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The verdict, take 2

Last night John rendered his “Verdict: The New York Times blew the story.” The “story” was the testimony of five federal judges — Magistrate Judge Allan Kornblum and four former FISA court judges — on Senator Specter’s proposed reform of the FISA statute. According to yesterday’s New York Times story by Eric Lichtblau:

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…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.

As John noted last night, Lichtblau’s story misleads readers regarding the judges’ testimony. Here are a few more excerpts of testimony that belie the tenor of Lichtblau’s description of the judges’ “skepticism” regarding the president’s constitutional authority to authorize the surveillance program originally disclosed this past December 16 by James Risen and Lichtblau himself in violation of the federal espionage laws:

Senator Durbin: *** My question is very straightforward. Is there anyone on the panel here who believes that the President did not violate the FISA law with the new wiretap program as he has described it?

Judge Keenan. I don’t know what the new program is, Senator, and that is the reason–

Senator Durbin: If you could lean over a little closer to the mike.

Judge Keenan: Sure, I’m sorry. I don’t know what the new program is, Senator, and that’s why I, in my prepared remarks and in my answers to other questions, I’m not in a position to offer any opinion about that. My understanding–and this is from what I have read in the lay press now–I understand, having read this, I believe, in the Wall Street Journal, that some judges of the Foreign Intelligence Court, present judges–not any of us because we are not on it anymore, and certainly not me because I have been off it since 2001–some of the judges have been briefed on the program. I also understand, from what I have read in the lay press and what I heard from Senator Feinstein a few moments ago, that some Senators have been briefed. But I do now know what the program is, so I am not in a position to offer any comment at all about what the President’s doing.

Senator Durbin: Well, as we have heard it described–and I have not been briefed either, there are only a few Senators who have–it is the interception of domestic communications between people in the United States and those in foreign lands, and that strikes me as falling within the four corners of the FISA law as written.

Judge Keenan: But you use the word in your introductory question and in that question, “domestic,” and as I understand from the lay press, again, this is international, it is not domestic. So that’s why I’m not in a position to answer, sir.

Judge Baker: Senator, did the statute limit the President? You created a balance between them [in the FISA statute], and I don’t think it took away the inherent authority that Judge Kornblum talked about. He didn’t call it “inherent,” he doesn’t like that. But the whole thing is that if in the course of collecting the foreign stuff, you are also picking up domestic stuff, which apparently is happening, I don’t know that that’s–it becomes a real question, you know, is he under his inherent power? Is he running around the statute?

Judge Baker — who observes that he does not think FISA “took away” the president’s inherent constitutional authority to order warrantless foreign intelligence surveillance — is the one judge Lichtblau actually bothers to quote as allegedly expressing skepticism regarding this authority. Did Lichtblau leave the hearing early?

Following Senator Dubin’s questions, Senator Hatch then pursued a series of hypothetical questions that he posed to Judge Kornblum regarding the admissibility in criminal trials of evidence obtained indirectly from the NSA surveillance program:

Judge Kornblum: To be admissible, the evidence would have had to have been lawfully seized or lawfully obtained and the standard that the district judge would use is that, depending upon where this is, is the law in his circuit. In most of the circuits, the law is clear that the President has the authority to do warrantless surveillance if it is to collect foreign intelligence and it is targeting foreign powers or agents. If the facts support that, then the district judge could make that finding and admit the evidence, just as they did in Truong-Humphrey.

(Emphasis added.) Judge Kornblum’s reference to Truong-Humphrey is to the federal appellate cases that acknowledge president’s inherent authority to order warrantless foreign intelligence surveillance, previously discussed by John here.

In short, I don’t think that the judges can fairly be described as having voiced skepticism regarding the president’s constitutional authority to order the NSA surveillance program. Having reviewed the transcript of their testimony, however, I am voicing skepticism that Eric Lichtlbau and the New York Times are reporting on matters related to the NSA program in good faith.

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