March 30, 2006

NYT Seriously Misrepresents FISA Judges' Testimony On NSA Intercepts
— Ace

What a shock. The NYT and the particular reporter writing the story have both an ideological and professional interest in establishing that Bush acted illegally, and so they write the judges essentially said that.

What they actually said, among other things:

Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?

Judge Kornblum: No President has ever agreed to that. ***

Senator Feinstein: What do you think as a Judge?

Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.

Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?

Judge Baker: No, I do not believe that a President would say that.

Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?

Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too. ***

Senator Feinstein: Judge?

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution. ***

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

Sounds like the judges were saying, pretty clearly, that no act of Congress can take away an inherent power of the president. It's not established, exactly, that the President has such inherent power, but the judges didn't seem to reject the notion out of hand.

Posted by: Ace at 11:12 AM | Comments (11)
Post contains 409 words, total size 3 kb.

1 Sounds like the judges were saying, pretty clearly, that no act of Congress can take away an inherent power of the president.

Well, no f'ing shit! Man, I slept through my Con Law classes and even *I* know this.

It's amazing how few people in Congress bother to understand the most basic "rules of the road" of the United States Government. I mean, that Constitution is sooo hard to understand, what with it being written over 200 years ago and all.

Dave at Garfield Ridge

Posted by: Dave at Garfield Ridge at March 30, 2006 11:26 AM (y1hCN)

2 Really the Judges' response was just common sense. We can see now why that one judge quit: he was surrounded by intelligent, capable judges rather than activist freaks and couldn't stand it.

Posted by: Canelone at March 30, 2006 11:29 AM (1Vbso)

3 Well, jeez, Dave, of course its' hard to read; all the printing has those funny looking esses that look like effs, and the paper is all yellowed and crinkly, and; oh, wait, that's just my birth certificate. Never mind.

Posted by: Sort-of-Mad Max at March 30, 2006 11:31 AM (Ft+og)

4 I'm always surprised at how few people realize that Congress can't just pass any old law and force the President to follow it. The Congress cannot, under the Constitution, abrogate any inherent Presidential power. Any law thus passed is, by definition, unconstitutional. The War Powers Act is a good example: it's been on the books since the Nixon years, but no sitting President has ever acknowledged being bound by it. (I'm surprised, quite frankly, that it hasn't been stricken down since it was passed -- but I guess neither party wants to get into the pissing match that would entail.)

Posted by: Monty at March 30, 2006 11:54 AM (/V4PN)

5 Every congressman stands before the public and with hand on a Bible swears to uphold and defend the constitution. Shortly thereafter, they retire to the Senate or House bathrooms and roll off a goodly wad of Constitution-print toiletpaper and wipe their broad, blubbery asses with it. Were this society one of honor any more, duels would deal with many of these scum. As is, we simply don't have the mangerines to hold them to their word.

Posted by: Canelone at March 30, 2006 01:48 PM (1Vbso)

6 Duels?

I'll pass, thanks.

Posted by: Alexander Hamilton at March 30, 2006 02:41 PM (U33qp)

7 Pussy.

Posted by: Aaron Burr at March 30, 2006 02:48 PM (Qki3V)

8 The cool thing is how FLEXIBLE this interpretation is! I can recall everyone nodding in agreement with this statement:

Not even the President is above the law.

But in this admin's interp of the law, the President has unbridled power beyond any Congressional law, simply by declaring war. And as Monty points out, the President can declare war without Congress.

You can build a whole dictatorship out of this one principle, EASILY.

Interestingly, at the time the country was founded, such an interpretation of executive power was not propounded by ANY of the founding fathers.


Because they just fought a war to create a country without that power in one person.

Posted by: at March 30, 2006 05:06 PM (ANynN)

9 The lack of constitutional comprehension in lefties is truly breathtaking.

Posted by: Canelone at March 30, 2006 05:58 PM (1Vbso)

10 Can anyone ever expect the whole truth out of the New York Sewer?

Posted by: spurwing plover at March 31, 2006 05:11 AM (Dutrh)

11 3/30 10:06 pm unnamed poster: The FF's fully understood that the President had such power. In the Fed Papers and other supporting documents (the LOA's 2 - volume Debate on the Constitution is an excellent and affordable resource), they depended on the 4-year term, congress's budgetary power, etc. to control the Executive.

However, one of the primary reasons for junking the AoC in favor of the Constitution was to give a single Executive the power and flexibility to direct national defense.

Posted by: jeff z at March 31, 2006 06:37 AM (v8gGW)

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