National Security Information, January 27, 2003.

The OLC opinion takes an uncompromising view of presidential authority. It reviews multiple statutes that mandate disclosure of various types of information to Congress, including requirements to report on WMD proliferation and to keep the intelligence committees “fully and currently informed of all intelligence activities.” It then concludes that those statutes cannot override, modify or limit the President’s constitutional prerogatives.

“Despite Congress’s extensive powers under the Constitution, its authorities to legislative [sic] and appropriate cannot constitutionally be exercised in a manner that would usurp the President’s authority over foreign affairs and national security,” the OLC opinion said.

Even to a layman, the Yoo opinion seems muddled and poorly argued, in several respects...

http://fas.org/blogs/secrecy/2015/08/olc-nsi/

Wiki: John Rizzo

...Rizzo was hired at the CIA in 1976, just after the Church Committee released its report on the assassination of foreign leaders. By 1979, Rizzo became the staff lawyer for the Directorate of Operations, the CIA's clandestine branch.[5] He served as the liaison between the CIA and the congressional investigators studying the Iran-Contra affair in the 1980s.[7] Rizzo became Acting General Counsel of the CIA in November 2001, a position that was traditionally filled by someone from outside the agency.[8]...

...The Joint Personnel Recovery Agency, which ran the U.S. military's SERE program to train U.S. personnel to resist harsh interrogation methods, issued a memo with an attachment written to the General Counsel of the Department of Defense in July 2002.[15] The memo, which was passed on from the Pentagon to Rizzo, referred to the use of extreme duress on detainees as "torture" and warned that it would produce "unreliable information."[16]

Rizzo sent a request to the Department of Justice's Office of Legal Counsel for an opinion as to whether certain interrogation techniques would violate the prohibition against torture. The OLC issued a memo signed by Jay S. Bybeeto Rizzo on August 1, 2002; this was the first of what became known as the Torture Memos, in which Justice authorized specific techniques to be used in interrogations.[17] It approved 10 techniques, including waterboarding.[14] Rizzo concurred on the legality of these techniques and saw to it that they were implemented by the CIA.[18]

Rizzo traveled with David Addington, the Vice President's chief of staff; William Haynes, General Counsel of the Department of Defense; and Michael Chertoff, then the head of the Criminal Division of the Department of Justice, to consult with officers at the Guantanamo Bay detention camp in late September 2002. One week later, a CIA lawyer told personnel with the military intelligence interrogation team at Guantanamo that, "if the detainee dies, you're doing it wrong."[19]...

...In early 2005, White House Counsel Harriet Miers told Rizzo not to destroy the tapes without checking with the White House first.[29] Jose A. Rodriguez Jr., the chief of the Directorate of Operations, sent a cable to the CIA's Bangkok station ordering the destruction of the tapes on November 8, 2005.[29][30] Rodriguez informed Goss and Rizzo of the destruction on November 10.[29]...

...Rizzo signed off on all CIA directed drone strikes from the start of the program soon after September 11, 2001 until his retirement in October 2009.[3] He claims to have seen one "request for approval for targeting for lethal operation" per month and that roughly 30 individuals were targeted at any given time.[6]

In July 2011, the human rights group Reprieve and Pakistani lawyers called for the prosecution of Rizzo in Pakistan for murder for approving drone attacks that killed hundreds of people.[31][32][33][34] In April 2015, the Islamabad High Court ordered police to open a criminal case against Rizzo and former CIA Islamabad Station Chief Jonathan Bank for murder, conspiracy, terrorism and waging war against Pakistan.[35]...

https://en.wikipedia.org/wiki/John_A._Rizzo

Wiki: Jay Bybee

During Jay Bybee's tenure at the OLC, the CIA acting General Counsel John A. Rizzo requested a legal opinion on detainee interrogation. That request was routed to the OLC by the White House General Counsel Alberto Gonzales, who desired the "ability to quickly obtain information from captured terrorists and their sponsors."[11] The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking Al-Qaeda members captured outside the United States in ways some regard as torture. In effect, the CIA was asking for an interpretation of the statutory term of "torture" as defined in 18 U.S.C. § 2340. That section implements, in part, the obligations of the United States under the Geneva Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment.

Bybee signed that legal memorandum which endorsed "enhanced interrogation techniques" as lawful. These same techniques are viewed as torture by the Justice Department,[12] Amnesty International,[13] Human Rights Watch,[14] medical experts in the treatment of torture victims,[15][16] intelligence officials,[17] and American allies.[18] This memo has been the source of controversy; critics of his action have called for his impeachment or resignation.[19] Bybee was considered a subject of a war crimes investigation in Spain,[20] but the government decided against prosecution in 2011.

A memo declassified in 2012 indicates that some in the Bush State Department believed that the methods were illegal under domestic and international law, and constituted war crimes.[21] Secretary of State Colin Powell strongly opposed the invalidation of the Geneva Conventions,[22] and U.S. Navygeneral counsel Alberto Mora campaigned internally against what he saw as the "catastrophically poor legal reasoning" of the memo.[23] Philip D. Zelikow, former State Department adviser to Condoleezza Rice, in 2009 testified to the Senate Judiciary Committee studying the matter, "It seemed to me that the OLC interpretation of U.S. Constitutional Law in this area was strained and indefensible. I could not imagine any federal court in America agreeing that the entire CIA program could be conducted and it would not violate the American Constitution." Zelikow also alleged that Bush administration officials attempted to destroy his memos alleging fault in Bybee's reasoning.[24]...

https://en.wikipedia.org/wiki/Jay_Bybee