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Posted on 12/18/2005 7:24:55 AM PST by Valin
One of the critical points argued in regard to President Bush's angry pushback on the NSA leak is that his executive order violates the Foreign Intelligence Surveillance Act (FISA). People have the impression that FISA requires warrants from the FISA judge, but that isn't what FISA says at all. In fact, FISA gives the government wide latitude in warrantless surveillance of international communications even when one point originates in the US -- as long as the person in the US does not qualify as a "US person":
(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.
Note that a US person must either be a US citizen or someone lawfully admitted to the US for permanent residence. If someone resides in the US on a visa and not a green card, they do not qualify, nor do they qualify if they get a green card under false pretenses. FISA authorizes warrantless surveillance in its opening chapter:
(1) 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—
(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;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
In fact, the only people who need to make this call are the President and the Attorney General, and it doesn't even make the accidental or tangential exposure of communications with US persons a crime. It only requires that the AG ensure that mitigation procedures have been applied to ensure compliance with FISA. The only way that one can violate this law is if the law gets intentionally violated. In other words, one would have to prove that Bush intentionally ordered the surveillance of a qualifying US person.
Since the targets within the US got identified through intelligence developed through captures of al-Qaeda agents and their equipment, it seems rather unlikely that they had contacts with many US-born American citizens. Most AQ assets enter countries on student visas -- which does not qualify them as a US person under FISA and therefore does not extend them the protection of warrants prior to or during surveillance.
As the New York Times undoubtedly discovered during its research, the NSA probably never broke the law at all, and certainly nothing uncovered in their article indicates any evidence that they did. Neither did President Bush in ordering the NSA to actually follow the law in aggressively pursuing the intelligence leads provided by their capture of terrorists in the field. The only real news that the Times provided is that the US didn't need the 9/11 Commission to tell it to use all the tools at its disposal -- and hence the angry speech given by the President this morning.
I don't blame him a bit for his anger. I suspect that many will be angry with the Times by Monday -- mostly for suckering them into foolish knee-jerk reactions.
Thanks for posting this!
Great background post.
The headlines, if any, should read: BUSH DEFENDS AMERICA instead of the typical left-media BUSH SPIES ON AMERICANS.
If Bush wasn't President, we would have been attacked several more times since 9/11/01, and thousands more civilians here in the U.S. would have died. Perhaps hundreds of thousands.
TITLE 18 > PART I > CHAPTER 119
CHAPTER 119—WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
I have read the complete chapter and numerous times it gives the Attorney General authorization to allow a tap as long as a judge is notified immediately after and who's to say they weren't? The FISA court is so secret that they can't even disclose if they were notified after the fact.
Of course if he didn't have these warrantless searches and the Brooklyn Bridge was blown to pieces by the terrorists, well then we can just BASH BUSH for NOT protecting us.
Both sides of the issue or should I say EITHER side of the issue is just as appropriate to the leftists commies American haters that we call Democrats and the Main Stream Media.
The ACLU's selection outrage and how Clinton spied on American citizens.
http://freerepublic.com/focus/f-news/1542539/posts
" How do they know who has been surveilled?
Great question!
ping
How do you know who it is until you listen to the call, though?
Personally, I think the President has the inherent constitutional power to do this irrespective what some statute might say. Congress can't restrict the President's constitutional power to defend the US from attack.
It may be, like the 'Rathergate' incident, that they wanted to nail Bush so badly, they leapt before they looked.
Just a gut feeling.
Unfortunately the MSM doesn't rely on facts and discourages their use. All morning, Bush has been portrayed as illegally spying on US citizens... and that's what Joe & Jane Blow will believe.
Also, he has the "responsibility" to defend the U.S.
Bush has acted responsibly, unlike Klinton.
Why is it that the laymen on Free Republic can dig this stuff up and refute the attacks of the Dems better than the RNC?
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That's what makes me so angry sometimes. That I don't have an answer to your question.
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