Cold Fury

Harshing your mellow since 9/01

Much Ado About Nothing

People are shocked, simply shocked, to find out that the NSA has monitored the phone conversations of roughly 500 terrorist suspects without a warrant over the last three or four years.

The NY Times was shocked, simply shocked to find gambling here on Thursday. (We won’t mention that the story rolled out linked to a new book published by the NY Times… we’d never be so gauche as to bring something like that up).

The usual suspects were freaked out about it. In fact, I started looking into this as a result of a more or less normally vituperative Balloon Juice post comments section here.

Then President Bush spoke about it in his weekly address today, apparently quite angry that he is getting hammered for doing something that he believes is very legal, that he’s proud of doing, and that is an integral part of our counterterrorism strategy, and Oh By The Way was an extremely highly classified defense secret until Thursday morning. Huh? What’s that? He has the power to do that? Yes, he says, and he’s issued 20-some certifications to do so on 500 some individuals since 9/11 according to the Times.

So, I spent this nice Saturday afternoon doing a little legal research on your behalf.

It seems the President probably does have the power to order NSA to monitor suspects, without a warrant, in terrorism cases, where the communications are between controller/co-conspirator, and target, and the terrorist group is tied to foreign countries or particular factions in foreign countries. It’s tied to particular circumstances though, so it’s worth knowing more about the details if you wish to comment intelligibly on the issue.

Generally, the Foreign Intelligence Surveillance Act (FISA) requires a warrant for the monitoring of U.S. persons on U.S. soil, but does not necessarily require a warrant for monitoring agents of foreign powers in similar circumstances. Keep in mind, this is intelligence monitoring, not wiretapping the phones of your local mafia hoodlums.

According to 50 U.S.C. 1801, the definitions section of FISA, an agent of a foreign power is:

b(1) any person other than a United States person, who—. . .

acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States

OR

(b)(2) 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. . . [or who] knowingly aids or abets any person in the conduct of activities described [herein].

Note that there are two categories – intel agents of foreign powers, and terrorism agents of foreign powers. U.S. persons cannot be subjected to warrant-less monitoring under FISA in the traditional intelligence context. In stark contrast, U.S. persons who are engaged in terrorist activities (broadly defined, admittedly a civil liberties concern) may be defined as an agent of a foreign power. This is so because FISA clearly and unambiguously protects U.S. persons in one subsection discussing the pure intelligence context, yet in a parallel section relating to terrorism extends the definition of agent of a foreign power to “any person” – in other words there are strong textual and structural arguments that show the Congress believes that U.S. person status is irrelevant in the counterterrorism context. This is not the atrocity under the 4th Amendment that it might seem to be; the keystone of all 4th Amendment tests is reasonableness, and the Court hasn’t exactly examined this particular question in any great depth, so Congress was basically free to speak it’s mind on this issue.

The power to monitor without warrant under FISA, even for U.S. persons involved in terrorism, is not unfettered.

In addition to existing restrictions under Executive Order 12333 and other internal limits, FISA states in 50 U.S.C. 1802 that, “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 . . .”

Got that? The definitions portion of FISA (sec. 1801) defines an agent of a foreign power to include people believed to be involved in terrorist operations, regardless of U.S. person status – a broader classification than the traditional pure intel definition of agent of a foreign power. The Act then goes on to provide for a presidential and AG certification / approval process for monitoring the communications of such persons – which sounds a lot like what Bush was describing in his speech today. There are also procedures for notifying the courts and congressional overseers – two other procedures Bush invoked in his speech.

Are there legitimate concerns over the breadth of the definition of terrorism under FISA? Yeah, I’d say so. Is there a weakness in this interpretation of the law? Yep, there’s that too, but it’s pretty minor and I think our national security has been undermined enough for one day, so I’m going to let that go.

It’s not surprising Bush is angry – it sounds to me like he followed the letter of the law, only to be hit by the NY Times, the grandstanding senate with its PATRIOT Act shutdown, and bitter, bitter criticism over his use of this tactic. Never mind the fact that the secret is now out, and this is one more source of intel that will dry up.

