The FISA Act And The Definition Of 'US Persons'

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.

I think that opinoin relates to a more clear foreign source. For example, bugging the KGB residency, or the Chinese embassy, or the phone of a known Stasi agent. When you try to also apply that to US citizens, then it gets a bit more sticky.

Under your argument, if Pres Kerry decided that you were involved withj AQ(and there's nothing to stop him from doing so), he could order your phone to be tapped. Are you ok with a Kerry or Hillary having the same power you're ok with Bush having?

My concern is that there's no review. In what way is the President different from any other Communist ruler who spies on "enemies of the state"?

War's been declared?

I must have missed it. Can you provide me a link to the declaration of war?

also, you mention egregious circumstances. the point is, the Courts and Congress will NEVER know about any egregious circumstances because the WH has kept hte program and who's being spied on entirely secret. No one knows if there' sbeen any abuses. There may well have been. The WH won't release any info on it. They ould have been tapping your phone and you wouldn't even know it. no one would.

would you trust Kerry or Hillary to make good faith determinations about htis kind of stuff?

What if Bush made a good faith determination to set up arab/muslim internment camps a la FDR, would that be ok? what if he made a good faith determination to renact the Alien and Sedition Acts, or the Smith Act, or to reconduct the Palmer Raids, would they be ok?

"Declaration" of war simply means that Congress authorized it.

This is not a secret to Congress. They were consulted. I don't even think it's a secret to the Courts.

"What if Bush made a good faith determination to set up arab/muslim internment camps a la FDR, would that be ok?"

We're not talking about putting people in internment camps. We're talking about intercepting phone calls from overseas al Qaeda operatives to the US. What's more fundamental than that to this war effort?

If you're not even going to intercept a phone call from Osama bin Laden to the next Mohammed Atta, then you're not very serious about the war effort. Why don't we just call it off altogether?

No it doesn't. Accoridng to the WH, no substantive proof is needed. It's simply the President's word. As long as Bush says the guy is involved with AQ, that's good enough. There's no process or anything. It's purely arbitrary.

Again, if John Kerry decided you were in any way involved with AQ, he could tap your phone, and there's nothing that could be done about it. same goes for your inherent authority. even the treason requirement needs 2 witnesses. Under this program, you need 0 witnesses, you just need the word of the President. Somehow, I figure you feel differently about Kerry's or Clinton's word than you do about Bush's, but it's the same thing.

You don't get it, the next Atta doesn't apply to this law. He was never a US citizen or a permanent resident. The govt has always had the power to isten in on calls to the next Atta. Nothing in the law prevents them from doing so.

What this program means is that the NSA can listen in ony call involving a US citizen and overseas(and probably domestic as well, there's nothing to stop them from doing so)just because the WH thinks someone's involved with AQ.

As for your interment camp, you may notice a difference, but once you give the President inherent authority, it's difficult to stop him. As Madison said, tyranny often happens gradually, you don't even realize what happened until it does.

Here's the law that allows for warrantless surveillance provided the AG gives a heads up within 3 days, and even then,m they can still keep the info and go after people, as long as the AG says it's necessary to save lives:

f) Emergency orders Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest.

In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title

Yes, I do get it. Your interpretation of this law effectively prevents the President from intercepting ANY phone call from an overseas al Qaeda phone number to the US, irrespective whether you answer the phone or Mohammed Atta answers the phone, and the reason is that the President has no idea who is answering the phone until after he intercepts it.

Sure, the President can always abuse his war powers no matter where you draw the line, but intercepting a phone call between an al Qaeda phone number and a US phone number is so far from an abuse that it's absurd to even discuss whether the President has abused his power by doing this.

No it doesn't. The law doesn't apply to people like Atta. It only applies to US citizens and permanent residents. They have always been able to tap Atta's or Bin Laden's phone. They've alwys been able to listen in when an emergency situation pops up. What this program says is that if John Doe(a US Citizen) is determined by the Pres to be involved with AQ, they can tap his phone and listen in to all his converstaions without telling anyone or getting any type of approval or being sucject to any type of review.

