Victoria Toensing & James Bamford Discuss FISA Surveillance on C-SPAN Now (1:00PM EST Rebroadcast)

Rebroadcast from this morning's Washington Journal: Victoria Toensing, Former Deputy Assistant Attorney General, 1984-88, & James Bamford, Author, “The Puzzle Palace”

all we need to know was in the WSJ editorial page this a.m.

"The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

http://www.opinionjournal.com/editorial/feature.html?id=110007703

I watched this discussion and victoria was right on the money. Her explanation was very similar to the one I heard on Fox this morning.....

An explanation I heard this morning on Fox was that the FISA was bypassed because FISA criteria may have been difficult to meet in instances where it could not be established that, for instance, all of the people on a captured terrorist's cell phone, were in fact, connected directly to a terrorist organization or terrorist plot. In other words, FISA would not approve wire tapping the terrorist contact, 'John Smith', if it could not be proven he was something more than just the terrorist's barber. Side stepping FISA and it's requirements allows the NSA to tap into any and all of the terrorist's 'contacts' on a confiscated cell phone.

Also, the explanation was given that the Presidential authority to do so without a warrent, is based, in part, by the gravity of the threat. After 9/11, the argument should be that the gravity of the threat gives Bush the authority and also, we are to notice that 'gravity of the threat' is not being used by the Dems in their 'argument' against.

I would add that she stated that a warrent through FISA would NOT cover cell phones, since there was no such thing as cell phones when FISA was enacted. She posed the question to Mr. Bamford....."What would you do in the instance where you were able to get hold of a terrorists cell phone with numbers in it, given FISA doesn't cover cell phones. Mr. Bamford couldn't and wouldn't answer....she repeatedly asked, and finally he answered by saying that it was no excuse because he himself would like to drive faster than the law allows, but must obey the laws. ? hello?

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