Skip to comments.Spy Powers: Can the president eavesdrop on private citizens without a judge's ok?
Posted on 01/11/2006 4:45:36 PM PST by Coleus
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 ...
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.I think you're reading the word "association" as though it has meaning #1, when meaning #2 is the proper one.
2. An organized body of people who have an interest, activity, or purpose in common; a society.
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.
Have you read the statute in question?
50 USC 1801 (definitions)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.
(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; ...
50 USC 1801 (definitions)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.
(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.
At any rate, Congress went a little bit further, and defined international terrorism as well.
50 USC 1801 (definitions)How can it be that it is a violation of FISA to conduct warrantless electronic surveillance on terrorists?
(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.
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.
"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.
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.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.