Seven Questions: Domestic Spying

Foreign Policy: President Bush is opposed to amending the Foreign Intelligence Surveillance Act (FISA), suggesting that it will reveal our tactics to the enemy. Are you opposed to amending FISA?

John Yoo: I have no objection to amending FISA, if it can be done in a way that allows the government to preserve the secrecy of its surveillance techniques against al Qaeda. The difficulty is in whether, in amending the statute, we signal to our opponents our successful methods of intercepting their communications.

FP: Are you comfortable with the possibility that the communications of innocent Americans may have been monitored as part of a broader NSA surveillance program?

JY: It is always possible in electronic surveillance, with or without a warrant, that purely innocuous communications could be unintentionally monitored. A mafia boss, for example, under surveillance could be calling an old family friend to talk about everyday personal issues. To protect against this, agencies that conduct such surveillance have what are called minimization procedures that are designed to filter out innocent communications. The NSA could employ those measures here to make sure that innocuous communications are not recorded or are filtered out.

It seems to me that any serious loss of privacy does not occur until a human intelligence or law enforcement officer reads or listens to a communication. In thinking about what qualifies as reasonable searches in order to prevent future terrorist attacks, we should ask whether the governments need to have an individual officer look at a particular communication outweighs any loss of privacy at that point.

FP: The Congressional Research Service (CRS) disagrees with the administrations reading of FISA. It says the Authorization for the Use of Military Force (AUMF) passed on September 18, 2001, does not qualify as a statute that relieves those conducting surveillance from obtaining warrants. Is the CRS wrong?

JY: I agree with the argument that the AUMF can be read to authorize surveillance. In the AUMF, Congress authorized the President to use all necessary and appropriate force against those responsible for the 9/11 attacks. Gathering intelligence on the enemys plans has long been understood to be a part of the use of force. In fact, we ought to want our military commanders to have as much information as possible so that force can be used in the most precise and effective way possible.

The CRS argument mirrors an argument civil libertarians raised against the detention of American citizens who had joined up with al Qaeda as enemy combatants. But the Supreme Court found in Hamdi that detention of enemy combatants was a part of the use of force, and had been authorized by Congress implicitly. I think the same argument works with regard to surveillance.

Congress authorized the use of force in very broad terms, but not indefinite terms. Congress may always rescind this authorization, or better yet, it can refuse to fund the Presidents policies if it really disagrees with them. It could stop the NSA program simply by refusing to fund it.

FP: Should the administration be required to reveal why it designates someone an enemy combatant?

JY: I believe that the government should be required to explain to a federal court why it believes an American citizen is an enemy combatant. I think that the courts need to work out a way to allow this evidence to be presented, but in a manner that protects the confidential nature of the intelligence sources and methods used to gather information about an enemy combatant. The government could perhaps present such evidence to a judge in a closed hearing, with defense attorneys present who have received security clearances.

FP: The war on terror is clearly a different type of war. Should Americans be prepared to give up some of the democratic deliberative process as a result?

JY: I do not believe that any of the deliberative process need be given up in order for the government to respond effectively to the threat posed by al Qaeda. The Constitution establishes a system for making war that allows the President to exercise the initiative to prevent attacks on the United States, but that gives Congress the ability to use its powers of oversight, legislation, and most importantly, funding, to block presidential policies. Our system even allows Congress to exercise its check ex post, after the President has acted.

In the past, we have placed a premium on consensus, deliberation, and the approval of multiple institutions. But the nature of threats has changed and the magnitude of expected harm has risen dramatically. Military force often remains the most effective means for responding to those threats. It then makes little sense to have a political system with a built-in presumption against using force abroad.

FP: Does torture work?

JY: You would have to ask someone else with knowledge or expertise on the matter. I could add nothing more on that question than what is already in the public domain. But I would like to say that it is my understanding that the United States does not engage in torture, and that the reports of abuses that have occurred in Iraq or elsewhere appear to have been the result of individuals acting outside official policy. Abuses, while regrettable, sometimes happen in large organizations when individuals violate the rules. For example, we have many cases of police or prison abuse in our country despite clear rules against it. We have a military investigatory and judicial system to prevent and remedy abuses that occur on the part of soldiers in wartime. Those investigations and prosecutions are still ongoing.

FP: The war on terror will not end with a formal cease-fire agreement. What do you think are the necessary conditions for an end to the war on terror?

JY: I think that at a minimum the United States will have to destroy al Qaeda to the extent that it cannot carry out direct attacks on American soil. If we were really fighting a war against terrorism, one could worry that this would be an indefinite war. But we are not fighting a war against terrorism, which is just a tactic. We are fighting a war against a distinct entity, the al Qaeda terrorist network, and the war will be over, I believe, when we have sufficiently defeated them so that they cannot attack the United States again.

John Yoo is a professor of law at the University of California, Berkeley. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice.