John Yoo is the Berkeley law professor, former associate White House counsel and former law clerk to Clarence Thomas, who is responsible for the most extreme White House positions on torture and snooping:

• It was Yoo who drafted the infamous memo saying the Geneva Conventions were "seriously flawed" and the U.S. wasn't bound by them in treating al Qaeda prisoners.

• It was Yoo who drafted the memo with this definition of torture:

...it declared that, to be considered torture, techniques must produce lasting psychological damage or suffering "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

• It was Yoo who said the President was not bound by FISA or federal eavesdropping laws when conducting electronic surveillance when one party was outside the United States. Yoo believes in wartime, the constitution gives the president unlimited power.

You can read his January 9 memo to William Haynes here. (pdf)

How did this 38 year old uber-conservative who has never met Bush or Cheney get to dictate our policy on torture and the war on terror? Mostly, it was fortuitous timing. The timing of the 9/11 attacks.

The Office of Legislative Affairs for the Justice Department wrote this letter (pdf) Thursday to leaders of the Senate Select Committee on Intelligence in an attempt to justify the President's orders directing the National Security Agency to conduct warrantless electronic surveillance in the wake of 9/11.

DOJ says the President's actions were justified and legal by virtue of:

• Article II of the Constitution
• The Authorization for the Use of Military Force ("AUMF") of September 18,
  2001, 115 Stat. 224 (2001)
• The 2002 FISA Review Court Ruling (background here.)
• Principles of statutory construction that apply when there's an ambiguity
• The Fourth Amendment's reasonableness requirement allowing for warrantless searches upon a showing of special need under the totality of the circumstances.

The letter acknowledges that FISA and Title III prohibit electronic surveillance unless authorized by statute. Here's the DOJ argument: The AUMF constitutes such a statute. And, if it doesn't, it should, because principles of statutory construction require that FISA and the AUMF be harmonized, and any ambiguities have to be resolved in favor of presidential authority.

In legalese, according to DOJ (note: this is cut and pasted from the pdf file which mistakes some symbols, so if you want to be completely accurate in citing, use the pdf link above):

Did Rep. James Sensenbrenner miscalculate? Last night, the Senate had agreed to extend the Patriot Act for six months so a compromise bill could be worked out that better protected civil liberties than the dismal conference bill.

But, Rep. Sensenbrenner thought that was too long. He wanted a Patriot Act renewal bill in place sooner. So with an almost empty Senate chamber today, he moved for a one month extension and got it.

Will the Democrats fold in January? Sen. Russ Feingold says they won't.

"No one should make the mistake of thinking that a shorter extension will make it possible to jam the unacceptable conference report through the Congress," said Sen. Russell Feingold, D-Wis., who led the Senate filibuster. "That bill is dead and cannot be revived.""

How does a one month extension help the Republicans?

Experts say Bush's warrantless electronic surveillance could jeopardize current terror cases if the evidence against them is derived from illegal interceptions.

How would a defendant know? How about a request under 18 USC Sec. 3504?

(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—

(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;

(b) As used in this section “unlawful act” means any act the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.

I suspect there will be a lot of motions filed under this section, not just in terror cases, but in other cases in which the defendants are foreign-born. They will seek to have the Government affirm or deny that they were subjects of Bush's warrantless surveillance. I'm not encouraging the filing of the motions, TalkLeft does not give legal advice, it's just an interesting thought.

There's a big debate going on over whether former President Bill Clinton believed he had the inherent power to conduct warrantless electronic surveillance outside of FISA. Byron York says yes. Think Progress says no. Atrios explains.

For the record, I don't think Clinton broke the law while I think Bush probably did.

That said, let me also add that Bill Clinton was no friend on privacy issues (or on criminal justice issues for that matter.) Remember when the Clinton Administration acknowledged in June, 1996 that it improperly obtained more than 400 private and restricted FBI files of employees of previous administrations? (There are 882 articles on Lexis mentioning this between June 1 and June 30, 1996.)

The ACLU has filed multiple Freedom of Information Act requests over Bush's executive order for warrantless electronic surveillance and physical searches of persons within this country.

Here's the one to the National Security Agency.(pdf)

The requests submitted today seek all records about "the policies, procedures and/or practices of the National Security Agency for gathering information through warrantless electronic surveillance and/or warrantless physical searches in the United States ...".... Information received by the organization will be made public on its Web site.

Also recommended: The ACLU's FISA page and spy file page.

