In defense of secret wiretapping, Lowry falsely claimed that Gorelick testimony proved Clinton asserted "the same authority" as Bush
On Fox News' Hannity & Colmes, National Review editor Rich Lowry falsely claimed that the Clinton administration had asserted "exactly the same authority" that President Bush has cited in defense of his controversial decision to conduct domestic surveillance without warrants, referring to then-Deputy Attorney General Jamie Gorelick's 1994 testimony that the executive branch has "inherent authority to conduct warrantless physical searches." However, physical searches are not the same thing as electronic surveillance and were not restricted at that time by the Foreign Intelligence Authorization Act (FISA), which has since been amended to include them.
As a guest host on the December 20 edition of Fox News' Hannity & Colmes, National Review editor Rich Lowry claimed that the Clinton administration had asserted "exactly the same authority" that President Bush has cited in defense of his controversial decision to allow the National Security Agency (NSA) to conduct warrantless domestic surveillance . Lowry was referring to then-Deputy Attorney General Jamie Gorelick's July 14, 1994, testimony  before the Senate Intelligence Committee, in which she stated that the executive branch has "inherent authority to conduct warrantless physical searches."
But "physical searches" are not the same as electronic surveillance and, as Gorelick's testimony made clear, were not restricted at that time by the Foreign Intelligence Authorization Act (FISA), which has since been amended to include them. The foreign intelligence activity that the Bush administration has argued it can conduct without warrants -- domestic wiretapping -- has for 27 years been governed by FISA, which specifically requires court orders. On the other hand, the foreign intelligence activity to which Gorelick was referring -- "physical searches" -- was not covered by FISA when she said that Clinton had the "inherent authority to conduct" them. Further, Gorelick testified that she supported legislation requiring FISA warrants for physical searches. Following the passage  of such legislation in 1995, the Clinton administration no longer asserted that it had the authority to conduct warrantless physical searches. By contrast, the Bush administration has claimed that it is not bound by the corresponding FISA provision requiring warrants for domestic eavesdropping.
The Gorelick statement was first highlighted in National Review White House correspondent Byron York's December 20 article headlined "Clinton Claimed Authority to Order No-Warrant Searches ":
In a little-remembered debate from 1994, the Clinton administration argued that the president has "inherent authority" to order physical searches -- including break-ins at the homes of U.S. citizens -- for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.
While York's article did not explicitly draw a parallel between the Clinton administration's 1994 policy regarding foreign intelligence searches and the current Bush administration controversy, Lowry and other media figures apparently relied on his article -- radio host Rush Limbaugh and Fox News anchor Brit Hume did so explicitly -- to equate the authority asserted by Clinton with the one more recently claimed by Bush. But at the time Gorelick testified before the Senate Intelligence Committee that Clinton could order physical searches within the United States without a court order, FISA did not address such searches, as the weblog Think Progress noted  in response to York's piece. In her testimony, Gorelick clearly stated that electronic surveillance, such as the wiretapping Bush authorized, was governed by FISA at the time:
GORELICK: In FISA, the privacy interests of individuals are protected not by mandatory notice but through in-depth oversight of foreign intelligence electronic surveillance by all three branches of government and by expanded minimization procedures.
Moreover, Gorelick clearly stated her support for legislation requiring FISA warrants for physical searches:
GORELICK: [T]he Department of Justice believes that Congress can legislate in the area of physical searches as it has done with respect to electronic surveillances, and we are prepared to support appropriate legislation. A bill that strikes the proper balance between adequate intelligence to guarantee our nation's security, on one hand, and the preservation of basic civil rights on the other will be an important addition to our commitment to democratic control of intelligence functions. Such a bill would also provide additional assurances to the dedicated men and women who serve this country in intelligence positions that their activities are proper and necessary.
While Gorelick did express concerns that the highly restrictive requirements that apply to criminal searches might "restrict the President's ability to collect foreign intelligence," she stated that such "ability" would not be infringed upon if these searches were to be governed by "the basic provisions" of FISA:
GORELICK: Nevertheless, I reiterate the Administration's willingness to support appropriate legislation that does not restrict the President's ability to collect foreign intelligence necessary for the national security. We need to strike a balance that sacrifices neither our security nor our civil liberties.
If we can achieve such a balance -- and I believe we can if we use the basic provisions of the Foreign Intelligence Surveillance Act -- we can accomplish a number of things.
Furthermore, York's claim that, even after FISA had been amended to require court orders for physical searches, Clinton "still maintained that he had sufficient authority to order such searches on his own" is false, according to Think Progress. Following the 1995 amendment, the Clinton administration never argued  that the president's "inherent authority" allowed him to bypass FISA, as the Bush administration has done in the case of its domestic surveillance activities.
