50 USC 1802 Permits Warrantless Surveillance

United States Code ^ | 12/19/2005 | Self

[angkor]

Throughout the "illegal wiretaps" debacle of the last several days we have not heard a single citation of the actual law that is alleged to have been violated. And that's from both the accusers (Rats, the NYT, WashPost, etc.) as well as Republicans, up to and including the White House staff (e.g., Condi Rice on talking head circuit, Sunday morning, where she did not cite the law in defense of the practice).

Well, the fact of the matter is that the alleged "illegal surveillance" is not illegal at all. In fact it is specifically permitted under 50 USC 1802, and the White House and DoJ have complied with at least that part of the law requiring notification of the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence (even Nancy Pelosi has admitted that she was notified, and as a 10-year member of the House Committee we can presume she knows the law on this matter).

I'm posting this in Breaking News due to the gravity of the issue and because it is not being discussed anywhere in the MSM, or even on the more popular conservative blogs. The White House and Republicans generally have been completely negligent in simply citing 50 USC 1802 as permissive of this kind of surveillance.

Below is the pertinent text of 50 USC 1802, or you can click the link above to go to the page and do more digging if you so choose.

Disclaimer: I am not a lawyer, but the language seems quite clear.

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > 1802

1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

(a) (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.

(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—

[snip]

[angkor]

This morning's New York Sun contains the first editorial I've seen specifically discussing 50 USC 1802:

"The law provides at least two special exceptions to the requirement of a court order. As FISA has been integrated into Title 50 of the U.S. Code, Chapter 36, Subchapter I, Section 1802, one such provision is helpfully headed, "Electronic surveillance authorization without court order."

http://www.nysun.com/article/24610

Discuss.

[SuzanneC]

bump

[knarf]

Good lookin' put, angkor.

[angkor]

Mods -- I've placed this in Breaking News because of the gravity of this matter and because 50 USC 1802 is not getting the attention it deserves.

The legal cite has been posted several times in other FR threads but some have suggested that it be raised as its own topic, and to the widest audience possible.

However since it is not formally a "news" item, I'll understand if you decide not to leave it there.

[knarf]

I mean ... good lookin' out ....

(Note to self ... the light eminating from the monitor is not sufficient for your pick-pecking fingers to type correctly ... turn on the friggin' light!)

[ohhhh]

[I'm posting this in Breaking News due to the gravity of the issue and because it is not being discussed anywhere in the MSM, or even on the more popular conservative blogs.]

Thank you for posting this. I would not expect to hear this from the politicians proaganda arm, the not so free liberal left rags and tv; but the fact that conservative news blogs don't report on this is interesting indeed.
Went to Drudge Report a couple of days ago and it was loaded with liberal rag news and not fair and balnced. OOvey. Thanks again.
Merry Christmas!

[angkor]

Note to self ... the light eminating from the monitor is not sufficient for your pick-pecking fingers

Hah. I have the same problem in the wee hours of the morning... lamp on [type]... lamp off... lamp on [type]... lamp off....

[nevergore]

As long as Al Queda is defined as a "foreign power" as specified in the provisions of the Act then the administration is well within the law....

I do question whether Al Queda can meet that definition.....

[Krankor]

(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;

This is the one they gotta worry about.

[dep]

um, there's a little problem:

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;
there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;

these intercepts by definition are outside both of the above requirements. i support them, but the law you cite does not.

[OXENinFLA]

Good stuff, thanks!

---

PING...

[Alter Kaker]

You're wrong on two counts:

1. The domestic surveillance appears to have covered United States persons, which the law expressly prohibits,

2. This other, more important, law:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[xlib]

I'm not a lawyer either, but I'm not sure this is pertinent, since the accusation of the NYT and the MSM echo chamber is that such surveillance has been extended to US citizens, which appears to be forbidden in the law you cite.

"...the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers,..."

[Falcon4.0]

Thanks for the info. I was wondering the same thing this morning but I was not aware of the specific law and title which you outlined. My thought was that if they actually explained the legality of what was being done, they wouldn't have anything to talk or should I say "Squalk" about. On the medias part anyway.

[angkor]

True, many people raise the "United States persons" issue.

First, a "United States person" is a citizen or permanent resident only. Not someone on a travel or work or student visa. It's not a simple presence test.

Second, it's arguable (as the NY Sun notes) that even naturalized citizens or permanent residents communicating with terrorists overseas have a de facto problem with their immigration status (and thus as "United States persons" under the law), e.g., you cannot have legal standing as a "United States person" if you lied about terrorist associations in U.S. immigration documents.

Third, what is "substantial likelihood"? 1 percent? 5 percent? 20 percent? It's arguable that if only 1 percent of the surveillance targets turned out to be legitimate "United States persons", that this falls underneath the threshhold of "substantial likelihood".

Note that the MSM has not treated us with any specifics whatsoever about the number of "United States persons" targeted by this statute (but of course, they haven't mentioned the statute itself, either).

[angkor]

One, misreporting.

Two, 500 surveillance targets = 500 FISA warrants.

Why do that when 50 USC 1802 also provides carte blanche?

[cwiz24]

Not so fast, angkor. This section, among others, was clearly violated by the wiretapping:

(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;

As far as we know, United States citizens were eavesdropped on if they were involved with Al Qaeda. I don't have a problem with this, but this law does not cover what the White House did.

[angkor]

these intercepts by definition are outside both of the above requirements.

You need to go back and read 1801, which defines foreign powers as terrorist organizations. It's unambiguous.

So that takes care of your first point.

Second point, "substantial likelihood" means precisely what? I don't know. Presumably the WH does.

[angkor]

1. The domestic surveillance appears to have covered United States persons, which the law expressly prohibits,

No, the law has a "substantial likelihood" test.

Work it out on your own.