You’d Better Think Before You Go Down That Road, Senator Clinton

Hillary Clinton yesterday:

"Obviously, I support tracking down terrorists. I think that's our obligation. But I think it can be done in a lawful way," the New York Democrat said.

Clinton, a potential 2008 presidential candidate, told reporters she did not yet know whether the administration's warrantless eavesdropping broke any laws. But the senator said she did not buy the White House's main justification for the tactic.

"Their argument that it's rooted in the authority to go after al-Qaida is far-fetched," she said in an apparent reference to a congressional resolution passed after the Sept. 11, 2001, terrorist attack. The Bush administration has argued that the resolution gave the president authority to order such electronic surveillance as part of efforts to protect the nation from terrorists.

"Their argument that it's rooted in the Constitution inherently is kind of strange because we have FISA and FISA operated very effectively and it wasn't that hard to get their permission," she said. The Foreign Intelligence Surveillance Court was established by Congress to approve eavesdropping warrants, even retroactively, but Bush has argued that the process often takes too long.

First of all, I would like to point out to Senator Clinton that the Constitution is the supreme law of the land and FISA is a court. As many times as I’ve read the Constitution, I’ve never seen the acronym “FISA” anywhere in it.

Secondly, in regards to whether the Constitutional argument giving the president inherent authority is “strange because we have FISA”, The U.S. Foreign Intelligence Surveillance Court of Review didn’t seem to think so in their opinion decided November 18, 2002 :

It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable. (Emphasis mine)

Jamie Gorelick, didn’t seem to think so either:

"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 and that the president may, as he has done, delegate this authority to the attorney general," Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.

That same authority, she added, pertains to electronic surveillance such as wiretaps.

Based on my understanding of the opinion, FISA has no jurisdiction over the president whatsoever when it comes to conducting warrantless searches to obtain foreign intelligence information.

Senator Clinton’s husband, however, didn’t stop there. He actually extended warrantless wiretaps to American Citizens and made his intentions known publicly:

In 1994, President Clinton expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever. In a radio address promoting a crime-fighting bill, Mr. Clinton discussed a new policy to conduct warrantless searches in highly violent public housing projects.

CBS “60 Minutes” even did a story on it:

In February 2000, for instance, CBS "60 Minutes" correspondent Steve Kroft introduced a report on the Clinton-era spy program by noting:

"If you made a phone call today or sent an e-mail to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency."
NSA computers, said Kroft, "capture virtually every electronic conversation around the world."

Echelon expert Mike Frost, who spent 20 years as a spy for the Canadian equivalent of the National Security Agency, told "60 Minutes" that the agency was monitoring "everything from data transfers to cell phones to portable phones to baby monitors to ATMs."

Do the Democrats, including Senator Clinton, really want to follow this to its logical conclusion? For Heaven’s sake, they want to impeach Bush over this, and the only thing he’s admitted doing is wiretapping phone calls that have suspected terrorists on at least one end of the call?

Even if an investigation is done and it is found that some domestic surveillance occurred, hasn’t Clinton already set that precedent?

This is a slippery slope for the democrats. The American people overwhelmingly support what President Bush is doing, as long as it falls within the bounds the Administration has claimed. It will be much worse for the Democrats when the American people at large find out that the last Democratic President was spying on them as well.

If I were Senator Clinton, I might tone down the rhetoric just a bit.

Tags:Politics,NSA, Eavesdropping,
Terrorism, Spying, Homeland Security, Civil Liberties, FISA, Hillary Clinton, Bill Clinton, Truong, Jamie Gorelick, Warantless Searches