Cold Fury

Harshing your mellow since 9/01

Update on FISA Question

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…

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43 thoughts on “Update on FISA Question

  1. It’s interesting (and revealing) to note that apparently (need to qualify these things) the Clinton Administration agreed with your general reading of FISA and with this Bush policy.

    In a 2000 US district court decision (US vs Bin Laden)

    http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/binladen_12_19_00.pdf

    the Clinton Administration argued, inter alia, that for intelligence gathering purposes that the government may monitor communications of foreign agents without a search warrant.

    See in particular, Section II, entitled:

    “An Exception to the Warrant Requirement for Foreign Intelligence Searches”

    In this ruling cited above, we see the following important passage:

    “Circuit courts applying Keith [that’s the FISA law] 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 that target foreign powers or their agents.”

    One small piece of this but certainly something worth chewing on.

    SMG

  2. That’s a reasonable analysis, Al. Mark Levin also has some good analysis in several Corner posts.

    I’ve tried to argue the bigger picture with a minimum of ad hominems. When people see headlines that “Bush Spies on Americans!”, they might get the impression that he just pulled names out of the phone book. This simply isn’t the case.

    Those “Americans” were placing calls to alQaeda. Others had their phone numbers listed on a captured terrorist’s rolodex. Now maybe there’s an innocent explanation as to why your phone number is on there, but the government is entitled to it.

    It doesn’t help that the other side often argues in bad faith just to win the argument. If an attack is prevented, well, Bush went too far. If an attack is successful, clearly he didn’t go far enough. Whatever. The government is also somewhat handicapped, as it cannot answer every spurious charge without endangering lives.

    And what is the end-game? The defeat of terrorists? No. Democracy in the Mid-East? No; it is the Impeachment of George W. Bush, the chastening of the rogue state America…and the triumphant return to power of Democrats. That is the Vietnam model and they consider it their birthright.

    Not while there is breath in my body.

  3. You just nailed it, Noel. I’m not somebody who is all that comfortable with domestic surveillance, excessive government encroachment on individual rights, and such-like, but the sure knowledge that Democrats and the media are raising these issues not out of concern for our rights but merely as just another attempt in an ongoing smear campaign in pursuit of nothing more high-minded than regaining political power sickens me. By their apparent inability to be at all serious about national security and their knee-jerk, rabid BDS, they void any credibility they may ever have had with me; they need to wake the hell up and realize who the enemy really is here.

    But they won’t. They’d rather die in another 9/11 than ever admit their error, I guess, and they’re perfectly willing to put the rest of the country at risk of same — literally — to prove to the rest of us once and for all how awful Bush and the Repubs are. Fortunately, the rest of us have a hell of a lot more native good sense and reasoning ability than the elitists dare to think, which is why every last gambit they come up with ends up blowing up in their faces. It’s certainly no more than they deserve; truth to tell, it’s a hell of a lot less than they deserve. If the only consequence to them is that they keep looking foolish and losing elections, well, they’re getting off light, really.

  4. Isn’t it typical of a liberal weenie to ignore the principle of stare decisis as was decided under the CLINTON ADMINISTRATION for Pete’s sake!

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  7. Thanks, Mike. One thing, though; you mention “their error”. While they are “in” error, it is not “an” error, as in ‘mistake’. It is a well-coordinated attack on every aspect of our struggle with terrorists. For example, the Times released this in coordination with Democrats on the day of the Patriot Act vote.

    Believe it or not, I share your civil liberties concerns. I don’t want a government that can pull you over for speeding and then ask you why you didn’t return “Danny and the Dinosaur” to the library in 1963. But this is why we have a government, to do those things that we cannot do individually. We can figure out on our own how to get our own groceries, see a doctor, educate our children, even build a highway. But how do we fight a war individually? If a thing called the National Security Agency isn’t an agent for securing the nation, why even have one? If monitoring collect calls made to 1-800-OSAMA on the 12th of September, 2001 isn’t national security, what the hell is?

    Bush’s opponents have already convicted the man. They run around crying “Police State! Police State!”–you want to see police statism? Go look at what the Clintons did to their political opponents with the IRS and other agencies.

    I’m done. I’m mad. I’m not letting go of this bone. I question their patriotism. I question their motives. I question their @#$%& sanity. I’m not driving off the Brooklyn Bridge so Democrats can have power. My children are not going to have to choose between jumping a hundred stories or burning to death if I have anything to say about it. This is war. And it’s my war now.

