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."

[YaYa123]

GREAT Post, thanks MikeA!!!! AP's take on it is different, but Pete Yost wrote it.

"Today: March 29, 2006 at 8:46:10 PST

"Judges Back Court Review of Eavesdropping
By PETE YOST
ASSOCIATED PRESS

WASHINGTON (AP) -

Five federal judges gave a boost Tuesday to legislation that would bring court scrutiny to the Bush administration's domestic spying program.

At a Senate Judiciary Committee hearing chaired by Sen. Arlen Specter, R-Pa., the judges reacted favorably to his proposal that would require the secretive Foreign Intelligence Surveillance Court to conduct regular reviews of the four-year-old program.

The existence of the warrantless surveillance by the National Security Agency was revealed by The New York Times three months ago.

The judges stressed that they were not offering their views on the NSA operation, which they said they knew nothing about.

But they said the Foreign Intelligence Surveillance Court has operated capably for 28 years and is fully able to protect civil liberties and give the administration all the speed and flexibility it needs to execute the war on terror.

The administration contends the president has inherent war powers under the Constitution to order eavesdropping without warrants.

"I am very wary of inherent authority" claimed by presidents, testified U.S. Magistrate Judge Allan Kornblum. "It sounds very much like King George."

Before word of the warrantless surveillance leaked publicly, the Bush administration revealed it to just eight members of Congress and to the presiding judge on the surveillance court.

The hearing Tuesday focused on Specter's bill. A rival approach, drafted by Senate Judiciary Committee member Mike DeWine of Ohio and three other Republicans, would allow the government to conduct warrantless surveillance for up to 45 days before seeking court or congressional approval.

Senate Intelligence Committee Chairman Pat Roberts, R-Kan., expressed interest in handling legislation on the NSA effort. But the Senate Parliamentarian gave Specter jurisdiction over his bill and DeWine's.

Senate Judiciary Committee member Russ Feingold, D-Wis., has urged censure of the president for authorizing the warrantless surveillance.

Under it, the NSA can monitor international calls - when one party is inside the United States - without first getting court approval. The NSA has been conducting the surveillance when calls and e-mails are thought to involve al-Qaida.

The others testifying before Specter's panel were U.S. District Judges Harold Baker of Urbana, Ill.; Stanley Brotman of Camden, N.J.; John Keenan of the southern district of New York City; and William Stafford of Pensacola, Fla.

The careers of all five judges have been steeped in the work of the secret surveillance court.

In an interview about the program with The Associated Press last week, Specter said administration officials want to do "just as they please, for as long as they can get away with it. I think what is going on now without congressional intervention or judicial intervention is just plain wrong."

--

[MikeA]

According to this quote he's not out of the woods yet.


To me that's nothing more than a broad caveat, not any comment on actual jeopardy the president could be in.

Based on Gen. Michael Hayden the head of the NSA wiretap program's description of how suspects were targetted, there is no worry in my mind that the administration won't be able to justify the few warrantless taps that occured. Hayden described in pretty solid detail the cautions they took to ensure they were tapping bona fide Al Qaeda suspects and had every reason to believe the few people so tapped constituted threats. These remarks were made to the National Press Club. Read them and see for yourself. It's a fascinating talk. And Hayden really details the cautions taken and the reasons they felt they had probable cause. I think you cannot come away from his speech thinking that they were anything other than convinced that these taps were absolutely necessary and that there was no ill intent in seeking them. Intent is everything under the law. Gen Hayden's comments:

http://www.fas.org/irp/news/2006/01/hayden012306.html

[Cboldt]

I generally would prefer the use of the FISA court...but I see some problems that I don't think have been fully addressed just yet.

It's jurisdiction is limited to issuing of warrants according to a rigid formula. I am quite sure there is an area of executive action that is easily within the constitution, and outside of FISA, and in particular point to the 1802 as not including 1801(a)(4) actors in its scope.

if I take my investigation of a suspected terrorist to the court, and that court determines that my evidence does not meet with their approval...the suspect gets notified.

I checked that, and agree that it represents a risk. I don't now how big the risk is in practice. Note too, the notification takes place ONLY if surveillance has taken place - so the risk is an impediment to getting warrants in that 72 hour after the fact window. It isn't a blanket impediment.

I'll have to take a look at your FISA court postings.

http://www.freerepublic.com/focus/f-news/1578052/posts?page=37#37 <- FISA Genesis

[MikeA]

A couple points. First, what "action" is used to head off the attack? Arrest and incarceration?

---

That's just it, under a Congressional authorization of war any attempt to attack the US becomes a national security issue, not simply a criminal matter in civilian courts. Thus there are different legal standards at play. Additionally, an arrest can occur based on the wiretap, but it may not then be admissable in a court of law. Other evidence will be used to build the case such as perhaps bomb making materials, etc.

[tiredoflaundry]

Thanks for the ping Ali. I'll wait until it is ALL OVER THE MSM TONIGHT! /sarc.

[P-40]

It's jurisdiction is limited to issuing of warrants according to a rigid formula.

