"ALL CAPS IN DEFENSE OF LIBERTY IS NO VICE."

Saturday, December 17, 2005

THE U.S. CODE IS CLEAR: BUSH HAD AUTHORITY TO ORDER INTERCEPTS

(Via ACE):

Here are the relevant sections of the US CODE which seem to govern the reported actions authorized by the president. I have highlighted what appears to me to be sections which clearly authorize ther president to do EXACTLY what he did. (I am NOT a lawyer; my reading is based on my comprehension of English, which is my first language):

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1802

§ 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


§ 1801. Definitions As used in this subchapter:

(a) “Foreign power” means—

(1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign nation or nations, not substantially composed of United States persons;

"Al Qaeda in Iraq" (and other similar groups - such as al Qaeda - or their affiliated groups, ANYWHERE) are UNDOUBTEDLY factions within Iraq (or factions in whatever nation they have found safe haven in); therefore anyone communicating with them - or with groups like them in Afghanistan or Jordan or Pakistan - is subject to LEGAL surveillance by presidential order and WITHOUT COURT ORDER.

*******UPDATE(hat tip Glenn; via ORIN KERR)*******
***********************

IT THEREFORE SEEMS ABSOLUTELY CLEAR TO ME THAT THE PRESIDENT WAS OPERATING WELL WITHIN THE LAW; (HE HAD IT CLEARED BY THE AG/DOJ AND NOTIFIED THE NECESSARY PERSONS IN CONGRESS). AND HE DID SO FOR THE DEFENSE OF THE NATION AND THE FREE WORLD.

WE SHOULD ALL BE THANKING HIM. NO ONE SHOULD BE ACCUSING HIM OF ANYTHING BAD.

God Bless You, Mr. President. And God Bless Our Troops.

17 comments:

Anonymous said...

when are they going to indict the editor and publisher of the New York Times?

reliapundit said...

ARREST!? how about a firing squad in times square!

Anonymous said...

I can see that you are no lawyer you misinterpreted that law, as well as the fact that if followed in the way you have implied these laws are still very unconstitutional. Maybe next time

reliapundit said...

i guess that the AG doesn't know the law either, nor do the Congressional leaders who were informed of this operation over a dozen times over the last FOUR YEARS!

sheesh!

Anonymous said...

USC Title 50, Chapter 36, Subchapter 1, Section 1802 (a) (1) (B) [surveillance without court order is allowed 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.

How can you say that this requirement is met if they are explicitly wiretapping the phone of a United States person? That section of the code was intended to protect the rights of U. S. citizens -- exactly what the administration has admitted doing. This section does not exonerate the President on this matter; it's instead quite damning given the section quoted above.

Even if none of that were part of the statute, please note that the section you're referring to applies only to "foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title." That explicitly leaves out **(a)(4)** which is defined as "a group engaged in international terrorism or activities in preparation therefor". Please also note that your update defined foreign power inclusive of (a)(4), so there is no contradiction there.

Finally,it's been asked directly to Condie Rice why the warrant requirements of that act are such a disproportionate burden on the executive that these warrantless taps had to be sanctioned. So far, no direct answer to that question has been given, other than that it's within the president's power to just do it.

Anonymous said...

Congressional leaders? Know the law? Oh my, you are a funny man.

Surely, the Attourney General has never filed a brief holding a legal position that was subsequently held to be incorrect by the judiciary. It might come as a surprise to you that this happens quite frequently. Of course, it's hard to challenge the legal opinion of the AG in court if his decisions are secret.

Maybe the AG is right and this is allowed. Maybe not. I look forward to seeing just how far Presidential authority extends as determined by the courts. Now that we know about it, we can have that discussion, and citizens can once again know exactly what their rights are.

reliapundit said...

"Congressional leaders? Know the law? Oh my, you are a funny man."

You are RIGHT: the Dems probably DO NOT KNOW SHIT! BWAHAHAHAHA!

SERIOUSLY: The FACT that Bush notified the Congress and the FISA judge REGULARLY AND REPEATEDLY proves that he followed the letter of the law - and intended to.

MIGHT SOMEBODY DISAGREE!? Obviously. People like you, Binladen and the ACLU!

Disagreement might have been done IN SECRET, and if the Dem Left was REALLY interested then they would have followed up on it IN SECET ONCE IN THE LAST FOUR EFFIN YEARS, but they did NOT choose to do so.

