NSA / FISA follow-up: when narratives compete (UPDATED)
First, here’s John Hinderaker:
Yesterday, five former judges of the FISA court testified before the Senate Judiciary Committee on the National Security Agency’s international terrorist surveillance program. Some observers have alleged that the NSA program is illegal to the extent that it includes surveillance conducted without a FISA court order.
Here is how the Washington Times reported the judges’ testimony, in a story headlined “FISA Judges Say Bush Within Law”:
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.”
This is consistent with what we have written on the legality of the NSA program.
This is consistent, too, with what I have also argued all along; and it seems to side with the argument that Congress cannot legislate over Article II authority to a panel of secret judges. Or rather, they can—but the Constitution allows the President to ignore such legislation if it hinders his mandate to protect the country.
Here’s Hinderaker again:
Eric Lichtblau of the New York Times appears to have attended a different hearing. The Times’ story is headlined “Judges on Secretive Panel Speak Out on Spy Program.” Lichtblau reports:
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. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.
These reports can’t both be right. If what the Washington Times says is correct, the New York Times’ account is deeply misleading, if not outright false. As we noted here, Eric Lichtblau has a huge personal investment in the idea (wrong, I think) that the NSA program is “illegal.” Is Lichtblau’s commitment to that proposition causing him to report falsely on testimony that was given to a Senate committee? Or did the Washington Times go too far in characterizing the judges’ approval of the NSA program?
We are trying to track down a transcript of the judges’ testimony, which no doubt will answer these questions.
One thing about Lichtblau’s accounting of events that gives me pause is the suggestion that FISA judges suggested that criminal prosecutions growing out of wiretaps could be imperiled by the program—which I have argued seems to be the underlying objection certain dissenting judges have intimated in their criticism of the program. But the NSA is allowed to summarize their findings and give them to the FBI, who is then responsible for making sure due process is followed.
Thinking about this from the perspective of criminal justice, the dissenting judges seem to view the NSA program as an extension of law enforcement and not military—and so they conclude that information obtained without a warrant would lead to a “fruit of the poisonous tree” dismissal in criminal cases. But what other possible reason would it be legal for the NSA to share summaries with the FBI if not to put them on the track of, in this case, suspected terrorists (assuming that a criminal prosecution is even what we’re after in such cases).
In any event, the two accounts differ drastically, so I, too, would like to see the transcript made available. In the meantime, AJ Strata looks closely at the Times version and finds some interesting suggestions. Writes AJ:
It sounds like the Washington Times may be the more accurate representation since the NY Times [...] reporter made this interesting reference:
Judge Robertson made clear that he believed the FISA court should review the surveillance program. Ã¢â‚¬Å“Seeking judicial approval for government activities that implicate constitutional protections is, of course, the American way,Ã¢â‚¬Â he wrote.
But Judge Robertson argued that the court should not conduct a Ã¢â‚¬Å“general reviewÃ¢â‚¬Â of the surveillance operation, as Mr. Specter proposed. Instead, he said the court should rule on individual warrant applications for eavesdropping under the program lasting 45 or 90 days.
Emphasis mine. Even Judge Robertson, who was quoted in the original NY Times Leak article as having resigned in protest because the NSA was Ã¢â‚¬ËœtaintingÃ¢â‚¬â„¢ the FISA process, is clearly saying that the FIS Court should not review the program, but warrants for targets here in the US if they are deemed important leads. So what else is new? This is the way it works now, as the Washington Times reported.
There are 3 important stories about the NSA program that have grown out of all this controversy, Senator Feingold’s clammoring for “censure” notwithstanding (and notwithstanding that he himself was never briefed on the program; he just feels in his gut that there is something untoward about “spying” on “domestic” phone calls): 1) A highly-secretive program was leaked, after a year, by the NYT. We don’t know who the leaker is, as yet, but that person circumvented the procedures for “whistleblower” status, which wouldn’t apply here anyway, I don’t think; 2) because the actual details of the program and its targets remain secret (and scenarios positing wrongdoing strictly hypothetical), there is no way to say for certain whether the President broke the law—unless, of course, you are one of those who has been briefed, or you have an intricate knowledge of the program from a judicial standpoint; and 3) this whole affair has been an attempt by the Executive to reassert Article II wartime authority, and a competing urge by the Legislative branch to retain some degree of control over what are Constitutionally CinC decisions by outsourcing their “approval” to a secret court comprised of unelected officials.
I’m interested to see how this shakes out—and I realize this raises the hackles of a lot of civil iberties absolutists and partisans hoping to score points with allegations of Presidential wrongdoing in the run-up to an election—but thus far, I haven’t seen a thing to suggest that any laws have been broken. Instead, I’ve seen what I would describe as a turf war over who gets to decide the proper use of a military program during wartime when the program would seem, under growing encroachment, to be constrained by FISA legislation (which is itself of dubious constitutional stock, I’d argue).
See my previous posts here.
update: NRO’s Media Blog locates the transcript, which makes it clear that the NYT’s Lichtblau, well, let’s say he finessed his piece somewhat, and in the process misinformed his readers.
But of course, the truth is secondary to the support of the dominant narrative. After all, we need to be taught the important lesson in all this—and sometimes, inconvenient facts get in the way of that narrative.
But we can forgive this. Given that it’s for the greater good and all…