A Good Day

It was a good day at Powerline. I already mentioned the Taheri piece.

Additionally, there was an interesting discussion on conflicting reports about FISA judges’ testimony on the NSA Surveillance program:

These reports can't both be right. If what the Washington Times says is correct, the New York Times' account is deeply misleading, if not outright false. As we noted here, Eric Lichtblau has a huge personal investment in the idea (wrong, I think) that the NSA program is "illegal." Is Lichtblau's commitment to that proposition causing him to report falsely on testimony that was given to a Senate committee? Or did the Washington Times go too far in characterizing the judges' approval of the NSA program?

We are trying to track down a transcript of the judges' testimony, which no doubt will answer these questions.

Later in the day, our intrepid legal eagles got what they were looking for and went back to work:

Having reviewed the transcript, I conclude that the Washington Times' characterization was fair, but arguably overstated. The New York Times, however, badly misled its readers. Here are the exchanges where the judges talked about the President's constitutional authority to order warrantless surveillance:

Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary.

***

The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans.

***
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.

But perhaps the most enjoyable post of the day and clearly the most speculative is this one that wonders about Libya as sub-contractor for Saddams nuclear program.