Good Catch At Powerline

John H at Powerline has caught either the NY Times or the Washington Times in fantasy land in their reporting on Arlen Specter's recent NSA hearing.

The NY Times, which broke the NSA story and is angling for some Pulitzer prizes, led keen observers such as Kevin Drum to suggest that some former FISA judges considered the NSA program to be illegal.  (Note - I reject the possibility that Kevin saw through the Times caveats but is playing to his readership, Times-style.) [Further note - I STRONGLY endorse the suggestion that Kevin Drum was just having some fun with this, especially since he made that suggestion to me himself.]

But over at the Washington Times, judges are quoted with a starkly different view:

    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).
    The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.
    "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 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.

The AP coverage does not resolve this, although they reiterate that the judges declined to venture an opinion on the specific NSA program.

Well, a hearing transcript is available at the Federal News Service.  I have inquired with them about pricing, but if a copy dropped in over the transom (or by email!), I would never tell.

UPDATE:  This is brutal - Stephen Spruiel of the NRO Media Blog has pored through the transcript and can't find support for the Lichtblau position assertion.

Powerline reaches a similar conclusion [with more here].

And I will run a different excerpt that reinforces the same point.  The witness is Magistrate Judge Allan Kornblum, who first got involved with these issues in the mid-70's.  In addition to his thoughts on Presidential power, Judge Kornblum was quite interesting on "probable cause" as it relates to foreign intelligence gathering, so I will put in an excerpt on that as well.  First, the constitutional question:

And I'll now just spend a few minutes talking about presidential authority.  Again, I'm not talking about the president's program.   

Presidential authority to conduct wireless surveillance in the United States I believe exists, but it is not the president's job to determine what that authority is.  It is the job of the judiciary. Just as the judiciary determines the extent of Congress' authority to legislate, so it determines the executive's authority to carry out his executive responsibilities.

The president's intelligence authorities come from three brief elements in Article II.  The executive power is vested exclusively in the president.  So is much of the responsibility as commander in chief, as well as his responsibility to conduct foreign affairs.  All three are the underpinnings for the president's intelligence authorities.

Most of the authority I see referred to in the press calls it inherent authority.  I'm very wary of inherent authority.  It sounds like King George.  It sounds like the kind of authority that comes to a head of a nation through international law.     

As you know, in Article I, Section 8, Congress has enumerated powers, as well as the power to legislate all enactments necessary and proper to their specific authorities.  And I believe that's what the president has:  similar authority to take executive action necessary and proper to carry out his enumerated responsibilities, of which today we're only talking about surveillance of Americans.

Again, I emphasize that it's the judicial decisions that define the president's authority.  These decisions predate the FISA statute. And I was reviewing the FBI and NSA applications for warrantless surveillance.   

Those surveillances by law were transferred to the FISA court in 1978, and actually when it began in May of '79.  However, the FISA statute has very specific definitions, and there are intelligence activities that fall outside the FISA statute.  Those activities went forward and have continued to this day and are still being done under the president's authority as set forth in the executive orders describing U.S. intelligence activities.        

There were three orders:  President Ford's order, 11905; President Carter's order, 12036; and the current order, 12333 (text here), which was issued by President Reagan in December of '81.

That order has been used by all of the presidents following President Reagan without change.  And I was responsible for processing those applications that go to the attorney general based on a delegation of authority.

I've asked the staff to give you a copy of the current executive order, and that's the authority that is being used today to some extent. 

The presidential authority that is being used today is being used unilaterally.  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.   

For example, the president's program says that the president reviews it every 45 days.  But I would think, if Congress authorized the program and the court oversaw it, that the surveillance programs could run for 90 days.

And on the meaning of probable cause:

As you know, the Fourth Amendment bars unreasonable searches and seizures, and the term "unreasonable" is the overarching concept.   
    
