Martin Garbus has been covering the legal/constitutional angle of the NSA scandal for Huffington Post. While he is a well-known First Amendment attorney, he is not the most elegant or thorough writer in the world (one wishes the HP staff would edit him a bit). But so far there are not many constitutional lawyers saying much about impeachment so he fills a useful niche in the political debate.
He came up with an arresting tidbit in tonight’s HP column:
…The public shall also learn about the FISA judges’ misuse of the FISA courts and their warrants. The courts were created to permit eavesdropping and electronic surveillance, not physical break-ins.
The facts will show that the Bush administration, with the knowledge, and at times, the consent of the FISA judges, conducted illegal physical break-ins – break-ins that to this day, the involved person, is unaware of.
There are a few problems with this statement. It is unsourced. One assumes that someone of Garbus’ legal background might have sources in the government apparatus or among lawyers representing some of those the NSA surveilled who might know more about this claim and possibly substantiate it further. Of course, there is a possibility that Garbus is pulling a Drudge on us and that his charge is unfounded. But I sure put enough credence in it to bring it to your attention.
****UPDATE: After I posted this as a diary entry at Daily Kos, an expert on FISA pointed me to the Cornell Law School website which contains all of the FISA statutes. The problem with what Garbus wrote above, at least as I read him, is that he is dead wrong. FISA DOES indeed permit physical searches (which Garbus calls “break-ins”). In fact, FISA statutes even permits warrantless physical searches:
“…the President, acting through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year”
If I’m misunderstanding what Garbus intended to say, then it’s possible there is some truth to his statement. But barring that, I think it’s incumbent on the progressive media to ensure that its claims are authenticated, accurate and credible. Otherwise, it’ll be too easy for the other side to dismiss us as cranks and hysterics.
If the charge is true it means that not only has Bush co-opted the NSA to commit illegal acts; but he has now co-opted the FISA court to do so as well. Garbus is essentially accusing federal judges of condoning violations of federal law which is a damn serious proposition. I’d like to know what Garbus means by “illegal break-ins.” I don’t know FISA well enough to say what it permits and what it doesn’t; but I’m assuming that Garbus implies that the break-ins were warrantless or possibly approved due to prior illegal NSA snooping.
I sure hope Eric Lichtblau at the Times, who “owns” this story will address Garbus’ charge in future NSA-related articles in the NYT.