John Gibson falsely claimed that, in hearings before the Senate Judiciary Committee, "FISA [Foreign Intelligence Surveillance Act] judges the other day sa[id] the president didn't break any law" in authorizing warrantless domestic surveillance.
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While discussing recent Senate Judiciary Committee hearings on a resolution to censure President Bush over his warrantless domestic spying program during the March 31 edition of Fox News' The Big Story, host John Gibson claimed that "FISA [Foreign Intelligence Surveillance Act] judges the other day sa[id] the president didn't break any law" in authorizing the warrantless surveillance. Gibson appeared to be echoing a March 29 Washington Times article that has been debunked on the weblog Unclaimed Territory. Contrary to The Washington Times' characterization, when a group of former FISA court judges testified before the Judiciary Committee on March 28, they "voiced skepticism" about "the president's constitutional authority to order wiretapping on Americans without a court order," The New York Times reported on March 29. Transcripts from the March 28 Judiciary Committee hearings -- cited by Unclaimed Territory -- support The New York Times' report, illustrating that while the former FISA court judges did not comment specifically on Bush's warrantless domestic spy program, some of their testimony appeared to question its legality.
Gibson cited the judges' testimony while discussing with Weekly Standard editor Bill Kristol the impact of recent testimony given by former Nixon White House counsel John Dean regarding Sen. Russ Feingold's (D-WI) resolution to censure President Bush. During the discussion, Gibson said he "couldn't help notice the FISA court judges the other day saying the president didn't break any law." He then asked Kristol, "How can this talk keep going when the president seems to have been cleared by the American people in the polls and also by FISA court judges?"
Gibson appears to have been relying on a March 29 Washington Times article by reporter Brian DeBose that claimed that in their testimony, the judges exonerated Bush of any illegality in authorizing the domestic spy program. From DeBose's article:
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).
DeBose's report was contradicted by a report on the same hearings by New York Times reporter Eric Lichtblau:
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 Lichtblau reported that "judges at the committee hearing avoided that politically charged issue despite persistent questioning from Democrats," he also pointed out that Judge Harold Baker, a federal judge in Illinois, testified that Bush is bound by the law "like anyone else."
Additionally, on March 30, a post on Unclaimed Territory noted the discrepancy between the DeBose and Lichtblau articles reporting on the former FISA court judges' March 28 testimony. Transcripts of the hearing cited on Unclaimed Territory support The New York Times' conclusions regarding the judges' testimony while belying The Washington Times' report.
For example, according to the transcripts cited on Unclaimed Territory, Judge Stanley Brotman of U.S. District Court of New Jersey said:
BROTMAN: [The FISA court] is a necessary court, and its orders reflect the balance to which I have made reference. ... 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.
Also, Magistrate Judge Allan Kornblum of the U.S. District Court for the Northern District of Florida testified that:
KORNBLUM: 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. ... 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.
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.
Finally, as noted above, while Gibson falsely claimed that the former FISA court judges said "the president didn't break any laws" in authorizing the warrantless domestic spy program, he appeared to base his conclusion on DeBose's report that "[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)." However, Gibson ignored DeBose's next paragraph, in which he appeared to contradict himself, reporting that "[t]he five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it."
From the March 31 edition of Fox News' The Big Story with John Gibson:
GIBSON: Bill [Kristol], I couldn't help notice the FISA court judges the other day saying the president didn't break any law. How can this talk keep going when the president seems to have been cleared by the American people in the polls and also by FISA court judges?
KRISTOL: It can keep going, John, because the Democrats and the left wing of the Democratic Party who are pushing this talk aren't being made to pay any price for it, and the Democratic Party as a whole isn't being made to repudiate the left wing of its party.