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John Yoo weighs in on NSA/PRISM leak

By Josh Richman
Wednesday, June 12th, 2013 at 2:14 pm in Civil liberties, national security.

Berkeley’s John Yoo, the Cal law professor who previously was the George W. Bush administration’s architect of legal policies supporting the war on terror and “enhanced interrogation techniques,” wrote a piece in the National Review urging the prosecution of NSA/PRISM leaker Edward Snowden – and perhaps some other folks, too:

John YooRecall that the Obama Justice Department claimed that Fox News reporter James Rosen was a co-conspirator in the alleged leak of classified intelligence. If the Justice Department truly believed what it told the courts when seeking a wiretap on Rosen, then it should indict the reporters and editors for the Washington Post and the Guardian newspapers who published information on PRISM.

Except, of course, that Rosen wasn’t indicted. I guess we should just be glad Yoo isn’t offering a legal justification for waterboarding reporters.

Actually, Yoo goes on to say he believes “the Post is protected by the First Amendment, but Holder’s Justice Department clearly doesn’t think so.” Wonkette offers a (rather profane) smackdown of what it says is Yoo’s hypocrisy on such things. What do you think?

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  • JAFO

    Reportedly, BO and Holder’s Justice Department labeled James Rosen as a “co-conspirtator;” they labeled him a “flight risk;” and finally, they shopped the order seeking the right to wiretap him around to three federal judges before they finally found one who presumably was comfortable enough with the flimsy claims to sign the order. Subsequent to that little tap dance, Holder and his minions now claim that they never intended to charge Rosen with anything. So, what they’ve now admitted to is intentionally misleading the court with regard to the facts in the case and their real intentions. What a totally contrived and sad use of the justice system.

  • JohnW

    I’m no fan of John Yoo, but I haven’t always disagreed with him.

    I absolutely think Snowden should be prosecuted. Many, me included, assumed the government had a surveillance program of this nature and weren’t surprised to learn that they did. I’m glad they do. Same is probably true of the terrorists. So, you can make the case that what Snowden has disclosed thus far probably didn’t do much harm and maybe even did some good in terms of facilitating debate. However, he needs to be prosecuted to discourage others who are tempted to do the same thing. If he starts blabbing about CIA station chiefs and such, he’s really asking for trouble.

    As for the journalists, we need a federal shield law to protect them from being forced to disclose confidential sources in cases under federal jurisdiction. However, there need to be national security “ticking bomb” and “irreparable damage” exceptions.

    That said, I don’t think journalists should necessarily be protected against reasonable and lawful surveillance (either the electronic kind or the old fashioned stakeout kind) in order to find out who is leaking information to them. Leaks serve an important purpose, but government has a legitimate interest in trying to plug them, especially in the area of national security. It’s a cat and mouse game. I hasten to add that the AP surveillance seems to have been outside the bounds of reasonableness. In the case of Fox’s James Rosen, I don’t think we know if there was something about the manner in which he obtained the information that justified the “co-conspirator” business.

    As was decided in the Pentagon Papers case, newspapers are protected by the First Amendment when they obtain and publish information from leaks. But how far does this go? Can a news outlet, mainstream or otherwise, literally bribe somebody inside the government to hand over sensitive information and publish that information? It’s one thing if a leaker offers information. It’s another thing if the news outlet is the instigator and gets somebody to leak information by offering financial incentives, or perhaps even blackmails a source. Was there something like that involved with the Rosen case? I don’t know. It does sound like he went to extra lengths to convince somebody to leak information so that he could do a story.

  • Elwood

    I absolutely think Holder should be prosecuted.

  • JohnW

    #3

    Good luck with that.

  • Elwood

    We’ll see.

  • JAFO

    He’ll never be prosecuted. He’ll never be overtly tossed under the bus by his buddy, BO. Far more likely, he’ll sheepishly slink away from the public podium “on his own,” delicately covered by one those time-worn political fig leaves: e.g., a) “I’ve become a distraction,” b) “I want to purse other interests,” c) “I’ve completed all the important work I came here to do,” d) “I want to spend more time with my family,” e) “The doctor has told me that I need to reduce the stress in my life,” or f) all of the above.

  • JohnW

    #6

    It will be “c.”

    Probably at the end of 2013.

    Bush’s AG gave no reason when he quit. Everybody knew. He now teaches law at the Belmont University School of Law in Nashville, a law school steeped in tradition dating back to it’s founding in 2011. “Provisionally accredited” by the American Bar Association. Ranked by one website as 202 out of 202 ranked law schools.

