Last night, in “I Spy” ‘Round the Blogs, I referenced conservative blogger Froggy Ruminations‘ claim that civil libertarians are being hypocritical in their uproar over Bush’s warrantless searches of thousands of Americans if the libertarians don’t also point to, and object to, presidents Clinton’s and Carter’s approval of warrantless searches.
The debate rages on. There are:
- Crosswalk.com’s “Former Clinton Official Contradicts Leahy on Surveillance” (via CNS)
- Newsbusters.com’s “NSA Eavesdropping and Media Double Standards”
- Investor’s Business Daily’s “Unwarranted Flak” (via Yahoo! News)
- and many more
Most of the conservative writers seem to rely on the the Washington Post‘s Dec. 20, 2005 piece, “White House Elaborates on Authority for Eavesdropping.”
However, yesterday the Washington Post printed another article which the GOP seems to have ignored like an out-in-the-cold, homeless orphan: “RNC Points To Spy Orders By Carter, Clinton.”
At the RNC’s Web site — which, by the way, wishes you “Happy Holidays” — the RNC links to a Dec. 22nd Washington Times piece, “‘Warrantless’ Searches Not Unprecedented” and a Dec. 21st Chicago Tribune op-ed, “President Had Legal Authority To OK Taps.”
The press release referred to below by the WaPo is dated Dec. 21, and is posted at GOP.com. There is no follow-up press release to the following WaPo article:
… the Republican National Committee issued a news release portraying the critics as Democrats seeking to “play politics again with national security.”
The RNC asserted that Presidents Bill Clinton and Jimmy Carter both authorized comparable forms of “search [or] surveillance without court orders.”
The RNC quoted fragments of Clinton’s Executive Order 12949, authorizing the attorney general to “approve physical searches, without a court order, to acquire foreign intelligence information,” and Carter’s Executive Order 12139, authorizing the attorney general to “approve electronic surveillance to acquire foreign intelligence information without a court order.”
The Clinton and Carter orders … permitted warrantless spying only on foreigners who are not protected by the Constitution. Bush’s secret directive permitted the NSA to eavesdrop on the overseas calls of U.S. citizens and permanent residents.
The RNC’s quotation of Clinton’s order left out the stated requirement, in the same sentence, that a warrantless search not involve “the premises, information, material, or property of a United States person.” Carter’s order, also in the same sentence quoted, said warrantless eavesdropping could not include “any communication to which a United States person is a party.” (WaPo, Dec. 22. 2005) (Emphases mine.)
I didn’t follow the Aldrich Ames case as closely as I should have. But I do know that Media Matters has an article up that disputes the Clinton allegations. As I understand it, Clinton could not have violated FISA in ordering a warrantless search of Ames’ house because FISA didn’t cover physical searches at the time.
The joint CIA/FBI investigation of Ames, a CIA analyst ultimately convicted of espionage, also took place prior to the 1995 FISA amendment requiring warrants for physical searches. Therefore, when the Clinton administration ordered investigators to go “into Aldrich Ames’s house without a warrant,” they did not — as Toensing argued — “carry out their authority” to bypass the FISA requirements, because FISA did not cover such searches.
Now, why they wouldn’t have needed a warrant as they would in other criminal cases is something beyond my knowledge. In other words, even though FISA did not require a warrant, I’m not clear why a warrant wasn’t covered by other criminal search laws. (I’m a corporate transactional lawyer not a criminal lawyer.) But maybe somebody else does. (maryb2004‘s comment last night)
The Media Matters article to which Maryb2004 points is “Toensing “called in” to CNN, falsely equated Clinton’s searches in Ames case with Bush wiretapping“:
Summary: Calling in to CNN, Republican attorney Victoria Toensing repeated the false claim that President Clinton carried out the same authority President Bush did with regard to domestic surveillance. … (Read all.)
Since I seem to be the only person around here who has subscribed to Showtime in the past, I’m compelled to tell you about an excellent made-for-Showtime movie on the life and investigation of Aldrich Ames.
The film, “Aldrich Ames: Traitor Within,” made in 1998, starred a riveting, world-weary Timothy Hutton (a fine actor) as Aldrich Ames (IMDb link). Elizabeth Pena was Ames’s overly demanding, loving wife.
Joan Plowright, a gifted English actress, starred as Jeanne Vertefeuille, a senior-citizen CIA sleuth who headed a team of older women who unravel the Ames story.
One fan of the film wrote that it’s a “journeyman docudrama about the CIA’s most infamous mole.”
Oddly, the only place you can buy a VHS copy — no DVDs are available — is via Amazon/Canada.
It’s a good buy because it’s the kind of film you’ll find yourself watching several times. Once in a great while, Showtime reairs the film, and I always try to catch it.