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You know the shit is about the hit the fan when the wingers turn to Clinton to try and excuse King George's behavior. We saw it with the illegal invasion of Iraq ("but..but...CLINTON said Saddam has WMD!") and with the nuclear option (" hated the filibuster when the Clenis was in power!").  But no distortion is more blatant, I think, than the one being circulated now that both Clinton and Carter authorized warrantless searches.

Think Progress does a quick and painless job of eviscerating the myth.  Let's take a closer look and put this lie to rest. Yes, both Clinton and Carter issued executive orders pertaining to foreign intelligence surveillance. But neither of these even remotely authorized warrantless searches of American citizens, as Bush's order does.

Here's what Clinton signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

You don't have to be a lawyer to understand that Clinton allowed warrantless searches if and only if the AG followed section 302(a)(1).  What does section 1822(a) require?

  •  the "physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers." Translation: You can't search American citizens.
  • and there is "no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person." Translation: You can't search American citizens.

Moreover, Clinton's warrant waiver consistent with FISA refers only to physical searches.  "Physical searches," as defined by 1821(5), exclude electronic surveillance.

And now, Carter's turn:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

Here, Carter refers to "electronic surveillance," rather than "physical searches" like Clinton. But again, Carter limits the warrantless surveillance to the requirements of Section 1802(a). That section requires:

  •  the electronic surveillance is solely directed at communications exclusively between or among foreign powers.  Translation: You can't spy on American citizens.
  •  there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. Translation: You can't spy on American citizens.

Section 1803(a)(2) requires that the Attorney General report to Congress (specifically, the House and Senate Intelligence Committees) about whether any American citizens were involved, what minimization procedures were undertaken to avoid it and protect their identities, and whether his actions comply with the law. Hot damn, that sounds like a check and balance to me!

Flip it!

In stark contrast to the Clinton/Carter orders, Bush's order marks the first time that an American President has unilaterally turned our nation's massive spying apparatus against its own citizens. Unlike the Carter order, Bush has not followed the check-and-balance requirements of FISA. And unlike Clinton, his order allows the government to spy on communications of ordinary Americans. We learn this morning that Bush's haphazard approach of "screw the law and the spy at will" has resulted in the interception of purely domestic communications. We also learn that Judge Robertson, who is one of only 11 judges appointed to the secret FISA court, has resigned in protest of Bush's policy. Republicans are calling for inquires into the matter. This is a grave matter. Do not let the apologists on the right use illogic and outright lies to defend the violation of our constitutional rights.

As this investigation proceeds, defenders of the President will grow more and more shrill. They'll hiss, they'll attack, they'll fight like a wounded and dying animal to protect their Dear Leader. But the law doesn't lie: Bush's order is unprecedented. And no amount of spinning can change that fact.

Originally posted to Daily Kos on Wed Dec 21, 2005 at 05:15 AM PST.

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