  8. Sorry, Al, but your analysis, quite frankly, is still dishonest. The relevant clause is:

    “3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;”

    Note the words “openly acknowledged” and “directed and controlled.” Your very next sentence was: “Hezbollah is, of course, openly supported by Iran and Syria.”

    “Supported” is emphatically not “directed and controlled,” nor is there any evidence that Hezbollah is so directed and controlled. Were Hezbollah to become a part of the ruling power of an independent Palestinian state, you might be able to successfully argue this point. Until then, you cannot, which is why you had to resort to weasel words.

    The case for Al Qaeda is even weaker, since Al Qaeda is not, in any sense of the words, “openly acknowledged” to be “directed and controlled” by any foreign government, nor will you find any court or country who will support the notion that they are themselves a foreign “nation.” Again, you have to resort to weasel words to pretend that they are. Your insistence that they have pretensions of government or that they control and have sovereign authority over any substantial area is something that would be laughed out of court.

    Look, even the Bush administration isn’t trying to pretend that what they are doing is legal under FISA. Instead, they’re trying an end run around it. Please stop trying to engage in a tortured misreading of the law and focus on the legal issues that the Bush administration itself is trying to defend.

  9. Thanks for your candor Paul. And when the next attack does happen, and it is learned the guys who did it were calling out of the country but their international communications weren’t tapped, I’m sure you will be there demanding to know why it wasn’t done so.

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  11. Sorry, Paul, but it is YOU who are dishonest.

    You are using narrow legalities to conclude that because Al-Queda operatives are not technically an ‘a faction of a foreign nation’.

    Well, technically that’s true. Al-Queda is not a nation because they don’t have embassies, territory, or a seat in the U.N. But they are certainly a hostile foreign power, who are WAGING WAR… which is pretty much the exclusive province of a nation-state.

    Answer me these two questions:

    1. If Al-queda had openly declared that it was taking orders from a foreign nation, it would then meet the standard above in 1801(a)(2), right?

    2. Assumimg the answer above is yes, then explain to me why the above scenario is perfectly legal, but without such a declararion, it’s a horrible example of presidential misconduct? Use common sense, not narrow technicailites in your answer.

    Al-Queda is not, in a narrow legal sense. a nation, but bears enough similarities to one (for example the ability to wage war) to be treated like one. President Bush made a descision, which has not been challenged by the congress or the courts, that in this case Al-Queda would be treated like a enemy nation… and as such his actions are perfectly justified and legal.

  12. Those “Americans” were placing calls to alQaeda. Others had their phone numbers listed on a captured terrorist’s rolodex. Now maybe there’s an innocent explanation as to why your phone number is on there, but the government is entitled to it.

    So, um, if the Americans were placing calls to al-Qaeda, then why didn’t they get a FISA warrant?

    I’m still lost as to what THAT innocent explanation might be.

    Aren’t we fighting for the rule of law?

    Meanwhile:

    I’m done. I’m mad. I’m not letting go of this bone. I question their patriotism. I question their motives.

    You’re insane, then.

    You’ve put your hatred of liberals and anyone who would dare question your beloved leader over the principles that this country is supposed to stand for.

    You’re just so damn scared of OMG TEH TERRORISTS that you’ve decided the Constitution doesn’t matter.

    And you question MY patriotism for being concerned about this?

    While you insist that the Constitution is fit to be used to wipe shit off your ass and nothing more?

    You’re mad, and you can’t handle the cognitive distortion that the person you are counting on to “save you from terrorism” may very well be tearing down the principles of our Constitution.

  13. Al-Queda is not, in a narrow legal sense. a nation, but bears enough similarities to one (for example the ability to wage war) to be treated like one. President Bush made a descision, which has not been challenged by the congress or the courts, that in this case Al-Queda would be treated like a enemy nation… and as such his actions are perfectly justified and legal.

    That’s not Bush’s argument in this case; if it is, he should present to the courts.

    Until then, it’s perfectly valid to question why exactly the President can declare “al Qaeda” — which isn’t anywhere even nearly as organized as a country — as an enemy country.

    But, hey, if we’re going to play that game, though —

    Does this mean that foreign fighters from the country “al Qaeda” should be granted full Geneva Convention rights and treated as enemy soldiers?

