Clinton associate attorney general John Schmidt, writing in the Chicago Tribune (h/t Charles Martin):
Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.
In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.
Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that “All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence … We take for granted that the president does have that authority.”
The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an “agent of a foreign power,” which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law’s procedures.
But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, “FISA could not encroach on the president’s constitutional power.”
This is quite consistent with what the President and the Attorney General have argued, and—insofar as it cites the President’s Constitutional authority as the animating justification for authorization—is more clear-cut than navigating through the FISA maze, which, too, it appears the President did successfully, acting in accord with previous excutive orders (from Carter, Reagan, and Clinton) to gather electronic surveillance without a warrant based on exemptions made for particular types of targets [requirement met in US v Bin Laden], and for intelligence gathering at least one end of which took place overseas. Of course, the real sticking point to all this continues to be that we don’t know who the domestic targets were, or how the intelligence was gathered. Sheer volume, I suspect, is what made the “warrant” process unworkable under whatever data mining or voice recognition programs are being undertaken in secret. Or it could simply be that FISA doesn’t apply, as all the intel was collected outside of the US.
In his recent press conference, Bush noted that
I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates. That’s important. So it’s a program that’s limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa. So in other words, this is not a—if you’re calling from Houston to L.A., that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.
Question: does FISA apply to electronic communication collected outside the US? For those of you who think so, please direct me the applicable legal ruling.
Today, much is being made, in certain circles, of this NYT story, which details the inadvertant capture of purely domestic communications. But note how the story begins:
A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.
The story goes on to note that one phone used an international cellphone, which is what precipitated the capture and the confusion. We also learn from the story that these instances are rare.
Then there’s this:
[…] questions about the legal and operational oversight of the program last year prompted the administration to suspend aspects of it temporarily and put in place tighter restrictions on the procedures used to focus on suspects, said people with knowledge of the program. The judge who oversees the secret court that authorizes intelligence warrants—and which has been largely bypassed by the program—also raised concerns about aspects of the program.
The concerns led to a secret audit, which did not reveal any abuses in focusing on suspects or instances in which purely domestic communications were monitored, said officials familiar with the classified findings.
Of course, pointing up the difficulties of gathering the intel is not the same as arguing against the wisdom or efficacy of the program—and what is important here is to note that the program itself requires that one end of the converstation take place on outside of the US, and that concerns about abuse—even accidental—are being taken seriously.
Finally, here’s an overview of agency intelligence gathering guidelines, from a Duke Law Journal article written by Lawrence Sloan (and addressing the Echelon program [see p 1501]):
D. Agency Guidelines
Executive Order 12,333 binds executive agencies by prohibiting the collection, retention, or dissemination of information about United States persons except in accordance with procedures promulgated by the agency head and approved by the Attorney General.¹68; [those exceptions are discussed here and here] All of the intelligence agencies have produced such procedures, which have been approved by the Attorney General, and it is these procedures that form the final piece of the legal regime surrounding signals intelligence collection.¹69; Department of Defense Directive 5240.1-R, Procedures Governing the Activities of DoD Intelligence Components That Affect United States Persons, dated December 1982, governs all DoD components, including the NSA. These guidelines provide guidance concerning all forms of surveillance, including physical and electronic surveillance. There is a classified appendix to this document that is particularized for the NSA, nominally a component of the Department of Defense.¹70; The NSA also has an internal directive, United States Signal Intelligence Directive (USSID) 18, which provides specific operational guidelines to that agency.¹71; USSID 18 was previously classified SECRET, and, although a majority of it has been declassified, significant amounts have been redacted.¹72; These documents provide instructions on how employees of NSA can collect, process, store, and disseminate the communications of United States citizens while conforming their activities to the restrictions imposed by the Constitution, Executive Order 12,333 and FISA. Much of the language in these instructions is similar to that found in Executive Order 12,333, and FISA.
The overall result of the interaction between the Fourth Amendment, FISA, Executive Order 12,333, and the agency guidelines is that the procedures to be followed when conducting electronic surveillance vary depending upon the identity of the target and his geographic location. All electronic surveillance that takes place in the [*pg 1501] United States must be conducted in accordance with FISA, whose primary requirement is prior judicial authorization from FISC. However, when the surveillance occurs outside of the United States, FISA is not applicable, and there is no requirement of prior judicial authorization. In these cases, Executive Order 12,333 is the primary source of regulation. Executive Order 12,333 specifies different procedures to be followed depending on whether the subject is a United States person or not. If the subject is a United States person, as that term is defined in Executive Order 12,333, then the Attorney General, upon a finding that there is probable cause to believe that the target is a foreign power or an agent of a foreign power, has the power to authorize the collection.173 If, however, the surveillance is to occur outside of the United States, and there are no United States persons implicated, then no prior approval from FISC or the Attorney General is necessary. In these situations, Executive Order 12,333 requires only that the surveillance be conducted in accordance with procedures established by the head of the agency concerned.174
[My emphases; h/t Karl]
NRO’s Jim Geraghty has more. See also, Confederate Yankee and Powerline.
And Michelle Malkin plumbs some Democratic irony… (h/t Robert Crawford)
****
opposing view here.
I guess I’m a lazy, over-simplifying SOB; but I don’t understand the controversy here. When we’re fighting a war, the president and the NSA are allowed to collect any intelligence they think might help them fight a more effective war. It’s not like they were raiding the homes of innocent people. They were simply listening to international phone calls. I’m sort of like ‘Duh’ with regard to this whole situation, I mean, what do people think the NSA does exactly? Sit around waiting for intelligence to come to them?
