David Kris is stepping down as the head of the Justice Department’s National Security Division, and he leaves some very big shoes to fill. Kris is regarded as one of the best minds of his generation on national-security law, and particularly the confusing, nebulous world of electronic surveillance.
It’s not widely known that Kris played a tangential role in some of the secret maneuvering that created the Bush-era program of warrantless electronic surveillance, which some experts believe broke U.S. law. In the immediate aftermath of the 9/11 terrorist attacks, as Congress was crafting the Patriot Act, Kris asked the Justice Department’s Office of Legal Counsel whether the administration might change some wording in the law governing wiretaps of suspected spies and terrorists. Bush officials wanted to make it easier for the government to secure warrants in terrorism cases. Kris was in charge of making sure the Justice Department complied with the wiretapping law, known as the Foreign Intelligence Surveillance Act, and he knew the statute backwards and forwards.
John Yoo, the lawyer reviewing Kris’s question, and who had no experience arguing cases that used these kinds of wiretaps, replied that the administration’s proposed changes to the law raised no constitutional concerns. But then Yoo answered a question that Kris hadn’t even asked. Did the President have the inherent authority as commander-in-chief during wartime to bypass courts and warrants all together, and to personally authorize secret surveillance of people in the United States? Yoo concluded that he did.
Yoo told Kris that the President needn’t bother changing the wiretapping law—which would require Congressional approval—because the Fourth Amendment’s requirement that no search be conducted without a warrant was “impracticable” during wartime.
Yoo’s assessment became part of the basis for the National Security Agency’s so-called warrantless wiretapping program. The program itself wasn’t revealed until December 2005, and Yoo’s widely criticized legal reasoning remained secret for even longer.
According to a Justice Department official, Kris was taken aback to see Yoo reaching far beyond the narrow question he was asking about changing the wording of a law, and instead concocting an extraordinary justification for surveillance based solely on the President’s authorities as commander-in-chief. Kris left the Bush administration in 2003 and joined Obama’s Justice Department two years ago. But to say Kris was surprised by Yoo’s reply is an understatement. You have to read only the 23-page critique he wrote of the Bush administration’s decision, in his capacity as a private citizen in 2006, to know how troubled he was by it.
Kris’s paper is still considered one of the most sophisticated and thorough attempts to grapple with the Constitutional concerns raised by wartime intelligence-gathering. The same can’t be said for Yoo’s analysis. In losing Kris, the Obama administration will find itself without the benefit of a skilled lawyer who knew the surveillance law well enough to use it confidently. Those kinds of lawyers exist, but there are few of them in the country today.