NSA: The Evolving Justification
I didn’t get around to blogging this yesterday, but much was made of this Washington Post article with a couple of interesting tidbits regarding the NSA Surveillance program; a hint that there is more unrevealed eavesdropping going on than the President’s program, and a tacit admission that the AUMF argument is of recent vintage:
Attorney General Alberto R. Gonzales appeared to suggest yesterday that the Bush administration’s warrantless domestic surveillance operations may extend beyond the outlines that the president acknowledged in mid-December.
In a letter yesterday to senators in which he asked to clarify his Feb. 6 testimony to the Senate Judiciary Committee, Gonzales also seemed to imply that the administration’s original legal justification for the program was not as clear-cut as he indicated three weeks ago.
At that appearance, Gonzales confined his comments to the National Security Agency’s warrantless wiretapping program, saying that President Bush had authorized it “and that is all that he has authorized.”
But in yesterday’s letter, Gonzales, citing that quote, wrote: “I did not and could not address . . . any other classified intelligence activities.” Using the administration’s term for the recently disclosed operation, he continued, “I was confining my remarks to the Terrorist Surveillance Program as described by the President, the legality of which was the subject” of the Feb. 6 hearing.
For more on these developments, I can happily refer you to the work of the Anonymous Liberal and, of course, the ever-present Glenn Greenwald…
Here’a an interesting article concerning the position the sainted Clinton Adminisrtation took on the President’s inherent powers to order warrantless wiretaps:
December 20, 2005
New York Times vs. History and the Law
It is quite remarkable that the New York Times has launched a campaign to persuade the American people that the President does not have the power to order warrantless electronic intercepts for national security purposes. No court, as far as I have been able to determine, has ever so ruled. As noted below, the federal courts have consistently held the precise opposite of the position urged by the Times, as in this article from tomorrow’s paper, titled “Cheney Defends Eavesdropping Without Warrants.”
Has any administration ever backed the position now urged by the Times? It doesn’t appear so. Matt Drudge points out that the Clinton administration engaged in warrantless wiretapping. Deputy Attorney General Jamie S. Gorelick wrote that the President “has inherent authority to conduct warrantless searches for foreign intelligence purposes.” That is an accurate summary of the holding of every federal court decision that has addressed the issue.
On May 23, 1979, President Jimmy Carter signed an executive order that said, “Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”
The Clinton-era “Echelon” electronic surveillance program went far beyond anything now under discussion, and became controversial precisely because of its extraordinary scope. A transcript of a 60 Minutes program on Echelon is available here. But the basic concept that the President could order warrantless searches for national security purposes wasn’t controversial during the Carter administration or the Clinton administration. Why is it suddenly controversial now?”
Powerline