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2002 Legal Rationale For Warrantless Surveillance: Because The President Can Do It, Shut Up

from the how-is-john-yoo-not-in-jail? dept

Tue, Mar 1st 2016 10:38am — Mike Masnick

Oh, John Yoo. The former top Bush administration lawyer -- who is already well-known for writing that administration's (totally bullshit) "legal defense" for torture -- has also been an outspoken advocate for NSA surveillance as well. Soon after the Snowden revelations, Yoo defended the NSA arguing that the 4th Amendment shouldn't apply to the NSA because it takes too long. Then, he said that judges shouldn't be allowed to determine if the NSA violated the 4th Amendment because they're too out of touch with the American public. It's long been known that Yoo also was deeply involved in creating the legal justifications for that very warrantless surveillance program he's been defending, and now, finally, years later, the Office of the Director of National Intelligence has released the May 17, 2002 letter that Yoo sent to the FISA Court chief judge Colleen Kollar-Kotelly. You can read it here.

As the ODNI release notes, Judge Kollar-Kotelly was allowed to read the letter, justifying the NSA's warrantless surveillance on Americans, but "was not authorized to retain a copy or take notes" because nothing says transparency democracy like secret interpretations of the law where no one's allowed to know the details, and the people overseeing it are only allowed to glance at the justifications. It was the "re-evaluation" of this John Yoo rationalization that created the now infamous hospital room showdown in March of 2004, when some in the administration realized that Yoo was basically full of shit.

Anyway, now the Yoo memo (with plenty of redactions, of course!) has been released, and we can see just how absolutely ridiculous the whole thing was. In short, Yoo argues that even though, historically, the NSA was not allowed to do warrantless surveillance on Americans and the Foreign Intelligence Surveillance Act (FISA) made it clear that domestic surveillance needed to first be approved with warrants to the FISA Court (which is barely a court anyway), there was nothing that said that had to be the case, and the President was basically free to turn the NSA loose to spy on Americans without any FISA approval. First, he notes that the NSA is not technically or legally limited in surveilling Americans, even if it historically avoided doing so:

In short, that says because Congress didn't explicitly limit the NSA in the same manner as the CIA, that must mean it's okay for the NSA to spy on Americans. This basically ignores the history and rationale for the NSA, which was entirely secret for much of its early history anyway, and created and run out of the executive branch with little Congressional oversight. Yoo then admits that the driving executive order that enables much of the NSA's activities -- the infamous Executive Order 12333 -- does explicitly say that the NSA can only conduct foreign signals intelligence surveillance, but that doesn't matter, because future Presidents aren't bound by previous Presidents' executive orders. He also argues that if the NSA is spying on Americans in order to seek "significant foreign intelligence," then it's perfectly fine as well.

He then admits, generously, that even though there's no actual legal restriction (in his mind) on the NSA spying on Americans, that it could "be in tension with FISA" since FISA requires a warrant for domestic surveillance. But fear not, evil legal genius John Yoo has a bullshit way around that as well. He goes through a detailed description of the limits of getting a warrant approved by FISA and bemoans the fact that it wouldn't be possible to intercept all phone calls from a certain country under FISA.

And here's where he gets really tricky. He says that FISA is not necessarily a limitation on what kind of surveillance can be done, but merely a safe harbor such that if you follow it you're automatically presumed safe under the 4th Amendment. However, he insists that FISA cannot limit the President's constitutional powers, and thus the President can still order warrantless domestic surveillance outside of FISA, and the only issue is that it's outside of the FISA "safe harbors" -- so it may not be automatically presumed in compliance with the 4th Amendment:

From there, he goes on for a while insisting that the President has the Constitutional power to order warrantless surveillance basically whenever he wants, with the only limitation being the 4th Amendment (which we'll get to). And then he pulls a neat little trick, insisting that the President doesn't require a warrant for conducting surveillance for national security related purposes (pointing to some caselaw involving questions around due process in espionage cases), and notes that, even better, FISA itself means that "surveillance conducted for national security purposes is not subject to the same Fourth Amendment standards that apply in domestic criminal cases."

