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.
The difference is that the AUMF is qualified by the words "necessary and appropriate" which does not imply an unlimited power. The AUMF was also aimed directly at those responsible for the 9/11 attacks, it wasn't some open ended declaration against terrorists in general. The WW2 declarations by contrast, pledged "all of the resources", not merely those "necessary and appropriate" to go after a specific group. That's the difference. If Bush wants a delcaration of war on AQ in general and wants all the resources at his disposal, why won't he ask for it?
If they could not because it violates the rights of the called, would you agree the president has that power to do so? If not do you agree the president should have that power?
2nd question. If calls have been made to person X in the US from Osama before, should we tap this persons lines even if he is a US citizen and even though we don't know who might call him in the future?
I can't think of anything more necessary and appropriate to this war than intercepting a phone call between al Qaeda and the US. To me, it's not a close call. It's a slam dunk.
If you're going to tie the President's hands like that, then you're basically saying that the President doesn't have war powers at all.
bttt
And looky here. USSID 18 says the exact same thing.
http://ftp.die.net/mirror/cryptome/nsa-ussid18.htm#SECTION%204
SECTION 4 - COLLECTION
4.1 (S-CCO) Communications which are known to be to, from or about U.S. PERSONS oxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx not be intentionally intercepted. [1 line redacted.]
a. With the approval of the United States Foreign Intelligence Surveillance Court under the conditions outlined in Annex A of this USSID.
b. With the approval of the Attorney General of the United States, if:
(1) The COLLECTION is directed against the following:
(a) Communications to or from U.S. PERSONS outside of the UNITED STATES, or
(b) International communications to, from, [1 line redacted.]
(c) Communications which are not to or from but merely about U.S. PERSONS (wherever located).
(2) The person is an AGENT OF A FOREIGN POWER, and
(3) The purpose of the COLLECTION is to acquire significant FOREIGN INTELLIGENCE information.
And the President bypassed them.
By the way, your post confirms exactly what I was saying in the post you began this exchange by responding to, which is that the President is indeed subject to the law. He's not empowered to ignore it just because he says he's taking action to protect the country.
As long as they tap Osama I don't think it matters who he calls, they can listen through the tap in his phone. they don't need to tap the phone of everyone he may or may not call.
as to your 2nd question, I think the FISC would most likely approve such a request, although I think the FBI and not NSA would be involved. Also, as long as you already are tapping all the guys overseas, their taps would cover whoever they call.
My understanding is that this program isn't merely about person X who may have received a call, it's about tapping the phone of anyone connected to person X simply because of his "connection" to Osama. It's like a big 6 degrees of separation type deal that could end up ensnaring people that have nothing to do with AQ in any real sense.
I think we just have a fundamental disagreement as to what the law allows. To me, under the current law, the govt is allowed to listen to any call made by Osama or any other AQ operative from abroad. What this new program does is allow the govt to listen to any call made FROM the US by citizens to overseas on the grounds that the guy might have some connection to AQ.
IOW, lets say AQ calls Ahmed in Brooklyn. Under the current law the govt can listen to that call. But, absent a warrant, they can't listen to every call Ahmed or anyone remotely connected to Ahmed places to an overseas number. Also, since there's no review, I'd wager they've been doing some purely domestic ops as well.
The key difference wrt the law is WHO placed the call, imo. ALL calls placed by AQ people overseas are covered. Calls placed from within the US by someone need some sort of review.
As for necessary and appropriate, I think it's necessary and appropriate to close the borders and kick out all illegals and conduct racial profiling and plenty of other measures, but you don't see the WH saying they have authority to do that.
The Pres has plenty of war power and there's plenty more he could do without this. IMO, he hasn't used his war powers enough in going after the insurgency and has been a it soft on them. But that's another issue.
Well, for what it's worth, something is wrong with your thinker. But that's neither here nor there. The purpose of posting that holding was quite simple. I posted it to demonstrate the FACT that the FISA court has held that the Executive has "inherent powers" which the FISA law itself can not abridge. These three judges on the FISC Appeals Court have stated that unequivocally while also acknowledging that the CIC can conduct warrantless surveillance.
