(CNSNews.com) - Claims by a top Senate Democrat that the Clinton administration's warrantless surveillance of suspected spies and terrorists was different from what the Bush administration has employed are being contradicted by a former Justice Department official who served under President Bill Clinton.
John Schmidt, who served as associate attorney general between 1994 and 1997, argues that both Congress and the Supreme Court have recognized presidents' "inherent authority" to bypass warrants in ordering the eavesdropping of U.S. citizens suspected of conspiring with foreign governments or terrorists to injure or kill Americans.
On Wednesday, Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, chided reporters for suggesting that Clinton ordered the same kinds of surveillance of U.S. citizens as Bush. Leahy claimed in a press conference that Clinton acted under an "entirely different power.
"If you go back to Clinton and (President Jimmy) Carter, those are searches under a FISA (Foreign Intelligence Surveillance Act) provision into embassies, foreign embassies, things of that nature," Leahy argued. "It's an entirely different situation."
But in at least one well-documented case, Clinton authorized domestic electronic surveillance of a U.S. citizen without a warrant. FBI agents were allowed to break into the home of 31-year CIA veteran Aldrich Ames in 1993 to install eavesdropping devices.
An FBI summary of the case described it this way: "FBI Special Agents and Investigative Specialists conducted intensive physical and electronic surveillance of Ames during a ten-month investigation. Searches of Ames's residence revealed documents and other information linking Ames to the Russian foreign intelligence service."
The book "Main Justice: The Men and Women Who Enforce Our Nation's Criminal Laws and Guard Its Liberties," by The Washington Post's Jim McGee and U.S. News & World Report's Brian Duffy had much more detail.
"In the early morning hours of an autumn morning in 1993, an unmarked government sedan rolled slowly down an empty tree-lined street in Arlington. The FBI agents inside parked just up from a handsome two-story home. The agents knew the place well. Three months earlier, an FBI team had gone inside to bug the place. That operation had been a quick in and out. This time the agents planned to stay for a while. The owners were out of town on vacation. The house was vacant," the pair wrote. "With several hours to go before dawn, the FBI team slipped inside. They had with them the necessary equipment, but they did not have a warrant."
Though Ames's attorney initially planned to challenge the admissibility of the evidence collected through the warrantless searches and surveillance, Ames decided to plead guilty to espionage charges instead. He is serving life in prison without possibility of parole.
Law provides exceptions for surveillance without court order
Warrantless searches to gather foreign intelligence information are not new. In fact, there is language justifying them in the FISA law Leahy referenced.
The subchapter on electronic surveillance begins as follows: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath" and if several other limiting conditions are met. Those conditions include that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."
A "United States person" is defined by the law as "a citizen of the United States, an alien lawfully admitted for permanent residence," and most associations and corporations, unless they are controlled by a foreign government or terrorist group.
Bush administration opponents have latched onto that limitation to condemn the White House's decision to bypass the federal courts and order the surveillance of calls and emails between U.S. citizens or lawful permanent aliens in the states and suspected terrorists or their supporters elsewhere.
"Requiring a judge to approve a wiretap is not a nicety that can be avoided by presidential decree -- it is a fundamental rule of American democracy," wrote Ann Beeson, associate legal director of the American Civil Liberties Union, in a press statement. "The government ignored the system authorized by Congress in favor of limitless power to spy on Americans."
But one section of the statute seems to contradict Beeson's claim.
"[N]o contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under [FISA] is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person." (Emphasis added.)
Schmidt, writing in the Chicago TribuneThursday, hinted that Presidents Clinton and Bush both may have relied on the "death or serious bodily harm" exception.
"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," Schmidt wrote, analyzing Bush's decision-making dilemma after the 9/11 terrorist attacks. "FISA does not anticipate a post-Sept. 11 situation."
A handful of congressional Democrats, including House Minority Leader Nancy Pelosi (D-Calif.), have suggested that Bush could be subject to impeachment for his decision. Republicans have dismissed those calls as political posturing. Other administration critics are threatening lawsuits to block similar surveillance in the future, but Schmidt doubts that tactic would be successful.
"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," Schmidt wrote. "It is hard to imagine the Supreme Court second-guessing that presidential judgment."
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