    Unlike Gonzalez, Holder will have no trouble finding wealth or becoming a law school dean at a prestigious school once he leaves the AG job. But I thought it was a mediocre appointment when Obama nominated him. He could have done much better.

  • Elwood

    And Gonzalez relates to Holder how?

    Holder was appointed by BO because he is the politically correct hue.

  • JohnW

    #8

    “And Gonzalez relates to Holder how?”

    About as much as “I absolutely think Holder should be prosecuted” has to do with John Yoo.

    There actually is a point to be made in bringing up Gonzalez in response to your call for Holder to be prosecuted.

    Prior to his becoming AG, Gonzalez was White House Counsel. He and Bush’s Chief of Staff went to the hospital to try to get a bedridden, drugged up AG, John Ashcroft, to reauthorize an NSA wiretap program that DOJ had already said was illegal. The effort failed due to the aggressive intervention of the Acting AG (now Obama’s nominee to be FBI Director) and the FBI Director who both threatened to resign along with a bunch of DOJ lawyers if Gonzalez and Bush ignored the DOJ opinion.

    It should be noted that, whether or not one approves of what Holder did with AP and the Fox Reporter, it was all legal.

  • Elwood

    “It should be noted that, whether or not one approves of what Holder did with AP and the Fox Reporter, it was all legal.”

    Riiiiiiiiiight!

    After Holder went judge shopping until he found one who would sign his shady warrant.

  • JohnW

    #10

    You can slam Holder all you like. My only point is that, to my knowledge, he has done nothing worthy of prosecution. His worst moment, in my opinion, was when he gave Clinton “cover” by not opposing the Marc Rich pardon. Both the pardon and Holder’s role in it were sleazy, but perfectly legal.

    Assuming the “judge shopping” part is true, there is nothing the least bit illegal or unusual about that. Law enforcement agencies at all levels often go “judge shopping” when they seek warrants. During all the challenges to the Affordable Care Act, conservatives went “court shopping” and brought cases before the federal district court most likely to sympathize with their arguments. Liberals do the same thing.

  • Elwood

    “sleazy”

    Thank you, John!

    Undoubtedly the best adjective to describe the entire Obama regime!

  • JohnW

    #12

    The results of two elections suggest that most Americans would not agree with you on that. Therefore, your use of the adverb “undoubtedly” is, to be kind, imprecise.

    My use of the adjective in question was specifically and exclusively in reference to the Marc Rich pardon and Holder’s secondary role in it during the end days of the Clinton administration.

  • Elwood

    “Nobody ever went broke underestimating the intelligence of the American public.”
    –H. L. Mencken

  • Zac Bogen

    So where do I sign-up for the class action lawsuit for the infringement of my Fourth Amendment rights? And who goes on that list?

  • RR senile columnist

    #15: Eventually, a commercial message aired about 10am –Noon on basic cable TV will
    alert you to a firm and its free tel. call.

  • JohnW

    #16

    Yes, and you’ll be able to click on your Comcast interactive remote control to request further information from the law firm — which action will be duly noted by NSA’s click-tracking system.

    Also, look for TV commercials from TaxMasters offering assistance to those who encounter IRS difficulties as a result of their participation in the class action.

    My attitude on all this. Give me liberty, or give me death, but make sure I stay alive to enjoy my liberty.

  • For Liberty

    @ 17:

    Giving up some privacy, is giving up some liberty. Giving up your liberty for some security grants you neither liberty nor security.

    Snowden has only revealed what we have suspected all along, that is that the government has been violating it’s contract with American citizens. The government does not grant us our liberties, they (our liberty) are inalienable and should be protected, rather than taken from us.

    Unfortunately there are many oath breakers now serving in office who think like you that it’s okay to violate the bill of rights here and there, as long as it’s protecting us from the big bad wolf!

    And yes, while the NSA will most likely reveal some instances where they believed they discovered some terrorist (big bad wolf) intelligence information that may be helpful to our over all security, thousands if not millions of Americans were searched without any legal due process.

    And yet, our elected officials, who swore by an oath to protect and defend such actions have spoken out in favor of the NSA, in addition to seeking the hanging of Snowden. I guess for some of these elected officials their oath didn’t mean a damn thing to them and was only ceremonial.

    If these elected officials aren’t willing to stand up to protect and defend the rights of those thousands or millions of Americans from unreasonable searches and seizures, even the rights of Snowden, then how can we say that we are really free and secure?

  • RR senile columnist

    It’s nice to see such righteous indignation erupting right and left. I’m not sure if it is volcanic in nature or simply farting. In case you hadn’t noticed, the law-abiding citizen’s role in decision- making has been steadily shrinking for more than a generation and isn’t likely to be reversed. The NSA isn’t a culprit, it is an example of the citizen’s diminished role in government.

