FISA JUDGES SAY BUSH WITHIN THE LAW (Why Has the MSM Ignored This Story?)

The Washington Times ^ | 03/29/06 | Brian DeBose

[MikeA]

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).

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.

The panel of judges unanimously agreed that the law should have been changed before now to deal with new threats from terrorists and new communications technologies, a point made by Sen. Dianne Feinstein, California Democrat.

"It is confusing that if you take something off of a satellite it is legal, but if you take it off of a wiretap it's not," she said. "We need to include new technology."

[jazusamo]

In other words, the five FISA judges said the President did what was best for the country and the Dems try to crucify him. Nothing new about that.

[Liberty Valance]

"Hey Dems, impeach this!"

Perfect.

[RexBeach]

Great post, Mike!

This will probably be the only place it will be seen.

The Democrats are such whining maggots. I wouldn't trust them with a three-minute egg? How about you?

[Cboldt]

One of my concerns is bad guys getting off because of a violation of the 4th amendment.

I'm sure that the defense attorneys will use that reasoning, as they should, but I just don't see it going anywhere post-Patriot Act.

Probably true that most of the "interesting" discussion is academic, in that enough evidence and probable cause will exist independently from any "outside the 4th" material.

But absent a fact pattern and legal justification for surveillance, there is no way to reach a reasoned opinion - and that's pretty much where the situation lies. All the conclusions relating to how and why a court would rule on the NSA Terrorist Surveillance Program are based on guesswork and assumptions.

I don't think the Patriot Act has much, if anything to do with it - FWIW. I think that post 9/11, the government is more likely able to impose on the individual, with the Court, being part of the government, upholding the legitimacy of the incursion. It's for our own good, after all.

[God luvs America]

where the ef is the criminal lame-stream-media on this one?????

[Barringer]

I'm not convinced - read the quote: "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,"

President Bush didn't have applications refused. I think the reporter may be interpreting the remarks of the former FISA judge too broadly...

[jigsaw]

Another one I wouldn't have heard if it weren't for FreeRepublic.

That could be FreeRepublic's motto.

[Mo1]

Schummer is now on the Senate floor presenting a bill about the wiretapping

He says he's doing it so that the wiretapping case will get to the USSC faster

[harpu]

oops...sounds like the dimbulb's may need a little ice for this one!

[MikeA]

I'm sure that the defense attorneys will use that reasoning, as they should, but I just don't see it going anywhere post-Patriot Act.

---

Plus, it is really tough to build an argument of the wiretapping being an "unreasonable" search or seizure when you're receiving phone calls from known Al Qaeda agents abroad. To me that falls well within the bounds of a probable cause argument.

[CyberAnt]

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


This is the KEY. The democrats in congress want to USURP the power and authority of the President. They will take power any way they can get it.

I wonder what Specter will do now that former FISA people have said that the President has the authority to spy on foreign callers who are known or suspected to be terrorists.

[johnny7]

Great post!

But c'mon Mike... you know this won't make the cut of the MSM commissars!

[SE Mom]

I'm waiting to hear if this gets ANY coverage at all my the MSM in a significant way. This story illustrates the expression "like a horse with blinders on"...

[Txsleuth]

Sen. Schumer was just up on the Senate floor proposing a resolution to "fast track" this to the SUPREME COURT...so we can get a ruling on the legality of Bush's actions quickly...

He had to do quite a pretzel twist to try to explain how there "could" be Americans with "standing" to bring this case...that their "rights" were abused by the NSA program that Bush used...

[Thud]

ping

[RobbyS]

Beggingthe question about the constititionality of FISA.

[ShandaLear]

IMPEACH THE FISA COURT! /sarcasm

[used2BDem]

". . .FBI frog march the editors of the New York Slimes out of their offices for having revealed this top secret national security program. . ."

And I REALLY want the traitors who LEAKED it to the slimes in the first place.

[alice_in_bubbaland]

Thanks Mike! I wonder if this will be on the evening news tonight!

[MikeA]

"I think the reporter may be interpreting the remarks of the former FISA judge too broadly..."

---

But neither did these judges indicate in any way that the president is precluded by FISA laws or the constitution from doing what he did. To assume that in saying "I'm not convinced" is to read what's not there into what is. Indeed, I think those remarks you cite are specific to a particular scenario and are not being stated as the ONLY instance where warrants can be waived. That I think is borne out by what the judge then goes on to say...

"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."

Clearly this particular judge is applying his remarks to the president's actions outside of a court refusing a warrant. That is clear by what he states. He was not confining his remarks merely to the specific instance of their being a refusal by the courts. And timeliness continues to be a key issue. When a phone call is being intercepted going to a new source within the US, there is simply no time to apply for a warrant.