Go to Powerline for another take on it, plus, they’ve started a correspondence with the NYT with these facts in hand. Well. I say “started a correspondence” as in, they’ve sent an email. Should we expect one back…?
I previewed. Scrolled to the bottom of your entry, and saw the link to Powerline. I swear it wasn’t there when I started this!
I think this match is just about burned out. Flame’s about gone; a little smoke left, then it’ll turn cold.
My fear is that the damage though is already done. AQ now knows, form several sources, but directly from the President that we need to jump through hoops to monitor domestic communications.
I’m making an assumption that AQ assumed that all of their traffic was being monitored.
I would like to see an extremely aggressive investigation into the leaks.
I’m a little uncomfortable with the use of the case quote, “We take for granted that the president does have that authority” to try to support an argument that the President indeed does have that authority. When a court takes something for granted, it generally means that the point is being conceded for purposes of argument because that point is not critical to the resolution of the issue immediately before the court. If a court states that other co-equal courts have adopted a principle and then takes it for granted, it is not itself adopting the principle, but is avoiding the question.
And accidental illegal intercepts of domestic conversations would not constitute civil rights violations, assuming the accidents were made in good faith.
The other day you talked about Orrin Kerr. He mentioned this line of cases. He mentioned that they talk only about whether this surveillance violates the constitution. Not whether this surveillance can occur when congress has barred it from occurring, as FISA does.
But actus, Congress can’t, through normal legislation, restrict the Constitutional powers of the President.
That whole separation of powers thing, and the reason why, whenever there’s a tiff between the branches, Congress uses the power of the purse.
The point is that those cases didn’t resolve the balance between Congress and the President. Only between the government (congress or president) and the bill of rights (the 4th amendment warrant requirement).
Sigh. I give up.
SCOTUS has never ruled on the matter. But every court has punted and simply assumed the right is there—which makes sense, given that the President is charged with protecting the country, and information collection is one aspect of doing so.
If it is your continued position, actus, that the President is breaking the law—as were his FISA-era predecessors—I’m not going to argue with you.
The fact that you are concerned about THIS President “breaking the law”—given the circumstances—is what troubles me most.
Anyway, I’ve done the work. That there is still any suggestion of a clear violation of the law (or some fourth amendment violation) on the part of the President has been put to rest, as far as I’m concerned. And if program was deemed even remotely legal (and I think it fairly clearly IS legal, but even so), I’m glad for it.
As is the Brooklyn Bridge.
Actus,
Jeff asks:
I’m sure that you (and Prof. Kerr) can answer that question, right? Because if you’e going to claim that the Pres. violated FISA, and the intell was collected outside the US, you have to be able to show that FISA applies in that situation.
TW: extraterritorial.
Hmmm.
I wonder if the Democrats have really thought this through. If they’re successful in eliminating a major tool in the fight against domestic terrorists then it makes it far more likely that domestic terrorism will happen.
Do they really think that the MSM can give them that much cover? Do they think the Republicans and conservatives will sit back and let them?
How do you mean ‘collected outside’? like the tap is outside the USA? or the call is entirely outside the USA?
Its my position that the president is clearly acting outside of FISA. I don’t thikn that other statutes help him. And the courts have not decided that he has article II powers which contravene an explicit congressional prohibition on what he has done. But violating that prohibition he certainly has done. This is not a 4th amendment issue but more of a “steel seizure case” issue of separation of powers.
“The fact that you are concerned about THIS President “breaking the lawâ€Ââ€â€given the circumstancesâ€â€is what troubles me most. “
Of course I’m concerned about the president breaking a very important and permissive law. Why do you think its just your golden boy I’m after? I wanted congress to investigate Echelon during the Clinton era too. Don’t worry. I’m a civil libertarian before I’m a democrat. Not like you knew me when we had any other presidents though.
Blowtorches dude. They were planning to “take down” the Brooklyn bridge with blowtorches.
I’d imagine you have, by now, read hilzoy‘s response to this sort of argument. “Sort”, because she’s not responding to you in particular.
My guess would be that FISA can apply in such situations, but that it doesn’t necessarily have to. The reasons I detail here, but as always: IANAL, and I have no idea if any of this has ever been tested in court.
I don’t care if the plan was to take it down with “fingernail clippers”, the fact that it was a plot to take it down is what is important. Suppose they don’t nab this guy and he gets told, “Hey, dude, blowtorches aren’t going to work, you need some C-4; Al-Habi in the Bronx has enough and he’ll help.” The fact that he was caught before plans were changed and his odds of succeeding was increased is important. acthole.
According to nypd, the plot would’ve taken down the bridge. Dude.
I addressed Hilzoy’s mistaken idea of US persons here. As did the FISA Court review. I’ll quote and bold it AGAIN:
Jeff: what, exactly, is the mistake? My claim is that someone can be (a) a US Person and (b) an agent of a foreign power, at the same time. I then add (contra Robbins): for this reason, the fact that sec. 1802 of FISA requires that the AG certify that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party” applies even when the US person in question is an agent of a foreign power.
