Unwarranted Outrage - The Times blew our cover.

National Review Online ^ | December 19, 2005, 8:59 a.m. | James S. Robbins

[Cinnamon]

Unwarranted Outrage The Times blew our cover.

I have no doubt that revelations in the New York Times that the NSA has been conducting selective and limited surveillance of terrorist communications crossing into or out of the United States will be immensely valuable to our enemies. I also have no doubt that these and similar actions can be legal, even when conducted without warrants.

How could that be? From the sound and fury of the last few days from politicians and pundits, you would think this is a development as scandalous as Attorney General Robert F. Kennedy's authorization to wiretap Martin Luther King Jr. But the legality of the acts can be demonstrated with a look through the Foreign Intelligence Surveillance Act (FISA). For example, check out section 1802, "Electronic Surveillance Authorization Without Court Order." It is most instructive. There you will learn that "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" (emphasis mine).

Naturally, there are conditions. For example, the surveillance must be aimed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers." Wait, is a terrorist group considered a foreign power? Yes, as defined in section 1801, subsection (a), "foreign power" can mean "a group engaged in international terrorism or activities in preparation therefore," though the statue language would explicitly apply to "a faction of a foreign nation or nations."

But isn't international terrorism that which takes place abroad, as opposed to homegrown domestic terrorism? Not exactly: Section 1801 subsection (c) defines international terrorism as, among other things, terrorist actions that "occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum." So if you are hiding, making plans, facilitating, attacking, or intending to spread fear inside the US, and have a link abroad, you are an international terrorist. Quite sensible.

O.K. fine, but what about the condition that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?" Doesn't that necessarily cut out any and all communication that is domestic in origin or destination? Well, not quite. Return to section 1801, subsection (i): "United States person," which includes citizens, legal aliens, and businesses, explicitly "does not include a corporation or an association which is a foreign power."

Well sure, but does that mean that even if you are a citizen you cash in your abovementioned rights by collaborating with terrorists? Yes you do. You have then become an "Agent of a foreign power" as defined under subsection (b)(2)(C). Such agents include anyone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," and even includes those who aid and abet or knowingly conspire with those engaged in such behavior.

Wait, that includes anyone, even citizens? Yes — subsection (b)(1) is the part that applies to foreigners; (b)(2) covers everybody. And the whole point of the act is to collect "foreign intelligence information," which is defined under section 1801 subsection (e)(1)(B) as "information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against sabotage or international terrorism by a foreign power or an agent of a foreign power."

Whoa, you say, that is way too much power for the president to wield without checks and balances! Well, true, and since Congress wrote this law, they included reporting requirements. The attorney general must report to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence 30 days prior to the surveillance, except in cases of emergency, when he must report immediately. He must furthermore "fully inform" those committees on a semiannual basis thereafter, per section 1808 subsection (a). He must also send a copy of the surveillance authorization under seal to the so-called FISA Court as established in section 1803; not for a warrant, but to remain under seal unless certification is necessary under future court actions from aggrieved parties under section 1806 (f).

This is significant, because it means that some of the same politicians who have been charging abuse of power may also have been briefed on what was going on long ago. The White House should get ahead of the story by noting which congressmen were informed of these activities, instead of allowing them to grandstand so shamelessly. It would also help if the White House released some information on how the surveillance has helped keep the country safe. What attacks were disrupted, what terrorists were taken down, how many people saved? A few declassified examples would be very useful to ground the discussion in reality rather than rhetoric.

So how do the revelations in the Times help the terrorists? Think it through — if you were a terrorist and you believed (as most people seem to) that the NSA would ignore your communications if they crossed U.S. borders, your best move would be to set up communications relay stations inside the U.S. Terrorists are well known for their ability to find and exploit loopholes in our laws, and this would be a natural. For all we know our intelligence agencies have been exploiting these types of communications for years without the terrorists knowing it. Now they will fall silent, because now the bad guys know better. So New York Times writer James Risen will sell his book, the Times will increase circulation, politicians will beat their breasts and send out fundraising letters, and who will pay in the end?

You can answer that one.

