Verdict: The New York Times Blew the Story On FISA Courts

[Annie]

Links at site.

http://powerlineblog.com/archives/013582.php

March 29, 2006
Someone's Misreporting This Story

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.

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.
Posted by John at 12:36 PM

 

[Stephanie]

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.
http://powerlineblog.com/archives/013584.php


I don't think I'd let my new puppy do his potty training on this paper.. Pathetic

 

[Nienna]

The Washington Times headlined its story, "FISA Judges Say Bush Within Law," and reported:

Can we all say "Duh"? :duh3:

 

[Nienna]

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.

I agree with this... but it would be very scary in certain hands.

 

[Annie]

dupe post-merging.