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December 20, 2005, 9:46 a.m.
Clinton Claimed Authority to Order No-Warrant Searches
Does anyone remember that?
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.
