John Yoo’s Defense of the NSA Program

I stand behind my description of Yoo, but Julian’s thoughtful post deserves a less facile response. So let’s consider Yoo’s claim about Clinton’s violation of the War Powers Act. Here is Julian’s explanation of why Yoo’s attack on Clinton is not inconsistent with his defense of Bush:

His complaint about Clinton’s violation of the War Powers Act is that Clinton didn’t bother to claim that the War Powers Act is unconstitutional (in fact, according to Yoo, Clinton actually accepted the legality of the War Powers Act). Instead, Clinton simply violated the federal statute without bothering to offer any serious legal explanation.

[snip]

In contrast, Yoo can argue that the Bush Administration’s claim of, say, authority from the Sept. 11 War Resolution or the Commander in Chief Clause of the Constitution is more of a “Rule of Law” approach since it does offer a legal justification for its actions and it has been consistent in defending these views.

The elephant in the room, of course, is the NSA wiretapping program. As the Washington Post notes, “[t]he NSA activities were justified by a classified Justice Department legal opinion authored by John C. Yoo, a former deputy in the Office of Legal Counsel who argued that congressional approval of the war on al Qaeda gave broad authority to the president.” Moreover, Yoo has continued to insist that President Bush’s deliberate circumvention of FISA is constitutional:

GIGOT: The critics of the president’s wiretapping program make a simple case. They say a 1978 law required court approval for these kinds of wire tapes. In this case, the president didn’t go to that court to get approval, therefore, what he does is illegal. What’s wrong with that argument?

YOO: There are two different arguments that the administration is relying on. First, the most robust version of it is that the president is the commander in chief. And as the commander in chief, under the constitution, he has the responsibility and the duty to respond to an attack on the United States, which we saw on 9/11. We saw it in New York City. And that power has to include the ability to respond with force against al Qaeda and other threats to the United States, including those that will produce a direct attack like the kind we saw on 9/11.

Why is Yoo’s defense of the NSA program important? For one simple reason: President Bush authorized the program three years before he ever offered a public justification of it. That justification, moreover, was in no way freely offered – Bush only defended the NSA program after the New York Times revealed its existence against his wishes. Indeed, given that he described leaking the program to the Times as a “shameful act” that “help[ed] the enemy,” it is reasonable to assume that, had the Times not discovered the program, Bush would never have admitted that the program existed, much less deigned to justify it publicly.

So, let’s review. Yoo criticizes Clinton’s decision to violate the War Powers Act because he failed to offer a legal justification for it. Yet he lauds Bush’s decision to violate FISA even though he failed to offer a legal justification for it – and even though, unlike Clinton, Bush did everything in his power to keep his decision secret.

The Oxford English Dictionary defines “hypocrisy” as “an instance of dissimulation, pretence, [or] sham.”

Meet John Yoo, hypocrite.