Your cite says that the target is a US person, and that that target is also aiding and abetting terrorism (which seems to bring the target under the definition of ‘agent of a foreign power’.) I would have thought it supported my point, as does p. 10 of the case, where you find this:
”The definition of an agent of a foreign power, if it pertains to a U.S. person (which is the only category relevant to this case), is closely tied to criminal activity. The term includes any person who “knowingly engages in clandestine intelligence gathering activities . . . which activities involve or may involve a violation of the criminal statutes of the United States,†or “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor.†Id. §§ 1801(b)(2)(A), (C).”
Again, indicating that someone can be both a US Person AND an agent of a foreign power. (See Lind, John Walker; Ames, Aldrich, et al.)
Jeff,
Chimpy’s guilty. I just hung up with my shrink, and I swear to God I could hear the little nazi cackling in the background….something like “Karl, get a load of this whackjob, and Condi those fish net stockings are hot. Whose got the blow?”
He might have said “snow” but you know how inarticulate he is
November 1, 2006:
Voice over: “We kept faith with the First Amendment and stopped George Bush’s FBI from looking at your library records with the defeat of the Patriot Act. We upheld every person right to privacy within our borders by stopping George Bush’s NSA from listening to al Qaeda phone calls. We supported our men and women in the military by calling for an immediate withdrawl from Iraq, and we worked tirelessly to defeat George Bush’s tax cuts for the rich and create a real economic recovery for everyone, instead of the two Americas we have today. Now more than ever, it’s time. Vote Democrat.”
I think it’ll work bigtime.
Hilzoy —
And I think you are wrong, because as the FISA Review Court notes, “After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution.” The ruling then goes on to say:
As Robbins notes in his last email:
As Robbins says, this makes sense, given that it guards against those claiming US citizenship who are actually working as foreign agents.
Sure are a lot of damn lawyers hanging around here these days, Jeff. Kinda lowers the tone, y’know? Maybe we could get some child molesters or drug smugglers in, try and “class up” the joint some…
Reading the convoluted “legal” comments is almost as much fun as reading the folks who think they know how the Echelon system works.
Further Deponent Sayeth Not
I’m not sure, but it sounds to me that Bush’s press conference statement isn’t completely accurate. If the two people talking are in Houston and LA at the time the conversation takes place, but one of them is on a cellphone with a (let’s say) Saudi number, then they can be monitored under this program, right? But if both phones have US numbers, then it’s a different procedure (one that I assume is more time-consuming,) correct? What if both phones have US numbers, but one or more of them is outside the US at the time the call is placed, what happens then?
Is this the aspect of the revelation that’s damaging to national security? That now jihadists know that it’s 100X harder for US agents to monitor them if they use phones with US numbers (and get new ones frequently, so that by the time the court has approved a request, the number is no longer relevant?)
It seems fairly obvious to me that what was good for the goose was good for the gander. Carter, Reagan, Clinton, and Bush all had their individual counsels investigate the legality of this type of Presidential Directive. All counsels came to the same conclusion that this was legal (even if some of the analysis was contradictory). If it is ultimately found to be illegal (which I seriously doubt considering the number of lawyers looking at it during it’s respective time) then there are four presidential arses to haul in front of the judge.
I heard Rockefeller on NPR this morning avoid and redirect a very simple question, “If you thought this was wrong, why didn’t you make any noise?â€Â
This is all posturing in my eyes. Democrats are looking for a cause to salute since all else is going fairly well. Some Republicans are also yelling ‘foul’ just in case there was indiscretion (again remote possibility). At the end of the day no one is going to sack Bush for trying to protect US Citizens too much.
I’m most disappointed that this information was ILLEGALLY leaked in the first place. In good faith, the Bush Administration is tipping its hand more than it should. We are less safe having these revelations made.
I’ve been following the discussion here for a while. And by the way, its the best I’ve seen on the web so far. I’ve seen people arguing the legal angle for some time, but have not seen anyone make the connections I’ve made in my thinking with regards to the practical results of this NSA program, and would love to hear what people think regarding the push to classify certain people as “enemy combatants” as opposed to “suspects”. Specifically, Jose Padilla comes to minds, and the legal battles that have been faught regarding his status. I can’t help but connect the events. Has the NSA intercepted communications with this program and thwarted terror attacks in such a way that the evidence would not be admissible in court?
Actus, Slartibartfast (yes, I read your link):
Apparently, you have no authority for the proposition that the FISA applies where the NSA intercepts electronic communications outside the US (e.g., an NSA agent—or even a foreign intell agent—sitting somewhere like… oh, I don’t know, maybe England… intercepts calls passing through satellites or foreign collection facilities). Thus, it is impossible to conclude that the intell collection here necessarily violates FISA without knowing where the intercept occurs.
As for the “steel seizure case,” the Supreme Court rejected the argument that Truman was acting as Commander In Chief in that instance. Checking out the numbers in al Qaeda’s rolodex is a lot closer to CinC powers; courts would give it more deference.
TW: Echelon—as in “Where and how is that info collected?” (Bonus for mojo.)
PS: In the Duke Law Journal article excerpted in the main post, Jeff could also have highlighted the following:
hilzoy,
Do you really want to go “Aldrich Ames” on us?
Clinton’s Justice Dept. raided his home using warrantless searches.
For those not inclined to surf over to Obsidian Wings and read my comments (yes, IAAL):
Situation 1: Pure extra-territorial communication (both sides of call out of US)AND no US person involved.. No 4th amendment issue. Allowed for 1 year under FISA. 50 U.S.C. 1802(a)(1).
