Time and time again, the NYT has been proven wrong. Tonight's example: NYT Abandons Reporting for Assertion
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NYT Abandons Reporting for Assertion
Via Power line, New York Times reporter Eric Lichtblau appears to have asserted something in his wiretapping story today that just isn't supported by his own reporting, much less a transcript of the hearing. In the second paragraph of the story, Lichtblau wrote:
In a rare glimpse into the inner workings of the secretive court, known as the Foreign Intelligence Surveillance Court, several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order. They also suggested that the program could imperil criminal prosecutions that grew out of the wiretaps.
The only reporting I can find in Lichtblau's story to back up this assertion is contained in the next paragraph, where he writes:
Judge Harold A. Baker, a sitting federal judge in Illinois who served on the intelligence court until last year, said the president was bound by the law "like everyone else." If a law like the Foreign Intelligence Surveillance Act is duly enacted by Congress and considered constitutional, Judge Baker said, "the president ignores it at the president's peril."
It only takes one look at the transcript to see how Lichtblau has changed the meaning of this quote by taking it out of context. At the time, Baker was on the receiving end of an aggressive line of questioning from Democrat Sen. Diane Feinstein. Here's the relevant passage:
FEINSTEIN: Thank you very much. Now, I want to clear something up. Judge Kornblum spoke about Congress' 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?
[U.S. District Judge Allan] KORNBLUM: No president has ever agreed to that.
When the FISA statute was passed in 1978, it was not perfect harmony. The intelligence agencies were very reluctant to get involved in going to court. That reluctance changed over a short period of time, two or three years, when they realized they could do so much more than they'd ever done before without...
FEINSTEIN: What do you think, as a 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 — I forget the constitutional — his necessary and proper authority.
FEINSTEIN: I'd like to go down the line, if I could, Judge, please. Judge Baker?
[U.S. District Judge Harold] BAKER: Well, I'm going to pass to my colleagues, since I answered before. I don't believe a president would surrender his power, either.
FEINSTEIN: So you don't believe a president would be bound by the rules and regulations of a statute. Is that what you're saying?
BAKER: No, I don't believe that. A president...
FEINSTEIN: That's my question.
BAKER: No, I thought you were talking about the decision…
FEINSTEIN: No, I'm talking about FISA and is a president bound by the rules and regulations of FISA?
BAKER: If it's held constitutional and it's passed, I suppose he is, like everyone else: He's under the law, too.
FEINSTEIN: Judge?
[U.S. District Judge Stanley] BROTMAN (?): I would feel the same way.
FEINSTEIN: Judge Keenan?
[U.S. District Judge John] KEENAN: Certainly the president is subject to the law. But by the same token, in emergency situations, as happened in the spring of 1861, if you remember — and we all do — President Lincoln suspended the writ of habeas corpus and got in a big argument with Chief Justice Taney, but the writ was suspended.
KEENAN: And some of you probably have read the book late Chief Justice Rehnquist wrote, "All the Laws But One." Because in his inaugural speech — not his inaugural speech, but his speech on July 4th, 1861, President Lincoln said, essentially, "Should we follow all the laws and have them all broken, because of one?"
FEINSTEIN: Judge?
(UNKNOWN) [probably U.S. District Judge William Stafford]: Senator, everyone is bound by the law, but I don't 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.
And it's hard for me to go further on the question that you pose, but I would think that (inaudible) power is defined in the Constitution, and while he's bound to obey the law, I don't believe that the law can change that.
FEINSTEIN: So then you all believe that FISA is essentially advisory when it comes to the president.
(UNKNOWN): No.
FEINSTEIN: That's what you're saying.
I don't mean — my time is up, but this is an important point. If the president isn't bound by it...
SPECTER: Excuse me. It was four and a half minutes ago. But pursue the line to finish this question, Senator Feinstein.
FEINSTEIN: I don't understand how a president cannot be bound by a law.
(UNKNOWN): I could amend my answer to saying...
FEINSTEIN: But if he is, then the law is advisory, it seems to me.
(UNKNOWN):* No, if there's an enactment, a statutory enactment, and it's a constitutional enactment, the president ignores it at the president's peril.
* Lichtblau attributes this quote to Harold Baker
Throughout the long line of questioning, each judge appears to support the argument that the president did not act illegally when he used his constitutional authority to order the NSA to eavesdrop on people in the United States receiving phone calls from suspected al-Qaeda terrorists. Baker merely stated the obvious — that if the president had circumvented a statute without having the constitutional authority to do so, he would be doing so at his peril.
I wonder if Lichtblau can point to anything in the transcript that justifies his assertion that "several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order." Because the transcript I read indicates that the exact opposite is true.
UPDATE: Several readers have asked why I didn't link to a transcript of the hearing. The answer is that the transcript comes from a subscription service (CQ).
UPDATE II: Power line examined the transcript and came to the same conclusion — it does not support Lichtblau's assertion.
[ 03/29/2006 03:49 PM ] |