I’m not the biggest Bush fan in the world. I think his hiring practices are too crony-oriented and Texas-based, and I think he is too loyal to bad subordinates, and only about half as conservative as I’d like, and not at all as libertarian as I’d like.

But he is a grownup, and he’s trying to do some grownup things. He is one of us, one of those who was changed by 9/11, and he is trying to do the right thing. The shameless senate grandstanding on this issue, along with the way it is being used to hammer him (when it appears he has followed the law to the letter) is just disgusting, and I do not begrudge him his anger.

By way of purely political analysis, I’d encourage the left to go into full-tilt batshit mode on this one. It might be one of the dumbest things they could do – when the American people get word that the President and Attorney General and intel community have gone and used every available power under the law to fight ongoing terrorist conspiracies right here in the U.S., man, they’ll be pissed. Not at the President, AG and intel community though, which is why I’m encouraging my lefty friends to start the panty-wadding right now.

Welcome, Instapundit readers! Thanks Glenn!

[Update: Senate Minority Leader, Harry Reid (D-NV), was on Fox News This Morning. This issue came up. I was busy running down a stampeding toddler at the time so I didn’t get to listen as closely as I would have liked, but it sure sounded to me like Sen. Reid indicated this was a congressionally sanctioned program, and that the individuals who leaked about it to the Times should be hunted down, and “prosecuted to the full extent of the law, I mean really prosecuted” due to the damage the leaks caused to national security. I would welcome a full transcript if anybody has the source, and realize many commenters will write off Senator Reid as just another shameless shill for the Bush WH, but I would hope you would take his considered opinion on national television as food for thought.]

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82 thoughts on “Much Ado About Nothing

  1. All I’m asking is he apply for the warrent within 72 hour after peforming a wiretap. Just like the law stipulates.

    And all I’m asking for is that the anti-Bush Blobocrats and their owners over at the Times stop providing aid and comfort to the enemy for mere political advantage.

    Maybe you’re right. Maybe all those lawyers at the White House, the Justice Dept., the NSA, the FISA court and Congress are all wrong. After all, I understand the Constitution better than half the justices on the Court. Maybe you’re right…but I doubt it.

    Lemme ask you some questions; if FDR read all outgoing telegrams from Hawaii on Dec. 8th, 1941 was he a dictator…or just doing his job?

    Did you know this authorization is the reason the Brooklyn Bridge is still standing? No big deal?

    As for kneepads, would we even be discussing this if your guy had done his job instead of test-driving every pair in town?

  2. Some blogger named Glen Greenwald wrote a staggeringly dishonest post which he said was based upon a post by Al Maviva concerning FISA. He then proceeded to deliberately mis-quote Al’s post in order to reach the patently false conclusion that Greenwald had the faintest idea how and to whom the White House had applied USC Sections 1801 and 1802.

    After wading through nine paragraphs to reach the first actual argument with Al’s post, Greenwald … you guessed it … misquotes Al completely.

    Greenwald: But that does not stop Al Maviva from arguing that the Administration was allowed to engage in warrantless eavesdropping on terrorist groups pursuant to this section. To argue this, he purports to quote the authorization language of § 1802, but omits from his quotation the part of the statute which entirely negates his argument — namely, the part which limits this authorization to subsections (1)-(3), but excludes subsection (4).

    Al’s actual statement: Well, yes, it seems the President probably does have the power to order NSA to monitor suspects, without a warrant, in terrorism cases, where the communications are between controller/co-conspirator, and target, and the terrorist group is tied to foreign countries or particular factions in foreign countries. It’s tied to particular circumstances though, so it’s worth knowing more about the details if you wish to comment intelligibly on the issue.

    Advice I’m sure Greenwald wishes he had heeded.

    Greenwald again: When pretending to quote the statute, Al Maviva simply omitted the language making clear that the warrantless authorization applies only to foreign powers referenced in subsections (A)(1)-(3), and not to terrorist organizations, referenced in (A)(4).

