Mar 29 2006
FISA Judges Bless NSA Terrorist Surveillance Program
** Update: Calrice Feldman (who I neglected to mention as providing me the lead on this story in the first place) notes that the NY Times is reporting this differently (big surprise there) and that Powerline is looking into the discrepency. Thanks Clarice! End update.
** Update: It sounds like the Washington Times may be the more accurate representation since the NY Times leaker reporter made this interesting reference:
Judge Robertson made clear that he believed the FISA court should review the surveillance program. “Seeking judicial approval for government activities that implicate constitutional protections is, of course, the American way,” he wrote.
But Judge Robertson argued that the court should not conduct a “general review” of the surveillance operation, as Mr. Specter proposed. Instead, he said the court should rule on individual warrant applications for eavesdropping under the program lasting 45 or 90 days.
Emphasis mine. Even Judge Robertson, who was quoted in the original NY Times Leak article as having resigned in protest because the NSA was ‘tainting’ the FISA process, is clearly saying that the FIS Court should not review the program, but warrants for targets here in the US if they are deemed important leads. So what else is new? This is the way it works now, as the Washington Times reported. End Update.
The news out today is consistent with what I have been claiming for weeks, basically since the news broke on the NSA TSP. The fact is Bush did not circumvent FISA, FISA was refusing to consider NSA leaks, which is clear from what the FISA judges testified to Congress.
Senator Feingold and the rabid left are in for some major crow:
A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).
Unfortunately, the rabid left includes the antique news media. I am going to enjoy the looks of dejection tonight!
The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president’s constitutional authority to spy on suspected international agents under executive order.
Duh. That has been the administrations point all along. And you want to guess WHY this should have been expected? Well, the two lead FISA judges allowed the NSA intel into the court under some really draconian conditions – but they let it in. If it was deemed illegal by FISA statute then that arrangement would never have been put in place. IN fact, this has all the signs of being a recitation of a sealed court decision:
“If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now,” said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. “I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute.”
And of course, there was the obvious warning that, IF MISUSED, then there could be issues.
The judges, however, said Mr. Bush’s choice to ignore established law regarding foreign intelligence gathering was made “at his own peril,” because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.
Well, duh – again! What this means is there is no evidence of any misuse, meaning there has never been any spying or 4th amendment abuses. Which means all those cases where lawyers think the NSA spied on them illegally – are grasping at straws. And in fact, the judges admit FISA is broken
The actions raised concerns from Congress and civil liberties groups about domestic spying, but the judges said that given new threats from terrorists and new communications technologies, the FISA law should be changed to give the president more latitude.
This is really going to give a lot of people a lot of heart burn.
The NYT ran a story which said just the opposite. Both papers can’t be right. Power line is trying to get its hands on the transcript. http://powerlineblog.com/archives/013582.php
Both papers can’t be right.
Don’t hold your breath waiting for a retraction from one of them. BTW, I read the piece at Powerline this morning. Amazing, it’s like the two reporters were reporting on two completely different hearings.
Totally OT, Clarice; I thoroughly enjoy your many articles that I’ve read over the last year or two at AT, and frequently link to your pieces to support my comments at several other blogs. I usually stop by AT every morning before I’m done with my first cup of coffee. (no offense, AJ)
Wednesday Night Quick Shots…
Who’s the cluebat of the week? Find out with Rick Moran…
AJ thinks the NY Times is skewed in its coverage of the FISA judges’ testimony yesterday…say it ain’t so!…
The latest edition of Ken Rudin’s Political…
Thanks, RS!
NRO Media Blog, read the transcript and cannot find where Lichtblau got his article from:Via Powerline, New York Times reporter Eric Lichtblau appears to have asserted something in his wiretapping story today that just isn’t supported by his own reporting, much less a transcript of the hearing. In the second paragraph of the story, Lichtblau wrote:
In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president’s constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.
The only reporting I can find in Lichtblau’s story to back up this assertion is contained in the next paragraph, where he writes:
Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until last year, said the president was bound by the law “like everyone else.” If a law like the Foreign Intelligence Surveillance Act is duly enacted by Congress and considered constitutional, Judge Baker said, “the president ignores it at the president’s peril.”
It only takes one look at the transcript to see how Lichtblau has changed the meaning of this quote by taking it out of context. At the time, Baker was on the receiving end of an aggressive line of questioning from Democrat Sen. Diane Feinstein. Here’s the relevant passage:
FEINSTEIN: Thank you very much. Now, I want to clear something up. Judge Kornblum spoke about Congress’ power to pass laws to allow the president to carry out domestic electronic surveillance. And we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority — are those rules then binding on the president?