[bigsigh]

I'm not a constitutional scholar. I have thought since 9-11 we were at war and I believe the president should have a wide latitutde to provide for the national defense. When I see him eavesdropping on the ole FR, then I'll worry.

[Holdek]

Wow judging by my spelling and word usage in my last post I can tell I'm getting both tired and hungry. I think I'll call it a day on this thread. It's been fun, and I've enjoyed the back and forth. Thanks, all!

[DJ MacWoW]

The problem is the guy is here a couple of weeks

I read his posts. All of 2 threads. Some were rude.

It was obvious from reading the exchanges, that you characterize as not serious, that there was a dialogue going on,

The "dialogue" was mostly trying to get him to actually READ FISA instead of the NY Times.

The fact that you don't acknowledge the false comments made about his leaving is disengenuous on your part.

You want them hung from the yardarm or what?

And you're on this thread to discuss the Times? Or OTHER Freepers conduct?

[Auntie Dem]

What if and this is a big the list of people that have been spyed on comes out and some of them are questionable (ie: political enemies etc....)

What's the difference between Senator Levin and Osama Bin Laden?

Answer: They are both political enemies, and there is otherwise not an iota of difference between them.

[MEG33]

He was using his powers because we are at war. Al Queda declared war on us..remember? He was not using FISA.

He had informed the Congress. It will be a fight and we shall see how it turns out.

I would not be surprised to hear Rockefeller leaked this.

[bigsigh]

I stayed to reply to your reactions. Otherwise I would have fallen asleep long ago.

The fact that someone doesn't change their opinion does not indicate they should be run off, it indicates they will be in the norm here. As our exchange has indicated.

If you're going to parse every sentence I write, you can save some time by knowing I think it's a sign of obesssive behavior and frequently inconsequential. But hey, have fun. Take the last word. This is boring me and probably most of the readers who are still here for some reason.

[darkwing104]

If I read you right, if any U.S. Citizen wants to commit terrorist acts in the U.S. with help of a foreign entity then it is none of our business to stop them. Even if this form of collection was handled by the FBI.

The NSA cannot and does not collect info on U.S. Citizen's on it's own accord. The folks that work at the NSA are professional, decent hardworking Americans. They have no malicious agenda and should not be feared. The purpose of the NSA is to protect the country against an attack.

May I point out if a U.S. Citizen called a foreign target that was being monitored then it doesn't require a warrant. The caller then just pretty much identified himself as a foreign agent and that his identification must be handed over to the FBI or U.S. Attorney's office.

However, deliberately monitoring a U.S. Citizen's home phone requires a warrant and that is a law enforcement problem. Don't mix apples and oranges here.

[bigsigh]

toodles, I'm flagging you so you can take your usual after-the-body's-cold opportunity to provide wisdom and insight on your lesser posters.

[cwb]

Interestingly, Johnathan Turley...whom is generally moderate, just announced on Oreilly's show, that he thinks Bush committed a federal crime. Paul Rothstein disagreed, though admitting hearings will probably proceed, ending with a political compromise. After hearing these two, I'm beginning to get a little concerned since the Democrats will exploit this for far more than just a political compromise.

[Let's Roll]

"Don't make me have to use the facts on you again! You'll get mad and cry and then get hungry and buy stuff at Wal-Mart as you curse the demise of Unions, and how all our jobs went to the Chinese."

LOL!

[Alia]

Thanks.

I know that they have been called for by both Republicans and Democrats.

I've certainly read the headlines that D-this and D-that have SAID investigations must be done -- but, I've yet to see anything FORMAL about this. Words are cheap. Do you know if the "actual" act of convening an "investigation" has begun?

Given the huge importance and controversy of this issue I don't doubt that it will happen.

I think you might be quite surprised to see the balking of this attempt at "investigation". There are numerous Democrats who not only authorized these "taps" but have been in on the reviewing process throughout -- but who now claim "ignorance". I do not really think these Dems would appreciate sitting in the witness chair. Do you?

Further, such an investigation is going to have to demand names of who might have been leaking data to say, the NY Times.

The commencement of such an investigation could spell the end to leakers and leakings with regard to National Security. This would spell the end of Democrat agenda items and their cozy alliance with boosting the headline-making revenue-focused foundations for such liberal rags as the NYTimes, and of course, all their allied-with-foreign-Anti-American special "interest groups" abroad in the world.

