I wanted to give you an update on the FISA question that we were discussing here.
Glenn Greenwald called my discussion of the law “staggeringly dishonest.”
I was really bummed because at first I thought he wrote “staggering genius.” Anyhow, I think he misquoted me a bit, but he did call me out for not applying the full self-critique to my initial analysis. Hey, what can I say. It wasn’t my goal to give y’all a law review article, it was to explain how the Bush Administration could reasonably get to the position it holds on monitoring terrorist agents here in the U.S. Much to his credit, Glenn goes to the statutory ambiguity that I mentioned in the first post. I don’t think it adds a lot to the debate because it doesn’t seem to move the needle very far in either direction, but since Glenn raised it, I’ll air my thoughts.
In brief, the warrantless monitoring exception applies to domestic agents of foreign powers that are tied to national governments, to factions of nations, or to entities openly controlled by foreign governments, per 50 USC 1801(a). The warrantless monitoring exception does not per se apply to operatives of foreign terrorist groups. But what if a terrorist operative is working for a foreign group that is either a state sponsored terrorist group, or a group with pretensions to ruling a nation, or a factional part of a nation?
This is relevant because subsections a(1-3) clearly permit warrantless monitoring of the agents of foreign powers, where those powers are foreign governments, factions of foreign nations, or claimants to foreign government power. Subsection 4, which defines terrorist operatives, is not within exceptions to the warrant requirement – except perhaps under some “exceptional exceptions” relating to emergency authorities, grave harm to persons, etc.
Glenn attacks pretty strenuously using a very literal reading of the statute. His argument is that if somebody is working for a terrorist group, then they fall under subsection 4, and that’s final, they cannot be monitored without a warrant.
I disagree, and believe a pretty fair case can be made that a Hezbollah operative or AQ operative has state sponsorship ties.
Sub sec. 1801(a) defines groups subject to warrantless monitoring to include:
(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;
Hezbollah is, of course, openly supported by Iran and Syria. There is no question that there is a state sponsorship locus, which would bring them within 1801 subsection a(3), providing subsections 3 and 4 are not mutually exclusive. Likewise, Al Qaida has made claims to be the sovereign government of various nations or regions. They do control substantial land in various areas of Afghanistan and Pakistan, and they have certainly laid claim to places like Fallujah, where they established provisional AQ governments, for brief periods of time. One can make a decent case that AQ and AQ remnants are part of a foreign national or factional power, thus fitting within subsection a(2), one of the warrantless monitoring exceptions. It’s possible that a court has defined these terms to preclude such an interpretation but I didn’t find anything to that effect in my admittedly brief research.
Assuming it is an open question, whether or not a group, or part of a group fits into this category should basically be a question of fact. This presumption – that the exact nature of the group and operatives being monitored is relevent – is why I stated expressly in the initial post that “the warrantless monitoring authority is tied to particular circumstances. . . so it’s worth knowing more about the details if you wish to comment intelligibly on the issue.”
In other words I contemplated that the facts of particular situations might move people into or out of these classifications. I didn’t get into it because I believe it’s a question of facts, and without knowing more, I don’t think it’s possible to draw a well-founded conclusion. My argument was intended instead to focus on the purely legal question, whether the Bush Administration was reasonably interpreting the law. I thought, and still do think, that if their logic parallels mine that they have decent legal foundation, though it isn’t a watertight position. It doesn’t hold any water at all, in fact, if the group is stateless and without state sponsorship and support. Thankfully for the Bush Administration, there are thousands of Saudi princes, technically part of the Saudi government, and a non-trivial number of them have strenuously and openly supported our AQ buddies. This must certainly strengthen the argument that AQ has either state support, or support of a faction of a state.
Well, I’m out for the afternoon – gotta go watch some football.
I want to thank everybody who has made substantive comments on this issue so far – I don’t mind missing a few minutes out of my Sunday afternoon to revisit the law and think about this a little. It’s an important question and now that I know what the statute probably allows the government to get away with, I want to think about whether I think FISA is moving into dangerous territory. I think it is, and partly because of ambiguities like the one we’re discussing here, and the pretty wide open definition of what constitutes a terrorist. And Joe, thanks for springing to the defense of my honor. If you were a man, I’d kiss you.
Also, finally, for regular readers, if you see Glenn Greenwald in the comments section please show appropriate courtesy in spite of his initial name calling. He makes a decent point with some over the top language, as yours truly sometimes does…