December 21, 2005,
Along with the other controversies set off by President Bush's decision to order warrantless wiretaps of the international telephone calls of people with known al Qaeda connections, there is a debate going on among veterans of the Clinton administration over whether President Clinton held the position that his powers included the "inherent authority" to take such measures.
On Tuesday, National Review Online reported the testimony of Clinton Deputy Attorney General Jamie Gorelick before the House Intelligence Committee in July 1994. Gorelick told lawmakers that the president had the authority to order physical searches break-ins for national-security reasons without having to get a warrant from anyone. Gorelick said the Clinton administration would go along with Congress's desire to give the authority to pre-approve those searches to the FISA court, but did not retreat from the position that the president held such authority himself.
The NRO article set off a wave of criticism from Clinton supporters. In a response entitled "The Gorelick Myth," the liberal think tank Center for American Progress, run by former Clinton chief of staff John Podesta, wrote, "York claims that, after the law was amended, 'the Clinton administration did not back down from its contention that the president had the authority to act when necessary.' Thatís false. Neither Gorelick or the Clinton administration ever argued that presidentís inherent 'authority' allowed him to ignore FISA."
The Center's position appears contradicted not only by Gorelick's testimony but by a statement she made to Legal Times in November 1994, several months after her testimony, in which she said, "Our seeking legislation in no way should suggest that we do not believe we have inherent authority."
Now there is another voice in the debate. John Schmidt, who served as associate attorney general in the Clinton Justice department, has written an article arguing that the president Clinton, Bush, or any other chief executive has the inherent authority to order warrantless surveillance. The courts have upheld that position several times, Schmidt writes in the Chicago Tribune, and, what is more, "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms."
"We cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept. 11," Schmidt continues. "I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again."
In the argument that has emerged over warrantless surveillance, there have been a number of overstatements. Some people, for example, have said that Bill Clinton signed an executive order authorizing such surveillance; he did not. But there is no doubt that presidents before George W. Bush, including Clinton, held the position that they had the authority to do what they believed was necessary to defend the United States against foreign attack.
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.