The story thus far: Yesterday the New York Times published a story by Eric Lichtblau titled “Judges on Secretive Panel Speak Out on Spy Program.” In this story, Lichtblau described the testimony of four former FISA judges to the Senate Judiciary Committee regarding Bush’s NSA spy program. A fifth judge who was not at the hearing sent a letter to the Committee expressing his opinion.
The main point of the story, per Lichtblau, is that the judges testified “in support of a proposal by Senator Arlen Specter, Republican of Pennsylvania, to give the court formal oversight of the National Security Agency’s eavesdropping program.”
In support of the proposal, mind you. Take note of that.
Lichtblau also wrote that the judges
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.”
However, Lichtblau writes, the judges avoided the question of whether the NSA program is illegal.
The judges at the committee hearing avoided that politically charged issue despite persistent questioning from Democrats, even as the judges raised concerns about how the program was put into effect.
Judge Baker said he felt most comfortable talking about possible changes to strengthen the foreign intelligence law. “Whether something’s legal or illegal goes beyond that,” he said, “and that’s why I’m shying away from answering that.”
Now the plot thickens. Also yesterday, the Washington Times published an article by Brian DeBose about the same testimony. And this article was headlined “FISA judges say Bush within law.” Here is the lede:
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.
Clearly, one of these stories is wrong. The question is, which one?
Yesterday John Hinderaker of Power Line accused Lichtblau of having “a huge personal investment in the idea (wrong, I think) that the NSA program is ‘illegal.'” To prove this charge, Hinderaker linked to another Power Line post in which Hinderaker hectored Lichtblau for writing a story Hinderaker didn’t like. Since the story is not linked I can only guess at what’s going on here, but I infer that Lichtblau interviewed people who said the NSA program is illegal as well as people who said it isn’t illegal. Hinderaker objected, thus:
Here’s my problem with your coverage: as a legal matter, there isn’t any debate. The authorities are all on one side; they agree that warrantless surveillance for national security purposes is legal. I think your articles misleadingly suggest that there is real uncertainty on this point, when there isn’t.
So we’re all agreed it’s legal. Except for these guys. Oh, and some of these guys. And just about every constitutional scholar on the planet who is not a Republican Party operative has at least some doubts about the legality of the program. But they don’t count. Clearly, the only reason Lichtblau would have interviewed and quoted such people is that he has a huge personal investment in the idea that the NSA spy program is illegal. Hinderaker, on the other hand, clearly and objectively reasons that doubts about the program’s legality simply do not exist.
Anyway, taking their cues from Hinderaker, the Right Blogosphere declared the DeBose/Moonie Times story to be the correct one. And they would know, as they have no personal investment in any of this.
Unfortunately, the Anonymous Liberal had to go make trouble and read the transcript.
I’ve now read through the transcript, and not surprisingly, it’s clear that Lichtblau was awake during the hearing and DeBose was, well, very confused. …
… Okay, let’s review the facts. The transcript of the hearing–which is very long–is only available via subscription, so you’re going to have to take my word for now. A total of five judges testified in person, and one submitted written testimony. All of the judges made it crystal clear that they had no intention of opining on the legality of the NSA program (“we will not be testifying today with regard to the present program implemented by President Bush”). The judges were there to testify about FISA and about the merits of Sen. Specter’s proposed legislation to amend FISA.
The bulk of the testimony by the judges was in praise of FISA and in praise of Specter’s proposed bill (which is clearly why Specter called them to testify in the first place). Although the judges were careful not to opine about the NSA program specifically, it was clear from their testimony that they believe further Congressional authorization is necessary and desirable and that the judiciary has an important and indispensable role to play in overseeing domestic surveillance.
Their agenda, to the extent they had one, was to lobby for the continued relevance of the FISA court. …
…I can assure you, though, that at no point did any of the judges come anywhere close to saying that the president “did not act illegally” or that he acted “within the law” when he authorized the NSA warrantless surveillance program. So the Washington Times story is complete rubbish. It could not possibly be more misleading.
This is all very bothersome. The Right had agreed to and proclaimed what the truth is, and here’s this loony liberal muddying the water. No wonder we liberals are so unpopular.
Update: See also Glenn Greenwald, “This Week in the NSA Scandal.”
Update update: Hinderaker is still defending his claim that the New York Times article, not the Moonie Times article, was the one that got the story wrong. And now another of the Power Tools, Scott Johnson, defends Hinderaker’s defense of his claim in a remarkable exercise in intellectual dishonesty. I say “remarkable” not because Johnsons is being dishonest — one expects such things from the Tools — but because he’s so bare-assed about it. He’s claiming that people didn’t say what he quotes them as saying.
Johnson quotes a passage from the testimony that he says belies “the tenor of Lichtblau’s description of the judges’ ‘skepticism.'” This is followed by a passage from the transcript in which two judges say, in effect, that since they don’t know details of what the NSA is up to they can’t offer an opinion of whether what they are doing is illegal or not.
Which is what Lichtblau and the Anonymous Liberal said they said. It was the other story, by DeBose, that claimed the judges had declared the NSA wiretapping program to be legal, and the judges clearly didn’t say that. Yet in Rightie World Lichtblau is “misleading” but DeBose is as honest and straightforward as sunshine itself.
Further, the judges clearly say that what worries them is that the NSA might be picking up domestic communications, which would require a warrant. Get this bit that Johnson quotes:
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?
From which Johnson concludes:
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?
I do not believe that anyone with a rudimentary knowledge of the issues in this case has ever claimed that the feds need a warrant to do foreign intelligence surveillance. What people — including the retired FISA judges — are skeptical about is whether the NSA is really limiting its activities to foreign intelligence. Judge Baker just said as much. By essentially changing the subject — by implying that the issue was foreign intelligence surveillance, which it clearly wasn’t — the Tools are trying to wriggle out of having to admit they were wrong.
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.
Having reviewed the Power Line web site, however, I am voicing skepticism that the Tools would recognize intellectual honesty if it bit their butts.