Posted on 03/29/2006 6:50:45 PM PST by Boot Hill
Yesterday, five former judges of the Federal Intelligence Surveillance Court testified before the Senate Judiciary Committee on the subject of the amendments to FISA that have been proposed by Senator Arlen Specter. Earlier today, we noted a remarkable contrast in the reporting on the hearing by the Washington Times and the New York Times. The Washington Times headlined its story, "FISA Judges Say Bush Within Law," and reported:
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 New York Times headlined its article, "Judges on Secretive Panel Speak Out on Spy Program," and wrote:
Five former judges on the nation's most secretive court, including one who resigned in apparent protest over President Bush's domestic eavesdropping, urged Congress on Tuesday to give the court a formal role in overseeing the surveillance program.In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, 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.
We promised to obtain the transcript of the hearing and figure out who was right. The transcript is available here.
Having reviewed the transcript, I conclude that the Washington Times' characterization was fair, but arguably overstated. The New York Times, however, badly misled its readers. Here are the exchanges where the judges talked about the President's constitutional authority to order warrantless surveillance:
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.
New York Times reporter Eric Lichtblau has a considerable career investment (and, I suspect, an ideological investment as well) in the idea that the NSA program is illegal. It would seem that Lichtblau's preconceptions and biases prevented him from accurately reporting what happened in the Judiciary Committee hearing yesterday. His suggestion that the main thrust of the judges' testimony was to "voice skepticism about the president's constitutional authority" is simply wrong; in fact, I can't find a single line in more than 100 pages of transcript that supports Lichtblau's reporting. It's a sad thing when a once-respected newspaper can't be counted on for a straight account of a Congressional hearing.
Thanks for posting that. I had read Powerline earlier today and didn't go back to see if they had found the transcript. Nothing the NYT prints surprises me anymore.
The net of this:
"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."
The New York Times is not strong on credibility.
A strong contender for the Walter Durante NYT Award
bttt
Nearly all these Pols. are lawyers by training. They knew the answer all the time!!!! They also knew that if the CIC is a RAT, then we'd NEVER hear a peep about the Constitutionaliy of his actions or his sworn duty to protect the USA. Just a bunch slimey, writhing, POLITICANS!!! What disgusting pigs. (The NYT etal knew it all the time too.)
They are only telling their readers what they think they want to hear. I doubt that many real people (non elites, that is) bother with the Times any more.
I knew this was the case as soon as the Dems trotted out all the law school deans to say the opposite. Those were the same law school deans that got b#!@hslapped by the SCOTUS over the military recruiting case.
Okay now that the FISA court says the wiretapping was legal......now it's time to investigate some illegal activity. The disclosure of a TS program jeopardizing the security of the United States.
ping
This is an important key: "necessary and proper".
And .. since this is about FOREIGN SURVEILLANCE and not "domestic spying" as the dems have tried to make this out to be, I believe the "necessary and proper" fits the inherent authority the President has in order to protect the country.
Pinch blew the story.
It's not all the little gay publisher blew.
I hope this is e-mailed to Eric Clymer, er, Lichtblau. Just to let him know we know...
Everyone knows the NYTimes blows.
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