Yesterday, five former judges of the FISA court testified before the Senate Judiciary Committee on the National Security Agency’s international terrorist surveillance program. Some observers have alleged that the NSA program is illegal to the extent that it includes surveillance conducted without a FISA court order.
Here is how the Washington Times reported the judges’ testimony, in a story headlined “FISA Judges Say Bush Within Law”:
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.”
This is consistent with what we have written on the legality of the NSA program.
Eric Lichtblau of the New York Times appears to have attended a different hearing. The Times’ story is headlined “Judges on Secretive Panel Speak Out on Spy Program.” Lichtblau reports:
Five former judges on the nation’s most secretive court, including one who resigned in apparent protest over President Bush’s domestic eavesdropping, urged Congress on Tuesday to give the court a formal role in overseeing the surveillance program.
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.
These reports can’t both be right. If what the Washington Times says is correct, the New York Times’ account is deeply misleading, if not outright false. As we noted here, Eric Lichtblau has a huge personal investment in the idea (wrong, I think) that the NSA program is “illegal.” Is Lichtblau’s commitment to that proposition causing him to report falsely on testimony that was given to a Senate committee? Or did the Washington Times go too far in characterizing the judges’ approval of the NSA program?
We are trying to track down a transcript of the judges’ testimony, which no doubt will answer these questions.