On CNN's Lou Dobbs Tonight, Andrew C. McCarthy, a senior fellow at the Foundation for the Defense of Democracies and a contributor to National Review, falsely suggested that FISA did not apply in wartime because due process "in wartime is not the same as" due process "the rest of the time." In direct contradiction to McCarthy's claim, FISA does, in fact, contain specific wartime provisions.
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On the January 18 edition of CNN's Lou Dobbs Tonight, Andrew C. McCarthy, a senior fellow at the Foundation for the Defense of Democracies and a contributor to National Review, falsely suggested that the 1978 Foreign Intelligence Surveillance Act (FISA) did not apply in wartime because due process "in wartime is not the same as" due process "the rest of the time." In direct contradiction to McCarthy's claim, FISA does, in fact, contain specific wartime provisions. Revelations of President Bush's authorization of domestic surveillance by the National Security Agency (NSA) without the search warrants called for in FISA has drawn fire for what critics say is a circumvention of the law.
Discussing FISA's provisions, Dobbs questioned why the administration did not get a warrant to conduct domestic electronic surveillance as required by the statute. Dobbs described the need to get permission to conduct surveillance from the FISA court as "due process, as it seems to us laymen." McCarthy answered that due process is "actually, oddly enough, the process that is due," and said that "the process that's due in wartime is not the same as the process that's due the rest of the time. There's an awful lot of things that we can do in wartime that we can't do the rest the time." But McCarthy's statement ignores specific provisions in FISA for surveillance in wartime -- highly pertinent given that Dobbs had asked about obtaining warrants under that statute. FISA's specific grant of wartime authority to the president defines, in the electronic surveillance area, the "process which is due" in wartime, and limits McCarthy's more open-ended view.
Section 1811 of FISA, titled "Authorization during time of war," grants the president a 15-day window after a congressional declaration of war to conduct foreign intelligence electronic surveillance without a court order. As Media Matters for America explained, President Bush's 45-day authorization -- which he has said he has renewed more than 30 times since he first authorized the NSA program in 2002 -- did not meet the requirements of FISA's wartime provisions.
As Bruce Fein, a former associate deputy attorney general under President Reagan and a former Republican counsel during the Iran-Contra hearings, wrote in a December 28 Washington Times op-ed, Bush could not lean on a general authorization for war because that cannot override the specific limits imposed by the wartime provisions of FISA:
President Bush preposterously argues the Sept. 14, 2001, congressional resolution authorizing "all necessary and appropriate force against those nations, organizations or persons [the president] determines" were implicated in the September 11 attacks provided legal sanction for the indefinite NSA eavesdropping outside the aegis of FISA. But the FISA statute expressly limits emergency surveillances of citizens during wartime to 15 days, unless the president obtains congressional approval for an extension: "[T]he president, through the attorney general, may authorize electronic surveillance without a court order ... to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress."
A cardinal canon of statutory interpretation teaches that a specific statute like FISA trumps a general statute like the congressional war resolution. Neither the resolution's language nor legislative history even hints that Congress intended a repeal of FISA. Moreover, the White House has maintained Congress was not asked for a law authorizing the NSA eavesdropping because the legislature would have balked, not because the statute would have duplicated the war resolution.
From the January 18 edition of CNN's Lou Dobbs Tonight:
DOBBS: Joining me now, former federal prosecutor Andrew McCarthy, senior fellow at the Foundation for the Defense of Democracies. Andrew, good to have you here. In your judgment, obviously, you believe this is a legal approach?
McCARTHY: I think the approach of doing the surveillances is definitely legal. I think the lawsuits, as the White House says, are frivolous. The subject matter is now frivolous. I think it's perfectly appropriate for Americans to be concerned about domestic surveillance, but there is plenty of authority in its Constitutional authority in the president's portfolio under Article II.
DOBBS: Let me ask you this: Under FISA, they have the ability to spy on Americans with a warrant, to go before FISA court and simply get that permission -- due process, as it seems to us laymen, and those of us who are concerned about our rights in this country. Why not just do that?
McCARTHY: Well, you know, Lou, due process is really, actually, oddly enough, the process that's due. And the process that's due, in wartime, is not the same as the process that's due the rest of the time. There's an awful lot of things that we can do in wartime that we can't do the rest the time. We actually kill people on the battlefield, destroy homes, seize people.