The FISA Act And The Definition Of 'US Persons'

Captains Quarters ^ | 12/17/05 | Ed Morrissey

[Valin]

One of the critical points argued in regard to President Bush's angry pushback on the NSA leak is that his executive order violates the Foreign Intelligence Surveillance Act (FISA). People have the impression that FISA requires warrants from the FISA judge, but that isn't what FISA says at all. In fact, FISA gives the government wide latitude in warrantless surveillance of international communications even when one point originates in the US -- as long as the person in the US does not qualify as a "US person":

(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

Note that a US person must either be a US citizen or someone lawfully admitted to the US for permanent residence. If someone resides in the US on a visa and not a green card, they do not qualify, nor do they qualify if they get a green card under false pretenses. FISA authorizes warrantless surveillance in its opening chapter:

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.

In fact, the only people who need to make this call are the President and the Attorney General, and it doesn't even make the accidental or tangential exposure of communications with US persons a crime. It only requires that the AG ensure that mitigation procedures have been applied to ensure compliance with FISA. The only way that one can violate this law is if the law gets intentionally violated. In other words, one would have to prove that Bush intentionally ordered the surveillance of a qualifying US person.

Since the targets within the US got identified through intelligence developed through captures of al-Qaeda agents and their equipment, it seems rather unlikely that they had contacts with many US-born American citizens. Most AQ assets enter countries on student visas -- which does not qualify them as a US person under FISA and therefore does not extend them the protection of warrants prior to or during surveillance.

As the New York Times undoubtedly discovered during its research, the NSA probably never broke the law at all, and certainly nothing uncovered in their article indicates any evidence that they did. Neither did President Bush in ordering the NSA to actually follow the law in aggressively pursuing the intelligence leads provided by their capture of terrorists in the field. The only real news that the Times provided is that the US didn't need the 9/11 Commission to tell it to use all the tools at its disposal -- and hence the angry speech given by the President this morning.

I don't blame him a bit for his anger. I suspect that many will be angry with the Times by Monday -- mostly for suckering them into foolish knee-jerk reactions.

[Wasanother]

"the President, through the Attorney General, may authorize electronic surveillance without a court order"

What part of "without a court order" don't the RATS understand?

[sgtyork]

Good question!

As we learn from the NYT article one way is through seized information from terrorist:

(paragraph 16) What the agency calls a "special collection program" began soon after the Sept. 11 attacks, as it looked for new tools to attack terrorism. The program accelerated in early 2002 after the Central Intelligence Agency started capturing top Qaeda operatives overseas, including Abu Zubaydah, who was arrested in Pakistan in March 2002. The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, the officials said.
In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

Another way is the big computer in the sky which monitors INTERNATIONAL calls for words like bomb, death, jihad, infidel, etc.

[Brilliant]

Another interesting point here is that the NYT itself apparently knew this was going on for some time, and did not report it because it was afraid there might be national security implications. Apparently, the traitors among them ultimately got the upper hand, though, and they spilled the beans.

[Congressman Billybob]

Thank you for posting this. It's one more proof, if any be needed, that the NY Times lies to its readers. From reading the alternative media, I thought that FISA worked about as this language provides.

Congressman Billybob

Latest column: "My Friend, Gene McCarthy, 1916-2005"

[Wristpin]

Why is it that the laymen on Free Republic can dig this stuff up and refute the attacks of the Dems better than the RNC?"
Oh, I imagine the RNC knows this better than we do in FR. It's just tough to shape post #1 into a sound bite palatable to the American public, or a bumper sticker that doesn't require the entire back door of a semi-trailer. ;)

Yet Dirty Harry is spending his Sunday spreading lies on the Sunday morning programs. I don't see the country club republicans even trying.

[Valin]

Yet Dirty Harry is spending his Sunday spreading lies on the Sunday morning programs. I don't see the country club republicans even trying.

