Warrantless Wiretap Memos Timeline

I laid out the OLC opinions described in the Steven Bradbury declaration to the ACLU. In this post, I’ll add in the other significant documents he describes. Note, Bradbury names four documents–OLC 56, 57, and 58, and OIPR 138–which are documents created by the President or his immediate staff, and so are not agency documents; he provides no description of these documents. There are, of course, a great number of documents withheld, which therefore have no description or date.

Materials not included in Bradbury’s memos are not bold.

October 4, 2001, from DAAG OLC to Alberto Gonzales: OLC 132,which consists of two copies, one with handwritten comments and marginalia, of a 36-page memorandum, dated October 4, 2001, from a Deputy Assistant Attorney General in OLC to the Counsel to the President, created in response to a request from the White House for OLC’s views regarding what legal standards might govern the use of certain intelligence methods to monitor communications by potential terrorists.

October 21, 2001, from Ashcroft to Mueller: FBI 7 is a one-page memorandum, dated October 20, 2001, from the Attorney General to the Director of the FBI, advising the Director that certain intelligence collection activities are legal and have been appropriately authorized. The memorandum is classified TOP SECRET.

October 23, 2001, from Yoo and Delahunty to Alberto Gonzales: OLC 146, which is a 37-page memorandum, dated October 23, 2001, from a Deputy Assistant Attorney General in OLC, and a Special Counsel, OLC, to the Counsel to the President, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.

November 2, 2001, from DAAG OLC to John Ashcroft: OLC 131, which consists of two copies, both with underscoring and marginalia, of a 24-page memorandum, dated November 2, 2001, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request from the Attorney General for OLC’s opinion concerning the legality of certain communications intelligence activities.

January 9, 2002, from DAAG OLC to Ashcroft: OLC 115 is a two-page memorandum for the Attorney General from a Deputy Assistant Attorney General, OLC, dated January 9, 2002, which relates to the Attorney General’s review of the legality of the President’s order authorizing the TSP in the course of considering that program’s reauthorization, which was done approximately every 45 days

February 8, 2002, from DAAG OLC to General Counsel of another agency: OLC 62, which consists of two copies, one with highlighting and marginalia by an OLC attorney, of a February 8, 2002, memorandum from a Deputy Assistant Attorney General in OLC to the General Counsel of another federal agency, prepared in response to a request for OLC views regarding the legality of certain hypothetical activities.

May 17, 2002: FISC revises DOJ’s proposed information sharing procedures.

October 11, 2002, from DAAG OLC to John Ashcroft: OLC 129, which consists of two copies, one with handwritten comments and marginalia, of a nine-page memorandum, dated October 11, 2002, from a Deputy Assistant Attorney General in OLC to the Attorney General, prepared in response to a request for OLC’s views concerning the legality of certain communications intelligence activities.

February 25, 2003, from DAAG OLC to John Ashcroft: OLC 16, which consists of four copies, one with handwritten marginalia, of a 12-page memorandum, dated February 25, 2003, for the Attorney General from a Deputy Assistant Attorney General for OLC, prepared in response to a request from the Attorney General for legal advice concerning the potential use of certain information collected in the course of classified foreign intelligence activities.

March 13, 2003: Jay Bybee approved to Ninth Court. Addington and Gonzales try to appoint Yoo as his replacement, but Ashcroft refuses. Ed Whelan Acting AAG.

May 30, 2003, DAAG OLC to GC of another agency: ODAG 42 is a 19-page memorandum, dated May 30, 2003, from a Deputy Assistant Attorney General in OLC to the General Counsel of another Executive Branch agency.

June 2003: John Yoo leaves his position at OLC.

October 3, 2003: Jack Goldsmith confirmed as head of OLC.

December 11, 2003: Comey appointed Deputy AG.

March 3 or 4, 2004: Ashcroft and Comey agree they cannot recertify the NSA domestic spying program.

March 4, 2004: Ashcroft hospitalized with pancreatitis.

March 10 2004: The hospital confrontation between Comey and Gonzales and Card.

March 11, 2004: Bush reauthorizes the NSA domestic spying program without DOJ’s certification of legality.

March 11, 2004, from Goldsmith to Gonzales: OIPR 140 is a one-page letter dated March 11, 2004, from the Assistant Attorney General for OLC, to the White House Counsel seeking clarification regarding advice that OLC had been requested to provide concerning classified foreign intelligence activities.