    If that’s what you’re arguing, you do realize that you need to object to Guantanamo, which only exists because al Qaeda-affiliated (or -suspected) combatants aren’t Geneva-covered soldiers, right?

    If Bush were to make your argument, that al Qaeda counts as a country, he’d have to close down the gulag, ya know.

  14. Ryan Waxx wrote: “Sorry, Paul, but it is YOU who are dishonest.

    Sorry, Ryan, but I’m not, nor will you be able to show that I am.

    You are using narrow legalities to conclude that because Al-Queda operatives are not technically an ‘a faction of a foreign nation’.

    Um, Ryan, it’s not “narrow legalities;” it’s simply a statement of fact. Al Qaeda is not a sovereign nation, has never been a sovereign nation, and no amount of pretense or tortured use of language will ever let you claim otherwise. The language of this statute is surprisingly clear and unambiguous. If such language is too limiting, the Bush administration could always have lobbied to change the statute, either directly or indirectly (e.g., through the Patriot Act).

    Well, technically that’s true.

    Since that was precisely my point, I’m at a loss to understand why you can claim that I’m being “dishonest.”

    Al-Queda is not a nation because they don’t have embassies, territory, or a seat in the U.N.

    Or a government or citizens or … well, any other attribute of a nation. It’s a loose confederation of terrorist organizations. To claim that it could in any way be called a nation is simply false.

    But they are certainly a hostile foreign power,

    And you are now doing the same thing that Al did — using weasel words. Define “foreign power,” please, and show that the definition you are using is equivalent to the definition of a “foreign nation.” And then show that Al Qaeda meets either definition.

    who are WAGING WAR… which is pretty much the exclusive province of a nation-state.

    No. They are simply carrying out terrorist attacks, which is not, and has never been, the exclusive province of a foreign nation. Look, I can “declare war” on any damn thing I want. That does not make me, or my organization, a nation. It simply means that I’m deluded.

    Answer me these two questions:

    1. If Al-queda had openly declared that it was taking orders from a foreign nation, it would then meet the standard above in 1801(a)(2), right?

    Not necessarily. There is still the matter of the foreign nation itself to be taken into consideration. Osama bin Laden could appear on videotape tomorrow and claim that he was taking orders from George W. Bush and that Al Qaeda was under the direct control of the U.S. Government. Would that settle the matter for you? Would you truly believe that it then met the standard? Or would you conclude that bin Laden was either delusional or playing silly games?

    2. Assumimg the answer above is yes, then explain to me why the above scenario is perfectly legal, but without such a declararion, it’s a horrible example of presidential misconduct? Use common sense, not narrow technicailites in your answer.

    See above. I’m not using “narrow technicalities,” Ryan. I’m using common sense and ordinary definitions of words that the writers of that statute clearly intended. If that statute is out-of-date, then let’s modify it. But let’s not pretend it says something it clearly does not.

    Al-Queda is not, in a narrow legal sense. a nation,

    Al Qaeda is not, in any sense of that word, a nation. It bears no resemblance to any dictionary definition, common-sense definition, or legal definition of that word.

    but bears enough similarities to one (for example the ability to wage war) to be treated like one.

    No. See above.

    President Bush made a descision, which has not been challenged by the congress or the courts, that in this case Al-Queda would be treated like a enemy nation… and as such his actions are perfectly justified and legal.

    Except that the Bush administration has made no such declaration, nor is it likely to, since it quite clearly would not be taken seriously. From what I’ve seen, the Bush administration isn’t even pretending that what they are doing is legal under FISA. They are simply trying an end run around FISA, claiming that the U.S. Constitution and the Congressional resolution of September 14, 2001 give Bush the authority to ignore FISA.

  15. More dishonesty.

    You do not engage the 2 questions at all, you just come up with hypothetical situations in which the questions themselves could be attacked. That’s not called an ‘answer’ in any language.

    OBVIOUSLY, the questions assumed that the Al-Queda statement be truthful, partly truthful, or at least believable.

    Perhaps I need to submit a 15-page lawyerly document covering every possible non-substantive objection to the questions, in order to get an honest answer.

  16. Are you asleep or just drunk? The whole POINT of not putting the change on the front page of the Times was to not tip off the people being tapped.

    Come to think about it, maybe you have a point… no body watches C-Span, so that might be an excellent place to hide national secrets.

