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Spy Powers: Can the president eavesdrop on private citizens without a judge's ok?
San Francisco Chronicle ^ | January 8, 2006 | Bob Egelko

Posted on 01/11/2006 4:45:36 PM PST by Coleus

SPY POWERS

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

(Excerpt) Read more at sfgate.com ...


TOPICS: Constitution/Conservatism; Government
KEYWORDS: patriotleak

1 posted on 01/11/2006 4:45:42 PM PST by Coleus
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To: Coleus
When you find the phone number on a terrorist's cell phone records the search is no longer unreasonable.

Where were these critics when Hillary made off with 800 FBI files of US citizens (officeholders no less), not in a time of war, and in direct contravention to explict laws forbidding such access?

2 posted on 01/11/2006 4:48:32 PM PST by thoughtomator (Illegal immigrants come to America for a better life - yours!)
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To: Coleus

The author spends 90% of the article discussing the wrong case, i.e. the need for warrants for domestic crimes. At the very end of the article the author finally gets around to discussing the need for warrants for foreign enemies operating on our soil in a time of war. Of course, "domestic" spying fits the Rats meme.


3 posted on 01/11/2006 4:53:26 PM PST by TheDon (The Democratic Party is the party of TREASON!)
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To: Coleus
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.

One little factoid left out of this article is that this applies to civil matters not enemy combatants during a time of war. We are at war. The Constitution does not apply to enemies who seek our destruction.
4 posted on 01/11/2006 4:54:28 PM PST by Man50D
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To: Coleus

They can listen to whatever they want whenever they want,
as far as Im concerned.


5 posted on 01/11/2006 4:54:55 PM PST by claptrap (optional tag-line under reconsideration)
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To: Coleus

Yes, IF, HER name is Clinton!


6 posted on 01/11/2006 5:10:04 PM PST by Waco
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To: Coleus

If President Bush wants to listen in on any of my phone conversations, I suggest he tune in around 6pm on any Friday night. We'll either be ordering pizza or Chinese food, and we can order extra for he and Laura. Y'all come!

And my Mom usually calls me to complain about her life between 9 and 10 am on Tuesdays and Thursdays. Sometimes Saturdays, if she wants me to take her to the grocery store. And I just want to state for the record that I have absolutely NO problem wearing a wire when I'm with her...

Oh, and my library card access number is 29405004999677 and the PIN is 3424 if that helps keep us all safe. ;)

(Just how retarded are the Dims? Their mental illness and paranoia knows no bounds.)


7 posted on 01/11/2006 5:19:39 PM PST by Diana in Wisconsin (Save The Earth. It's The Only Planet With Chocolate.)
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To: Coleus
Lest we forget ... there was a FL couple would listened and recorded a cellular phone conversation with Newt and ...

That recording made its way to a US Congressman from Washington State who gave it to the press.

Ain't no buddy went to jail over that ... Nothing there ... move along. A felony was very loose under l'Reno.

8 posted on 01/11/2006 5:36:31 PM PST by jamaksin
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To: Coleus
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.''

Whereas the current monitoring of signals is in regards FOREIGN organizations, and further that the communications are leaving the country...or do you have something new?

9 posted on 01/11/2006 5:39:37 PM PST by lepton ("It is useless to attempt to reason a man out of a thing he was never reasoned into"--Jonathan Swift)
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To: Man50D

Agreed ... but a minor problem ... no formal Declaration of War is to be seen. War Powers Act is close, but it is not the "real" thingy.


10 posted on 01/11/2006 5:42:09 PM PST by jamaksin
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To: Coleus
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).
11 posted on 01/11/2006 5:52:20 PM PST by joseph20
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To: jamaksin
Agreed ... but a minor problem ... no formal Declaration of War is to be seen. War Powers Act is close, but it is not the "real" thingy.

You are forgetting or are not aware of the joint resolution that was passed by Congress (H. J. RES. 114) on October 10, 2002. The resolution is titled

"To authorize the use of United States Armed Forces against Iraq."

It also states

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;"

Note the word war is used in the joint resolution. This is a declaration of war. Therefore we are at war. I suggest you read www.yourcongress.com the resolution.

