Gibson falsely claimed that FISA court judges said Bush "didn't break any law" in authorizing warrantless domestic surveillance
SUMMARY: 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.
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.
First of all, the article in the Washington Times has NOT been debunked on the Unclaimed Territory blog. That is is a outlandish lie.
Here is direct testimony:
Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's 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?
Judge Kornblum: No President has ever agreed to that. ***
Senator Feinstein: What do you think as a Judge?
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 proper authority.
Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?
Judge Baker: No, I do not believe that a President would say that.
Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?
Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too.
***
Senator Feinstein: Judge?
Judge Stafford: Everyone is bound by the law, but I do not 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.
***
Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?
[No response.]
Chairman Specter: Everybody agrees with that.
Clearly, the majority opinion is that Congress passed an unconstitutional law and/or Bush has either inherent or necessary and proper authority to authorize warrantless surveillance.
I notice MMFA did link to the full testimony anywhere. I guess you didn't want anyone to pick out the good stuff.
I would like to read them. If you would please provide a link that would be very helpful. Thanks!
together alot of the testimony since you have to pay to for it.
Here is the judges testimony here:
[link to talkleft.com]
The video was here, not sure if it is available anymore
[link to www.c-span.org]
The progressive guy's testimony is here: [link to judiciary.senate.gov]
If you go to the MMFA link to the Unlimited Territory Blog some posters have some other information available. I don't post there just read it. I of course agree with none of their bloggers but they have alot of lawyers on both sides fighting it out that makes interesting reading (but you can only take lawyerspeak so long).
From Greenwald:
GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area.
Even Torture-Memo Al belives that the Congress has authority under the Constitution - not just the president.
Unclaimed Territory was right, and Powerline, as usual, is blowing smoke. Those judges NEVER said Bush can stomp all over Congressional statutes just because he feels like it.
But, hey, you keep reading the Washington Times, owned by a cult leader. That'll inform you.
But you know what? THAT'S not even the relevant question...
I don't care what authority Bush claims; I HAVE INALIENABLE RIGHTS ENDOWED BY MY CREATOR!!!
Those rights are enumerated in, among other places, the first 10 amendments to the Constitution. Specifically, #4:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Why do you want to give up the rights that our forefathers fought and died for so easily? Has Bush got you so scared, cowering under your desk at the thought of anthrax, that you are willing to let him strip away your human dignity?
FISA was set up as a very, very easy test to show probable cause. It has denied wiretapping in only a small handfull of cases.
Why do you want to give that up? Why don't you care about your rights?
And why do you tolerate a president who broke the law?
I can understand the greedy inheritors of wealth who want Bush to protect them from a true meritocracy.
I can understand the cronies who want government handouts at the expense of our national interest.
I can even understand the con artists who pose as men of the cloth who want Bush to continue to divide the nation in a phony culture war.
They all have a STAKE in Bush's reign - it's deplorable, it's immoral, but it makes a twisted kind of sense.
But why you? What's in it for you? What do you gain by giving up your rights as a free person under the Constitution?
Why do you defend this?
Really, I want to know - why?
Why do you defend this?
Really, I want to know - why?
Fear.
you to know what is in it for me. Thank you for your concern.
Several points:
"FISA was set up as a very, very easy test to show probable cause. It has denied wiretapping in only a small handfull of cases."
FISA was so00 easy that the administration had to go to the FISA Court of Review because the judges didn't think the Patriot Act updated the law and the judges were tossing out warrants left and right. In a game where speed is of the essence, we couldn't even get our judges on the same page as the Congress.
This issue for me is that I believe FISA is unconstitutional if it encroaches too close to the executive branch's power. I am not alone as multiple number of FISA court judges have stated the same opinion. There are multiple case law decisions recognizing the president's inherent powers, there are no cases saying FISA can override those powers. I believe his powers are not unlimited, but in this specific narrow area, it is his job not a judge's job to spy on the most dangerous terrorists and their contacts in the U.S.
Let me ask you this: Since the FISA Court issues secret warrants, they could be tapping your phone line and monitoring your email right now and you would never know about it. So I don't see where you think anyone is losing any rights. The FISA secret courts took those away a long time ago.
I, too, am curious as to personal motives behind your support. Really. You've eloquently addressed why the Bush administration wants FISA limited, and how it dilutes presidential powers, etc., but why would a citizen want greater presidential powers over balanced Executive/Legislative?Judiciary powers? Does asking a rubber stamp judge at FISA for a warrant put our babies at risk? Really? Does requesting a warrant AFTER snooping has begun slow down the initial snooping? Really?
I am an old school Conservative, meaning I believe in laws above men. Funny how the party in power tends to be the one's attempting to break the most laws, which pits me squarely against the current administration. But the inherent conflict cleverly built into a three equal part government ensures a charismatic individual will not override the laws.
Many people seem to think that Bush's intentions are good, and he's a guy they'd like to have a beer with and all, but it seems like any issue that even slightly touches upon any Bill of Rights protections should be passed around all three branches and never, ever be bent in private by one guy.