The substantive requirements of the Fourth Amendment are for probable cause and particularity.  The standard of reasonableness applies to both substantive provisions.  That is, what is probable cause and what is sufficient particularity are subject to the standard of reasonableness which the Supreme Court has indicated is subject to different standards; that is, the standards under the Fourth Amendment for criminal warrants, for arrest warrants may be different from those necessary for foreign intelligence collection, for counterintelligence investigations. 

...The Supreme Court said that the Fourth Amendment was highly flexible and that the standard for criminal -- what they called ordinary crimes, what I would call traditional law enforcement, need not be the same as that for foreign intelligence collection and that different standards for different government purposes are compatible with the Fourth Amendment.   
    
That decision served as the basis for the FISA statute.   

Comments

[clarice]

How much is the transcript?

[topsecretk9]

TM, here is Media Blog that has and links to the transcript with some good anaysis too

http://media.nationalreview.com/093732.asp

[topsecretk9]

link

[clarice]

Thanks again, ts--Good thing I didn't put my money on Lichtblau..LOL
UNBELIEVABLE!!

[topsecretk9]

Does it work though?

[clarice]

The link? Absolutely. He nailed the NYT.

[Jake - but not the one]

Clarice, no doubt we differ in our opinions as to the plain language of the 5 judges, but this, to me, is the money quote:

"(UNKNOWN):* No, if there's an enactment, a statutory enactment, and it's a constitutional enactment, the president ignores it at the president's peril."

Presumably this is Baker. To me this says, if FISA is constitutional, then Bush is wrong.

I know that many say Bush has the authority he needs to break the law, but I disagree.

At least it is clear that IF FISA is constitutional, Baker, and at least a couple of the other judges, think Bush has overstepped his bounds.

Clearly the judges were being careful, and because of that their words are subject to interpretation. Even so, I don't think anyone can charcterize this testimony as a ringing endorsement of Bush's position. Neither is it point blank refutation.

The thing is, the law is in fact, the law. Bush's claim of authority is no more a naked assertion supported only by the opinion of his hired legal shills.

None of whom *I* trust.

Jake

[clarice]

Jake, every single judge indicated that it is within the President's authority to ignore a statute which would attempt to limit his Constitutional authority.

Powerline also reviews the transcript,noting the Wash Times may have overstated the testimony but Lichtblau blew it, concluding:

[quote]New York Times reporter Eric Lichtblau has a considerable career investment (and, I suspect, an ideological investment as well) in the idea that the NSA program is illegal. It would seem that Lichtblau's preconceptions and biases prevented him from accurately reporting what happened in the Judiciary Committee hearing yesterday. His suggestion that the main thrust of the judges' testimony was to "voice skepticism about the president's constitutional authority" is simply wrong; in fact, I can't find a single line in more than 100 pages of transcript that supports Lichtblau's reporting. It's a sad thing when a once-respected newspaper can't be counted on for a straight account of a Congressional hearing[/quote] http://powerlineblog.com/

Clarice

[Gary Maxwell]

Nice job on the artful cut and paste there Jake. How about just a tod more of the transcript though?

OK I will give it to you:

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.

Ergo Baker made the only comment that could be remotely twisted to reflect a concern for the Presidents actions. The other judges did not and indicated by their silence that they all five agreed that FISA could not override the President's Constitutional granted powers.

This is so clear that the NYT must fire Lichtblau. He just made it up, and as badly as last guy they caught and fired. Blair I think is the name.

[topsecretk9]

Despite the history of reporters playing a form of scrabble with quotes and their incessant omission of context and not being all that familiar with ERIC LICHTBLAU in general, I wonder if much of this is not so much his fault but a NYT's Co. heavy investment in the story they perpped out in such an unseemly manner. The effort, clearly was to boost Risen's book with the added bonus of revealing our national classified secrets.

Risen's story was written in the most provocative way possible to pump his sales, not introduce advance a balanced view on the existence. Now that that approach obviously leaves the Times holding the attorney bill "keeping hope alive" is in their interest. So Eric may have no choice.

Anyways, the Times of late keeps getting it's ass handed on platter with all their story-line investments.

[topsecretk9]

Nice job on the artful cut and paste there Jake.

