Yesterday, I wrote an article titled How To Spot a Power Grab. In it, I made a serious mistake. I accepted as fact the AP’s reporting of the Senate Judiciary Committee hearing on the NSA intercept program. Here’s how the AP characterized it:

Five federal judges gave a boost Tuesday to legislation that would bring court scrutiny to the Bush administration’s domestic spying program. At a Senate Judiciary Committee hearing chaired by Sen. Arlen Specter, (R-PA), the judges reacted favorably to his proposal that would require the secretive Foreign Intelligence Surveillance Court to conduct regular reviews of the four-year-old program.

Powerline got a transcript of the hearing. Here’s what the transcript said:

Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant “warrantless.”] surveillance in the United States I believe exists, but it is not the President’s job to determine what that authority is. It is the job of the judiciary. The President’s intelligence authorities come from three brief elements in Article II….As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans.
Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress’s 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?
Judge Kornblum: No President has ever agreed to that.
Senator Feinstein: What do you think as a Judge?
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 proper authority.
Senator Feinstein: I would like to go down the line if I could.
Judge Baker?
Judge Baker: No, I do not believe that a President would say that.
Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?
Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too.
Senator Feinstein: Judge?
Judge Stafford: Everyone is bound by the law, but I do not 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.
Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President’s constitutional authority. Anybody disagree with that?
[No response.]
Chairman Specter: Everybody agrees with that.

Thank you, Chairman Specter, for that observation. I’ve been saying this for a very long time. Still, idiot moonbats have said the President doesn’t have these powers. In addition to the precedents for the NSA intercept program, I’ve made the argument that the President has certain enumerated duties as spelled out in the Constitution.

To then say that he doesn’t have the authority to carry out those duties is absurd. If moonbats are right, the President would need Congressional approval to do what the Constitution mandates him to do.

Let’s flip that on its head, then, shall we? If that logic is right, then Congress doesn’t have the Constitutional authority to do what the Constitution mandates without the approval and permission of the Executive branch.

To further illustrate my point, legislation can’t usurp the President’s ability to do what the Constitution mandates any more than an executive order can usurp Congress’ authority to do what the Constitution mandates Congress to do.

My point is this: If the Legislative Branch has Constitutional authority to do what the Constitution mandates it to do, then the Executive Branch has the Constitutional authority to do what the Constitution mandates the Executive Branch to do.

In any event, it’s obvious that what the AP wrote doesn’t remotely resemble what the judges testified to. Shame on them for that.

Technorati Tags: , , ,

Cross-posted at California Conservative

One Response to “The AP’s Misrepresentations”

Leave a Reply