Amazing the exhoneration of Bush has gotten ZERO attention from the MSM, although I hear the treasonous New York Slimes tried to spin this testimony to somehow favor their anti-Bush line on wiretapping. These people are utterly shameless. And as always happens when they create a firestorm against a Republican, the lapdog news media has totally underplayed the mitigating testimony and information which undermines the overplayed initial story.
Well, now that we have that out of the way and Bush has been cleared of any cloud from this FISA wiretapping, we can now get on with the important business of having the FBI frog march the editors of the New York Slimes out of their offices for having revealed this top secret national security program all for the benefit of feeding their Bush hating psychosis.
This is a huge deal. The very author's of the fisa legislation agree the President did nothing illegal, and in fact was well within reason to carry out the wiretaps!
Expect huge coverage of this! (not). What's more, is expect idiot demonratic pundits to keep talking about "illegal wiretaps" for months to come!
Why has the MSM ignored this story?
What did Bush expect?
Excuse me, if I were him, I would call a press conference at the White House, have the FISA folks there and announce the thing.
Why wait or expect the MSM to do anything?????
If Bush is...hell will freeze over first.
pinging Senator Feingold, pinging Senator Feingold !
Doesn't make a bit of difference to those who post on DU and DailyKOS, which is the source of all things political to some Congresscritters. They will still move forward with IMPEACH PAC because they hate GWB and Cheney. That is all the reason they need - they are such morons. Let them try it. It will be the last turn at power for many a decade if they do, so enjoy your moment in the sun should you take the house in '06!!
Not exactly. The Washington Times and NYT versions of the hearings are being compared, and there is some amount of transcript accompanying the comparison.
It turns out the NYT makes a flat false assertion with its "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."
The Washington Times article has a couple different statements that don't reconcile perfectly, in general on the ultimate conclusion of whether or not THIS program passes constitutional muster. The judges didn't render an opinion on that point.
I think the Washington Times got it exactly right when it reported this:
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.
I've found the following excerpts from the hearing transcript, and each is accompanied by analysis of the respective blog operators: John Hinderaker, Scott Johnson, and Paul Mirengoff of Powerline; Stephen Spruiell of National Review Online; and Tom Maguire of justoneminute. I urge the reader to click through to their articles instead of just perusing the transcript excerpts that they have shared.
Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary. *** The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans. ***Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?
Judge Kornblum: No President has ever agreed to that. ***
Senator Feinstein: What do you think as a Judge?
Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.
Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?
Judge Baker: No, I do not believe that a President would say that.
Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?
Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too.
***
Senator Feinstein: Judge?
Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution.
***
Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?
[No response.]
Chairman Specter: Everybody agrees with that.
http://powerlineblog.com/archives/013584.php
Magistrate Judge Allan Kornblum: And I'll now just spend a few minutes talking about presidential authority. Again, I'm not talking about the president's program.Presidential authority to conduct wireless surveillance in the United States I believe exists, but it is not the president's job to determine what that authority is. It is the job of the judiciary. Just as the judiciary determines the extent of Congress' authority to legislate, so it determines the executive's authority to carry out his executive responsibilities.
The president's intelligence authorities come from three brief elements in Article II. The executive power is vested exclusively in the president. So is much of the responsibility as commander in chief, as well as his responsibility to conduct foreign affairs. All three are the underpinnings for the president's intelligence authorities.
Most of the authority I see referred to in the press calls it inherent authority. I'm very wary of inherent authority. It sounds like King George. It sounds like the kind of authority that comes to a head of a nation through international law.
As you know, in Article I, Section 8, Congress has enumerated powers, as well as the power to legislate all enactments necessary and proper to their specific authorities. And I believe that's what the president has: similar authority to take executive action necessary and proper to carry out his enumerated responsibilities, of which today we're only talking about surveillance of Americans.
Again, I emphasize that it's the judicial decisions that define the president's authority. These decisions predate the FISA statute. And I was reviewing the FBI and NSA applications for warrantless surveillance.
Those surveillances by law were transferred to the FISA court in 1978, and actually when it began in May of '79. However, the FISA statute has very specific definitions, and there are intelligence activities that fall outside the FISA statute. Those activities went forward and have continued to this day and are still being done under intelligence activities.
There were three orders: President Ford's order, 11905; President Carter's order, 12036; and the current order, 12333 (text here), which was issued by President Reagan in December of '81.
That order has been used by all of the presidents following President Reagan without change. And I was responsible for processing those applications that go to the attorney general based on a delegation of authority.
I've asked the staff to give you a copy of the current executive order, and that's the authority that is being used today to some extent.
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.
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.
For example, the president's program says that the president reviews it every 45 days. But I would think, if Congress authorized the program and the court oversaw it, that the surveillance programs could run for 90 days.
***
As you know, the Fourth Amendment bars unreasonable searches and seizures, and the term "unreasonable" is the overarching concept.