As for protecting us from the bad people, we are a nation of "liberty or death," not "liberty unless some scary guys in a far away desert get in a lucky sucker punch and threaten to somehow, some way do it again, mwa ha ha, and then it's ok to limit some of my liberty, 'cause I'm really scared."
I do think the process of censure and impeachment should be carefully considered and thoroughly investigated, or we run the risk of going from hated and feared by the world, to a laughingstock who keeps electing bozos, then impeaching them, then electing another bozo, then impeaching, then...
In this case, consideration seems merited. But without investigation, how do you know? And why cheerlead a guy who seems to be throwing the whole process out of balance?
If the FISA Court approves a wiretap warrant, then it is Legal. Then there is a legal record. What Bush is doing is not only illegal, it is secretive. This is a big difference, no matter how you try to Spin it.
Speed is a non issue, since they can to the wiretap then get the warrant three days later.FISA denied ONLY six warrants from Bush in two years not as you put it tossing out warrants right and left, they MODIFIED warrants. Now they modified more warrants by FAR under Bush than the previous five presidents combined, that has me wondering why. I mean after 9/11 everyone is more security consious so exactly WHO is Bush wanting to wiretap that even the normally docile FISA judges are balking? I doubt those requests were for al Queda. Anyway you are blowing smoke again, anxious to give up your freedoms and appoint Bush as a God-King
[link to seattlepi.nwsource.com]
The judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection in the court's history.
Now as to your inherent authority nonsense AGAIN, no they havent everytime you bring up the same silly court ruling I or one of the other people here blow it out of the water, it simply DOESNT say what you WISH it said. IF the president has INHERENT, invisible magical powers UNWRITTEN by what IS WRITTEN in the Constitution what stops him from claiming magical invisible powers to disband congress and declare himself Pharoah?
Your tripe is tired, it doesnt pass muster.
... he considered "necessary" and "proper" as well. But, guess what? The president doesn't get to decide if that test has been met. Even "necessary and proper" has to be weighed as to whether it applies, in particular circumstances.
Bottom line: the "necessary and proper" clause DOES give some cover to a president's actions, but only upon REVIEW ... by OTHER authorities.
Then there's the question of whether the President is correctly depicting what he says he's doing. For example, the President may CLAIM that he can wiretap without warrant, IF it's a member of Al Qaeda. The courts might even agree. But then, the president has to SHOW that he has ONLY wiretapped members of Al Qaeda, and nobody else.
There's no getting around it: We do not have a monarchy, where the KING proclaims, and nobody can question him. Even "exceptions" to normal procedure must be subjected to review ... and the possibility that the situation is NOT as the president claimed, and therefore is NEITHER "necessary", nor "proper".
"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."
[link to commonsensewonder.com]
Get that? ULTIMATELY, he will HAVE TO ANSWER. What he CLAIMS will have to be both CORRECT and in the interests of national security.
Now, let's think about some OTHER claims this President has made about National Security. Is he a truthful man? Did Saddam have those WMDs? Nope. So, is Bush ONLY wiretapping Al Qaeda? Odds are, he's lying about that claim.
Congress passed the FISA at its own peril should the Supreme Court rule it unconstitutional.
And I see you left out the paragraph that came before yours:
"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 FISA Court never had a chance to refuse a warrant.
Because I havent heard him say that. Congress gets to pass laws IF they are unconstitutional its incumbent upon the President to take it to the SC and get it declared unconstitutional. At this point FISA says it is the ONLY way to get wiretaps for foriegn intelligence, outside a few exceptions which all apply to no American citizens being wiretapped Bush thinks he is above the law. Leatherhelmet thinks so too and hopes that wishing will make it so. I am doubtful.
You keep quoting these judges saying Bush has the "power" to overrule law, can sign an "executive order" and get something done ... but you for some reason keep ignoring that WHATEVER the President does he will ULTIMATELY have to ANSWER FOR.
The thing that separates our form of government from a totalitarian regime is that our government servants, INCLUDING THE PRESIDENT, cannot operate as dictators. There are checks and balances, and there are LAWS and oversight. The president can be questioned in his EVERY ACTION, as to whether it was legal, constitutional, and/or proper.
Thus far, Bush has avoided that scrutiny by virtue of one-party rule which is loath to question the executive of their own party; The GOP has NOT been performing their duty to THE PEOPLE, instead opting for providing partisan cover for any and all acts by this president.
Ellington asked earlier, and the question is a serious one. WHY is it that you prefer to live under tyranny, where your voice as a citizen matters nothing, and the Executive should be able to do whatever he pleases without question, investigation, or scrutiny? What you approve is simply TYRANNY, and thus you're OK with relinquishing your freedom in order to be dominated. It is nothing LESS.
So, explain to us WHY you think FREEDOM and OPEN GOVERNMENT does not work, and America like you should opt for TYRANNY instead? If you explain it, maybe you'll get some converts.
If you start by saying you are AFRAID, and being scared you wish for an all-powerful paternal DADDY in the White House to protect you, and in return you will give up all your rights ... that won't cut it. That will only paint you as a gutless lackey who doesn't DESERVE the sacrifices so many have made in order to bring FREEDOM to America.