Did you see the neat trick he played there? First, he showed that the President can ignore FISA and Executive Order 12333, and then used FISA (which he already said the President could ignore) to argue that the 4th Amendment standards don't really apply either. You want to know why lawyers get a bad name for bullshit arguments? Look at John Yoo -- and then remember that his bullshit arguments weren't just around a single case, but to justify spying on all Americans without a warrant (we'll leave aside the fact that he did the same thing for torture as well).

From there, he actually argues that a court reading FISA to restrict the President would create a constitutional conflict:

This is a pretty fascinating rewriting of history. The whole point of the Foreign Intelligence Surveillance Act was to put limits and oversight on the collection of foreign intelligence information. And here Yoo argues that Congress intended no such thing as the very purpose of the law. That's kind of astounding.

From there, Yoo then tries to argue that warrantless wiretapping of basically everyone in America also does not violate the 4th Amendment. First, he argues that the 4th Amendment does not apply to non-US persons. Next, he said that communications that leave the US electronically are also no longer subject to the 4th Amendment due to the "border search exception" -- an issue that we've discussed plenty of times for people who have had their laptops searched as they enter the country. This, apparently, is part of Yoo's 4th Amendment loophole. Any communications involving Americans that happens to slip outside of US borders loses any 4th Amendment protections. The fact that it's digital, not physical, makes no difference according to John Yoo's extremely distorted moral compass. But, he admits that there might be some concerns about the border search theory with regards to the contents of email and phone calls, so he has a trick: how about we just say the 4th Amendment doesn't apply to the metadata, and we'll call it even.

Then he uses the infamous Smith v. Maryland case, that established the Third Party Doctrine to argue further that there's no 4th Amendment issue with sucking up all metadata. We've heard this argument many times in court by now. Because this one 1979 ruling, which was about whether or not law enforcement could get the phone records of a single phone from a person that they were tracking for criminal behavior, that means that everyone has given up any expectation of privacy in any metadata they have on any communications record -- including email. This also suggests Yoo has no clue how email works. The reason that the phone records were considered legit was because the phone company had to track all of your phone calls for billing reasons, and thus had a "legitimate business purpose" in keeping track of all your phone record metadata. That's not how email works, but Yoo basically pretends it does:

My ISP doesn't get access to who I email. Because that's not how email works.

Next up, Yoo argues that because the Fourth Amendment was really designed to deal with "curbing law enforcement abuses," it really shouldn't apply to support for "military operations." And since the response to 9/11 is really about military operations, the 4th Amendment shouldn't apply to spying on all Americans because it's to support that purpose:

Finally, he argues that even if this program were subject to the 4th Amendment, which he doesn't think it should be, that's still okay, because snooping on every American's communications is still "reasonable" under the 4th Amendment... because TERRORISTS!!!!!!!

In short, Yoo basically wipes aside anything that protects Americans from mass surveillance, despite the fact that the 4th Amendment was specifically designed to stop "general warrants" that allowed for mass surveillance, and despite the fact that FISA was passed to stop government abuse of surveillance powers. To Yoo, there's an excuse for basically any kind of government intrusion on our private lives, and even if the laws and Constitution do apply, no problem, you just shout "terrorism" and all is allowed.

This is a really sickening letter. At the very least, it should have been made public at the time it was written so that it could have been debated (and trashed as ridiculous) at the time it was made. Instead, it was done in secret, given to a judge who could only read it and not keep it or take notes, and then wasn't revealed publicly for almost 14 years. This is not how a democracy is supposed to function.