    ———————–

    I find it revealing that for your arguemtns not to fall apart, you have make to the statement that Al-Queda is not at war with the United States. Why don’t you sit for a moment, and think about what you just said.

    Only a moron (or someone in deep denial) could make such a statement. It’s certainly news to Al-Queda, it’s certainly news to the President, it’s even news to the Congress that gave the president war-making powers against the author of the 9/11 attacks. Now who do suppose that was?

    And I’d like to see you make that statement anywhere near someone who lost a relative in 9/11.

    ————————

    Really.

    Nope. No pretending there.

    Tell me, do you have a rolling chair so your growing nose doesn’t get in the way when you write?

  17. From what I’ve seen, the Bush administration isn’t even pretending that what they are doing is legal under FISA.

    Really…

    The official said that, since October 2001, the program has been renewed more than three dozen times. Each time, the White House counsel and the attorney general certified the lawfulness of the program, the official said. Bush then signed the authorizations.

    Nope. No pretending there.

    Tell me, do you have a rolling chair so your growing nose doesn’t get in the way when you write?

  18. Ryan Waxx wrote: “More dishonesty.

    You keep using that word. I don’t think you understand the meaning of it.

    You do not engage the 2 questions at all,

    I do, actually. The fact that you don’t like my answers is not my problem. The answer to the first question was no, which is pretty much what my answer was. The answer to the second question is quite clear, too: the law is what it is. If you don’t like the law, change it; don’t pretend that you can simply wish it out of existence by pointing out that there are potential holes in it.

    In any case, the questions themselves were rather pointless since a) al Qaeda has done no such thing and is highly unlikely to do any such thing, b) no foreign nation would claim or even admit that it is, in fact, directing and controlling al Qaeda, and c) the Bush administration has claimed no such exception to FISA. You are proposing a hypothetical that has no relationship to reality and no bearing on this discussion.

    you just come up with hypothetical situations in which the questions themselves could be attacked. That’s not called an ‘answer’ in any language.

    The fact that you don’t like my answers is not my problem. And since your questions were, in fact, “hypothetical situations,” and damn near impossible ones at that, I’m afraid that your objections to my answers strike me as hypocritical.

    OBVIOUSLY, the questions assumed that the Al-Queda statement be truthful, partly truthful, or at least believable.

    Well, there’s your problem. Your questions suppose a scenario that is simply not believable.

    Perhaps I need to submit a 15-page lawyerly document covering every possible non-substantive objection to the questions, in order to get an honest answer.

    You have my honest answer, Ryan. Deal with it.

  19. I had written: “From what I’ve seen, the Bush administration isn’t even pretending that what they are doing is legal under FISA.

    Ryan Waxx replied: “Really…

    Yes, Ryan, really.

    Nope. No pretending there.

    Sigh… Ryan, if you haven’t even done the basic homework on this, why should I engage you in a discussion? The Bush administration has not claimed that what they are doing is allowed by FISA, just as I said. They are claiming instead that the president’s authority under the U.S. Constitution and under the September 14, 2001 Congressional resolution trumps FISA. That’s why Al’s original post and this entire thread is rather puzzling. It raises issues that the Bush administration has already conceded are moot.

    Tell me, do you have a rolling chair so your growing nose doesn’t get in the way when you write?

    Ryan, I was quite careful in what I wrote and that statement was entirely accurate. I stand by everything I’ve written on this thread and elsewhere. That you are incapable of comprehending my points and understanding the issues involved is your problem, not mine.

  20. Insane? Of course I’m insane. Bonkers. Stark raving mad. In fact, I’m so mentally ill, I was hoping you could prevail upon your pal John Edwards to heal me. He can make the lame walk, you know. When he’s not channeling babies, that is. You know, like Hillary channels Eleanor Roosevelt. And Bill remembers things that never happened. And can turn the tears on and off like a sociopath. And Al Gore, who features over 100 digital channels of personality–just in time for Christmas!

    I’ve also learned some other exciting things about myself today; in addition to being quite mad, it seems I’m also a Stalinist, a douchebag, a traitor, a lackey–and I’ve got my head up my ass! I had no idea I could even do that! I am a little offended, though; no one has yet called me a ‘tool of the Jewwwwwws!’. C’mon, people; where’s the love?

