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?

I believe President Bush has said just that at least 3 times since Friday. The latest was the Press Conference of the President Monday Dec 19 2005.

So far, I haven't read of any administration official using FISA as the source of authority or justification for the surveillance reported by the NYT.

From President Bush's presser this morning ...

President BUSH: Now, having suggested this idea, I then, obviously, went to the question, is it legal to do so? I am -- I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.
http://www.whitehouse.gov/news/releases/2005/12/20051219-2.html

http://www.freerepublic.com/focus/f-news/1543806/posts
Thank You for Wiretapping (WSJ Editorial - Nails It)
Opinion Journal ^

Posted on 12/20/2005 12:36:39 AM CST by indianrightwinger

Thank You for Wiretapping Why the Founders made presidents dominant on national security.

Tuesday, December 20, 2005 12:01 a.m. EST

Wisconsin Democrat Russ Feingold wants to be President, and that's fair enough. By all means go for it in 2008. The same applies to Lindsey Graham, the South Carolina Republican who's always on the Sunday shows fretting about the latest criticism of the Bush Administration's prosecution of the war on terror. But until you run nationwide and win, Senators, please stop stripping the Presidency of its Constitutional authority to defend America.

snip

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

snip

I've read that case. It's not helpful to illuminate the perimter of 1802. But, besides standing for the proposition that the President certainly has inherent authority to conduct certain wiretapping activity (see Truong and other cases), it mostly stands for the proposition that renewal of the Patriot Aact is not required in order to "tear down the Gorelick wall" regarding certain types of data sharing between foreign data gathering and domestic law enforcement.

The following post, and several before and after, contain my assertion as well as links to source material on that point ...

http://www.freerepublic.com/focus/f-news/1541989/posts?page=68#68

The case is a dense read, but lays out a very good history that illustrates the unnecessary development of restrictive rules for data sharing.

The government makes two main arguments. The first, it must be noted, was not presented to the FISA court; indeed, insofar as we can determine it has never previously been advanced either before a court or Congress. That argument is that the supposed pre-Patriot Act limitation in FISA that restricts the governments intention to use foreign intelligence information in criminal prosecutions is an illusion; it finds no support in either the language of FISA or its legislative history. ...
In Re: Sealed Case No. 02-001, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002)
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html <- HTML
http://www.epic.org/privacy/terrorism/fisa/FISCR_opinion.pdf <- PDF

The court endorsed this line of argument with very persuasive logic.

As for the role of the Truong case in the development of wiretapping case law, I encourage you to read In Re: Sealed Case."

FWIW, neither Truong nor "In re: Sealed Case" are all that helpful to illuminate the perimeter of the "inherent power" of the President, or the "inherent power" as augmented by a Congressional Act that authorizes the use of force against an enemy of the state. That boils down to a contest between the government and the 4th amendment.

An important term of art in that discussion will be "foreign intelligence information." The court in "In re: Sealed case gives an example of where -IT- might find against the government. I note that the Supreme Court has the power to overrule the lower court should a case come along.

The government claims that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the governments objective is to stop espionage or terrorism by putting an agent of a foreign power in prison. That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its true purpose was to gain non-foreign intelligence informationsuch as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. § 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a significant purpose of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.