Stupid question on Aldrich Ames

[wryter2000]

But at the time of the Ames search in 1993 and when Gorelick testified a year later, the Foreign Intelligence Surveillance Act required warrants for electronic surveillance for intelligence purposes, but did not cover physical searches. The law was changed to cover physical searches in 1995 under legislation that Clinton supported and signed.

From an article on the home page.

In anticipation of doing battle with kool-aid drinkers, I find myself wondering under what authority Clinton could conduct a physical search on Ames without a warrant. I assume he needed some kind of order from a judge, no?

Can someone help me out here?

[NaturalHigh]

1. I'll have to read up on Ames again.

I've read the book by Pete Earley, but it's been a few years. There wasn't anything that struck me as odd or illegal about the investigation.

[Cassandra]

2. There was no jurisdiction under FISA for it...

and then the Clinton administration got the law changed and they continued to follow the law. I'm sure there must have been some authority because if not, it was an impeachable offense and if they could have impeached him for that, they surely would have.

[papau]

3. At the time Court cases gave him foreign threat authority - info below

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-hed

In 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.

----------

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.

[progdonkey]

4. when there's no law...

No, he didn't need any sort of order from a judge, because there was no legal requirement for a warrant for physical searches. Only after FISA was extended to include physical searches, was Clinton (and now Bush) required to get a warrant for physical searches.

I'll give you an analogy. A street has a speed limit of 65 MPH and Driver A drives down the road at 65 MPH, perfectly meeting the legal speed limit. Say that the road is dangerous and there are always accidents from cars losing control even while driving the speed limit, though, and the community lowers the speed limit to 45 MPH to try to make it safer.

Now comes along Driver B, who speeds down the road at 65 MPH. When he's pulled over, he says that Driver A used to drive 65 on this street and he's just doing the same thing. That's total bullshit, of course. Yes, both Driver A and Driver B have driven on this road at 65 MPH, but the difference is that Driver A was driving at that speed when it was still legal to do so, and Driver B is doing so after it's been outlawed. Driver A was complying with the law then, and Driver B is breaking the law now. Case closed.

Law is by its nature restrictive: laws tell you only what you can't do, and anything not covered by a law is permitted. Often things that were once permitted become outlawed, but that doesn't make those who previously engaged in those activities outlaws.

[wryter2000]

5. Thanks

I do get that part. Here's what confuses me. I assume that if President A wanted to have the FBI search my house, he/she would need some authority for the FBI to do that. Am I wrong about that?

If so, why wouldn't Clinton need some authority to search Ames? Was he overseas?

[progdonkey]

6. foreign intelligence....

I think I read your post a little too fast and just jumped to the quick and easy explanation. O8)

I'm not a lawyer, so take what I say with a grain of salt, but as I understand it, although Ames himself wasn't outside the country (or at least not always), the investigation involved foreign elements, so FISA applied. At the time, the Clinton Admin applied for warrants in order to conduct the electronic surveillance, but when it came time to conduct a physical search, there wasn't any explicit requirement for them to get another warrant under FISA, so they didn't seek one.

But that still leaves the question, wouldn't there still be a requirement outside of FISA to get a search warrant to conduct the physical search of a US citizen and his home? I think in this case, though, the Clinton DOJ argued that, since the Ames investigation was to be carried out under FISA, and they had already received warrants to conduct electronic surveillance under FISA, they had implicit authority to extend the investigation to include a physical search.

The difference would be that in a more "conventional" investigation, the search warrant would be the first authority the police would have to violate the privacy of the suspect, whereas with the Ames case, the Clinton view was the physical search was just an extension of an already-granted warrant. So, as to your second question, I think the answer would be that Clinton did indeed need "some authority to search Ames," but Clinton believed he had implied authority granted to him with the original electronic surveillance warrant.

Don't feel so bad if you're still confused (can't you tell that I am a bit, too? ;-) ) , since that's just par for the course with loopholes, and what the Clinton DOJ did was in effect exploit a loophole in the law, which Congress then closed up.

I could be completely wrong, but hopefully my explanation will be able to help you fend off any RW attacks at least until you find someone who's much more educated about the whole matter. :toast:

[wryter2000]

7. Thanks

Now that I think of it, FISA and civilian warrants are covered in Bob Graham's book about 9/11. I'll bet if I look that up, it'll make sense for me.

You may not have answered my question exactly, but I think you pointed me in the right direction. :yourock: