Replies

He was using his powers because we are at war. Al Queda declared war on us..remember? He was not using FISA.

The basic discussion in the thread has been whether or not surveillance against US Citizens is LEGAL under FISA. The unpopular assertion on this thread is that it is illegal to conduct warrantless surveillance against American Citizens, first under the Bill of Rights, and also according to the language of FISA.

The vast majority of posters on the thread have asserted otherwise, that the constitution does not prohibit warrantless surveillance, and further, that FISA anticipates and authorized such surveillance.

Some parse the statutory language in a way that surveillance against some US Citizens comports with FISA -- basically, that a person can simultaneously be a "United States person" as defined at 1801(i), and a "Foreign power" as defined at 1801(a)(1), (2) or (3), and therefore warrantless surveillance is permitted under 1802.

In my post to you, I merely highlighted the comment from Hayden ("... the Foreign Intelligence Surveillance Act, makes it illegal to spy on U.S. citizens in the United States without court approval"), that supports the unpopular assertion here.

Another part of FISA grants warrantless surveillance authority in time of war.

§ 1811. Authorization during time of war
Release date: 2005-03-17
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 a period not to exceed fifteen calendar days following a declaration of war by the Congress.
50 USC 1811

The term of art, "foreign intelligence information," is defined under FISA, as well.

(e) "Foreign intelligence information" means--
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against--
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
50 USC 1801

Your comment that the President was not relying on FISA takes the discussion in a different direction. I've been looking for court cases or law reviews or other writings that illuminate the perimeter of 1802 surveillance.