Carter Allowed Warrantless Surveillance In 1977, Upheld By Courts
Washington Times - Former President Jimmy Carter, who publicly rebuked President Bush's warrantless eavesdropping program this week during the funeral of Coretta Scott King and at a campaign event, used similar surveillance against suspected spies.
"Under the Bush administration, there's been a disgraceful and illegal decision -- we're not going to the let the judges or the Congress or anyone else know that we're spying on the American people," Mr. Carter said Monday in Nevada when his son Jack announced his Senate campaign.
"And no one knows how many innocent Americans have had their privacy violated under this secret act," he said.
The next day at Mrs. King's high-profile funeral, Mr. Carter evoked a comparison to the Bush policy when referring to the "secret government wiretapping" of civil rights leader Martin Luther King.
But in 1977, Mr. Carter and his attorney general, Griffin B. Bell, authorized warrantless electronic surveillance used in the conviction of two men for spying on behalf of Vietnam.
The men, Truong Dinh Hung and Ronald Louis Humphrey, challenged their espionage convictions to the U.S. Court of Appeals for the 4th Circuit, which unanimously ruled that the warrantless searches did not violate the men's rights.
In its opinion, the court said the executive branch has the "inherent authority" to wiretap enemies such as terror plotters and is excused from obtaining warrants when surveillance is "conducted 'primarily' for foreign intelligence reasons."
That description, some Republicans say, perfectly fits the Bush administration's program to monitor calls from terror-linked people to the U.S.
The Truong case, however, involved surveillance that began in 1977, before the enactment of the Foreign Intelligence Surveillance Act (FISA), which established a secret court for granting foreign intelligence warrants.
Democrats and some Republicans in Congress say FISA guidelines, approved in 1978 when Mr. Carter was president, are the only way the president may conduct surveillance on U.S. soil.
It is true that this case ruled on surveillance taking place prior to FISA being enacted, but that's not the point. What is key here is the way the court defined warrantless domestic surveillance. The ruling states warrantless monitoring taking place domestically for the primary purpose of gathering intelligence on foreign threats falls under the inhereht powers of the executive branch.
That is an important word, because "inherent" powers means powers laid out for the chief executive in the Constitution. Any statute passed by Congress - FISA, for instance - cannot trump the President's inherent, constitutional powers. Congress cannot remove the President's constitutional power to veto legislation (as laid out in Article I) and they cannot remove his constitutional power to gather foreign intelligence domestically without a warrant.
The Constitution could be amended to change these things, but that obviously was not done.