Despite the history of reporters playing a form of scrabble with quotes and their incessant omission of context

Jakey, say it isn't so?

[Specter]

Where are the rest of the J's...and AL on this? Can't believe they aren't all here telling us how wrong all of these judges are. I mean with all of their constitutional knowledge....

[Sue]

But Jake. The topic was did the NYTs get the story right? Not whether the judges gave a ringing endorsement to Bush. What say you? Did the NYTs get the story right?

[Jake - but not the one]

Everyone is bound by the law.

And statute can't abridge constituttional authority.

I agree with both statements.

But we (that is, all of you {is that an exaggeration?} and me) disagree on what IS and is NOT constitutional authority.

Like I said, we have naked assertion on one hand and an actual law on the other.

I go with the actual law.

Jake

[SteveMG]

Jake:
Bush's claim of authority is no more a naked assertion supported only by the opinion of his hired legal shills.

Question (a bit of a "gotcha" one but I don't think it's entirely unfair):

Are you at all concerned about the possibility of Congress having acted unconstitutionally by passing a law that improperly took away the President's authority as commander in chief?

It seems to me that if one is worried about our elected officials acting beyond their constitutionally given authority, one would also be worried about legislative acts that violated the Constitution.

Correct?

Or does this concern over the rule of law only apply to executive branch officials. And Republican ones at that?

Like I said, I'm being snarky here but there's a legitimate question you need to answer.

SMG

[clarice]

Is there a single thing in the quoted testimony that lends a shred of support to a claim that the constitutional claim by the President was erroneous? If so, I cannot see it.

[Jake - but not the one]

Sue, personally, I favor the NYT interpretation. But it doesn't make a hill of beans difference what I think. It comports with how I intend to vote, and how I intend to proselytize - to the extent I have any such intentions :).

Time will tell, I hope. Or not. Either a case makes it through the court system to a conslusion, or it doesn't. When and if it does, we will know. Until then, I disagree with you but respect your position vis a vis the administration's claims.

SMG, if the law IS unconstitutional, then it needs to be struck down. I have no problem with that.

Jake

[clarice]

Then Congress will have to do it, Jake, because I haven't the imagination to envision who would have an opportunity to raise the question of FISA's constitutionality in Court.

[Jake - but not the one]

Clarice, is there anything in the testimony ANYWHERE that unequivocally says the Pres has the right of it?

It's possible I missed something crucial in my intemperate and prejudiced reading.

Jake

[topsecretk9]

Sue, personally, I favor the NYT interpretation.

Well that's a fine how do you do. You'll sacrifice a true contextual account if it comports with your voting inclination? Well, excuse me if you just pimped your credibility.

[clarice]

As I read the interrogation, if the Judge's believed it was, it would have been appropriate for them to note it. At the most one said if he made this judgement in error he'd have to bear the consequences of a misjudgment.

Everyone else as I recall confined their answer to the point that a President is not bound to a statute which impedes on a President's constitutional powers.In context, I read that--fairly I think--as a statement about FISA and the President's war powers.

[Jake - but not the one]

Clarice, would it not be the natural outcome of the several cases now before various courts that as the issues crystalize over questions of constitutional interpretation, the SCOTUS will become the final arbiter?

Jake

[SteveMG]

SMG, if the law IS unconstitutional, then it needs to be struck down. I have no problem with that.

Hmm, okay.

You seem glum over this possibility.

Your level of anger over the possibility that Congress acted unconstitutional doesn't seem to approach your anger over the possibility that the President acted outside of the Constitution.

Both should concern us, correct?

Why so animated about Bush but half-hearted protests about Congress?

As I said, I'm being a bit snarky tonight.

SMG

[clarice]

Do you have a single case in mind where there is a shred of evidence that there was an improper use of the NSA surveillance material--that is where the info wasn't turned over to the FBI who obtained a warrant? I haven't sen a credible one, Jake. Nor has Congress apparently.