Not once - even tho' Bush REPEATEDLY wrote them and told them EXACTLY what he was doing.

Bush as president has the PRIMARY responsibility to defend US as CinC.
And the FISA laws acknowledge this, and authorize him to order surveillance WITHOUT A COURT ORDER.

All he has to do is SAY that the AG has been informed and concurs that the surveilled persons are foreign powers or agents of foreign powers.

The president ONLY has to do this if some of the surveillance of the foreign agents is HERE. If they are overseas then the NSA can do it as they see fit, without a court order and withiout a presidential order. It's what NSA does EVERYFRIGGINDAY.

Especially in WAR-TIME.

And we are at war. Have been since 9/11 - or when Congress authorized war versus al Qaeda a few weeks later.

The president, as CinC, does not need a court order everytime or each time he wants to counter-attack the enemy.

This is NOT a jurisprudential matter; it is WAR.

You Lefties don't seem to GET that.

Pity.

Smithy said...

Frankly, the idea of widespread NSA surveillance is a non-issue. I couldn't care less if the government listens to my phone conversations. I have nothing to hide. All someone who listened to my phone conversations would learn is that I love America and hate terrorists.

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.

Anonymous said...

Reliapundit,

"The FACT that Bush notified the Congress and the FISA judge REGULARLY"
Bush said, "The NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general. Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it." I missed the part where he notified the FISA judge or any indepedent court at all. If this was in some other report, I'd certainly like to see it, because that would change things quite a bit. If not, I assume that you'll agree that your case is significantly weakened, since it is obvious that you place great (all-caps) stake in your statement. Also, you leave the impression that the President notified "the Congress" in general. This is certainly not correct. Of course, disagreement may have been done in secret by the members that were informed. We simply don't have that information yet. If they did disagree, what do you imagine that the administration's response would have been: to stop doing this or to simply ignore it?

"All he has to do is SAY that the AG has been informed and concurs that the surveilled persons are foreign powers or agents of foreign powers."

Perhaps you missed my lesson above on "[surveillance without court order is allowed 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." I cited the section and quoted it and everyting (somehow the Astute Blogger was not astute enough to quote the very next lines of the statute in his post, but that is neither here nor there). This is what the administration has been violating, as reported by the NYT. The administration has not contested this assertion.

"If they are overseas then the NSA can do it as they see fit, without a court order and withiout a presidential order. It's what NSA does EVERYFRIGGINDAY."

I assume this is all irrelevant given my note above. Yes, what you describe is what the NSA does every day. No Presidential Orders are needed to do this. It's all in the statute, as you claim for the NSA to do this. What explicitly isn't allowed is what I noted above: applying this to US persons, which the Bush Administration has been doing. I hope that clears the matter of contention up for you.

"This is NOT a jurisprudential matter; it is WAR."
Well, I guess I'll have to leave that up to the courts :-) That's what they're there for. At least that's what my "leftie" Constitution says.

reliapundit said...

(1) the fisa judge was notified; see:

http://news.google.com/url?sa=t&ct=/0-0&fp=43a784eb25f2508d&ei=8pSnQ8WZJ7f0FfvliewE&url=http%3A//www.iht.com/articles/2005/12/16/america/web.1216spy.php&cid=0

(which lionks to an IHT/nytimes article)

(2) if the "us person" is a "foreign power" then the president can do what he did.

this was upheld by the district court case i cited; see:

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

(3) FISA specifically ALLOWS the president to order surveillance of "foreign powers" WITHOUT a court order and if he gets AG concurrence and informs the Congress. bush did that AND he told the FISA judge. This is NOT the behavior of someone trying to secretly take away Americans' liberty.

(3)in addition, the AUMF passed by congress in 2001 gives Bush the authority to pursue al qaeda and its affiliates in this way.

Bush is right. CASE CLOSED.

reliapundit said...

FROM THE ORIUGINAL ARTICLE YOU FOOL!::::

"The officials said the administration had briefed Congressional leaders about the program

and notified the judge in charge of the Foreign Intelligence Surveillance Court,

the secret Washington court that deals with national security issues."

James Risen, NYTIMES
http://www.iht.com/articles/2005/12/16/america/web.1216spy.php

Anonymous said...

That is good information. That's why I like having these discussions.