For those who want the tech talk of data-mining and interception capabilites, check out:

Law Professor Doug Berman who writes Sentencing Law and Policy, the go-to blog on criminal sentencing, e-mailed me some thoughts on Bush and his warrantless electronic surveillance orders, the topic being a little off-subject for his blog. He says the fitting label for Bush's behavior is "executive activism."

Unwilling or unable to obtain the power they seek though the legislative process, this administration has made up the law themselves.

I like the label and will go with it. Prof. Berman continues,

It highlights the hypocrisy of this administration in regularly attacking judges for their open efforts to enforce constitutional protections, while it engages in anti-democratic secret efforts to undermine constitutional protections.

Bush is an Executive Activist. Spread the word.

D.C. District Court Judge James Robertson, one of the 11 secret judges of the Foreign Intelligence Surveillance Court, has resigned in the wake of the allegations that Bush couldn't even be bothered to get one of these rubber-stamped FISA surveillance orders, despite the fact that the government could monitor conversations for 72 hours before even applying for a warrant if the circumstances so warranted.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

....Robertson indicated privately to colleagues in recent conversations that he was concerned that information gained from warrantless NSA surveillance could have then been used to obtain FISA warrants. FISA court Presiding Judge Colleen Kollar-Kotelly, who had been briefed on the spying program by the administration, raised the same concern in 2004 and insisted that the Justice Department certify in writing that it was not occurring.

On July 17, 2003, following a briefing by Cheney, Sen. Jay Rockefeller responded with a handwritten letter (pdf). How prescient. Markos at Daily Kos has the text version. Here's a portion of it:

Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician or an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

As I reflected on the meeting today, and the future we face, John Poindexter's TIA project sprung to mind, exacerbating my concern regarding the direction the Administration is moving with regard to security, technology, and surveillance. Without more information and the ability to draw on any independent legal or techical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

I am retaining a copy of this letter in a sealed envelope in the secure spaces of the Senate Intelligence Committee to ensure that I have a record of this communication.

Patriot Daily has a great round-up of liberal blogger reaction to the unauthorized spying.

Seventeen Democrats who are members of the House Judiciary Committee today called on Committee Chairman James Sensenbrenner to convene hearings to investigate President Bush's ordering the National Security Agency to conduct electronic surveillance of persons within the United States without obtaining court-ordered warrants. They noted in their request that Sen. Arlen Specter has called for similar hearings before the Senate Judiciary Committee. (More on that here.)

From the letter (received by e-mail):

...we ask that you, too, convene hearings to investigate why the President circumvented the system established under current law, which permits him to seek emergency warrants from the Foreign Intelligence Surveillance Court to conduct domestic surveillance. It is imperative we understand the legal authority upon which it is claimed these activities are based and the scope of the activities undertaken.

President Bush held a news conference today that was dominated by recent news that after 9/11 he ordered electronic surveillance without a warrant or court order.

President Bush offered a vigorous and detailed defense of his previously secret wiretap program today, calling it a legal and essential tool in the battle against terrorism and saying that whoever disclosed it had committed a "shameful act."

Mr. Bush said the surveillance would continue, that it was being conducted under appropriate safeguards and that Congress had been kept informed about it. He rejected any suggestion that the surveillance program was symptomatic of unchecked power in the presidency.

It's important to note here that people in this country have been subjected to the warrantless surveillance, not just foreign nationals.

The New York Times has a good editorial today on Bush's insistence that his executive orders allowing domestic warrantless monitoring of conversations was in accord with the Constitution and our nation's laws.

President Bush defended the program yesterday, saying it was saving lives, hotly insisting that he was working within the Constitution and the law, and denouncing The Times for disclosing the program's existence. We don't know if he was right on the first count; this White House has cried wolf so many times on the urgency of national security threats that it has lost all credibility. But we have learned the hard way that Mr. Bush's team cannot be trusted to find the boundaries of the law, much less respect them.

Mr. Bush said he would not retract his secret directive or halt the illegal spying, so Congress should find a way to force him to do it. Perhaps the Congressional leaders who were told about the program could get the ball rolling.

What section of FISA do the Bush advisors not understand? Glenn Greenewald makes his case here .

The only way to argue that the Bush Administration’s warrantless eavesdropping on suspected terrorists, including U.S. citizens, complied with the law is by misquoting the law in order to change its requirements.

As to the credibility of Bush officials on this issue, Think Progress points out: