Monday, March 21, 2011

Newly Released OLC Opinion Reveals How Yoo Relied on Eliminating Fourth Amendment to Wiretap Illegally

Via Emptywheel:

As Josh Gerstein and Jack Goldsmith note, DOJ just released two of the opinions underlying the warrantless wiretap programs. They both focus on the May 6, 2004 opinion Goldsmith wrote in the wake of the hospital confrontation; I’ll have far more to say about that opinion later today and/or tomorrow.

But I wanted to look at what the highly redacted opinion John Yoo wrote on November 2, 2001 tells us.

The opinion is so completely redacted we only get snippets. Those snippets are, in part:

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


Thus, unless Congress made a clear statement that it sought to restrict presidential authority to conduct warrantless searches in the national security area–which it has not–then the statute must be construed to avoid such a reading.


intelligence gathering in direct support of military operations does not trigger constitutional rights against illegal searches and seizures.


A warrantless search can be constitutional “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

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