The President's Legal Wiretapping

Not to bust a big liberal bubble or anything, but John Schmidt at the Chicago Tribune explained how President Bush had legal authority to wiretap:

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.

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.”

Instapundit adds that John Schmidt, was Associate Attorney General under Bill Clinton.

Polipundit makes two good points about this news:


Now that you have read the article, the matter should be very clear. But there are two additional points I would like to make in this matter. At the bottom of the article, it is noted that Mr. Schmidt served President Clinton as the Associate Attorney General between 1994 and 1997. He is not some neocon trying to justify an extreme action or violation of the Constitution, but a professional with significant and direct experience in the matters of the law as they pertain to National Security. This is not a Democrat or Republican position vis a vis the decision to collect vital intelligence which could decide the life or death of countless innocent Americans, but a serious responsibility of the President, and it carries the necessary authority for him to act on his judgment as the elected Chief Executive of the United States of America.

Also, it should be understood that the War on Terrorism is not some game that Democrats play badly and Republicans play well, but the defense of the nation at the highest stakes. It is grossly unfair to imply that Bill Clinton is responsible for the 9/11 attacks, simply because one might disagree with his decisions or priorities. A lot of the people who served in the Clinton Administration were top-notch people, and as stupid and unreasonable as certain individuals were to common sense, many others have valuable experience and insight that should be considered and employed.

Jeff Goldstein who has been following this story like no one else, says this articel is consistent with what Bush and his aids have been saying:

This is quite consistent with what the President and the Attorney General have argued, and—insofar as it cites the President’s Constitutional authority as the animating justification for authorization—is more clear-cut than navigating through the FISA maze, which, too, it appears the President did successfully, acting in accord with previous excutive orders (from Carter, Reagan, and Clinton) to gather electronic surveillance without a warrant based on exemptions made for particular types of targets [requirement met in US v Bin Laden], and for intelligence gathering at least one end of which took place overseas.

However you look at it, this was a nice present for the president and his supporters today. Thank you John Schmidt.

You Might Like