Holder on Executive Authority

What a breath of fresh air Eric Holder's confirmation hearing was. From "Waterboarding is torture," to this exchange, we're going to have a real lawyer at the helm again.

FEINGOLD: Is there anything in the FISA statute that makes you believe that the president has the ability under some other inherent power to disregard the FISA statute?

HOLDER: No, I do not see that in the FISA statute.

That's important for the editorial board of the Wall Street Journal and for the LA Times to note. Here's Media Matters:

A January 16 Wall Street Journal editorial falsely claimed that, in a recently released decision, the Foreign Intelligence Surveillance Court of Review affirmed the legality of the Bush administration's "warrantless wiretapping program" that "was exposed in 2005." The editorial stated: "Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act [FISA]. Well, as it happens, the same FISA court would beg to differ." In fact, the decision applies only to surveillance conducted pursuant to a 2007 congressional statute, the Protect America Act (PAA), and does not say anything about the legality of the warrantless wiretapping program exposed in 2005.

Indeed, the Journal editorial later noted that the court decision "applies only to the stopgap FISA measure in place between 2007 and 2008."

A January 16 Los Angeles Times article made a similar false suggestion, asserting that CIA Director Michael Hayden, "an architect of the warrantless wiretapping operation" when he was the director of the National Security Agency in 2001, "won a measure of vindication with the release of a court ruling Thursday that supported the administration's right to compel U.S. telecommunications companies to cooperate with the eavesdropping effort."

The FISA law, as Holder clearly says, is a law like any other. When the president disregards it, it's still against the law. The decision by the review court didn't change that a bit.

The WSJ is in a full court press to bolster the Bush legacy. The rest of the media is just lazy, or stupid, or incompetent, without actual legal experts on staff who will take the trouble of reading a court decision before reporting on it. That includes Lichtblau, who jumped to unsupported conclusions in his initial reporting of this story--unsupported conclusions that formed the basis of the lie we're seeing spread through the media now.

In an updated story today, with his former partner James Risen, he walks the story back a bit, but still includes the "he said, she said" reporting that allows Republican operatives to lie about the decision: "'It provides a very good result; it reaffirms the president’s right to conduct warrantless searches," said David Rivkin, a Washington lawyer who has served in Republican administrations." That false assertion shouldn't have even been included in the story, but there it is.

All of which serves to set the narrative that the crimes of the Bush administration weren't really crimes and we really should just move on now. Holder, and Obama, at lease pay lip service to the idea that no one is above the law. They know better than to believe that building narrative, but acting on that is going to be another matter.

Update: Sen. Feingold weighs in on the FISA Court of Review decision:

"The recently declassified decision by the FISA Court of Review in no way validates or bolsters the president’s illegal warrantless wiretapping program.  The decision, which only addressed surveillance authorized by the Protect America Act (PAA) enacted in August 2007, did not support the President’s claim of constitutional authority to violate the law.  Nor did the decision uphold the constitutionality of the PAA in all cases, but rather it upheld only the Act’s application in this particular case.  Finally, it is my view that the Court’s analysis would have been fundamentally altered if the company that brought the case had been aware of, and thus able to raise, problems related to the government’s implementation of the law, about which I have repeatedly raised concerns in classified settings."

He's also released a Fact Sheet on the decision. That's below the fold.

Fact Sheet on the FISA Court of Review
Decision on the Protect America Act

The recently declassified decision by the FISA Court of Review in no way validates or bolsters the president’s illegal warrantless wiretapping program.  The decision only addressed surveillance authorized by statute – the August 2007 Protect America Act ("PAA").  It did not support the President’s claim of inherent constitutional authority to violate the law.  In fact, the court explicitly stated that "we caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power."

The decision did not uphold the constitutionality of the Protect America Act in all cases, but rather approved the Act only as it was applied to one company.  The court declined to consider whether the PAA or any of its provisions were constitutional on their face or whether abuses had occurred or could occur in different contexts.  As the court stated, it "may not speculate about the validity of the law as it might be applied in different ways or on different facts."  Instead, the court ruled solely on the constitutionality of the directives, issued pursuant to the PAA, to one company.

The decision placed the burden of proof on the company to identify problems related to the implementation of the law, information to which the company did not have access.  The court upheld the constitutionality of the PAA, as applied, without the benefit of an effective adversarial process.  The court concluded that "[t]he record supports the government.  Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse in the circumstances of the instant case."  However, the company did not have access to all relevant information, including problems related to the implementation of the PAA.  Senator Feingold, who has repeatedly raised concerns about the implementation of the PAA and its successor, the FISA Amendments Act ("FAA"), in classified communications with the Director of National Intelligence and the Attorney General, has stated that the court’s analysis would have been fundamentally altered had the company had access to this information and been able to bring it before the court.

In the absence of specific complaints from the company, the court relied on the good faith of the government.  As the court concluded, "[w]ithout something more than a purely speculative set of imaginings, we cannot infer that the purpose of the directives (and, thus, of the surveillance) is other than their stated purpose... The petitioner suggests that, by placing discretion entirely in the hands of the Executive Branch without prior judicial involvement, the procedures cede to that Branch overly broad power that invites abuse.  But this is little more than a lament about the risk that government officials will not operate in good faith."  One example of the court’s deference to the government concerns minimization procedures, which require the government to limit the dissemination of information about Americans that it collects in the course of its surveillance.  Because the company did not raise concerns about minimization, the court "s[aw] no reason to question the adequacy of the minimization protocol."  And yet, the existence of adequate minimization procedures, as applied in this case, was central to the court’s constitutional analysis.

The decision points to the importance of congressional action to defend the rights and privacy of Americans and ensure checks and balances.  By limiting its review of the PAA to its application to one company, and by effectively requiring evidence from the company to which the company does not have access, the court underscored the need for statutory protections.  Members of Congress have access to critical information related to problems in the implementation of the PAA and the FAA – problems that can be addressed through amendments to the FAA.  Congress also has the responsibility to anticipate the potential for abuse and put in place privacy and civil liberty protections and a system of checks and balances, including adequate oversight by the court itself.