Educating Woody

Poor Woody has apparently never heard the old saying that “a little learning is a dangerous thing”. He’s all too ready to parrot the current line about Bush’s warrantless wiretaps, from a recent article in the Washington Times:

Previous administrations, as well as the court that oversees national security cases, agreed with President Bush’s position that a president legally may authorize searches without warrants in pursuit of foreign intelligence.

“The Department of Justice believes—and the case law supports—that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general,” Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.

In 1994, President Clinton expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever. In a radio address promoting a crime-fighting bill, Mr. Clinton discussed a new policy to conduct warrantless searches in highly violent public housing projects.

The problem with this—as with most of the radical right’s memes—is that it’s only part of the story. The facts cast a somewhat different light on the matter:

The foreign intelligence activity that the Bush administration has argued it can conduct without warrants—domestic wiretapping—has for 27 years been governed by FISA, which specifically requires court orders. On the other hand, the foreign intelligence activity to which Gorelick was referring—“physical searches”—was not covered by FISA when she said that Clinton had the “inherent authority to conduct” them. Further, Gorelick testified that she supported legislation requiring FISA warrants for physical searches. Following the passage of such legislation in 1995, the Clinton administration no longer asserted that it had the authority to conduct warrantless physical searches. By contrast, the Bush administration has claimed that it is not bound by the corresponding FISA provision requiring warrants for domestic eavesdropping.

The basic difference in these two situations is clear: the Clinton administration, when it ordered warrantless physical searches, was not in violation of FISA, because FISA did not at that time regulate physical searches. Once it was amended to do so—with the support of the Clinton administration—the DOJ obeyed the law and got the warrants required.

Bush’s domestic wiretaps are clearly in violation of FISA. And I have yet to see any radical rightwinger explain why it was necessary that the wiretaps be made without warrants. As is well known by now, FISA provides for the granting of retroactive warrants up to 72 hours after the fact. Why did Bush not simply order the wiretaps and then get the warrants?

Let’s just note in passing that the right is pulling another of its trademark juvenile tactics here. Assume for the moment that the Clinton administration was entirely in the wrong by ordering warrantless physical searches. How, exactly, does this excuse Bush from having done the same thing? This is not unlike a child being caught with his hand in the cookie jar, and whining that his sister had been doing the same thing. Wrong is wrong, no matter who has committed the infraction in the past. One would think that the self-proclaimed moral paragons of the right would understand this.

And whilst we are on the subject, what does the right think of this whopper of a lie told by Bush in 2004, while he was ordering warrantless searches?

Now, by the way, any time you hear the United States government talking about wiretap, it requires—a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Merry Christmas, Woody. I sure hope you asked Santa for the sense to check all the facts before you post again.