What the FISA Judges Really Said

(Cross-posted at Unclaimed Territory)

Yesterday the Washington Times published an article with the headline: "FISA judges say Bush within law." The article, by Brian DeBose, 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).

Bush's defenders wasted no time jumping to the conclusion that Bush had been vindicated and all this talk of FISA and illegality was utter nonsense. One small problem: the article is complete and utter rubbish. Even some of Bush's chief apologists sensed something was amiss; a New York Times article by Eric Lichtblau provided an entirely different account of the hearing.

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.

But both Hinderaker and Goldstein were pretty sure that the transcript, which neither of them had read, would vindicate DeBose and embarrass Lichtblau.

I've now read through the transcript, and not surprisingly, it's clear that Lichtblau was awake during the hearing and DeBose was, well, very confused.

He's not the only one, though. Hindrocket now claims to have read through the transcript as well and has cranked out a post entitled "Verdict: The New York Times Blew the Story." He claims that the New York Times "badly misled its readers" and that the Washington Times story "was fair, but arguably overstated."

Okay, let's review the facts. The transcript of the hearing--which is very long--is only available via subscription, so you're going to have to take my word for now. A total of five judges testified in person, and one submitted written testimony. All of the judges made it crystal clear that they had no intention of opining on the legality of the NSA program ("we will not be testifying today with regard to the present program implemented by President Bush"). The judges were there to testify about FISA and about the merits of Sen. Specter's proposed legislation to amend FISA.

The bulk of the testimony by the judges was in praise of FISA and in praise of Specter's proposed bill (which is clearly why Specter called them to testify in the first place). Although the judges were careful not to opine about the NSA program specifically, it was clear from their testimony that they believe further Congressional authorization is necessary and desirable and that the judiciary has an important and indispensable role to play in overseeing domestic surveillance. Their agenda, to the extent they had one, was to lobby for the continued relevance of the FISA court. If the DeWine bill passes, the FISA court will be utterly marginalized. These judges realize that some sort of legislation is likely to be passed, and they'd undoubtedly prefer something along the lines of Specter's bill, which would at least require the court to approve surveillance on a program-wide level.

I can assure you, though, that at no point did any of the judges come anywhere close to saying that the president "did not act illegally" or that he acted "within the law" when he authorized the NSA warrantless surveillance program. So the Washington Times story is complete rubbish. It could not possibly be more misleading.

As for Lichtblau's article, the line that seems to have provoked the strongest reaction from the right-wing blogs is his statement that "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." John Hinderaker says that this sentence "is simply wrong" and that he "can't find a single line in more than 100 pages of transcript that supports Lichtblau's reporting." Steven Spruiell of the NRO Media Blog echoes this sentiment: "the transcript I read indicates that the exact opposite is true."

Well, maybe I can help them out. Though the judges were very diplomatic in their choice of words, there is still plenty of support for Lichtblau's statement in the transcript. For instance, Judge Robertson's written testimony (which Specter read aloud) states: "Seeking judicial approval for government activities that implicate constitutional guarantees is, of course, the American way."

Judge Brotman said:

FISA has worked and worked well. It is a
necessary court and its orders reflect the
balance to which I have made reference. It
has no ax to grind, this court. Judicial review
provides confidence to the citizens of our
country to know that a court has looked on
what is being sought. Times change.
Methodology changes. Equipment changes.
Processes change. All these things can be and
should be accommodated with the
FISA Court.

Judge Stafford said:

As I approach my 75th birthday, it remains
my belief that our nation is really held
together by a couple pieces of paper -- the
Declaration of Independence and the
Constitution -- and the belief of the American
people that our system of government works.
FISA was created by Congress to clarify that
the president had the authority to conduct
foreign intelligence surveillance, but that the
president would do so through a court
composed of judges who had been nominated
for lifetime appointments by a president and
confirmed by the Senate as provided in
Article III of the Constitution. This
arrangement seems to have worked well
for everyone.

The testimony of Magistrate Judge Allan Kornblum, whom Hinderaker and DeBose quote extensively, was a bit hard to follow, but even he said some things that support Lichtblau's assertion:

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.

This is, of course, the holding of Youngstown and a principle which Hinderaker has refused to acknowledge as being relevant to this issue. Kornblum explains further:

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.

This is as clear a statement as any that the president cannot simply do whatever he feels is necessary, regardless of what the law says. Earlier in his testimony, Kornblum observed:

I also want to emphasize that the real success
of the FISA statute is that it's proven
indisputably that intelligence and
counterintelligence activities are fully
enhanced by the rule of law and, in fact, are
fully compatible with the rule of law.

And:

I would also reiterate that the president doesn't
have a carte blanche, that the courts are the
arm of government that determines what the
president's constitutional authority is.

One last thing before I go. In reading through the transcript, I noticed that Sen. Specter opened the proceedings by telling the panel:

Before you begin your testimony, it is our
practice to swear in witnesses, so I'd ask you
all to rise.

So now it's the committee's practice, huh? Funny how things change.