The substantive requirements of the Fourth Amendment are for probable cause and particularity. The standard of reasonableness applies to both substantive provisions. That is, what is probable cause and what is sufficient particularity are subject to the standard of reasonableness which the Supreme Court has indicated is subject to different standards; that is, the standards under the Fourth Amendment for criminal warrants, for arrest warrants may be different from those necessary for foreign intelligence collection, for counterintelligence investigations.
...The Supreme Court said that the Fourth Amendment was highly flexible and that the standard for criminal -- what they called ordinary crimes, what I would call traditional law enforcement, need not be the same as that for foreign intelligence collection and that different standards for different government purposes are compatible with the Fourth Amendment.
That decision served as the basis for the FISA statute.
http://justoneminute.typepad.com/main/2006/03/good_catch_at_p.html
FEINSTEIN: Thank you very much. Now, I want to clear something up. Judge Kornblum spoke about Congress' power to pass laws to allow the president to carry out domestic electronic surveillance. And we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority -- are those rules then binding on the president?[U.S. District Judge Allan] KORNBLUM: No president has ever agreed to that.
When the FISA statute was passed in 1978, it was not perfect harmony. The intelligence agencies were very reluctant to get involved in going to court. That reluctance changed over a short period of time, two or three years, when they realized they could do so much more than they'd ever done before without...FEINSTEIN: What do you think, as a judge?
KORNBLUM: I think -- as a magistrate judge, not a district judge -- that a president would be remiss in exercising his constitutional authority to say that, "I surrender all of my power to a statute." And, frankly, I doubt that Congress in a statute can take away the president's authority -- not his inherent authority but his necessary and -- I forget the constitutional -- his necessary and proper authority.
FEINSTEIN: I'd like to go down the line, if I could, Judge, please. Judge Baker?
[U.S. District Judge Harold] BAKER: Well, I'm going to pass to my colleagues, since I answered before. I don't believe a president would surrender his power, either.
FEINSTEIN: So you don't believe a president would be bound by the rules and regulations of a statute. Is that what you're saying?
BAKER: No, I don't believe that. A president...
FEINSTEIN: That's my question.
BAKER: No, I thought you were talking about the decision
FEINSTEIN: No, I'm talking about FISA and is a president bound by the rules and regulations of FISA?
BAKER: If it's held constitutional and it's passed, I suppose he is, like everyone else: He's under the law, too.
FEINSTEIN: Judge?
[U.S. District Judge Stanley] BROTMAN (?): I would feel the same way.
FEINSTEIN: Judge Keenan?
[U.S. District Judge John] KEENAN: Certainly the president is subject to the law. But by the same token, in emergency situations, as happened in the spring of 1861, if you remember -- and we all do -- President Lincoln suspended the writ of habeas corpus and got in a big argument with Chief Justice Taney, but the writ was suspended.
[N.B. Lincoln's actions were ruled unconstitutional in this regard, in the Milligan and Merryman cases]
KEENAN: And some of you probably have read the book late Chief Justice Rehnquist wrote, "All the Laws But One." Because in his inaugural speech -- not his inaugural speech, but his speech on July 4th, 1861, President Lincoln said, essentially, "Should we follow all the laws and have them all broken, because of one?"
FEINSTEIN: Judge?
(UNKNOWN) [probably U.S. District Judge William Stafford]: Senator, everyone is bound by the law, but I don't believe, with all due respect, that even an act of Congress can limit the president's power under the necessary and proper clause under the Constitution.
And it's hard for me to go further on the question that you pose, but I would think that (inaudible) power is defined in the Constitution, and while he's bound to obey the law, I don't believe that the law can change that.FEINSTEIN: So then you all believe that FISA is essentially advisory when it comes to the president.
(UNKNOWN): No.
FEINSTEIN: That's what you're saying.
I don't mean -- my time is up, but this is an important point. If the president isn't bound by it...SPECTER: Excuse me. It was four and a half minutes ago. But pursue the line to finish this question, Senator Feinstein.
FEINSTEIN: I don't understand how a president cannot be bound by a law.
(UNKNOWN): I could amend my answer to saying...
FEINSTEIN: But if he is, then the law is advisory, it seems to me.
(UNKNOWN):* No, if there's an enactment, a statutory enactment, and it's a constitutional enactment, the president ignores it at the president's peril.
* Lichtblau [NYT reporter] attributes this quote to Harold Baker
But we mustn't lose our perspective here. It is certainly not an exhonoration and we cannot conclude that our President has been "cleared of any cloud". It is sworn testimoney, but essentially it is the "opinion" of *former* judges .. it's not a court rulling.
I am confortable that Bush had the Presidential authority under our Constitution, but the law on this is a bit vague and subject to some interpretation. I think their last point was an excellent one .. we need to make this more clear, particularly with reference to new technology.
Bump