March 12, 2004, from Goldsmith to Comey: OIPR 139 is a one-page memorandum dated March 12, 2004, to the Deputy Attorney General from the Assistant Attorney General for OLC, which provides legal advice concerning certain decisions relating to classified foreign intelligence activities.

March 14, 2004: OLC 125 is an undated two-page document entitled "Presentation: Where DOJ is on [REDACTED CLASSIFIED CODENAME]." OLC 126 consists of two copies of a five-page document, dated March 14, 2004, which consists of bullet points related to OLC 125. OLC 125 and OLC 126 were prepared for purposes of providing legal assistance and advice to other Executive Branch officials concerning DOJ’s views about foreign intelligence activities

March 15, 2004, from Goldsmith to Comey: OLC 64 [the same as FBI 5] consists of four copies of a three-page memorandum dated March 15, 2004, for the Deputy Attorney General from the Assistant Attorney General for OLC, plus an electronic file, which outlines preliminary OLC views with respect to certain legal issues concerning classified foreign intelligence activities. The memorandum specifically notes that OLC’s views have "not yet reached final conclusions" and that OLC is "not yet prepared to issue a final opinion."

March 16, 2004, from Comey to Gonzales, cc’ed to Card: OLC 63 [the same as FBI 4] is a two-page memorandum (and related electronic file) dated March 16, 2004, from the Acting Attorney General to the Counsel to the President, copied to the President’s Chief of Staff, containing legal recommendations regarding classified foreign intelligence activities.

March 22, 2004. from Goldsmith to Comey: OLC 114 consists of two copies of a three-page memorandum dated March 22, 2004, to the Deputy Attorney General from the Assistant Attorney General for OLC, which confirms oral advice provided by OLC on a particular matter concerning classified foreign intelligence activities.

March 30, 2004, briefing from Comey to Ashcroft: OLC 65 is a five-page document (plus an electronic file), dated March 30, 2004, entitled "Briefing for AG." This outline for a briefing to be provided to the Attorney General by the Deputy Attorney General prepared by Department staff includes a summary of preliminary OLC conclusions concerning the TSP and other intelligence activities; a discussion of issues for decision concerning these intelligence activities; a description of advice provided by OLC to other Executive Branch agencies and components concerning these activities; and an identification of legal issues requiring further discussion.

May 6, 2004, from Jack Goldsmith for John Ashcroft: OLC 54 which consists of six copies, some with handwritten comments and marginalia, of a 108-page memorandum, dated May 6, 2004, from the Assistant Attorney General for OLC to the Attorney General, as well as four electronic files, one with highlighting, prepared in response to a request from the Attorney General that OLC perform a legal review of classified foreign intelligence activities.

June 17, 2004: Jack Goldsmith announces his resignation.

July 16, 2004, from Jack Goldsmith for Ashcroft: OLC 85, which is a nine-page memorandum, with highlighting, dated July 16, 2004, from the Assistant Attorney General in OLC to the Attorney General, evaluating the implications of a recent Supreme Court decision for certain foreign intelligence activities.

Late July 2004?: Goldsmith leaves, Daniel Levin Acting AAG OLC.

August 9, 2004, to Comey: OLC 51 is a one-page memorandum, dated August 9, 2004, from the Acting Assistant Attorney General for OLC to the Deputy Attorney General entitled "Proposed Memorandum," which contains OLC’s advice concerning a decision to be made by the Deputy Attorney General regarding an intelligence collection activity.

Late October 2004: Top Administration officials convince NYT to spike the NSA domestic spying story.

November 17, 2004, memorandum "for the file": OLC 59, which consists of four copies Of an 18-page memorandum for the file, dated November 17, 2004, from the Acting Assistant Attorney General in OLC, plus an electronic file, prepared in response to a request for OLC views regarding the applicability of certain statutory requirements.

February 14, 2005: Gonzales sworn in.

June 23, 2005: Steven Bradbury nominated AAG OLC, becomes Acting AAG.

August 15, 2005: Comey’s Farewell Address.

December 16, 2005: Risen and Lichtblau’s first story on the NSA domestic spy program.

