FISA Ruling: A Case Study in 8 Years of Lying and Ignorance

Ever since The New York Times, on December 16, 2005, first
reported that President Bush ordered spying on Americans without the
warrants required by FISA, the clear illegality that was unveiled -- FISA said that X was a felony and Bush admitted to doing X
-- was continuously obscured by a combination of deceit on the part of
Bush followers and ignorance, sloth and confusion on the part of the

Ever since The New York Times, on December 16, 2005, first
reported that President Bush ordered spying on Americans without the
warrants required by FISA, the clear illegality that was unveiled -- FISA said that X was a felony and Bush admitted to doing X
-- was continuously obscured by a combination of deceit on the part of
Bush followers and ignorance, sloth and confusion on the part of the
media. Beginning within the first days of the controversy,
Bush followers who literally had no idea what they were talking about
offered factually false claims and even distorted quotations from the
statute to justify what was done. Today is a perfect example
illustrating how completely misinformed and/or deliberately deceitful
right-wing advocates inject blatant falsehoods into these debates.

Earlier today, The New York Times' Eric Lichtblau (one of the NYT reporters who originally broke the NSA story yet often mindlessly recites false Bush claims even on this issue) wrote a story which reported
that the FISA Court of Review had issued a decision "validating the
power of the president and Congress to wiretap international phone
calls and intercept e-mail messages without a specific court order."
From start to finish, Lichtblau's description of the ruling was muddled
and contradictory, even nonsensical in some places.

Nonetheless, it was crystal clear even from Lichtblau's poorly written story that the court's ruling had
nothing whatsoever to do with whether Bush acted legally or properly
when he ordered warrantless eavesdropping on Americans from 2001-2006,
when warrantless eavesdropping was a felony under FISA
. To the contrary, as I explained earlier today (here) -- and as Talk Left's Armando and Anonymous Liberal (both
lawyers) also detailed -- the FISA court was addressing a totally
different and much narrower question: namely, whether the warrantless
eavesdropping which Congress authorized in the 2007 Protect America Act was prohibited by the Fourth Amendment's warrant requirement.

The ruling had nothing whatsoever to do with the central question at the heart of the NSA controversy: namely, whether Bush committed felonies by ordering warrantless eavesdropping in the face of a Congressional statute that explicitly made such eavesdropping a felony. As muddled as Lichtblau was, that was painfully obvious even from his story:

Aug. 22 appeals court decision upheld 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 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.

it really that hard -- especially for people who pretend to be experts
in this controversy -- to tell the difference between (a) whether the President had the authority to eavesdrop on Americans inviolation of a Congressional statute and (b) whether the Congress is constitutionally permitted to enact a statute authorizing
warrantless eavesdropping? Apparently it is hard, because hordes of
right-wing advocates, including those who claim to be "legal
experts," are falsely claiming today that the FISA court did
(a) (namely: found that the President had the power to order
warrantless eavesdropping in violation of a statute), rather than what
the court actually did: (b) (found that the Fourth Amendment does not
prohibit Congress from legalizing warrantless eavesdropping).

Since Lichtblau's article was placed online, a copy of the actual decision became available (here - .pdf). The only question it addresses -- as I explained earlier today -- (here) is whether the Protect America Act is constitutional under the Fourth Amendment (see also Anonymous Liberal's update here).
That's the only issue it addresses. It has nothing to do with the
core of the NSA scandal: whether George Bush acted properly by
ordering eavesdropping in violation of the law.

But if you are a
reader of right-wing Bush followers, you would have been fed today a
completely alternative reality in which the FISA Court "vindicated"
Bush's so-called "Terrorist Surveillance Program." Let's just survey a
few glaring falsehoods that they are disseminating today, beginning
with one of the most rabidly authoritarian voices who never stops
claiming to be a preeminent expert in this field:

Andrew McCarthy, National Review:

New York Times reports that the Foreign Intelligence Surveillance Court
of Review - the specialized federal appeals court created by the 1978
FISA statute to rule on questions involving national security
surveillance - has reaffirmed that the President of the United
States has inherent constitutional authority to monitor international
communications without court permission.

misinformed, dumb and/or dishonest does someone have to be to read
Lichtblau's article -- reporting that the court "found that Congress had acted within its authority
in August 2007 when it passed a hotly debated law known as the Protect
America Act" -- and conclude that this had anything to do with
the "inherent constitutional authority" of the President to eavesdrop
in violation of a Congressional statute? And what kind of
self-proclaimed legal expert would make giddy claims about
"vindication" from a court decision without at least noting that he
hadn't read the decision and making it clear that he had no idea
whether this was true?

