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March 29, 2006

Former FISA Judges Discuss the NSA Wiretapping

Is the President's NSA wiretapping program unconstitutional, impeachable or at least censurable? The jury is still out on that, as the details are still being investigated (though that hasn't stopped Sen. Russ Feingold from acting from a position of ignorance). The main thrust of the argument is that the Foreign Intelligence Surveillance Court had jurisdiction, and that going around them via executive order was illegal.

Speaking of that jury, it recently asked some guys who would know.

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 creaated by executive order a wiretapping program conducted by the National Security Agency (NSA).

UPDATE: As has been pointed out to me, not all the judges specifically stated that Bush was within his constitutional rights. The other judges did not specifically speak to this.

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.

"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."

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.

Judge Kornblum said before the 1978 FISA law, foreign surveillance was done by executive order and the law itself was altered by the orders of Presidents Ford, Carter and Reagan.

But isn't the FISA law good enough that the President shouldn't have to end-run around it?
It has been three months since President Bush said publicly that the NSA was listening to phone conversations between suspected terrorists abroad and domestically. 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.

So five judges, including one of those who wrote the FISA Act, say that Bush was well within his rights to do what he did, and that the only caveat is the very sensible question of whether the other two branches of government thought it to be in the interests of national security. At this point, we do know that Congressional leaders were briefed on this, with only small concerns about constitutionality being expressed. Given this new testimony, it sounds like those concerns are groundless, so there's little left. We know from the initial Times report that at least one attempt on the Brooklyn Bridge was thwarted, and there may be more that was done but is currently classified, so the national security question is on its way to being answered. Critics are having all their legs knocked out from under them.

Posted by Doug at March 29, 2006 04:24 PM

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Tracked on March 30, 2006 08:37 AM


No matter one's political viewpoint, it is hard to get around the fact that this was an extremely aggressive position for the President to take. Was it akin to Lincoln's suspension of the writ of habeus corpus or Roosevelt's rounding up of certain American citizens and putting them in nice little camps? No. But just because the President has inherent authority to do something does not mean that it was a good idea to actually do that something, or to do it that way he did it.

Posted by: PDS at March 30, 2006 10:23 AM

The President might be forgiven a little aggression considering this was started just days after 9/11 and they'd gotten fresh intel from a terrorist's laptop. Temper that with Congressional review, internal reviews every 45 days, and even suspension of the program for a time due to legal concerns, and I don't really see this as being "extremely" aggressive.

Considering how much flack Bush received for not connecting the dots to figure out 9/11 was going to happen, what do you think would've been the backlash if another terrorist disaster had hit just a few weeks or months later and he hadn't been aggressive about this intel? He would have, rightly, been pilloried for it.

Posted by: Doug Payton at March 30, 2006 10:40 AM

No doubt about it, and we have the luxury of this debate because there have been no other 9/11 events. I would have preferred that he seek a declaratory judgment from the FISA court, even after he began the program we are discussing, to insulate himself from the recklessness claims he is now facing. This is easy enough to do, and if he had been ruled against by the FISA court, then he could have sought to have the law changed, which, given that the Patriot Act was just passed overwhelmingly, does not seem like it would have been all that hard to do.

Posted by: PDS at March 30, 2006 11:10 AM

Doug writes: So five judges, including one of those who wrote the FISA Act, say that Bush was well within his rights to do what he did, ...

As explained today on Glenn Greenwald's blog Unclaimed Territory, this is bollux. The Washington Times, in this case, is full of it.

All five judges took great pains to say explicitly they were not testifying about whether Bush was violating the FISA law with his so-called "Terrorist Surveillance Program" and the Times simply reported the opposite. In fact, it doesn't take much effort‚ as shown in the article I linked above, to see that all five judges implied they do not agree that the President has the power to conduct wiretaps of American citizens without judicial or legislative oversight.

Now, here's Doug— once again— repeating right-wing misinformation unquestioningly. Why has Stones Cry Out become nothing more than a conduit for GOP talking points?

Posted by: s9 at March 30, 2006 01:09 PM

You overstate your case. There are quotes from the transcript that back up the Washington Times' view of it, just as there are quotes, taken in isolation, that would tend to back up the NY Times take. If you read some of the conservative blogs linked from Greenwald, you'll see quotes that include Judge Kornblum saying that no President has ever (ever!) agreed to the idea that Congress can legislate away his constitutional powers, which is one of the things this hinges on. The portion of the WT article quoted above has another line backing this up.

In fact, the WT article also notes that the judges unanimously believed that FISA should be updated to deal with new technology, giving their general backing to it. That's far more balance than the NYT article, which ignores Kornblum's substantive quotes entirely and spends more time on Judge Robertson, who didn't attend but left a letter that was generally critical.

So we have two short articles summarizing a lot of testimony. The Washington Times shows some of both sides, supportive and critical of the program, and the New York Times article only shows one side. And you are prepared to accept the NYT at face value and hand-wave away the WT account as "right-wing misinformation". Sounds like, in your mind, any information supportive of the President is by definition misinformation. No fariness and balance from you, eh?

And (again) there was oversight, by Congressional leaders. The judges were giving their opinions that it ought to be judicial oversight instead. This still doesn't speak to the legality of the program, which Kornblum specifically covered and which the NYT conveniently ignored. I'll agree that saying all 5 didn't specifically say that was an overstatement on my part, but it was said, and that is news, especially to Sen. Feingold. And apparently to you and anyone who just gets their news from the New York Times.

Talking points indeed. Which paper is only giving one side of the story? That's where you'll find your talking points.

Posted by: Doug Payton at March 30, 2006 03:21 PM

The fact remains, Doug— the Washinton Times reporting was blatantly and obviously false in the one important respect I called you out for repeating: asserting that the five judges testified that President Bush did not violate the FISA statute.

Why should anyone be surprised that you cannot bring yourself to issue a correction to this misinformation, even after it is brought to your attention? You have offered no additional support for the proposition, because it is simply, factually wrong.

If you have any integrity, you will post a correction to the front page. Do you have any integrity, Doug?

Posted by: s9 at March 31, 2006 11:12 PM

Done, and on the front page. Judge Kornblum, while not speaking specifically to this particular program, in general he said that Bush did have a general constitutional right to create such a program. But not all five did. The Washington Times overstated the case, though the case itself was indeed made.

The more substantial point is that one judge did note that the constitution supports Bush and the NY Times ignored this, presenting instead the impression that all the judges gave Bush no legs at all to stand on. That is patently false. That they did this with an omission is no less a breach of fairness and balance.

The WT noted an important point that was made, but left the impression that more than the one person made it. All the information was presented but some of it was given slightly too much weight. The NYT ignored the point. The information was not presented at all. That's more of a problem. But you strain at a gnat while letting the swarm have its way.

Posted by: Doug Payton at April 1, 2006 10:27 PM