In a well-documented column, the National Review Online’s Byron York establishes that, in 1994, the Clinton administration argued that the president has “inherent authority” to order physical searches — including break-ins at the homes of U.S. citizens — for foreign intelligence purposes without any warrant or permission from any outside body. Furthermore, 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.
Here’s the documentation:
Deputy Attorney General Jamie Gorelick (of 9/11 Commission fame) testifying before the Senate Intelligence Committee on July 14, 1994, said that
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.
York references an article in the Washington Post published the day after Gorelick’s testimony that began with these words:
The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration’s quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers.
My search of the New York Times archives reveals that it did not report on Gorelick’s testimony. Had the Times editorialized on her testimony, it undoubtedly would have supported her. After all, Clinton, not Bush, was the president. Never mind that it was seven years before 9/11 and the need for such presidential powers was far less obvious. The same can be said for the Democrats that are now up in arms. Where was the outrage in 1994?
Um, probably there was no outrage in 1994 because York’s argument is a red herring. In a different ‘well-documented article‘, ThinkProgress explains that Jamie Gorelick testified in 1994 that FISA did not prohibit warrantless physical searches, because in 1994, it didn’t.
The FISA law was amended to require a warrant for physical searches starting in 1995, and Clinton supported the amendment. So nothing that Byron York or the Washington Post has to say about Clinton in 1994 applies to Bush in 2005.