THE JUDICIARY COMMITTEE, THE FISA COURT, AND NSA SURVEILLANCE
Andy McCarthy
The Corner
Apropos Byron’s excellent article on Sen. Specter’s hearing yesterday, I wonder how claims about the FISA court’s “unblemished record of integrity and the ability to maintain a secret” can be squared with this outrageous instance of FISA court judges' leaking to the Washington Post on January 5, 2006:
<<< Surveillance Court is Seeking Answers – Judges Were Unaware of Eavesdropping
....Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense. >>>
As previously discussed here, if what the Post reported is true, such leaking by at least two judges would be a blatant violation of the federal code of judicial conduct.
I also wonder what those pushing for FISA court participation in the NSA controversy make of the Supreme Court’s view on judicial intrusion into the domain of foreign affairs (of which foreign intelligence collection has long been held an elementary component). Interestingly, the following prophetic words, excerpted from Chicago & Southern Air Lines v. Waterman S.S. Corp., were written 58 years ago by Justice Robert Jackson, whose concurrence in the 1952 Steel Seizure is a favorite of the anti-NSA program crowd, and who, as Attorney General to FDR, carried out warrantless domestic electronic surveillance during World War II (all italics are mine):
<<< The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry. >>>
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