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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, March 30, 2006

What the FISA judges really said

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By Anonymous Liberal

(updated below)
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Yesterday the Washington Times published an article with the headline: "FISA judges say Bush within law." The article, by Brian DeBose, reported:

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).

Bush's defenders wasted no time jumping to the conclusion that Bush had been vindicated and all this talk of FISA and illegality was utter nonsense. One small problem: the article is complete and utter rubbish. Even some of Bush's chief apologists sensed something was amiss; a New York Times article by Eric Lichtblau provided an entirely different account of the hearing.

Five former judges on the nation's most secretive court, including one who resigned in apparent protest over President Bush's domestic eavesdropping, urged Congress on Tuesday to give the court a formal role in overseeing the surveillance program.

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.

But both Hinderaker and Goldstein were pretty sure that the transcript, which neither of them had read, would vindicate DeBose and embarrass Lichtblau.

I've now read through the transcript, and not surprisingly, it's clear that Lichtblau was awake during the hearing and DeBose was, well, very confused.

He's not the only one, though. Hindrocket now claims to have read through the transcript as well and has cranked out a post entitled "Verdict: The New York Times Blew the Story." He claims that the New York Times "badly misled its readers" and that the Washington Times story "was fair, but arguably overstated."

Okay, let's review the facts. The transcript of the hearing--which is very long--is only available via subscription, so you're going to have to take my word for now. A total of five judges testified in person, and one submitted written testimony. All of the judges made it crystal clear that they had no intention of opining on the legality of the NSA program ("we will not be testifying today with regard to the present program implemented by President Bush"). The judges were there to testify about FISA and about the merits of Sen. Specter's proposed legislation to amend FISA.

The bulk of the testimony by the judges was in praise of FISA and in praise of Specter's proposed bill (which is clearly why Specter called them to testify in the first place). Although the judges were careful not to opine about the NSA program specifically, it was clear from their testimony that they believe further Congressional authorization is necessary and desirable and that the judiciary has an important and indispensable role to play in overseeing domestic surveillance.

Their agenda, to the extent they had one, was to lobby for the continued relevance of the FISA court. If the DeWine bill passes, the FISA court will be utterly marginalized. These judges realize that some sort of legislation is likely to be passed, and they'd undoubtedly prefer something along the lines of Specter's bill, which would at least require the court to approve surveillance on a program-wide level.

I can assure you, though, that at no point did any of the judges come anywhere close to saying that the president "did not act illegally" or that he acted "within the law" when he authorized the NSA warrantless surveillance program. So the Washington Times story is complete rubbish. It could not possibly be more misleading.

As for Lichtblau's article, the line that seems to have provoked the strongest reaction from the right-wing blogs is his statement 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." John Hinderaker says that this sentence "is simply wrong" and that he "can't find a single line in more than 100 pages of transcript that supports Lichtblau's reporting." Steven Spruiell of the NRO Media Blog echoes this sentiment: "the transcript I read indicates that the exact opposite is true."

Well, maybe I can help them out. Though the judges were very diplomatic in their choice of words, there is still plenty of support for Lichtblau's statement in the transcript. For instance, Judge Robertson's written testimony (which Specter read aloud) states: "Seeking judicial approval for government activities that implicate constitutional guarantees is, of course, the American way."

Judge Brotman said:

FISA has worked and worked well. It is a necessary court and its orders reflect the balance to which I have made reference. It has no ax to grind, this court. Judicial review provides confidence to the citizens of our country to know that a court has looked on what is being sought. Times change. Methodology changes. Equipment changes.

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

Judge Stafford said:

As I approach my 75th birthday, it remains my belief that our nation is really held together by a couple pieces of paper -- the Declaration of Independence and the Constitution -- and the belief of the American people that our system of government works. FISA was created by Congress to clarify that the president had the authority to conduct foreign intelligence surveillance, but that the president would do so through a court composed of judges who had been nominated for lifetime appointments by a president and confirmed by the Senate as provided in Article III of the Constitution. This arrangement seems to have worked well for everyone.

The testimony of Magistrate Judge Allan Kornblum, whom Hinderaker and DeBose quote extensively, was a bit hard to follow, but even he said some things that support Lichtblau's assertion:

The presidential authority that is being used today is being used unilaterally. I think all of the judges agree with me that when the president operates unilaterally, his power is at its lowest ebb, as has been mentioned in judicial decisions.

This is, of course, the holding of Youngstown and a principle which Hinderaker has refused to acknowledge as being relevant to this issue. Kornblum explains further:

But when Congress passes a law, such as one authorizing the surveillance program targeting communications networks -- when the Congress does that and the judiciary has a role in overseeing it, well then the executive branch's authority is at its maximum. What that means is they can do things, I believe, under an amended FISA statute that they cannot do now.

This is as clear a statement as any that the president cannot simply do whatever he feels is necessary, regardless of what the law says. Earlier in his testimony, Kornblum observed:

I also want to emphasize that the real success of the FISA statute is that it's proven indisputably that intelligence and counterintelligence activities are fully
enhanced by the rule of law and, in fact, are fully compatible with the rule of law.

And:

I would also reiterate that the president doesn't have a carte blanche, that the courts are the arm of government that determines what the president's constitutional authority is.

One last thing before I go. In reading through the transcript, I noticed that Sen. Specter opened the proceedings by telling the panel:

Before you begin your testimony, it is our practice to swear in witnesses, so I'd ask you all to rise.

So now it's the committee's practice, huh? Funny how things change.

UPDATE (by Glenn): As I point out in my Comment here, the claims by The Washington Times, predictably parroted by Powerline and company, are based on several transparent myths that one can believe only if one has a complete lack of understanding as to how our system of government works.

Intellectually bankrupt Bush apologists have long been propagating the myth that once it's established that the President would have a certain power in the absence of a Congressional statute (such as the power to engage in warrantless eavesdropping for foreign intelligence purposes), then it necessarily means that the power can never be limited by Congress. But our entire system of government -- and the entire point of Youngstown -- is that a President may have the right to act in a certain area in the absence of a Congressional statute, but once Congress regulates in that area, then the President can't exercise that power in a way that violates the law.

Anyone who says: "the President has the right to do X under the Constitution and therefore Congress can never regulate it" just has no idea how our system of Government works.

No need to take my word for it. Attorney General Alberto Gonzales even explained these basic precepts -- slowly enough so that they should be understood by everyone -- when he testified before the Judiciary Committee:

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.

Let's repeat what Gonzales said for those unwilling or -- in the case of Powerline -- unable to process it: "the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area."

That's 8th Grade civics. The three branches of Government share responsibility for the functions of Government. So the fact that the President can engage in surveillance to defend the Nation doesn't mean that Congress can't regulate how that power is used against American citizens on American soil. FISA was in place and adhered to by every Presidential Administration - Carter, Reagan, Bush 41, Clinton. Nobody ever suggested it was unconstitutional -- including the Bush Administration -- until they got caught violating it and needed an excuse.

Moreover, these judges who testified made as clear as they could make it that they were not there to testify as to the legality of the NSA program. Anyone who thinks they did does not understand how the judiciary works.

Judges don't run around freely opining on legal disputes. And these judges weren't purporting to do that, as they made clear. What they did instead was what judges do in these circumstances - spout general propositions of law which, in this case, as A.L. demonstrated, support the conclusion that the President does not have the right to violate the law.

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