  • JohnW

    #19

    Although I don’t know whether you and I are on the same side of the NSA issue, your point about the citizen’s diminished role in big government is interesting and perhaps somewhat valid. However, I don’t think that is strictly a “big government” issue. How great really is the citizen’s role in municipal or county government, in the schools, in EBMUD or the Contra Costa Sanitary or Fire District. Or, for that matter, in a condo homeowner association? We live in a world of great complexity and specialization. And we sub-contract much of our lives to others to manage.

    As for the NSA matter, you refer to the “righteous indignation erupting right and left.” But, what is interesting is that the debate on this has not been along “left” and “right” lines. If you had told me two weeks ago that I would find myself on the same side of an issue as Dick Cheney, I would have died laughing.

  • JohnW

    #18

    I knew somebody would bring up some version of the Ben Franklin quote: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

    The key phrases are “essential liberty” and “a little temporary safety.”

    I don’t consider monitoring traffic patterns among phone numbers or having security cameras tracking every move in Times Square to be giving up “essential liberty.” And I don’t consider trying to prevent the next 9/11 or a dirty bomb as “a little temporary safety.” Getting drafted by Nixon was giving up liberty. Paying taxes is giving up liberty. Being on the wrong end of eminent domain pursuant to the 5th Amendment is giving up liberty. But unconstitutional? No.

    As for Mr. Snowden, we don’t know what he is doing. Elvis lectured us on the subject of civil liberties from a country that is not exactly a bastion of individual freedom. Now, he is apparently underground. But I’m pretty sure Chinese intelligence officials know exactly where he is. I’m equally they will not hesitate to use bribery, flattery or other means to get him to “share” whatever information of value he may possess.

  • Elwood

    Elvis?

  • JohnW

    #23

    Just a feeble play on the expression, “Elvis has left the building.” In this case, the country.

    But, come to think of it, considering his last name, there’s a true story movie that comes to mind: The Falcon and Snowman. About another guy who gets a top secret clearance job with a contractor, becomes disillusioned with what his government is doing and decides to sell secrets to the Soviets.

  • RR senile columnist

    Elvis, God bless his soul, had more than his share of talent as well as shortcomings. But no one can question his patriotism.

  • RR senile columnist

    John: How dare you drag Elvis into this swamp of iniquity!

  • JohnW

    #24

    You’re absolutely right, RR. My abject apologies to The King.

    For the moment, I’ll just go with “Hong Kong Eddie” in referring to Mr. “I’m not a spy” Snowden.

  • Elwood

    Based on quotes I heard on the radio this am, Honk Kong Eddie considers himself a hero and would welcome martyrdom.

    Oh, and Big Brother was an amateur. (That’s me, not Eddie.)

  • JohnW

    Elvis has left the building again. (apologies to the real Elvis).

    Looks like Hong Kong Eddie is becoming Ecuador Eddie. He’s en route there via Moscow and Venezuela, flying the friendly skies of Aeroflot.

    Once granted asylum in his new home, he will be free to use his talents to pursue a life of prosperity there and to keep disclosing everything he knows.

    Looks like there’s not much the U.S. can do other than huff and puff — unless we want to resort to some 1950′s tricks.

  • Elwood

    If I were Eddie, I’d keep a close eye on the sky for drones.

  • JohnW

    Apparently Eddie didn’t make his scheduled Aeroflot flight from Moscow to Cuba, the presumed transfer point en route to either Venezuela or Ecuador. It seems reasonable to speculate that Russia wanted to extend its hospitality to him a while longer before sending him on the rest of his freedom tour.

    In the meantime, Eddie now says that he took the job with Booz Allen Hamilton a few months ago for the specific purpose of obtaining access to the information and disclosing it to the world. He also says he has more to tell. Thanks for the confession, Eddie. That clears up any ambiguity about whether you are a “whistleblower” or a treasonous spy.

    Are there still morons out there who want to call Eddie a “hero” who has done us a public service by “starting a conversation with the American public?” I suppose Julius Rosenberg did us all a favor by starting a conversation about atomic bombs.

  • Elwood

    Look!

    Up in the sky!

    It’s a bird! It’s a plane! Nooooo it’s a ****ing drone!

    Medals for everyone!

  • JohnW

    Maybe we could work out a swap with the Russians.

    Putin gets to keep the Super Bowl ring he stole from the owner of the Patriots.
    In return, he redirects Snowden’s flight to D.C. instead of Havana.