December 18, 2005: OLC 81 consists of 11 copies, some drafts and some with handwritten marginalia and notes, of four pages of briefing notes, dated December 18, 2005, which describe the TSP and other foreign intelligence activities and summarize various OLC legal opinions related to foreign intelligence collection activities. OLC 81 was created so that I could brief Department officials regarding foreign intelligence activities and OLC views following the publication of the article in The New York Times which divulged without authorization classified information concerning the TSP.

January 1, 2006, Lichtblau and Risen tell the story of the hospital visit.

January 6, 2006: OLC 82 consists of 20 copies, some drafts and some with handwritten edits and marginalia, plus eight related electronic files of a briefing outline, dated January 6, 2006, summarizing various topics related to foreign intelligence activities. OLC 82 was created as an outline for my use in the course of briefing members of the FISC.

February 17, 2006: WH refuses to allow Ashcroft, Comey, and Goldsmith to testify before SJC.

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35 replies
  1. WilliamOckham says:

    I want to know where all the back and forth between OLC and the NSA (presumably) about “international terrorists groups potentially affiliated with al Qaeda” fits in. The correspondence goes on for nearly 3 years. Why would the OLC lawyers need all that?

    • emptywheel says:

      Couldn’t figure out a way to get that in.

      I suppose it’s there because it’s the rationale the spooks use to justify tapping a particular group. So take Hamas. Can you tap them using this program? The program was “approved” for use with the WOT, and in some way, that legal justification ties to the Afghan AUMF. So to tap them you need to find some way to claim that they’re closely enough related to AQ to justify tapping.

      Though, of course, they DON’T need to do that anymore, since they can tap anything pertaining ot foreign intelligence. Those communications illustrate, in a really clear way, how much bigger the program got in August with PAA.

  2. MadDog says:

    Got EPU’d with some good stuff in a comment by kspena.

    So, I’ll re-post some of my comments about it right here if you don’t mind. *g*

    This stuff about “Thin Thread” raises the hair on the back of my neck:

    Officials say that after the successful tests of ThinThread in 1998, Taylor argued that the NSA should implement the full program. He later told the 9/11 Commission that ThinThread could have identified the hijackers had it been in place before the attacks, according to an intelligence expert close to the commission.

    But at the time, NSA lawyers viewed the program as too aggressive. At that point, the NSA’s authority was limited strictly to overseas communications, with the FBI responsible for analyzing domestic calls. The lawyers feared that expanding NSA data collection to include communications in the United States could violate civil liberties, even with the encryption function.

    And this was in 1998 under Clinton! NSA was hoovering domestic communications back then.

    There can be zero doubt about the fact that Washington has been lying to us all for years regarding illegal domestic communications intercepts.

    Fookin’ lying through their teeth! And Congress had to have known about it!

    Again from kspena’s link:

    After the 2001 attacks, the NSA lawyers who had blocked the program reversed their position and approved the use of the program without the enhanced technology to sift out terrorist communications and without the encryption protections.

    The NSA’s new legal analysis was based on the commander in chief’s powers during war, said former officials familiar with the program. The Bush administration’s defense has rested largely on that argument since the warrantless surveillance program became public in December.

    And the next part is out and out BULLSHIT!

    The strength of ThinThread’s approach is that by encrypting information on Americans, it is legal regardless of whether the country is at war, according to one intelligence official.

    Basically, this “intelligence official/cum legal expert” says it is perfectly legal to capture and record all of our communications, just as long as they don’t “listen” to them…until such time as they think they should “listen” to them.

    Fookin’ BULLSHIT!

    How about they just place cameras in our homes and promise not to watch…until they want to watch?

    Fookin’ BULLSHIT!

    Hillary, you might want to kick Bill in the family jewels and ask him: “WTF were you thinking?”

    Another set of links about “ThinThread” from Wiki:

    NSA datamining pushes tech envelope

    ThinThread, a technology developed in the late ’90s for wiretapping and providing sophisticated analysis of large amounts of resulting data was one of these projects. Designed to both collect data as well as encrypt sensitive or private information for later analysis, the program operated within legal and privacy-based boundaries via that encryption.

    After the Sept. 11, 2001, attacks, policy changed and the ThinThread project evolved into a system known as Trailblazer. Designed to gather similar data but without the encryption feature built into the ThinThread technology to provide privacy aspects, the Trailblazer technology and the resulting phone-tap efforts that have grown from this have been deployed as a critical terrorist-locating tool and defended as “critical to our national security” via the Bush administration.