OLC-9-With-Attachment (PDF)OLC-9-With-Attachment (Text)

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Filed Under: 4th amendment, colleen kollar-kotelly, email, fisa, john yoo, legal rationale, metadata, nsa, surveillance, warrantless surveillance, warrantless wiretapping

47 Comments

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That One Guy (profile), 1 Mar 2016 @ 10:19am

Disgusting, but not in any way surprising
When you're talking about someone so utterly contemptuous of the ideas of justice, law, and even basic decency, such that they are willing to defend torture, having them 'only' argue that the fourth amendment is purely optional and can be ignored whenever it becomes a bother is just par for the course.
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Anonymous Coward, 1 Mar 2016 @ 10:49am

If it's not safe under the 4th amendment, what does he even mean by "the president's constitutional powers".
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Anonymous Coward, 1 Mar 2016 @ 11:03am

A question from a foreigner, when did they change the oath of office to "undermine the constitution at every opportunity"?
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Anonymous Coward, 1 Mar 2016 @ 11:05am

Re:
A little bit over a long time.
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Anonymous Coward, 1 Mar 2016 @ 11:06am

There's a special place in hell for John Yoo. One that's monitored 24/7, every single action he takes is strictly scrutinized and every thing he says is weighted for secondary meaning.
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Anonymous Coward, 1 Mar 2016 @ 11:11am

The only rationale I'd care to read from John Woo would be why he shouldn't be hung for his complicity in the US torture program.
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Anonymous Coward, 1 Mar 2016 @ 11:13am

Re:
Er. John Yoo.
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Ninja (profile), 1 Mar 2016 @ 11:21am

I don't really know how people like Yoo can sleep at night (I'm assuming he can) having such low respect for other fellow humans.

Maybe it's some kind of psychopathy, sociopathy or whatever mental illness... But seriously, I would like to know.
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Anonymous Anonymous Coward, 1 Mar 2016 @ 11:25am

Re:
There was no change. Those oaths are just ignored, along with any other inconvenience that might get in the way of the agenda (which is a secret that is so secret that even people in power are not allowed to know it, let alone read it). The agenda: more power, more subservience, more money that will become increasingly worthless necessitating more money which might be compensated with more subservience that naturally comes with more power.
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Anonymous Anonymous Coward, 1 Mar 2016 @ 11:35am

Re:
What makes you think John Yoo is qualified to have a rationale as to whether or not he should be hung?

Remember, according to him, he is allowed to write drivel that purportedly justifies illegal acts by the US government while keeping those justifications from anyone who might object to them, including the government of the people, by the people, rather than over the people.
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Anonymous Coward, 1 Mar 2016 @ 11:36am

Re: Re:
correction...

whenever they damn well please. Bush & Obama are hardly the first corrupt presidents that we have had. Maybe the worst, but hardly the first.

"The People" have long been asleep and have forsaken the wisdom of the Founders of this nation. People use the excuse that these are new times to justify this break but those are the ones that never learned from history.

High Technology and Fast travel has not changed that old ploy of "raping the liberty of your people under the guise of fighting a foreign enemy" one iota. The game has always been afoot and the only ones now ignorant to this are "The People". The very ones excusing themselves from responsibility and blaming those in power.

Every country has a government it deserves, and every democracy has the leader it deserves.

We have been fighting over scraps from the table so long we have forgotten we actually control it.
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Anonymous Coward, 1 Mar 2016 @ 11:42am

Re:
Everyone already knows, there is no secret to the ends that a man will go to justify their iniquities.

When we stand for our judgement, none will claim ignorance. We know, we have always known, yet we feign ignorance and expect to remain free of judgement when the time comes.
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AricTheRed (profile), 1 Mar 2016 @ 11:42am

Re:
"I don't really know how people like Yoo can sleep at night (I'm assuming he can) having such low respect for other fellow humans."

It is called Propofol, and it is not real sleep, it's called sedation.

