Drudge's latest attempt to defend Bush's illegal spying operations is to claim that both Bill Clinton and Jimmy Carter both signed executive orders allowing searches without warrants. [Don't give Drudge the advertisement funding by visiting his site directly, follow instead the links here.] He links to the following two executive orders :
I'm a physicist, I'm not versed in any way in legal analysis (other than perhaps the laws of physics). Can someone with such skills, or perhaps better skills then me, relate the major differences between these two executive orders and what powers Bush granted?
Some basic attempts at analysis below the fold.
Executive Order 12139, by Jimmy Carter, includes the following two clauses at the end.
1-104. Section 2-202 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any electronic surveillance, as defined
in the Foreign Intelligence Surveillance Act of 1978, shall be
conducted in accordance with that Act as well as this Order.''.
1-105. Section 2-203 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any monitoring which constitutes
electronic surveillance as defined in the Foreign Intelligence
Surveillance Act of 1978 shall be conducted in accordance with that Act as well as this Order.''.
These, and some other similar clauses, seem to suggest that Carter, and anyone invoking these priveledges, must still comply with the basic articles of FISA. Is this correct? What exactly is the Carter order allowing officials to do that wasn't already granted in FISA?
Similary, Clinton's Executive Order 12949 has a clause
Section 1. Pursuant to section 302(a)(1) of the Act, 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.
And similar clauses, which I'd interpret as allowing searches without warrants as long as the other articles are covered under FISA. I don't know if this means they must still submit something to FISA within three days, or something similar, but it says that everything is compliant with FISA.
So the basic questions are, how do these actions differ from what Bush did? Did these orders allow searches on Americans as well as foreign nationals? I would guess they don't include wire-tapping or email sniffing, though (definitely not in Carter's day at least).
On a different note, over on Slashdot, they are postulating that Bush did this to do massive data mining on huge numbers of emails or calls. If so, then this would directly contradict his assertion that only about 500 people were spied on with definitive al queda ties.