McCarthy then adds:

understates the case to say the Bush administration has been slandered
for asserting this power - accused of shredding the Constitution and violating the principle that no one is above the law
(even as Congress put itself above the law - the Constitution - by
enacting and trying to enforce a statute, FISA, that sought to diminish
the president's constitutional authority). It was never true.

He's obviously aware that the central claim in the NSA scandal is that Bush broke the law because he eavesdropped in exactly the way Congress had prohibited. How can anyone think that the court decision released today had anything to do with -- let alone resolved -- that question? Descending a bit further into the right-wing muck, we find:

Ed Morrissey, Hot Air:

This should really enrage the Left. The FISA court will make public a ruling that validates George Bush's warrantless surveillance on international communications,
including those with one terminus in the United States. . . . While the
ruling does not directly reference the Terrorist Surveillance Program -
at least according to the Times - the ruling on the scope of authority invested in the executive relates directly to that program. . . .

the end, though, the biggest beneficiary should be George Bush. He has
been unfairly castigated as some sort of fascist for using the power he
already had available to track terrorist communications and keep this
nation safe. Plenty of people owe him a big apology - and the New York Times and Eric Lichtblau are first in line.

A.J. Strata, "The Strata-Sphere":

Well now the top intelligence court of the land has come out with an opinion vindicating Bush and settling once and for all how insane the lunatic left is when it comes to national security. . . . Bush leaves office vindicated,
and the Mad-Hatter left has destroyed what little credibility they have
left. They are lucky that is all their insane actions resulted in.

added: "The FIS Court of Review is the top court in the land on such
matters. . . .There is no higher authority in the federal court
system." Someone might want to tell him that before he writes further,
he should read about this thing called the "U.S. Supreme Court," which
happens to be a "higher authority in the federal court system" than
the FISA Court of Review on all matters.


there you have it, one of the biggest whinges of the left has been that
W has burned the Constitution and smoked it's ashes. And here is the
very court they were screaming he had subverted making a public ruling that the President was properly exercising his authority. If W had not undertaken these actions it would be fair to argue that he had failed to do his job making us safe from attack.

And on and on and on. I'm certain more of it is sprouting up as I write.

certainly true that some people believe and have argued that
warrantless eavesdropping (even when authorized by Congress) violates
the Fourth Amendment's warrant requirement (that's a question which the
Supreme Court, in the 1972 Keith case,
explicitly left unresolved when it ruled that Nixon's warrantless
eavesdropping in the context of domestic terrorism investigations
violated the Fourth Amendment, but said that this may or may not be
true for international terrorism investigations). The ruling released today did resolve that question (at least until Supreme Court review) by ruling that the warrantless eavesdropping which Congress authorized in the 2007 Protect America Act did not violate the Fourth Amendment.

that has always been, at most, a totally ancillary issue to the NSA
scandal. The uproar over what Bush did was based in the fact that the
eavesdropping he ordered was illegal because it was prohibited by the Congressional statute called "FISA". Bush followers and the Bush DOJ, in response, claimed
that (i) the President has the "inherent authority" under Article II to
eavesdrop however he wants, regardless of what Congress says
and (ii) the 2001 AUMF "implicitly authorized" eavesdropping in
violation of FISA.

The FISA ruling had nothing remotely to do with those issues and nobody who is minimally honest and has a working brain will claim otherwise. The only two federal judges to address those questions in the pastrejected Bush's theories and found the NSA eavesdropping program illegal. More importantly, the Supreme Court, in its 2006 Hamdan
ruling that Bush lacked the power to order military commission without
Congressional authorization, rejected the exact theories of broad
executive power used by Bush to justify the NSA program.

In fact, Andrew McCarthy himself, in the wake of the Hamdan ruling, wrote an article for National Review arguing that the Supreme Court's Hamdan ruling constituted a definitive rejection of the Bush administration's excuses for violating FISA. The article was entitled: "Dead Man Walking: Hamdan sounds the death knell for the NSA's Terrorist Surveillance Program":

The Supreme Court's decision in Hamdan v. Rumsfeld is a national-security disaster. . . . Hamdan is a disaster because it sounds the death knell for the National Security Agency's Terrorist Surveillance Program (TSP), . . .

