What does “exclusive” mean?

The answer was at the heart of a highly sensitive memo by the Justice Department’s Office of Legal Counsel in 2001, when Bush administration officials were keen to institute warrantless domestic surveillance after the Sept. 11, 2001, attacks.

A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the “exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted.”

But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.

This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:

The passage states that “[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area — which it has not — then the statute must be construed to avoid [such] a reading.”

More at the Washington Post

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