Contrary to what the President told the country in the State of the Union, no court has ever approved warrantless surveillance in violation of FISA.
The President's claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless.
But it is one thing to make a legal argument that has no real support in the law. It is much worse to do what the President has done, which is to make misleading statements about what prior Presidents have done and what courts have approved, to try to make the public believe his legal arguments are much stronger than they are.
For example, in the State of the Union, the President argued that federal courts have approved the use of presidential authority that he was invoking. I asked the Attorney General about this when he came before the Judiciary Committee, and he could point me to no court, "not the Supreme Court or any other court" that has considered whether, after FISA was enacted, the President nonetheless had the authority to bypass it and authorize warrantless wiretaps. Not one court.
The Administration's effort to find support for what it has done in snippets of other court decisions would be laughable if this issue were not so serious.
In the same speech, the President referred to other Presidents in American history who cited executive authority to order warrantless surveillance. But of course, those past presidents "like Wilson and Roosevelt" were acting before the Supreme Court decided in 1967 that our communications are protected by the Fourth Amendment, and before Congress decided in 1978 that the executive branch could no longer unilaterally decide which Americans to wiretap.
I asked the Attorney General about this issue when he testified before the Judiciary Committee. And neither he nor anyone in the Administration has been able to come up with a single prior example of wiretapping inside the United States since 1978 that was conducted outside FISA's authorization.
So the President's arguments in the State of the Union were baseless, and it is unacceptable that the President of the United States would so obviously mislead the Congress and American public.
The President also has argued that periodic internal executive branch review provides an adequate check on the program. He has even characterized this periodic review as a safeguard for civil liberties. But we don't know what this check involves. And we do know that Congress explicitly rejected this idea of unilateral executive decision-making in this area when it passed FISA.
Finally, the President has tried to claim that informing a handful of congressional leaders, the so-called Gang of Eight, somehow excuses breaking the law. Of course, several of these members said they weren't given the full story. And all of them were prohibited from discussing what they were told. So the fact that they were informed under these extraordinary circumstances does not constitute congressional oversight, and it most certainly does not constitute congressional approval of the program.
Indeed, it doesn't even comply with the National Security Act, which requires the entire memberships of the House and Senate Intelligence Committee to be "fully and currently informed of the intelligence activities of the United States."
Nor does the latest agreement to allow a seven-member subcommittee to review the program comply with the law. Granting a minority of the committee access to information is inadequate and still does not comply with the law requiring that the full committee be kept fully informed.
In addition, we now know that some of the Gang of Eight expressed concern about the program. The Administration ignored their protests. One of the eight members of Congress who has been briefed about the program, Congresswoman Jane Harman, ranking member of the House Intelligence Committee, has said she sees no reason why the Administration cannot accomplish its goals within the law as currently written.
None of the President's arguments explains or excuses his conduct, or the NSA's domestic spying program. Not one. It is hard to believe that the President has the audacity to claim that they do.
And perhaps that is what is most troubling here, Mr. President. Even more troubling than the arguments the President has made is what he relies on to make them convincing the credibility of the office of the President itself. He essentially argues that the American people should trust him simply because of the office he holds.
