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."

[used2BDem]

Thanks for the ping! I am sure this will be on the front page of papers across the country and the lead story on the evening news.

Yes, I am delusional. . .

[Barringer]

This is getting coverage in the MSM. It's in the NYT and the AP, but the over-arching message is that the five judges are backing the legislation to increase scrutiny.

[Cboldt]

Begging the question about the constitutionality of FISA.

I agree. But that too can go either way in any given case - unconstitutional as too restrictive on executive power, or unconstitutional impingement on the 4th. Of those two, the latter is highly unlikely, given the genesis of FISA itself and the language therein. But my bigger point is there is no way to tell, outside of a fact patter that involves the surveillance and a prosecution that depends on said surveillance for evidence.

I'd like to see (and think we will) a bit more cooperation between the President and Congress on fighting terrorism. As it is, it seems each side (President and Congress) is goading the other.

[McGavin999]

Ah, yes, but he has gone to the heads of the intelligence committees on the incidents. That should more than take care of oversight.

[JennysCool]

(Why Has the MSM Ignored This Story?)

For the same reason they ignored the entirely successful conclusion of Operation Swarmer, after wetting their collective pants over it when it started.

You all DO remember Operation Swarmer, don't you? It was the one that completely disappeared from the MSM radar when it became apparent it would succeed -- contrary to their paranoia and bias.

[RobbyS]

I see the 4th as providing protections in case of criminal charges. But I take your point of the need for case law.

[Cboldt]

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.

I think that's a slam dunk winner. Or even getting calls from suspected (not known) terrorists (not just al Qaeda) abroad.

I suspect any issues will relate to "probable cause" as to how the government concluded (in the first place) that the "foreigner" (could be a US citizen overseas, in a global sense) is apt to engage in a conversation that represent a foreign intelligence interest. If it reached that conclusion in the first place based on secret surveillance, the case is a harder one to get past a judge. It resembles "precrime," where any and all surveillance is justified, based on the "successes" where surveillance is the only activity that creates the reasonable suspicion.

[P-40]

Probably true that most of the "interesting" discussion is academic

It sounds like much of the discussion will remain academic...unless someone in Congress really wants to tackle all of the Constitutional issues involved...and I can't see that happening.

I mention the Patriot Act because perhaps its biggest purpose was to tear down "The Wall" and all more sharing between the intelligence and law enforcement communities. With that sort of cooperation I think there will be more than enough evidence to satisfy any issues raised over the Fourth...or we had better hope so.

[Barringer]

It not clear. I think we'd have to go to the transcript to see whether Judge Kornblum's comment was connected to or independent of the qualifer "if a warrant is refused..."

I also think that given the judges disclaimer ("unfamiliar with the latest NSA program), for DeBose to state that the judges are saying Bush is within law is to read what's not there into what is.

The existing FISA laws allows for after the fact warrant applications. Although I think the time period should be extended...

[Txsleuth]

Congress...with BOTH parties...seem less inclined to work with President Bush the closer to the election it gets...

However, I do have to chuckle when I hear the Dem Senators bragging about how the Judiciary Bill is "great" because Specter and Bush agree with it...LOL

[MikeA]

Operation Swarmer? All I heard about that was the MSM carping that it hadn't resulted in any fighting or any dead terrorists and that it was just "political window-dressing." I actually heard that on a local news broadcast! And of course if it had resulted in massive fighting and lots of deaths, the same news media would be screaming about America's "heavy-handedness" and "alienating Iraqis."

[IrishMike]

Because it dose not advance the democrat / MSM cause.

Cause .... DESTROY BUSH



Andrew Card (Whitehouse office manager) resignation is 'bigger' because it's the 'colapse' of the Bush Administration ??????????

[malia]

bump

[Cboldt]

It sounds like much of the discussion will remain academic...unless someone in Congress really wants to tackle all of the Constitutional issues involved...and I can't see that happening.

It needn't be that way. Congress has lagged behind, just as it did when Clinton entered Aldrich Ames' house without a warrant.

I'm not hung up on having a statute, but the presence of FISA provides a significant measure of predictability to prosecutions. That's a good thing, in my book.

Have you seen my posts that describe the genesis of FISA?

[MikeA]

I suspect any issues will relate to "probable cause" as to how the government concluded (in the first place) that the "foreigner" (could be a US citizen overseas, in a global sense) is apt to engage in a conversation that represent a foreign intelligence interest. If it reached that conclusion in the first place based on secret surveillance, the case is a harder one to get past a judge. It resembles "precrime," where any and all surveillance is justified, based on the "successes" where surveillance is the only activity that creates the reasonable suspicion.

---

But keep in mind so far as we know and the argument by the administration has been made, the use of these warrantless wiretaps were for the purpose of heading off an attack, not to build a criminal case against anyone. I suppose we'll see if that holds up under scrutiny and whether any terror suspects currently in custody were arrested as a result of a wiretap. But so long as these wiretaps were used purely in a national security capacity, then I suppose all these other legal landmines are avoided.

[Rockitz]

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.

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

[MikeA]

I also think that given the judges disclaimer ("unfamiliar with the latest NSA program), for DeBose to state that the judges are saying Bush is within law is to read what's not there into what is.

---

I think the judge was referring to not being familiar with specific cases of wiretapping and why they occured. I think clearly they have been briefed on the nature of the program especially to enable them to testify before the committee. They do not need to know the specifics of the program to comment on its overall legality and constitutionality.

[P-40]

the presence of FISA provides a significant measure of predictability to prosecutions

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. Most notably, 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...and that might not be such a good thing. The 911 Commission Report goes into detail on the FISA application and the laptop...and it is a sad tale indeed.

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

[Cboldt]

But keep in mind so far as we know and the argument by the administration has been made, the use of these warrantless wiretaps were for the purpose of heading off an attack, not to build a criminal case against anyone.

A couple points. First, what "action" is used to head off the attack? Arrest and incarceration? Liquidation? So far, quite a few of the terrorists are in the court system - not saying they should be, but once there, the method of obaining evidence and probable cuase matters.

Second, beware the "ends justify the means" line of argument. Is anything okay, if it's for the purpose of heading off an attack?

But so long as these wiretaps were used purely in a national security capacity, then I suppose all these other legal landmines are avoided.

Instead of "national security," the law uses "foreign intelligence information." The President has total power relating to foreign intelligence. SCOTUS, in the Kieth case, had -really negative- comments about the Presindet justifying surveillance based on "national security."

[pissant]

LOL. There are scads of freepers wishing that FISA would have ruled otherwise. The intent to undermine GWB is full throttle here in FR land. I swear it sounds like the DU here at times now.