Instapundit
Independent from the question of whether the NSA warrantless wiretaps is legal, of course, is the separate charge that the program represents a Bushitlerian departure from prior standards. That seems to be hard to maintain -- in many ways, Bush's policies are merely a continuation of those under Clinton, only with somewhat more vigor post 9/11. If you want to look back on the Clinton Administration as some sort of civil-liberties golden age, you probably shouldn't read this report from the CATO Institute entitled "Dereliction of Duty: The Constitutional Record of President Clinton." But here's a relevant excerpt:
The Clinton administration has repeatedly attempted to
play down the significance of the warrant clause. In
fact, President Clinton has asserted the power to conduct
warrantless searches, warrantless drug testing of public
school students, and warrantless wiretapping.
The Clinton administration claims that it can bypass the
warrant clause for "national security" purposes. In July
1994 Deputy Attorney General Jamie S. Gorelick told the
House Select Committee on Intelligence that the president
"has inherent authority to conduct warrantless searches
for foreign intelligence purposes." [51] According to
Gorelick, the president (or his attorney general) need
only satisfy himself that an American is working in
conjunction with a foreign power before a search can take
place. . . .
It is unclear why the president made warrantless roving
wiretaps a priority matter since judges routinely approve
wiretap applications by federal prosecutors. According to
a 1995 report by the Administrative Office of U.S. Courts,
it had been years since a federal district court turned
down a prosecutor's request for a wiretap order. [68]
President Clinton is apparently seeking to free his
administration from any potential judicial interference
with its wiretapping plans. There is a problem, of course,
with the power that the president desires: it is precisely
the sort of unchecked power that the Fourth Amendment's
warrant clause was designed to curb. As the Supreme Court
noted in Katz v. United States (1967), the judicial
procedure of antecedent justification before a neutral
magistrate is a "constitutional precondition," not only
to the search of a home, but also to eavesdropping on
private conversations within the home. [69]
President Clinton also lobbied for and signed the Orwellian
Communications Assistance for Law Enforcement Act, which
is forcing every telephone company in America to retrofit
its phone lines and networks so that they will be more
accessible to police wiretaps.
Whether this view is right or not is a separate question from the easy-to-refute claim that it's an entirely unprecedented creation of the power-mad Bushitler Administration. It's odd, then, that it's the easy-to-refute claim that's being pushed.
If you'd like more on this topic, Jeff Goldstein has a huge, link-rich roundup.
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