MORE FROM THE CLINTON OLC ON PRESIDENTIAL AUTHORITY TO IGNORE STATUTES
Andy McCarthy
The Corner
Also very worthy of perusing is a 2000 opinion rendered by the Clinton Justice Department, entitled:
"SHARING TITLE III ELECTRONIC SURVEILLANCE MATERIAL WITH THE INTELLIGENCE COMMUNITY."
It is available here.
usdoj.gov
It includes these gems:
<<< [I]n extraordinary circumstances electronic surveillance conducted pursuant to Title III may yield information of such importance to national security or foreign relations that the President's constitutional powers will permit disclosure of the information to the intelligence community notwithstanding the restrictions of Title III. . . . [T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because "t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)), the President has a powerful claim, under the Constitution, to receive information critical to the national security or foreign relations and to authorize its disclosure to the intelligence community. Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers." Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.). We believe that, if Title III limited the access of the President and his aides to information critical to national security or foreign relations, it would be unconstitutional as applied in those circumstances.
Accordingly, law enforcement officers who acquire information vital to national security or foreign relations would be obliged to convey it to the appropriate superiors (e.g., the United States Attorney), who would report it to the Attorney General or Deputy Attorney General, who would in turn report it to the President or his designee. The President (or appropriate officials acting on his behalf, such as the Attorney General) would be authorized to share such crucial information with his executive branch subordinates, including intelligence community officials, to the extent necessary to discharge his constitutional responsibilities. Of course, this constitutional authority should not be exercised as a matter of course. Rather, it should only be exercised in extraordinary circumstances and with great care, and only where disclosure is necessary to the discharge of the President's constitutional responsibilities over matters of national security or foreign affairs. Even then, any contemplated exercise of this authority would necessitate careful consideration of the intrusion on privacy that might result.
Nor do we believe that disclosure of Title III information in these circumstances would violate the Fourth Amendment. Even if a disclosure of Title III information (as distinct from the seizure of the information) could otherwise violate the Fourth Amendment in some circumstances--a matter we do not address--we do not believe that this is an impediment to disclosure of Title III information of serious foreign affairs or national security import to the President. As we noted in our 1997 grand jury memorandum, the Supreme Court has recognized in other contexts that government actions overriding individual rights or interests may be justified where necessary to prevent serious damage to the national security or foreign policy of the United States. See Haig, 453 U.S. at 309 (invoking the principle that the Constitution's guarantees of individual rights do not make it a "suicide pact"); American Communications Ass'n v. Douds, 339 U.S. 382, 408-09 (1950) (to the same effect). We consider it very unlikely that the Court would conclude that the Fourth Amendment prohibits the disclosure of information vital to the national security or foreign relations of the United States. >>>
Of course, if a Republican President -- acting during a shooting-war while American forces are in harm's way against a foreign enemy which has killed nearly 3000 Americans in a domestic attack and constantly announces that it is planning even more devastating strikes -- were to ignore restrictions in a wiretap statute in order to set up an early warning system to prevent domestic attacks, the legal analysis would be different, and such blatantly illegal domestic spying would obviously be grounds for impeachment ... if not execution.
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