FISA Judges Speak Out

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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.”

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DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily bluster—Mother Jones' journalism is driven by one simple question: Will America move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

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