    And since you (scatologically) mentioned the Constitution, show me the part where unaccoutable lifetime bureaucrats get to run their own foreign policy and conduct black-ops and coup attempts against the administration that the People duly elected. And show me the part where they can alert our enemies to our most closely-held secrets on the front page of the Times.

    And all this because I think Saddam Hussein, not George Bush, is the war criminal. I think Hussein, not Bush is “All About the Oil!”. I think bin Laden, not Bush, is a murdering fundamentalist zealot bent on world domination. And I think George Bush, not the terrorists, should be given the benefit of the doubt.

    But, hey; I’m just crazy that way.

  21. Noel wrote: “Insane? Of course I’m insane.

    LOL… Noel, if there was any doubt about that, your last post removed it. It was funny, though, so not a complete waste of space.

  22. Does this mean that foreign fighters from the country “al Qaeda” should be granted full Geneva Convention rights and treated as enemy soldiers?

    No. I suggest you try reading the Geneva convention.

    In any case, the questions themselves were rather pointless since a) al Qaeda has done no such thing and is highly unlikely to do any such thing, b) no foreign nation would claim or even admit that it is, in fact, directing and controlling al Qaeda, and c) the Bush administration has claimed no such exception to FISA. You are proposing a hypothetical that has no relationship to reality and no bearing on this discussion.

    response to a) and b): Irrevelant. When deciding the legality or constitutionality of something, judges use hypothetical situations all the time.

    response to c): You weren’t there when the Atty’ general certified the legality, so all you have is your PROJECTION of what the legal defense is

    And the ‘point’, although I suspect it won’t get through the fingers stuffed in your ears, was that you cannot draw a meaningful distinction between a saboteur from Germany and one from Al-Queda that explains why spying on one is fine, but the other is criminal.

    And it looks like I’m right. In all these indignant resposes… you still haven’t even made the attempt.

  23. “The Court(United States District Court, S.D. New York) is also persuaded that al
    Qaeda was properly considered a foreign power. In reaching this conclusion, the Court relies on the
    definitions of “foreign power” and “agent of a foreign power” which were incorporated by Congress into FISA. See 50 U.S.C. ‘ 1801(a)-(b).”

    Care to cite any caselaw in which Al-Queda has been declared NOT a foreign power? Thought not.

    Check and mate. But thanks for playing.

  24. Ryan Waxx wrote: “response to a) and b): Irrevelant. When deciding the legality or constitutionality of something, judges use hypothetical situations all the time.

    Yup, and they use hypothetical situations that actually have some relationship to the real world and some relevance to the issue under discussion. Neither of these applies to your hypotheticals. What you appear to be claiming is that the law has a loophole or is flawed. Even if I am prepared to grant that point, all that merits is a big “So?” I’d love to see you go to court on that one: “Gee, your honor, the law was flawed, so I didn’t think I had to obey it!”

    The law is quite clear and remarkably unambiguous, Ryan. That you think there is a loophole in the law does not invalidate the law nor excuse the Bush administration from being required to follow it, which is why the Bush administration itself is not focusing on FISA, but rather on the other two arguments I noted above.

    response to c): You weren’t there when the Atty’ general certified the legality, so all you have is your PROJECTION of what the legal defense is

    Sigh… You really haven’t done your homework, have you? The Bush administration has been quite clear on this. They’ve publicly announced their legal reasoning, although they’ve been quite vague as to precisely how the September 14, 2001 resolution actually applies. I suggest you go digging a bit before you make an even bigger fool of yourself.

    And the ‘point’, although I suspect it won’t get through the fingers stuffed in your ears, was that you cannot draw a meaningful distinction between a saboteur from Germany and one from Al-Queda that explains why spying on one is fine, but the other is criminal.

    I know precisely what your point is, Ryan; it doesn’t exactly take a rocket scientist or even any legal background. As I noted above, your point was dumb, so I didn’t bother to pursue it or take it seriously. Your hypotheticals say precisely nothing about the legality, or the lack thereof, of the Bush administration’s actions.

    In any case, your point isn’t even valid from a substantive point, since you are forgetting why that law was written, who it was aimed at, and what its purpose was.

    And it looks like I’m right. In all these indignant resposes… you still haven’t even made the attempt.

    Considering your unwillingness to actually look at the facts in this case, preferring instead to focus on irrelevancies and rather idiotic hypotheticals, I would say that the failure is wholly on your side.

