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December 22, 2005
"Warrantless" Searches and Wiretapping - Nothing New
The Bush Administration policy of "warrantless" searches including electronic surveillance of suspected terrorists has caused great uproar particularly among Democrats and the media. However, as the Washington Times reports, this type of surveillance has been going on since the Carter Administration (Hat tip: Betsy's Page):
Previous administrations, as well as the court that oversees national security cases, agreed with President Bush's position that a president legally may authorize searches without warrants in pursuit of foreign intelligence. "The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general," Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence. That same authority, she added, pertains to electronic surveillance such as wiretaps. More recently, the U.S. Foreign Intelligence Surveillance Court -- the secretive judicial system that handles classified intelligence cases -- wrote in a declassified opinion that the court has long held "that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."
It seems pretty clear, at least to me, that the President acted legally and appropriately to deal with the threat of terrorism. As usual, opponents of this President ignore history in order to score some political gains at the expense of our national security. That strategy will ultimately backfire. As this story unfolds, I expect that most Americans will see that the President took the appropriate steps to protect them against terrorism. Citizens are willing to give the President the benefit of the doubt especially when their own security is at stake.
Posted by Tom at December 22, 2005 09:13 AM
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And yet, it is still illegal. Shall we forget laws or place some above them?
Posted by: Dan Trabue at December 22, 2005 10:15 AM
Ironically, the program may have violent the FISA (Foreign Intelligence Surveillance Act), but it is probably constitutional. This isn’t my analysis. I found it here: http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#contact
And generally, I don’t see a problem with spying on foreign agents. I also know that makes me a bad person.
Krauthammer has a article on the subject for those with the courage to read it: http://realclearpolitics.com/Commentary/com-12_23_05_CK.html
Posted by: William at December 23, 2005 09:28 AM
First, the provisions of the 1978 law allow warrantless surveillance of foreign powers only, or for just 15 days following a declaration of war. You imply Carter violated it. The law was created during his presidency.
Second, under Clinton, Gorelick testified about physical searches. That is FAR DIFFERENT than warrantless domestic surveillance, something that the NSA has never been allowed to do.
As Krauthammer says, the legality of Bush's actions are based on the "congressional resolution shortly after 9/11 authorizing the use of 'all necessary and appropriate force'' against al Qaeda."
The vagueness of that resolution doesn't give Bush absolute power and it doesn't supercede every other law that has been made. If you believe the congressional resolution in question did in fact give Bush the congressional authority to spy on Americans, what do you think that resolution did NOT give him the power to do? Because your logic seems consistent with the language used in police states, the dictatorships Bush has more than once "jokingly" expressed admiration for in terms of their ease of governance.
Apparently one of the FISA judges agrees with me. He resigned because he thought Bush's actions were reprehensible.
There is a famous poem by the Rev. Martin Niemoller regarding the failure of the German people (and others) to stop the rise of the Nazi party and the subsequent holocaust. You might want to keep it in mind. Because one day these atrocities won't be happening just to "other people":
First they came for the Communists, and I didn’t speak up, because I wasn’t a Communist.
Then they came for the Jews, and I didn’t speak up, because I wasn’t a Jew.
Then they came for the Catholics, and I didn’t speak up, because I was a Protestant.
Then they came for me, and by that time there was no one left to speak up for me.
Posted by: dem at December 23, 2005 05:25 PM
I have only one other point to make.
Hold on, someone is knocking at the d
Posted by: dem at December 23, 2005 10:57 PM