    SAIC Announces Financial Results for Fiscal Year 2003

    A contract from the National Security Agency (NSA) to provide the technology demonstration platform phase of the TRAILBLAZER program. This phase of the program currently is estimated at $280 million and will be performed over a period of 26 months.

    And finally, the Baltimore Sun reporter who wrote that story in May of 2006 is none other than Siobhan Gorman. Siobhan has since moved on to “better” digs at the Wall Street Journal where she published this story just last month: NSA’s Domestic Spying Grows As Agency Sweeps Up Data

  3. MadDog says:

    Got EPU’d a couple threads back with a great comment by kspena.

    I thought I’d add my comments here again if you don’t mind. *g*

    This stuff about “Thin Thread” raises the hair on the back of my neck:

    Officials say that after the successful tests of ThinThread in 1998, Taylor argued that the NSA should implement the full program. He later told the 9/11 Commission that ThinThread could have identified the hijackers had it been in place before the attacks, according to an intelligence expert close to the commission.

    But at the time, NSA lawyers viewed the program as too aggressive. At that point, the NSA’s authority was limited strictly to overseas communications, with the FBI responsible for analyzing domestic calls. The lawyers feared that expanding NSA data collection to include communications in the United States could violate civil liberties, even with the encryption function.

    And this was in 1998 under Clinton! NSA was hoovering domestic communications back then.

    There can be zero doubt about the fact that Washington has been lying to us all for years regarding illegal domestic communications intercepts.

    Fookin’ lying through their teeth! And Congress had to have known about it!

    Again from kspena’s link:

    After the 2001 attacks, the NSA lawyers who had blocked the program reversed their position and approved the use of the program without the enhanced technology to sift out terrorist communications and without the encryption protections.

    The NSA’s new legal analysis was based on the commander in chief’s powers during war, said former officials familiar with the program. The Bush administration’s defense has rested largely on that argument since the warrantless surveillance program became public in December.

    And the next part is out and out BULLSHIT!

    The strength of ThinThread’s approach is that by encrypting information on Americans, it is legal regardless of whether the country is at war, according to one intelligence official.

    Basically, this “intelligence official/cum legal expert” says it is perfectly legal to capture and record all of our communications, just as long as they don’t “listen” to them…until such time as they think they should “listen” to them.

    Fookin’ BULLSHIT!

    How about they just place cameras in our homes and promise not to watch…until they want to watch?

    Fookin’ BULLSHIT!

    Hillary, you might want to kick Bill in the family jewels and ask him: “WTF were you thinking?”

    Another set of links about “ThinThread” from Wiki:

    NSA datamining pushes tech envelope

    ThinThread, a technology developed in the late ’90s for wiretapping and providing sophisticated analysis of large amounts of resulting data was one of these projects. Designed to both collect data as well as encrypt sensitive or private information for later analysis, the program operated within legal and privacy-based boundaries via that encryption.

    After the Sept. 11, 2001, attacks, policy changed and the ThinThread project evolved into a system known as Trailblazer. Designed to gather similar data but without the encryption feature built into the ThinThread technology to provide privacy aspects, the Trailblazer technology and the resulting phone-tap efforts that have grown from this have been deployed as a critical terrorist-locating tool and defended as “critical to our national security” via the Bush administration.

    SAIC Announces Financial Results for Fiscal Year 2003

    A contract from the National Security Agency (NSA) to provide the technology demonstration platform phase of the TRAILBLAZER program. This phase of the program currently is estimated at $280 million and will be performed over a period of 26 months.

    And finally, the Baltimore Sun reporter who wrote that story in May of 2006 is none other than Siobhan Gorman. Siobhan has since moved on to “better” digs at the Wall Street Journal where she published this story just last month: NSA’s Domestic Spying Grows As Agency Sweeps Up Data

  4. Loo Hoo. says:

    March 13, 2003: Jay Bybee approved to Ninth Court. Addington and Gonzales try to appoint Yoo as his replacement, but Ashcroft refuses. Ed Whelan Acting AAG.

    Do you know why Ashcroft refuses Yoo? Comey’s influence?

    • earlofhuntingdon says:

      Probably Comey’s influence in Ashcroft refusing Addington/Cheney’s demand that Yoo become head of OLC. I think that surprised the hell out of them because Ashcroft had repeatedly signed off on so much for so long on simple trust, and because they needed Yoo to continue spinning his mythical opinions to keep things going and keep them quiet.