  25. Check and mate. But thanks for playing

    ROFL… Is that really the best you can do? Do you know anything about the history of that case? Poor guy….

  26. Before you make even more of a fool of yourself, here’s a hint: read my last post… you know, the one where a real live judge, not your fantasy football lineup, certifies that Al-Queda is a foreign power as specifically regards FISA.

  27. Ah; the love. Glad you enjoyed that, Paul.

    Say, gang, since we’re looking at statutes, here’s a fun one:

    Title 18, Pt. 1, Ch. 37, #793:

    (d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it…Shall be fined under this title or imprisoned not more than ten years, or both.

    Hello, Pinch.

  28. ROFL… Is that really the best you can do?

    It’s more caselaw than you’ve cited, unless the substance of your argument is written in invisible ink.

    I’m still waiting for you to site caselaw in which a court, any court, hell even a kangroo court says that Al-Queda is *NOT* a foreign power as regards 50 U.S.C. ’ 1801(a)-(b)

    Funny how you’ve gone all content-free on us all of a sudden…

  29. Al,
    I’m sorry, but it appears that you were dishonest. Here’s what you said:

    First, you quoted:
    “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 . . .”

    Then you said:
    “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.”

    Why would you end what you quoted with “as defined in section 1801…”, when it actually says “1801 (a) (1), (2), and (3)”? It specifically does not mention (4), yet you go on to imply that it does: “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. ”

    I’m not unsympathetic to the administration’s aggressiveness in this regard, but what you did is flat out dishonest.

  30. “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.”

    Ryan’s comment, that a real live judge is who certifies whether a group is a foreign power is relevant.

    The exact nature of the person monitored, the group they are working for, where the group is located, the group’s relation to state sponsors of terror, how the Administration characterizes the group, are relevant factual questions that I don’t have the answers to based on the factual assertion “US Spies on Americans!”

    Based on a couple hours research (and please, call me ignorant of this area of the law, but not dishonest; that caveat about the particular circumstances being relevant is in there for a reason), it still seems to me that the Administration’s position is not that weak. The FISA Court didn’t object to their position, and Congressional leaders didn’t seem to think there was a problem either based on briefings that occurred nearly once monthly; at least not until the NY Times gave them a good brickbat to hurl.

    Now, I’ll do what many of the people who label me dishonest are, and what I apparently should have done at the outset, and I’ll draw conclusions about the the Administration’s actions based on facts may or may not exist. It’s a rather silly way to premise a real world debate, as Mark Levin notes in the corner.

    I’ll assume that Al Qaida operates completely apart from any open sponsorship of any national government, or any faction of any nation, and that they are lone wolves among terrorist organizations. In that case, section 4 and only section 4 is applicable. I guess you have me and the Administration on that one. Let the impeachment trial begin…

    Now, I’ll assume that the Al Qaida cells and operators under monitoring are part of the rump Afghan government, the people who have claimed sovereignty and who are exercising their ability to exclude the Pakistani government from parts of Pakistan; who claim under their warlords’ control areas of Afghanistan; who claimed to establish a ruling Al Qaida government in Iraq, and put it into effect in places like Fallujah. Some of those portions also receive financing and arguably some supervision from the Saudi royal family, shelter from Iran, and other governmental bodies in the region. Those individuals would fit concurrently under categories 3 and 4 – as both terrorist and entities acting at the direction of national factions.

    Now, I’ll look at Hezbollah, which operates openly in Syria, receives Syrian government backing, and given the nature of the Syrian government police state, cannot operate with anything other than a substantial degree of direction from the Syrian government. Hezbollah has long been described as a state sponsored terrorism group, bringing it clearly within the ambit warrantless monitoring exceptions.

    See? All you need to do is to assume a lot of facts not provided by the articles, and also presume that a terrorist can’t be both a terrorist and state sponsored at the same time. To make this statement, all it requires is a belief that AQ is homogenous in its status as a unitary and completely stateless entity (and oh by the way other terrorist groups maybe monitored under this section are also stateless).

