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Posted by on Mar 29, 2006 in At TMV | 5 comments

FISA Judges on Warrantless Wiretaps

The Senate Judiciary Committee heard testimony Tuesday from five former judges on the Foreign Intelligence Surveillance (FISA) court; the judges urged Congress to impose oversight on the president’s secret and controversial warrantless wiretap program. The New York Times has the only report I’ve found so far on this (it is a big news day, after all), but it’s a decent one.

Four of the judges were on Capitol Hill testifying in support of Senator Specter’s plan to grant the FISA court explicit oversight responsibilities for the wiretap programs; the fifth judge, who resigned in December after the program’s existence was revealed, submitted a letter which was read into the record.

As the Times reports, Judge Harold Baker told the Committee “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.'” For more than three hours, Baker and his counterparts “discussed in detail their views on the standards of proof required by the court, its relations with the Justice Department, and the constitutional, balance-of-power issues at the heart of the debate over the NSA program.”

The letter from judge James Robertson expressed support for granting oversight to the FISA court, but he said he favored not a blanket approval of the warrantless program as Mr. Specter has proposed, but a case-by-case review of wiretap applications after a certain period of time. “Seeking judicial approval for government activities that implicate constitutional protections is, of course, the American way,” Robertson wrote in his letter to the committee, adding later his belief that the FISA judges are suited well to handle the sensitive information the wiretap situations require: “Its judges are independent, appropriately cleared, experienced in intelligence matters, and have a perfect security record.”

As I’ve written in the past, I don’t favor a blanket approval of warrantless wiretaps, nor do I support giving the Administration a blank check for 45 or 90 days before a court reviews the evidence in support of wiretapping. The Administration’s justifications for not following FISA – the problems they’ve indicated exist should be solvable without a major rejiggering of the oversight apparatus as laid out in FISA. Sure, some streamlining may need to be done, but I continue to see no compelling evidence that end-running FISA is necessarily the best way to get the job done.

[Note: Posted originally at Charging RINO. Also, to complement Joe’s great post on the detainee case at the Court yesterday, I highly recommend Dahlia Lithwick’s “Supreme Court Dispatch” at Slate, titled “Because I Say So.” I’ve posted some additional comments on that case and the Administration’s arguments in it here if you’re interested.]

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