THE CLINTON ADMINISTRATION AND SENATOR SPECTER'S QUESTION ABOUT "RENUNCIATION" OF PRESIDENTIAL POWER [Andy McCarthy]
Last week’s NRO editorial on Senate Judiciary Chairman Specter’s questions to AG Gonzales in preparation for today’s hearing on the NSA’s terrorist surveillance program analyzed Sen. Specter’s suggestion that President Bush was somehow bound by what the senator took to be President Jimmy Carter’s “explicit renunciation of any claim to inherent Executive authority to conduct warrantless domestic surveillance” in signing FISA.
The Justice Department has convincingly rebutted this suggestion in the answers it provided last Friday to Sen. Specter’s questions – specifically, answer number 6, which demonstrates that renunciation is not merely unsound as a legal theory but also counter-factual in the case of President Carter and FISA. (Speaking for the administration, Attorney General, Griffen Bell unambiguously testified that Carter was in no way renouncing his inherent authority by acceding to FISA).
It is interesting to note, though, that the Clinton administration took an even more aggressive position on this question. Speaking for the Reno Justice Department’s Office of Legal Counsel, then-Assistant Attorney General Walter Dellinger argued that Presidents were not only unaffected and unrestricted by their predecessors’ positions. Dellinger said that Presidents were not even bound by their own positions – or even bound to defend or execute provisions that they themselves had signed into law. Here’s how Dellinger put it in his formal 1994 OLC opinion, provided as guidance to the Clinton White House (italics are mine):
http://corner.nationalreview.com/