[Jake - but not the one]

TS, not to put too fine a point on it, you have made it clear that I have no credibility anyway. Not having any here has become the normal state of affairs, nyet?

It's still a matter of interpretation. Without actually hearing the words, the intonation, the pauses, the gestures accompanying speech and given the careful language used, I feel no need to adopt a position more in accord with yours. All of us who have posted for any length of time have been completely misinterpreted when our words alone carried our meaning. I am sure that judges in oral testimony suffer from the same fate when their words are transcribed into text alone.

Were I there, I would give you my own honest opinion, whether it supported my position or not. Failing that, I don't feel compelled to accept the word of anyone from the NRO as to the actual meaning of anything.

Jake

[Gary Maxwell]

Sue, personally, I favor the NYT interpretation

You are kidding

No really?

then something aobut naked assertions and I lost you

[cathyf]

Suppose Congress passed a law which said that black people could only vote between 7:00am and 7:05am on election day, and all of the local election workers in the US ignored it. They would obviously ignore the law at their peril -- IF it turned out to be constitutional THEN they would be in big trouble for letting blacks vote all day.

Suppose Congress passed a law, let's give it an acronym, the Foreign Combatant Killing Act (FCKA), setting up the Foreign Combatant Killing Court (FCKC), which said that before any soldier on the field of battle could kill an enemy combatant, they had to get a signed death warrant from the FCKC. Oh, and if there wasn't time to get one beforehand, they could get one within 72 hours of the battle. And the warrant had to be specific, individual, and have all the legal niceties -- none of this "Kill however many guys in the house at latitude X longitude Y who are shooting at us" sort of vagueness allowed. IF the Commander in Chief issued an executive order to the armed forces to shoot according to the previous laws of war and to ignore this law, THEN the president would be in peril if the law turned out to be constitutional.

It's that whole subjunctive mood thingy. Geez, I was a math major -- why am I having to explain grammar to journalism majors?

cathy :-)

[Gary Maxwell]

Without actually hearing the words, the intonation, the pauses, the gestures accompanying speech

Ah yes more that fine aged Kerry Nuance

Or dont bother me with the facts, I am busy emoting here.

[danking70]

Didn't the Supreme Court already upheld the FISA Review Court's ruling in the sealed case?

[topsecretk9]

I don't feel compelled to accept the word of anyone from the NRO

That's just it, they had the fortitude to provide a "transcript" to help readers learn which "report" had context and/or come to their "own" conclusion. If you choose the one that you like better fine, but by no means was NRO compelling you other than to make the info available.

Additionally, the transcript does provide a better account of the exchanges that I would think you might feel robbed or condescended to by the NYT's.

[Jake - but not the one]

Clarice, the only case I can point to, and even that I read too casually, is the Oregon case concering the Islamic charity. That tap appears to have been one that required a FISA warrant, and as I understand the case, no warrant of any kind was sought or obtained.

Cathy, when you set up your own little strawman and then shoot it down so successfully, all you prove is that you set your own personal bar pretty low - and not for limbo, either.

A wiretap that you can get authorized AFTER the fact with no penalty is not exactly parallel to the strawmen you so carefully stuffed, is it?

Jake

[Gary Maxwell]

I don't feel compelled to accept the word of anyone from the NRO

given how far from port the NYT docked on this one, you should substitute "inclined" for compelled and "NYT" for NRO and find yourself right on subject.

[Sue]

You guys act surprised. And you wonder how the NYTs keeps getting away with phoney stories. Fake but accurate ring any bells? ::grin::

[clarice]

Lichtblau can click on Mickey K's column today, hit the hyperlink to Kristof's weaselly acknowledgement that his report re Wilson was a crock and just follow that pattern..

[Jake - but not the one]

How about WMD's? Niger yellow cake? Fake, but useful, eh?

I don't know which is more truthful. I only know which one I like better.

Even so, I am prepared to wait for the whole thing to work out.

Jake

[Wonderland]

Look, just to pipe in for a sec --

It is altogether unsurprising that some federal judges would say that a statute is unconstitutional to the extend it impinges upon the constitutional authority of the Executive. That's Con Law I, day one.

