The NSA Blow Out

"Maquette de décor pour 'Labyrinth' " by Salvador Dali 1941, Private Collection, Spain

 

There was a remarkable difference between the Washington Times and Eric Lichtblau's New York Times reporting of the testimony given by five former Judges of the FISA court who testified before the Senate Judiciary Committee on the National Security Agency's international terrorist surveillance program.

Some would say that Eric Lichtblau's was even downright dishonest, having the promotion of his book on the subject of the "supposed illegality of the secret NSA terrorist surveillance program" on the agenda rather than reporting on facts. It is however always useful, if the agenda of the author and the newspaper he represents is one of the same.

Here is the Washington Times, headlined "FISA Judges Say Bush Within Law":

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).

Lichtblau @ NYT  headlines his article, "Judges on Secretive Panel Speak Out on Spy Program" and writes:

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.

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."

Well they cannot both be right. John Hinderaker took the trouble to review the entire 100 pages of transcript, and "conclude[s] that the Washington Times' characterization was fair, but arguably overstated; several of the judges said that they could not opine on the NSA program, since they didn't know its details. The New York Times, however, badly misled its readers. Here are the exchanges where the judges talked about the President's constitutional authority to order warrantless surveillance":

Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary. *** The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans. ***

Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's 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?

Judge Kornblum: No President has ever agreed to that. ***

Senator Feinstein: What do you think as a Judge?

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 proper authority.

Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?

Judge Baker: No, I do not believe that a President would say that.

Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?

Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too. ***

Senator Feinstein: Judge?

Judge Stafford: Everyone is bound by the law, but I do not 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. ***

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that."

Whilst the issue has not been settled, it is obvious that the Judges were not there to testify as to the legality of the NSA, however some made clear that in their opinion, President Bush's arguments are valid and most probably correct. Lichtblau's blatant misrepresentation of the Judges' summary of arguments to be "voic[ing] skepticism about the President's constitutional authority" is simply incorrect, and sheds rather bad light on him as an author of his forthcoming book on the same subject, and a journalist for a major newspaper.

Glenn Greenwald who is also writing a book on the subject, and his army of bloggers do the usual Jeff Goldstein, John Hinderaker, and anyone at hand from the NRO bashing, with the President always thrown in to boot, obviously disagree, quoting from the transcript everything that relates to the Judges' opinion on what they were invited by Chairman Specter to do, comment on the proposed bill, and underlining the below as proof of their disapproval, like:

"Processes change. All these things can be and should be accommodated with the FISA Court"

Well in my language "can be and should be" is not the same as "is", and if the process was in place why would it need to "change"? And that was just one sentence.

One of his commenters looses it in the comments section:

"Our entire system of government - and the entire point of Youngstown -- is that a President can have the right to act in a certain area in the absence of a Congressional statute, but once Congress regulates in that area, the President can't violate"

How many FISA judge experts is it going to take before you admit you are dead wrong on this issue?

That's now at least a half dozen that have told you that the Youngstown case does not mean what you keep claiming.

And you accuse Bush supporters of being a cult, when you are blinded by partisanship.

Gary Gross points us to the spread of this 'misrepresentation virus' reaching AP's journalist Pete Yost, who headlined his article "Judges Back Court Review of Eavesdropping". Eh?:

In addition to the precedents for the NSA intercept program, I’ve made the argument that the President has certain enumerated duties as spelled out in the Constitution.

To then say that he doesn’t have the authority to carry out those duties is absurd. If [they] are right, the President would need Congressional approval to do what the Constitution mandates him to do.

Let’s flip that on its head, then, shall we? If that logic is right, then Congress doesn’t have the Constitutional authority to do what the Constitution mandates without the approval and permission of the Executive branch.

To further illustrate my point, legislation can’t usurp the President’s ability to do what the Constitution mandates any more than an executive order can usurp Congress’ authority to do what the Constitution mandates Congress to do.

My point is this: If the Legislative Branch has Constitutional authority to do what the Constitution mandates it to do, then the Executive Branch has the Constitutional authority to do what the Constitution mandates the Executive Branch to do.

In any event, it’s obvious that what the AP wrote doesn’t remotely resemble what the judges testified to. Shame on them for that.

Scott Johnson @ Powerline:

Following Senator Dubin's questions, Senator Hatch then pursued a series of hypothetical questions that he posed to Judge Kornblum regarding the admissibility in criminal trials of evidence obtained indirectly from the NSA surveillance program:

Judge Kornblum: To be admissible, the evidence would have had to have been lawfully seized or lawfully obtained and the standard that the district judge would use is that, depending upon where this is, is the law in his circuit. In most of the circuits, the law is clear that the President has the authority to do warrantless surveillance if it is to collect foreign intelligence and it is targeting foreign powers or agents.  If the facts support that, then the district judge could make that finding and admit the evidence, just as they did in Truong-Humphrey.

(Emphasis added.)  Judge Kornblum's reference to Truong-Humphrey is to the federal appellate cases that acknowledge president's inherent authority to order warrantless foreign intelligence surveillance, previously discussed by John here. 

In short, I don't think that the judges can fairly be described as having voiced skepticism regarding the president's constitutional authority to order the NSA surveillance program. Having reviewed the transcript of their testimony, however, I am voicing skepticism that Eric Lichtlbau and the New York Times are reporting on matters related to the NSA program in good faith.

One of the most important quotes however is the statement from Judge Kornblum, who was involved in drafting the original FISA:

"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. I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute."

Ahem.

More @ JustOneMinute, Protein Wsdom, California Conservative, The Heretik, Stop Te ACLU, Right Winged News, Confederate Yankee, Riehl World View, Kesher Talk, Flopping Aces The Strata-Sphere, ACSBlog, Macsmind, The Washington Monthly, Wizbang, The Strata-Sphere (2),  Daily Kos, Iowa Voice  The Huffington Post, Middle Earth Journal, Dean's World, The American Thinker 

Comments

[Stefan]

I suppose that if this is a dead story before everyone’s book comes out it might not be so good for sales. Tragic. I’m sure there will still be a built in audience of loonies but these books will be like reading out of date Sports Illustrated magazines at the dentists office to the general public.

[epaminondas]

Now THIS is just precious ..."Having reviewed the transcript of their testimony, however, I am voicing skepticism that Eric Lichtlbau and the New York Times are reporting on matters related to the NSA program in good faith."

I envision this said with a straight face and and a Ten & Ten martini, Ella Fitzgerald and Louis Armstrong playing in the background. Now I would have to do a spit take, but I'm betting, Alexandra you could deliver the line with aplomb.

Keller et al have driven a paper so great I couldn't wait to read it on sunday mornings from 1966 on to a state so low that headlines over the Battleship Maine sinking in Havana Harbor mark pristine truth in reporting. My complete disgust is so great I refuse to pay money to read Modo (whose viciousness is matched by her humor) and Friedman (whose occasional insight is noteworthy) and am glad I don't have to be tempted to click for Safire anymore. My disgust with them is JEYE- NORMOUS