Situation 2: any other. Court order required. 50 USC 1804.
Let’s also compare the Article I power of the Congress: To make Rules for the Government and Regulation of the land and naval Forces
with the Article II power of the Executive: Commander in Chief of the Army and Navy of the United States.
Acting as C-in-C, the Executive is subject to the rules promulgated by the Legislature. FISA is such a rule.
Epic, Cardinals Nation, epic. And I am an Astros fan.
(Yeah, O.K., I’ve got the time, so I’ll kill this minnow in a teacup with a grenade. Don’t get up, fellas, I’m already up.)
So…..based on your simplistic interpertation of our fine Constitution, the Legislature could pass a “rule” that says the President must consult his Cabinet and get a majority of members to agree before he orders troop deployment. Since the President is subject to every “rule” the Legislature passes, the Legislature could strip him of all of his Constitutional authority.
Damn….you are dumb.
rls:
what is the likelihood of that bill becoming law? or the Sup. Ct. upholding it against a challenge that such a law goes beyond “rules for government and regulation” of the military? you are aware, of course, of the substantial body of case law regarding the difference between legislative powers (making laws of general applicability) and executive powers (applying such law)?
damn …. you are dumber.
uh-oh. Jeebus Chickenhawsa are in deep trouble…
http://www.mlive.com/news/grpress/index.ssf?/base/news-1/1135179932221650.xml&coll=6
Wiretap case called throwback to Nixon
In authorizing electronic surveillance without a court order, President Bush ignored a landmark U.S. Supreme Court decision involving a 1960s radical now living in Barry County, those involved in the 1972 case insist.
Bush’s executive order allowing the National Security Agency to monitor phone calls and e-mail messages without a warrant is similar to a Nixon-era program known as the Mitchell Doctrine, named for former Attorney General John Mitchell, authorizing federal investigators to wiretap suspected subversives without a warrant.
The Supreme Court, by an 8-0 ruling, said the warrantless wiretaps violated the Constitution. That decision came in the case of Larry “Pun” Plamondon, John Sinclair and Jack Forest, leaders of the White Panther Party, who were charged with bombing a CIA recruiting office in Ann Arbor in 1968.
Plamondon, 60, who now lives in Barry County and supports himself as a cabinet maker and American Indian storyteller, called news of Bush’s surveillance program “a real flashback. I had to pinch myself.
“It doesn’t surprise me at all. It’s just Bush and his right wingers trying to turn the clock back,” said Plamondon, author of the 2004 memoir “Lost from the Ottawa.”
His attorney, Hugh Davis, of Detroit, said he was surprised when he read a New York Times story last week revealing the Bush Administration’s previously secret eavesdropping program.
“I read it and thought everything I worked for 30 years ago is now gone,” Davis said. “It’s just straight up Big Brother wiretapping without a plausible relationship to actual, ongoing criminal activity. It’s about as illegal as it can get.”
“If they had that kind of evidence, why couldn’t they get a warrant?” Davis asked. “How could Bush be so stupid to turn his back on the court that’s always given him what he wants, unless it goes beyond what even FISA would approve?”
http://www.mlive.com/news/grpress/index.ssf?/base/news-1/1135179932221650.xml&coll=6
CF, a minor point of evil.
No need for a warrant, Ames violated his oath.
That is what you said. Now if you added something along the lines of, “as long as such promulgated “rules” are deeemed Constitutional”, I would not have said, “Damn….you are dumb”. But since you didn’t…..Damn you are dumb.
If you are going to make an argument that the Executive Branch of the government is subordinate to the Legislative Branch as proof that the President exceeded his authority, with no exceptions, as you clearly did, then expect to be called on it.
Francis, your analysis is wrong, you are not reading 1801(f) definition of electronic surveillance.
Cain, that is just plain stupid. There is a distinction between domestic surveillance and surveillance that involves international destinations and foreign persons. Catch up with the content here or go away.
Might want to check your calender, also, seems like you might have forgot to turn the page a decade or four ago.
Francis,
Extraterritoriality is not settled by by the section of FISA you cite—where the intercept occurs matters, in addition to where the calls begin and end, not to mention the legal status of the persons involved.
That’s why I’m waiting for someone to answer Jeff’s question about it. And for Godot.
He’s locked in the loo with that damn cat.
Almost forgot:
TW: CDT, as in the Center for Democracy and Technology.
rls,
I always get him confused with Paul Gigot.
TWs: Barona and Peterson, as in “names you should know.”
I have a picture of the two of them together. Gigot is on the right. That should help you in the future.
This was my point, in part. Which you know, naturally, having read what I wrote. Am I correct? I have no idea.
I’d wonder if, in the process of monitoring communications both of whose endpoints occur overseas, and one of whose participants is in fact a US citizen, we’d be in violation of the Fourth Amendment, but I think that might be stepping in it. I’m also wondering how the courts have adequately responded to the question of how listening to RF communications is “illegal search and seizure”, and how they can enforce return of the portions of the electromagnetic spectrum that were swiped without a warrant to their rightful owners.
But it’s been a long day, and I’m really not all that curious. TW: ill.
