Clinton Deputy Atty General: Bush is correct...

[Air Force Cane]

President had legal authority to OK taps

By John Schmidt/ Chicago Tribune

Published December 21, 2005

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified 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."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action.

But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

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John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States. He is now a partner in the Chicago-based law firm of Mayer, Brown, Rowe & Maw.

[Destino]

Please include a link and fix the thread title.

[Art Monk Fan]

President Bush and his advisors are too careful and have been attacked too many times to have made any move in this regard that was not obviously confirmed both in law and in precendent. That however will have no bearing on the hysterical left, who will continue to bring this up as "One of Bush's Lies" for as long as they live, regardless of any proof to the contrary.

[twa]

President Bush and his advisors are too careful and have been attacked too many times to have made any move in this regard that was not obviously confirmed both in law and in precendent. That however will have no bearing on the hysterical left, who will continue to bring this up as "One of Bush's Lies" for as long as they live, regardless of any proof to the contrary.

They can be entertaining though

Aside from the leak itself,this is quite interesting hearing the wild theories and seeing who ducks or swings .

[stevenaa]

Like it or not, he has legal standing. But that won't stop the left from dragging this through the media to put fear into the masses that their liberties are being eroded by this administration. All in an attempt to regain lost political power.

[Brown 43]

Please include a link and fix the thread title.

Why?

[wskin44]

Not everything is a left right thing. As I've stated before, we probably don't understand the legal issues. If the surveillance wasn't legal then the laws should be changed to make it legal. If any Administration abuses the power it will be caught by having a court review all surveillance cases after the fact. I find it more troubling that this information leaked. And I have never been pro-Bush.

[Joe Sick]

Why?

Because otherwise it could be a posting from the free republic website (or a suggested read from the National Review)...

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http://thinkprogress.org/2005/12/21/appeals-court-myth/

A column in this morning’s Chicago Tribune by John Schmidt argues that Bush’s secret domestic surveillance program was legal. (Byron York posted a portion of the piece on the National Review website under the title “READ THIS IMPORTANT ARTICLE“) It features this selectively edited excerpt from a 2002 decision by the FISA appeals court:

“All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence…We take for granted that the president does have that authority.”

Actually, the quote doesn’t begin with the word “all”; it begins “The Truong court, as did all the other courts…” The Truong case was decided in 1978 — the same year FISA was passed — and did not deal with the FISA law. As the court noted right before the excerpt, “Truong dealt with a pre-FISA surveillance… it had no occasion to consider the application of the statute…” The Truong case dealt with the President’s power in the absence of a congressional statute.

This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet, “where the president is acting contrary to congressional authority…the president’s authority is at its lowest ebb.”

The article also conveniently omits the two sentences after the excerpt:

It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse…

All the court is saying here is that whether FISA imposes limits on the President’s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains, “[T]he question before us is the reverse.”

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Anytime you have "..." in a quote, you can be sure that someone is trying to change the meaning of that quote.

Cut and paste… selective reading… delete things that do not support our view… That sounds like the way that the Bushies and their group operate.

[Joe Sick]

“My own judgment is that — it didn’t seem to me, anyway, that it would have been that hard to go and get the warrants [through FISA]. And even in the case of an emergency, you go and do it [begin surveillance]. The law provides for that. And three days later, you let the court know what you have done, and deal with it that way.”

Colin Powell, From an interview with George Stephanopoulos featured on ABC’s “Nightline.”

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“[Attorney General] Ashcroft argued as a senator that there should be no Big Brother police state on e-mails, even with the most heinous crimes,” Drudge recently told Radar magazine. … “So to hide behind the World Trade Center to start going into our hard drives is a complete folly, and the Bush administration will pay the price with votes.”

Ashcroft, Bush's Attorney General.

[Cskin]

Can't wait to hear Mr. Clinton himself opine about this. I'm betting he'll say he understands it and condones it.... than go overseas and say America has become a Dictatorship with Bush have over-reaching powers. :doh:

Good god... don't let Kerry comment on it. At the end of his senseless blather... we won't know whether he's for it or against it. :doh:

The very fact that Congressional members had oversight and were in the loop is all I need to know in terms of the Constitutionality of the action.

Anyone notice who's making the most noise about this..... aaaaahh... the liberal left... complete with their agenda to further the "Bush Lied" mantra with the hopes of gaining power in 06..... and the WH in 08.

