Justice Department details legal blessing of warrantless wiretapping in 2004 The Justice Department has released portions of a detailed legal analysis from 2004 of President George W. Bush's warrantless wiretapping program--an opinion which concluded that a law Congress passed restricting surveillance in the U.S. was unconstitutional if it barred Bush's program. At its core, the 74-page opinion by Justice Department Office of Legal Counsel chief Jack Goldsmith (viewable here) makes two legal arguments--both highly controversial. First, that the Authorization for the Use of Military Force passed by Congress in 2001 implicitly authorized surveillance like that under the warrantless wiretapping program. Second, if the AUMF was read not to authorize such surveillance, the 1978 law Congress passed setting out the "exclusive" means for domestic electronic surveillance was unconstitutional.
"An understanding of my views and actions requires reading the memorandum and other classified documents in their entirely, which is not possible today," Goldsmith wrote on the Lawfare blog late Friday . "I continue to believe that the memorandum provides a sound analysis of a difficult set of legal issues encountered in a difficult context."
Goldsmith said he could not elaborate further due to the bulk of his opinion and the details of the program being classified. However, it is worth noting that in the weeks before the memorandum was written Goldsmith, Deputy Attorney General James Comey and FBI Director Robert Mueller had a major showdown with the White House. That conflict, including the bizarre chapter of a visit by White House Counsel Alberto Gonzales to the hospital bedside of Attorney General John Ashcroft, led Goldsmith, Comey and Mueller to threaten or prepare to resign.
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