Al Gore, Hillary Clinton and the GOP blow-back

by Tim Grieve

Al Gore and Hillary Clinton hit the Republicans hard on Martin Luther King's birthday: Gore called for the appointment of a special prosecutor to pursue the "criminal issues" raised by the president's warrantless spying program, and Clinton predicted that the Bush administration, with its "culture of corruption," "cronyism" and "incompetence," will "go down in history as one of the worst that has ever governed our country."

The Republican response: Swift, nasty and personal.

Asked to respond to the Clinton speech, Republican National Committee spokeswoman Tracey Schmitt said: "On a day when Americans are focused on the legacy of Martin Luther King, Hillary Clinton is focused on the legacy of Hillary Clinton." On Gore, White House press secretary Scott McClellan sneered: "If Al Gore is going to be the voice of Democrats on national security matters, we welcome it."

McClellan said that Gore's "hypocrisy knows no bounds." It was apparently a reference to the argument some Republicans have been making for weeks and Attorney General Alberto Gonzales repeated Monday: How can a member of Bill Clinton's administration take issue with Bush's warrantless spying program when Clinton authorized warrantless spying himself?

It would be a fine argument, if only it had any application at all to the legal standards under which the Bush administration is supposed to be working.

Appearing on CNN, Gonzales said that it was his "understanding" that "during the Clinton administration there was activity regarding the physical searches without warrants," and he cited the Aldrich Ames case as proof. Gonzales also said that it was his "understanding" that Deputy Attorney General Jamie Gorelick "testified before Congress that the president does have the inherent authority under the Constitution to engage in physical searches without a warrant."

As Think Progress notes, Gonzales' understanding isn't incorrect. It's just irrelevant. The Foreign Intelligence Surveillance Act of 1978 didn't cover physical searches until Congress amended it in 1995. Thus, whatever happened with respect to the search of Ames' home in 1993, it couldn't have violated a FISA physical-search warrant requirement because no such requirement existed at the time. Likewise, when Gorelick testified before Congress about a president's inherent authority to engage in physical searches without a warrant, she was testifying during -- and about -- the state of the law before FISA was amended in 1995.