FISA allows warrantless taps

[Mickey]

Here is the text of the FISA section which allows warrantless taps, ie, tapping without a court order. The President and his defenders keep saying that they need to bypass FISA to listen in on terrorists. I agree, we should be listening to the types of calls the President refers to, ie, people talking to AQ in an overseas call. However, FISA allows us to do just that, legally. Thus, the President's claim that he had to do this makes no sense. We can legally tap the crap out of people without a warrant under FISA so why bypass that law?

 

As you can see below, as long as the AG certifies that, basically, it is necessary to do so, we can tap a bad guy without a warrant for a whole year on his say so. All he has to do is certify it to the FISA court. The only potential snag is that he has to certify that there is "no substantial likelihood" that the converstion involves a "US person". However, the law defines "Agents of foreign powers" and "US persons". A person can be both, a US citizen and therefore a "US person" who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power". Such a person, being a foreign agent, loses all the protections of the slightly higher standards needed for tapping a US person.

 

The end result is that the people the Predsident keeps talking about, Americans talking to AQ, can be tapped without a warrant at the discretion of the AG and it is all legal under FISA. Yet, even this wide open, tap anyone you want, provision was too cumbersome? I just don't get it. Why wasn't this enough? If it wasn't, fine, just tell me why.

 

 

 

§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

 

(a)

 

(1) Notwithstanding any other law, 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 (a)(1), (2), or (3) of this title; or

 

(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;

 

(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

 

© the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

 

(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.

 

(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—

 

(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or

 

(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

 

(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—

 

(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and

 

(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.

The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

 

(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

[bobblehead]

I just don't get it.  Why wasn't this enough?  If it wasn't, fine, just tell me why. 

592068[/snapback]

 

Because this is all about hating liberals, silly.

[Mickey]

Because this is all about hating liberals, silly.

592119[/snapback]

Seriously, there has to be a reason or they would have done it all under FISA giving them all the butt coverage they would need no matter what leaked out.

What was gained by proceeding outside the broad, broad vistas of FISA?

[bobblehead]

Seriously, there has to be a reason or they would have done it all under FISA giving them all the butt coverage they would need no matter what leaked out.

What was gained by proceeding outside the broad, broad vistas of FISA?

592135[/snapback]

 

 

Elimination of the act altogether?

[Mickey]

Elimination of the act altogether?

592141[/snapback]

That doesn't really answer the question. Of course ignoring the law renders it useless but that just moves the same question down the road a bit. If the law lets them do what they want, why go around it? Why engineer its demise?

 

 

Even if that was their goal, and I doubt it was, then that is the arguement that they should make rather than telling us it was necessary inorder to tap terrorists. It wasn't. If their goal is to make the law irrelevant by simply ignoring it and hope that neither the Congress nor the SCOTUS have the balls to take them down for it, fine, that is a battle they will ultimately lose.

[bobblehead]

If their goal is to make the law irrelevant by simply ignoring it and hope that neither the Congress nor the SCOTUS have the balls to take them down for it, fine, that is a battle they will ultimately lose.

592149[/snapback]

 

This may not answer your question either, but could it be something as simple as the perception of power?

[Crap Throwing Monkey]

If their goal is to make the law irrelevant by simply ignoring it and hope that neither the Congress nor the SCOTUS have the balls to take them down for it, fine, that is a battle they will ultimately lose.

592149[/snapback]

 

Why? No one else has.

 

I'd explain the 'why' of it again...but I'm a little busy right now. See the end of my FFS post from late yesterday afternoon in re. questions of perspective.

[30dive]

Why?  No one else has.

592205[/snapback]

 

But, but I thought this administration was going to clean up Washington?

 

What bothers me with this whole damn thing is if it can be done legally, why do it illegally?

 

I really don't have a single problem with what this administration has done (the action). However as a procedure, I just do not see why they could not follow the law? The system is set up with check and balances, to protect all americans, and when a person or persons ignore, disregard that system they have commited a crime. Now if the administration wants to plead "guilty with explanation", I did that at traffic court once, it should, but the law has been broken even with a good explanation, so said the judge to me.