Looks like the tar is sitting on the Dem side. They'd be wise to suddenly cultivate a respect for National Security programs. Frankly, I think that's what we are going to see happen.

[DJ MacWoW]

Btw. This is OLD news.

“Bush Spying Story” Is Four Years Old

[bigsigh]

Don't forget the beard! I'm out.

[Darksheare]

*snort*

That the best you can do?
Toodles, until next troll.

[Chaguito]

You can't have a reasoned discussion with someone who is being obtuse

This has the feel of dealing with a teenager who considers himself to be extremely bright, and who enjoys making adults react.

[DJ MacWoW]

The fact that someone doesn't change their opinion does not indicate they should be run off,

Truthfully his first few posts were very rude and trollish. It had little to do with his opinion. If you notice, later in the thread, he began responding to what was being said instead of quoting the NY Times over FISA.

If you're going to parse every sentence I write, you can save some time by knowing I think it's a sign of obesssive behavior

If you mean quoting you in posts, I do it so I can keep track of what's said. And what I'm responding too.

This is boring me and probably most of the readers who are still here for some reason.

So you only came into the thread to fight and not to talk. Too bad. This is a discussion board not a fight ring.

[proud American in Canada]

You have taken on the wrong crowd this time.

Just checking in this thread one more time before bed, and I had to say, you are absolutely right. There is no better truth detector than a (very large) group of people of all different backgrounds, experiences, education, whatever, getting together to talk over an issue.

[XenaLee]

Having concerns is healthy. Questioning is healthy. What the socialist left is doing and has been doing for going on five years now is anything BUT healthy. Not to individuals. And not to America as a whole. The DemocRats have bordered on seditious and traitorous behavior for years now. They finally crossed over the line. And payback IS a flaming bitch (or... it's gonna be).




"Do I have concerns... yes.

I think if I blindly followed anyone without questioning every once in a while I'd be a pretty sad individual (and I stress the individual part)"

[proud American in Canada]

I changed the WHOLE US Code in my efforts. Snuck in to every lawyers' office in the whole world and changed the USCA pocket parts, too. I'm like a Freeper Santa Claus!

LOLOL! I think you need to change your screen name, to JollyOldWestTexan. :)

And thanks! Merry Christmas, Santa! I love it when the vast right wing conspiracy manages to completely re-write the law ... without anyone knowing about it! "Behold the power of the VRWC". ;)

By the way, how long should I wait before I tell my kids that the VRWC doesn't really exist? I wouldn't want to disappoint them. ;)

[Cboldt]

He was using his powers because we are at war. Al Queda declared war on us..remember? He was not using FISA.

The basic discussion in the thread has been whether or not surveillance against US Citizens is LEGAL under FISA. The unpopular assertion on this thread is that it is illegal to conduct warrantless surveillance against American Citizens, first under the Bill of Rights, and also according to the language of FISA.

The vast majority of posters on the thread have asserted otherwise, that the constitution does not prohibit warrantless surveillance, and further, that FISA anticipates and authorized such surveillance.

Some parse the statutory language in a way that surveillance against some US Citizens comports with FISA -- basically, that a person can simultaneously be a "United States person" as defined at 1801(i), and a "Foreign power" as defined at 1801(a)(1), (2) or (3), and therefore warrantless surveillance is permitted under 1802.

In my post to you, I merely highlighted the comment from Hayden ("... the Foreign Intelligence Surveillance Act, makes it illegal to spy on U.S. citizens in the United States without court approval"), that supports the unpopular assertion here.

Another part of FISA grants warrantless surveillance authority in time of war.

§ 1811. Authorization during time of war
Release date: 2005-03-17

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 a period not to exceed fifteen calendar days following a declaration of war by the Congress.

50 USC 1811

The term of art, "foreign intelligence information," is defined under FISA, as well.

(e) "Foreign intelligence information" means--
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against--
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.

50 USC 1801

Your comment that the President was not relying on FISA takes the discussion in a different direction. I've been looking for court cases or law reviews or other writings that illuminate the perimeter of 1802 surveillance.