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       Wednesday, March 29, 2006

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Former FISA Judges Discuss the NSA Wiretapping

Is the President's NSA wiretapping program unconstitutional, impeachable or at least censurable? The jury is still out on that, as the details are still being investigated (though that hasn't stopped Sen. Russ Feingold from acting from a position of ignorance). The main thrust of the argument is that the Foreign Intelligence Surveillance Court had jurisdiction, and that going around them via executive order was illegal.

Speaking of that jury, it recently asked some guys who would know.
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 creaated 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."

The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.

Judge Kornblum said before the 1978 FISA law, foreign surveillance was done by executive order and the law itself was altered by the orders of Presidents Ford, Carter and Reagan.

But isn't the FISA law good enough that the President shouldn't have to end-run around it?
It has been three months since President Bush said publicly that the NSA was listening to phone conversations between suspected terrorists abroad and domestically. The actions raised concerns from Congress and civil liberties groups about domestic spying, but the judges said that given new threats from terrorists and new communications technologies, the FISA law should be changed to give the president more latitude.

So five judges, including one of those who wrote the FISA Act, say that Bush was well within his rights to do what he did, and that the only caveat is the very sensible question of whether the other two branches of government thought it to be in the interests of national security. At this point, we do know that Congressional leaders were briefed on this, with only small concerns about constitutionality being expressed. Given this new testimony, it sounds like those concerns are groundless, so there's little left. We know from the initial Times report that at least one attempt on the Brooklyn Bridge was thwarted, and there may be more that was done but is currently classified, so the national security question is on its way to being answered. Critics are having all their legs knocked out from under them.

Doug Payton blogs at Considerettes.



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posted by Doug at 2:27 PM  

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