[Mickey]

Why?  No one else has.

 

I'd explain the 'why' of it again...but I'm a little busy right now.  See the end of my FFS post from late yesterday afternoon in re. questions of perspective.

592205[/snapback]

I didn't realize you had responded yet in that thread. I just now had the time to read it and I agree in general that this issue is not so easily divided between criminal and security in reality the way they try to divide it up in the law. The distinction is a neat and clean one on paper but not in the real world.

 

I don't see how that issue, accurate description of a systemic problem though it may be, explains why the provision I pointed out was not good enough or, maybe more accurately, why it is that I don't understand the need for them to have proceeded outside of FISA.

[Mickey]

But, but I thought this administration was going to clean up Washington? 

 

What bothers me with this whole damn thing is if it can be done legally, why do it illegally?

 

I really don't have a single problem with what this administration has done (the action). However as a procedure, I just do not see why they could not follow the law? The system is set up with check and balances, to protect all americans, and when a person or persons ignore, disregard that system they have commited a crime.  Now if the administration wants to plead "guilty with explanation", I did that at traffic court once, it should, but the law has been broken even with a good explanation, so said the judge to me.

592223[/snapback]

I keep resisting the urge to take the speculative leap that the reason they didn't do it according to FISA is that Alberto took a look at some of the targets and refused to sign his name, to certify, the tap as involving a bad guy. Under the FISA statutory scheme, the AG basically puts his butt on the line by giving his word that it was needed and involved a bad guy which means he is the guy in trouble if there are abuses. Hopefully, that is the check, the balance that keeps things from getting out of hand. If the AG started balking on some of these, that would explain the need to move outside of FISA. Like I said, its just speculation which is going to run around quite a bit in the absence of a credible alternative explanation.

[Crap Throwing Monkey]

But, but I thought this administration was going to clean up Washington? 

 

And I've got a bridge in Brooklyn for sale. The inertia inherent in the way the system runs will overpower any 4- or 8-year attempt to clean it up...even if anyone ever sincerely tries, which they won't, I'm convinced in part because the system's designed to select for people who will propagate the system itself.

 

What bothers me with this whole damn thing is if it can be done legally, why do it illegally?

 

Because the real question here isn't legal vs. illegal. The real question here is criminal justice vs. military action. If you treat terrorism as a criminal matter, warrants are absolutely needed. If you postulate that combatting terrorism is a military exercise (as the current administration does)...not only is there no requirement for warrants, there's not even a legal basis for issuing them, since posse comitatus prohibits the use of the military in domestic law enforcement. Theoretically, domestic surveillance for military purposes is allowed sans warrant, as far as I know...but such information is typically not used in criminal cases (that issue actually came up in the DC sniper case, where DoD flatly refused to provide overhead imagery to the police to aid with the case, on the grounds they couldn't legally get involved.)

 

But to complicate that further...now we have a set of laws in place - the PATRIOT Act - that is supposed to, among other things, facilitate information sharing among agencies. That will very likely lead to situations where some group or other in DoD gathers domestic information without a warrant - which, again, as far as I know, is not illegal if not used by the DoD in a domestic operation - but is required by law to share it with law enforcement, even though law enforcement's use of it would be illegal as due process was violated...which basically means they get to pick and choose which set of laws they want to break, the PATRIOT Act and related or the Fourth Amendment and related. There is a very basic and very serious disconnect between the various sets of laws governing this situation that hasn't yet been publicly discussed...largely because everyone's focused on the "Illegal wiretaps! Bush bad!" story - or the "Detainees in Gitmo are held illegally!" story - to consider the very difficult abstract issues that are ultimately the root cause of the whole thing.

[Crap Throwing Monkey]

I didn't realize you had responded yet in that thread.  I just now had the time to read it and I agree in general that this issue is not so easily divided between criminal and security in reality the way they try to divide it up in the law.  The distinction is a neat and clean one on paper but not in the real world.

 

I don't see how that issue, accurate description of a systemic problem though it may be, explains why the provision I pointed out was not good enough or, maybe more accurately, why it is that I don't understand the need for them to have proceeded outside of FISA.