However, you all (minus Jake) seem to take for granted that the President's Article II authority extends to warrantless electronic surveillance of Americans in the US. I'd venture to say that given its unenumerated, nebulous nature, and in face of the Fourth Amendment and specific Congressional restrictions, it does not.

Moreover, the Washington Times selection has the most bizarre formulation in the world: "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.

Is that like the best interests of the child? Where did they come up with this legal test? (Answer: Their Ass.)

The true legal test should be formulated:

The President has acted at his own peril if (a) the statute is facially constitutional (which no one can argue, or has argued, otherwise); (b) the statute is constitutional as applied (i.e., it does not impinge upon President's constitutional powers because he has no "inherent authority" under Article II to wiretap Americans without warrants); and
(c) he has conducted "electronic surveillance" as that term is defined -- and prohibited sans court order -- by the statute (the AG has explicitly said they have, although I suppose he could have been lying (wouldn't be the first time)).

If (a), (b), and (c) are all true, and a civil litigant with standing presses suit, there could very well be fireworks, because the statute provides for hefty civil remedies. (I wouldn't expect a criminal prosecution unless a Democrat is elected President in 2008 AND there's evidence of politically-motivated spying.)

By the way, I'd also like to note how quickly and quietly the "THE AUMF AUTHORIZED THE SURVEILLANCE" argument -- trumpeted so confidently and wildly by so many on this site -- fell by the wayside. Interesting to see if the Article II arguments share the same fate.

[topsecretk9]

CathyF
You really rock at analogies, you know that don't you?

[clarice]

Jake, the only Oregon case I can find challenges the FISA warrants:

"an Oregon federal court heard oral arguments on a motion in United States v. Battle, a case against five terrorism suspects. The defendants are accused of conspiring to assist al Qaeda forces in fighting U.S. troops in Afghanistan. Arrested last October, the five are predominantly African-American converts to Islam; the government alleges that together, they constituted a terrorist cell.

In their argument, the defendants contended that the government should reveal the justification that support the issuance -- by the clandestine Foreign Intelligence surveillance Act (FISA) Court -- of the secret warrants that enabled the FBI to surveil them. "http://www.cnn.com/2003/LAW/03/18/findlaw.analysis.ramasastry.warrant/

[topsecretk9]

It is altogether unsurprising that some federal judges would say that a statute is unconstitutional to the extend it impinges upon the constitutional authority of the Executive. That's Con Law I, day one.

Goalposts on the move.

[danking70]

It still applies. We just happened to be talking about his Constitutional Authority at the moment.

Can't we have more than one reason? There's a few more or is that not fair?

[topsecretk9]

Also, NYT's apologists...NYT's really should (if they haven't already) consider putting them on the payroll.

[SteveMG]

Wonderland:
seem to take for granted that the President's Article II authority extends to warrantless electronic surveillance of Americans in the US

You left out: Surveillance for foreign intelligence purposes and of targets who are agents of a foreign government or power.

As you may know, President Clinton's DOJ conducted physical warrantless searches on at least two occasions (Ames and El Hage). And in both instances, courts both upheld the searches and allowed the evidence obtained to be used in criminal cases against the two Americans.

Additionally, and most important for this discussion, the Clinton Administration claimed in both instances that it had the inherent constitutional power to conduct such warrantless searches.

It seems to me that at the very least this is unsettled law. Very nebulous territory that has never been adequately settled by the Supreme Court.

SMG

[maryrose]

Jake:
You and Feingold two peas in a pod. You can be very useful in his 08 campaign.
When President Bush asked the dems why they didn't request he stop the NSA program they answered with SILENCE. They don't want it stopped they just want to whine like you Feingold , Boxer and Harkin. Guess what Jake- no one in Middle America agrees with you guys. They don't want AlQueda calling here unsupervised. They don't trust Holy Land. Wehad an Iman from our city deported already. Wake up and smell the coffee. At least the people in San Francisco have an excuse -they've always been off the deep end. What's your excuse?

