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...
"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.