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?
False. If President Kerry has information that I am conversing with Al Qaeda then by all means he should have the same power. I am neither Hillaryphobic nor Kerryphobic as Kerry himself could tell you since he and I had a little tete a tete on a street in Boston one fine evening.
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"?
I don't share your concern. The CIC is elected. Article 2 judges are not. In time of war, I want the elected CIC making these calls, not unelected judges who are not charged with American security.
Since I read down a bit I know you don't believ Congress has declared war. So let's save some time and trouble here. Just post the method enshrined in the Constitution for decalring war. Failing to do that, I'd say you should move on from that nonsense.
No. That isn't the issue. What the statute actually prohibits is any phone call between an overseas al Qaeda operative and a US citizen in the US.
But as a practical matter the federal statute also prevents the President from intercepting a phone call between an al Qaeda operative overseas and any US phone number, irrespective whether the person is a US citizen or a foreigner. That's because it creates a Catch-22. He can't intercept the call unless he knows that it does not involve a US citizen, but he can't know that until after he's already intercepted the call.
We appear to be talking past each other. They CAN intercept the call from any AQ operative to anyone. There's nothing that stops them. It's not like they have KSM being monitored, he calls Mohammed in Jersey City and NSA has to immediately hang up. It's perfectly legal to keep listening. They just have to notify the FISC w/in 3 days if it's to a US Citizen(and that's only if they want to use it in court). If they want to use the info to nab someone overseas or take someone out, I don't think they have to notify anyone.
But, I think we've had enough of an exchange of views here. I don'tt hink we'll really know what this is about until more info comes out about this. Until we really know what this involved, how many people have been spied on, who's been spied on, etc... we'll only have half of the story.
So if person X has a known connection to Osama and has known contacts with others, you would think its not reasonable to monitor the other people person X has contact with?
"And the President bypassed them."
You do not know what you talk about. Finish High school and then come back with a bit of decorum and maybe, just maybe I'll condescend to assist your further education.
Instead of raising an implausible objection on that basis, how about giving an example of some of these "reviews" that the President's actions were subject to when he authorized the NSA wiretaps? And if these are reviews by people in the executive branch and therefore subject to his authority, then don't even bother, because such "reviews" are meaningless.
Free Aldrich Ames...
The instant you take a call or communication from someone connected with a foriegn power, who has declared war on the United States, your status as a US Person is eliminated by your status as the agent of a foreign power.
Any other reasoning would make it impossible to conduct survielance during an all out war on our own soil. The framers never intended that.
That's pretty amazing. So al-Qaeda has the power to deny personhood to you just by calling your house and leaving a message on your machine. Talk about a force-multiplier!
But this doesn't say anything about surveillances the executive may want to take but are not authorized under that particular law. Ones that wouldn't be approved are not applied for- what would be the point except just to drive up the number of rejections?
As to how AlQueada can get around FISA it's self-evident to me that a law that would provide for every contingency of war would not protect any liberties (see Madison's quote earlier). I believe an AlQueda soldier could avoid a FISA tap by using the phone of an innocent US citizen to call overseas. The citizen would be killed. But I'm not sure that's what was going on. Perhaps they bought a stolen cell phone and used it one time. Only tapping every call-from anybody- to suspected overseas numbers would catch them then and I don't think FISA allows that.
Hey, I better quit speculating before I give anyone ideas!
EOM!
I will not reply to any further message from someone who is ignorant of US History, Constitutional law and Common Sense!
Bye!
How do you conduct ongoing surviellance during a war on our soil?
The AG gets to set the standards... not a judge.
"It's just tough to shape post #1 into a sound bite palatable to the American public,"
Here's my try:
Senator Rockerfeller would be calling for Lincoln's impeachement if Lincoln had tapped Robert E. Lee's telegraphs from the Army of Northern Virginia on the grounds that General Lee was a US citizen and that Lee was in Virginia, part of the United State of America.
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