Hopefully he has a sooper doctor administering his "sleep" meds too.
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That One Guy (profile), 1 Mar 2016 @ 12:05pm

Re:
Sociopathic tendencies are the first possibility that comes to mind. When those around you aren't actually people to you then you can treat them any way you want and not care in the slightest, any more than you would think that furniture deserves any special treatment.
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Anonymous Coward, 1 Mar 2016 @ 12:15pm

Re: Re:
I want to hear a government official actually come out and say "Yes, I wiped my arse with the Constitution because I AM A PATRIOT!!!" And John Yoo is just the sort of sociopath to use circular illogic.
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David, 1 Mar 2016 @ 12:23pm

Re:
That information is classified.
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Anonymous Coward, 1 Mar 2016 @ 12:35pm

I know it's been said before over and over again but it bears repeating...

Fuck Yoo!
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David, 1 Mar 2016 @ 12:41pm

Democracy?
This is not how a democracy is supposed to function.

Reality check. The U.S.A. was never supposed to be a democracy but rather a Constitutional Republic. The latter is shielded from the effects of the former by the whole electoral process, intended to counterbalance the corrosive effects of both crowd stupidity from the bottom and corruption from the top.

Admittedly, the current U.S. government has a somewhat dim view of "Constitutional" as well as "Republic" (by the people, for the people). Political parties, mass media, and lobbying work on dismantling prudence, integrity, and dedication to a degree where the building materials for neither democracy nor constitutional republic are readily available and/or reliably workable any more.

The current form is rather evolving into burlesque fascism.
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Anonymous Coward, 1 Mar 2016 @ 12:48pm

Not how it works?
Email does work in the way Yoo describes, more or less. Unless your ISP lets you send mail directly (i.e. they trust you are not a spammer), they tell you what SMTP server to use. You configure your email software to pass all outbound mail to that server, and this naturally involves telling the server what address to route the message to. The server does a DNS lookup of the MX host for the destination domain, then talks to that host in order to hand off the mail for delivery. Logs of all of this communication are normally kept so that delivery problems and abuse can be diagnosed, although usually only for a short while (hours or days).

Of course, I suppose nothing is truly stopping an ISP from harvesting email addresses, maintaining permanent logs, or otherwise using the SMTP envelope data for "business purposes", but I wouldn't go so far as to say there's no expectation of privacy around any of it.
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SpaceLifeForm, 1 Mar 2016 @ 12:55pm

Yoo's 4th ammendment loophole - 'border search exception'
This. Pre 2001-09-11, in fact early y2k,
All US to US ip traffic was being routed
out of US and back. I was a heavy traceroute
user back then and magically traceroutes to
well known US websites that used to take 5 to 8
hops jumped to near 30 hops. I knew something
was fishy at that point. The NSA2 conspiracy was
in play. While all of us techs were
concentrating on the y2k planning, remediation,
and rollover, the darkside was preparing for 9-11,
fixing the vote in Forida, and greasing the
skids for Bush v. Gore at SCOTUS.

In short, everyone was distracted and not paying
enough attention including myself.

Then, in 2006-01-31, Hepting v. Att.
The US goverment quickly jumped in and
tried to intervene in the case.
The court did not buy the US goverments arguments.

I recall that near this time, I had a discussion
with a very well known lawyer (especially well
known at this time), and I argued that the US government
was looking for a way to get the telcos
retroactive immunity for their part in
the illegal spying program. He disagreed.

Then, more lawsuits were filed against various
telcos, and the government realized they
had a bigger problem on their hands.

So, on 2008-06-19, the FISA Amendments Act (FAA)
was introduced. Less than three weeks later,
A fear-mongered Congress passed the bill.

I was correct. It gave the telcos immunity.
I am 100% certain, that at this point
in time (post Snowden), that
the lawyer that disagreed with me,
now realizes that I was spot on.

Fortunately, Jewel v. NSA is still alive.

And, of course, the US government attack on Apple.

The truth will come out eventually,
but by then most of the conspirators
will be dead. They will have inflicted
a lot of damage on this planet in their
quest to rule the world.

My message to you: everyone must pay
attention to what is happening and how
you are being attacked.

