Spy Powers: Can the president eavesdrop on private citizens without a judge's ok?

Can the president eavesdrop on private citizens without a judge's ok? The high court said 'no' in 1972 Wiretaps: Ruling requires warrants for spying at home

Thirty-five years ago, President Richard Nixon claimed constitutional authority to wiretap Americans' phone calls to protect national security without asking a judge -- the same assertion that President Bush is making today in the name of fighting terrorism.

The Supreme Court ruled unanimously against Nixon, saying the Constitution granted the powers he was claiming to judges, not presidents. If the current court eventually reconsiders that 1972 ruling, it may affect the fate of Bush's decision to authorize the National Security Agency to wiretap calls between Americans and alleged al Qaeda suspects in foreign countries.

Presidents have approved wiretaps without court orders since the 1940s, but the legality of the practice was thrown into doubt after the Supreme Court ruled in 1967 that electronic eavesdropping was a search, and thus covered by the prohibition on unreasonable searches in the Constitution's Fourth Amendment.

The case Nixon chose as a test of presidential authority arose during a turbulent period, in circumstances that must have seemed to favor the government: the prosecution of members of the radical White Panthers on charges of bombing a CIA office in Ann Arbor, Mich., in 1968.

The prosecution's evidence included phone conversations by one defendant, Lawrence "Pun" Plamondon, whom federal agents had taped without a warrant on the authority of Nixon's attorney general, John Mitchell.

In defense of its conduct, the administration submitted a sworn statement in 1971 from Mitchell saying agents needed to conduct the surveillance to protect the nation from "attempts of domestic organizations to attack and subvert the existing structure of the government.'' The administration said there had been 1,562 bombing incidents in the United States in

Your " ... splitting hairs ..." - Yup, I am. Very purposefully, as being succinct here is quite important.

And your " ... sole purpose ... " - "sole" as in one, singular. Nope - try the destruction of Israel, getting America "influence" out of the Middle East, ... as part and parcel of their motives. So, multiple ... as in plural terrorist purposes - again, being succinct here.

Can the president eavesdrop on private citizens without a judge's ok?
If you collaborate with terrorists, then you are no longer considered a "United States person". You are considered an "Agent of a foreign power", as defined under Section 1801, subsection(b)(2)(C).

This isn't true. A U.S person is still a U.S. person even if he's an agent of a foreign power. In fact, 1801(b)(2) specifically does *not* exclude U.S. persons. Regardless, FISA still requires a judge's ok even if the agent of a foreign power isn't a U.S. person.

This isn't true. A U.S person is still a U.S. person even if he's an agent of a foreign power. In fact, 1801(b)(2) specifically does *not* exclude U.S. persons.

In section 1801, subsection (i), it is explicitly stated that a United States person "does not include a corporation or an association which is a foreign power".

Regardless, FISA still requires a judge's ok even if the agent of a foreign power isn't a U.S. person.

Have you read Section 1802:

Section 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

In section 1801, subsection (i), it is explicitly stated that a United States person "does not include a corporation or an association which is a foreign power".

That's not relevant at all. The only purpose of that phrase is to exclude some foreign power corporations/associations from the definition. For clarity, read it like this:

United States person means...
1. a citizen of the United States;
2. an alien lawfully admitted for permanent residence;
3. an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, but does not include an association which is a foreign power as defined in subsection (a)(1), (2), or (3) of this section;
or
4. a corporation which is incorporated in the United States, but does not include a corporation which is a foreign power as defined in subsection (a)(1), (2), or (3) of this section.

Have you read Section 1802

Section 1802 allows surveillance without a court order but *only if* the target is a foreign power as defined in 1801(a)(1), (2), or (3).

In all other instances, 1804 is the applicable section.

That's not relevant at all. The only purpose of that phrase is to exclude some foreign power corporations/associations from the definition.

Sandy, read these sections please:

section 1801, subsection (a)(1)(B): 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 [among other things] there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party

section 1801, subsection (i): ''United States person'' [among other things] does not include a corporation or an association which is a foreign power

section 1801, subsection (a): ''Foreign power'' means [among other things] a group engaged in international terrorism or activities in preparation therefor

section 1801, subsection (b)(2)(C): ''Agent of a foreign power'' means [among other things] any person who knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power

If you are an American citizen and you collaborate with international terrorists, then you are an agent of a foreign power and you are in association with a foreign power.

If you an agent of a foreign power and you are in association with a foreign power, then you are not protected as a United States person under this law.

section 1802, subsection (a)(1)(B)

But you're skipping the most important part of 1802(a)(1), which is subparagraph (A), *not* subparagraph (B). Here:

1802(a)(1)    . . .   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;

See it? The surveillance must be directed at communications that are transmitted by specific means (i.e., communications means which are used exclusively between or among foreign powers, as defined). Or, the surveillance must be directed at technical intelligence from specific property or premises (i.e., property or premises under the open and exclusive control of a foreign power, as defined).

Importantly, note that there's nothing there regarding agents of foreign powers. It's about foreign powers, period.

More importantly, what you're misunderstanding is the definition of foreign power. For the purposes of 1802(a), a foreign power is as defined in 1801(a)(1-3). Foreign powers as defined in 1801(a)(4-6) are not relevant to 1802(a). Notice that you quoted one of the non-relevant definitions, 1801(a)(4).

Importantly, note that there's nothing there regarding agents of foreign powers. It's about foreign powers, period.

