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?