    More research, done subsequently for the people who are big believers in legislative intent. Senator Kyl’s comments on the FISA amendments included in PATRIOT Act indicate subsection 4 was created specifically to deal with “lone wolf” and completely stateless terrorist groups not covered under FISA. Many terrorist groups in the past were unambiguously state sponsored – Hezbollah by Iran and Syria; the RAF by East Germany, and so forth. That’s why the State Department publishes an annual list of state sponsors of terrorism – the people who fund terror have some controlling stake in it. Kyl seems to indicate that state sponsored terrorism, at the direction of state intel services (e.g. Iranian intelligence’ sponsorship of Hezbollah, or Syria’s use of Hezbollah to perform wet jobs in Lebanon) bring it within the ambit of purely and obviously state sponsored terrorism. Al Qaida’s relation to the states sponsoring it is murky because it is more of a distributed network with local chapters, with common goals but a cellular structure that doesn’t appear to be under central command in the same fashion as groups like Hezbollah, which actually appear to have executive officers. However, to the extent that the Al Qaida top tier of leaders are claimants to sovereignty in Afghanistan and Pakistan; insofar as they are funded and directed by Saudi princes, they fit concurrently in at least a couple categories under subsections (a)2-4. This is the weakness I referred to; it requires the Administration to come up with facts supporting that proposition.

    There, now that factual discussion was a bit of a fool’s errand. We don’t know anything more about whether or not the Administration screwed up. The facts relating to the persons monitored are not available to us. We can sit here and praise or damn the Administration for what they did, but drawing a final conclusion before the facts of who was monitored, what the nature of their group was, is a fool’s errand, and hard to do based on breathless headlines.

    I will repeat my initial assertion:

    “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.”

    Right now, I’d be willing to bet dollars to donuts that the FISA court finds the Middle Eastern and South Asians portions of Al Qaida a foreign power subject to warrantless monitoring, based on their claims of sovereignty and the support they have received from national governments – rump Afghanistan Al Qaida having been openly government supported from the inception of the Taliban and thus clearly fitting within the warrantless exception.

  31. I wouldn’t take you up on that bet, Al, as it appears to be a reasonable interpretation of the statute, and in an open question of where the benefit of the doubt is going to fall, it is my opinion that any US court would go far a broader interpretation of a foreign terrorist group and state sponsorship than a narrower interpretation, especially in light of how narrowly drafted the statute already is.

    And regardin impeachment? That would be highly unlikely even in a Democrat controlled Congress, as President Bush made a reasonable interpretation of what a groups were covered under the statute and does not appear to have used the statute beyond its intended, indeed contemplated use. And if the statute cannot be used against al Quaeda, then it needs to be amended quickly, by special session even. Now is not the time to act with tender solicitation towards foreign actors and groups who wish to do this nation harm.

    N.B. – that’s foreign. Domestic groups such as ALF, ELF, etc. are another thing altogether.

  32. I have to say one thing about this whole thread! It is at least civilized, no flame warriors…….highly unusual for an internet thread this polarized in it’s positions between the participants. Says a lot about “Cold Fury” readership and authorship as well, …….to the credit of same!::GRIN::

  33. The lefties can’t help but lie about this. Remember: they’re the ones who supported Saddam. If Saddam were getting wire taps without court orders — and believe me, he did that and much worse — they wouldn’t be complaining about it. This is all about how much the loony left hates George W Bush. That’s all there is to it.

    This is simply not a big story. Who cares if they are listening to our phone conversations? I have nothing to hide. All they would learn from my conversations is that I love America and I hate terrorists. I’d be happy for them to hear that, though they may already know, based on my voting record.

    This is not a a big story. Period.

    The real story here is why the NYT isn’t being prosecuted under the Official Secrets Act.

  34. By the way the president’s speech sort of reminded me of Col. Jessup’s, except I think the president did act legally (from what I know of the facts as of now).

    Nice to see him spooked up with zip and vinegar. He’s been far too polite recently.

    Dexter, 18 USC 798 could be used, and I think it should. Make that point one more time – just because you work for the Times you are not above the law.

  35. Unless I missed the discussion someplace, why does not the clause 1802(a)(1)(B) end the whole discussion?

    “(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and ”

    This clause is ANDED with the the (a)(1)(A) cluase being claimed as allowing such.

    Wasn’t the fact that US citizens involved the whole point?

  36. Sorry, I have no patience for these pre-9/11 Americans. Glenn echoes Jamie Gorelick, who said when instituting the Clinton administration’s absurb wall that separated criminal & counterterror investigations (a wall erected after the first WTC attack, which was intended to bring down the buildings & kill tens of thousands) that the most important thing was avoiding the appearance of impropriety. More impt than saving lives, as the wall forced agents tracking the 9/11 hijackers to back off when the focus changed from criminal to counterterror. So, 3000 Americans dead, but hey, at least there was no impropriety!

