NYTimes: FISA Court Oks Warrantless Wiretapping Law

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 Americansí 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 programís 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 Americansí 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 presidentís 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.

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    Bet J Edgar (5.00 / 2) (#2)
    by BernieO on Thu Jan 15, 2009 at 08:21:25 AM EST
    is dancing in hell right now. So much for balance of powers.

    We really need to put more emphasis on teaching government and history in our schools instead of focusing so much on math and reading skills for job preparation. Far too many Americans have no idea how our government was designed to work - or why - even though they worship the wisdom of our Founding Fathers.

    How about requiring kids to pass a test similar to the one immigrants have to pass to become citizens?

    Umm, Bernie...you can't teach (none / 0) (#4)
    by oldpro on Thu Jan 15, 2009 at 08:52:32 AM EST
    government and history to people without math and reading skills...not unless you plan to teach everything orally or through films.

    Math...reading...basic to all learning.  And particularly useful for those who might seek employment.  Ever.


    It is easy to predict (5.00 / 1) (#3)
    by Steve M on Thu Jan 15, 2009 at 08:25:36 AM EST
    that no one is going to want to "dwell on the past" with respect to the activities predating the Protect America Act.  I know, I'm going way out on a limb with this one.

    You have a lot of company (5.00 / 1) (#6)
    by oldpro on Thu Jan 15, 2009 at 08:54:10 AM EST
    on that limb.  Been reading Greenwald?  DEpressing.

    A sure thing (5.00 / 1) (#12)
    by mmc9431 on Thu Jan 15, 2009 at 09:22:27 AM EST
    I'd bet my last dollar on that if I still had a last dollar left!

    Power grab (5.00 / 1) (#8)
    by mmc9431 on Thu Jan 15, 2009 at 09:02:30 AM EST
    The entire Bush administration has been about seizing power from Congress. Their assertion that if the president says it's legal it is was never really put to the test. Whether it was war, regulations or law, the Bush team pushed to the limit and beyond. Sadly the Democrat's allowed and in many cases enabled it. We were told "elections have consequences". My only hope is that the Obama team remembers that and reminds the Republican's of it every chance they get.

    Secret Court Decides Constitution Doesn't Apply (5.00 / 4) (#9)
    by Continuum on Thu Jan 15, 2009 at 09:03:57 AM EST
    The FISA court has become the Star Chamber of the modern age.  Secret testimony, secret rulings, no chance for appeal.  Henry V couldn't have done better.  The FISA court is an embarrassment to all that the US Constitution represents.

    I agree ... (5.00 / 1) (#11)
    by Robot Porter on Thu Jan 15, 2009 at 09:18:44 AM EST
    what's next?  Corporate courts ruling on tax policy?

    Who appointed the judges on this FISA court? (none / 0) (#1)
    by Saul on Thu Jan 15, 2009 at 08:19:21 AM EST
    How many are they?

    Anybody wanna bet this is one (none / 0) (#5)
    by tokin librul on Thu Jan 15, 2009 at 08:53:37 AM EST
    of the Bushevik power-grabs the new regime WON'T reject?

    Yea!, change...yeah, sure...

    There is no greater (5.00 / 2) (#14)
    by NYShooter on Thu Jan 15, 2009 at 10:34:00 AM EST
    aphrodisiac than power (several psychiatrists, plus one phd. psychologist niece in the family.) The mental health community was quite on edge during the Nixon Episode, and General Al Haig's move to Chief of Staff soiled a lot of underwear.

    P.E.Obama's life-long,I feel obsessive, lust for power should have peaked the interest of reporters, that is, if there were any reporters.

    His flip-flop on fisa was no surprise, and our Constitutional Law professor aka President-Elect Obama will take what the demented 43 bequeathed him, inject it with steroids, and full-throttle the afterburners.

    You think that Mussolini pose on his "Seal" WHILE HE WAS STILL ONLY A CANDIDATE, was an accident?

    (please don't call me a troll.......please?)


    I can't wait (none / 0) (#18)
    by weltec2 on Thu Jan 15, 2009 at 07:18:17 PM EST
    for Helen Thomas to have at him.

    Sneak Preview (5.00 / 1) (#19)
    by squeaky on Thu Jan 15, 2009 at 07:24:21 PM EST
    [Amy] Goodman asked Thomas if she has her first question ready for Barack Obama.
    "Sure. I have a thousand of them," Thomas responded. "What are you going to do to fulfill your ideals expressed on the campaign trail? Or are you going to submit, like most presidents, just . . . try to carry out your promises that have no meaning except for how many people gave you money?"

    Yes, we need more Helen Thomases in the press corps.



    Yano, Bernie, I LIKE this idea (none / 0) (#7)
    by tokin librul on Thu Jan 15, 2009 at 08:56:30 AM EST
    How about requiring kids to pass a test similar to the one immigrants have to pass to become citizens?

    Really, I do...Here's the opportunity to make schooling relevant: Pass the High-School civics test or forget about getting a drivers' license...

    Why does (none / 0) (#10)
    by Robot Porter on Thu Jan 15, 2009 at 09:15:59 AM EST
    "federal intelligence court" get to rule on this?

    Seems like a Fox/chicken coop thing.

    And I agree with you that Litchblau lede is wrong.  Even he has to add "may" to the 'graph supporting it.

    Everytime that I fall for that (none / 0) (#13)
    by SOS on Thu Jan 15, 2009 at 09:53:17 AM EST
    same old trick. I punish myself with the same old stick.

    As BTD noted: (none / 0) (#15)
    by jawbone on Thu Jan 15, 2009 at 10:56:14 AM EST
    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. (my emphasis)

    We can still hope that Obama will be the president his hope/change campaign rhetoric indicated he would be. He'll just have act on principles, not opportunism. He'll have to lead, not follow the Villagers.

    I still hope.

    And, there are some appointees/nominees who seem to be outstanding. Perhaps they can accompish things no matter what....

    This just makes me sick. (none / 0) (#17)
    by weltec2 on Thu Jan 15, 2009 at 07:15:34 PM EST
    Obama's betrayal on FISA and now this. No, BO will do nothing about any of Bush's crimes.