FISA judges say Bush within law

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A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).

The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.

"If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now," said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. "I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute."

The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.

Judge Kornblum said before the 1978 FISA law, foreign surveillance was done by executive order and the law itself was altered by the orders of Presidents Ford, Carter and Reagan.

It has been three months since President Bush said publicly that the NSA was listening to phone conversations between suspected terrorists abroad and domestically. The actions raised concerns from Congress and civil liberties groups about domestic spying, but the judges said that given new threats from terrorists and new communications technologies, the FISA law should be changed to give the president more latitude.

Sen. Arlen Specter, Pennsylvania Republican and committee chairman, called the hearing to get advice on his bill that would expand FISA to codify less stringent rules on wiretapping of domestic phone conversations with suspected foreign terrorists and include new technologies like the Internet and satellite communications.

Sen. Patrick J. Leahy, Vermont Democrat, said the Congress should pass new legislation to ease existing restrictions under FISA.

"However, we should not rush to give the administration new powers it has not deigned to request, based on concerns it has not articulated," Mr. Leahy said.

The panel of judges unanimously agreed that the law should have been changed before now to deal with new threats from terrorists and new communications technologies, a point made by Sen. Dianne Feinstein, California Democrat.

"It is confusing that if you take something off of a satellite it is legal, but if you take it off of a wiretap it's not," she said. "We need to include new technology."