As I understand it, the section of the decision commenting on the 'inherent powers' is simply dicta, no?
50 USC 1809 says this:
§ 1809. Criminal sanctions(a) Prohibited activities
A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
Now, as provided above, Congress has made engaging in *any* electronic surveillance, under color of law, a felony, unless authorized by statute.
Where is the TSP authorized by statute? It engages in electronic surveillance under color of law, no? What statute exempts it from FISA, or is it authorized under FISA?
The question which needs to be decided (not merely mentioned in dicta) is whether the POTUS can simply ignore FISA requirements to obtain a court order authorizing surveillance where it is likely to involve 'US Persons'. Congress has said 'no' by passing FISA, and the President has said 'yes'. We all know what that means...
Has anyone verfied that the AG is even obeying FISA on the issue of 'warrantless' surveillance allowed where no 'US Person' is involved anyway? I haven't seen that, but I may have missed it.
--R.
Look at 50 USC 1802(a)(1). And also look at the definition of a "foreign power" under 50 USC 1801(a) and "agent of a foreign power" under 50 USC 1801(b).
And all this is leaving aside whether Congress even has constitutional authority to limit the President's Article II powers to gather foreign intelligence. A good argument exists that it lacks such authority.
One more thing. This is part of the FISA statute. The FISA court noted that FISA does not limit the President's pre-existing constitutional powers to gather foreign intelligence. Nor can it. FISA simply amplifies that power in cases where the government uses foreign intelligence information in subsequent criminal investigations.