1802 doesn't include terrorists of 1801(a)(4) either.

But hey, if people want to argue that the surveillance is within the four corners of FISA, who am I to pop their bubble? The lawers are dealing with it, the administration is putting out their legal arguments, and lame arguments on FR don't carry any weight except educational.

Regarding section 1802, why do you claim that subsection (a)(1)(A) is important, but that subsection (a)(1)(B) is not important?

I agree that section 1802, subsection (a)(1)(A) is restricted to section 1801 (a)(1-3). But section 1802, subsection (a)(1)(B) has no such restriction.

It is stated in section 1801, subsection (i) that a United States person does not include persons that are in association with a foreign power. This definition applies to section 1802, subsection (a)(1)(B).

As such, if you are in association with a foreign power, then you are not a United States person. And if you are not a United States person, then you are not covered by the protection of section 1802, subsection (a)(1)(B).

1802 doesn't include terrorists of 1801(a)(4) either

Exactly.

if people want to argue that the surveillance is within the four corners of FISA, who am I to pop their bubble?

Anyone claiming that the surveillance is within the four corners of FISA obviously doesn't understand the administrations's legal arguments. Bush isn't trying to justify actions that conform to FISA. His whole argument is intended to justify actions that violate FISA.

To answer the question, if time is of the utmost importance, than conduct the wiretap, and get the warrant within 72 hours (which I believe is the FISA law). If time isn't important, than get the warrant. I don't believe in warrantless wiretaps, just like I didn't believe in warrantless searches when Clinton was approving them.

But any US citizen or resident receiving phone calls from Al Qaeda satellite phones better damn well have their phones tapped pretty damn quick.

Well, almost. You have missed my point ...
Difference:
Declaration of War ... Wilson and FDR asking Congress for a declaration of war. In each case, one negative vote, same person (a pacificist) each time.
War on Terrorism ... A metaphor much like "War on Drugs" or "War on Poverty" - of much lesser weight than the "true" declaration of war above.
For example, was the Korean War a war ... nope, it was a "police action" ... VietNam ... Bosnia ... , etc. None had a "true" [viz., Congressional vote] declaration of war authorizing spending America blood and treasure, and yet it was done.

So, my question is - Why "War Powers Act" (your Resolution) and not Declaration of War? Answer - it is like the Congressional Military Base Closure Committee - politics!

Please go and find out what the "War Powers Act" really is before you continue your discussion on this thread. It is not what you think it is.

"I think it does not mean what you think it means." -- Princess Bride

It may serve to strengthen your arguments in the future. Thanks.

Still, people keep trotting out FISA to justify violations of FISA, mistakenly thinking that they're discovering important legal provisions inexplicably overlooked by Bush's lawyers. It's flabbergasting.

People like James S. Robbins from the National Review? Have you read his piece Unwarranted Outrage? This is where I got most of my information on this issue (I'm not a lawyer myself). You might want to check it out. He's arguing, just like I have here, that Bush's actions conform to FISA. I'd be interested to here your comments on that article.

Regarding section 1802, why do you claim that subsection (a)(1)(A) is important, but that subsection (a)(1)(B) is not important?

(A), (B), and (C) are *all* important. The AG has to certify to all three. Identifying an appropriate target, however, is the first step.

But section 1802, subsection (a)(1)(B) has no such restriction.

Doesn't matter. (A) defines the target. (B) and (C) deal with what happens after the target is defined. It's not (A), (B), or (C). It's (A), (B), and (C).

It is stated in section 1801, subsection (i) that a United States person does not include persons that are in association with a foreign power.

No, as I explained earlier, it doesn't say that. It says,

“United States person” means
an unincorporated association [unless that association is a foreign power, as defined in subsection (a)(1), (2), or (3)] a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence

You're simply reading the definition of U.S person incorrectly. "U.S. person" has four meanings:
1. a U.S. citizen
2. a lawful permanent resident
3. a corporation which is incorporated in the United States
or
4. an unincorporated association a substantial number of members of which are U.S. citizens or permanent residents.

The phrase "but does not include a corporation or an association which is a foreign power..." does nothing except to exclude from meanings 3 and 4 those corporations and unincorporated associations which also happen to be 1801(a)(1-3) foreign powers. The phrase in no way modifies meanings 1 and 2. Citizens and residents are not corporations. Nor are they associations. Citizens and residents are just individuals.

This really does not add up at all.

According to you, terrorists do not meet the definition of a "foreign power" set forth in section 1801(a)(1-3).

Are you then saying that it is a violation of FISA to conduct warantless electronic surveillance against terrorists?

And why do you say that an "agent of a foreign power" is not considered to be in association with a foreign power? If an agent of a foreign power is considered to be in association with a foreign power, then they would be excluded from the definition of a United States person according to section 1801, subsection (i).

He's arguing, just like I have here, that Bush's actions conform to FISA.

OTOH, the President is arguing that he doesn't have to comply with FISA, that Article II and the AUMF give him authority to conduct electronic surveillance without following the procedures mandated by law. If he's complying with the law, i.e., following FISA procedures, what's the purpose of his argument? You think he's arguing that he has authority to ignore FISA just to be arguing it?

I have been aware of this point from the start. However, I am not yet interested in pursuing that angle.

For now, I want to examine the FISA law. For instance, how is it that terrorists do not meet the definition of a "foreign power" set forth in section 1801(a)(1-3)? How can it be that it is a violation of FISA to conduct warrantless electronic surveillance on terrorists?

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