From Media Matters:
While Gorelick did express concerns that the highly restrictive requirements that apply to criminal searches might "restrict the President's ability to collect foreign intelligence," she stated that such "ability" would not be infringed upon if these searches were to be governed by "the basic provisions" of FISA:
GORELICK: Nevertheless, I reiterate the Administration's willingness to support appropriate legislation that does not restrict the President's ability to collect foreign intelligence necessary for the national security. We need to strike a balance that sacrifices neither our security nor our civil liberties.
If we can achieve such a balance -- and I believe we can if we use the basic provisions of the Foreign Intelligence Surveillance Act -- we can accomplish a number of things.
Furthermore, York's claim that, even after FISA had been amended to require court orders for physical searches, Clinton "still maintained that he had sufficient authority to order such searches on his own" is false, according to Think Progress. Following the 1995 amendment, the Clinton administration never argued that the president's "inherent authority" allowed him to bypass FISA, as the Bush administration has done in the case of its domestic surveillance activities.
http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hedIn the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.
Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.
FISA does not anticipate a post-Sept. 11 situation. 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. It is hard to imagine the Supreme Court second-guessing that presidential judgment.
But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack (SO NAME THE FOREIGN POWER THAT ATTACKED US????). That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.
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John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States. He is now a partner in the Chicago-based law firm of Mayer, Brown, Rowe & Maw.
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