12 posted on 01/11/2006 6:05:28 PM PST by Man50D
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To: joseph20

thanks for the link


13 posted on 01/11/2006 6:14:21 PM PST by Coleus (IMHO, The IVF procedure is immoral & kills many embryos/children and should be outlawed)
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To: Man50D
The right of the people to be secure in their persons, houses, papers, and effects

The Supremes have consistently held from the 1920s to the present that the radio-waves belong to the public and the public has the freedom to listen. Public radio-waves do not belong to the person using them. Nobody has a reasonable expectation of privacy. That covers passive radar detectors that listen to the police radar (But not necessarily active ones that send false signals back to the police.) It covers cell-phones like that of the politician visiting Florida and heard on a Radio Shack scanner. That covers phone calls on relayed on micro-wave and bouncing off satellites. Should that Supreme Court precedent be overturned?

against unreasonable searches and seizures, shall not be violated

Is it unreasonable to eavesdrop on a known member of Al Kaida? A suspected member of Al Kaida? It is the job of Congress to define what is reasonable and what is unreasonable. That should be done by a law that automatically sunsets every 10 years. Congress is derelict in its duty in not defining what is reasonable and what is unreasonable.

and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Again, it is the job of Congress to define probable cause. Congress is derelict in its duty.

Note that there is no prohibition against reasonable searches. Thus the police do road checks for drunk drivers and people not wearing their seatbelts. The courts have determined those checks to be reasonable and thus do not need probable cause. I do not think they are reasonable. But I've been over-ruled.

14 posted on 01/11/2006 6:28:17 PM PST by spintreebob
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To: Man50D
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!

15 posted on 01/12/2006 4:12:58 AM PST by jamaksin
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To: jamaksin

You've hit the nail on the head. Congress, especially the Senate, is filled with spineless sychophants who lack the courage to even stand up to their own staffers.


16 posted on 01/12/2006 5:18:24 AM PST by spintreebob
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To: jamaksin
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!

My post is right on point. You failed to at the very top of the resolution is the phrase "Iraq War Resolution. Congress acknowledges this is war and accoridngly gives President the same authority to use the military and fight the enemy just as Congress did with Presidents Wilson and President Roosevelt.

The war on terrorism is not merely a metaphor. There is a major difference between the first term and the latter two. Those criminals who deal with illegal drugs do not have the intent of destroying the United States. No one deliberately creates poverty to destroy the United States. The terrorists sole purpose is to destroy the United States. We were attacked on our own soil by an enemy who wants to destroy us and the result was the deaths of three thousand Americans. Fewer people died during the attack on Pearl Harbor on December 7, 1941 and no one questioned this was an act of War before President Roosevelt and Congress addressed it the next day.

You are splitting hairs. Your attitude jeopardizes this nation's security and is exactly how the terrorists hope all Americans will think because it make their goal much easier to achieve. Tell the loved ones of those three thousand Americans who died on 9/11/01 they are merely metaphors and not victims of war.
17 posted on 01/12/2006 6:11:08 AM PST by Man50D
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To: thoughtomator
Where were these critics when Hillary made off with 800 FBI files of US citizens (officeholders no less), not in a time of war, and in direct contravention to explict laws forbidding such access?

FReerepublic was flooded with such critics. Surprisingly absent today. How about "We the people" listen in on Politicians phone calls and emails? Turn about being fair play and all. Think we'd be amazed, or horrified? Blackbird.

18 posted on 01/12/2006 6:13:29 AM PST by BlackbirdSST (Diapers, like Politicians, need regular changing for the same reason!)
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To: spintreebob
Nobody has a reasonable expectation of privacy.

Are you a Judge Alito fan? He states clearly that there is a Right to Privacy in the Consitution, when he was being probed on abortion. Just curious. Blackbird.

19 posted on 01/12/2006 6:16:46 AM PST by BlackbirdSST (Diapers, like Politicians, need regular changing for the same reason!)
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To: spintreebob
You've hit the nail on the head.

Jamaskin missed it by a country mile. The fact that you compare the acts to destroy the United Stated by an enemy who seeks our destruction to a civilian matter of setting up check points to stop drunk drivers illustrates the point you clearly do not understand the situation. The big difference is drunks are not trying to destroy the U.S.!
20 posted on 01/12/2006 6:18:58 AM PST by Man50D
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To: Man50D
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.

21 posted on 01/12/2006 7:43:49 AM PST by jamaksin
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To: joseph20
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.

22 posted on 01/13/2006 4:21:04 PM PST by Sandy
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To: Sandy
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

23 posted on 01/13/2006 9:01:47 PM PST by joseph20
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To: joseph20
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.

