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

[Charlie Quidnunc]

C-SPAN has the video up now:
rtsp://video.c-span.org/project/ter/ter032806_nsa.rm

I'll try to put some in my podcast.

[Patton]

And lets not forget what the Liberals view of alot of DEAD IRAQIS when they were in charge. Short answer....they thought a half million dead Iraqis was NECESSARY..and apparently just a good start because that was in 1996...many, many more died in the following Clinton years because he CLAIMED Iraq had WMD.

How soon Jake forgets the words of Madeline Albright when the left was in charge:

"We Think the Price Is Worth It"
Media uncurious about Iraq policy's effects- there or here
By Rahul Mahajan

Lesley Stahl on U.S. sanctions against Iraq: We have heard that a half million children have died. I mean, that's more children than died in Hiroshima. And, you know, is the price worth it?

Secretary of State Madeleine Albright: I think this is a very hard choice, but the price--we think the price is worth it.

--60 Minutes (5/12/96)

Then-Secretary of State Madeleine Albright's quote, calmly asserting that U.S. policy objectives were worth the sacrifice of half a million Arab children, has been much quoted in the Arabic press.

THAT A HALF MILLION IN MAY 1996 WHEN THE LEFT WAS JUST GETTING STRATED AT PERFECTING THE KILLING OF IRAQIS THROUGH STARVATION, MALNUTRITION, LACK OF MEDICINE, ETC. ETC.

[Patton]

Jake points to a judge that resigned from the court as PROOF that Bush must be doing soemthing wrong. Well, jake, BOTH of the heads of sanctions in Iraq resigned because the said we were needless killing and staring millions.

http://news.bbc.co.uk/1/hi/world/middle_east/642189.stm

[larwyn]

I thoroughly read the threads and applaud the patience most of you have
with those who will not accept any evidence that doesn't fit their world view.
Having a daughter (1 of 3) who fits this, I keep reading and truly hope
that one of these of days, AL, JAKE, JIM E, AB (haven't seen that one
for a while) will concede on the evidence. I keep hoping.

But in the meantime, I offer the great mind pictures of:

"the warm mud of Me" Vanderleun "On the Return of History"

How can you not read it all with paragraphs like this:

Most of the Mini-Mes don't know what to do in a history that isn't fun. All their lives have been about shaping history towards fun and they've been having a good run at it. They like it so much, they are now willing to do anything to bring it back -- the Kennedy Era, such elegant fun; the Clinton Years, "Hey, we partied like it was 1999." In the run-up to the last election and now for the next, there's been and there will be a lot of code swapped about getting the fun back in the game. "Remember the fun of the 90s? You can have it all back. Peace. Love. Understanding. Stock-market Boom. Money. Any number of genders can play." Indeed, these Merry Pranksters of our politics are setting up to run "The Bride of Fun" for President in 2008, even though it is clear she is the least fun of any of them.
SNIP
...There is even, if you look at it closely, a distinct lessening of "Me" and the beginnings of an "Us" on the peripheries of the Party. Not a lot, but when you look at the other, there is none. Only a yearning for the warm mud of Me.

[clarice]

Gary, the case is astonishing. I have no sense which side of it is right, but I do think I see more overcharging of defendants and misuse of the obstruction and conspiracy charges by federal prosecutors than I ever recall. (Think Comey's case against Martha Stewart.)

[TM]

Clarice - I saw that "Prosecutor indicted" story too, and had immediate flashbacks to all the folks insisting that Fitzgerald would not overstate Plame's covertness to Tatel and the other two judges on the Miller/Cooper subpoena case because That Would Be Wrong and Prosecutors Don't Do That.

[Gary Maxwell]

OT but this will really get your blood boiling. Malkin has Allahpundit in a guest blogger this week and he has a link to some pretty unbelievable stuff on Cindy Sheehan. A speech at Berkeley sponsored by a known Communist front where an audience member calls Casey Sheehan a war criminal and Cindy basically agree with the turd. GRRRRR

[clarice]

TM,If the facts on Convertino alleged by DoJ are right, how much more damage could he have done without any DoJ supervision at all? Without having been held to the Dept's extensive regulations for the conduct of US Attys?

I've been a prosecutor. I can tell you from experience that you must keep a sense of balance and question your own and your witness' conduct always. The power to do irreparable damage to others and to the cause of justice is ever present.

[maryrose]

dems plan is basically 2 pages of nothing. What can they be thinking with this redeployment nonsense? It's so typical of them to NOT know where the REAL battlefield is. The just don't have any plan for the war on terror. It's shocking really that they are so out of touch.

[Jeff]

all the folks insisting that . . . Prosecutors Don't Do That.

I'd be curious to see all the folks insisting that prosecutors per se don't do that. Did they mean each and every single one, ever in the history of the world? That would be a little surprising to me.

[TM]

dems plan is basically 2 pages of nothing

They want to hide so they can run.

[maryrose]

In this case of Plame and Libby the prosecutor did overstate his case and that is going to come back and bite him on the rear.

[Dwilkers]

Sue-

The email addy of Jake is not anywhere close to Top's email addy.

Hmm. I wonder how I did that. My mistake.

[Rick Ballard]

Certainly not nothing. It has weight and substance combined in a nuanced subtlety which requires a very fine mind to properly interpret. Chimerical, yet ephemeral, with the weight of the spores of a dandelions head scattered by a zephyr passing over a meadow.

