On the January 5 broadcast of Christian Broadcasting Network's (CBN) The 700 Club, host Pat Robertson falsely claimed that Jamie Gorelick, who served as deputy attorney general during the Clinton administration, “went before Congress and said the president has absolute authority to conduct wiretaps in war against enemy agents if they're in this country. It's perfectly legal.” Robertson was defending President Bush's authorization of warrantless domestic electronic surveillance by the National Security Agency (NSA) -- an apparent violation of the Foreign Intelligence Surveillance Act (FISA) of 1978.

Robertson was apparently referring to Gorelick's July 14, 1994, testimony before the House Permanent Select Committee on Intelligence. But in that hearing, Gorelick never said that the president could authorize warrantless domestic electronic surveillance. Rather, she told the committee that the president had the “inherent authority to conduct warrantless physical searches” -- which, unlike electronic surveillance -- were not covered by FISA at the time. A Media Matters for America review of Gorelick's Clinton-era testimony available in the Nexis database uncovered no evidence that Gorelick ever told Congress that the president had absolute authority to order domestic wiretaps.*

Gorelick's 1994 testimony was first highlighted in the context of Bush's domestic surveillance program in a December 20 National Review article by White House correspondent Byron York, headlined "Clinton Claimed Authority to Order No-Warrant Searches." Since then, several conservative commentators have used Gorelick's statement about physical searches to falsely claim that she asserted the same power that the Bush administration has asserted in defense of its electronic surveillance program.

In her testimony, Gorelick noted that, in contrast with physical searches, FISA did address electronic surveillance. She stated: “In FISA, the privacy interests of individuals are protected not by mandatory notice [to the surveillance target] but through in-depth oversight of foreign intelligence electronic surveillance by all three branches of government and by expanded minimization procedures.”

At the same hearing, Gorelick testified in support of amending FISA to create a warrant requirement for physical searches. Gorelick stated that “the administration and the attorney general support, in principle, legislation establishing judicial warrant procedures under the Foreign Intelligence Surveillance Act for physical searches undertaken for intelligence purposes.” Gorelick further stated that “the 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.” In October 1994, Congress passed legislation to require FISA warrants for physical searches. In February 1995, Clinton issued an executive order that implemented the new FISA requirements on physical searches.

Similarly, host Lou Dobbs, on the January 4 edition of CNN's Lou Dobbs Tonight, failed to challenge former Bush administration official Ron Christie's claim that “President Clinton's deputy Attorney General Jamie Gorelick said that the president has the inherent constitutional ability to order wiretapped searches for electronics eavesdropping purposes.” Like Robertson, Christie -- who served as a special assistant to President Bush and policy adviser to Vice President Dick Cheney -- was defending Bush's domestic surveillance program. Though Christie did not specifically cite Gorelick's congressional testimony, he did not offer any evidence or citation to back up his claim.

Christie also baselessly claimed that “President Clinton exercised the same authority” as Bush. In a later segment of the program, during an interview with James Bamford, author of A Pretext for War: 9/11, Iraq, and the Abuse of America's Intelligence Agencies (Doubleday, 2004), Dobbs asked about this comment. “That's not true,” Bamford answered. “I mean, the Clinton administration never went around the FISA court.” However, Dobbs did not ask Bamford about Christie's claim regarding Gorelick.

From the January 5 broadcast of CBN's The 700 Club:

ROBERTSON: Jamie Gorelick, assistant attorney general under the Clinton administration, went before Congress and said the president has absolute authority to conduct wiretaps in war against enemy agents if they're in this country. It's perfectly legal. And there was no furor at all. I mean, what's the big deal about Bush doing the same thing to protect Americans from those who are trying to blow us up?

From the January 4 edition of CNN's Lou Dobbs Tonight:

DOBBS: Why do you believe that this is a justified action on the part of the administration? And when I say justified action, the way in which they've gone about it.

CHRISTIE: I think it's justified because the president laid out very clearly to the American people that there are certain instances that Al Qaeda or members of other terrorist organizations want to hurt us. They might make one phone call, either to the United States or to coordinate with their terrorist colleagues.

What the president wanted to do was to order the NSA in a highly classified manner to allow them to intercept these conversations with either Al Qaeda members abroad or making that call into the United States.

Not disrupting American civil liberties. Not listening to everybody in the United States and their private phone calls, but only in limited circumstance. And Lou, I would stress that this is not an unprecedented authority. President Clinton exercised the same authority, and President Clinton's deputy attorney general Jamie Gorelick said that the president has the inherent constitutional ability to order wiretapped searches for electronics eavesdropping purposes.

[...]

DOBBS: And you heard Ron Christie say that other administrations have done precisely the same thing. He cited the Clinton administration, your thoughts?

BAMFORD: That's not true. I mean, the Clinton administration never went around the FISA court. They went right through -- they went to the FISA to get warrants. Nobody since the FISA court was created in 1978 has ever gone around the FISA court. That's why you have a judge quitting from the FISA court because of this happening.

* Nexis search of “CQ Congressional Testimony,” “CQ Transcriptions,” “Federal News Service,” “National Narrowcast Network Transcripts,” and “FDCH News Service Capitol Report” for “Jamie S. Gorelick and (wiret! or wire tap! or surveillance or eaves! or physical or electronic)”