– As it appears this fly-shit-in-pepper argument will go on for some time unabated, it might be useful to remember the CIC has war powers to do pretty much whatever he thinks is neccessary to fulfill his obligation to protect the electorate. That includes declaring Marshall law, in which case the constitution is, for all intents and purposes, suspended for the duration. Short of that, he has, and is given, extrodinary powers to the extent he chooses to use them. That is why the Dembulbs are rabidly trying to deny this is a war at all. Absent a war they could evacerate the Presidents power to act, by saddling him with a torrent of “acts” and “clauses”. Since Congress, including the now reticent Dem’s, voted to give him war powers, they just look defeatest again in this latest phoney non-issue.
So there you have it lefties. You may hate it but thats the way our Republic works. As far as constitutional rights, as has been noted “its not a suicide pact”. Any citizen with a working brain cell is going to willingly forego certain protections of civil liberties when their survival is on the line. When you have bombs dropping on your head, or Airliners flying into buildings, you tend to be less interested in fine grain niceties, and more interested in staying alive.
– Thing thats most disturbing about the Dems rabid pursuit of these sorts of mud-slinging campaigns, is that they’re putting partisan agenda’s ahead of the countries welfare and excusing it as patriotic loyal dessent. In the bigger picture its more like idiotic dogmatic partisanship.
– Btw, for those who vibrate over the idea that the CIC might go beserk, the states can always call a halt to the whole process at any time re the IX and X amendments.
– Also the NSA monitors all forms of communication that go in and out of the country 24/7/365. In time of war or not. Period.
– I wonder why the Dems havn’t run one of their famous polls on this question.
“As a citizen, do you feel the government should have the right to surveil all forms of communications in time of war?”
They don’t want to know what the answer would be to that one. Of course the proper way to ask it would be:
“Should the government be allowed to surveil all forms of communications if it would save lives and uncover possible plots against the US by sleeper cell Al Qeada agents residing here or abroad?”
That they would never ask.
francis, I don’t think your analysis is saufficient for that conclusion, in the face of §1801(b) and the various bits of case law that have been referenced here, eg the USA v bin Laden case, which appers to hold that kind of surveillance as being lawful as al Qaeda is a “foreign power” in th e sense of §1801(a)(1-3).
Then add the precedent that the same assertion has been made since FISA was first proposed, and has been supported by the courts before.
Jeff: In the FISA court case, the government applied for a warrant; the FISA court granted it, subject to certain restrictions not contained in FISA itself; the government appealed, and the appeals court said: no, those additional restrictions are not required. How on earth is this supposed to show anything about the present case? I mean, it’s not as though the court ruled that the government didn’t need a warrant, or that the requirements of FISA itself (the act, as opposed to the FISA court) were not required.
As to Robbins’ last email, you quote him as saying: “if EO 12333 says the AG can go after agents of a foreign power without a warrant, and a US citizen is designated such an agent, there we go.” But EO 1233 does not say that the AG can go after any agent of a foreign power. It specifically says that “Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.” And since FISA itself does not say that you can go after any agent of a foreign power who is a US person, without either getting a warrant or applying for one within 72 hours, EO 12333, which requires the AG to abide by FISA, doesn’t say that either.
I’m done with this. We’re going in circles.
This is a program about overseas calls into and out of the US by foreign agents. If it’s your position that the NSA cannot monitor these calls because some of them go to US Persons—and that by virtue of their being US Persons these people can’t be monitored without a warrant—I disagree.
Obviously you disagree; the question is why.
you have failed to respond to my post pointing out that you completely misread a case that was critical to your argument. you have also failed to respond to hilzoy’s argument that you have misread your other sources.
There are limits on executive powers even in wartime, as Pres. Truman found out when he tried to seize steel mills. Some limitations are inherent; some are imposed by Congress. FISA presents an appropriate (eg, Constitutional) Article I limitation on executive conduct of espionage, even during wartime.
Having read your sources, I simply fail to understand why you believe otherwise.
Slart,
Sorry to hear you’re under the weather.
You’re partially correct. But you’re only looking at FISA to determine whether it’s extraterritorial.
But the rules for construing federal statutes also have a general presumption against extraterritoriality.
Thus, the burden is on those claiming that FISA was violated to show it applies where the intell is intercepted outside the US. Which they have yet to do, in part because the text of FISA you quoted evinces an intent against extraterritorial application.
The Fourth Amendment question is addressed, imho, by the Foreign Intelligence Surveillance Court of Review opinion. The POTUS has the inherent authority to collect the info, under a very deferential probable cause standard. Of course, that really only matters if the US decides to prosecute someone so surveilled—the new program may not be oriented toward prosecution.
TW: “Clues,” as in “those who aren’t ill could look at the ones I’ve been leaving all day and spend a few minutes with Google.”
Karl, a couple of key points about that decision.
First, the government did not challenge the requirement to go to the FISA court. It challenged conditions attached to the warrant.
Next, the FISA appellate court made some key determinations about the limits of its own jurisdiction.
“Of course, if the court concluded that the government’s sole objective was merely to gain evidence of past criminal conduct–even foreign intelligence crimes–to punish the agent rather than halt ongoing espionage or terrorist activity, the application should be denied. … But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes.”
I disagree about your contention that probable cause is deferential. From what’s leaking from the administration, their assertion is just the contrary—that the probable cause standard is so high as to make compliance with FISA impossible.
but the fact that compliance is difficult, or even impossible, does not excuse the executive branch acting lawlessly. It has an obligation to go back to congress and get the law changed.
Sad that all I have left to say is: “intel”. But it’s true.
“the new program may not be oriented toward prosecution”
This brings to mind a point that I haven’t seen discussed anywhere.
