Did Clinton Violate FISA?
It has been brought to our attention the Bush Administration has been making the claim that Clinton's use of physical searches also violated FISA. Is this true or is it another lie put out by the Bush Administration?
Let's see...
Scott McClellan at the January 17th Press Breifing...
Q You kept saying "lawful." It's true the President -- there is a law that permits the President to get a warrant and wiretap. But he has not been doing that; he's been breaking the law. Al Gore said he broke the law. The ACLU is filing a suit. Why does he break the law? I mean, he has the means and the tools to do what --
MR. McCLELLAN: I reject that wholeheartedly, Helen. The legal justification has been spelled out by the Department of Justice.
In terms of Al Gore's comments, I think his hypocrisy knows no bounds. It was the Clinton administration that used warrantless physical searches. An example is what they did in the case of Aldrich Ames. And it was the Deputy Attorney General under the Clinton administration that testified before Congress and said, "First, the Department of Justice believes and the case law supports that the President has inherent authority" -- inherent authority -- "to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General." This is testimony, public testimony before the House of Representatives Permanent Select Committee on Intelligence.
I would also point out that a former associate Attorney General under the Clinton administration said that every President since FISA's passage has asserted that he retained inherent power to go beyond the Act's terms -- under President Clinton -- and he pointed to the Deputy Attorney General's comments that I just referenced. So --
January 16th on CNN's Larry King Live, Attorney General Alberto R. Gonzales claimed...
KING: General, Al Gore said today that President Bush repeatedly and persistently broke the law with the NSA domestic spying program and he wants a special counsel named to investigate. What are your thoughts?
ALBERT GONZALES, ATTORNEY GENERAL OF THE UNITED STATES: Well, I didn't see the speech of the former vice president. What I can say is that this program from its inception has been carefully reviewed by lawyers throughout the administration, people who are experienced in this area of the law, experienced regarding this technology and we believe the president does have legal authorities to authorize this program.
I would say that with respect to comments by the former vice president it's my understanding that during the Clinton administration there was activity regarding the physical searches without warrants, Aldrich Ames as an example.
I can also say that it's my understanding that the deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant and so those would certainly seem to be inconsistent with what the former vice president was saying today.
These are in fact untrue statements by both, Scottie and Albert.
MediaMatters has provided this information as proof that Clinton did not violate FISA...
At the time of the Ames investigation, FISA did require warrants for wiretaps -- as it does now -- and there is ample evidence that the Clinton administration complied with those requirements. In a 2002 speech, U.S. District Court Judge Royce C. Lamberth, who previously served on the FISA Court, noted the "key role" the court played in that case to "authorize physical entries to plant eavesdropping devices":
LAMBERTH: I'm sure all of you recall the Aldrich Ames case, the CIA officer who was a Russian spy, and the key role the Foreign Intelligence Surveillance Court played in his case. The attorney general had also authorized physical searches of Ames's home, not pursuant to court order, that turned out to be very productive. Had Ames gone to trial, that would have been a hotly litigated issue. The president and the Congress wisely reacted by amending the statute to now require that physical searches for national security reasons also be authorized by the court.
The court had authority all along to authorize physical entries to plant eavesdropping devices, but the court had never authorized physical searches for information.
The Clinton administration's compliance with the FISA requirements regarding electronic surveillance was further substantiated by Mark M. Richard, a former deputy assistant attorney general. According to a Department of Justice (DOJ) review -- conducted by then-assistant U.S. attorney Randy I. Bellows -- of the Los Alamos National Laboratory investigation, Richard established in 1999 that, during the Ames investigation, "the Attorney General was asked to sign as many as nine certifications to the FISA Court in support of applications for FISA surveillance."
During his conversation with Toensing, Blitzer asked twice if the DOJ went to the FISA court after the fact, a reference to FISA's "emergency" provision, which allows the government to obtain a warrant up to 72 hours after starting some surveillance or searches. But his question missed the central falsehood in Toensing's argument. FISA did not apply to physical searches at the time of the Ames investigation or the Gorelick testimony, a point that Blitzer did not raise despite Toobin's having made it minutes before. Prior to Toensing's apparently unexpected commentary on The Situation Room, Toobin had clearly affirmed that "physical searches were not covered by the FISA law" at the time of Gorelick's 1994 testimony and that the Clinton administration never "went ahead and wiretapped American citizens without informing or using the FISA court."
From the December 21 edition of CNN's The Situation Room (4 p.m. ET hour):
BLITZER: Here's the point that Senator [John] Cornyn [R-TX] and many other Republican supporters of the administration make in Gorelick's own words, when she said that the president has, quote, "inherent authority to conduct warrantless physical searches for foreign intelligence purposes." That's the direct quote that she made. And what they argue, the Republicans, Senator Cornyn included, is physical searches are no different, in effect are the same as wiretapping.
TOOBIN: Well the statement, as I understand it, and here we're getting into some real details. In 1994, when Jamie Gorelick made that statement, physical searches were not covered by the FISA law. And that was changed in 1995. But I think the general point you're making is right.
Jamie Gorelick at least appeared to say there were certain inherent powers in the presidency that went beyond what FISA provided for. The Clinton administration always asserted they never went beyond those powers, but there does appear to be a statement of -- claiming inherent authority. The Bush administration now appears both to be claiming that authority and perhaps using it in this very controversial program that we've been talking about since last week.
BLITZER: But there's no evidence that the Clinton administration actually went ahead and wiretapped American citizens without informing or using the FISA court?
TOOBIN: Absolutely not. In fact, what the Clinton administration has said and did was that they followed the FISA law, and the FISA law prohibited wiretaps of Americans without a court order.