    Look at Al’s quote again, Greenwald. See the highlighted portion? Yeah, I do think “foreign countries” means the same as “foreign powers”, and no, I don’t see any need to peruse your … offering any further.

    And dammit, Glenn really should know better than to listen to chumps like, uh, Glenn.

  3. Did you know this authorization is the reason the Brooklyn Bridge is still standing? No big deal?

    It would still be standing if after they got the information they applied for a warrant.

    J. Edgar Hoover would be proud.

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  5. I didn’t fight in Iraq to protect bullshit like this. The Republicans have betrayed America in their mad lust for money. If we allow such grevious lawbreaking by our leaders, we’re no better than the Stalinists.

    You guys are fucking traitors for justifying this.

  6. If people have nothing to hide, then they have nothing to fear as far as surveillance goes. It is only those anti-American elements — “peace” activists and the rest of the Michael Moore wing of the Democratic party — that are complaining about this. Perhaps it is because they are afraid that the government will learn what they are really up to.

  7. Ok Dexter, lets see if you will allow your entire neightborhood videotape you the next time you have sex. You have nothing to hide, right? Stalin said the same thing.

  8. Ok Dexter, lets see if you will allow your entire neightborhood videotape you the next time you have sex.

    I’ve got nothing to be ashamed of in that department either.

  9. “It [the Brooklyn Bridge] would still be standing if after they got the information they applied for a warrant.

    J. Edgar Hoover would be proud.”

    Bush followed the law. But it still stands because he understands we are at war, not engaged in zoning litigation.

    Johnnie Cochran would be prouder.

    “BetrayedSoldier”:

    Now that you’ve called your allegedly former Commander-in-Chief a theiving Stalinist traitor, are all the Democrat lawyers in the Justice Dept. and the Congressional Democrats who signed off on this also theiving Stalinist traitors?

    (hint: not a trick question…)

  10. Sorry, Joe — it is fun to squash these liberal “arguments” if you can even call them that.

  11. Bring on the police state! Jackboots are sexy. Due process is sooo not sexy. Hey you, over there. Yes you. I’m watching you. And you know why. Mmmrrow.

  12. Clib: those who have nothing to hide have nothing to fear. Free speech is a right, but it comes with responsilities. I would suggest that if those “peace protesters” don’t want the government to monitor their activities, they should stop trying to undermine the president while we’re at war.

  13. all the Democrat lawyers in the Justice Dept. and the Congressional Democrats who signed off

    GRAHAM: There was such a meeting. And the issue, then, was whether we could intercept foreign communications when they transited through U.S. communication sites. The assumption was that if we did that, we would do it pursuant to the law, the law that regulates the surveillance of national security issues. And there was no suggestion that we were going to begin eavesdropping on United States citizens without following the full law.

    ABC: You’re saying you were not briefed as the Chairman of the Intelligence Committee at the point the President signed this?

    GRAHAM: I was briefed. There was no reference made to the fact that we were going to use that as the subterfuge to begin unwarranted, illegal — and I think unconstitutional — eavesdropping on American citizens.

  14. Dexter, sorry, I totally agree with you. And by the way, the way you’re talking all tough is totally turning me on. I bet you pack an animal, am I right? The idea that Dubya might be tapping MY phone…. oh my stars. I don’t know if I’d want Bubba doing that, he’s a skeez, but Dubya, in the flight suit, yes, yes….

  15. Man, the hissy fits here are out of this world. This is more than a simple criminal investigation, it is an intelligence operation into enemy intentions to attack the United States, by foreign agents operating in the United States. A bit different than getting a warrant to search a suspected chop-shop.

    I think the fact that this is a seperate statute should give the histironics a pause. This is different than a criminal investigation, and the chances of the NSA wiretapping you is so infitesimal an electron microscope can’t see it. War causes things to happen, deal with it.