Bush could have done these wiretaps in one of two ways: with warrants, or without. He chose the latter, for reasons which seem mysterious (given how compliant the secret court is, and given the 72-hour provision).
It seems that a major disadvantage of Bush’s choice is that the information he’s getting can’t be used in a criminal prosecution.
It seems to me that if I’m chasing bad guys, and going to the trouble to snoop on them, I would want to maximize my latitude with regard to the ways I could use the data against them. If filling out some paperwork to get a warrant (retroactively, perhaps) is all I needed to do in order to preserve my ability to conduct a criminal prosecution, why would I toss that opportunity in the trash for no good reason?
Unless my surveillance targets were so questionable that even the highly-compliant FISA court would balk.
What other explanation could there be?
Along these lines, someone should explain how it would have endangered the Brooklyn Bridge to bother to get a retroactive warrant.
“It has an obligation to go back to congress and get the law changed”
This raises another interesting point.
Truong and other cases are being used to argue that Bush did not need to concern himself with FISA. But here’s what Gonzalez said: “We’ve had discussions with members of Congress … about whether or not we could get an amendment to FISA, and we were advised … that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program … so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.”
If “the authorities were there” (I guess that means cases such as Truang), then what was the point of having “discussions with members of Congress?”
It seems that the AG is saying this: “we knew we were contrary to FISA, so we explored changing FISA, and when we realized that Congress wasn’t going to give us the FISA we needed, we decided to ignore FISA.”
One more thing.
Jeff said “This is a program about overseas calls into and out of the US by foreign agents.”
The problem is that if your legal arguments are valid, then you’re claiming any president has the right to do warrantless surveillance even if the communications are purely domestic (as long as the president is willing to make a secret, unilateral declaration, subject to no independent review, that the person is a foreign agent). Is that really OK with you?
Francis,
Please answer Jeff’s question:
Then answer my question:
How do any of the points you raise about the FISCR address the question of whether FISA applies to intell collected overseas?
You are assuming FISA applies, even though the general rules of statutory construction presume that acts of Congress do not apply to activity outside the US. And you are making that assumption even though groups like the CDT, who study this for a living and would like the FISA to apply extraterritorially admit that it does not. There’s also the Duke article Jeff quoted in the main post, not to mention Albany Law Journal of Science & Technology. The people who study this issue for a living all seem to believe that FISA does not apply to intell collected abroad. Prove them wrong, if you can.
And if you think the probable cause standard is strict in FISA warrant applications, the Gov’t must be superhuman, given that said warrants are almost never denied.
And for Sparks, the question of whether something is OK with me is not the same question as whether it’s legal.
Karl, compare 1801(f)(1):
(f) ‘’Electronic surveillance’’ means –
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
with 1801(f)(2):
(f) ‘’Electronic surveillance’’ means –
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent
of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18;
for 1801(f)(1) surveillance, it doesn’t matter where the collection occurs.
1801(f)(2) appears to contemplate Echalon, by stating that the capture of all wire communications is not “surveillance” so long as the acquisition is not done in the US.
Francis,
At the risk of beating a dead horse, US law is generally presumed to apply only within the US. So quoting a FISA definition doesn’t decide the issue, because FISA has to apply before it can be violated.
I’ve now linked multiple sources that agree that FISA does not apply extraterritorially and that Congress is required to clearly express an intent to have it apply extraterritorially. The losing side in the Aramco case tried the same sort of reliance on statutory definitions, to no avail. That’s why groups like the CDT admit that when collected for intell purposes, FISA has no extraterritorial effect.
But let’s set that obstacle aside, just for the sake of discussion. You concede that “1801(f)(2) appears to contemplate Echalon [sic], by stating that the capture of all wire communications is not ‘surveillance’ so long as the acquisition is not done in the US.”
Echelon collected all of those communications… and then what happened? They were filtered… by keywords, telephone numbers, a person’s name or perhaps even a person’s voice. So if telephone numbers are added to Echelon’s dictionary, does it follow that US persons are “intentionally targeted?” If so, Echelon was at least as illegal as the current program. If not, the current program is also legal.
I think you’re kind of misunderstanding a couple thins. The first one is that collection of “foreign intelligence information” might very well include lots of people who aren’t suspected of any crimes, aren’t likely to be prosecuted for any crimes, and may well not have done anything wrong.
The second is that during wartime, the primary purpose of collecting the foreign intelligence information isn’t to prosecute the; it’s to track them down and kill them. This isn’t a police investigation and we’re under no obligation to tell them to come out with the hands up, or read them their rights.
NO RELIEF IN MISSISSIPPI
NO PROTECTION IN AMERICA
It has been four months and last night it was 32 degrees the nighttime temperatures dropping as low as the 30’s, in Biloxi, Long Beach and Pass Christian Mississippi. From a distance, it looks like an Army base camp, or perhaps the old set from the television series “M*A*S*H.†a tent city in the middle of America, a little more than a stone’s throw from the Gulf of Mexico, on a muddy gravel lot that used to be a Little League field, no banks no shopping malls no police or fire departments a makeshift tent village has emerged for some of the many families who, as winter approaches, are still homeless because of Hurricane Katrina. All FEMA emergency shelters have closed, 5,000 families still on waiting lists for government-supplied travel trailers or mobile homes.