      Ashcroft apparently becoming convinced that Yoo was not loyal to him or the DOJ, that he was a mole working for Addington/Cheney, and that he was communicating directly with them more than his own superiors. But what I think really motivated Ashcroft was that he was the one being used as cover for highly questionable programs; his name was on all those approvals.

      Ashcroft has either gone back to the dark side or is being paid “cooperation money” via those highly lucrative, no-bid “oversight” [sic] contracts for eg, the New Jersey USA.

    • Justina says:

      John Yoo’s resume, as it appears on the U of C Boalt Hall website, does not indicate that he was ever admitted to practice in any state or federal jurisdiction.

      The Department of Justice attorney recruitment website recites:

      Eligibility for Experienced Attorney Positions
      Any attorney who is an active member of the bar (any U.S. jurisdiction) and has at least one year post-J.D. experience is eligible to apply for a position as an experienced attorney. U.S. Attorneys’ Offices may have state specific admission requirements.

      It would appear that Professor Yoo was not eligible for an attorney position at the D.O.J.

      Was Yoo practicing law without a license when he gave his constitutionally erronious legal advice to the White House about the legality of their torture procedures?

      • MadDog says:

        I’m guessing that Yoo’s Bar admittance is classified and we don’t have “Need To Know”.

        Why not? Everything else he did was.

        It is probably securely locked up in one of those man-sized safes of Deadeye’s. *g*

      • earlofhuntingdon says:

        That must be a simple omission. He would have needed at least one state or DC bar admission to do all sorts of things. Since he clerked for Silberman in DC, that’s where I’d look first. He’s been in California since ‘93; that would be where I’d look second.

        • Justina says:

          Right, anybody with the money can join the ABA. ABA membership doesn’t give any rights to practice law.

          I’d be interested to hear from any current or former D.O.J. attorneys out there as to the legality of Yoo’s giving legal advice if he was not admitted to practice anywhere, as it appears he was not. Are there special exemptions for D.O.J. political appointees?

          I started researching this issue when several people brought up the importance of getting Yoo disbarred for his contributions to Bush-Cheney war crimes. When several of us tried to find a bar to disbar him from, none was found.

      • emptywheel says:

        Hey,

        Maybe someone has done what we keep talkig about–submit an ethics complaint to the various bars he belonged to, and they, in turn, disbarred him (or are considering it). And that it just hasn’t gotten any press. There is a way to look up where someone has bar membership, so we coudl check.

      • MadDog says:

        I apologize, but the scene where Ashcroft is pissed was not in the Phillippe Sands Vanity Fair article, but instead was in the WaPo article by Barton Gellman and Jo Becker – “A Different Understanding With the President”:

        To pave the way for the military commissions, Yoo wrote an opinion on Nov. 6, 2001, declaring that Bush did not need approval from Congress or federal courts. Yoo said in an interview that he saw no need to inform the State Department, which hosts the archives of the Geneva Conventions and the government’s leading experts on the law of war. “The issue we dealt with was: Can the president do it constitutionally?” Yoo said. “State — they wouldn’t have views on that.”

        Attorney General John D. Ashcroft, was astonished to learn that the draft gave the Justice Department no role in choosing which alleged terrorists would be tried in military commissions. Over Veterans Day weekend, on Nov. 10, he took his objections to the White House.

        The attorney general found Cheney, not Bush, at the broad conference table in the Roosevelt Room. According to participants, Ashcroft said that he was the president’s senior law enforcement officer, supervised the FBI and oversaw terrorism prosecutions nationwide. The Justice Department, he said, had to have a voice in the tribunal process. He was enraged to discover that Yoo, his subordinate, had recommended otherwise — as part of a strategy to deny jurisdiction to U.S. courts.

        Raising his voice, participants said, Ashcroft talked over Addington and brushed aside interjections from Cheney. “The thing I remember about it is how rude, there’s no other word for it, the attorney general was to the vice president,” said one of those in the room. Asked recently about the confrontation, Ashcroft replied curtly: “I’m just not prepared to comment on that.”

        According to Yoo and three other officials, Ashcroft did not persuade Cheney and got no audience with Bush. Bolten, in an October 2006 interview after becoming Bush’s chief of staff, did not deny that account. He signaled an intention to operate differently in the second term.