Let's see...
Scott McClellan at the January 17th Press Breifing...
Q You kept saying "lawful." It's true the President -- there is a law that permits the President to get a warrant and wiretap. But he has not been doing that; he's been breaking the law. Al Gore said he broke the law. The ACLU is filing a suit. Why does he break the law? I mean, he has the means and the tools to do what --
MR. McCLELLAN: I reject that wholeheartedly, Helen. The legal justification has been spelled out by the Department of Justice.
In terms of Al Gore's comments, I think his hypocrisy knows no bounds. It was the Clinton administration that used warrantless physical searches. An example is what they did in the case of Aldrich Ames. And it was the Deputy Attorney General under the Clinton administration that testified before Congress and said, "First, the Department of Justice believes and the case law supports that the President has inherent authority" -- inherent authority -- "to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General." This is testimony, public testimony before the House of Representatives Permanent Select Committee on Intelligence.
I would also point out that a former associate Attorney General under the Clinton administration said that every President since FISA's passage has asserted that he retained inherent power to go beyond the Act's terms -- under President Clinton -- and he pointed to the Deputy Attorney General's comments that I just referenced. So --
January 16th on CNN's Larry King Live, Attorney General Alberto R. Gonzales claimed...
KING: General, Al Gore said today that President Bush repeatedly and persistently broke the law with the NSA domestic spying program and he wants a special counsel named to investigate. What are your thoughts?
ALBERT GONZALES, ATTORNEY GENERAL OF THE UNITED STATES: Well, I didn't see the speech of the former vice president. What I can say is that this program from its inception has been carefully reviewed by lawyers throughout the administration, people who are experienced in this area of the law, experienced regarding this technology and we believe the president does have legal authorities to authorize this program.
I would say that with respect to comments by the former vice president it's my understanding that during the Clinton administration there was activity regarding the physical searches without warrants, Aldrich Ames as an example.
I can also say that it's my understanding that the deputy attorney general testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant and so those would certainly seem to be inconsistent with what the former vice president was saying today.
These are in fact untrue statements by both, Scottie and Albert.
MediaMatters has provided this information as proof that Clinton did not violate FISA...
At the time of the Ames investigation, FISA did require warrants for wiretaps -- as it does now -- and there is ample evidence that the Clinton administration complied with those requirements. In a 2002 speech, U.S. District Court Judge Royce C. Lamberth, who previously served on the FISA Court, noted the "key role" the court played in that case to "authorize physical entries to plant eavesdropping devices":
LAMBERTH: I'm sure all of you recall the Aldrich Ames case, the CIA officer who was a Russian spy, and the key role the Foreign Intelligence Surveillance Court played in his case. The attorney general had also authorized physical searches of Ames's home, not pursuant to court order, that turned out to be very productive. Had Ames gone to trial, that would have been a hotly litigated issue. The president and the Congress wisely reacted by amending the statute to now require that physical searches for national security reasons also be authorized by the court.
The court had authority all along to authorize physical entries to plant eavesdropping devices, but the court had never authorized physical searches for information.
The Clinton administration's compliance with the FISA requirements regarding electronic surveillance was further substantiated by Mark M. Richard, a former deputy assistant attorney general. According to a Department of Justice (DOJ) review -- conducted by then-assistant U.S. attorney Randy I. Bellows -- of the Los Alamos National Laboratory investigation, Richard established in 1999 that, during the Ames investigation, "the Attorney General was asked to sign as many as nine certifications to the FISA Court in support of applications for FISA surveillance."
During his conversation with Toensing, Blitzer asked twice if the DOJ went to the FISA court after the fact, a reference to FISA's "emergency" provision, which allows the government to obtain a warrant up to 72 hours after starting some surveillance or searches. But his question missed the central falsehood in Toensing's argument. FISA did not apply to physical searches at the time of the Ames investigation or the Gorelick testimony, a point that Blitzer did not raise despite Toobin's having made it minutes before. Prior to Toensing's apparently unexpected commentary on The Situation Room, Toobin had clearly affirmed that "physical searches were not covered by the FISA law" at the time of Gorelick's 1994 testimony and that the Clinton administration never "went ahead and wiretapped American citizens without informing or using the FISA court."
From the December 21 edition of CNN's The Situation Room (4 p.m. ET hour):
BLITZER: Here's the point that Senator [John] Cornyn [R-TX] and many other Republican supporters of the administration make in Gorelick's own words, when she said that the president has, quote, "inherent authority to conduct warrantless physical searches for foreign intelligence purposes." That's the direct quote that she made. And what they argue, the Republicans, Senator Cornyn included, is physical searches are no different, in effect are the same as wiretapping.
TOOBIN: Well the statement, as I understand it, and here we're getting into some real details. In 1994, when Jamie Gorelick made that statement, physical searches were not covered by the FISA law. And that was changed in 1995. But I think the general point you're making is right.
Jamie Gorelick at least appeared to say there were certain inherent powers in the presidency that went beyond what FISA provided for. The Clinton administration always asserted they never went beyond those powers, but there does appear to be a statement of -- claiming inherent authority. The Bush administration now appears both to be claiming that authority and perhaps using it in this very controversial program that we've been talking about since last week.
BLITZER: But there's no evidence that the Clinton administration actually went ahead and wiretapped American citizens without informing or using the FISA court?
TOOBIN: Absolutely not. In fact, what the Clinton administration has said and did was that they followed the FISA law, and the FISA law prohibited wiretaps of Americans without a court order.
posted by Sandy at 6:33 AM
0 Comments:
Post a Comment
<< Home