All-Star Panel: Debate over power of the FISA Court

This is a rush transcript from "Special Report," July 9, 2013. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

JAMES ROBERTSON, FORMER FISA JUDGE: The FISA process is ex parte, which means it's one sided, and that's not a good thing. And, secondly, under the FISA Amendments Act, the FISA Court now approves programmatic surveillance. And that, I submit and will discuss for a few minutes, I do not consider to be a judicial function.

JAMES COMEY, FBI DIRECTOR NOMINEE: In my experience, which is long, with the FISA Court, folks don't realize that it's a group of independent federal judges who sit and operate under a statutory regime to review requests by the government to use certain authorities to gather information, and it is anything but a rubber stamp.

(END VIDEO CLIP)

BRET BAIER, ANCHOR: Former Bush deputy attorney general James Comey now trying to be the new FBI director in confirmation today. Before that a former FISA judge who has problems with the FISA court. We're back with the panel.  Kirsten, what about this court and the fight to know more about it both on Capitol Hill and around the country?

KIRSTEN POWERS, COLUMNIST, NEW YORK POST: Well, I think that's the big issue. Even if you support the existence of FISA, it's wanting to know more about the rulings. For example, you know, you have the Justice Department saying that we shouldn't be able to see what the rulings are. That it's, you know, the New York Times is reporting that it's sort of set up this parallel Supreme Court, that they are reinterpreting the Fourth Amendment in ways that, you know, that we need to understand. And so it's hard to really come to a conclusion about it until more information is released about it so we can actually review what they are doing.

BAIER: Some of the reporting, including the Wall Street Journal, Jason, said that the court made a determination that "relevant" was the key word, what was relevant, so that it opened up a broad investigative possibility to kind of suck up all kinds of information because it may be relevant to various investigations.

JASON RILEY, WALL STREET JOURNAL: Well, I don't see the problem, really, is that the court being too one-sided or being too much of a rubber stamp. I think the problem is that the law, the FISA Act, encroaches on executive war powers. I think it needs to be scrapped. We don't want -- the writers of the Constitution made the president the commander and chief. The buck is supposed to stop with him on national security, not with a secret court full of unelected judges.

I want our spooks snooping on Al Qaeda. And when something goes wrong, I want to be able to turn to elected officials, Congress or the attorney general who is answering to the president who is answering to the people for answers. I don't want to be able -- I don't want Congress to be in a position to pass the buck and say we went to this FISA Court, they didn't let us do what we needed to do. Don't blame us. And that's what in effect the FISA court provides is an excuse for elected officials not to be held accountable.

BAIER: Charles?

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: I want our spooks listening in on Al Qaeda but I don't want our spooks listening in on our calls unless there is a national security reason that rises to a certain level. I think we have to have a FISA Court. It's good to have a review. You cannot have unfettered executive action on this.

But the problem is not the FISA Court. I think the emphasis here is completely wrong. It isn't as if these 11 independent judges all of a sudden want to aggrandize their power and run the national security state and decide what is allowed and what is not. Yes, their rulings are broad and, yes, they have allowed almost everything. But the problem is the Congress, the Congress -- all it has to do today is to it pass a new statute and define the standard as the Congress that has decided that the gathering of information from everybody, and then looking for the patterns. Well, you know that 99 percent of the information is not for anybody who is under suspension is OK. If that isn't OK, the Congress ought to stipulate in the statute and the FISA court will rule accordingly. This is an issue that Congress has to address. It's not anything that the FISA judge is responsible for independently.

BAIER: What about that argument that the former FISA judge made that there is no adversarial argument, number one. Number two, all of these judges are approved by the chief justice of the Supreme Court. They are appointed. They are not the president. They're not Congress.

POWERS: Right.

BAIER: They are just appointed by and in this case all of them have been appointed by Chief Justice John Roberts.

POWERS: I think that's an incredibly important case that it was made that who is making the adversarial case here. They are being presented a case by the government. Who is making the case against the government? I just don't -- I could not disagree more with the idea that we don't want to have somebody questioning what the executive is doing. I think that's probably the biggest problem that we have seen recently is that there is this feeling that there is no oversight. Who is, you know, president decides if somebody needs to be killed by a drone. Shouldn't somebody else have some say in that? I think in this case it's the same.

RILEY: Who are these judges? What is the national security expertise? How can we hold them accountable when they screw up? That's why we elect representatives -- to take responsibility.

POWERS: You can make that case of all judges, which is why you have to have different people making cases and then judges are expected to be able to rule on that.

BAIER: Quickly.

KRAUTHAMMER: The answer is not to abolish the FISA court and not have every national security request turned into a Trayvon Martin trial with the lawyers on either side. I think you trust the 11 judges but let the Congress define the contours of what's allowed very specifically, and that solves the problem.

BAIER: That is it for the panel. But stay tuned for a local news report that made quite a splash.

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