December 21, 2005

JOHN SCHMIDT, who was Associate Attorney General under Clinton, says that the President has inherent authority to wiretap suspected terrorists for national security reasons.

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

This may or may not be right as a matter of law, but as with the Jamie Gorelick testimony I noted below, it undercuts the silly notion that this argument is a novel creation of the out-of-control Bushitler regime.

UPDATE: Orin Kerr has more thoughts on the story. In answer to one of his concerns, the question of U.S. jurisdiction over satellites does not depend on whether they are over the United States, but rather on whether they are carried on the U.S. registry. Whether this impacts the Fourth Amendment analysis is not clear; the argument as to whether the constitution “follows the flag” onto U.S. spacecraft is unsettled, though the answer is probably “not necessarily.” That topic gets more discussion here; should it become more important I’ll post something on it.

Meanwhile, via the comments to Orin’s post, here’s a post by Cass Sunstein that also supports the Bush Administration’s position:

It is therefore reasonable to say that the AUMF, by authorizing the use of “all necessary and appropriate force,” also authorizes surveillance of those associated with Al Qaeda or any other organizations that “planned, authorized, committed, or aided the terrorist attacks” of September 11.

The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war. If the President’s wiretapping has been limited to those reasonably believed to be associated with Al Qaeda and its affiliates — as indeed he has said — then the Attorney General’s argument is entirely plausible.

Read the whole thing; we don’t know, of course, exactly who was being wiretapped, which matters. Regardless, the Bushitler claims seem quite ill-founded.

UPDATE: Bill Quick says the press doesn’t care about the history here.

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