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Tuesday, December 20, 2005
The Lonely Passion of John H. Hinderaker
Hours to bill, ambulances to chase... 
Once a Time Magazine Blogger of the Year, Hinderaker has become a mere shell of his former self (that self being a pretty empty vessel to start with) now relegated to recycling tired talking points hours after their sell-by date has passed by:
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?
Gee John, nice try, but no soup for you.
The top of the Drudge Report claims “CLINTON EXECUTIVE ORDER: SECRET SEARCH ON AMERICANS WITHOUT COURT ORDER…” It’s not true. Here’s the breakdown –
What Drudge says:
Clinton, February 9, 1995: “The Attorney General is authorized to approve physical searches, without a court order”
What Clinton actually signed:
Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.
That section requires the Attorney General to certify is the search will not involve “the premises, information, material, or property of a United States person.” That means U.S. citizens or anyone inside of the United States.
The entire controversy about Bush’s program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton’s 1995 executive order did not authorize that.
Drudge pulls the same trick with Carter.
What Drudge says:
Jimmy Carter Signed Executive Order on May 23, 1979: “Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”
What Carter’s executive order actually says:
1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.
What the Attorney General has to certify under that section is that the surveillance will not contain “the contents of any communication to which a United States person is a party.” So again, no U.S. persons are involved.
Maybe, if John ever steps inside of a courtroom again, he can call on Matt Drudge as an 'expert witness' since he's obviously not willing to invest any time exercising due diligence.
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