The 72 hr rule clearly takes care of any concerns one might have over any emergency situation. And if the Wh was so adamant, I'm sure they could ask Congress to change the 72 hour rule to say a one week rule, or a 30 day rule if they need more time. The bottom line is that hey've removed this program from any oversight or scrutiny by anyone. There was no reason for them to do so. Everything they want to do can be accomplished with the laws that are already in place, or that would be in place if the asked Congress.

Unfortunately, I don't have the time to fully vet the problems with your logic. However, one thing I will point out to you right off the bat is that the statute requires the AG to immediately notify a judge (not within 72 hours, but immediately) that he is invoking this statute.

The problem is that the decision to intercept these phone calls must be made instantly. The phone rings, and you've got to intercept the call instantly, or you might miss it. There is no way that you can take the time to call some judge to tell him that you are doing that. Osama bin Laden is not going to hold the line while you play elevator music and call a judge.

There are also other problems with applying the statute. It says that you've got to have a factual basis for an order under the act, but the act requires far more detailed info than you've got. All you know is that an al Qaeda phone number is calling a US phone number. That's not enough.

BTW, here's what a real declaration of war looks like:

December 11, 1941

The President's Message
To the Congress of the United States:

On the morning of Dec. 11 the Government of Germany, pursuing its course of world conquest, declared war against the United States. The long-known and the long-expected has thus taken place. The forces endeavoring to enslave the entire world now are moving toward this hemisphere. Never before has there been a greater challenge to life, liberty and civilization. Delay invites great danger. Rapid and united effort by all of the peoples of the world who are determined to remain free will insure a world victory of the forces of justice and of righteousness over the forces of savagery and of barbarism. Italy also has declared war against the United States.

I therefore request the Congress to recognize a state of war between the United States and Germany, and between the United States and Italy.

Franklin D. Roosevelt

The War Resolution
Declaring that a state of war exists between the Government of Germany and the government and the people of the United States and making provision to prosecute the same.

Whereas the Government of Germany has formally declared war against the government and the people of the United States of America:

Therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the government to carry on war against the Government of Germany; and to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States

Congress has bever recognized a state of war between the US and AQ or the US and Terrorism. The use of force is not the same thing as war. Why won't Bush ask for a declaration of war? What's stopping him?

You did not read my post. Yes, you are correct that the law does not apply to Atta and bin Laden. But you don't know who it is until after you've intercepted the phone call. All you know is that it's an al Qaeda number calling a US number. It could be Atta, and you could be safe in intercepting the call.

But it might not be Atta. It might be you who answers the phone, in which case, it's a crime under the statute to intercept the call. So the only way to avoid violating the statute for certain is to refrain from taking the call at all, no matter who it is.

No it's not a crime. If I answer a call from Osama, of course the govt can listen in. They've always been allowed to listen in. They already will have gotten authorization to tap Osama's phone so whoever he calls is fair game.

The difference is that they can't tap my phone, if I'm a citizen, becuase my number was on some list somewhere, and then listen in on every call that I make to someone, at least without a warrant.

The FISC court will alwys grant the warrant if it's as serious a situation as you make it out to be. The problem is that by bypassing FISC and Congress the govt is implicitly admitting that if we really knew what was going on, it might not be considered legal so they have to keep it secret.

The govt, I think, is playing "six degrees of separation" with AQ. Let's say they found some laptop when they got KSM that had a bunch of numbers on it. One of those numbers was for Ahmed in Brooklyn. The govt could easily and instantly get a warrant to tap Ahmed's phone and could listen in immediately to any call involving him.

What I think they're doing, and no one knows becuase they're keeping the whole thing secret, is an able danger style data mining op. Once they have Ahmed's #, they basically come up with a whole list of #s that AHmed may have called for whatever reason, it could be his accountant, the pizza guy, his girlfriend, his buddies from work, whoever. I think they're using this to then say that all those people may be involved with AQ via Ahmed and since we have no way of knowing we need to tap their phones. They cut out FISC becuase in that situation, they might not approve such an openended request.

In any event, we can't really judge what went on until we have more information about who was involved, who was spied on, etc... And we may never know that. But I still contend that there was no reason for the govt to go beyond the established procedures. The 72hr rule takes care of any emergency that may pop up.

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