The 2002 Appeals Court Myth

A column in this morning’s Chicago Tribune by John Schmidt argues that Bush’s secret domestic surveillance program was legal. (Byron York posted a portion of the piece on the National Review website under the title “READ THIS IMPORTANT ARTICLE”) It features this selectively edited excerpt from a 2002 decision by the FISA appeals court:

“All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence…We take for granted that the president does have that authority.”

Actually, the quote doesn’t begin with the word “all”; it begins “The Truong court, as did all the other courts…” The Truong case was decided in 1978 — the same year FISA was passed — and did not deal with the FISA law. As the court noted right before the excerpt, “Truong dealt with a pre-FISA surveillance… it had no occasion to consider the application of the statute…” The Truong case dealt with the President’s power in the absence of a congressional statute.

This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet, “where the president is acting contrary to congressional authority…the president’s authority is at its lowest ebb.


The article also conveniently omits the two sentences after the excerpt:

It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse…

All the court is saying here is that whether FISA imposes limits on the President’s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains, “[T]he question before us is the reverse.”

See other attempts to muddle the debate here, here and here.