[JURIST] Former US Department of Justice Office of Legal Counsel [official website] lawyer John Yoo [academic profile; JURIST news archive] defended warrantless wiretapping [WSJ report] in an essay published Thursday by the Wall Street Journal [media website]. Yoo was responding to a report [text; JURIST report] released by five government agencies that alleged that the Bush administration's warrantless wiretapping program relied on flawed legal analysis and produced results of questionable effectiveness, possibly in violation of the 1978 Foreign Intelligence Surveillance Act (FISA) [text]. Yoo claims that a "wall between domestic law enforcement and foreign intelligence" created by FISA contributed to the government's failure to prevent the 9/11 attacks. Calling FISA obsolete due to the fact that it was written with the Cold War in mind, Yoo contends that the law was not enacted to address "live war with an international terrorist organization." Since the legislature is too slow to be effective, Yoo argues, only the executive branch can effectively act in emergency circumstances to protect the public. Yoo discussed the supposed shortcomings of FISA:

Under FISA, to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do.

The government report on the wiretapping program points out that Yoo's memorandum regarding the wiretaps do not mention the Supreme Court case of Youngstown Sheet & Tube v. Sawyer [opinion text]. In Youngstown, the Court ruled that President Harry Truman overstepped his presidential authority in ordering the seizure of steel mills shut down by labor disputes during the Korean War. Yoo claims that the case does not address the scope of the president's power over war strategy.

Yoo, a Berkeley School of Law [academic website] professor, has faced much criticism for his role in drafting controversial interrogation memos [JURIST report]. Earlier this week, Yoo declared his intent to appeal [JURIST report] a lower court ruling that allowed a lawsuit filed against him alleging complicity in torture to proceed. Last week, it was reported that US Attorney General Eric Holder [official profile] is still considering appointing a special prosecutor [JURIST report] to investigate allegations of torture during the Bush administration. Several organizations have called for drafters of the memos to be disbarred [JURIST report]. In June, a federal judge dismissed 46 lawsuits [JURIST report] against the telecom industry, upholding provisions of the FISA Amendments Act of 2008 (FISAAA), which gives immunity to telecom companies that assist the National Security Agency (NSA) with warrantless eavesdropping. The FISAAA granted the FISA court authority to review a wider range of wiretapping orders, prohibited the executive branch from overriding the court's authority, and ordered the DOJ and other agencies to issue this latest report on the country's use of wiretapping orders.