Posted on 12/18/2005 7:24:55 AM PST by 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.
Didn't you read my posts? If an al Qaeda operative calls the US, do you think he's going to wait around for the President to get a court order before he starts to talk? By the time he got the court order, the phone call would have long been over. Why is that not obvious to everyone?
To be a member of the RNC one apparently must be braindead.
If the President knows that an al-Qaeda operative is calling the U.S., then it's pretty likely that he already has the destination phone wiretapped. How else would he know?
From page 48:
"It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong 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.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a.....
They also wanted the executive to have their powers broadened in time of war. I, for one, voted for the POTUS, I have not voted for any Article 2 judges. In time of war, I want the guy elected making thses decisions, not unelected judges. I figure that's where we part company here.
But the point of the post is to simply provide evidence that the Bush administrations claim to "inherent powers" during war were not simply grasped out of midair. The courts have recognized and deferred to the same power.
In neither case, though, did we really have that much of a choice. In 2000, it was Bush or Gore. In '04, Bush or Kerry. It's a very, very weak check on their power, especially when so much of it is exercised behind the scenes.
In time of war, I want the guy elected making thses decisions, not unelected judges.
The judges wouldn't be making the decisions. They've already demonstrated a habit of giving broad deference to presidnetial findings of fact. It would just be an extra check to make sure his claimed need for a wiretap has at least some plausible basis.
Point taken, there. I agree that the Democrats have been blowing this out of proportion, but that doesn't mean the rest of us shouldn't be scrutinizing it to make sure the Constitution's being followed. I'm skeptical, at best, that it is.
I don't see how you can come to any other conclusion. It's just so absurd that a court would tell the President that if Osama bin Laden calls the US, he's got to get a court order before he can listen in. If a court says that, then they are just asking to be blown up by terrorists.
He has the originating telephone tapped. He has no idea who they are going to call. They could call you, or me, or they could call Mohammed Atta. You don't know who they are going to call, but to suggest that giving the President the power to tap into that line is a major infringement on civil rights is crazy. He can't do it unless he has reason to believe that the calling number is connected to al Qaeda. If that's the case, then why would you bother to force him to take the useless step of getting a court order? What judge is going to deny it? If he did, he'd be pilloried until the day he died. So the requirement protects no one, it's just a hoop that the President must jump thru. Not only is the requirement useless, but it is also fatal. Osama bin Laden is not going to wait around for you to get a court order. What are you going to do, play elevator music while he waits?
Then why does he need to tap the receiving phone? He can already hear the conversation through the originating, right?
I'll admit that this is not my specialty. Is it that if he only taps one phone, he can only hear one half of the conversation?
No, I imagine that's how he does it. But that is still considered by some of the lefties to be a violation of the receiving party's privacy.
Otherwise it would make no sense for the president to be citing his constitutional authority and his authority under the authorization of force.
Good post Valin.
How would they "get around" it? Has there ever been a known case where a FISA warrant application has been denied?
bump
So you would agree with the Korematsu decision?
Do you disagree with the Youngstown decision?
What if Bush decided that in order to keep us safe he was establishing arab/muslim ghettos and setting up curfews, or simply expelling all arabs or muslims, or banning arabs/muslims from being able to fly. All of those would certainly make us safer and hurt the terrorists.
you also mention "conduct of war", but yet no war has been declared so how can he be conducting one?
what limits, if any, would you place on Bush? When it comes to the GWOT, how is he any different than a monarch or dictator? What can't he do?
we can listen in under the existing law. all the AG has to do is give FISC a heads up within THREE DAYS. it's not exactly a big deal. your argument seems to be that warrants are unnecessary for any surveillance, as long as the wH decides it's related to the WOT. would you place any limit on the president's power? again, is there anything he can't do?
War has been declared.
Sure, there has to be a limit. The President has got to make a good faith determination that this action is necessary for the conduct of the war. And I do think that the Courts and Congress could in some egredious circumstances, review that determination. However, intercepting a phone call from an al Qaeda operative to the US is so clearly a fundamental part of this war effort, I can't see how either the Courts or the Congress could in good faith question it. And from what I gather, they are not questioning it. What they are questioning is whether you have to have a court order before you do it.
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