[Joe Sick]

Anyone notice who's making the most noise about this..... aaaaahh... the liberal left... complete with their agenda to further the "Bush Lied" mantra with the hopes of gaining power in 06..... and the WH in 08.

Because the Bush boot-lickers would never speak against their Great Leader.

--------

Lastly, as to the Gorelick assertion...

The Gorelick Myth

In the National Review, Byron York has an article called “Clinton Claimed Authority to Order No-Warrant Searches.” In it, he cites then-Deputy Attorney General Jamie Gorelick’s July 14, 1994 testimony where she argues “the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.” (This afternoon, Sen. John Cornyn (R-TX) quoted her testimony on the Senate floor.)

Here is what York obscures: at the time of Gorelick’s testimony, physical searches weren’t covered under the Foreign Intelligence Surveillance Act (FISA). It’s not surprising that, in 1994, Gorelick argued that physical searches weren’t covered by FISA. They weren’t. With Clinton’s backing, the law was amended in 1995 to include physical searches.

York claims that, after the law was amended, “the Clinton administration did not back down from its contention that the president had the authority to act when necessary.” That’s false. Neither Gorelick or the Clinton administration ever argued that president’s inherent “authority” allowed him to ignore FISA.

http://thinkprogress.org/2005/12/20/the-gorelick-myth/

[Fred Jones]

Well, if one of Clinton's administration officials said it was legal to wiretap I really don't know what all the yelling is about. I mean, the first four years after Clinton left office the Republicans spent every moment bashing everything Clinton and his administration did. Just recently and all-of-a-sudden, however, the Republicans are changing their tune and stating that not everything a Clinton administration official said or did was wrong. The hypocrisy and "flip flopping" is just amazing.

[Air Force Cane]

Jones- or maybe the hypocrisy of the left is unbelievable when they claim Bu****ler is trampling on civil rights-

but then the Deputy Attorney General under Clinton says it is perfectly legal.

I eagerly await your rejoinder...

and for Bush Country- I actually posted the entire Chicago Tribune article. It is like you are arguing against yourself. How about you post liberal Cass Sunstein's opinion claiming the NSA taps are legal?

[DCRunner]

Jamie Gorelick is just covering her ass. She is a very ambitious lawyer. What she did by advising Clinton that he could authorize a warrantless physical break-in into Aldrich Ames' house was completely illegal. There was and is no authority for Clinton to have done that. They are lucky that Ames pled guilty because they wouldn't have been able to use the evidence they seized in that warrantless entry into Ames' home at trial.

[twist]

Well if Clinton did it, it must have been perfectly legal!

Well not being a Democrat or a member of "the left", that really doesn’t float my boat. Everyone always forgets about people with libertarian leanings, it's a wonder so many of us continue to vote for and run for office within the big two.

Not being a big fan of President Clinton, or his views on presidential power, I certainly am not going to anoint his staffers as authorities on constitutional issues. Also I have no idea if the situations were equivalent, or they were asking for the same thing.

I think this sort of action is and should be illegal regardless of who is doing it. Warrants should be required, it protects us from the government from obtaining their information from illegal activities (like torture in foreign jails), or abusing the system. Warrentless searches are only ok if you are only investigating non-us citizens, and others not protected by the constitution.

That’s my opinion, and I am no lawyer, so I am perfectly willing to wait for the judicial branch, and the congressional investigation to clear up this constitutional issue. If they publicly release their findings I will read them and see what people in the know who aren't specifically patricians think about it.

Call me an idealist if you will.

[cactitle]

I would rather have my Government spying on its citizens in some situations, then to have another 9-11.

[twist]

I would rather have my Government spying on its citizens in some situations, then to have another 9-11.

They are allowed to spy on us, if they have good reason to, and judicial oversight through a warrant. So, your point is irrelevant to the current discussion of warentless searches.

How do you feel about THIS situation is what is relevant.

Also, we had enough information to stop 9-11 before it happened; it was information sharing between agencies failed, rather than a failure in collecting information.

So, on the surface, it seems what you are proposing is a false dichotomy.

[DCRunner]

I would rather have my Government spying on its citizens in some situations, then to have another 9-11.

Not me. I'm amazed at the wusses on this board. Yes, sir, just take my civil liberties away but please don't hurt me or my pretty SUV here.

You know these terrorists get things done and put us on the run becasue they are not afraid to die for what they believe in no matter how crazy it is. Maybe if they believed that no matter what we faced, they could not destroy us as a nation cause, you know, we are not just about buildings and property and not even just about lives. We are about ideals and freedoms.