The Senate Democrats this week think they have better things to do, like cutting down the Patriot act, leaving every American as exposed to a terrorist attack to the pre 911 level lead by, Senate Minority leader Harry Reid who has been to busy keeping the Senate side tracked dealing with the democrats frivolous attacks against the White house rather than addressing the catastrophe in the Gulf, specifically †Hurricane Katrina relief†which has been put aside by the senate democrats in order to address the democrats phony paranoid misrepresentation the President is
“spying†on Americans.
The Senate Democrats have now exposed to the world and to every terrorist and would be terrorist The National Security Agency’s classified highest level intelligence gathering program of electronic intercepts of telephone calls and e-mails of people with known ties to Al Qaeda and other terror groups.
An allegation “the President is unlawfully spying†that is so baseless in law and fact it smacks of reckless disregard, misconduct and malicious abuse of the senate. Harry Reid and his cronies are dead wrong and while the law is clear – See below verbatim
Title 50 United States Code
Chapter 36 Subchapter I Section 1811.
AUTHORIZATION DURING TIME OF WAR
************************
§ 1811. Notwithstanding
†ANY â€Â
other law,
†THE PRESIDENT “,
through the Attorney General,
†MAY AUTHORIZE ELECTRONIC SURVEILLANCE
WITHOUT A COURT ORDERâ€Â
under this subchapter to acquire foreign intelligence information.
**********************
Title 50 United States Code
Chapter 36 Subchapter I Section 1802,
1802. Electronic surveillance authorization
WITHOUT COURT ORDER;
certification by Attorney General; reports to Congressional committees;transmittal under seal;
We also have the Presidential authority of the three Presidential Executive Orders that refute the senate democrats in every manner see below
â€â€Ã¢â‚¬â€Ã¢â‚¬â€-
Executive Order 12333
Foreign Intelligence Surveillance Act of 1978 are as follows:
THE NATIONAL SECURITY AGENCY CAN
INTERCEPT ANY COMMUNICATION-
phone call, fax, electronic mail, etc.-as long as at least one end is in a foreign country.
â€â€Ã¢â‚¬â€Ã¢â‚¬â€-
Executive Order 12949
Foreign Intelligence Physical Searches
Section 1. Pursuant to Foreign Intelligence Surveillance Act of 1978 (â€ÂActâ€Â) (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches,
WITHOUT A COURT ORDER,
Sec. 3. Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of NATIONAL SECURITY or DEFENSE, are designated to make the certifications
President William J. Clinton, February 9, 1995.
â€â€Ã¢â‚¬â€Ã¢â‚¬â€-
Executive Order 12139
Exercise of certain authority respecting
Electronic Surveillance
By the authority vested in me as President
1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information
WITHOUT A COURT ORDER,
President Jimmy Carter – May 23,1979
â€â€Ã¢â‚¬â€Ã¢â‚¬â€-
The fact that 90% of the Senate democrats are lawyers which makes this more than disgusting it rises to the level of abuse of the senate in fact it rises to the level of gross misconduct, while Americans are living in tents in sub zero nighttime temperatures the minority leaders are all to busy with phony attacks against the White house disregarding the suffering hundreds and thousands in the Gulf states, not to mention the democrats have †outed †classified intelligence gathering of the strategic covert terrorist communication intercept program, that is now of little to no worth what so ever rendering a major terrorist intelligence gathering tool useless, compounded with the fact the Hurricane survivors are all but ignored a direct result of the senate democrats is beyond reprehensible.
The next time you think you know what your talking about when your pointing your finger at the White House, look around find out if your being told all the facts make sure your not hearing half the spin, just because one side says it is true doesn’t make it a true fact.
This week the Senate democrats have put every American at risk, and by every I mean you directly. You should know the Senate Democrats have blocked the Patriot act, and this “fact†leaves the entire country unprotected from terrorist attack. Capitol Hill, Tuesday, Dec. 20, 2005 Senator Reid prevented the Patriot Act’s renewal the Senator attended a Democrat political rally and proudly declared,
“We killed the Patriot Act.â€Â
We now are living at the same level of protection from Al Qaeda attack as we did on September 10, 2001. We have no national security none zero zip,
Thank you Senate democrats,
Now Osama Bin Laden has nothing to fear, Senate Minority Leader Harry Reid, Patrick Leahy and Sen. Charles Schumer, feel America has nothing to fear and you don’t need The Patriot act to protect you and the government specifically the Justice department, law enforcement the FBI the CIA, the National Security agency does not need any tools to fight the likes of Osama Bin Laden.
So when Osama and his jihad army is marching down Fifth Avenue with a nuclear weapon and your half dead from dirty bomb radiation just call Reid, Leahy and Schumer,
Leave the President out of it
He did all he could do.
Funny how the Senate Democrats have no interest in who “outed†a Top Secret Classified Covert Terrorist Communication Intercept Intelligence program,the senate democrats have given the enemy vital intelligence gathering operational details
tracking terrorist communication is now worthless
However the Democrats gave †outing †of an Ex CIA agent Valerie Plame top priority Valerie Plame is far to important to the Democrats than the protection of America from a real Al Qaeda future attack
The Republicans Will Never Forget 911
The Democrats already have
I am not done yet !!