It simply requires a person of the utmost refinement to discern the depth, compexity and originality of the thoughts and feelings so cogently expressed.

Of course, another POV would have that it is crap geared for morons.

[clarice]

Another wine critic wannabe..You forgot the NOSE, Rick...Jeez!

[Gary Maxwell]

Nose?

If it smells like Poo and it looks like poo, good thing we did not step in it?

[noah]

Actually, when you think about it, what the FISA judges said was pretty noncontroversial. That Congress cannot amend the Constitution by statute. D'oh!

But AL and others have clearly felt that a President does not have inherent powers once Congress has weighed in with a statute.

[Sue]

By golly, they are running out of time and dadgum it, something has to stick.

[clarice]

Feingold is calling James Dean to tesify..Heh.. flashgack..

[Rick Ballard]

John Dean? 'Cause if he can call James Dean, he probably will win in '08.

[larwyn]

Dem Presidential hopeful Joe Biden on Hardball answers Matthews':

"If you could go on TV tonight
and debate President Bush, could you present the Democrat's Alternative?"

Biden:"Bottom line of the alternative (Democrat's) is we're going to have figure out......Blah, Blah, Blah.

Yesterday, both Jack A** Cafferty of CNN's "Day Room" AND Chris Matthews made fun of "Real Security". Biden just helped out - hope Jon Stewart was watching.

[Larry]

Jake - but not the one | March 29, 2006 at 08:27 PM

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

I'm guessing you voted for Kerry, then, Jake.
The John Kerry who: 1) Lied to congress at the Winter Soldier hearings. 2) Attended meetings where assassination of elected officials was proposed. 3) While a commissioned USN officer met not once, but twice, with representatives of the enemy. That John Kerry? These are publicly known facts, not innuendo. Not "fake, but accurate". Youthful indiscretion? Show us how he's changed. I was very disappointed that this despicable piece of shit was the best the once-great democratic party could come up with. But, oh well, Gore was the best they could do in '00.

[clarice]

LOL Rick, you know it sounded funny when I typed it..If Feingold could get James back, I might actually vote for him...

[topsecretk9]

Well he did say Lake Texoma ( Therefore likely a DFW resident) and we have not seen Texas Toast in awhile and his arguments are of the kinder gentler variety so I would say it aint JayDee/Katrina/etal. Texas Toast or maybe TSDoggie just got bored? Hey TS remember our little X = Y war a week ago? TS = Jake !!! Better hope he does not have your social security number too!

Gary, now stop. You may email me and see I am the real thing. Now, I am going to email you and see.

[kim]

My brother believes that the phrase 'identity theft' is too harsh. He's planning a campaign to get people to call it 'identity sharing'.
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[topsecretk9]

I went through Jake's comments and checked and I didn't see any with my email.

[larwyn]

Larry,
Read your Kerry & Gore post above - you'll love this:
'the warm mud of Me' Vanderleun "On the Return of History"

[clarice]

It's good, larwyn. I hope you didn't miss this week's South Park..

[larwyn]

Just watched it - this is my first season - last week was terrific.

[larwyn]

Maryrose,
Guess who's reading Hewitt's new book?

[Larry]

Thanks, Larwyn. Strong stuff.

[larwyn]

Larry,
If you're old enough to remember Alan Ginsburg - go back to American Digest and read Vanderleun's "GROWL".
Don't attempt with your mouth full of coffee.

[maryrose]

Larwyn:
That's our boy
You really are one of my favorite posters!

[kim]

I know a fellow who went through basic training and AIT with a copy of 'Howl' in his kit where the Army allowed a holy book. The Army tries to be as blind to religion as to race(and may help explain Don't Ask, Don't Tell) and there were practically no restrictions on what was allowed. Neither the drill sergeants nor the conscript had any idea what the book meant.
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[larwyn]

Watching Leahy/Sen Judiciary hearing on Censure on CSPAN now.

Love, Love Vanderleun.

[woof]

Jake says.....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.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~`

Eric Lictblau, is that you?!? Is that how you wrote the story? By taking one sentence from an entire Senate hearing? LOL that's pretty good!

[woof]

Jake said that the Oregon terror cell case was an example of "domestic warrantless wiretaps".

If the trying court had found that the searches were unreasonable, the case would have been thrown out. Funny that the Department of Justice website boasts about the successful prosecution of that group of enemy terrorists..

http://www.lifeandliberty.gov/agpatriotactrevision.htm
Using sections 218 and 504 of the PATRIOT Act, agents and prosecutors were ultimately able to collect sufficient evidence to charge seven defendants and then to secure convictions and prison sentences ranging from three to 18 years for the six defendants taken into custody. Charges against the seventh defendant were dismissed after he was killed in Pakistan by Pakistani troops on October 3, 2003.

[kim]

Eric Lichtblau finally nodded off to sleep after a long evening on instant messaging with his friends about his triumphal NSA article, sure to catch the vagrant eye of Pinch. Renegade thoughts of Pulitzer danced in his head with five old juridical satyrs while Pan played, poured, and sliced in the corner. Suddenly, with a jerk, a pall came over his pleasant dreams, faeries scattered, jugs overturned, the atmosphere roiled and rent; and blogdom roared. He woke in a cold sweat. Was this just a bad dream from which he couldn't wake up?
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