December 20, 2005,
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."
Reporting the day after Gorelick's testimony, the Washington Post's headline on page A-19 read, "Administration Backing No-Warrant Spy Searches." The story began, "The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers."
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."
The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court. Meanwhile, Congress began discussing a measure under which the authorization for break-ins would be handled like the authorization for wiretaps, that is, by the FISA court. In her testimony, Gorelick signaled that the administration would go along a congressional decision to place such searches under the court if, as she testified, it "does not restrict the president's ability to collect foreign intelligence necessary for the national security." In the end, Congress placed the searches under the FISA court, but the Clinton administration did not back down from its contention that the president had the authority to act when necessary.
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.