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FISA Judges Speak Out

Five former FISA judges told the Senate Judiciary Committee today that—brace yourself now—the president shouldn't get to operate above the law, and that whatever super-secret surveillance program the Bush administration might be running these days, it should be subject congressional oversight:

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.

Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until last year, said 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."

Well, that last statement doesn't seem entirely accurate. Has the president actually suffered any consequences for ignoring laws enacted by Congress? No, and he probably won't so long as Congress remains in Republican hands.

Meanwhile, Marty Lederman has an interesting breakdown of Monday's testimony by David Kris, a Associate Deputy Attorney General from 2000 to 2003, who says both that Congress never gave the White House the authority to bypass FISA, as the Bush administration claims, and that existing law could very easily be amended to allow the sort of surveillance the administration reportedly wants to carry out. In fact, this modifications are much narrower than those proposed by Sen. Arlen Specter, which would permit, as Lederman phrases it, "indiscriminate surveillance of any U.S. person who has ever communicated with the agent of a foreign power."

Posted by Bradford Plumer on 03/29/06 at 10:47 AM | E-mail | Print | Digg this | de.licio.us

Comments

Originally the Foreign Intel. Surveillance Act was silent on the issue of warrantless physical searches, however in the Aldrich Ames affair (former CIA agent who worked for Russia) Pres. Clinton claimed inherent authority to conduct "black bag" jobs, such as a search of Ames house.

Now, of course, the new Act allows the pres. to conduct unlimited electronic surveillance during the initial outbreak of war...

So sure, on the one hand, the Constitution "orders" the pres. to take care that the laws are properly enforced, yet, on the other hand, WHY WOULDN'T George W. take his case to the proper court--considering how in Wagner v. US Gov. (DC District Ct, 2005)Hons. Hogan and Friedman actually ruled on the case though each is named as a defendant!!! Then the CHIEF JUDGE dismissed my Judicial Misconduct complaint, and, evidently, the FBI has ignored my complaint!!!

In the final analysis, of course, plainly the pres. can legally order such surveillance because the language of the Act is realitively vauge and it would seem to support Bush's position... (to do what is necessary)(where it would be awful stupid not to)(though, again, why wouldn't George W. trust "his" judges!!!!!!)

Posted by: Michael L. Wagner on 03/29/06 at 3:11 PM

What does an agent of a foreign power mean? Does that mean talking to a spy (which could happen without the American realizing it, obviously) or does that include things like talking to a consular in the process of applying for a travel visa or a cop or other authority in a foreign country? Is everyone who has ever gone abroad then fair game?

Posted by: Les on 03/30/06 at 6:10 AM

Suprise, suprise, but the Lichtblau's piece took Baker's comments so far out of context that what is represented above does not reflect what was actualy said.

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