Warrantless Searches and Foreign Intelligence

Byron York piece. It does provide some context into the present NSA Spying case. Though it doesn't seem to be providing me with any added comfort.

In a little-remembered debate from 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. 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," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

"It is important to understand," Gorelick continued, "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."

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

Here's a link to EO 12333 if you're interested.

There's also this bit of testimony that is of interest.

In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. "Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise," Gorelick said. "Information gathering for policy making and prevention, rather than prosecution, are its primary focus."

I believe the point isn't that a democrat used similar warrantless searches, but that there is previous precedence for the presidential power to obtain foreign intelligence within the borders of the US, even when it involves a citizen.

The Clinton error case was about Aldrich Ames. His spying did indeed have very drastic effects on the national security.

My qualm with this comes from ideas as Gorelick testified, that exact targets are more difficult to identify. That indicates, at least to me, that some fishing was going on, and probably is going on at this time. On the other hand, this is not simply about personal security, but security of large numbers of citizens and the overall way of life. I am reticent to offer any branch of government too much power to effect that way of life as I am resistant to allowing foreign actors the opportunity to damage this way of life.

Interesting how many laws, Executive Orders, and all else legal that appears to be relevant to this topic.

QandO has another piece on the topic.