I see we have yet another FISA article from Matt Continetti in the new Weekly Standard. I won’t bore readers rehashing the factual problems I’ve already pointed out, many of which recur here. But let me pick on a couple novel ones:

And yet: No sooner had the ink dried on Ellen Nakashima and Paul Kane’s March 4 Washington Post story–“Wiretap compromise in works”–than House Democrats began to walk away from said compromise.

That is a…. creative… way to describe what happened last week. Here’s how The Politico reported it:

Congressional Republicans say they will accept nothing but a Senate-passed update to the Foreign Intelligence Surveillance Act that includes retroactive immunity for telecommunications companies that cooperated with the wiretapping program the Bush administration initiated after Sept. 11, 2001. [….]

Earlier in the day Tuesday, Democratic aides from the House and Senate Judiciary and Intelligence committees met in the latest in an ongoing series of meetings to resolve differences between the two versions of the bill. Republicans boycotted the meetings — as they have previous meetings on the issue — and insisted the House should vote immediately on the Senate-passed bill.

Somehow, I’m not sure how, this gets parsed as the Democrats “walking away” from a compromise. And there’s a little more about the old extrajudicial surveillance:

During this time, the government’s foreign intelligence collection efforts were known as the “Terrorist Surveillance Program.” It was not “illegal.” Just because the ACLU and the Electronic Frontier Foundation say it was doesn’t make it so. Federal case law has long upheld the president’s authority to gather foreign intelligence without warrant. FISA does not trump that authority.

Yes, well, just because Matt says it was legal doesn’t make it so either, especially when he distorts the case law. What you’ll actually find, if you look back over the legal history, is a string of decisions in which the Supreme Court imposes restrictions on various forms of domestic surveillance, and then make clear that their rulings don’t apply to foreign intelligence surveillance because such surveillance was not at issue. Early wiretap decisions similarly declined to treat domestic national security surveillance, but when the Court finally got around to considering the matter, it concluded that prior judicial approval was constitutionally required. This tells us that courts generally prefer not to rule more broadly than the fact pattern they’re facing requires; it tells us very little about the actual legality of this program. What you’ll also find are plenty of decisions making very clear that the president’s exercise of his commander-in-chief powers certainly is subject to restrictions Congress establishes, even in wartime. Youngstown is the one most frequently cited, but you can go back at least as far as 1804 and Little v. Barreme. In that case, the Court was presented with a question about the validity of a presidential order to seize American ship bound to or from French ports, when Congress had specified that such seizures were to be limited to ships sailing to France. Crucially, the Court acknowledged that in the absence of any statute, the president probably would have had the authority—the “inherent authority,” you might say—to order such seizures, but that in light of the statutory language, his hands were tied. Intriguingly for present purposes, the Court also found that the captain of the ship that carried out the seizure was liable to the owners of the seized vessel. Chief Justice Marshall wrote:

I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers, and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is that the instructions cannot change the nature of the transaction or legalize an act which without those instructions would have been a plain trespass.

Apparently, civilian executives at telecom companies with armies of top lawyers at their command are to be held to a lower standard of responsibility. Back to Continetti:

You do not have to take our word for it, either. It was a Democrat, Carter attorney general Griffin Bell, who pointed this out when FISA was created in 1978. It was another Democrat, Clinton’s deputy attorney general Jamie Gorelick, later a vice chair of the 9/11 Commission, who made the same point when FISA was amended in 1994.

You know, it’s the funniest coincidence, because there was also an Attorney General Griffin Bell who testified as follows during hearings about FISA (emphasis mine):

I would particularly call your attention to the improvements in this bill over a similar measure introduced in the last Congress. First, the current bill recognizes no inherent power of the president to conduct electronic surveillance…. Whereas the bill introduced last year contained an explicit reservation of Presidential power of electronic surveillance within the United States, this bill specifically states that the procedures in the bill are the exclusive means by which electronic surveillance, as defined in the bill, and the interception of domestic wire and oral communications may be conducted.

This AG Bell clearly regarded it as a feature that FISA left no loopholes for the president to conduct foreign intel surveillance within the U.S. outside the limits of FISA. They must have been cousins or something. In all seriousness, Bell did interject that FISA “does not take away the powers of the President under the Constitution.” But in context, the clear meaning of that remark was that he did not regard the FISA law as an impermissible encroachment on presidential power. He was emphatically not claiming that the president retained the power to ignore FISA when he saw fit, and he explicitly approved of the elimination of any language that might be read to suggest such discretion existed. Here is how Gorelick “made the same point” in 1994:

First, the Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.

Wow, pretty compelling! Except here’s what she said next:

That being said, the Department of Justice believes that Congress can legislate in the area of physical searches as it has done with respect to electronic surveillances, and we are prepared to support appropriate legislation.

In other words, she was saying that the president is empowered to act here in the absence of a controlling statute. She was not saying that this precludes Congress from specifying rules and procedures for such searches—indeed, she was saying the reverse. So in both cases, we have remarks that have been rather perversely ripped from context to suggest that the speakers were defending positions precisely the opposite of those they were actually advancing.

Look, here’s a good rule of thumb for a complex public debate: If one side seems unable to make their case without constantly, repeatedly, incessantly saying things that are demonstrably untrue, that’s probably an indication that it’s the wrong side.