Last week, the Inspectors General of five separate intelligence agencies released a congressionally-mandated report on the Bush administration’s post-9/11 surveillance programs. The report focuses much of its criticism on John Yoo, a former deputy assistant attorney general in the Office of Legal Counsel, who wrote “legal memos undergirding the policy.”

In the Wall Street Journal today, Yoo responded to the report, claiming that the inspectors general are ignoring history and are simply “responding to the media-stoked politics of recrimination.” But in his attack on the report, Yoo neither responded to the specific criticisms of his legal reasoning nor mentioned that he refused to cooperate with the investigation.

Instead, Yoo persisted in pushing the flaws in his legal argument, such as the claim that the Foreign Intelligence Surveillance Act did not take war into consideration:

It is absurd to think that a law like FISA should restrict live military operations against potential attacks on the United States. Congress enacted FISA during the waning days of the Cold War. … In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency.

But the IG report stated:

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.”

Yoo’s analysis of this point would later raise serious concerns for other officials in OLC and the Office of the Deputy Attorney General (ODAG) in late 2003 and early 2004. Among other concerns, Yoo 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. Yoo’s successors in OLC criticized this omission in Yoo’s memorandum because they believed that by including this provision in FISA Congress arguably had demonstrated an explicit intention to restrict the government’s authority to conduct electronic surveillance during wartime.

In his op-ed, Yoo also argued that “the 1952 Supreme Court case of Youngstown Sheet & Tube v. Sawyer is the IG’s lodestar,” but that it doesn’t apply in the case of Bush’s warrantless wiretapping program. Yoo never mentioned, however, that he neglected to make that argument in his legal memos supporting the program:

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.

Finally, though he mentioned that IG report covers “‘other’ intelligence measures” that he signed off on, Yoo never addressed the charge that his “discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities,” which led former Attorney General John Ashcroft to conclude that he had “been certifying the Authorizations prior to March 2004 based on a misimpression of those activities.”

The New York Times reports today that members of Congress are increasingly concerned about the extent of the NSA’s domestic surveillance program, particularly the overcollection of the private telephone calls and e-mail messages of Americans. An anonymous former intelligence analyst tells reporters James Risen and Eric Lichtblau that during much of the Bush years, the NSA “tolerated significant collection and examination of domestic e-mail messages without warrants.” Reportedly, one of the accessed domestic e-mail accounts belonged to former President Bill Clinton:

He said he and other analysts were trained to use a secret database, code-named Pinwale, in 2005 that archived foreign and domestic e-mail messages. He said Pinwale allowed N.S.A. analysts to read large volumes of e-mail messages to and from Americans as long as they fell within certain limits — no more than 30 percent of any database search, he recalled being told — and Americans were not explicitly singled out in the searches.

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton.

While serving as a U.S. attorney during the Bush administration, Christopher Christie, now a Republican candidate for Governor in New Jersey, tracked the whereabouts of citizens through their cell phones without warrants. The ACLU obtained the documents detailing the spying program from the Justice Department in an ongoing lawsuit over cell phone tracking.

While the documents reveal 79 such cases on or after Sept. 12, 2001, they do not specify how many of the applications were made during Christie’s tenure. Christie served as U.S. attorney from Jan. 17, 2002 through November 2008. ACLU staff attorney Catherine Crump noted:

Tracking the location of people’s cell phones reveals intimate details of their daily routines and is highly invasive of their privacy. The government is violating the Constitution when it fails to get a search warrant before tracking people this way.

The new revelations about the cell phone tracking program under Christie is yet another example of the warrantless spying programs authorized under the Bush administration. Previous programs approved without a court order or warrant have included the secret program to monitor radiation levels at over 100 Muslim sites and the NSA spying program on the phone and e-mail communications of thousands of people inside the U.S. These programs run contrary to the Fourth Amendment to the U.S. Constitution, which forbids “unreasonable searches” and sets out specific requirements for warrants, including “probable cause.”

During his tenure as U.S. attorney, Christie also awarded his former boss, John Ashcroft, a $28-52 million dollar no-bid contract to “monitor a large corporation willing to settle criminal charges out of court.” Former Attorney General Nicholas Katzenbach blasted the decision, saying that awarding a no-bid contract “suggests other political things, and that seems to me to be as wrong as it can be.” Christie also doled out “a multi-million-dollar, no bid contract to an ex-federal prosecutor who declined to criminally prosecute Christie’s brother on stock fraud charges two years earlier.”

Christie’s campaign manager, Bill Stepien, declined to comment on the cell phone spying program “due to pending litigation.”

On Monday, the New York Times confirmed that in December 2005, its Washington bureau chief, Philip Taubman, “met with a group of Congressional leaders familiar with the eavesdropping program, including Ms. Harman. They all argued that The Times should not publish” its story on the National Security Agency’s wiretapping. So who are those other “Congressional leaders”? CQ’s David Nather tries to narrow down the possibilities:

But during the period before the NSA program became public, the members of the Gang of Eight would have included House Speaker J. Dennis Hastert, R-Ill.; Nancy Pelosi, initially the ranking Democrat on the House intelligence committee, and later the House minority leader; Senate Majority Leader Bill Frist, R-Tenn.; Tom Daschle, D-S.D., and later Harry Reid, D-Nev., the Senate minority leaders at the time; Senate Intelligence Chairman Pat Roberts, R-Kan.; John D. Rockefeller IV, D-W.Va., the ranking Democrat on Senate Intelligence; House Intelligence Chairman Peter Hoekstra, R-Mich.; and Harman, who replaced Pelosi as the ranking Democrat on House Intelligence after Pelosi became minority leader.

A “Democratic aide” told CQ that Pelosi wasn’t at the NYT meeting. Nather adds that GOP members of the Gang of Eight “would have had more incentive to try to kill the story, since most GOP lawmakers later said the Times jeopardized national security by running the story.”