24 posted on 01/13/2006 11:48:27 PM PST by Sandy
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To: Sandy
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.
25 posted on 01/14/2006 3:16:47 PM PST by joseph20
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To: joseph20; Sandy
Typo in my post #25:

"section 1801 1802, subsection (a)(1)(B)"
26 posted on 01/14/2006 3:22:18 PM PST by joseph20
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To: Coleus
Can the president eavesdrop on private citizens without a judge's ok?

The reporter is kidding. Right? He and I both know that the President doesn't have the time to listen in on the conversations of private citizens.

27 posted on 01/14/2006 3:47:06 PM PST by jerry639
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To: joseph20
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).

28 posted on 01/14/2006 7:18:57 PM PST by Sandy
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To: Sandy
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.

29 posted on 01/14/2006 7:26:16 PM PST by Cboldt
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To: Sandy
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).
30 posted on 01/14/2006 8:34:29 PM PST by joseph20
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To: Cboldt
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.

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.

31 posted on 01/14/2006 8:40:09 PM PST by Sandy
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To: Coleus

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.


32 posted on 01/14/2006 8:41:28 PM PST by Tatze (I voted for John Kerry before I voted against him!)
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To: jamaksin
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.

33 posted on 01/14/2006 8:50:50 PM PST by filbert (More filbert at http://www.medary.com)
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To: Sandy
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.
34 posted on 01/14/2006 8:55:33 PM PST by joseph20
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To: joseph20
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.

35 posted on 01/14/2006 9:54:12 PM PST by Sandy
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To: Sandy

Like who really cares... I don't think that 99.999% Of our intercepted conversations really matters much... this is a non-event in my terms. Those making a big deal are just trying real hard to make an issue where there isn't one


36 posted on 01/14/2006 10:29:25 PM PST by alligator (To be ignorant of one's ingorance is the malady of the ignorant.)
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To: Sandy
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).
37 posted on 01/14/2006 10:34:51 PM PST by joseph20
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To: joseph20
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?

38 posted on 01/14/2006 10:53:45 PM PST by Sandy
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To: Sandy
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?
39 posted on 01/14/2006 11:02:43 PM PST by joseph20
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To: TheDon

I liked how President Bush put it: If Al Quaeda is calling you we want to know why. Of course, the MSM always prefers to call them American citizens, not Al Quaeda contacts.


40 posted on 01/14/2006 11:05:36 PM PST by Moonman62 (Federal creed: If it moves tax it. If it keeps moving regulate it. If it stops moving subsidize it)
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To: joseph20
And why do you say that an "agent of a foreign power" is not considered to be in association with a foreign power?

I don't think I said that. I think maybe you're reading the phrase "an association which is a foreign power" to mean something other than what it actually says. It means the association itself is the foreign power. The phrase doesn't say "IN association with a foreign power". It says "AN association which IS a foreign power".

Look at the definition of association:

1. The act of associating or the state of being associated.
2. An organized body of people who have an interest, activity, or purpose in common; a society.
I think you're reading the word "association" as though it has meaning #1, when meaning #2 is the proper one.
41 posted on 01/14/2006 11:29:12 PM PST by Sandy
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To: Sandy
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?
42 posted on 01/14/2006 11:42:18 PM PST by joseph20
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To: joseph20
According to you, terrorists do not meet the definition of a "foreign power" set forth in section 1801(a)(1-3).

I don't think I said that, either. The six meanings of foreign power defined in 1801(a) aren't all mutually exclusive. For example, "a foreign government or any component thereof" could also be a "a group engaged in international terrorism".

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

No. I'm saying that if a terrorist isn't a foreign power as defined in 1801(a)(1-3), then section 1802(a) wouldn't be applicable. 1804 would be the applicable section.

My original and main point, however, was to correct your assertion that a U.S. person is not a U.S. person if he's an agent of a foreign power.

43 posted on 01/14/2006 11:53:20 PM PST by Sandy
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To: Sandy
I don't think I said that, either. The six meanings of foreign power defined in 1801(a) aren't all mutually exclusive. For example, "a foreign government or any component thereof" could also be a "a group engaged in international terrorism".

Yes, but a group engaged in international terrorism could also not be a foreign government or any component thereof. In this case, it would be illegal to conduct warrantless electronic surveillance! This is your position, no?

No. I'm saying that if a terrorist isn't a foreign power as defined in 1801(a)(1-3), then section 1802(a) wouldn't be applicable. 1804 would be the applicable section.

You are saying that, under FISA, we cannot conduct warantless electronic surveillance against terrorists that don't fit the definition from 1801(a)(1-3)!
44 posted on 01/15/2006 12:26:47 AM PST by joseph20
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To: joseph20
how is it that terrorists do not meet the definition of a "foreign power" set forth in section 1801(a)(1-3)?

