[Author's note: this article is partially inspired by a recent column in The Weekly Standard, by Bill Kristol]
Of late we’ve all heard the hair-pulling, wild-gesticulating, mouth-foaming media furor over the NSA wiretapping programs that have created a good deal of armchair speculation and impeachment wishes for the fervently Leftist.
Apparently, they don’t put much credit in the actions of the last Democratic administration –more from the world of news you won’t hear.
In 1994, the Clinton administration argued that the president has “inherent authority” to order physical searches â€” including break-ins at the homes of U.S. citizens â€” for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress’s decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.
“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 has been done, delegate this authority to the Attorney General.”
“It is important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”
Are these the words of Alberto Gonzales, circa December 2005? Nope; this would be Bill Clinton’s Justice Department, Deputy Attorney General Jamie Gorelick testifing before the Senate Intelligence Committee on July 14, 1994.
Now, there will be those that contend that Gorelick’s testimony didn’t concern physical searches, as FISA did not cover them at the time. However, it clearly shows that this is far from the first administration that expects broad executive power to conduct searches and to obtain information without warrants. I’m not too terribly upset by sincerely Libertarian people who feel its an intrusion on personal property, no matter the partisan point of origin, but I do cry foul for those on the Left who remain mum about the actions of their own elected politicians, but whom decry similar acts by those on the Right.
For my part, I do take solace (and give the Administration credit) for being direct regarding this issue. They’ve made their positions plain, allowing for public criticism and possible legal action should any party be sufficiently aggreived. Take ‘em to court, its the American way.
What has the program wrought?
On Monday, December 19, General Michael Hayden, former director of the National Security Agency and now deputy director of national intelligence undertook a briefing for journalists. The question and answer session included this plain language exchange:
Reporter: Have you identified armed enemy combatants, through this program, in the United States?
General Hayden: This program has been successful in detecting and preventing attacks inside the United States.
Reporter: General Hayden, I know you’re not going to talk about specifics about that, and you say it’s been successful. But would it have been as successful-can you unequivocally say that something has been stopped or there was an imminent attack or you got information through this that you could not have gotten through going to the court?
Gen. Hayden: I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.
I’m not horribly pleased with powerful government, but I’m sufficiently pleased with the tangible results that have come of this program. Powerful government is a bane to free peoples, a necessary evil in the best of times– and this constitutes a necessary evil.