February 9, 1995: Clinton Executive Order Extends Warrantless Surveillance Capabilities of Justice Department

President Clinton issues Executive Order 12949, which marginally extends the powers of the Justice Department to conduct warrantless surveillance of designated targets, specifically suspected foreign terrorists. Perhaps the most controversial aspect of the order comes in the first section, which reads, “Pursuant to section 302(a)(1) of the [Foreign Intelligence Surveillance] Act [FISA], the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.” [US President, 2/9/1995] As with then-president Jimmy Carter’s own May 1979 order extending the Justice Department’s surveillance capabilities (see May 23, 1979), after George W. Bush’s warrantless domestic wiretapping program will be revealed in December 2005 (see December 15, 2005), many of that program’s defenders will point to Clinton’s order as “proof” that Clinton, too, exercised unconstitutionally broad powers in authorizing wiretaps and other surveillance of Americans. These defenders will point to the “physical search” clause in Clinton’s order to support their contention that, if anything, Clinton’s order was even more egregrious than anything Bush will order. This contention is false. [50 U.S.C. 1802(a); Think Progress, 12/20/2005] Under FISA, the Attorney General must certify that any such physical search does not involve the premises, information, material, or property of a United States person.” That means US citizens or anyone inside the United States. Clinton’s order does not authorize warrantless surveillance or physical searches of US citizens. [US President, 2/9/1995; Think Progress, 12/20/2005]