- The Washington Times - Thursday, December 22, 2005

Can Democratic presidents order wiretaps on U.S. soil without a court order, but not Republicans? We ask because that’s the standard critics appear to be using against President Bush over National Security Agency surveillance of al Qaeda operatives. Every president, Democrat or Republican, has exercised this authority since the Foreign Intelligence Surveillance Act became law in October 1978. But it appears to be deemed problematical only for President Bush, whose wiretaps are said to have caught Iyman Faris, a naturalized U.S. citizen who wanted to bomb the Brooklyn Bridge.

The ink on FISA was barely dry when the first president to order extrajudicial surveillance — a Democrat — did so. Jimmy Carter exercised his authority on May 23, 1979 with Executive Order #12139, seven months after signing FISA into law, declaring that “the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order,” subject to the section’s requirements. The order cites a FISA section helpfully titled “Electronic Surveillance Authorization Without Court Order.”

The precedent was even more firmly established by President Clinton. Top Clinton administration officials are on record defending the practice. As Deputy Attorney General Jamie S. Gorelick testified before Congress in 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 he has done, delegate this authority to the attorney general.” She remarked that: “It’s important to understand 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.”

The authority is not disputed in case law. The Foreign Intelligence Surveillance Court of Review upheld it in November 2002, concluding that “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 FISC noted that “all the other courts to have decided the issue” agreed. Each “held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.” U.S. District Judge James Robertson, the onetime Clinton campaign adviser and contributor, who resigned from the court this week, should take note.

This kerfuffle isn’t about J. Edgar Hoover spying on iconic dissenters; it’s about a president attempting to avert another September 11. We agree with Rep. Pete Hoekstra, the Michigan Republican who chairs the House Permanent Select Committee on Intelligence: “Unless you’re holding conversations with al Qaeda, you have nothing to worry about with this program.” The worry now is that the program may be compromised and the next Iyman Faris will succeed.

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