Domestic warrantless wiretapping? Bet on it

Has the president authorized a domestic warrantless wiretapping program? Judging from White House press secretary Scott McClellan’s answer to the question, probably so.

McClellan spent most of his time at today’s briefing not addressing the president’s authorization for Scooter Libby to leak classified information, and waltzing around the question of whether or not the information in question had been declassified when he said it was at the time, which is 10 days after Libby leaked it. For more on this, see the summation from our oft-ignored White House correspondent, Eric Brewer.

After all the questions about the Libby leak had been dodged — McClellan insisted on draining that boil before he would avoid questions on other subjects — but before turning to perennial escape valve Les Kinsolving, McClellan took a question about yesterday’s Congressional testimony from Alberto Gonzales regarding the NSA warrantless wiretapping program.

California Democrat Adam Schiff asked Gonzales whether the administration thinks it has the authority to wiretap domestic communications between American citizens without a warrant. In response, Gonzales said “I’m not going to rule it out.”

It was Victoria Jones, a sometime correspondent for the BBC and host of her eponymous show on Talk Radio News Service, who followed up on the testimony at today’s briefing.

Q Yes. The Attorney General, yesterday, when he was testifying, would not rule out the possibility that there is a domestic warrant-less wiretapping program going on. And even the statement that was later issued by the Justice Department wouldn’t really confirm or deny one way or the other. Could you give us some idea about –

MR. McCLELLAN: Well, I think what the Justice Department said that no one should read anything into the Attorney General’s testimony yesterday, that his comments and quotes shouldn’t be interpreted to suggest the existence or nonexistence of a domestic program or whether any such program would be lawful under the existing legal analysis.

What the Attorney General was talking about was the terrorist surveillance program. And this is a very limited program that is focused on intercepting international communications involving al Qaeda or affiliated terrorists.

And so that’s the focus, and it’s narrowly tailored. It was something that was carefully looked at by those at the NSA as they move forward on putting it in place. And they’ve made sure that there are important safeguards in place. They made sure that it’s something that’s reviewed on a regular basis. But it is a vital tool in our efforts to prevent attacks and to prevail in the broader war on terrorism.

Q Is there a domestic version of the terrorist surveillance program?

MR. McCLELLAN: Again, the Attorney General talked about this yesterday, and I’m not going to go beyond what he said yesterday in terms of the legal issues there.

What we learned here is that at the least, the administration believe they probably have the authority to order warrantless wiretaps on purely domestic communications between Americans. And the non-denial suggests that they are in fact doing just that. So the next time you think your complaints about the administration are going unheard, fear not: someone is listening.

Among the other peculiarities of yesterday’s House judiciary committee proceedings was Gonzales’ response to committee chairman James Sensebrenner when he asked who reviewed the legality of the NSA program. Gonzales told him that “who is read into the program is a classified matter so I can’t get into specific discussions about specifically who was involved in reviewing the legal authorities of the president of the United States in authorizing this program.”

If you don’t know who they are, you can’t ask them any questions. To quote another acute legal mind, the Church Lady: “Well, isn’t that convenient. Could it be … Satan?”

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Updated to add information on Victoria Jones: hat tip to Eric for the information.