Previous administrations, as well as the court that oversees national security cases, agreed with President Bush’s position that a president legally may authorize searches without warrants in pursuit of foreign intelligence.
“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,” Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.
That same authority, she added, pertains to electronic surveillance such as wiretaps.
More recently, the U.S. Foreign Intelligence Surveillance Court — the secretive judicial system that handles classified intelligence cases — 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.”
Such warrantless searches have been at the center of a political fight in Washington after the New York Times reported Friday that the Bush administration had a program to intercept communications between al Qaeda suspects and persons in this country, a story whose publication coincided with the congressional debate over reauthorizing the USA Patriot Act.
In a 2002 opinion about the constitutionality of the Foreign Intelligence Surveillance Act (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.”
Indeed, previous administrations have used that same authority.
One of the most famous examples of warrantless searches in recent years was the investigation of CIA official Aldrich H. Ames, who ultimately pleaded guilty to spying for the former Soviet Union. That case was largely built upon secret searches of Ames’ home and office in 1993, conducted without federal warrants.
In 1994, President Clinton expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever. In a radio address promoting a crime-fighting bill, Mr. Clinton discussed a new policy to conduct warrantless searches in highly violent public housing projects.
Previous administrations also asserted the authority of the president to conduct searches in the interest of national security.
In 1978, for instance, Attorney General Griffin B. Bell testified before a federal judge about warrantless searches he and President Carter had authorized against two men suspected of spying on behalf of the Vietnam government.
That same year, Congress approved and Mr. Carter signed FISA, which created the secret court and required federal agents to get approval to conduct electronic surveillance in most foreign intelligence cases.
A Washington Post report at the time said the new FISA law permits “the government (primarily NSA with the occasional help of an FBI ‘black bag job’ or break-in) to continue electronic spying without a court order if it is directed solely at the premises or communications of ‘official’ powers, such as governments, factions or entities openly known to be directed and controlled by foreign governments.”
The year after FISA became law, a columnist in The Washington Post described what could still happen to any person or group determined to be “an agent of a foreign power.”
“Once the attorney general has made that finding about someone, then the FBI can spy on them or burglarize their offices,” wrote William Greider in a May 1979 column.
The Bush administration and Republicans on Capitol Hill say terrorist cells in this country are precisely what those FISA loopholes were intended for, even if they don’t represent a traditional enemy state.
“Following the 9/11 attacks, it was obvious that al Qaeda utilized high-tech communication systems and modified its communication methods to avoid surveillance,” Sen. John Cornyn, Texas Republican, said.
Mr. Cornyn and other Republicans have agreed with Democrats that hearings are necessary to learn more about Mr. Bush’s domestic spy policy. There remains disagreement, however, over whether those hearings should be open to the public.
One area certain to be discussed in any hearings would be the use of warrantless searches in previous administrations.
In an interview yesterday, Miss Gorelick acknowledged her testimony before Congress but said it pertained to presidential authority prior to 1994, when Congress expanded FISA laws. Left unanswered, she said, is whether that congressional action trumped the president’s “inherent authority.”
“The Clinton administration did not take a position on that,” she said.