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The White House and many Republicans on Capitol Hill say that the president’s “inherent authority” to do so derives directly from the Constitution, and therefore, cannot be curbed by Congress without amending the Constitution. That authority was amplified, they say, by Congress’ resolution after the September 11 attacks authorizing the president to use “all necessary and appropriate force” to track down terrorists.

It’s the same argument used by Clinton Deputy Attorney General Jamie S. Gorelick in 1994 testimony before Congress.

“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 he has done, delegate this authority to the attorney general,” she said, noting that the authority pertains also to electronic surveillance such as wiretaps.

More recently, the FISA court wrote in a declassified opinion that the court has long held “that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.”

In the 2002 opinion about the constitutionality of FISA and the USA Patriot Act, the court wrote, “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.”

Mr. Gonzales will appear at a closed hearing Thursday before the Senate Select Committee on Intelligence to discuss the program further.