“The Ellipsis that Eclipses,” or “How ... keeps you in the dark.”

Byron York, of the National Review, was on Meet the Press today. The subject turned to King George W's program of domestic spying, and the fact that the Congressional Research Bureau didn't find legal authority to support it. Here’s what Byron said:

The White House is not just making it up. There was a case in 2002, by the FISA Court of Review, In re: Sealed Case. It referred to an earlier case called Truong and it said:

“[That] court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … We take for granted that the President does have that authority. …”

So they have a legal basis for what they’re doing.

Of course, listening to Meet the Press, you couldn’t actually hear the ellipses. For that you have to read the actual text of In re: Sealed Case.

What is hidden behind that ellipsis? Well, there’s a footnote which says that the case of Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (en banc), cert denied, 425 U.S. 944 (1976), suggested the contrary in dicta. Wow! Eighteen pages of dicta, that the Supremes didn’t want to review.

In the immortal words of Ron Popiel, “But wait! There’s more!”

The actual sentence relegated to shadows by Byron's ellipsis is “It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority in the case before it.”

See how this works? Byron takes a quote from an actual court case, and he uses it to support the view that the President had unbounded authority to engage in warrantless electronic surveillance. But to do so, he has to do some editing. In particular, he edits out the sentence that says, “Yes, by golly! There are boundaries, to that power.”

Another interesting quote from In re: Sealed Case is this little morsel:

“That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power.”

You heard right! Truong was decided before FISA was even a law! For those who can never get enough irony, remember that King George W argued in Kansas that the FISA law wasn’t controlling because it was, I kid you not, too old!

Again, quoting Ron Popiel: “But that’s not all!” The Truong case upheld the lower court which suppressed evidence seized by the government, because, as we have said, the President’s executive power is not unlimited and in that case, the executive branch went too far!

That about covers what Byron hid with the first ellipsis. But stay tuned for this special bonus!

The last sentence of Byron’s selection ends with another ellipsis because Byron didn’t want you to hear the full sentence:

We take for granted that the President does have that authority [i.e. to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power. [emphasis added]

Now here’s the interesting part: The Court in In re: Sealed Case realized that our court system is an adversary process, and therefore, it invited the National Association of Criminal Defense Lawyers (NACDL)and the American Civil Liberties Union (ACLU) to brief the court as amici curiae, that is, friends of the court. And these two organizations argued that the FISA law was unconstitutional. But the Court rejected those arguments and upheld the FISA law, meaning, that FISA does not encroach on the President’s constitutional power: it is constitutional.


Byron sure picked a funny case to cite in support of the President’s unrestricted power to conduct domestic spying without a warrant. But Byron York is a professional pundit, so I suppose we should expect a little fudging on the facts. After all, it was Lord Byron who said,

For though I will not make confession,
I've seen too much of man's deception 
Ever again to trust profession. 

(A letter to J.T. Becher, 1898)

“... and tell 'em Big Mitch sent ya!”