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The Gorelick Myth

By Judd Legum on December 20, 2005 at 3:16 pm

"The Gorelick Myth"

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In the National Review, Byron York has an article called “Clinton Claimed Authority to Order No-Warrant Searches.” In it, he cites then-Deputy Attorney General Jamie Gorelick’s July 14, 1994 testimony where she argues “the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.” (This afternoon, Sen. John Cornyn (R-TX) quoted her testimony on the Senate floor.)

Here is what York obscures: at the time of Gorelick’s testimony, physical searches weren’t covered under the Foreign Intelligence Surveillance Act (FISA). It’s not surprising that, in 1994, Gorelick argued that physical searches weren’t covered by FISA. They weren’t. With Clinton’s backing, the law was amended in 1995 to include physical searches.

York claims that, after the law was amended, “the Clinton administration did not back down from its contention that the president had the authority to act when necessary.” That’s false. Neither Gorelick or the Clinton administration ever argued that president’s inherent “authority” allowed him to ignore FISA. (We’ve posted the full text of Gorelick’s testimony here).

The Clinton administration viewed FISA, a criminal statute, as the law. The Bush administration viewed it as a recommendations they could ignore. That’s the difference.

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