  16. I’ve got nothing to be ashamed of in that department either.

    Then you’re not Christian, since us Christians aren’t supposed to be overtly sexualized. And if you’re not Christian, that puts you in the top 95% of the far left. So you’re either lying or you’re a liberal gimmick, Dexter.

    Now that you’ve called your allegedly former Commander-in-Chief a theiving Stalinist traitor, are all the Democrat lawyers in the Justice Dept. and the Congressional Democrats who signed off on this also theiving Stalinist traitors?

    Anyone who reduces our liberties is a traitor to the ideals Doesn’t matter what party they belong to. And yes, both parties are filled with traitors. Good to see that you agree with me. By the way, where were you stationed?

  17. “If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know.

    “I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency [NSA] and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.”

    —Senator Frank Church, 1975

  18. And Senator Church proceeded to gut our intelligence agencies leaving us vulnerable to attack. Millions lost their lives and freedom thanks to Sen. Church. Great guy.

    Sorry, “BS”; If I told you where I was stationed, I’d have to chickenhawk you.

  19. Noel, if your head wasn’t so firmly lodged up your behind you’d realize why having a government of laws, not of “men” such as they are, is a good thing.

    You dishonor the many contributions of Senator Church (RIP) to this country. He was a patriot. You, by all available evidence, are a douchebag.

  20. That would be an interesting article if you WERE NOT DELIBERTLY MISQUOTING THE FUCKING LAW. You see, the section 1802 provisions only apply to subsections 1 through 3, that is ACTUAL AGENTS OF A FOREIGN GOVERNMENT. You also PRETEND that it applies to subsection 4, or non-govenmental terrorist organizations. Of course, I seriously doubt this is a mistake, rather as with the presidents own statements its a boldfaced lie.

    Bush ain’t a fucking king, and NEITHER HIM, nor you may change the text of the law. LEARN TO DEAL WITH IT, YOUR HERO IS A CRIMINAL! What more should we expect from a guy who said it would be nice to be a DICTATOR three times before he was even appointed by his daddy’s cronnies on the court.

  21. Frank Church, along with Ted Kennedy, Chris Dodd, John Kerry, the Clintons and others disgracefully sold out the South Vietnamese when keeping them free would have been of almost no cost to us. We had already pulled out our troops. But that the point; a Communist victory was the point. He facilitated the Killing Fields, propped up the Soviets as they spread death and misery around the world and blinded us when we needed to see.

    This is salient because it is the exact scenario the now-ageing dysfunctional Democrats hope to see replayed in their dotage.

    That’s real blood on Senator Church’s hands. Douche that.

  22. Joe argues that Al is right and that FISA does in fact allow warrantless evesdropping where “the communications are between controller/co-conspirator, and target, and the terrorist group is tied to foreign countries or particular factions in foreign countries”, as Al says. This is incorrect.
    To be sure we are on the same page, I first lay out Al’s argument, which is fairly straightforward. First he notes the definition of foreign powers in 50 U.S.C. 1801(b), which is fairly broad for non-citizens and more narrow for citizens, but nonetheless includes citizens in some circumstances. Then he notes that 50 U.S.C. 1802(a)(1) allows warrantless interceptions for certain communications related to foreign powers. He quotes the following:
    “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 . . .”
    Al then puts these two together and argues that (1) the definition of “an agent of a foreign power [includes] people believed to be involved in terrorist operations, regardless of U.S. person status,” and (2) “the Act then goes on to provide for a presidential and AG certification / approval process for monitoring the communications of such persons.” (emphasis added) This, he says, is what Bush was doing.
    If that’s not what Al is arguing, let me know what he is really trying to say. If it is, let’s see where he went wrong. It’s not all that complicated, but it takes a little time to explain.
    First, 50 U.S.C. 1802(a)(1) does not allow warrantless monitoring of “such persons.” (Al uses this term to mean an “agent of a foreign power,” as broadly defined in 1801(b).) Instead, it permits electronic surveillance without a court order if it is directed at “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.” See the problem? We look at 1801(a)(1-3), not 1801(b), to see who is covered. Why is that important? Because sections 1-3 of 1801(a) are limited and don’t cover groups “engaged in international terrorism or activities in preparation therefor,” (1801(a)(4)), which is what these wiretaps are all about. Sections (1-3) cover things like foreign governments, a faction of a foreign nation or nations not substantially composed of United States persons, or entities openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments. This section just doesn’t apply to what Bush is doing.
    Second, even if it did apply, 50 U.S.C. 1802(a)(1) allows such monitoring only if “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” The Bush wiretaps are not limited in this way and thus do not comply with the statute.

