Dereliction Of Duty: The Constitutional Record of President Clinton

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.

The warrant clause was designed to give the American people greater security than that afforded by the mere words of politicians. It requires the attorney general, or others, to make a showing of "probable cause" to a magistrate. The proponents of national security searches are hard-pressed to find any support for their position in the text or history of the Constitution. That is why they argue from the "inherent authority" of the Oval Office--a patently circular argument. The scope of such "authority" is of course unbounded in principle. Yet the Clinton Justice Department has said that the warrant clause is fully applicable to murder suspects but not to persons suspected of violating the export control regulations of the federal government. [52] If the Framers had wanted to insert a national security exception to the warrant clause, they would have done so. They did not.

The Clinton administration's national security exception to the warrant clause is nothing more, of course, than an unsupported assertion of power by executive branch officials. The Nixon administration relied on similar constitutional assertions in the 1970s to rationalize "black bag" break-ins to the quarters of its political opponents. [53] The Clinton White House--even after the Filegate scandal--assures Congress, the media, and the general public that it has no intention of abusing this power.

Attorney General Reno has already signed off on the warrantless search of an American home on the basis of the dubious "inherent authority" theory. [54] The actual number of clandestine "national security" searches conducted since 1993 is known only to the White House and senior Justice Department officials.

In the spring of 1994 the Chicago Public Housing Authority responded to gang violence by conducting warrantless "sweeps" of entire apartment buildings. Closets, desks, dressers, kitchen cabinets, and personal effects were examined regardless of whether the police had probable cause to suspect particular residents of any wrongdoing. Some apartments were searched when the residents were not home. Although such searches were supported by the Clinton administration, Federal District Judge Wayne Anderson declared the Chicago sweeps unconstitutional. [55] Judge Anderson found the government's claim of "exigent circumstances" to be exaggerated since all of the sweeps occurred days after the gang-related shootings. He also noted that even in emergency situations, housing officials needed probable cause in order to search specific apartments. Unlike many governmental officials who fear demagogic criticism for being "soft on crime," Judge Anderson stood up for the Fourth Amendment rights of the tenants, noting that he had "sworn to uphold and defend the Constitution" and that he would not "use the power of [his] office to override it, amend it or subvert it." [56]

The White House response was swift. President Clinton publicly ordered Attorney General Reno and HUD secretary Henry Cisneros to find a way to circumvent Judge Anderson's ruling. One month later the president announced a "constitutionally effective way" of searching public housing units. The Clinton administration would now ask tenants to sign lease provisions that would give government agents the power to search their homes without warrants. [57]

The Clinton plan was roundly criticized by lawyers and columnists for giving short shrift to the constitutional rights of the tenants. [58] A New York Times editorial observed that the president had "missed the point" of Judge Anderson's ruling. [59] Harvard law professors Charles Ogletree and Abbe Smith rightly condemned the Clinton proposal as an open invitation to the police to "tear up" the homes of poor people. [60]

The Clinton administration has defended warrantless drug testing programs in the public schools. In March 1995 the Supreme Court heard arguments on whether public school officials could drug test student athletes without a warrant or any articulable suspicion of illegal drug use. The Department of Justice sided with the school authorities, arguing that the privacy rights of individual students were outweighed by the interest of the school in deterring drug use by the student body generally. [61]

Solicitor General Days, arguing for the government, claimed that the school district "could not effectively educate its students unless it undertook suspicionless drug testing as part of a broader drug-prevention program." [62] Days maintained that the Fourth Amendment's requirement of individualized suspicion would "jeopardize" the school's drug program. Justices Sandra Day O'Connor, John Paul Stevens, and David Souter expressed skepticism about that claim and pointed out that if the Supreme Court followed the Justice Department's reasoning, America's public school students might well end up receiving less constitutional protection under the Fourth Amendment than do convicted criminals under correctional supervision. [63]

The Clinton administration supports warrantless drug tests in other contexts as well. Thus, when Republican presidential candidate Robert Dole said, during the 1996 campaign, that he would subject welfare recipients to warrantless, suspicionless drug tests, President Clinton quickly followed suit with his own approval of such an initiative. [64]

The Supreme Court has recognized that electronic surveillance, such as wiretapping and eavesdropping, impinges on the privacy rights of individuals and organizations and is therefore subject to the Fourth Amendment's warrant clause. [65] President Clinton, however, has asked Congress to pass legislation that would give the Federal Bureau of Investigation the power to use "roving wiretaps" without a court order. [66] The president also fought for sweeping legislation that is forcing the telephone industry to make its network more easily accessible to law enforcement wiretaps. Those initiatives have led ACLU officials to describe the Clinton White House as "the most wiretap-friendly administration in history." [67]

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. [70] The cost of that makeover is expected to be several billion dollars. Any communications carrier that fails to meet the technology standards of the attorney general can be fined up to $10,000 per day. The passage of that law prompted Attorney General Reno to marvel at her newly acquired power: "I don't think J. Edgar Hoover would contemplate what we can do today." [71] That is unfortunately true. In the past, law enforcement had to rely on the goodwill and voluntary cooperation of the American people for investigative assistance. That tradition is giving way to a regime of coercive mandates. [72] (snip)

President Clinton claims the Constitution gives him the unilateral power to attack other countries whenever he deems that course of action appropriate. Over the last four years, he has authorized missile attacks against Iraq, ordered air strikes in Bosnia, and threatened to invade Haiti. In each instance the president claimed that it was unnecessary to seek any constitutional authorization from Congress.