1 Nobody but us political junkies watch these shows.
2 If (for whatever reason the RNC...etc) won't get the word out, then it's up to us. This subject (for example) comes up it's up to us too say something like....Well let me tell you what's really going on (backed up with facts). I've found that people I know will ask, "What's the deal with".....whatever? If we don't go off into blackhelicoppterland, or start screaming & ranting about the end of the Republic, I've found people will listen.

[Jonah Johansen]

How many senators and congressmen tokk the blame for 9-11.

If there is another 9-11 and it turns out it could have been prevented, if we were rougher in our quesitoning of terroists or we were more invasive in our domestic surveleince; what are the chances the House or Senate would take the blame and say it was our fault, we should have allowed the president to use tougher methods?

They are like the big city mayor, who says he wants to cut crime but spends all his time focusing on police brutality and meeting diversity quotas.

[inquest]

Personally, I think the President has the inherent constitutional power to do this irrespective what some statute might say.

Uh, no, he's subject to the law. There's nothing in the Constitution that gives him the power to disregard it.

[oceanview]

which should be ready by all the freepers making these wild claims about "Bush violating the law" regarding this surveillance.

I challenge all of them again - speak up and call for his impeachment then, because if you believe he violated the law, that is the only legal remedy.

[don-o]

Excellent. I hope Bush has his ducks in a row on this; bucause the Dem think they can nail him.

[Brilliant]

My argument is that the power as commander in chief of the armed forces carries with it the power to gather intelligence in the conduct of war, and that means that the President has the inherent power under the constitution in time of war to intercept phone calls from the enemy to the US, in this case, from al Qaeda telephone numbers to the US. It's a constitutional grant of power, so no law Congress passes can deprive him of that power. Any law that does purport to deny him that power is simply unconstitutional. The President is not above the law, but the constitutional provision that he is operating under takes priority over general enactments of the Congress.

You may or may not agree with me, but I thought it was interesting that after I posted this yesterday, there was a constitutional expert on FoxNews arguing with Judge Napolitano, and the constitutional expert made the very same argument I made.

[Brilliant]

Sounds like Bush agrees with my theory. Here's how he justified the surveilance at his press conference:

"As president of the United States and commander in chief I have the constitutional responsibility and the constitutional authority to protect our country."

[mrsmith]

However we have a divided goverment and the Judicial Branch has consistently ruled that without express authorization the president may only take such actions under his power to "repel sudden attacks" that are within the "municipal" laws. I doubt the justices would overturn their precedent, it would weaken the power of their branch.
Too, the Legislative Branch jealously guards it's power by refusing to give the president a general authority to conduct the war.

What is legal for the president to do would come down to what the Supreme Court decided a "War Powers Resolution " is- besides cowardly fluff.

If they decide it is just a statement that the president is able to act under his pre-existing "repel sudden attacks" power, and that is the most common explication one finds, then the media will have used the jealousy and cowardice of our judges and elected officials to produce President Hillary going from her signing in ceremony to the Oval Office to sign a pardon for ex-president Bush and to sign the new law given her carte-blanche to conduct war.

OTOH it's Christmas, when we're all reminded miracles can happen.

[Brilliant]

For what it's worth, the guy I saw on TV said that it wasn't even close, it was a slam dunk for the Pres on this issue.

Let's face it, if Osama bin Laden calls the US, the President has the power to listen in, and he doesn't need a court order. Napolitano's argument, by the way was so absurd. He said that the President should get a court order, and it would only take him about 15 minutes to do so. Give me a break. What's the President going to do, tell Osama "All lines are busy, please call back in 15 minutes?" I can't believe anyone would be so stupid as to make such an argument. You need to be able to get a court order in one second, or to simply take the call without a court order.

[inquest]

My argument is that the power as commander in chief of the armed forces carries with it the power to gather intelligence in the conduct of war, and that means that the President has the inherent power under the constitution in time of war to intercept phone calls from the enemy to the US, in this case, from al Qaeda telephone numbers to the US. It's a constitutional grant of power, so no law Congress passes can deprive him of that power.

