http://www.washingtonpost.com/wp-dyn/content/article/2008/05/22/AR2008052203704.html

Sentence in Memo Discounted FISA

By Robert Barnes

Washington Post Staff Writer

May 23, 2008

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."

In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration.

But Democratic Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.) said the memo provided the legal underpinnings for the Bush administration to ignore FISA's clear language.

"I cannot reconcile the plain language of FISA that it is the exclusive procedure for electronic surveillance of Americans with the OLC opinion saying Congress didn't say that," Whitehouse said in a statement. "Once again, behind the veil of secrecy, OLC appears to have cooked up extravagant or misguided legal theories which would never survive the light of day."

The context of Yoo's statement is unclear, because the rest of the memo remains classified. Yoo, now a law professor at the University of California at Berkeley, also wrote a controversial memo from August 2002 that narrowly defined torture; the department later rescinded it.

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

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."