Former Justice Department lawyer John Yoo is fighting back against a recent inspectors general report that criticized the Bush administration's warrantless surveillance programs established in the wake of the September 11 attacks on the World Trade Center.

"The best way to find an al Qaeda operative is to look at all e-mail, text and phone traffic between Afghanistan and Pakistan and the U.S.," Yoo wrote in a* Wall Street Journal* op-ed Thursday, "This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do."

Yoo was responding to a report released last week by five inspectors general from several agencies who questioned the government's legal grounds for launching the programs without approval from the Foreign Intelligence Surveillance Court. The IG's stopped short of calling the programs illegal but criticized the flawed memos that Yoo authored, which offered the government legal justification for its actions.

Yoo was a deputy assistant attorney general in the DoJ's Office of Legal Counsel when the Bush administration tapped him to write the classified memos as an end-run around his Justice Department superiors. The memos have been slammed by congressional representatives and fellow Justice Department officials for misinterpreting the law in order to grant the government de-facto approval for powers it had already secretly seized.

In his response, Yoo accused the inspectors general of forgetting their U.S. history and of playing to the media-stoked "politics of recrimination." He argued that in wartime, the president should have almost unlimited power.

Yoo, who is currently a law professor at the University of California, Berkeley, cited past presidents who seized the same kinds of power in times of war, and said that the nature of the 9/11 attacks called for swift action, which would have been thwarted had the administration followed legal procedures for surveillance.

The government has only admitted to date that it eavesdropped on phone calls and e-mails where one party was overseas and one party was suspected of being an agent of Al Qaeda or other terrorist group. It has never acknowledged the accounts from whistleblowers that it conducted wholesale collection of domestic internet communications and phone records, although officials have publicly hinted that there were surveillance programs beyond the eavesdropping on phone calls.

The IG report also states that the government's terrorist surveillance program involved multiple projects.

In his defense of the Bush administration's actions, Yoo took inspiration from the actions of former President Franklin Roosevelt who, prior to the U.S. joining World War II, authorized the FBI to intercept domestic and international communications of persons "suspected of subversive activities."

"FDR did not hesitate long over a 1937 Supreme Court opinion (United States v. Nardone) interpreting federal law to prohibit electronic surveillance without a warrant," Yoo writes. "Indeed, he continued to authorize the surveillance even after Congress rejected proposals from his attorney general, Robert Jackson, to authorize national security wiretapping without a warrant."

Yoo, however, does not address why, if the government had historical precedence on its side, it needed to seek approval for its plan from him, while keeping his immediate boss, as well as then-Attorney General John Ashcroft, in the dark about the program.

Yoo's direct supervisor, Assistant Attorney General Jay Bybee, told the inspectors general that he was not "read into" the surveillance program and had no idea how Yoo "became the White House's guy" to advise it on serious constitutional matters. Attorney General John Ashcroft also did not learn details about the program until later.

In 2003, other Justice Department lawyers who read Yoo's memos found them seriously flawed, and said his descriptions of the programs didn't accurately represent the nature of the surveillance the government was doing. This led to a now-famous showdown at the hospital bedside of Attorney General John Ashcroft as the administration tried desperately to keep the Justice Department from shutting down a datamining surveillance project. FBI director Robert Mueller and Deputy Attorney General James Comey threatened to resign over the program unless it was brought under compliance with the law.

The inspectors general report criticized Yoo's memos particularly for ignoring the Foreign Intelligence Surveillance Act, known as FISA, which requires the Justice Department to seek approval from the FISA Court for domestic national security surveillance.

Yoo, however, said FISA was an obsolete law that hadn't been written "with live war with an international terrorist organization in mind."

"It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States," he said, saying that the 9/11 Commission had found that "FISA's wall between domestic law enforcement and foreign intelligence proved dysfunctional and contributed to our government's failure to prevent the 9/11 attacks."

The wall Yoo refers to, however, was not a product of FISA but of the Justice Department itself, which the Commission found had, under former Attorney General Janet Reno, interpreted procedures to separate domestic law enforcement investigations from foreign intelligence national security investigations too rigidly, which prevented intelligence agencies from sharing crucial information with the FBI and others that might have helped prevent the 2001 terrorist attacks.

Photo: AP/Susan Walsh

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