Sentence in Memo Discounted FISA
By Robert Barnes
Washington Post Staff Writer
Friday, May 23, 2008; Page A15

What does "exclusive" mean?

The answer was at the heart of a highly sensitive memo by the Justice Department's Office of Legal Counsel in 2001, when Bush administration officials were keen to institute warrantless domestic surveillance after the Sept. 11, 2001, attacks.

A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.

This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:

The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act 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."
When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it "confirmed and supplemented the President's Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States," Benczkowski said.

Whether such surveillance can be authorized outside of the legal requirements of FISA is one of the most contentious points in negotiations between Congress and the administration as it attempts to revise the statute — a matter on which lawmakers will have the last word.

Feinstein said in a statement: "The declassified OLC opinion claimed that FISA didn't restrain the President's authorities. The OLC was wrong, and new FISA legislation must have strong exclusivity language to make clear that we cannot have such abuses again in the future."

They should not have new FISA legislation with "strong exclusivity language." That's just Feinstein knowingly and deliberately playing into the Federalist Society's hands. What the Bush administration did was illegal on its face. Feinstein will add a false element of ambiguity that was never there. She will give the Bush administration the ability to say, "If the language was clear, why did Congress pass new legislation to make it clear?" That's the whole plan. It was the plan all along. They debated these things in their minds at the White House ahead of time. They did the "what if." What if the democrats get into power and come after us for war crimes and illegal domestic spying? How will we react?

Feinstein is doing the Zionist thing. She's protecting the false-Zionist neocons in the Bush administration for the sake of Apartheid Israel over the sake of U.S. citizens being spied upon by those who use the information in evil ways. She did the same thing regarding torture.

Furthermore, "Use of Military Force" of Sept. 18, 2001 was based upon 9/11 in which the Bush administration had more than a hand and continues to seek to cover up. It was also not a declaration of war, and there was no declaration of Military Law in the domestic U.S. The neocons don't have a legal leg to stand on. Only idiots would think otherwise.


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  • Tom Usher

    About Tom Usher

    Employment: 2008 - present, website developer and writer. 2015 - present, insurance broker. Education: Arizona State University, Bachelor of Science in Political Science. City University of Seattle, graduate studies in Public Administration. Volunteerism: 2007 - present, president of the Real Liberal Christian Church and Christian Commons Project.
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