What Fresh Hell Is This?

January 22, 2009

Fact-Checking The Trib Editorial Board

Today they wrote:
In other news: Perhaps lost in the transition of presidential administrations is word that the Foreign Intelligence Surveillance Court of Review has affirmed the government's constitutional authority to use wiretaps to collect national-security intelligence from foreign sources. And we'll bet -- and we pray -- that President Obama will employ this fully legal tool in pursuit of protecting us.
Always interested in pointing out what they left out. Despite the awful headline, the AP said this about the ruling:

In a ruling released Thursday, the court embraced the Protect America Act of 2007, which required telecommunications providers to assist the government for national security purposes in intercepting international phone calls and e-mails to and from points overseas.

The decision, which involves the gathering of foreign intelligence, was made last August but only released Thursday after it had been edited to omit classified information.

Note: It was about the Protect America Act of 2007. The AP even goes on with a quotation and some details:
"Our decision does not constitute an endorsement of broad-based, indiscriminate executive power," the court said. "Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards ... its efforts to protect national security should not be frustrated by the courts."

The decision does not address the legality of an earlier warrantless surveillance program that the Bush administration secretly put in place without legislation from Congress, and which The New York Times exposed in 2005. The 2007 law that was the focus of the court ruling expired in 2008, but intelligence gathering efforts that it authorized remained in effect.

As Glenn Grenwald rhetorically asks:
Is it really that hard -- especially for people who pretend to be experts in this controversy -- to tell the difference between (a) whether the President had the authority to eavesdrop on Americans in violation of a Congressional statute and (b) whether the Congress is constitutionally permitted to enact a statute authorizing warrantless eavesdropping? Apparently it is hard, because hordes of right-wing advocates, including those who claim to be "legal experts," are falsely claiming today that the FISA court did (a) (namely: found that the President had the power to order warrantless eavesdropping in violation of a statute), rather than what the court actually did: (b) (found that the Fourth Amendment does not prohibit Congress from legalizing warrantless eavesdropping).
He goes on:
[A] copy of the actual decision became available (here - .pdf). The only question it addresses -- as I explained earlier today -- (here) is whether the Protect America Act is constitutional under the Fourth Amendment (see also Anonymous Liberal's update here). That's the only issue it addresses. It has nothing to do with the core of the NSA scandal: whether George Bush acted properly by ordering eavesdropping in violation of the law.
Now go back and read the Trib's blurb. Changes things, huh?

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