[Jake - but not the one]

That's not it, Clarice. The wiretap case involves the ACLU suing the NSA on behalf of two attorneys and a defunct Islamic charity. Here is a link to a CBS article on the case:

NSA Sued On Wiretap Claim.

There is an additional wrinkle that an Oregon paper has gotten into the act because this is the case there one of Fitz's teams accidentally released transcripts of conversations between the the attorneys and the overseas - apparently - founder of the charity.

Even though all charges were dropped against the charity, it may still be that they SHOULD have been wiretapped - but that is what FISA is for.

Jake

[topsecretk9]

Even so, I am prepared to wait for the whole thing to work out.

This is fair of you and all, but no one is forcing you to come to debate at JOM...of which I and others are glad you are here...it's just that the idea of patience or pragmatism isn't lost on anyone so this self righteous sanctimonious bit is dumb. On a comment board. OK, so dispense with that...we know you are in NO WAY INVESTED.

[Jake - but not the one]

SMG, the law was changed AFTER Clinton's searches. You can't claim that Clinton "did it, too" when it WASN'T illegal at that time.

Maryrose, I don't know who in middle America does or does not support FISA.

Neither do you.

Either way, the law is the law. If it is an issue, change it, don't break it. Bush has had TWO shots at rewriting FISA to suit him, and he didn't do it. That makes it HIS problem - not the problem of those of us who think he too is bound by the law.

Jake

[clarice]

Jake, we'll have to see how that progresses. I wouldn't give it a big chane, though. It is settled law that the courts do not take moot cases and the case was dismissed.

[Wonderland]

tpsecretk9:

"Goalposts on the move."

Oh please. You're convinced you've won some king of argument because the judges regurgitated boilerplate con law. This is like saying, "Congress could not pass a law that took away he Presidential appointment power." Well, no duh. The issue is, does the President's Article II powers extend to warrantless electronic surveillance of Americans inside the US? Saying that Congress cannot pass laws impinging on such powers is a different statement than saying what those powers are.

and to danking70, who said: "[The AUMF argument] still applies. We just happened to be talking about his Constitutional Authority at the moment."

Hey man, even Arlen Specter knows this argument sucks. It's completely stupid to seriously argue that Congress accidentally provided surveillance authority without even knowing it. The path of the current debate suggests that all but the truest of believers have moved on to the next "legal argument" -- this Article II brouhaha.

[Jake - but not the one]

LOL! I am invested to the extent I believe I am right. I believe my emotional health will take only a moderate hit if I am proven to be wrong.

A hit pretty much like it took Nov 2, 2004.

{sigh}

So, it's not like I haven't been there before.

It's not so much that I was for Kerry as it was I feared the course Bush would steer were he to win.

So far, my fears have all been justified.

And TS, I am not here to convince you of anything, truly. I am here to think, to propose ideas in an unfriendly (not personally unfriendly, just idealogically unfriendly) environment and then to defend them - or abandon them.

No doubt I cling to some beliefs with too much fervor. I work on that as well.

Jake

[SteveMG]

Jake:
SMG, the law was changed AFTER Clinton's searches. You can't claim that Clinton "did it, too" when it WASN'T illegal at that time.

You're right in the Ames case but not in the El Hage case. The El Hage case came after the law was changed (Dec. 2000).

You also missed the key point: The Clinton DOJ argued in court that the executive had the inherent constitutional power to conduct warrantless searches for intelligence gathering.

Here's a link to the El Hage case for you to confirm what I've said:

http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/binladen_12_19_00.pdf

See Section II: An Exception to the Warrant Requirement for Foreign Intelligence Purposes.

Inherent constitutional powers or authority - which is what the Clinton DOJ argued that they had - may not be taken away through legislative actions. The Constitution is the supreme law of the land and trumps congressional actions.

The only way to take away this power is through the Amendment process. FISA, or any other legislative act, simply cannot take aways powers given to the executive by the Constitution.