That Time When John Yoo Deemed EO 12333 Optional (Working Thread)

I Con the Record has just released the May 17, 2002 letter John Yoo wrote to Colleen Kollar-Kotelly justifying Stellar Wind. This either lays out for the first time or repeats Yoo’s claim — which I first reported in 2007, based on a Sheldon Whitehouse Senate address, here — that the President doesn’t have to follow EO 12333.

This will be a working thread.

(2) Note Yoo says the attacks caused 5,000 deaths, well beyond the time when authorities knew it to be closer to 3,000.

(2) Yoo mentioned the anthrax attack. Did NSA use Stellar Wind to investigate it?

(2) Yoo uses a more moderate justification here — military being deployed to protect buildings — than Goldsmith did in his 2004 memo, where he talked about specific military flights.

(2) Check EO on creating Homeland Security office on domestic program.

(2) As soon as Yoo starts talking about Stellar Wind, he adopts the conditional tense: “Electronic surveillance techniques would be part of this effort.” This of course follows on Yoo admitting Congress modified FISA (though he doesn’t name the statute).

(2) Note in this really squirrelly hypothetical section, Yoo says the surveillance could include email “within” the US, which would be entirely domestic.

(2-3) Note throughout Yoo describes Bush as “Chief Executive.”

(3) Yoo points to absence of a charter as basis for doing whatever NSA wants.

(3) “Congress, however, has not imposed any express statutory restrictions on the NSA’s ability to intercept communications that involve United States citizens or that occur domestically.” (based on the absence of such language in NSA)

(4) I believe the second redaction is designed to enable the wiretapping of people claimed to be tied to the anthrax attack.

(5) Here’s the passage that said EO 12333 is optional.

Screen Shot 2016-02-29 at 3.00.26 PM

(4-5) I find Yoo’s language the more troubling given what precedes it — the rationale.

Screen Shot 2016-02-29 at 4.06.14 PM

I’ll come back to this, but note how “domestic” gets defined here. Much of this is still on the books and explains why Muslims get treated differently.

(5, 6) Note Yoo’s explanation for doing this off the books.

  1. Need for secrecy
  2. Inability to get FISC to approve bulk content collection or domestic metadata collection
  3. No knowledge of identity of target

That’s not speed, which later became the excuse

(5) “FISA only provides a safe harbor for electronic surveillance, and cannot restrict the President’s ability to engage in warrantless searches that protect the national security.”

(5) Note Yoo refers to the metadata dragnet as “general collection,” which sounds an awful lot like a general warrant.

(7) The redactions on 7 are especially interesting given likelihood they conflict with either what K-K, Bates, or Howard subsequently approved.

(8) The timing of this is remarkable. This letter was written on the same date that Ashcroft changed the rules on the wall, which Lamberth unsuccessfully tried to impose some limits on. Then, on July 22, OLC further expanded the GJ sharing address in FN 8.

(8) Note, again, how Yoo is rewriting Keith and Katz.

(10) again, Yoo seems to be laying the groundwork for back door searches, which makes me wonder whether that’s why this got released?

(12) I don’t believe this border exception appears in Goldsmith. Which suggests there’s something with the way this was applied that is particularly problematic.

(13) This must be the language in question. Goldsmith used another means to justify cross-border collection, while admitting it outright.

(14) This language also disappears from later justifications, suggesting it is part of the problem.

Screen Shot 2016-03-02 at 9.58.37 AM

The discussion continues onto the next page. It is of particular interest that K-K got this letter, given that her category distinctions probably addressed these distinctions.

(15) Bingo. This might be a very simple explanation for why they had to go to FISC.

Screen Shot 2016-03-02 at 10.03.34 AM

(17) This passage about picking the Defense Secretary rather than AG is pretty much what I noted in my post on the underyling 4A argument, but it has ramifications for the post-2004 program. Also note how closely it piggybacks with the changes to AG guidelines and the

Screen Shot 2016-03-02 at 4.27.17 PM

This language explains why they weren’t looking in Stellar Wind for Brady material, and also explains how they do parallel construction (which plays out in the IG Report).

(19) This section lays out the need for the scary memos, without revealing to K-K they exist.

Screen Shot 2016-03-02 at 4.34.13 PM

(21) The big redacted section–the biggest redaction in the letter–suggests they’re still hiding the capture and pull up method of this, and therefore the sheer bulk of all this. That’s all the more interesting given that the wall was coming down at that moment. The other redactions in this section, too, seem to track the indexing function. Again, it’s interesting K-K had read (or reviewed) this before the PRTT discussion.

 

 

 

 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

2 replies
  1. martin says:

    “Tagged John Yoo”

    The mere fact this chromasomally aberrant scum sucking pig fucker is still alive, notwithstanding reaping the benefits of teaching his wretched views of “the rule of law”, while innocent, tortured human beings are still in Guantanamo makes me fucking insane to the point if I were ever to say fuck it… this contemptible, insidious, vile sub human cockroach would find out what his life caused on this planet.

  2. pdaly says:

    Look at the first sentence in (5 ) in EW’s post above.
    This Yoo sentence is curious for its grammatical error: “Even if surveillance were to conflicts with Executive Order 12,333 it could not be said to be illegal.”
    .
    The “s” in “conflicts” suggests the sentence USED to read, before it was edited:
    .
    “Even if surveillance conflicts with Executive Order 12, 333 it can not be said to be illegal.”
    .
    Do the sentences mean different things? If not, then why the edit?

Comments are closed.