There's nothing magic about the phrase "commander in chief" that confers on the President any extra power or immunity with regard to the other branches of government. Hamilton explained in Federalist 69 that the phrase means "nothing more than the supreme command and direction of the military and naval forces, as first General and admiral" of the United States. So qualitatively, his position is not different from that of any other military officer. He's just higher up on the ladder - that's all.

To furhter illustrate how the founders understood the phrase "commander in chief", here is the commission that the Continental Congress gave to George Washington during the war of independence:

WE, reposing special trust and confidence in your patriotism, valor, conduct, and fidelity, do, by these presents, constitute and appoint you to be General and Commander in chief, of the army of the United Colonies, and of all the forces now raised, or to be raised, by them, and of all others who shall voluntarily offer their service, and join the said Army for the Defence of American liberty, and for repelling every hostile invasion thereof: And you are hereby vested with full power and authority to act as you shall think for the good and welfare of the service.

And we do hereby strictly charge and require all Officers and Soldiers, under your command, to be obedient to your orders, and diligent in the exercise of their several duties.

And we do also enjoin and require you, to be careful in executing the great trust reposed in you, by causing strict discipline and order to be observed in the army, and that the soldiers be duly exercised, and provided with all convenient necessaries.

And you are to regulate your conduct in every respect by the rules and discipline of war, (as herewith given you,) and punctually to observe and follow such orders and directions, from time to time, as you shall receive from this, or a future Congress of these United Colonies, or committee of Congress.

[mrsmith]

For what it's worth I would expect a "constitutional scholar" to find the president's position a "slam dunk", and a "legal scholar" to find the opposite.

The Fourth Amendment right of American members of an invading army to contact their foreign superiors would be an absurd, treasonous even, concept to our Founders.
But IMHO it fits perfectly with legal precedent- in the "Prize cases" the court ruled the "repel sudden attacks" power can only be used within the civil laws; in the recent terrorist cases they've ruled the "War Power Resolution" isn't sufficient congressional authorization to act outside of the civil law.
So, though John Marshall would probably hold these people down for Joseph Storey to apply "water-board" torture to them, it is presently illegal to infringe any rights of American members of invading armies.

[Brilliant]

I'll grant you that a judge is used to thinking inside the box. He's not likely to think at first blush that there is any area his judicial procedures don't apply to. On the other hand, a Supreme Court justice who considers the question whether the President has the power to intercept a phone call from Osama bin Laden without a court order would inevitably have to conclude that he does.

And you don't have any idea whether it's Osama who's calling. All you know is that it's an al Qaeda phone number. Nor do you know who's going to answer the phone on this end.

So tell me why it's "unreasonable" as per the Fourth Amendment for the President to intercept that call? Even if the call is to an American citizen, it is precisely the call you want to intercept. It may be the most valuable intelligence you will ever collect.

[mrsmith]

Hey, I can ony play devil's advocate so far. I think the law is an ass. I blame the meanness of the legislature and judiciary that this is even a controversy.

As Madison put it- defending the legislature's war powers, ironically:

"A declaration that there shall be war, is not an execution of laws: it does not suppose pre-existing laws to be executed: it is not, in any respect, an act merely executive. It is, on the contrary, one of the most deliberate acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war; and of enacting, as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy. In like manner, a conclusion of peace annuls all the laws peculiar to a state of war, and revives the general laws incident to a state of peace."

[Brilliant]

I think Bush has already won on this. The outrage is based upon a strawman--Bush is intercepting calls between US citizens. The fact is that he's not. He's intercepting calls between people in the US, and al Qaeda operatives. Frame the question in that way, and he wins every time.

The only people who argue otherwise are the partisans and the fools, of which there are many, but not enough to sway the day.

[inquest]

He's intercepting calls between people in the US, and al Qaeda operatives.

Or so he claims. But for some reason he couldn't be bothered to get warrants for these wiretaps. All he'd have to do is provide the judge with the evidence that these are in fact al-Qaeda operatives that are doing the communicating.