David Kurtz May 23, 2008, 11:54 AM

It all depends on what your definition of “exclusive” is.

At the heart of the debate over warrantless wiretapping is whether FISA, by its own terms, is the exclusive means for the government to undertake electronic surveillance in counterespionage and counterterrorism cases.

The plain language of the FISA statute seems clear, stating that FISA is the “exclusive means by which electronic surveillance … and the interception of domestic wire, oral and electronic communications may be conducted.”

But nothing is ever that simple with the Bush Administration.

This week Sens. Sheldon Whitehouse (D-RI) and Dianne Feinstein (D-CA) released a declassified sentence from one of John Yoo’s notorious memos, written while he was serving in the Justice Department’s Office of Legal Counsel. In it, Yoo managed to rationalize away the exclusivity provision of FISA in order to justify a warrantless wiretapping program outside of the FISA framework, without judicial oversight or regular reports to Congress:

“Unless 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.”

Poof! Just like that, exclusivity disappeared and the Bush Administration was free to pursue warrantless wiretaping with the official blessing of the OLC. (Former OLC attorney Jack Goldsmith has described his office’s memos as “advance pardons”).

The Bush Administration says it no longer relies on the Yoo memo as the legal underpinning for warrantless wiretapping, pointing instead to perhaps an even weaker rationale, the post-9/11 AUMF:

The Justice Department told the senators it no longer relies on Yoo’s FISA memo. “The 2001 statement addressing FISA does not reflect the current analysis of the department,” wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He “respectfully” requested that if the senators “wish to make use of the 2001 statement in public debate,” they refer to the administration’s current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

When Congress approved the Authorization for Use of Military Force of Sept. 18, 2001, it “confirmed and supplemented the President’s Article II authority to conduct warrantless surveillance to prevent catastrophic attacks on the United States,” Benczkowski said.

Exclusivity remains a key sticking point in passage of a new FISA law. Democrats are demanding language that erases whatever doubt there might be (although in fact there is none). The White House is balking.

Must Read, Surveillance