Posted on 12/19/2005 1:53:38 PM PST by 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.
In order to justify a warrantless surveillance under FISA, the argument boils down to converting a person from "United States person" as defined in subsection (i) to being a "Foreign power" as defined in either (a)(1), (2) or (3).
I don't buy that argument, and believe the power for the warrantless surveillance under discussion will be found elsewhere.
Of course, your mileage may vary.
According to FISA (which you still refuse to read the actual subclauses of the law) if an association cannot be wiretapped without a warrant if an American citizen will be included in that wiretap. Please, please, please, please, please read the law before commenting on it!
Recall that, according to the Constitution itself, national security while in a state of war supersedes some elements of the Bill of Rights (e.g., 4th amendment).
That defense might make sense if not for items like this:
"Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.", George W. Bush, 2004
(taken from the White House website.)
This cannot be reconciled with what we now know. Even under the most Klintonic parsing of the language, he's lying.
You are using a specious argument. Since when does a President get to just declare an American citizen a terrorist and then be done with it? What if Hillary Clinton gets into office and declares you a terrorist and conducts a warentless wiretap on you, just because she can?
The Bill of Rights applies to American Citizens.
I don’t know why I am wasting my time with you (and I shall no longer respond, so do not bother replying):
If the US Citizen joins Al quada or works with the some other foreign power, he or she forfeits her protection as a “United States person.”
One more time:
(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.
(a) ''Foreign power'' means - (1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons; (3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.
Al Quada, the Iraqi Bathists, etc. are all “foreign powers.” If you work for them, you can be wiretapped.
The Courts have repeatedly agreed with the above interpretation. If you don’t like it go talk to the judges.
Who determines if these American citizens are part of terrorist organizations? When do you start taking away their right to face their accuser and use the courts to defend their innocence? If they can be accused of terrorism, so can you. Not because you are a terrorist, but because you are an individual in this country and subject to whatever categorization the President wishes to put you in, criminal or otherwise, for reasons that need be justified only in his mind.
The Bill of Rights was put in place PRECISELY to protect against the "what ifs." That's why it is part of the CONSTITUTION of this country and placed there by the framers; it is not some sunset provision in an appropriations bill. You may or may not like what George Bush is doing as President, but he is only President. That is, someone else will be in power after him, and then someone else after that. The nation doesn't switch dictators every four years, and the Bill of Rights wasn't put in the Constitution for grins.
You present no proof that the courts have sided with your quite unique interpretation.
Nobody is arguing that an assocation is an American person and therefore protected from warentless wiretapping. What is obvious is that an American citizen is an American citizen, regardless of assocation, unless their citizenship is forfeited or taken away. And one does not forfeit their citizenship, and therefore designation as "United States person," by joining an organization, terrorist or otherwise. And as long as they are a United States citizen, they cannot be wiretapped without a court warrant in accordance with subclause B of FISA.
I will hand it to you though, you are quite creative. And the world needs creative lawyer types to do things like sue fast food restaurants for "causing" obesity.
And I would add, for emphasis, that ALL of the subclauses must be satisfied, not just one (that is, you cannot pay attention to the part about foreign power while ignoring the part about subclause B) unless it said "OR" not "AND" following each caveat.
Read the law carefully and you will see that's not the case.
And who determines all of that?
The argument you are making would apply to a foreign group with members that claim that they are American persons based on arguments OTHER than those found in subsection B (i.e. American citizenship, and I believe legal residence) perhaps by making claims of ties to American relatives, or working for an American company.
There may be reasons for doing it, but if it doesn't jibe with the Bill of Rights it is unconstitutional.
"There may be reasons for doing it, but if it doesn't jibe with the Bill of Rights it is unconstitutional."
There is NO Right in the Bill of Rights that gives terrorists freedom to be terrorists. Now you want to talk civil rights then maybe you got an inch of cover calling this unconstitutional. But of course lawyers can and do make the law say what ever they want it to say.
Which is the precise reason we have a secret FISA court.
Of course not. But there IS a right in the Bill of Rights that gives SUSPECTED terrorists the right to be protected from unreasonable search and seizure.
The only way to send a message is to put people in prison for leaking this.
It is time to send a REAL message.
The republicans forced a vote of Mutha's pork barrel "return home" outrage.
This is right for action too.
Catch them, but do not watch them!..
Spying on al Qaida in America by
Walid Phares
"Use their systems, passports, citizenship, laws, traditions, books and media, create internal divisions among them, and inflict defeat on the kuffars [infidels], for in the current balance of power, all we need to do is to use their weaknesses as our strength."
– Abul ala’ - Al-Ansar chat room, September 2005.
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