The "Inherent Powers" area seems to be the biggest headache as well as the various "War Powers" issues. I listened to all of the talk on 50 USC 413b, and of course 413aa and 413bb, and then *I* got a headache.

the notification takes place ONLY if surveillance has taken place

That issue seems to get muddy when you have a possible criminal investigation that you have done some surveillance for and you want to go to the FISA court for an intelligence investigation and the worry is that the court will turn down the intelligence angle but notify based on the criminal angle. Where is the aspirin...

[MikeA]

In an interview about the program with The Associated Press last week, Specter said administration officials want to do "just as they please, for as long as they can get away with it. I think what is going on now without congressional intervention or judicial intervention is just plain wrong."

---

Administration officials weren't "doing as they please." They were acting to protect the country Specter, you putz! They weren't out to get their jollies listening in to 2 housewives gossiping about the neighbors, talking about "Desperate Housewives," and commiserating about how "Johnny grows out of his clothes so quickly these days!" They were protecting the country against further attacks on our soil you a--hole! Resign at once if you think protecting the privacy of criminals and terrorists is more important than keeping me and my family alive you disease on the Senate!

[MarxSux]

The proper term to use when referring to "The Wall" is "The Gorelick Wall". Please check your style sheet.

[meema]

Thanks, Ali for the ping.
And thanks, MikeA for the post.
What I read before was the exact opposite of the truth! Much ado from Finestein...nothing about the FISA judges.

[MikeA]

Notice by the way that no where in that AP story are these judges' quotes about the president's wiretapping being legal and constitutional anywhere mentioned. We don't have a free press. We have a propaganda machine that is a wholly owned subsidiary of the Democratic party that is no different than the party line organs Pravada and Tass in the old USSR.

[FlipWilson]

But, but, Chuckie Shoomah and Howie Dean insist they have a plan to "eliminate" Bin Laden. You know, eliminate him by not wiretapping him, not saying mean things about him (that would just create more terrorists), not aggressively interrogating Bin Laden's associates (that would be acting like Nazis and torture as per Dick Turbin), and not taking military action to intervene on terrorist sponsoring states (Bush lied people died)!!! You know, the plan to eliminate him by going back to the Clinton standard of just ignoring him and pretending he doesn't exist. In furtherance of that, they will just pretend Bush has violated the law and impeach him. Voila, problem err, I mean Bin Laden eliminated!!!!

[P-40]

The proper term to use when referring to "The Wall" is "The Gorelick Wall".

My usual terms would violate the posting rules on profanity.

Search the 911 Commission Report (http://www.9-11commission.gov/report/911Report.pdf) using the search term "the wall" and see just how this concept affected intelligence gathering before 911.

[meema]

I hope you are getting the feeling that you are being ignored...

3-29-06

[Toidylop]

I think the House should impeach Feingold for his stupidity...

[Gumlegs]

Great article. Thanks for posting it.

[MikeA]

And of course retreating from Iraq and publishing "draw down timetables," that will finally get Bin Laden!!!

What a joke for Democrats to act like it is Congress' responsibility to run national security and that somehow an act by a bunch of Democratic hacks in the Senate will bring about the capture of killing of Bin Laden. Their "secret plan" if it's so amazingly effective is something they could present to the president now, the proper custodian of US security policy, or even present on the floor of the Senate. If it's so incredibly innovative surely the administration will take them up on it.

This is an astonishing bit of pandering by the Democrats that is shameless even by their standards! They are so desperate to win back power they'll even make pie in the sky promises about "if you put us back in control we'll get Bin Laden!" I hope Americans begin to wake up to the degree to which these Democrats have become slaves to their ridiculous powermongering.

[Barringer]

I'm new here...was that a back-handed PING?

[chaosagent]

Bookmarked

[arasina]

INTERESTING Ping

[PresidentFelon]

I have read several posts on many differnent threads where you have deconstructed posted information and then opined on the relevance of that information to the question of constitutional limitations on the Executive Branch.
I read your refutation of assetions made by Byron York about the nature of the Court of Review's rulings in the action known as "Sealed case".

You have postited, if I may encapsulate, that there is no way to judge the constituionality of the Presidents actions in regards to warrantless eavesdropping without knowing all the circumstances relevant to each action. This is not what you said but my take on your position. Is it accurate?

My problem with your analysis of the issue is that you give no benefit-of-the-doubt to the President. If this program is operated as has been described, with prior notification of appropriate congressional committee personnel, with a comprehensive review process that insures some congressional oversight, and with the acknowledgement by the Court of Review to the real limitations of the FISA law on Presidential authority, is'nt it real likely that, absent a far-left-of-center Supreme Court, this program is entirely lawful? And if not, how should Abraham Lincoln and FDR be judged considering their (mis?)use of Article 2?

I know this is a "hypothetical" but I would appreciate an answer.

Incidently, how can a President work with a congress that is both predisposed to limit the powers of the Executive Branch, and full of members that don't care about anything but damaging the President as much as possible?


Freegards,

PresidentFelon