  23. Note that, it my previous post, the phrase “First he notes the definition of foreign powers in 50 U.S.C. 1801(b)” should read “First he notes the definition of agents of foreign powers in 50 U.S.C. 1801(b).” The argument is unchanged.

  24. I suppose you fascist fucks don’t really mind being monitored by Hinterland Security Agents while masturbating with a picture of Rush Limbaugh firmly in your grip. They probably don’t mind all that much either. Since most of you’ve never been to college, I’m guessing this is the first time you’ve heard of “The Little Red Book.” Oh well, as long as the baby Jesus is crying I’m happy. Praise God!

  25. Hey, thanks for that comment, ofy. It was pretty durned enlightening. I can’t think of a single rejoinder.

  26. I’m as conservative as they come, but dude, fuck you.

    You went completely Michael Moore with the facts here.

    1802(A) Allows for warrantelss surveillance, but only on the first three definitions of section
    1801(A), which do not include terrorist organizations.

    Frankly, I don’t think the presidents actions are really wrong, but they do fall outside this law.

    I just really don’t appreciate people being selective with facts.

  27. Hey, Ryley, is it? Don’t recall ever seeing you here before. Here’s what I don’t appreciate: dim-witted clowns like you coming in on the tail end of a post to leave your little turd of an opinion. Try reading the several comments that have already addressed your point, and then try reading the refutations. You might also try showing some manners, putz.

    Lemme clue you in, dimbulb: we don’t much care how conservative you think you are, or what you do or don’t appreciate. So here’s a great big fuck you, right back atcha, duuude. Now go on back to your buddy Glenn’s, and maybe you can squeeze out a few opinions there before your constipation returns.

    Oh, and take your loser friend ofy with you, numbnuts.

  28. I can’t recall right now, but 50/1802(1801) aren’t the only rationales for the executive practice of powers.

    Truth, the authority for the EXECUTION of a warrant isn’t clearly defined, it was ceded to the courts, however, the courts can’t always act in accordance with the lawas passed by the legislature.

    Our society, our government is circular, it is the responsibility of the representative legislature to define, for Executive, the executive powers they might practice, it is for the judicial to decide whether or not the Executive MIGHT have misinterpreted, and it is then for the legislature, with the recommendations, based on the judicials judgement of existing laws, and specific actions to define what it is the Legislative meant to begin with.

    In THIS case of the NSA? with the passage of the patriot act, the legislative was either complacent, participatory, or incompetant. I have seen only ONE depiction of complacent, rockefellor I think it was, said he is retarded. FINE! Rocky, you are retarded, you still had the authority to approach the FISA to request review.

    GOD!!! HOW many tangents did I hit, sorry for my random hits. Yet. . . all of them are valid.

  29. All you dudes who chose to read the IMMEDIATE legal arguments?

    Just ignore the retards who are so fucking stupid as to hate people who aren’t members of the WWP.

    Ignore “ohhhhhh. fuck you”

    he proves his point before he says a word. He has no point, he just hates people who take part in open discussion.

    So, “OH” fuck him.

  30. Also, this is a Blog, built for basic info, don’t go lawyer, no matter how well schooled you think you are. The best schooled lawyer finds an argument as soon as he finds a defendant, cuz that is what you guys do, you argue without end, for your own gratification. You think law is noble? yet how many of you think WAR is Barbarous? WAR is honest, debate over the position of a comma or pren is pathetic, and weak, at least people believe in a thing if they live, kill and die. FUCK lawyers.

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