Legal Commentary

NYTimes: FISA Court Oks Warrantless Wiretapping Law

By Big Tent Democrat

Eric Lichtblau reports that a FISA court has ruled the Protect America Act, passed by the Congress after the Bush violations of FISA became public, constitutional:

A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved.

. . . The appeals court is expected to uphold a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August of 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications, according to someone familiar with the ruling.

Lichtblau's article is not good in my view in that he sees the opinion as passing on the Bush Administration's previous activities. But his own reporting states:

The opinion is not expected to 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.

Despite reporting this, Lichtblau editorializes that:

Still, the new ruling is expected to have broad implications for federal wiretapping law, because it is the first time that any appeals court has ruled on the constitutional question of the president’s wiretapping power.

It could also influence a number of court challenges now pending in federal court in California against telecommunications companies that took part in the N.S.A. program. Last year, Congress approved legal immunity against lawsuits for the telecommunications companies, but a federal judge has yet to decide whether the lawsuits should be thrown out.

It is not discernible from Lichtblau's reporting that the court was passing on anything beyond the Protect America Act. Clearly if this is what the court did, the issue of Presidential power was, at best, tangential to the case. As the oft discussed Justice Jackson concurrence in the Steel Seizure Cases posited, the President's power is at its lowest ebb when the President is acting against Congressional intent. The Bush Administration blatantly violated FISA, the 1978 law that dictated how the collection of foreign intelligence would occur in the United States. A court ruling passing on an enacted law is not comparable to passing on the actions of the Bush Administration in violation of FISA.

Of course the Congress' craven and outrageous passage of the Protect America Act and its successor law last summer (the one where Obama caved and flip flopped on telecom immunity) is the subject of another discussion. But that does not address the unlawful activities of the Bush Administration prior to the passage of the Protect America Act.

Speaking for me only

Full post as published by TalkLeft on January 15, 2009 (boomark / email).