Clinton's AAG Backs Bush On NSA

John Schmidt was Assistant Attorney General under President Clinton. He remembers his boss, Jamie Gorlick, saying,

"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."

In a ChiTrib op/ed Schmidt makes it clear that President Bush has the authority to order internal use of the NSA, as long as the messages it's investigating initiated internationally.

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.

Schmidt draws the right conclusion: Giving the president this authority means we need to be careful who we elect president; it does not mean we should take the power away from the presidency.

Interestingly, Schmidt's piece generated only five blog commenters on Memeorandum, all conservative stalwarts. Meanwhile, a Memeorandum listing on WaPo's story on a FISA jurist (and longtime Bush/GWOT opponent) who resigned in protest generated comment on all sides of the political spectrum.

A client of mine says everyone is entitled to their own opinions, but no one is entitled to their own facts. In this case, Schmidt's facts stand alone, and the opinions swirl about the actions of an opinionated judge.