Stop being distracted. Do not allow retroactive
immunity ever again. Retroactive immunity is
a slippery slope just like the current US
government attacks on Apple in their attempt to
outlaw encryption.
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Rich Kulawiec, 1 Mar 2016 @ 12:56pm

Damn impressive
This is one of the best pieces I've ever read here -- and given the consistent high quality and occasional gem, that's saying a lot. Bravo.
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Avatar28 (profile), 1 Mar 2016 @ 1:01pm

surveillance is a "military action"?
Since Mr Woo Woo wants to argue that the 4th amendment doesn't apply because it's a military action then doesn't using the military against Americans within our borders run afoul of the posse comitatus act?
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Anonymous Coward, 1 Mar 2016 @ 1:02pm

Re: Not how it works?
Yes mail servers usually log connections but I think his point was that a key part of the justification is that phone calls are logged for billing purposes which is a key part of the business. Mail logs are really only kept for troubleshooting purposes.
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Anonymous Coward, 1 Mar 2016 @ 1:08pm

Re: surveillance is a "military action"?
The Posse Comitatus Act spells out specifically which branches of service it applies to none of which the NSA falls under.
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Anonymous Coward, 1 Mar 2016 @ 1:14pm

Please, someone FOIA how much Mr. Yoo was paid to sell out literally everyone and piss in the face of what this country was founded on. Douche bag!
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Anonymous Coward, 1 Mar 2016 @ 1:18pm

Context is interesting
The whole message of the letter is troubling. It shows no respect for judicial oversight or review by the FISA court.

Judge Kollar-Kotelly was allowed to read the letter, justifying the NSA's warrantless surveillance on Americans, but "was not authorized to retain a copy or take notes"

First of all, in what court is someone allowed to dictate what recording the court is able to make of their argument. It's one thing to ASK the judge to seal records, it's quite another to tell the judge that the court can have no record.

Secondly, this letter intended for the FISA judge says basically that they really don't need to use FISA. It seems like the intent is to cow the Jodge Kollar-Kotelly into approving whatever the executive wants. If she wants any minimizations at all, she better play nice, or the exec will just stop bringing requests to FISA.

(As an aside, I find it annoying that the release never completely disavows this letter. And where it does mentions changes since the letter, it's full of caveats. It talks of how surveillance under TSP/PSP is now transitioned to FISA oversight - With no mention of the current state pf surveillance that was not done under TSP/PSP.)
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Anonymous Coward, 1 Mar 2016 @ 1:28pm

Remind me again why all the people called out in this article are not being put in jail?

Also why are the media not making a bigger deal about this kind of thing?

Finally why is the country not protesting against this?
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Anonymous Coward, 1 Mar 2016 @ 1:36pm

Re: Context is interesting
She's probably not allowed to talk about her tour of duty in FISA, but I sure would like to hear Judge Kollar-Kotelly's thoughts about this letter.
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Anonymous Coward, 1 Mar 2016 @ 1:58pm

Re:
I have heard the phrase "How can you sleep at night".

I didn't realize you was spelled Yoo.
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Anonymous Coward, 1 Mar 2016 @ 2:04pm

Re: Re: Re:
(The People) The very ones excusing themselves from responsibility and blaming those in power.

Have been expertly divided in Red and Blue teams, and as long as that remains the case we will move forward to the tyrannical future.
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Anonymous Coward, 1 Mar 2016 @ 2:22pm

too many presidents trying to be kings ruling the people instead of working for the people
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Anonymous Coward, 1 Mar 2016 @ 2:26pm

Re:
when they decided they should be the new royalty instead of public servants.
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Anonymous Coward, 1 Mar 2016 @ 2:30pm

Re: Re: surveillance is a "military action"?
when the law gets in your way just rewrite things so that it no longer applies right.
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Groaker (profile), 1 Mar 2016 @ 3:37pm

