Different River

”You can never step in the same river twice.” –Heraclitus

December 20, 2005

Clinton and Carter Ordered Secret Warrantless Searches

As long as we’re on the subject of President Bush ordering wiretaps of al-Qaeda operatives’ international phone calls and e-mails without court-issued search warrants, Matt Drudge is reporting that President Clinton and President Carter did pretty much the same thing — although President Clinton extended the authority for warrantless searches beyond wiretapping, to include physical searches.

From Executive Order 12139, issued by President Carter on May 23, 1979:

By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act (this chapter) for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

And from Executive Order 12949, issued by President Clinton on February 9, 1995:

By the authority vested in me as President by the Constitution
and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 (“Act”) (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

In fact, Jamie Gorelick, who was Deputy Attorney General in the Clinton Administration, and more recently a member of the “9/11 Commission,” testified before Congress on July 14, 1994:

“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.”

Indeed, as Byron York points out, the Clinton Administration actually used that authority, searching the home of Aldrich Ames without a warrant. Ames was suspected (and later convicted) of spying, so I would guess this qualified him as an “agent of a foreign power” for these purposes, despite that fact that he’s an American citizen.

So when Democrats are crowing that Bush’s order makes him “the first President to ever willingly admit to an impeachable offense,” they have clearly taken leave of the facts, if not their senses.

Byron York also pointed out that when Gorelick announced the Clinton Administration’s position, the Washington Post reported it on page A-19.

Now, when Bush does the same thing (except less, since he didn’t include physical searches), it’s a top story.

Media bias, anyone?

One Response to “Clinton and Carter Ordered Secret Warrantless Searches”

  1. Different River Says:

    It Seems to be Legal
    Lots of folks with the right experience — both Democrats and Republicans — seem to be coming out with convincing arguments that President Bush’s “impeachable” executive order authorizing certain eavesdropping of terrorist suspects and contacts wit…

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