The Framers of the Constitution gave the war power careful consideration. Although in the European countries of the 18th century the war power was commonly vested in monarchs, the Framers made a deliberate decision to leave the war-making power with the national legislature, not the president. [114] Article I of the Constitution states that "Congress shall have the power . . . to declare war." The president was to exercise his article II responsibilities as commander in chief within the framework established by the Constitution. The American executive would direct the military operations that the people's representatives in Congress had authorized.

When President Clinton threatened to invade Haiti, 10 prominent legal scholars sent him a letter to remind him of the constitutional boundaries of his office:

The President may not order the United States Armed Forces to make war without first meaningfully consulting with Congress and receiving its affirmative authorization. . . . In our view, those principles, as well as your oath of office, require you to follow President Bush's example in the Persian Gulf War: to seek and obtain Congress's express prior approval before launching a military invasion of Haiti. [115]

President Clinton ignored that letter and came perilously close to commanding U.S. forces to attack the Haitian military. [116]

Haiti was not an isolated incident. The Clinton administration has repeatedly demonstrated its willingness to use military force without congressional authorization. In September 1996, for example, President Clinton ordered a cruise missile attack on Iraq. [117] The president characterized that attack as a "retaliatory strike" because Iraqi forces were engaged in murderous activity in an "exclusion zone" that President Bush had created, on his own authority, in 1991. (Recall that Congress only authorized U.S. military forces to expel the Iraqi military from Kuwait; President Bush created exclusion zones on Iraqi territory for the Kurdish people after the successful conclusion of Operation Desert Storm.)

President Clinton's rationale for his Iraqi missile attack is extremely distressing because it perfectly illustrates the dangerous propensities that the Founders apprehended at the Constitutional Convention. The Framers wanted the legislative branch to have the war power because of the ambitious tendencies of the executive branch. As James Madison noted, "The executive is the branch of power most interested in war, and most prone to it." [118] James Wilson, though an advocate of a strong presidency, approvingly observed that the new constitutional system "will not hurry us into war" since the war-making power "will not be vested in the power of a single man." [119]

Today, the United States military is obviously involved in an open-ended "police action" in the Middle East--and the fateful decision to engage in full-scale war rests with a single person in the American government: Bill Clinton. That is precisely the type of situation that the Constitution was designed to prevent.

http://en.wikipedia.org/wiki/Joe_Hoeffel

Early in 2005, Hoeffel joined Kohn, Swift & Graf P.C., a Philadelphia law firm.

http://www.kohnswift.com/

But he's not on their list of attorneys

http://www.northeasttimes.com/2005/0303/hoeffel.html

His new law firm consists of 17 attorneys. The firm specializes in class actions and human rights and business litigation.
At Kohn, Swift & Graf, he’ll launch a government relations consulting practice and assist with its business litigation.
"The firm is thrilled to have Joe Hoeffel join us to launch a government relations practice and to provide litigation and business counseling for Joe’s many contacts," said Joe Kohn, one of the firm’s directors and a two-time Democratic candidate for state attorney general.

NYT PLANS HIGH IMPACT STORY ABOUT NSA AND FBI, NEWSROOM SOURCES TELL DRUDGE REPORT... REPORTER LOWELL BERGMAN LEADS NEW DEVELOPMENTS...

Don't panic folks, it will only be another NATIONAL SECRET story pulled from the NYT's portfolio of National Secrets, figuring they will get some traction right after the Algore speech today calling for impeachment of President Bush. Throw a little gas on the fire for the LLL.

This bit about warrantless searches of public housing reminds me of contact I had with social workers when my children were little. My attorney was downright amazed at how freely they violated rights and due process. Then I got into a mess with police and fourth amendment rights of my biz. The bottom line is that in the real world authorities are not scrupulous and many Americans experience intrusions without real recourse. Try calling the ACLU. They tell you cases are too frequent and too difficult to prosecute.

President Clinton has asserted the power to conduct warrantless searches, warrantless drug testing of public school students, and warrantless wiretapping.

We all know that President Clinton only asserted the power to conduct warrantless searches and warentless wiretapping on persons outside the U.S. He would never have approved such intolerable and unconstitutional acts against U.S. citizens like you and me.

Warantless drug testing is O.K. if done with consent. Your post didn't furnish sufficient facts for anybody to make an informed judgment. Are you blowing smoke again?

Let's cut down the level of invective and hypocrisy with respect to President Clinton. If President Clinton had done any of the unconstitutional acts performed by the Bush gang, President Clinton would have been impeached and I would approve.

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