Judges on Secretive Panel Speak Out on Spy Program
WASHINGTON, March 28 — 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.
Skepticism? That's certainly not how the Washington Times described it, nor is it in keeping with the actual transcript of the proceeding which has now been made public:
FEINSTEIN: Thank you very much. Now, I want to clear something up. Judge Kornblum spoke about Congress' 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?
[U.S. District Judge Allan] KORNBLUM: No president has ever agreed to that.
When the FISA statute was passed in 1978, it was not perfect harmony. The intelligence agencies were very reluctant to get involved in going to court. That reluctance changed over a short period of time, two or three years, when they realized they could do so much more than they'd ever done before without...
FEINSTEIN: What do you think, as a 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 — I forget the constitutional — his necessary and proper authority.
FEINSTEIN: I'd like to go down the line, if I could, Judge, please. Judge Baker?
[U.S. District Judge Harold] BAKER: Well, I'm going to pass to my colleagues, since I answered before. I don't believe a president would surrender his power, either.
FEINSTEIN: So you don't believe a president would be bound by the rules and regulations of a statute. Is that what you're saying?
BAKER: No, I don't believe that. A president...
FEINSTEIN: That's my question.
BAKER: No, I thought you were talking about the decision…
FEINSTEIN: No, I'm talking about FISA and is a president bound by the rules and regulations of FISA?
BAKER: If it's held constitutional and it's passed, I suppose he is, like everyone else: He's under the law, too.
FEINSTEIN: Judge?
[U.S. District Judge Stanley] BROTMAN (?): I would feel the same way.
FEINSTEIN: Judge Keenan?
[U.S. District Judge John] KEENAN: Certainly the president is subject to the law. But by the same token, in emergency situations, as happened in the spring of 1861, if you remember — and we all do — President Lincoln suspended the writ of habeas corpus and got in a big argument with Chief Justice Taney, but the writ was suspended.
KEENAN: And some of you probably have read the book late Chief Justice Rehnquist wrote, "All the Laws But One." Because in his inaugural speech — not his inaugural speech, but his speech on July 4th, 1861, President Lincoln said, essentially, "Should we follow all the laws and have them all broken, because of one?"
FEINSTEIN: Judge?
(UNKNOWN) [probably U.S. District Judge William Stafford]: Senator, everyone is bound by the law, but I don't 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.
And it's hard for me to go further on the question that you pose, but I would think that (inaudible) power is defined in the Constitution, and while he's bound to obey the law, I don't believe that the law can change that.
FEINSTEIN: So then you all believe that FISA is essentially advisory when it comes to the president.
(UNKNOWN): No.
FEINSTEIN: That's what you're saying.
That doesn't sound like skepticism. To me, despite Senator Feinstein's constant interruptions, it sounds like the Judges are trying to convey the idea that the President has to follow statute except when that statute limits his ability to exercise his Constitutional powers.
The idea that the surveillance authorized under the NSA program is part of the President's inherent Article II war powers is something I've put forth for months now and is also something that has been upheld by a ruling from the 4th Circuit Court of Appeals.
Further, the first bolded statement from Kornblum above supports another argument I've put forth before: That FISA was never meant to be a limit on the President's war-time powers:
...the FISA act was an attempt to facilitate domestic intelligence gathering in times of peace by putting in place a judicial apparatus that would put at ease the minds of communication industry executives wary of too much government intrusion. I do not believe the law was created to limit the President's ability to gather intelligence during a time of war but rather to make it easier in times of peace, yet the former is how the statute is being cast today by the opportunist left and their cooperatives in the media.
Far from skepticism, these judges are making the President's case for him. Not that we can expect the New York Times to report something like that.