John Schmidt, associate attorney general of the United States under President Clinton from 1994 to 1997, writes in the Chicago Tribune that President George W. Bush did have the authority to do the controversial warrantless wiretaps:
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 court decisions and with the positions of the Justice Department under prior presidents.
The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.
In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.
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.
There’s more. But Schmidt, now a Chicago-based lawyer, is saying Bush had the authority. It still is unlikely to end the debate, since there are others who have a totally different view.
But the next question will be: if Schmidt is correct, then why is there so much cloudiness over this issue? All the more reason for the need for Congressional hearings to delineate once and for all (a) what precisely IS the law, (b) what will the executive and legislative branch roles be in the 21st century in this new age of what seems to be a constant anti-terrorism war?
The wildcard will be more sensational revelations in the press. If it turns out that the government was spying to prevent far-fetched threats or threats that gobble up resources better used for Al-Qaeda-type terrorists (in other words: do you REALLY have to waste taxpayers’ money on spying on PETA???) — or using agencies in any way in political campaigns — the key issue will clearly be whether this government can be trusted to use powers responsibly…or if it’s abusing powers. Schmidt ends his piece (which should be read in full) with this:
What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.
Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.
But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. 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.
It’s unlikely Congress is going to take away the president’s authority. But it could insist upon greater oversight and scrutiny of what the executive branch is doing — and insist upon exercising the powers Congress was given in the U.S. Constitution.