Osama Bin Laden
Al Qaeda
The Taliban
Saddam Hussein
Enemy Terrorist Combatants
each and every all and singular
Are “NOT†citizens of The United States
They are “NOT†entitled to “ANY†Constitutional privilege
or “ANY†Constitutional protection specifically
FOURTH AMENDMENT RIGHTS
AGAINST UNREASONABLE SEARCH AND SEIZURE
As in wire taps as in all intercepts of electronic communication
Al Qaeda is at war with America –
Al Qaeda is the enemy –
Al Qaeda are enemy combatants, murdering terrorist
Can you hear me ACLU!!
They want to cut off your head
Senator Reid,
Senator Leahy and of all people
Senator Charles Schumer of New York
Are you getting this yet?
AMERICANS ARE PROTECTED
Against unreasonable Search and Seizure, as provided in the Fourth amendment
NOT OSAMA BIN LADEN
Mr. Franklin,
Mr. Jefferson,
Mr. Hamilton,
Please forgive the Senate Democrats
They know not what they have done to your country
Now
Tell me I am wrong
(update as of 7:00 pm pt the Senate lead by the Republican Majority has extended the Patriot act for another six months)
Well done, Injustice Prevails. I think that about sums up the legal and political cause-and-effect aspects of this situation.
Any one for seconds?
Well, there was another explanation mentioned repeatedly.
Is it our fault if you can neither conceive it nor bother to read and refute it?
Two minor point of curiosity here…
Big Bang Hunter said, “That includes declaring Marshall [sic] law, in which case the constitution is, for all intents and purposes, suspended for the duration.
I was under the impression that the Constitution IS and can never be suspended in total in that the Constitution is the only method by which our “inalienable rights” (Dec of Ind) are enumerated, measured and guaranteed. I certainly agree that martial law can be declared in areas of ongoing military operations, such as during rebellions or invasions (Art 1, Sec 8) when the civil authority has been destroyed or incapacitated, but the Constitution itself can never be suspended. In fact, if I’m not mistaken the only “right” that can be suspended is habeas corpus (Art 1, Sec 9).
Which leads me to another question; if
a) Art 1, Sec 9 says, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”, and,
b) Alien persons with allegiance to a foreign entity/power in the form of Al Qaida, an entity that has publicly and expressly declared war on the United States, entered our Nation and caused the destruction of life and property on a massive scale in the form of the 9/11 attacks, and,
c) The government has reason to believe that a person or persons within our Nation have the same or similar allegiances to Al Qaida,
is it not permissible and completely legal for the President to ask Congress to suspend habeas corpus for those suspected of being al Qaida members?
OK, I’m convinced: we must return the photons to their rightful owners.
charlie,
“collection of “foreign intelligence information†might very well include lots of people who aren’t suspected of any crimes, aren’t likely to be prosecuted for any crimes, and may well not have done anything wrong.”
We’ve got a big problem on our hands if we take it for granted that the government has the right to do warrantless surveillance of US citizens who have not “done anything wrong.” Is this really OK with you?
“during wartime, the primary purpose of collecting the foreign intelligence information isn’t to prosecute the; it’s to track them down and kill them”
This raises an interesting question. I think it was Cheney who just said that “thousands” of lives have been saved because of this warrantless surveillance of US persons. Does that means that we’ve secretly tracked down and killed dozens of people in the US? Really? And the government wants to keep this secret, and has managed to keep this secret, and is justified in keeping this secret?
We’re supposed to believe that lots of attacks have been prevented. How? Certainly not via arrest and trial, because we’ve seen very, very little of that. Have a bunch of US persons been disappeared into a dungeon in Romania?
Either the program is completely ineffective, or a bunch of people have been disappearing inside the US and no one has noticed or complained.
Then again, it could be that the snooping is heavily political in nature (who knows, it could even include some good old-fashioned corporate espionage on behalf of Dubya’s HBS pals), which would explain why people aren’t mysteriously disappearing.
(After all, it’s not as if there are any signs that modern Republicans have a track record of auctioning off various pieces of the government. Putting aside folks like Cunningham, Abramoff, Safavian, Scanlon, Ney and DeLay, of course.)
Aren’t you the least bit curious about this?
—
injustice,
“MAY AUTHORIZE ELECTRONIC SURVEILLANCE WITHOUT A COURT ORDER”
Nice job quoting that part, and leaving out the next part, which says: “if the Attorney General certifies in writing under oath that … there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”
Likewise for the rest of your nonsense. Why are you being so dishonest?
—
maor,
“there was another explanation mentioned repeatedly.”
No one has explained why Bush didn’t bother to get warrants, given that the court allowed retroactive application (the 72-hour provision), and given that the court had a historical compliance rate very close to 100% (in 2004 the compliance rate was literally 100%).
And no one has explained why Bush didn’t make a serious effort to change the FISA law or the FISA procedure, if he thought there was a problem with it. Why change a law (even if your own party controls Congress), when you can simply and secretly ignore it? After all, isn’t a monarch above the law?
—
cardinals,
“is it not permissible and completely legal for the President to ask Congress to suspend habeas corpus for those suspected of being al Qaida members?”
Why stop there? Isn’t anyone who opposes Bush on the side of the terrorists? Why not suspend the rights of everyone who is not a Comrade in the Party? Wouldn’t that approach to the situation be highly consistent with fundamental conservative values?
While we’re at it, shouldn’t we also take everyone’s guns away? I mean, since you have such complete trust in the federal government to always know what’s best and to always do what’s right?
Sparks, actually those things have been explained. You’ve just not bothered to read the explanations. Your laziness is not an argument.
sparks,
Nice try.
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