I'm no wussy girl. I was a tough Army brat as a kid and I hope I still am. If I have to die for my freedom then so be it. Not that I want to die and not that I wouldn't be afraid. Didn't people used to say Better Dead than Red? What happened to that kind of courage? Does it disappear if there's a chance we could get hurt here on our own soil? I just don't get this kind of fair weather "patriotism" at all. Either you believe in the Constitution and the freedoms this country is based on and are willing to sacrifice and maybe even die for them or you don't.

[luckydevil]

It is amusing how so many conservative are on the Clinton did it so it is ok for Bush do it as well bandwagon.

I am in the, they both suck camp

[twa]

I find it amusing how little some know of the historical powers of the president. The number of posts that show no hint of learning I thought was commonplace...perhaps schools are failing in the responsibilities.

[twist]

I find it amusing how little some know of the historical powers of the president. The number of posts that show no hint of learning I thought was commonplace...perhaps schools are failing in the responsibilities.

Maybe we should go back to the days of FDR and the Japanese internment or relive the Koramatzu decision. Maybe we should suspend habius corpus like Lincoln did.

Maybe we should go back to the days of Nixon and Hoover.

We are after all having a vague and unending war. Who the heck needs the constitution when we can have an Imperial President?

We can then vote for which king to keep us safe.

[DCRunner]

I find it amusing how little some know of the historical powers of the president. The number of posts that show no hint of learning I thought was commonplace...perhaps schools are failing in the responsibilities.

historic does not necessarily equal legitimate

[portisizzle]

Maybe we should go back to the days of FDR and the Japanese internment or relive the Koramatzu decision. Maybe we should suspend habius corpus like Lincoln did.

Maybe we should go back to the days of Nixon and Hoover.

We are after all having a vague and unending war. Who the heck needs the constitution when we can have an Imperial President?

We can then vote for which king to keep us safe.

I want you to do me a personal favor.

Please, PLEASE print out this post. Fold it up and put it in your wallet.

After the politicians are successful and thinning out of best defense against an invisible army as it seem you would want. I want you to pull this post out of your wallet and read it when America is hit again like we were on 9/11.

Pray to GOD that the terrorists have not figured out a way to let loose a nuclear devise in a city.

In a way posts like this make me sick to my stomach. Liberal apologists who are following the drum beat of their party. Knowing in their hearts that if it was Al Gore making the decisions he would have done the same damn thing because he would have seen himself of the same intelligence. We would have had a Patriot Act regardless who was President. Don't believe me? Go look who voted for the Act.

[twa]

historic does not necessarily equal legitimate

It does to a Justice.

[twist]

I want you to do me a personal favor.

Please, PLEASE print out this post. Fold it up and put it in your wallet.

After the politicians are successful and thinning out of best defense against an invisible army as it seem you would want. I want you to pull this post out of your wallet and read it when America is hit again like we were on 9/11.

Pray to GOD that the terrorists have not figured out a way to let loose a nuclear devise in a city.

In a way posts like this make me sick to my stomach. Liberal apologists who are following the drum beat of their party. Knowing in their hearts that if it was Al Gore making the decisions he would have done the same damn thing because he would have seen himself of the same intelligence. We would have had a Patriot Act regardless who was President. Don't believe me? Go look who voted for the Act.

Please stop jumping to conclusions:

I am not a liberal in any way you could possibly imagine me to be. I did not vote for Al gore. I do not wish to take away "the best defense" against anything. It is the current powers that be that keep getting a grade of F in protecting this country by commissions that look into the issue, they can do reasonable things to make me safer, like securing the borders or watching ports, but seem to think that instead they need to do illegal actions like holding people without charge, and trampling on civil liberties instead.

When such an attack comes along don't bother to go around blaming people with no political power like me, it will not have happened because I wish to have a president that obeys the law.

I want the warrant process to be upheld. I don't think it's a good idea that the president should ever have powers above the law (like the Magna Carta, if you want a historical perspective), except possibly in incredible circumstances.

I don't know if he has actually broken any laws so I have reserved judgment until after congress investigates. Please don't let your infantile need to defend every single action the president takes just because you politically agree with him, cloud the possibility that he has taken inappropriate actions that could have sweeping implications for the future of freedom in this country. That is my position, and it is not a liberal one.