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]
Well, I'm not a lawyer. I confess I did miss the omission of 1801(a)(4).
You guys may be right about this, in which case the statute may not be applicable, or is at least questionable.
Don't be so rough on self. I liked 'good lookin' put'.
Put more ! Put More!
I know I've had my fair share of posts debunked, or made clearer, by other FReepers.
If I was arguing against the administration I believe I would take up the points the attorney general must swear to, specifically :
(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;
I think the adminstration could defend against this sort of legal attack successfully but it would be the most challenging part.
If Al Qaeda is a foreign power (a substantial if) and if the (let's say) US citizen on the US end of the telecon is conspiring with or a member of Al Qaeda, is that US citizen still a US person for purposes of this statute?
Good job, good research!
All I've been able to find is that it was persons in the United States, with no mention of it being US citizens or people here legally. I'm still searching though.
I have no idea who was spied on, but the Executive Order doesn't seem to make any such distinctions. Moreover, if they took the time to verify immigration status, why couldn't the Administration's people have gone to the FISA court to get a proper warrant? The FISA court almost never turns down national security requests and it is extremely speedy to boot.
Thanks for your reply. It seems to me that people, particularly Democrats, are making serious charges without any facts.
How the court views that is an important question.
Also important, and I don't know the answer, is the fact the language of the statute does not say US Citizen but rather US Person.
Given the fact that constitutional protections have been extended by the courts to non citizens in the US both legally.....
You see where this is headed.
Personally I think this whole problem could be fixed if they just amended the constitution one more time and the amendment simply stated "The above doesn't apply to muslims".
Yeah, I remember seeing that in the Constitution.
By US persons you mean citizens or aliens here legally? What is known about who was spied on? I can't find any hard info on that.
See 50 USC 1801(i), which defines "United States Person". Under that section of US Code, even a corporation can be a United States Person.
50 USC 1802(i): “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
*If* Bush's legal authority is located in 1802 at all, my guess is it's here:
(A)(ii): the electronic surveillance is solely directed at 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 powerAcquisition of technical intelligence. Isn't that right up the NSA's alley?
From property under control of a foreign power.
To...where? To anywhere, apparently.
Nicely done.
FISA (The Foreign Intelligence Surveillance Act) does allow for really easy warrants and secret wiretapping. I can't for the life of me understand why the Administration didn't just use FISA, instead of going the rout of this questionably legal Executive Order.
Doesn't (B) in the wording negate this if at least one party is a U.S. person?
"I can't for the life of me understand why the Administration didn't just use FISA, instead of going the rout of this questionably legal Executive Order."
Chances are that the dems have loaded this court with a bunch of anti-american leftists over the years...lol
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