So, to be clear, Boalt Hall’s favorite tenured radical used procedural, legal, and factual errors…to justify torture and arbitrary executive power. (Often, for example, legislative provisions are ambiguous and have multiple reasonable interpretations. The claim that FISA didn’t apply to the executive branch does not qualify.)
It’s difficult to put into words how insanely deficient this legal “analysis” is. The entire point of FISA was to constrain the president’s ability to conduct warrantless surveillance for national security purposes. Prior to FISA, Title III already prohibited warrantless surveillance in the law enforcement context. FISA was intended to provide similar protections in the national security context. Not only did FISA make clear that it provided the “exclusive means” for conducting electronic surveillance, but, as the report points out, it has a provision that suspends its requirements for 15 days following a declaration of war, a clear indication that the statute was intended to apply in war time as well as peace time.
The Bush administration put together quite a rogue’s gallery, but John Yoo has to rank very near the bottom.