1 Boring Old Man

I Don’t Think “Exclusivity” Means What John Yoo Thinks It Does

… Sheldon Whitehouse revealed he has been trying to get one more opinion declassified–one relating to exclusivity: "… There is a sentence that describes whether or not the FISA statute’s exclusivity provision is really exclusive enough for the OLC and that is, we’re still going through this process. I’d like to be able to tell you more about this."

Exclusivity, you’ll recall, refers to the language in the original FISA bill that requires that FISA be the only means under which the executive branch conducts domestic surveillance. Here’s Anonymous Liberal on exclusivity: "Perhaps the most important provision in the entire FISA legal framework is 18 U.S.C. § 2511(2)(f)–commonly known as the exclusivity provision–which states that the ‘procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.’ It is through this provision that Congress made it clear that FISA’s warrant requirement and other procedures were mandatory and that it did not intend to leave the president with any residual authority to conduct warrantless surveillance outside of the FISA framework."

… Whitehouse seems to be pointing to is the means by which the Administration dismissed the clear requirement that FISA be the only (that is, exclusive) means by which the Administration could tap Americans. We know the Administration, when pushed, claimed that the Authorization for Military Force was legislation that superseded FISA, but Tom Daschle has clearly debunked that cute little legal theory.

Given this little tidbit from Whitehouse, it appears there’s some more John Yoo (presumably) sophism designed to suggest that exclusivity doesn’t mean exclusivity.

From the get-go, the Bush Administration has balked at this Law. Whether it’s their standard objection to any oversight, or the wish to do data-mining [filtering all calls for key words], or something more [or less] ominous is unclear, but their attempts to nullify this Law have been relentless. Prior to the N.S.A. Unwarranted Domestic Surveillance Program being exposed, by the New York Times, they said nothing. Apparently, their method was the same as with suspending the Geneva Conventions for our P.O.W.’s. First they got a [secret] legal opinion from John Yoo of the Office of Legal Counsel at the DoJ. Then they put their plan into action [secretly]. Once the program was exposed, then, and only then, did they march out their arguments and attempt to cover their prior law-breaking with some kind of legislation.

I expect that this is a Cheney Principle, but it may have broader origins. The principle might be called "act, then ask." The Iraq War is a prime example. Do anything possible to get the War started. Then deal with the legality. The same with Torture, the Geneva Conventions, Surveillance, the U.S. Attorney firings, outing Valerie Plame, etc. Sad thing is – it works. Find some lame way to justify doing what you want; keep it a secret; when it’s exposed, then argue why you’re doing it. I hate the fact that it sounds a lot like, "don’t ask, don’t tell," Clinton’s way of avoiding the rules about homosexuality in the military – evade the problem.

ex·clu·sive (Ä­k-sklōō’sÄ­v)
adj.

1. Excluding or tending to exclude: exclusive barriers.
2. Not allowing something else; incompatible: mutually exclusive conditions.
3. Not divided or shared with others: exclusive publishing rights.
4. Not accompanied by others; single or sole: your exclusive function.
5. Complete; undivided: gained their exclusive attention.
6. Not including the specified extremes or limits, but only the area between them: 20-25, exclusive; that is, 21, 22, 23 and 24.
7. Excluding some or most, as from membership or participation: an exclusive club.
8. Catering to a wealthy clientele; expensive: exclusive shops.
9. Linguistics Of, relating to, or being a first person plural pronoun that excludes the addressee, such as we in the sentence Chris and I will be in town tomorrow, so we can stop by your office.