Replies

First, 50 USC 1802 is entirely inapplicable to the present discussion because that section deals solely with surveillance of non-U.S. persons. And in this discussion we are specifically addressing those situations that include a U.S. persons.

Second, even if §1802 did permit surveillance of U.S. persons, it does not contain, as you assert, the word "known", nor does the language you highlighted even imply such a standard.

Third, your standard that the subject be a "known" agent of a foreign power for the surveillance to be "reasonable", is so out of touch with legal reality, that it is even a greater standard than the courts already require for regular 4th Amendment searches, where the standard of reasonableness is "probable cause".

Fourth, since the In re: Sealed Case court held that "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information", then the standard of reasonableness required in such cases is clearly less than the "probable cause" needed had a warrant been required. That would mean that, at most, a standard of "reasonable suspicion" might be required.

Fifth, the issue you raised in #37 regarding pre-FISA versus post-FISA court decisions is irrelevant, since the courts (both pre-FISA and post-FISA) based their holdings on a constitutional right of the President, and Congress is forbidden from infringing on a constitutional right.

"50 USC 1802 is entirely inapplicable to the present discussion because that section deals solely with surveillance of non-U.S. persons. And in this discussion we are specifically addressing those situations that include a U.S. persons."

Are you suggesting that the bar for evesdropping on U.S. persons is even lower? Yes, this is the law for foreign intelligence of both U.S persons and foreign agents, thats why they call it FISA, look up the acronym. It specifically bars warrantless wiretapping of U.S. persons.

If you know of another law that superseded this please post.

"even if §1802 did permit surveillance of U.S. persons, it does not contain, as you assert, the word "known", nor does the language you highlighted even imply such a standard."

The A.G. has to certify under oath the it is directed at communications exclusively among foreign powers, AND that there is no substantial likelihood that it will capture the communications of a U.S. person.

How can you possibly certify that under oath without knowing that your target is an agent of a foreign power? Please explain to me how you would do that.

"since the In re: Sealed Case court held that "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information..."

They found that the President did have the power because he showed probable cause that the target was an agent of a foreign power. That does not apply to those only suspected.

From: Sealed Case "Sealed Case No. 02-001 " ..the court found that the government had shown probable cause to believe that the target is an agent of a foreign power.."

"the issue you raised in #37 regarding pre-FISA versus post-FISA court decisions is irrelevant, since the courts (both pre-FISA and post-FISA) based their holdings on a constitutional right of the President, and Congress is forbidden from infringing on a constitutional right."

You seem to completely ignore the constitutional right of the U.S. citizen to be free from unreasonable search and seizure, the President also is forbidden from infringing on a constitutional right, that is the reason for the warrants, and that is the reason that all the rulings you have pointed too were "agents of a foreign power" and not U.S. persons.

BTW, Congress can limit presidencial discression, even his discression on fighting war. That is not my opinion, that is Prize Cases ( THE AMY WARWICK, 67 U.S. 635 (1862) ) and that is exactly what FISA is, a congressional limitaion.