        Mixing the “warrantless surveillance opinions” with the “torture opinions” by Yoo. Same result though. Ashcroft was pissed.

        • dude says:

          So the broad outlines are these: 1. Somewhere back in the Clinton era–maybe even the Bush-1 era– the idea of Total Information Awareness is resurrected along with proponent John Poindexter. Probably after the Cole or Twin Tower assault Number One. There is a general realization that terrorism is threat and the inclination to use Silicon Valley American Strength is high. Programs that lead to Thin Thread go into testing and development because everybody knows TIA under Reagan was just an idea ahead of its time, and a response to the “old school” politics of people like Sen. Frank Church–”who couldn’t possibly have foreseen” a nation in peril by terrorism a generation ago. 2. Government contract research does not proceed without at least a schematic understanding of the related law. Probably as early as Reagan the legal foundations for attacking rights to privacy accelerated in response to calling Ollie North a traitor and embarrassing John Poindexter in public. I imagine Dick Cheney and Donal Rumseld had their feelings hurt around then and swore if ever they had the chance, they’d find a way to get even. And so they did. 3. But it wasn’t easy because bureaucracies and career professionals have institutional memory–which means they are not malleable and suffer from the inertia of hindsight (or, they learn from experience–take your pick). By the arrival of Clinton, the technology was essentially there for test-bed application; the alarm over terrorist must have grown to a level where leaders wondered
          “is this the Manhatten Project of our time” and should we have scruples about deploying it. I suspect some even thought it was like “Fat Man” and “Little Boy”—would it work just when we need it to, or is it a tantalizing fantasy? 4. Any institutional resistance was overcome with the election of Bush-2. The technology was absolutely going to be used come hell-or-high water. What’s the point of having it if you don’t? It isn’t like an A-Bomb because you can’t demonstrate it to a wary enemy and intimidate them. In fact, its effectiveness is lessened the more the enemy knows about it. This has to be the Manhatten Project that never sees the kleig light of history. People like Ashcroft and Richard Clark are viewed as anachronisms as much as they are obstacles.

          Does this sound about right?

  5. thegris says:

    Great stuff, thanks emptywheel! It must be scary for all these Bush officials, knowing there is a paper trail of their crimes. Then again, Bush will pardon everyone and then crack jokes about it. If only the Dems could find the spine to do more than write letters…

  6. earlofhuntingdon says:

    Any thoughts on who was that “Special Counsel” who helped Yoo write the October 23, 2001, memo to ‘Fredo? That figure doesn’t appear elsewhere.

    When Yoo is DAAG, he appears to be issuing all the opinions relevant here. When he’s gone, they’re all from the AAG. That doesn’t seem kosher.

    AAG for OLC is one of the most important and prestigious, possibly one of the most intellectually challenging, jobs at Main Justice. But Yoo’s AAG let Yoo do the work and put his name on it. Was Yoo more cooperative? Was he more artful in knowingly spinning blanket approvals for questionable conduct, making it look like there was sound justification when he in fact just made shit up? Was Yoo’s AAG giving himself cover, giving Addington the advice he demanded but superficially removing himself by having Yoo render it?

    • emptywheel says:

      Ywo things.

      First, not all of those DAAG citations have to be from Yoo. Patrick Philbin, at least, is probably included among them. I find it interesting that Bradbury referred to these sufficiently vaguely that you can’t, for sure, identify which are Yoo (I think Yoo was PDAAG).

      Second, the rationale for that is that Bybee had almost no Nat Security experience. So after 9/11, when they needed someone who did have NatSec experience, Yoo got most of the work. When they picked Goldsmith, they did so partly because he DID have that NatSec experience working for Haynes at DOD.

  7. Justina says:

    No bar admissions are listed on Yoo’s resume on his homepage or on the Boalt Hall webpage for faculty. Neither New York, California or the District of Columbia Bars list him as a member or past member on their attorney search pages.

    It is highly unusual for an attorney not to list his/her bar admissions on their resumes, which leads me to believe that he was never admitted to practice.

    Yoo clerked for federal judge Silberman and Supreme Court Justice Scalia, but bar admission is not usually a requirement for judicial clerkships. Yoo was an acting professor of law at Boalt Hall from 1993 to 1999, when he became a professor, but bar admission is not necessarily a requirement for law professor positions.

