Carter and Clinton did it too? Nope.

Loyal readers of the blog were very excited to recycle Matt Drudge's big discovery. At least four of you sent me copies of the executive orders he uncovered signed by Clinton and Carter (the old "but, but, but, Clinton!" defense) executive orderswhich appear to authorize secret spying.

Nice try, boys. But it's back to reading comprehension school

What Drudge says:

Clinton, February 9, 1995: “The Attorney General is authorized to approve physical searches, without a court order”

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve “the premises, information, material, or property of a United States person.” That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush’s program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton’s 1995 executive order did not authorize that.

Drudge pulls the same trick with Carter.

What Drudge says:

Jimmy Carter Signed Executive Order on May 23, 1979: “Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”

What Carter’s executive order actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

What the Attorney General has to certify under that section is that the surveillance will not contain “the contents of any communication to which a United States person is a party.” So again, no U.S. persons are involved.

Another difference, as Atrios puts it, is that the tBushies have argued that what they did was explicitly and deliberately outside statutory authorit - or at least that's what they said after their criminality was discovered. It's one thing to claim "law x gives me the right to do y," make that public, and give court and congress the opportunity to slap you down. It's another thing entirely to proceed in secret with no oversight.

The really bad news is the it was (of course) the jr lawyers who thought Drudge's discovery was such a slam dunk. That's dissapointing.