My girlfriend, who is of Russian descent, tells me about a joke that went around Russia after the U.S. Embassy burned down in Moscow one year:
The U.S. Embassy burned down. The only injury was a KGB agent. He burned his ear.
If my house burns down tomorrow, will an NSA agent report a burned ear?
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Penny:
I’ve been reading your thread with Ed and Carrick regarding FISA, I think you’re being uncharitable in your quotation as well because it doesn’t go far enough. You state:
Also, according to this law that you cite, there should be “no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party” § 1802(a)(1)(B).
You then go on to cite the procedures the attorney general has to go through in order to obtain warrants. But what you do not go on to state is:
Go to section 1801, subsection (i): (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.
Essentiallly, that’s any and every United States citizen, you and me. BUT…
Does one forgo their rights when they collaborate with terrorist organizations or, to be relevant, their phones numbers in the US pop up on AQ captured computers overseas? Yup, under 1801 (b)(2)(2) it states that anyone who “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;” it is a violation against the United States. (And yes, al Qaeda is considered a foreign power under 1801 (a).). Therefore, surveillance is warranted and legal, particularly if the AG is following the rules according to the act, which it appears he has so far.
If anything, it seems like fettered power is at work here, and that’s not an altogether bad thing.
Clever, Peter F., but not clever enough. Your definition of an “agent of a foreign power” (contained in § 1801(b)(2)) is correct. However, § 1802 still orients not on “agent of a foreign power,” but on “United States Person,” effectively nullifying your argument.
There are other laws and precedents Pennywit. For example U.S. v bin Laden. See http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/binladen_12_19_00.pdf
Circuit courts applying Keith [FISA] to
the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the
warrant requirement for searches conducted within the United States which target foreign powers or
their agents.
Or Executive Order 12333
http://www.cia.gov/cia/information/eo12333.html
Do your research.
Ed:
I am quite aware of the bin Laden decision, thank you very much. Moreover, I would point you to the section of that ruling that purposely narrows it only to the surveillance of foreign nationals on foreign territory. I would also caution you that bin Laden is based on Fourth Amendment jurisprudence and on the very law that we have been debating here.
Second, I caution you in two regards in your reliance on the executive order.
In the first place, the current issue is whether the executive has unfettered power to set surveillance policy. Considering that executive power is the issue here, relying on an executive order is a grand bit of circular reasoning.
Second, you direct me to a rather lengthy order and tell me that your case is supported in there. Somewhwere. Unfortunately, you don’t make your case very well. If you’re going to cite the executive order for authority, please do me the courtesy of citing specific paragraphs of it so that I can analyze your argument.
I await your response.
–|PW|–
Penny:
I’m too slow to be overly clever! LOL.
Second, yes, I agree that 1802 orients toward a person of the United States but I don’t believe it is necessarily exclusive in that regard.
For example, how is (a)(A)(ii) not applicable or nullifies my argument, as it states that AG “certifies under oath that…”:
(A) the electronic surveillance is solely directed at— …
(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;
And it links directly back to the definition of a “foreign agent”. (I do realize the “United States person” section comes immediately after this section.)
Question: How could the law not include a stipulation or scenario where an American citizen is acting in concert or is in communication with a foreign agent (i.e. an AQ member) and not be subject to surveillance? I would think that would be a huge oversight on the part of lawmakers, would it not? I don’t believe the government or the NSA would allow for such a loophole to exist.
I ask all of this out of polite intellectual curiosity.
Hoo-boy.
First, the paragraph you quote isn’t (a)(A)(ii). It’s (a)(1)(A)(ii). Also, note that (a)(1)(A)(ii) refers not to persons, but to “property or premises.” “Property or premises” does not include “people.”
Further, note the construction of the statute.
The surveillance must meet the following criteria:
(Condition (a)(1)(A)(i) OR Condition (a)(1)(A)(ii)) AND Condition (a)(1)(B) AND Condition (a)(1)(C).
Which means that even if you meet condition (a)(1)(A)(ii), which you cite, you still have to meet the terms of (a)(1)(B), which requires:
–|PW|–
Consider this from 1801, too:
(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.
Emphasis added. I believe this makes the argument that conducting surveillance on a person of the United States is legal when warranted.