592268[/snapback]

 

It's not that they don't need to. It's that, as I just stated (and which you haven't had a chance to read yet, I know), if you postulate combatting terrorism as a military activity, warrants don't even apply. And the Bush administration most certainly looks at terrorism as a military issue first and criminal issue second...and since you can't get a warrant anyway for domestic use of military assets, why the hell would you even try...? I don't agree with it (I've stated for a very long time my belief that the border between military and criminal treatment of terrorism should be the US border...which in this case would mean that the NSA taps, physically being within the borders, should require a warrant) but I can understand it given the administration's position on terrorism.

 

And as I said, the real discussion - the complementary and competing roles of criminal law enforcement vs. military action in combatting terrorism - hasn't even started in public. Make that set of distinctions, and the wiretap issue here starts looking a lot less ambiguous.

[Crap Throwing Monkey]

Are you saying then, that the criminal v. military distinction primarily involves who would prosecute? As in beyond the U.S. border it would most likely be a military tribunal v. within the border, which would most likely be the US criminal justice system?

592325[/snapback]

 

I wasn't, nor would I, state that concretely...but it's certainly another possible distinction to make (and by the way...I don't claim that my idea of relying on the physical border is a good distinction. I think it's a bad one. It's just the best I've thought of.) Really, as far as I can tell the criminal vs. military distinction now relies on the whim of the executive - treating terrorism as a criminal justice problem was Clinton's whim, just as treating it as a military issue is Bush's whim(although I hasten to add that Clinton - or, more accurately, Jamie Gorelick - at least tried to argue the distinction in a concrete manner. It was an entirely arbitrary distinction, in other words, but codified in policy. I haven't seen anything like that from the current administration - which is a big part of the problem as well.)

[bobblehead]

the real discussion - the complementary and competing roles of criminal law enforcement vs. military action in combatting terrorism - hasn't even started in public

592311[/snapback]

 

 

This sounds like something the left could have an opening with (assuming the left takes the "criminal law" side) if this discussion was to start in public, but I'm not sure anyone on the left is willing to start this.

[Crap Throwing Monkey]

This sounds like something the left could have an opening with if this discussion was to start in public, but I'm not sure anyone on the left is willing to start this.

592359[/snapback]

 

I think they're still stuck in Clinton's "law enforcement" paradigm, for better or worse. Regardless of WHAT paradigm they're stuck in, though...just being stuck is what inhibits discussion. I'm dead-nuts certain it gets discussed behind closed doors by the people that do the work (I know, in particular, that posse comitatus issues get hashed out in great detail - and usually with difficulty - for every domestic relief operational plan...e.g. the "What happens when someone detonates a dirty bomb in Omaha?" military plan. I'm sure New Orleans added some interesting new insights to those discussions, too.)

 

But it doesn't get discussed in public...nor is it likely, frankly. Politicians don't like bothering the electorate with abstractions; it costs them votes. That's why they say stupid sh-- like "I voted for it before I voted against it" rather than "I supported it until the various committees and the administration added so many riders and so much pork that I believed it did a disservice to the troops."

[bobblehead]

I think they're still stuck in Clinton's "law enforcement" paradigm, for better or worse.  Regardless of WHAT paradigm they're stuck in, though...just being stuck is what inhibits discussion.  I'm dead-nuts certain it gets discussed behind closed doors by the people that do the work (I know, in particular, that posse comitatus issues get hashed out in great detail - and usually with difficulty - for every domestic relief operational plan...e.g. the "What happens when someone detonates a dirty bomb in Omaha?" military plan.  I'm sure New Orleans added some interesting new insights to those discussions, too.) 

 

But it doesn't get discussed in public...nor is it likely, frankly.  Politicians don't like bothering the electorate with abstractions; it costs them votes.  That's why they say stupid sh-- like "I voted for it before I voted against it" rather than "I supported it until the various committees and the administration added so many riders and so much pork that I believed it did a disservice to the troops."

592376[/snapback]

 

 

Well, if anything, this helps explain why the nations and the political parties has become so polarized. If you leave the nuts and bolts to the masses, the masses just might become rational.