Among the least surprising revelations in the shocking Inspectors General report on President Bush's domestic surveillance programs are those concerning John Yoo. As it turns out, in justifying the NSA's warrantless wiretapping of Americans beginning in 2001 the Bush administration relied solely on the same legal architect behnid the President's regime of detainee torture. And in Yoo, the White House found the one man willing to claim publicly that the FISA law governing such electronic surveillance was an unconstitutional infringement on the President's powers as commander-in-chief.
The unclassified IG report revealed that Jay Bybee, Yoo's boss at the Justice Department's Office of Legal Counsel, not only was not "read in" to the secret Presidential Security Programs including the NSA activities, he was unaware "how Yoo came to draft the OLC opinions on the program."
Nevertheless, Bybee seemed unsurprised that President Bush, Vice President Cheney, his henchman David Addington and Attorney General John Ashcroft would have tapped Yoo to provide the legal basis for their surveillance programs. (Addington and Ashcroft, like Yoo, refused to be interviewed for the report.):

Bybee described Yoo as "articulate and brilliant," and said he had a "golden resume" and was "very well connected" with officials in the White House. Bybee said that from these connections, in addition to Yoo's scholarship in the area of executive authority during wartime, it was not surprising that Yoo "became the White House's guy" on national security matters.

And as he later revealed in October 2007, "the White House's guy" was more than willing to brush aside any treaty or act of Congress as irrelevant and unconstitutional constraints on the President's war powers. During the PBS Frontline documentary "Cheney's Law," Yoo scoffed when asked if President Bush in authorizing warrantless domestic spying by the NSA had violated the Foreign Intelligence Surveillance Act (FISA) passed in 1978:

"I think that there's a law greater than FISA, which is the Constitution, and part of the Constitution is the president's commander-in-chief power. Congress can't take away the president's powers in running war. They are given to him by the Constitution, in the same way that Congress couldn't pass laws saying you can't invade Normandy or you can't place Europe first in World War II. There are some decisions the Constitution gives the president, and even if Congress passes a law, they can't seize that from him."

That statement, as the IG report confirms, was a perfect summary of Yoo's argument in a key November 2, 2001 memo blessing Bush's domestic eavesdropping:

Yoo's November 2, 2001 memorandum focused almost exclusively on the activity that the President later publicly confirmed as the Terrorist Surveillance Program. Yoo acknowledged that FISA "purports to be the exclusive statutory means for conducting electronic surveillance for foreign intelligence," but opined that "[s]uch a reading of FISA would be an unconstitutional infringement on the President's Article II authorities." Yoo characterized FISA as merely providing a "safe harbor for electronic surveillance," adding that it "cannot restrict the President's ability to engage in warrantless searches that protect the national security." According to Yoo, the ultimate test of whether the government may engage in warrantless electronic surveillance activities is whether such conduct is consistent with the Fourth Amendment, not whether it meets the standards of FISA. Yoo wrote that "unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area - which it has not - then the statute must be construed to avoid such a reading."

But as it turned out, Yoo's legal reasoning was so ham-handed and fatally flawed that it later raised such "serious concerns" in the OLC and Office of the Deputy Attorney General as to require reevaluation by 2003.
As the IG's report shows, when it came to both FISA and the United States Constitution, Yoo's were sins of omission as well as commission. For openers, Yoo selectively ignored a section of the FISA law that his successors at OLC argued "demonstrated an explicit intention to restrict the government's authority to conduct electronic surveillance during wartime":

Among other concerns, Y00 did not address the section of FISA that creates an explicit exemption from the requirement to obtain a judicial warrant for 15 days following a congressional declaration of war. See 50 U.S.C. § 1811.

Just as jaw-dropping, Yoo also conveniently omitted any mention of the perhaps the defining Supreme Court ruling on the scope of the president's powers as commander-in-chief, the 1952 Youngstown decision which prohibited President Truman from seizing striking U.S. steel mills during the Korean War:

Yoo's legal memoranda omitted any discussion of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), a leading case on the distribution of government powers between the Executive and Legislative Branches. Justice Jackson's analysis of President Truman's Article II Commander-in-Chief authority during wartime in the Youngstown case was an important factor in OLC's subsequent reevaluation of Yoo's opinions on the legality of the PSP.

That the overwhelming weight of constitutional opinion was against Yoo and the Bush administration became clear after the NSA program was publicly revealed by the New York Times in December 2005. In early 2006, a distinguished, bi-partisan group of American constitutional legal experts and scholars wrote to congressional leaders and strongly rejected the arguments put forth in a letter by the Bush administration:

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Neither did the President's allies in Congress. Then Republican Arlen Specter noted that Congress expressly removed the words "in the United States" from the September 2001 Authorization for the Use of Military Force (AUMF), adding, "Isn't that a clear indication of congressional intent not to give the president the authority for interceptions in the United States?" Fellow GOP Senator Mike Dewine (R-OH) backed away from the very challenge to FISA that Yoo relished:

"You know, there's been some controversy about whether or not this program is legal or is not legal. I think we need to get beyond that - we don't want to have any kind of debate about whether it's constitutional or not constitutional."

Of course, for John Yoo there could be no check of any kind on President Bush's wartime powers. As the IG report determined, Yoo similarly gave short shrift to the legal issues involved in blessing Bush's still secret "Other Intelligence Activities":

To the extent that particular statutes might appear to preclude these activities, Yoo concluded that "we do not believe that Congress may restrict the President's inherent constitutional powers, which allow him to gather intelligence necessary to defend the nation from direct attack."

During a December 2005 forum in Chicago, now professor John Yoo was asked, "If the president deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?" Yoo responded, "no treaty." Pressed further if any law by Congress could bar the President from authorizing such torture, Yoo said:

"I think it depends on why the president thinks he needs to do that."

What President Bush needed in the fall of 2001 was a person who unfailingly provide legal cover for the warrantless surveillance of American citizens at home and the torture of terror detainees abroad. He found him in John Yoo, the right man for the job.
UPDATE: In his thorough dissection of the IG report, Glenn Greenwald rightly concludes, "To accept the central premise of our political class -- it's unfair to prosecute Bush officials for things that DOJ lawyers told them was legal -- is to destroy the rule of law in the United States," adding, "Presidents will always be able to find subservient John Yoos in the bowels of the DOJ willing to authorize anything they want to do." Meanwhile, Anonymous Liberal also makes the case against John Yoo.