DOJ Memo Said FISA’s ‘Exclusive’ Provisions Didn’t Always Apply

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DOJ Memo Said FISA’s ‘Exclusive’ Provisions Didn’t Always Apply

Posted May 23, 2008, 05:36 am CDT
By Debra Cassens Weiss

A sentence in a Justice Department memo helps explain how the administration justified domestic wiretaps of overseas terrorism suspects despite a law establishing a special court to hear surveillance requests.

Two senators criticized the legal interpretation in a Washington Post story that examines the memo’s legal argument. The sentence was declassified and released this week.

The memo by John Yoo of the Office of Legal Counsel interpreted the 1978 Foreign Intelligence Surveillance Act. The law said it is the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted" in foreign intelligence cases.

But Yoo, now a law professor at the University of California at Berkeley, said the law is not so exclusive in the national security context, the Post story says.

Yoo wrote: "Unless 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."

After the Sept. 11 attacks, President Bush allowed the executive branch to wiretap calls between people in United States and overseas terrorism suspects without the FISA court’s approval. In the face of criticism, Bush later changed the policy to require review.

Sen. Sheldon Whitehouse, D-R.I., criticized Yoo’s interpretation. "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,” he said in a statement quoted in the Post.

Sen. Dianne Feinstein, D-Calif., said new FISA legislation must have strong exclusivity language to prevent future "abuses."

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