Now that President Bush's illegal, warrantless wiretapping program is out of the bag, conservatives are on spin control the only way they can be: by suggesting that President Clinton also engaged in warrantless wiretapping. Many conservative commentators have made this accusation, which is designed to mark liberal critics as hypocrites (if they supported warrantless wiretaps under Clinton, but not under Bush, then they're clearly against Bush's warrantless wiretaps just because they don't like him). Even Attorney General Alberto Gonzales has suggested that President Clinton used warrantless wiretaps, as though President Clinton's use of warrantless wiretaps constitutes a justification for President Bush's use of warrantless wiretaps.

If it were true, it would be a weak and silly argument. Thankfully, it's a lie, which spares Gonzales the embarrassment of making such a weak and silly argument. Now he has only to deal with the embarrassment of lying.

Presidents Clinton signed an executive order in 1995 authorizing the Attorney General to approve physical searches without a court order for a period of up to one year in order to acquire foreign intelligence information. The order, however, only authorizes such searches "if the Attorney General makes the certifications required by that section." "That section" is 50 U.S.C. 1802(a), where the Foreign Intelligence Surveillance Act is catalogued within the U.S. Code. "The certifications" the Attorney General would have to make are that the targets of such searches are not "United States persons."

Matt Drudge alleges that President Carter authorized warrantless wiretaps in 1979 just like Bush did. Also not true. President Carter, like President Clinton, authorized warrantless wiretaps only "if the Attorney General makes the certifications required by that section." Again, "that section" was 50 U.S.C. 1802(a), and the certifications were that the wiretaps would not intercept any communications "to which a United States person is a party.”

No orders regarding President Bush's program have been made public, so we have no way of knowing what is and isn't permissible. Some reports have indicated that "United States persons" accidentally had their conversations intercepted. Bush claims that "a few" people are being bugged by the NSA; Secretary of Homeland Security Michael Chertoff has indicated it could be thousands of people. Whatever the number, neither Carter nor Clinton authorized the same warrantless wiretapping that Bush did, since they both mandated that warrantless searches must be conducted within the confines of FISA. Bush has made no such requirement, and indeed, none of his orders are public in the same way that Bush's and Carter's were.