Mar 29 2006
** 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.