Looks like the big story today has been the duel reporting between the Washington Times and the New York Times about the testimony of 5 FISA judges.
The NYT’s reports it like so:
Judges on Secretive Panel Speak Out on Spy Program
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.
While the Washington Times reports it like this:
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.”
WTF!
What is going on here? Were these two reporters at the same hearings or on alternative planes of existance?
Powerline thinks he has the answer:
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.”
I think he has hit the nail on the head. Recall that this reporter and this paper were the ones who illegally leaked a highly classified operation in the first place, all to get their names emblazoned across the foreheads of liberals everywhere. Lichtblau has a HUGE stake in this story and will spin this anyway he can to make himself come out smelling like roses.
Steve Spruiell at NRO located the transcript and compared Lichtblau’s summary with the transcript:
In the second paragraph of the story, Lichtblau wrote:
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.
The only reporting I can find in Lichtblau’s story to back up this assertion is contained in the next paragraph, where he writes:
Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until last year, said the president was bound by the law “like everyone else.” If a law like the Foreign Intelligence Surveillance Act is duly enacted by Congress and considered constitutional, Judge Baker said, “the president ignores it at the president’s peril.”
It only takes one look at the transcript to see how Lichtblau has changed the meaning of this quote by taking it out of context. At the time, Baker was on the receiving end of an aggressive line of questioning from Democrat Sen. Diane Feinstein. Here’s the relevant passage:
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.
I don’t mean ? my time is up, but this is an important point. If the president isn’t bound by it…
SPECTER: Excuse me. It was four and a half minutes ago. But pursue the line to finish this question, Senator Feinstein.
FEINSTEIN: I don’t understand how a president cannot be bound by a law.
(UNKNOWN): I could amend my answer to saying…
FEINSTEIN: But if he is, then the law is advisory, it seems to me.
(UNKNOWN):* No, if there’s an enactment, a statutory enactment, and it’s a constitutional enactment, the president ignores it at the president’s peril.
* Lichtblau attributes this quote to Harold Baker
Throughout the long line of questioning, each judge appears to support the argument that the president did not act illegally when he used his constitutional authority to order the NSA to eavesdrop on people in the United States receiving phone calls from suspected al-Qaeda terrorists. Baker merely stated the obvious ? that if the president had circumvented a statute without having the constitutional authority to do so, he would be doing so at his peril.
I wonder if Lichtblau can point to anything in the transcript that justifies his assertion 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.” Because the transcript I read indicates that the exact opposite is true.
Chalk this up to another liberal reporter telling a fairytale to get the President in trouble. There is no way in hell this will come out any other way other then the President has the authority under the constitution to protect this country. And listening to Al-Qaeda as they call into the US is just freakin common sense. The FISA court judge who resigned was upset because they looked at the issue through a law enforcement lense. This is NOT and never will be a law enforcement issue again, especially after Clinton treated this as such and look at the results. 9/11.
Other’s Blogging:
- The Strata-Sphere
- Blogs For Bush
- Sensible Mom
- Protein Wisdom
- Wizbang
- Don Surber
- Say Anything
- JustOneMinute
- Riehl World View
I think he has hit the nail on the head. Recall that this reporter and this paper were the ones who illegally leaked a highly classified operation in the first place, all to get their names emblazoned across the foreheads of liberals everywhere. Lichtblau has a HUGE stake in this story and will spin this anyway he can to make himself come out smelling like roses.

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well if someone kept records they can’t show them to the people who are asking. you think if there were records showing the nsa only listened to al-quaida for the last 4 years feingold would go this far? i don’t.
i’m not paranoid, i’m a realist. i’m not a kid nor an unemployed protester. i didn’t assume anything about your personal character or habits so please return that courtesy. i don’t hate america, don’t crave power, and have both the facts and the will of the american people on my side. i don’t predict elections (especially these days of sound-bite politics, news crawls, diebold, and fear) but i feel pretty confident going into these elections as a lefty. too bad it’s gonna take a trillion dollars and thousands more lives to end this charade.
the only fun left while waiting is watching republican after republican decide whether to go down with the ship or swim off to safety.
State – Yes, there are records kept. Believe me, coming from someone who has worked in Government, EVERYTHING is recorded. The cloak and dagger imagination you have is quite fanciful.
The FISA court is too slow, AND the activist judges on the court INSISTED any information gained from the NSA wiretaps not be used to get a warrant….so tell me how they were supposed to it?
And this statement my friend tells me all I want to know about you:
Your a paranoid loony moonbat. Your side will lose on this one, and lose big time. The American people respect Bush for keeping us safe and the smart Democrats realize this, thats why they are doing backflips to distance themselves from Feingold.
This current crop of cowardly power-hungry America hating Democrats will not get the House, nor the Senate. Believe me.
curt, there are no records kept, at least no requirement for records to be kept in the “terrorist surveillance program”. from what i’ve learned. no paper trail. that’s exactly what the FISA court was designed to be…. listen if you need to, even without paperwork, then you have 3 days to get the FISA court to sign off on it. designed and passed into law in the late 70’s for exactly this reason. 10 years too late to stop the FBI from making a fat file on every person of stature that didn’t support the vietnam war.
geez, the top secret court was already controversial enough when it comes to who are these judges are how are they checked… but for this current crop of KGB-admiring republicans FISA wasn’t enough. why not? ask anyone why they can’t use FISA 100% of the time and their answer is because of the paperwork. so don’t fill it out, don’t tell anyone, just spy. law and order must mean something else to neoconservatives.
remember the 2nd worst terrorist attack on US soil was done by one of your own — would you support president hillary listening in on right-wing organizations for the sake of protecting the country? perhaps, but would you support it without a court order? if someone posts on floppingaces that timothy mcveigh was a bad man but had a good point to make, should the NSA turn it’s attention to your blog and all it’s readers? easily track back their true identity and wiretap them 24/7? what if you do business in a foreign country? ahhh! you might be a terrorist.
this program and it’s defenders are denying about 80% of the facts. the message and the legal case being crafted is flawed otherwise there wouldn’t be so much noise about this on both sides of the aisle. you can act like this is coming from crazy democrats but it’s really coming from very old and very hesitant voices that know some dangerous precedents are being set and perhaps veru high crimes being committed. god forbid the senate actually attempt to make sure the president is not breaking the law on a mass scale.
if you are reading this… thank you to the filter 🙂
Despite the panel’s acknowlegment that President Bush was well within his legal right to create an executive order authorizing the NSA’s wiretapping program, liberals in the Senate still cling to the dream of using FISA to limit President Bush’s executive powers.
All Things Beautiful
The NSA Blow Out…
There was a remarkable difference between the Washington Times and Eric Lichtblau’s New York Times reporting of the testimony given by five former judges of the FISA court who testified before the Senate Judiciary Committee on the National Security Ag…