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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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  • fred

    kornblum also said:
    “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.”

    kinda making the point that el presidente has been making. if this ever gets to the supremes, who do you think will win? the constitution? i.e. el presidente, or some legislation? which by its nature is extra-constitutional by restricitng expressed powers. it would be interesting.

  • Glitch

    Hmmmm… methinks you should do a little more research before making judgements:


    or here

  • Pyst

    Oh hell we all know Bush will get his way on the wiretapping. The SC is no check on the president’s power grab.

  • Mike Heinz

    What power grab? If you actually read the transcripts, Feinstein kept trying to get the judges to say Bush was breaking the law and the closest she could get was to get one judge to say that *if* FISA was constitutional then he guessed Bush would be bound by it.

    Meanwhile, the other judges were saying they didn’t think Congress could pass a law that stripped Bush of his powers under the constitution…

  • BrianOfAtlanta

    Yes, once you read the transcript you realize that the NYT was both quoting out of context and grossly misrepresenting the facts when it reported that Judge Baker held the position that the president was bound by the law just like everyone else.

    This discussion with Feinstein was surprisingly a big win for the president. If the SCOTUS feels the same way as the current FISA judges do, then FISA is in big trouble.

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