Yoo's rationale should win him a vacation
For a trip to the Hague for a surprise war crimes trial.
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Anonymous Coward, 1 Mar 2016 @ 3:59pm

Re:
This is because to much time has passed between uprisings. We can only hope that will change but with so many getting hooked on government handouts I doubt it will. Our only hope now is for some "warlord" in the US to take a stand and get things rolling.
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Personanongrata, 1 Mar 2016 @ 4:19pm

Trust Me Not
2002 Legal Rationale For Warrantless Surveillance: Because The President Can Do It, Shut Up

The US government which used John Yoo's "legal opinions" resulting in torture and mass surveillance would like for it's citizens to trust it's actions are wholesome as it operates in almost complete secrecy with zero accountability.

Take for instance a quote from FBI Director J Edgar Comey's congressional testimony today, 1Mar16, excerpted from The Guardian:

“The FBI is not an alien force imposed on the American people from Mars”

http://www.theguardian.com/technology/live/2016/mar/01/apple-fbi-congressional-hearing-live?p age=with:block-56d5e7afe4b023cfa49eb9ca

FBI Director J Edgar Comey is absolutely correct in that the FBI is not an alien force.

The FBI is however staffed by agents who are human and thus may be tempted by the allure of power (especially that which is wielded in secret) and must be bound down from mischief by the chains of the Constitution (to paraphrase Thomas Jefferson http://press-pubs.uchicago.edu/founders/documents/v1ch8s41.html).

Binding down the agents of government with the Constitution is critically important when the government agency or department is in all effect a opaque secret police society that has repeatedly broken the law (eg FBI COINTELPRO https://en.wikipedia.org/wiki/COINTELPRO) in the past under the charade of protecting national security.
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Anonymous Coward, 1 Mar 2016 @ 5:53pm

Re:
Perhaps some people should start sharing this sentiment with him on Twitter just to see how he reacts.
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beltorak (profile), 1 Mar 2016 @ 6:11pm

Re: Re: surveillance is a "military action"?
Oooohhhhh, that makes it real easy then. Just EO-up a new branch of the military and presto! No need to worry about those pesky laws and acts that were only created to protect terrorists anyway. Why didn't I think of that?
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Anonymous Coward, 2 Mar 2016 @ 1:48am

Re:
I believe the going rate is 30 pieces of silver.
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Wendy Cockcroft, 2 Mar 2016 @ 5:56am

Re: Re: Re: Re:
True. We need to encourage people to believe there is more of an option than a binary choice between See and Saw.
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Wendy Cockcroft, 2 Mar 2016 @ 5:58am

Re: Re:
Where in the world did you get the idea that such a course of action would be effective?

Come The Revolution? Good Luck With That!
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Anonymous Coward, 2 Mar 2016 @ 6:09am

Re: Yoo's rationale should win him a vacation
he would be in good company as there is a reason most of the last few decades worth of former US government officials do not travel to any other country. Most of them have been charged with war crimes by the international court, including but not limited to several former Presidents.
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Digger, 2 Mar 2016 @ 7:08am

We're the PoS President's bosses.
Mr. President, you're fired.

There - now you have exactly 30 minutes to vacate the premises that you're now illegally occupying.
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Anonymous Coward, 2 Mar 2016 @ 7:30am

treasonous traitor needs a trail
then executed by hanging, saddam style.
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Lawrence D’Oliveiro, 2 Mar 2016 @ 8:56pm

Re: The U.S.A. was never supposed to be a democracy but rather a Constitutional Republic
So G W Bush was lying when he spoke about promoting democracy?
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Whatever, 2 Mar 2016 @ 9:50pm

The law is the law
As usual the pirates of Techdirt continue to miss the wood for the trees. Like I said, you're free to oppose the government, but do it in the open and within the limits of the law. If you choose to do otherwise you deserve whatever's coming to you.
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John Fenderson (profile), 3 Mar 2016 @ 8:50am

Re: The law is the law
...said every tyranny ever.
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