    While I’m sure there are some law related positions in the U.S. government for which bar admissions is not required, the Department of Justice specifically lists bar admission as a requirement. One would expect that bar admission would be required in any position in which legal advice was being given to a client, as was done by the D.O.J. Office of Legal Counsel to the White House.

    It is a violation of most state bar rules for an admitted attorney to knowingly allow an unadmitted person to practice law, thus Attorney General Ashcroft might be cited for allowing Yoo’s illegal practice of law under his supervision.

    Unless, of course, President Bush issued yet another classified executive order exempting Yoo from the D.O.J. bar admission requirement and permitting his illegal practice of law.

  8. Hmmm says:

    Is anybody the teensiest bit concerned that Mukasey’s slip of the tongue and the release of the Yoo memo happened so close together? I.e. that a deliberate attempt to instigate a crisis could be afoot? Note that Conyers’ impeachment warning over any Iran attack was in re. W, not Cheney. Impeaching W means President Cheney, and from everything we’ve seen about who’s been pulling the strings in the USG, that is not not not what we want.

    • emptywheel says:

      Trust me, Conyers will not impeach W without also impeaching Cheney. He says it has to be a double impeachment every time he talks about impeachment.

      Though I don’t know why he didn’t just start with Dick./

  9. jnardo says:

    When you lay out the rest of the documents, don’t forget John Yoo’s Neoconservative Creed. John Yoo was never acting as an expert on Constitutional Law. He was the Agent of the Federalist Society’s polemic from the very start.

    There are two suspicious things about his resume. Where was he between 1996 and 2001? When exactly did he leave the DoJ in 2003?

  10. Peterr says:

    The Institute for Corean-American Studies [sic] honored Yoo in Jan 2002 with their annual Liberty Award, along with co-recipient Becky Norton Dunlop of the Heritage Foundation. Here is the bio for Yoo that they produced for the award ceremony. According to this, Yoo is (or was in 2002) a member of the “Bar of the Commonwealth of Pennsylvania” and the “Bar of the U.S. Court of Appeals for the Ninth Circuit.”

    If you click through the links there, Yoo gave a speech at the dinner on “The Immigrant and Civic Duty.” I couldn’t bring myself to click on the speech to see what he said. At least not before coffee.

      • Peterr says:

        Don’t know — the PA Bar site doesn’t seem to have a list of current members, nor did Yoo show up in a general search there.

        It also makes me wonder: why PA? I don’t know enough of his background to say whether he once practiced there, or whether PA has an easier bar exam than other states, or whether there is some other reason why PA was the bar of choice. The first position listed on that bio (not including the two clerkships) is General Counsel for the Senate Judiciary Committee — perhaps PA is an homage to Haggis, or Haggis guided him to the PA Bar.

  11. wavpeac says:

    Thank you god (universe, science) for this site. I have to work all day but I can’t wait to continue reading. This is a fascinating thread and timeline (as always) but it feels like we are getting closer to the unraveling than we have been before. I could be wrong her but the last 10 or so posts on this site have ignited my flame of hope again. I fear the only way to restore our democracy is the impeachement and/or (if it doesn’t occur while they are in office) prosecution of crimes against this traitorous and destructive administration. Every american needs to be fully educated about how this administration was able to grab so much power that it could take us to war, line it’s pockets with wealth, gut our constitution and then say “see ya!” I want my children and children’s children to understand the impact to our constitution, our democracy, and all that has been validated about our way of life, by the universe. America has been undone by capitalism almost as fully as the Soviet Union was undone by communism. (not Reagan…what a lucrative lie for the republicans).

  12. sailmaker says:

    Here is a tidbit from the Legal ethics forum:

    So far, it appears that no one (that includes every lawyer in Pennsylvania) has filed a complaint with the Pennsylvania Supreme Court’s Disciplinary Board to get John Yoo disbarred for failure to support and defend the Constitution or for knowingly or negligently providing incorrect advice (otherwise known as malpractice) to the Justice Department.
    As a member of the Pennsylvania bar, Yoo swore to defend and support the U.S. Constitution. The allegations in the Pedilla litigation, if proved, would form a clear basis for disbarment proceedings against Yoo. John Yoo’s Pennsylvania Bar membership number is: 69500
    Filing a complaint is easy: Instructions are available at http://www.padisciplinaryboard…..nsumer.php and formsare available at http://www.padisciplinaryboard…..nsumer.php

