ABOUT THAT FISA COURT RULING…. There’s been some talk today that the FISA court has endorsed the notion that the president has the authority to engage in warrantless wiretaps. That’s not what happened today, and the details matter.
A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved.
The court decision, made in August 2008 by the Foreign Intelligence Surveillance Court of Review, came in an unclassified, redacted form. […]
The FISA court … found that the Protect America Act did not violate the Constitution because the Fourth Amendment, which prohibits unreasonable searches and seizures, contained an exception for the collection of foreign intelligence information.
The opinion did not directly rule on the legality of the once-secret operation authorized by President Bush between October 2001 and early 2007, which allowed the National Security Agency to eavesdrop on the international communications of Americans suspected of ties to terrorists. The disclosure of the program’s existence in The New York Times in December 2005 set off a national debate on wiretapping, privacy and the limits of presidential power. Critics charged that Mr. Bush had violated a 1978 law requiring that the government obtain a court order to listen in on Americans’ communications.
The New York Times originally reported that the FISA court’s ruling offered “legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.” But based on the additional reporting, that’s just wrong. The decision has nothing to do with the president’s inherent authority, and everything to do with Congress’ ability to shape surveillance law, giving the White House far more authority than it was previously allowed.
Put another way, the case was about the legality of the Protect America Act. It cleared the court’s examination. But as A.L. explained, this doesn’t lend “credence” to the administration’s legal arguments at all.
Quite the contrary. From the moment the NSA program was first disclosed in December of 2005, the issue has always been whether the president has the “inherent authority” to disregard a statute like FISA that purports to place restrictions on his ability to conduct surveillance of Americans. The Bush administration claimed it had such powers, despite overwhelming legal authority to the contrary. When Congress passed the Protect America Act, it statutorily authorized the President’s subsequent surveillance activities, assuming he stays within the rather wide confines of that law. The court here has merely upheld Congress’s prerogative to pass such a law. There’s nothing here that lends any credence whatsoever to claims of law-breaking authority made by the Bush administration over the last few years.
Several far-right blogs insisted today that Bush has been “vindicated” and was “right all along.” That’s simply not what happened.