    Does Glenn know how many lives have been saved by the monitoring?

  37. No, Dave, the point was “substantial likliehood”. I think that would go to intent, and if there was no intent to monitor a US person, then the law wasn’t violated.

    What if a US person injects himself into the conversation unexpectedly between the foreign person and the foreign power outside the country? That doesn’t seem to be spelled out here, but I doubt it would mean that the intelligence couldn’t be used against the foreign person and whomever they were calling foreignly. I would myself (IANAS) think that would then be the probable cause used to open up an investigation – a seperate one – against the US person who so unwisely injected himself into the matter.

    Again, that is just my opinion.

  38. Mikey, I agree with your understanding of statute. If the NSA is monitoring AQ under FISA (which would be legal w/o warrent), and just happens to pick up your call to your bookie by mistake, that’s just tough luck. And if they pick up your request to join them for summer camp, I seriously hope they pay you a visit. If they want to continue monitoring you though, I believe they would need a warrent.

    The operations though (AFAIK) refer to explicit targeting Americans making overseas communications. It was not about targetting foriegn powers and getting occasional messages from the “US persons”.

    Of course, details are always sketchy.

  39. No, I don’t think we’re that far off.

    Dave, coming from the NYT, I expect the details to be for a legal operation that occaisionally picked up US persons, and that the proper steps were then used to go after the US persons; OR they continued with their foreign person to foreign power listening, and just let the US person continue to walk in and out of the conversations; OR they originally thought the person tapped was a foreign person and later it was found out he was a US person.

    In any of those cases I do not see an illegality as neither were targeted at the US person, he merely thrust himself into the loop (first two); and in the third there was no intent to target a US person, a mistake occured (which happens a lot in guesswork).

    Continually targeting after learning of the mistake and that the targeted individual was a US person OR deliberately targeting a US person under this Act (as opposed to any others – again this is the NYT and I do not expect them to report the sources correctly, or even know if the sources had the right info or deliberately lied to the reporters) would be problematic and you would have an illegality occuring. Again, what would be done is anyone’s guess, but mine is that impeachment would be out. It does not appear that this was used for personal or political gain but for national security. In my opinion it would be darn near impossible to impeach a president for stepping over the line when it came to legitimate national security concerns – that would be forgivable, where personal or political gain would not be. Again, the fact that the NYT sat on this for a year argues against much illegality going on.

  40. I can’t be bothered to read the above comments about the “loony left” and so on. This goes straight to Al: how can you attack someone for attacking you by “using a very literal reading of the statute”?

    I mean, how the hell else is law supposed to be read? Face it, dude, you got fisked. Gonzales as much as admitted that the President knew he had no legal legs to stand on when they deliberately chose not to go to Congress becuase they didn’t think Congress would authorize this.

    But meanwhile, all this bitchery about the law aside, the bigger point is this: this administration could have, very easily, gotten the permission to do all of this stuff from the judicial branch. They could’ve gotten their warrants; they could’ve conducted their mission; if FISA was imperfect for a post 9/11 world, they could’ve gotten it amended. There is nothing that they did in this case that couldn’t have been done legally, without having to resort to the kind of hairsplittery you’re advocating (“see, if we assume that Al Qaeda is really the SAME as a foreign nation state, then FISA CLEARLY allows the president to …”).

    All they had to do was ask. But they couldn’t f***ing be bothered. They have a larger, clearly articulated agenda of drawing power into the executive branch, and freeing themselves from congressional and judicial oversight, and it’s disgusting.

    And it’s true: people DO hate George Bush. They hate him with a boiling, overwhelming passion that grows every day. But there’s a reason: every day he demonstrates a fundamental disrespect for the American system of checks and balances.

  41. PS I really dig the statement from the loony-left hater above: “Who cares if they are listening to our phone conversations? I have nothing to hide.”

    Dude, don’t you care about FREEDOM?Don’t you understand what makes America DIFFERENT? And BETTER? Oh my god, I can’t believe it. What makes America different and better is that we make sure the government stays the hell out of our business, period. “I have nothing to hide,” says he. You’re certainly not hiding the fact that you’re completely ignorant of the fundamental purpose of restraining government power.

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