    Since Yoo is a resident of California, the complaint is best filed in the Philadelphia district office of the Board (the instructions direct filings depending upon place of residence in Pennsylvania, provide no instructions for out of state residents, but indicate that wherever filed they will be forwarded to the correct office for investigation):

    Pennsylvania Supreme Court
    Disciplinary Board
    District 1 Office
    16th Floor, Seven Penn Center
    1635 Market Street
    Philadelphia, PA 19103

    Link: http://legalethicsforum.typepa…..ns-th.html

    There is a bit on Balkinization about whether or not quasi judicial legal opinions get the same legal immunity as real judicial legal opinions, which IMO should be looked at after it is established that Yoo was a member of the bar- somewhere. http://balkin.blogspot.com/200…..v-yoo.html

  13. sailmaker says:

    Here is a tidbit from the Legal Ethics Forum in January:

    So far, it appears that no one (that includes every lawyer in Pennsylvania) has filed a complaint with the Pennsylvania Supreme Court’s Disciplinary Board to get John Yoo disbarred for failure to support and defend the Constitution or for knowingly or negligently providing incorrect advice (otherwise known as malpractice) to the Justice Department.
    As a member of the Pennsylvania bar, Yoo swore to defend and support the U.S. Constitution. The allegations in the Pedilla litigation, if proved, would form a clear basis for disbarment proceedings against Yoo. John Yoo’s Pennsylvania Bar membership number is: 69500
    Filing a complaint is easy: Instructions are available at http://www.padisciplinaryboard…..nsumer.php and formsare available at http://www.padisciplinaryboard…..nsumer.php

    Since Yoo is a resident of California, the complaint is best filed in the Philadelphia district office of the Board (the instructions direct filings depending upon place of residence in Pennsylvania, provide no instructions for out of state residents, but indicate that wherever filed they will be forwarded to the correct office for investigation):

    Pennsylvania Supreme Court
    Disciplinary Board
    District 1 Office
    16th Floor, Seven Penn Center
    1635 Market Street
    Philadelphia, PA 19103

    Link:http://legalethicsforum.typepad.com/blog/2008/01/david-lubans-th.html

    Judges get some kind of immunity from liability/damages for their rulings, which IMO should be looked into given the quasi-legal status of the OLC (not judges but not chopped liver either), after it is established that Yoo is/or was a member of the bar, somewhere. http://balkin.blogspot.com/200…..v-yoo.html

  14. Mary says:

    Wonderful timeline and in particular thank you for the link to the FISC opinion from May 2002. No wonder Roberts resigned in protest when the illegal program came out – hard for them to consider and issue an opinion like that, relying on all those representations that leave out a massive illegal program on the side. Interesting, too, that there was supposed to be an OPR investigation from the 2000 violations (which IIRC invovled Townsend). Crickets from that, eh? Guess OPR has been dead for longer than we might have thought.

    Re: you March 13, 2003 entry on Bybee, Lederman has amended that date to March 28, 2003 (”the Senate confirmed Jay Bybee to be a federal judge on March 13, 2003, Jay did not take the oath of office until March 28th, at which point his resignation from OLC became effective”)

  15. Mary says:

    The FISC opinion from May 2002 internally references the existence of another DOJ memo, a memo “addressed to the Director of the FBI and other senior Justice Dept executives and dated March 6, 2002″

    That memo appears to be directed towards the standards (the reducing or doing away with the standards) to both lessen minimization standards and also to do away with some of the crosspollinization restrictions between criminal and intelligence investigations. While it may not technically be an authorization for any of the wiretap programs, the fact that it reflected on how the information from surveillance would be treated for criminal investigation purposes seems as if it should make it relevant to at least some of the requests I have seen outstanding, but it isn’t mentioned on any of the lists of the not produced documents.

    The whole FISC opinion is remarkable in a sense, in that they are ruling on these matters of use, cross-use, minimization, etc. without DOJ ever referring to the amalgamation and use of all the information collected outside of FISC and outside of the 4th Amendment warrant protections and how all that information from those illegal programs is intended to be interwoven into the cloth of review/constraints. The existence of this kind of review and ruling realy does highlight why a judge from the panel that had basically been misled (other than Lamberth) as to what was being done with surveillance and with criminal/intelligence barriers, given the existence of a massive extra-judicial program – why a judge would resign after the illegal program came out.

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