Thursday, December 22, 2005

More on Legal Authority to Order Warrantless Surveillance

In a post yesterday, I quoted from an article by a lawyer who worked in Clinton's Justice Department, which supported the president's legal authority to conduct warrantless surveillance of communications between the U.S. and international locations. A thoughtful commenter, Progressive Democrat, disagreed that the article provides support for the argument that Pres. Bush's authorization of warrantless surveillance is lawful.

Progressive Democrat believes that "the fact that he [John Schmidt, the author of the article] worked for Clinton does nothing for your [i.e., my] argument". One point Schmidt made is that "President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent ... with the positions of the Justice Department under prior presidents". Schmidt was in a position to know the position of the Justice Department when Clinton was president. In fact, a higher official in Clinton's Justice Department, Deputy Attorney General Jamie Gorelick, testified to Congress that "the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes". One argument by liberals in this controversy is that Pres. Bush is somehow unique among presidents in his authorization of warrantless surveillance. The article by Schmidt helps to refute this argument by liberals, and his position in Clinton's Justice Department helps to make that point.

Progressive Democrat's second and more serious argument is that Schmidt presented the Keith case in a misleading way. Progressive Democrat objects principally to Schmidt's statement in the article that "the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad".

As a lawyer, I read Schmidt's statement differently than Progressive Democrat does. Schmidt simply points out, in a persuasive way, that the Keith court did not address the issue of the president's authority to order warrantless surveillance in response to foreign threats to national security.

The Keith case concerned the question of warrantless electronic surveillance in domestic security matters. Therefore, the court expressly left open the issue of warrantless surveillance in matters involving security from foreigners. As the court itself said,

[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.

The court emphasized the limits of its opinion in a later portion.

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.

In effect, the U.S. Supreme Court acknowledged that it was not deciding the issue of warrantless surveillance when foreigners threaten national security. To date, the Supreme Court still has not decided the question. However, as Schmidt points out in his article, "Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant." Thus, the judgment of those appellate courts is the prevailing law in the U.S. today.

I thank Progressive Democrat for his thoughtful comment. I hope he will consider my response above and agree that Pres. Bush does have the legal authority to authorize warrantless electronic surveillance of communications involving foreigners, especially foreigners known to associate with al Qaeda and other terrorists.


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