Posted on 12/19/2005 4:25:09 AM PST by 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]
At any rate, I assumed and expected this was being done anyway. I have no problem with it.
If this had cited (4) under 1801
(4) a group engaged in international terrorism or activities in preparation therefor;
Then I think this would apply.
All you needed to do was look at 50 USC 1801 (a)(1), which is specifically referenced above:
"As used in this subchapter: (a) “Foreign power” means.... ( 4) a group engaged in international terrorism or activities in preparation therefor;"
See #16.
You're right that "United States person" and "substantial likelihood" are issues, but not as simple as they seem at first glance.
No, a United States person is a citizen or a permanent resident. It is not someone in the US on a tourist, student or diplomatic visa, nor does it cover illegal immigrants.
So, Al Qaeda is a "domestic Power?"
It's one or the other.
But 1802 doesn't cite (4), just 1,2,&3, under 1801.
U.S. citizen or permanent resident only.
It does cite 1801 (1)(a). Terrorist organizations are foreign powers for the purpose of the statute.
That's my question....I don't know how the Fed's classed Al-Queda in regards to this provision........
i heard that, ping
I think that was one of Rice's points w/ Russert yesterday, that the laws were tailored for foreign intelligence assets and not "stateless" terrorists.
Foreign power under the scope of the statute.
Correct, which means that even if the surveillance fails to intercept communications of any US Persons, it can still violate the law, if it was conducted recklessly without regard to status.
So you have a Catch-22: Either the administration failed to confirm immigration status and violated the law, or they did take the time to confirm immigration status, in which case why on earth didn't they get a FISA warrant (which would have been faster anyway)??? I'm thoroughly confused.
No, it cites 1801(a)(1), (2), or (3).
For (4) to be included it would have to be cited in 1802.
(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;
This is for foreign intelligence only, not US citizens
(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
More limitations to foreign powers only, not US citizens
(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
Exclusion of US persons.
This does not cover what Bush has permitted.
An official process isn't necessarily 'due process', although government always claims it is. In this case, citing 'the law' ignores the question of whether the law is Constitutional -- and if it isn't, it's no law at all.
The reason for the urgency is that they ALREADY had it.
If you read many spy novels you will understand that they sift through everything, and then look for special keywords or groups of words. Once they come up with it, they have to decide whether or not they can legally use it.
THEN, they go to the courts. With the volume of emails, cel phone calls, and regular calls, it is a process that makes sence.
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