Like Lowry, numerous other media figures used Gorelick's statement -- as promoted by York -- to defend Bush's secret wiretapping program. On the December 20 edition of Fox News' Special Report with Brit Hume, host Brit Hume similarly cited Gorelick's testimony to assert that "President Bush is not the first to use or assert executive power to authorize warrantless searches." On the December 20 broadcast of his nationally syndicated radio show, Limbaugh claimed that the Clinton administration did "exactly what George W. Bush did" and that, in her criticism of the secret NSA domestic spying in a December 20 Washington Post article , Gorelick had "contradicted herself big time." And on the December 21 edition of Fox News Live, host Martha MacCallum  quoted Gorelick and asked her guest, former Clinton White House chief of staff Leon Panetta , "Do you think that one standard applies then and a different standard applies here?"
From the December 20 edition of Fox News' Hannity & Colmes:
LOWRY: And I'd like to read a statement that the Clinton administration's deputy attorney general, Jamie Gorelick, said in testimony to Congress in 1994. This is what she had to say: "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes." So, [former special assistant to President Clinton for national security affairs] P.J. [Crowley], isn't that exactly the same authority that the Bush administration is asserting in this instance and is prompting so much outrage? So, if you're outraged at what Bush has done, do you think the Clinton administration was willing to trample on the Constitution as well?
From the December 20 edition of Fox News' Special Report with Brit Hume:
HUME: Despite claims to the contrary, President Bush is not the first to use or assert executive power to authorize warrantless searches. National Review notes that President Clinton's deputy attorney general, Jamie Gorelick, told the Senate Intelligence Committee in 1994 that an executive order signed by President Reagan provided for warrantless searches against a foreign power or an agent of a foreign power saying, quote, "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless, physical searches for foreign intelligence purposes." The Washington Post, by the way, reported that defense of warrantless searches and the warrantless searches themselves on page A-19.
From the December 20 broadcast of The Rush Limbaugh Show:
LIMBAUGH: But let me read you this -- this Jamie Gorelick quote from The Washington Post today. And this quote -- now you're -- if you don't understand the context, you are going to assume that she is supporting the president. But she's not. She's supporting [Sen. John] McCain [R-AZ]. She's -- this is an anti-Bush comment. But what follows this is the pièce de résistance. She says in The Washington Post today, "The issue here is this. If you're John McCain and you just got Congress to agree to limits on interrogation techniques, why would you think that -- that limits anything if the executive branch can ignore it by asserting its inherent authority?"
So what she's saying is Bush is a lawbreaker. Bush -- he doesn't have to listen to McCain. He doesn't have to listen to President McCain of the media. He can do whatever he wants. He's just gone out and done whatever he wants anyway. He's violating all these laws. He's not getting warrants. He's doing whatever he wants to do. The man's -- he's power-mad. He's outta -- that's what this quote means. So she's sympathetic to McCain. If you're McCain, why would you think that your bill limits anything Bush will do when Bush can ignore it by asserting his inherent authority?
Now, let's go back, though. Let's go back -- July 14th, 1994, Jamie Gorelick quoted by Byron York in a story today at National Review Online. She said -- and this is her testimony before the Senate Intelligence Committee on July 14th of 1994. She said -- Jamie Gorelick -- "The Department of Justice believes, and the case law supports, that the president has 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. It's important to understand, senators, that the rules and the methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
So Jamie Gorelick here is basically saying, "We have a different set of rules when a Democrat's in the White House. When a Democrat's in the White House, we can do exactly what George W. Bush did, because Bill Clinton did it. But when George W. Bush is in office, we can't let George W. Bush do it, because he's a Republican," or whatever reason. So here's Gorelick today in The Washington Post, the issue here is this -- if you're McCain, and you just got Congress to pass your big limits on interrogation techniques bill, what would you think it matters when Bush is gonna run roughshod over the law anyway and do what he wants to do?
Why, then, she's quoted, 11 years ago, basically, saying, "Hey, presidents have this authority, and they've used it, and they've done it before. Foreign intelligence is far different than domestic criminal searches." So I mean, it is -- it is just -- these people lie through their teeth. Jamie Gorelick, the audacity for her to step forward and have some sort of authority on this is typical of the mainstream press. But she has just contradicted herself big time inside of 11 years, and it illustrates the entirety of the political aspects of this whole thing.
From the December 21 edition of Fox News Live (2 p.m. ET hour):
MacCALLUM: And yet, in a number of circumstances, we've seen presidents basically go to the same sort of scenario. And one of them, when you were chief of staff under President Clinton, and Jamie Gorelick, the assistant AG at that time, said that "the president has an inherent authority to conduct warrantless searches for foreign intelligence purposes" and that those were used, in fact, in the investigations of Aldrich Ames -- in the spy investigation. Do you think that one standard applies then and a different standard applies here?
PANETTA: No, I don't. As a matter of fact, under the Foreign Intelligence Surveillance Act, it didn't cover warrantless searches, and the president of the United States then went to the Congress to ask that that law be changed to cover those searches. This is not the case with President Bush, who is not requesting any kind of change on the Foreign Intelligence Surveillance Act.