Wash. Times, Matthews guest falsely suggested courts have upheld warrantless domestic surveillance

On the January 5 edition of MSNBC's Hardball with Chris Matthews, University of Missouri-Kansas City law professor Kris Kobach misleadingly claimed that "four U.S. courts of appeals" have "recognized that the president has inherent power during wartime to monitor communications between our enemies" to baselessly assert the legality of the president's authorization of warrantless domestic surveillance by the National Security Agency (NSA). Similarly, a January 4 Washington Times editorial on "myths" of the war on terrorism falsely claimed: "Every court to address the wiretap issue and every president since and including Jimmy Carter, have agreed that a president has inherent constitutional authority to order wiretaps without a court order -- even the Foreign Intelligence Surveillance Court itself agrees -- but the myth has persisted in spite of it all." However, in a newly released report, the nonpartisan Congressional Research Service (CRS) said that no court has upheld such an assertion of presidential authority when it contradicts federal law -- the very authority President Bush claimed in his authorization of surveillance in apparent contradiction of the 1978 Foreign Intelligence Surveillance Act (FISA).

Kobach, who previously served as Attorney General John Ashcroft's personal counsel at the Justice Department, said that those who claim the president's authorization violated the law are "assuming that the president can only do this if he gets approval through the special intelligence surveillance court. The fact is that four U.S. courts of appeals have recognized --and the surveillance court itself -- have recognized that the president has inherent power during wartime to monitor communications between our enemies." When host Chris Matthews later asked if Kobach's "opinion here is based upon a legal reading by yourself or who?," Kobach responded that "A legal reading by myself of the cases that have addressed this issue."

But it is unclear when Kobach referred to "this" -- when he said, "assuming that the president can only do this" -- whether he meant "monitor[ing] communications between our enemies" or instead, what Bush is actually said to have done -- authorize warrantless spying on people in the United States. While various courts, in Kobach's words, may "have agreed that a president has inherent constitutional authority to order wiretaps without a court order," that statement does not address the legality of what the Bush administration reportedly did. What Bush has reportedly done -- and what courts have said nothing about -- is to authorize the surveillance of communications involving people in the United States without obtaining a warrant, in apparent violation of FISA.

In a January 5 report, the CRS said it found no court decisions that addressed the legality of that conduct. As the report stated:

Court cases evaluating the legality of warrantless wiretaps for foreign intelligence purposes provide some support for the assertion that the President possesses inherent authority to conduct such surveillance. The Court of Review, the only appellate court to have addressed the issue since the passage of FISA, "took for granted" that the President has inherent authority to conduct foreign intelligence electronic surveillance under his Article II powers, stating that, "assuming that was so, FISA could not encroach on that authority." However, much of the other lower courts' discussions of inherent presidential authority occurred prior to the enactment of FISA, and no court has ruled on the question of Congress's authority to regulate the collection of foreign intelligence information.

From the January 4 Washington Times editorial promoting a new book by former Wall Street Journal Europe editorial writer Richard Miniter (Disinformation: 22 Media Myths That Undermine the War on Terror; Regnery, 2005):

We recommend that our readers survey Mr. Miniter's edifying book; surely there is a need for clarity and myth-debunking in the public sphere over the war on terror. Anyone who doubts that errors are alive and well -- even proliferating -- should survey the confusion over President Bush's warrantless domestic wiretaps, which could fill a sequel to Mr. Miniter's book. Every court to address the wiretap issue and every president since and including Jimmy Carter have agreed that a president has inherent constitutional authority to order wiretaps without a court order -- even the Foreign Intelligence Surveillance Court itself agrees -- but the myth has persisted in spite of it all.

From the January 5 edition of MSNBC's Hardball with Chris Matthews:

MATTHEWS: Welcome back to Hardball. Is the president's NSA spying program legal? For answers to that question, we turn to Kris Kobach, who started working for John Ashcroft at the Justice Department just before 9-11 and stayed on after the terrorist attacks as a counsel.

Kris, what do you think after having worked there, about this decision by the president and this administration to begin surveilling emails, telephone calls, worldwide, to try to nail a connection to Al Qaeda?

KOBACH: Well one thing I think that's important that some people are missing in all of this is they're assuming that the president can only do this if he gets approval through the special intelligence surveillance court. The fact is that four U.S. courts of appeals have recognized -- and the surveillance court itself -- have recognized that the president has inherent power during wartime to monitor communications between our enemies, either enemy-to-enemy or --

MATTHEWS: What is -- we're in a situation now where the president and Condi Rice have declared this war on terrorism to be an ongoing, even generational struggle. In other words, as long as there's an Al Qaeda network somewhere in the world, we're at war, which is OK, that's the way we describe it. But does that give him the legal and constitutional authority to say, "I'm a commander-in-chief in a nation at war," does it?

KOBACH: Well, yes. If our troops are fighting a war somewhere, or if an argument can be made in court, a colorable argument that we are actually at war, then his commander-in-chief powers come into play.

MATTHEWS: Article II of the Constitution prevails.

KOBACH: Exactly, right.

MATTHEWS: In other words, he doesn't need the legislative authorization from 2001. He doesn't need that terrorism act, he doesn't need any of that stuff.

KOBACH: Well, he might need some of it.

MATTHEWS: By the way, your opinion here is based upon a legal reading by yourself or who?

KOBACH: A legal reading by myself of the cases that have addressed this issue. And there's a lot of cases that say the president has very broad Article II powers.