Have you read the statute in question?

50 USC 1801 (definitions)

(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; ...

That's it - that's all of the material in 1801(a)(1) - (3). And without more, perhaps an argument can be made that terrorists, or more narrowly, "international terrorists," fit those definition. But the statute itself goes on to add the following definitions. Note that Section 1802, warrantless surveillance, applies only to the above referenced, and does not specifically recite that warrantless surveillance can be conducted against 1801(a)(4) targets.

50 USC 1801 (definitions)

(a) "Foreign power" [also] means-- ...
(4) a group engaged in international terrorism or activities in preparation therefor; (5) a foreign-based political organization, not substantially composed of United States persons; or (6) an entity that is directed and controlled by a foreign government or governments.

Now, one might ask why Congress decided that surveillance against foreign terrorists requires a warrant. That is, why did Congress draw the line where it did? But that's a Congressional call.

At any rate, Congress went a little bit further, and defined international terrorism as well.

50 USC 1801 (definitions)

(c) "International terrorism" means activities that--
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnapping; and
(3) 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.

How can it be that it is a violation of FISA to conduct warrantless electronic surveillance on terrorists?

If the terrorist act are being planned or undertaken by an entity within the definition of "foreign power" as recited in 1801(a)(1) - (3), then surveillance without a warrant is within FISA boundaries.

The analysis of 1801(a)(1) - (3) then moves to a definition of "foreign government or component thereof" (Taliban satisfies this), "a faction of a foreign nation," and/or "an entity openly acknowledged, directed and controlled by a foreign government." Examples would be useful, but unfortunately I have no certain ones. I speculate that perhaps Hamas is so classified, and that Al Qaeda is not so classified. There are also a good number of other terrorist organizations that no foreign government openly acknowledges, directs and controls.

The article that you referenced in your post spends quite a bit of time getting an actor to come within the scope of "agent of a foreign power." That is separately defined under 50 USC 1801. Being so classified would -NOT- support a warrantless electronic surveillance under the terms of 1802. But attaching the label "agent of a foreign power" to an actor does not result in justifying warrantless surveillance under FISA.

45 posted on 01/15/2006 5:27:27 AM PST by Cboldt
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To: TheDon

"The author spends 90% of the article discussing the wrong case, i.e. the need for warrants for domestic crimes."

There is no reason to be suprised. After all, the democrats see the WOT as a law enforcement issue and not as a war. They fully believe that all terrorists are criminals and should be prosecuted accordingly. It's the same theory that Bill Clinton used and it is the principle reason for the infamous 'wall'. It is only a matter of time until the dems call for Miranda rights for terrorists and the ceasesation of all combat operations. We'll get indictments, appoint lawyers, and serve the terrorists with notices to appear in court. Yep, that's the way to deal with terrorism.


46 posted on 01/15/2006 5:35:01 AM PST by DugwayDuke (Stupidity can be a self-correcting problem.)
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To: Cboldt
The analysis of 1801(a)(1) - (3) then moves to a definition of "foreign government or component thereof" (Taliban satisfies this), "a faction of a foreign nation," and/or "an entity openly acknowledged, directed and controlled by a foreign government." Examples would be useful, but unfortunately I have no certain ones. I speculate that perhaps Hamas is so classified, and that Al Qaeda is not so classified. There are also a good number of other terrorist organizations that no foreign government openly acknowledges, directs and controls.

This is the issue that I have been trying to get at. Thanks for putting it so nicely.

If Al Qaeda does not meet the definition of a foreign power as defined in 1801(a)(1) -(3), then we cannot conduct warantless electronic surveillance on them. How absurd!

I can understand why President Bush would want to "go above" FISA, if this is really the case!
47 posted on 01/15/2006 5:11:41 PM PST by joseph20
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To: joseph20; Sandy
If Al Qaeda does not meet the definition of a foreign power as defined in 1801(a)(1) -(3), then we cannot conduct warantless electronic surveillance on them. How absurd! I can understand why President Bush would want to "go above" FISA, if this is really the case!

One general point that Sandy & I were trying to make is that if the surveillance is within FISA, then the Senate would have no beef. But the Senate has a beef, and the President has a beef that "the secret program" was disclosed. Therefore the speculation is that the surveillance is outside of FISA.

We don't have details beyond that - we don't know, for example, "how far" outside.

48 posted on 01/16/2006 4:21:42 AM PST by Cboldt
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