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
(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.]