Skip to comments.Unwarranted Outrage (The Times blew our cover)
Posted on 12/19/2005 12:01:30 PM PST by frankjr
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.
James Risen should be locked up.
I would like to see John Ashcroft respond to this as he was AG at the time this all started...bet he would be able to give a concise and direct rebuttal to all the lies swirling out there! I'm really sorry Bush replaced him with Alberto Gonzales - definitely a switch that didn't strengthen our conservative values!
Thanks for this post. What a well thought out concise and to the point article. To those I pinged. I don't often ping on posts, but felt this one deserves some attention in detail. I am not soliciting responses. Most of us have similiar brain waves on these things.
I appreciate your pings; I would have missed this!
The NYTimes IS the enemy!
Mine are like this when I read this stuff:
"Is Time Warner good for America ?"
Not unless they're the only people in the world who've never heard the advice "never say anything classified over unsecure lines."
I agree, the Times would have published even if the result was harmful. I just don't think that in this case it's as harmful as it's being painted.
I liked Ashcroft also.
James Risen has committed a crime. Perhaps he will be locked up.
Another question.. If they don't know what hell is going on, then heck are we paying those morons for??
As an adendum to this post, perhaps some may find the following 2003 Senate hearing on redefining some parts of the FISA, interesting reading.
You really have no basis for speculating about what may or may not be valuable intelligence from any given wiretap.
You have to know what intelligence already exists or what seemingly innocuous clues terrorist operatives may give, since they are generally not known to be geniuses. You don't know what, if any codes or lexicons had already been cracked by our guys prior to the call.
Sometimes, the mere fact that a confirmed phone call took place is enough to have value.
good luck with that.
Just like Sandy Berger!
What a useful graphic....you would find me posting that Graphic at least Forty times a day recently....
Pinging some others just in case they hadn't got a ping as yet!
Hey, Hey! Enough of that talk.
We don't need to be giving out information like that.
LOL. I'd hate to see my brainwaves today. At least they are moving though, as opposed to the day after Thanksgiving when I was virtually comotose.
Back when I was a JBS member I wrote them to express my belief that a military draft was unconstitutional, since no such thing is explicitly mentioned in the Constitution (they do adhere to the Jeffersonian theory of interpretation, after all). They wrote back to explain just why a military draft was constitutional and informed me that my anti-draft belief was libertarian rather than conservative. Well guess what? Now that we are fighting moslems rather than Communists (and Jews are perceived as benefiting) they have suddenly discovered that a military draft is totalitarian and statist (just like during World War II!), and William Norman Grigg (editor of their magazine) has been writing on LewRockwell.com attacking the draft much more than I did in my once-upon-a-time letter to them.
The utter hypocrisy of the JBS and the other "palaeos," just like that of the Left, never fails to sicken me.
Just felt like repeating that...
Maybe the citizens of this country should take it from here. Perhaps we should file a class action law suit against the NYT and their shareholders for endangering our lives and the lives of our families.
Because the American public doesn't care enough to follow issues that take more than 1 day to develop, and with the guidance of our wonderful media sources, they'll never put two and two together.
How long did it take until a FReeper had to inform the LSM that Cindy Sheehan had already been interviewed a year earlier? Americans don't connect the dots unless its laid out in front of them - as this article does.
Bummer Ernest....get that BP under control so you can get back here fast.
That was a good read. Final nays and no shows on the bill
Thanks for the ping.
Anyone want to bet the leaker in the Pentagon or a senator's office is possibly a gay lover of Jim Risen, and Risen got drummed out because he was an open Gay?
The real question is when will the President have the AG frogmarch the leakers on prime time tv to the slammer.
Gentlemen you might want to repost some of your comments in the past about James Risen.
I think some of these stories on FR is how I got my hernia. ;-)
In the same cell as his sources
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