Or you might claim that a President cannot possibly follow the LAW, and still protect us. If so, make that case ... history won't help you.
So, what is it?
“I'm the commander,” Bush bragged. “See -- I do not need to explain why I say things...Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation...”
Or why he does things, obviously.
Supposing, without conceding, that the President has unbridled authority to tap into any conversation in which an al q' suspect is involved (and without getting into what makes them a suspect, in view of how wrong we've been in identifying folks at Guantanamo and in Iraq): when an NSA guy violates FISA, thereby committing a felony, does Presidential authority to order anything absolve the felony, absent a pardon?
I keep remembering Bush telling us all these searches were with warrants, and wondering whether that was another lie, or another stupid blunder made in the ignorance generated by his handlers, when they, not he, had ordered felonious searches ...
This issue for me is that I believe FISA is unconstitutional if it encroaches too close to the executive branch's power. I'm not alone as multiple number of FISA court judges have stated the same opinion.
Naturally, any law or application of a law that would encroach on constitutional authority of the executive brach would be unconstitutional. So naturally, were an application of FISA found to encroach, then that application of FISA would be unconstitutional. However, no such determination has ever been made.
Don't confuse facially unconstitutional with unconstitutional in application. The FISA judges seemed to be speaking more to the latter in their testimony. They were also speaking hypothetically, not with reference to any specific application.
There are multiple case law decisions recognizing the president's inherent powers, there are no cases saying FISA can override those powers.
True, but not revealing. No one argues that the president doesn't have inherent powers to conduct surveillance; however, the scope of the president's inherent powers are moot.
In United States v. Nicholson, the court rejected all challenged to FISA by the claimant, including that FISA was a violation of the separation of powers. Of course, that does not rule out that other appplications of FISA could be found unconsitutional. However, it does refute the idea that FISA is facially unconstitutional.
In In re Sealed Case, the court of review did opine that the president does have certain inherent powers to conduct surveillance. The question in that case, however, was whether FISA constituted a legal warrant. The court found in the affirmative.
In addressing the apparent contradiction of the opinion, attorneys from the Congressional Review Service posited that either:
1) The court was referrring to inherent authority to conduct surveillance activities "which were intentionally excluded from FISA when it was encated."
2) The court was referring to the "excercise of inherent presidential authority within the FISA structure."
I.e., the president may indeed have inherent power outside the scope of FISA. However, FISA is not viewed as restrictive on those powers, but an expansion of presidential powers. Surveillance that falls under FISA, must follow its provisions.
I believe his powers are not unlimited, but in this specific narrow area, it is his job not a judge's job to spy on the most dangerous terrorists and their contacts in the U.S.
It's never a judges job to execute any warrant. However, it is the judges responsbility to review the specifics of a situation, and, if probable cause exists, to issue a warrant. There has yet to be a post-FISA case establishing a situation in which the executive can legally circumvent FISA in a situation which falls within the scope of FISA.
Let me ask you this: Since the FISA Court issues secret warrants, they could be tapping your phone line and monitoring your email right now and you would never know about it. So I don't see where you think anyone is losing any rights. The FISA secret courts took those away a long time ago.
Actually, the same largely applies to wiretap warrants issued by other courts as well; i.e., you likely still wouldn't know about it. However, FISA provides some extra security to safeguard confidential information effecting national security.
Sure, crooked judges anywhere could undo the purpose of warrants. But it's still better than placing that power in the hands of one branch of government.
something tells me I will be waiting a long time for Leatherhelmet's response...
Superb summary. Well written.
And I reiterate regarding the necessity of that review being by judges, not a few committee members in the legislature whose only remedy under the proposed FISA amendments to what is already too expansive a law has been conceded candidly to be exercising the power of the budget to limit the searches in the future. Some review, with the chair person of each committee controlling what reaches the floor and with Frist and Company in control of what reaches a vote.
A well-reasoned, civil debate of vital issues - no name calling, no vitrol, no vituperation. Differences of opinion, of course, but polite. Everyone listened to everyone else and argued the facts as they saw them.
My sincere congrats to all of you - this is the way it ought to be!!!
To help you guys out, the liberal blog TalkLeft claims to have posted full transcripts based on the ones they bought. They are in PDF form. Obviously some could claim that, since it's a biased website, the editors could have edited but I doubt it, it's a rather non-biased post simply asking for readers to read for themselves and make a judgement.
Haven't read them myself yet, so I'll just post the link and let you guys decide for yourselves.
Hope this helps!
[link to talkleft.com] [link to talkleft.com] [link to talkleft.com] [link to talkleft.com] [link to talkleft.com] [link to talkleft.com]
[link to talkleft.com] Here you can look at PDF's of the transcripts, and make your own interpretation from there. I will note its from a liberal blog so I suppose some may argue that they could have edited out what they didn't want, but I doubt it given the style of writing and the "take it as it is" writing style of the post.
Hope this helps.