The Volokh Conspiracy - When "Exclusive" Does Not Mean "Exclusive":

The Washington Post reports on a portion of an OLC memo -- just a sentence really -- concerning the Foreign Intelligence Surveillance Act (FISA) that reinterprets the word "exclusive" to mean something less.

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."

In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration. . . .

The context of Yoo's statement is unclear, because the rest of the memo remains classified. . . .

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.

	[Jonathan Adler, May 23, 2008 at 7:56am] Trackbacks When "Exclusive" Does Not Mean "Exclusive": The Washington Post reports on a portion of an OLC memo -- just a sentence really -- concerning the Foreign Intelligence Surveillance Act (FISA) that reinterprets the word "exclusive" to mean something less. 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." In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration. . . . The context of Yoo's statement is unclear, because the rest of the memo remains classified. . . . 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.