[U.S. District Judge Allan] KORNBLUM: No president has ever agreed to that.
When the FISA statute was passed in 1978, it was not perfect harmony. The intelligence agencies were very reluctant to get involved in going to court. That reluctance changed over a short period of time, two or three years, when they realized they could do so much more than they’d ever done before without…
FEINSTEIN: What do you think, as a judge?
KORNBLUM: I think — as a magistrate judge, not a district judge — that a president would be remiss in exercising his constitutional authority to say that, “I surrender all of my power to a statute.” And, frankly, I doubt that Congress in a statute can take away the president’s authority — not his inherent authority but his necessary and — I forget the constitutional — his necessary and proper authority.
FEINSTEIN: I’d like to go down the line, if I could, Judge, please. Judge Baker?
[U.S. District Judge Harold] BAKER: Well, I’m going to pass to my colleagues, since I answered before. I don’t believe a president would surrender his power, either.
FEINSTEIN: So you don’t believe a president would be bound by the rules and regulations of a statute. Is that what you’re saying?
BAKER: No, I don’t believe that. A president…
FEINSTEIN: That’s my question.
BAKER: No, I thought you were talking about the decision…
FEINSTEIN: No, I’m talking about FISA and is a president bound by the rules and regulations of FISA?
BAKER: If it’s held constitutional and it’s passed, I suppose he is, like everyone else: He’s under the law, too.
FEINSTEIN: Judge?
[U.S. District Judge Stanley] BROTMAN (?): I would feel the same way.
FEINSTEIN: Judge Keenan?
[U.S. District Judge John] KEENAN: Certainly the president is subject to the law. But by the same token, in emergency situations, as happened in the spring of 1861, if you remember — and we all do — President Lincoln suspended the writ of habeas corpus and got in a big argument with Chief Justice Taney, but the writ was suspended.
KEENAN: And some of you probably have read the book late Chief Justice Rehnquist wrote, “All the Laws But One.” Because in his inaugural speech — not his inaugural speech, but his speech on July 4th, 1861, President Lincoln said, essentially, “Should we follow all the laws and have them all broken, because of one?”
FEINSTEIN: Judge?
(UNKNOWN) [probably U.S. District Judge William Stafford]: Senator, everyone is bound by the law, but I don’t believe, with all due respect, that even an act of Congress can limit the president’s power under the necessary and proper clause under the Constitution.
And it’s hard for me to go further on the question that you pose, but I would think that (inaudible) power is defined in the Constitution, and while he’s bound to obey the law, I don’t believe that the law can change that.
FEINSTEIN: So then you all believe that FISA is essentially advisory when it comes to the president.
(UNKNOWN): No.
FEINSTEIN: That’s what you’re saying.
I don’t mean — my time is up, but this is an important point. If the president isn’t bound by it…
SPECTER: Excuse me. It was four and a half minutes ago. But pursue the line to finish this question, Senator Feinstein.
FEINSTEIN: I don’t understand how a president cannot be bound by a law.
(UNKNOWN): I could amend my answer to saying…
FEINSTEIN: But if he is, then the law is advisory, it seems to me.
(UNKNOWN):* No, if there’s an enactment, a statutory enactment, and it’s a constitutional enactment, the president ignores it at the president’s peril.
* Lichtblau attributes this quote to Harold Baker
Throughout the long line of questioning, each judge appears to support the argument that the president did not act illegally when he used his constitutional authority to order the NSA to eavesdrop on people in the United States receiving phone calls from suspected al-Qaeda terrorists. Baker merely stated the obvious — that if the president had circumvented a statute without having the constitutional authority to do so, he would be doing so at his peril.
I wonder if Lichtblau can point to anything in the transcript that justifies his assertion that “several former judges who served on the panel also voiced skepticism at a Senate hearing about the president’s constitutional authority to order wiretapping on Americans without a court order.” Because the transcript I read indicates that the exact opposite is true.
UPDATE: Several readers have asked why I didn’t link to a transcript of the hearing. The answer is that the transcript comes from a subscription service (CQ).
[ 03/29/2006 03:49 PM ] ********http://media.nationalreview.com/093732.asp
FISA judges say Bush within law…
Hat tip: AJ Strata
Via Washington Times
A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapp…
FISA Judges Back Bush…
I think he has hit the nail on the head. Recall that this reporter and this paper were the ones who illegally leaked a highly classified operation in the first place, all to get their names emblazoned across the foreheads of liberals everywhere. Lich…