Directly contradicting content of intelligence law, McCarthy falsely suggested FISA does not address wartime circumstances
SUMMARY: On CNN's Lou Dobbs Tonight, Andrew C. McCarthy, a senior fellow at the Foundation for the Defense of Democracies and a contributor to National Review, falsely suggested that FISA did not apply in wartime because due process "in wartime is not the same as" due process "the rest of the time." In direct contradiction to McCarthy's claim, FISA does, in fact, contain specific wartime provisions.
On the January 18 edition of CNN's Lou Dobbs Tonight, Andrew C. McCarthy, a senior fellow at the Foundation for the Defense of Democracies and a contributor to National Review, falsely suggested that the 1978 Foreign Intelligence Surveillance Act (FISA) did not apply in wartime because due process "in wartime is not the same as" due process "the rest of the time." In direct contradiction to McCarthy's claim, FISA does, in fact, contain specific wartime provisions. Revelations of President Bush's authorization of domestic surveillance by the National Security Agency (NSA) without the search warrants called for in FISA has drawn fire for what critics say is a circumvention of the law.
Discussing FISA's provisions, Dobbs questioned why the administration did not get a warrant to conduct domestic electronic surveillance as required by the statute. Dobbs described the need to get permission to conduct surveillance from the FISA court as "due process, as it seems to us laymen." McCarthy answered that due process is "actually, oddly enough, the process that is due," and said that "the process that's due in wartime is not the same as the process that's due the rest of the time. There's an awful lot of things that we can do in wartime that we can't do the rest the time." But McCarthy's statement ignores specific provisions in FISA for surveillance in wartime -- highly pertinent given that Dobbs had asked about obtaining warrants under that statute. FISA's specific grant of wartime authority to the president defines, in the electronic surveillance area, the "process which is due" in wartime, and limits McCarthy's more open-ended view.
Section 1811 of FISA, titled "Authorization during time of war," grants the president a 15-day window after a congressional declaration of war to conduct foreign intelligence electronic surveillance without a court order. As Media Matters for America explained, President Bush's 45-day authorization -- which he has said he has renewed more than 30 times since he first authorized the NSA program in 2002 -- did not meet the requirements of FISA's wartime provisions.
As Bruce Fein, a former associate deputy attorney general under President Reagan and a former Republican counsel during the Iran-Contra hearings, wrote in a December 28 Washington Times op-ed, Bush could not lean on a general authorization for war because that cannot override the specific limits imposed by the wartime provisions of FISA:
President Bush preposterously argues the Sept. 14, 2001, congressional resolution authorizing "all necessary and appropriate force against those nations, organizations or persons [the president] determines" were implicated in the September 11 attacks provided legal sanction for the indefinite NSA eavesdropping outside the aegis of FISA. But the FISA statute expressly limits emergency surveillances of citizens during wartime to 15 days, unless the president obtains congressional approval for an extension: "[T]he president, through the attorney general, may authorize electronic surveillance without a court order ... to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress."
A cardinal canon of statutory interpretation teaches that a specific statute like FISA trumps a general statute like the congressional war resolution. Neither the resolution's language nor legislative history even hints that Congress intended a repeal of FISA. Moreover, the White House has maintained Congress was not asked for a law authorizing the NSA eavesdropping because the legislature would have balked, not because the statute would have duplicated the war resolution.
From the January 18 edition of CNN's Lou Dobbs Tonight:
DOBBS: Joining me now, former federal prosecutor Andrew McCarthy, senior fellow at the Foundation for the Defense of Democracies. Andrew, good to have you here. In your judgment, obviously, you believe this is a legal approach?
McCARTHY: I think the approach of doing the surveillances is definitely legal. I think the lawsuits, as the White House says, are frivolous. The subject matter is now frivolous. I think it's perfectly appropriate for Americans to be concerned about domestic surveillance, but there is plenty of authority in its Constitutional authority in the president's portfolio under Article II.
DOBBS: Let me ask you this: Under FISA, they have the ability to spy on Americans with a warrant, to go before FISA court and simply get that permission -- due process, as it seems to us laymen, and those of us who are concerned about our rights in this country. Why not just do that?
McCARTHY: Well, you know, Lou, due process is really, actually, oddly enough, the process that's due. And the process that's due, in wartime, is not the same as the process that's due the rest of the time. There's an awful lot of things that we can do in wartime that we can't do the rest the time. We actually kill people on the battlefield, destroy homes, seize people.
Following McCarthy's logic, the president is authorized to kill people, destroy homes, and seize people, apparently even in the USA because the battle field is wherever they say it is.
By he way, the constitution designates the president as the commander in chief of the armed forces, not commander in chief of the country...wartime does NOT elevate him to supreme ruler of america.
Wouldn't the term "wartime" require a Declaration of War?
I find it quite interesting that Congress went out of its collective way to avoid a Declaration of War, tried to abrogate its obligations and responsibilities under the United States Constitution by granting the use of force authorization to the President (generating Rep. Barbara Lee's lonely objection) - and now the right wingnuts keep calling actions treason (that requires a Congressional Declaration of War, as well) and saying it's "wartime."
You should expect these kinds of “misstatements” from this guest. Lou should have done his homework and been able to quote the law (which would have taken about 10 minutes on the Internet). What did he do when McCarthy came out with this tripe? Nod his head?
With “Journalists” doing this kind of job it’s no wonder this country is in the shape we are; with the Executive branch breaking the law and ignoring the Constitution.
What next? When they tell Lou that a “war-time due process” has just eliminated the First Amendment and, “by the way Lou, you are going straight to jail”. I wonder if he will just nod and hold out his hands for the cuffs.
Section 1811 of FISA, titled "Authorization during time of war"
I love it!
The wording is right there, black and white. And this guy just LIED. Yes, LIED on national TV.
It is not remotely likely that he simply "overlooked" that section entirely. And if he DID, he's not a credible "expert" and shouldn't be talking about it on TV.
Furthermore, if due process can blithely be suspended just because a few far-Right whackos say we're engaged in a never-ending war against a nebulous enemy described by a single abstract noun ("terrorism"), then we as a nation are truly lost.
Due process should NEVER ever NEVER ever NEVER ever ever ever ever ever NEVER be suspended for ANY reason. Due process is one of the very cornerstones of our democracy. Why do Republicans hate America?
They's Stoopid
It frustrates me to no end to have these guys up there blithely saying, "Well, Bush is a wartime President, so this gives him special authority." There was no declaration of war, and there certainly should have been in the case of Iraq. Al-Quaeda is another matter since declarations of war are not neccessary to pursue a criminal enterprise, but even then there are certain...protocols to be observed. This administration seems hell-bent on supplanting our constitutional authority with their version of frontier justice. Suffice it to say that if this legacy continues into the next administration, they will be pushing back the liberties of honest citizens next in the name of security. I am just waiting for the arguement that the sections of FISA dealing with wartime surveillence don't apply because of the lack of a declaration of war, yet the flexibility needs to be given to the President to act as if there had been one.
I've been following this issue since the story broke, and no one's challenged the Administration to cite the exact statutes or Congressional mandates that the President believes explicitly gives him the authority he claims to have.
Perhaps if Georgie referred us to the appropriate legislation or statutes, then maybe we'd all make the same interpretations and come to the same conclusion . . . NAH!