On its face, Hamdan is a case about military commissions, not electronic surveillance. Yet, its facts are saliently analogous to those of the TSP. . . .

Under Hamdan's logic, even
if the president starts out with inherent Article II authority, that
power - constitutional power - can now be rescinded by statute. . . .

In any event, if the Kennedy theory takes root - as it seems to have in Hamdan - it is impossible to see how the TSP survives.

In the wake of Hamdan, McCarthy then added
about his defense of Bush's NSA eavesdropping program: "My own rule of
thumb is to try to fight hard but fight fair, and admit when I've lost.
I've lost."

as anyone paying even minimal attention knows -- is what the NSA
scandal has been and still is about: whether George Bush had the power
to break the law, to violate FISA, in how he eavesdropped on Americans.
The FISA decision they are celebrating today doesn't even touch on
that question. How could it? Its only concern is whether the
eavesdropping authorized by Congress transgresses
Constitutional limits. Quite obviously, it has nothing to do with the
power of the President to violate Congressional limits on eavesdropping.

this is what has been happening with the FISA controversy -- and, for
that matter, all of these lawbreaking scandals -- from the start.
Right-wing Bush followers spout total falsehoods. Reporters who cover
the story (such as Lichtblau), to say nothing of cable news talking
heads, are too slothful, ill-informed and/or just dumb to understand
why these right-wing claims are so factually false.

So they, at
best, report what "both sides" are saying, or -- as will be the case
here, I predict -- the immediate storyline that "the FISA court
vindicated Bush's spying and ruled it legal" immediately settles in (it
has the advantages of simplicity and power-worshipping, an irresistable
one-two punch for Beltway media stars), and then, no matter how many
facts are marshalled or energy is expended to uproot it, it stays
entrenched forever, rotting away and further infecting our discourse
and distorting our collective actions with regard to our government's
chronic lawbreaking. Today's orgy of ignorance is a nice little case
study of the last eight years.

* * * * *

Part 2 of my Los Angeles Times debate/discussion with American Spectator Editor Jim Antle is now available, here.
Antle makes several arguments with which I disagree but (in stark
contrast to the above-referenced individuals) makes them quite well and
reasonably. Part 1 is here.

UPDATE: The Washington Monthly's Steve Benen also documents: "Several
far-right blogs insisted today that Bush has been 'vindicated' and was
'right all along.' That's simply not what happened." Perhaps this
myth can be extinguished before taking root if enough people stomp on
it quickly and forcefully.

UPDATE II: Conservative Tom Maguire notes
the immediate reaction to news of this decision ("Cool - Bush
vindicated") but then stops and thinks about it for a second and then

But wait: . . . I am not a lawyer, but if
the question before the court was the constitutionality of the 2007
act, why would they have been also opining on the President's separate

That's a good question. He should pose
it to the Right's leading "legal expert," Andy McCarthy, whose complete
ignorance about the ruling did not stop him (as usual) from
pedantically opining on it and declaring (as usual) that it vindicated
the President.

UPDATE III: The misleading headline on the Associated Press article -- "Court ruling endorses Bush surveillance policy" -- predictably caused that headline to appear in newspapers across the country, but at least the article contained this clear and accurate statement:

decision does not address the legality of an earlier warrantless
surveillance program that the Bush administration secretly put in place
without legislation from Congress, and which The New York Times exposed
in 2005
. The 2007 law that was the focus of the court ruling
expired in 2008, but intelligence gathering efforts that it authorized
remained in effect.

Maybe Eric Lichtblau and his editors should intensely study that paragraph before writing about this topic again.

one can't help but notice how Supreme Court decisions that find Bush
policies to be illegal and unconstitutional -- such as the 2006 Hamdan
ruling which invalidated his military commissions and his assertion
that the Geneva Conventions are inapplicable to Al Qaeda and Taliban
detainees, or the 2008 Boumediene ruling which held that
Guantanamo detainees cannot be constitutionally denied habeas corpus --
are illegitimate and irrelevant when assessing the legality of Bush's
actions and should be ignored. But intermediate court rulings which
the pro-Bush Right thinks are favorable -- such as yesterday's finding
that the Protect America Act is constitutional -- are deemed infallible
and conclusive vindication for the President.

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