As every President before him has, since the inception of Fisa, Bill Clinton asserted through his actions that Fisa did not apply to the President’s Constitutional mandate to protect the Union. Without warrants and without the approval of Fisa court he authorized wiretaps against Aldrich Ames who was later shown to be a spy.
I for one, applaud Clinton’s efforts.
Clearly, the court system cannot usurp the Commander in Chief’s mandate to safeguard the union against all enemies foreign and domestic.
The President does not have to go to Fisa. There is no need for him to seek the approval of a lesser athority in the matter of national security no matter how strongly deplorable liberal hypocrisy may otherwise assert.
…or so I heard on conservative talk radio today.
In fact, it sounds pretty good to me at the moment. Perhaps though it is not, and the Aldrich Ames situation is very different from Bush’s current situation.
If it is wrong, please explain to me why it is so in a reasonable fashion without hyperbole and venom or any other form of rhetorical flatulence.
Singularly interesting, and potentially quite compelling an argument.
Let’s try this:
Are the allegations regarding Clinton’s action re A. Ames valid? I’m not doubting your word, Scylla, but I’ve noted that some conservative pundit-wannabes are not above “revising” the truth to suit their argument. (Probably true for some liberals as well, but not germane to the discussion.)
Is there a separate act governing investigations of espionage that would authorize the alleged Clinton act?
If the answer to 2 is yes, why or why not would that be applicable to the Bush wiretaps? I’m thinking “probable cause” vs. “fishing expedition” in this, as well as differing circumstances governing the two wiretapping episodes.
I’d love to see this one resolved without left vs. right rhetoric. I can see possible conditions in which both Presidents were right, either was right but the other wrong, and both wrong. And it’d be interesting from the purely legal standpoint to find out what the facts and the law are and how they differ.
Gorelick seems to be arguing about physical searches, not wiretaps. Care to point out where he argues a position on the electronic surveillance issue, so I don’t have to reread it again?
I hadn’t considered that. Is there a substantive legal difference between a physical search and a wiretap? It seems to me, if anything, a wiretap is less invasive than making a key to somebody’s house, so that if if this were to apply to physical searches it would certainly apply to less invasive wiretaps.
I would also assume that Ames was wiretapped at the same time. I think I heard that even if the cite doesn’t explicitly say so. Hopefully that’s not a bad assumption.
I read that article to be against the expansion of FISA not Clinton going outside of the law to authorize wiretaps. I request a better cite showing where he went outside of the law to authorize surviellence.
Cite? I haven’t done much research, but most of what I found in my couple minutes spent indicated that the search of Ames work and residence was done pursuant to warrants. Cite
Finally, I point you to this article which discusses the “but Clinton did it too!” argument about Bush’s surveillance.
[quote=Scylla]
Clearly, the court system cannot usurp the Commander in Chief’s mandate to safeguard the union against all enemies foreign and domestic.In your mind, does this “mandate to safeguard” trump all other acts of Congress or the Constitution itself?
Cute that you refer to a co-equal branch of government as “lesser authority”. The Constitution never provided the President the ability to whatever he wished as long as it fit under the “national security” umbrella.
Maybe I’m not reading this right but wasn’t the Ames fiasco aimed at one particular person? A person with cause? It did not give carte blanch to intercept any communication it, or it’s overlords, deemed necessary.
This is not to say that they would not have had the situation come up, nor that they would need to, since they had previously made the argument.
Does Gorelick’s original stance still stand, or is is superseded by the Fisa amendment?
If as Gorelick argues the President has the “inherent athority to conduct warrantless searches” than an amendment of Fisa would not apply to this inherent athority. Or would it?
Again though, if he has the inherent athority to order them unilaterally than he does not need court approval.
It seems to me that we have a basic conflict. I think the President as the commander in chief has the Constitutional responsibility to safeguard the Nation against all enemies foreign and domestic, and if that means ordering wiretaps, I think he has the athority to do so.
On the other side of the coin, the court system defends our civil liberties.
In either case the system comes down to a man’s decision. Either an appointed judge, or an elected official.
The answer to this, in more general terms, is settled Constitutional law: the President is at his strongest when acting in accord with Congressional authority pursuant to statute; arguably free to act (but without as strong legal support) in a reasonably Constitutional manner in the absence of Congressional action; and in general not authorized to act in contravention of statutory provision by Congress. I don’t have the specific cite, but it’s the Steel Seizure Case in Truman’s time, and the “Presidential inherent authority” argument is spelled out and delimited in it.
I agree, but it’s actually a complex problem to figure out what applies here.
The court scannot, for example, pass a law that outlaws congress and the Presidency and passes all power to judges.
They cannot pass a law outlawing Congress’ athority to declare war. It is an inherent constitutional power of Congress.
If as Gorelick argues the President has the “inherent power” to order searches than the court system cannot supersede that power.
Indeed, it seems to make sense in the tradittion of the founders’ intent which was to have seperate systems of checks and balances. It seems to me pretty clear that the President has war powers and the responsibility to defend the country from threats, not the courts.
At the same time the courts have the responsibility to uphold our civil liberties. It appears to me to be a direct conflict.
Let’s look at a hypothetical and you tell me what you think:
Let’s say the President feels that Osama Bin Laden is hiding in a house in Long Island.
Let us say that the President feels the evidence that he is there is compelling, so he decides to seek a warrant rather than exercise his “inherent athority (provided such still exists”)
The judge though is obstinate and refuses to grant a warrant.
The President decides that the risk to the Nation is so great that the opportunity to catch OBL cannot be passed up and that his Constitutional athority to protect the Nation as it’s elected Commander in Chief supersedes the athority of a single appointed judge to refuse a warrant.
There is no threat to the nation. Your hypothetical does not apply. You’re creating an imaginary crisis. Even so, my answer would be that President needs to follow court orders. The Executive Branch is not autonomous. It sounds like you want an activist presidency where legislative and judical checks do not apply. We just overthrew a government like that.