The first thing to remember in trying to evaluate reports that U.S. intelligence services wiretapped Princess Diana is that British press accounts can be notoriously unreliable. We’ll know more about the story on Thursday morning, when results of the Lord Stevens inquiry into Diana’s death are released to the public. But if the reports out now are accurate, the Diana case could raise questions for veterans of the Clinton administration similar to those facing the Bush administration today.
Some versions of the story say simply that the U.S., without consulting British intelligence, was monitoring Diana’s phone conversations in Paris on the night she died, in August 1997. If American intelligence did that, and if the conversations tapped were between Diana, who was a foreign national, and some other person who was also a foreign national, then the action, although perhaps needlessly antagonistic to the British, would not raise questions of whether the administration sought a warrant under the Foreign Intelligence Surveillance Act, or FISA.
But the Evening Standard reports that American intelligence agencies “were bugging Princess Diana’s telephone over her relationship with a U.S. billionaire” — identified as American businessman Theodore Forstmann. That report suggests the surveillance took place over a period of some time. If that is accurate, then the story could be quite different.
Forstmann is what is known in the intelligence/legal world as a “U.S. person.” If there were a conversation between him, in the United States, and Diana, outside the United States, it would resemble, at least in structure, the conversations between people in the United States and those in foreign countries that have been at the center of the controversy over what President Bush calls the terrorist-surveillance program and what Democrats call “domestic spying.” (The difference, of course, would be that the Bush administration says it has listened to conversations involving people with known connections to a foreign enemy, al Qaeda; neither Diana nor Forstmann, a public-minded financier who was quite active in Republican politics, appears to fit a comparable description.)
If the Clinton administration did engage in surveillance of Diana/Forstmann, it is not clear if it was done with or without a warrant. “To get a FISA warrant, they would have had to believe that either Forstmann or Diana was an agent of a foreign power,” says one former Justice Department official. That, the official adds, would be an unlikely scenario. “To get a criminal warrant, they would have had to had a proceeding going on in which they got a judge to give them a warrant” — another unlikely scenario. “Or perhaps,” the official concludes, “the NSA did it.”
The National Security Agency released a statement last night saying, “NSA did not target Princess Diana’s communications.” A spokesman for the Central Intelligence Agency told the Washington Post that any suggestion the CIA wiretapped Diana was “rubbish.” Neither statement seems to be a definitive denial.
If the Clinton administration did engage in surveillance of Princess Diana and Theodore Forstmann, without a warrant, it would appear to run contrary to statements made by former administration officials during the Bush warrantless-wiretap controversy. After the existence of the Bush program was made public last December, some high-ranking veterans of the Clinton administration said they had not engaged in similar efforts to by-pass FISA. “Both before and after the Foreign Intelligence Surveillance Act was amended in 1995, the Clinton-Gore administration complied fully and completely with the terms of the law,” former Vice President Al Gore said.
The amendment to which Gore referred was an action by Congress that included physical break-ins under the FISA law, requiring the executive branch to seek a warrant before carrying out a break-in. Wiretaps were already covered by the law.
When Congress was considering the break-in measure, top Clinton administration officials argued that the president had the “inherent authority” to order such break-ins — including break-ins at the homes of U.S. citizens — on his own, without a warrant. Even after the administration agreed with Congress’s decision to place the authority to pre-approve such searches in the FISA court, President Clinton still maintained that he had sufficient authority to order such searches on his own.
“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes,” Deputy Attorney General Jamie Gorelick testified before the House Intelligence Committee on July 14, 1994. Later, after Congress took action, Gorelick told Legal Times that, “Our seeking legislation in no way should suggest that we do not believe we have inherent authority.”
Nevertheless, the law required that the administration seek a warrant if it intended to wiretap a U.S. person’s — in this case Forstmann’s — communications. The Clinton administration could have argued, as the Bush administration would later, that the president had the authority to do it on his own under certain circumstances, like the presence of a foreign enemy. But it’s hard to see how Diana and Forstmann would have fit that description, and in any event that is something Al Gore and other Clinton veterans say they never did.
– Byron York, NR’s White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They’ll Try Even Harder Next Time.