I’m not a lawyer (fortunately). I’m an informed layman. I can read the law just as well as any lawyer. I also happen to know the context in which the “spying” was performed. Given the vast resources of the Justice Dept. and the NSA, I would say if their lawyers feel the law is ambiguous and grants authority to the Executive branch in time of war against foreign powers/agents, I have no problem with that. Until the law is repealed or found unconstitutional, the President, in a time of war, gets my vote of confidence. Interpretation by ACLU-types be damned.
Penny,
No need for the exasperated “hoo-boy”, I do have some intellectual capacity! lol
I absolutely read the construction of statue and am keenly aware of the conditions that must be met. I’m also in absolute agreement with you on them. But you seem to making the point that (a)(1)(B) trumps everything and includes all person in the United States no matter who they are, irregardless of their activities. To a point that’s true, but it’s not exclusive per 1801 (e)(1)(b); it simply can’t be dismissed because it is essential to define who and who is not acting as “a person of the United States.”
Section (f) in 1801 is also rather interesting in regards to “property and premises”, too.
I’m not worried about your intellecutal capacity. I’m worried about my own. I haven’t done heavy-duty statutory interpretation in a while.
–|PW|–
Those of you dueling with me over statutory interpretation might be interested in Orrin Kerr’s analysis.
–|PW|–
Thanks for the link to Kerr’s analysus, penny. It’s definitely helpful!
While this is a bit off of the “did the administration break the law” topic, I’m curious…
Why is snooping voice and/or data traffic any different than say, monitoring tail numbers and passengers’ destinations on airplanes for air traffic?
How is it different than monitoring contents and the origins / destinations of cargo on railway or shipping manifests?
I heard that during the D.C. sniper shootings, infrastructure equipment vendors were asked to help operators to help law enforcement agencies. Without knowing all of the specifics nor the whole story, I do know that several equipment vendors were able to collect location data based on information gathered legally from the phone switches (not necessarily voice or data traffic intercepts from the phone/data calls themselves, but statistical data) to try to assist. Although this didn’t play a direct part in apprehending the shooters, it was done.
Does it really make people feel that uncomfortable knowing that law enforcement agencies could intercept your ‘personal’ information from a phone call or data request? If so, why do so many people post so much information on blogs – or via e-mail to one another or use a telephone in public all the time? When people make phone calls, do they realize or care that where the voice circuit resides may be in the hands of as many as half a dozen (or more) operators’ equipment?
I suppose that I am glad that there are standardized mechanisms in place for such surveillance such as CALEA for mobile telephony, which is actually nothing new. However, if folks seek privacy, then the Internet or telephone networks are inherently not very private – just ask those who have been litigated against for downloading music illegally. Most certainly, you can be assured that an international call or e-mail is much less private.
I’m really not looking for a stance one way or another – but I thought I’d pose those questions since I haven’t heard them yet.
I do know that lining the inside of your microwave oven with tinfoil to prevent the government from knowing what you eat is probably not a good idea.
Here’s a question:
You may or may not have terrorists living among you. Find them before another building falls while keeping everyone’s privacy 100% intact.
How do you propose to do that?
I hear too often people complaining about the loss of privacy or freedom of speech, but we are at war with an enemy who has no state, no uniform, and hides among regular civilians. How do you propose to combat them? Or do you just throw your hands up and claim that we can never win, that we should not win, like Dean?
How do you propose to do that?
They need to start with the NYT.
…but we are at war with an enemy who has no state, no uniform, and hides among regular civilians.
Again, sounds a bit to me like the NYT.
I’m glad to point people to Orin Kerr. And rather than battle further over statutory interpretation here, I would probably defer to Prof. Kerr’s analysis, as he’s the real live legal export to my wooden marionette, and he explains these things far better than I can.
–|PW|–
I hear too often people complaining about the loss of privacy or freedom of speech, but we are at war with an enemy who has no state, no uniform, and hides among regular civilians. How do you propose to combat them? Or do you just throw your hands up and claim that we can never win, that we should not win, like Dean?
Good point. However I would have to ask.. if the excuse for this is “we are at war” then when will we achieve victory in this war? How do we determine terrorism has been defeated since terrorism is a tactic and an ideology? I think it’s safe to say we will be fighting this “war” for a very very very long time. So the executive gets these special powers from now till…?