But what you fail to mention about this notification is how late in the process it happened. From the same article:

"Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

"In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

"For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

"A complaint from Judge Colleen Kollar-Kotelly, the federal judge who oversees the Federal Intelligence Surveillance Court, helped spur the suspension, officials said. The judge questioned whether information obtained under the N.S.A. program was being improperly used as the basis for F.I.S.A. wiretap warrant requests from the Justice Department, according to senior government officials. While not knowing all the details of the exchange, several government lawyers said there appeared to be concerns that the Justice Department, by trying to shield the existence of the N.S.A. program, was in danger of misleading the court about the origins of the information cited to justify the warrants."

So, the Bush administration started this with little oversight and few controls. It didn't inform the court or seek ANY Justice Department review of the program until mid-2004, spurred by fears that they would lose the election and, quite possibly, face prosecution. So, by any measure, this was the "behavior of someone trying to secretly take away Americans' liberty," at least between 2002 and 2004.

On to FISA. This is pretty much a dead issue. I'll agree with you that the Bush Administration is correct in their interpretation of FISA. However, their interpretation agrees with mine, not yours. That's what happens when the blogsphere doesn't wait for the talking points before opening their collective mouths. The administration has chosen to rely on Article II of the Constitution and the 2001 war authorization as providing unenumerated powers to the Executive branch. Here's Gonzales' statement from the press conference on this matter:

"Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence. "

Let me reiterate that first part: "The Foreign Intelligence Surveillance Act requires a court order before engaging in this kind of surveillance that I've just discussed." Does that make the administration position crystal clear? I assume that you'll update your front page to accept this information. After all, it's now a settled point with both sides agreeing that my interpretation of FISA is correct.

To put another nail in this coffin, as if any more were required, the case law you cite, states, "Congress has legislated with respect to domestic incidents of foreign intelligence collection (see FISA, 50 USC 1801 et. seq. but has not addressed the issue of foreign intelligence collection which occurs abroad." So, they're explicitly stating in the case YOU cited that FISA did not apply here. So, using this case as a basis for interpreting FISA is simply incorrect. Of course, the implication here is that FISA would not allow "domestic incidents of foreign intelligence collection," but totally foreign intelligence collection was an unsettled point.
-- Joe Yangtree

reliapundit said...

I quoted the specific FISA section which SPECIFICALLY ALLOWS surveillance WITHOUT A COURT ORDER.

it allows the prez to authorize it within certain constraints which Bush followed. the fact that the fias judge - kollar kotelly complained and goit the program changed a little PROVES it DID HAVE OVERSIGHT.

also i cited a fed ditrict court which used the dsame EXACT statute to define al qaeda as a FOREIGN POWER.

therefpore what the prez did was legal.

period.

BUT... when you add the article II powers and the AUMF from 2001, it is evident that what the prez did is BEYOND REPROACH.

Anonymous said...

Your last post was just a reiteration of your previous assertions, failing to address any of mine. This time, I'll ask more specific questions to highlight the items for you consider along with why they are relevant.


"I quoted the specific FISA section which SPECIFICALLY ALLOWS surveillance WITHOUT A COURT ORDER."
You did quote this, but without quoting the very relevant section B of that statute: "USC Title 50, Chapter 36, Subchapter 1, Section 1802 (a) (1) (B) [surveillance without court order is allowed 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." This subsection specifically limits surveillance without a court order to those to which no United States person is a party. I brought this up a number of posts before, but you have not responded to it so far. This is the portion of the same statue that make this specific program NOT legal under FISA. What is your interpretation of this subsection of the code? What do you think the purpose of this subsection is? Do you believe that this subsection refers to and limits subsection A. If not, what is it referring to?


"it allows the prez to authorize it within certain constraints which Bush followed. the fact that the fias judge - kollar kotelly complained and goit the program changed a little PROVES it DID HAVE OVERSIGHT."
As the Times article noted, this oversight only came after two years, when the NSA was afraid that they might be called on their program by a new administration. This is not consistent with your assertion of a program that was concerned with following the letter of the law, at least not for a significant period of time. As a side point, since the program was changed by this late-coming oversight, would you agree that the program was potentially violating the law for the two years prior to the changes? How does the program being started with "little controls on it and little formal oversight outside the N.S.A." for 2 years fit with your contention of being concerned with the law. Note again, no Justice department review at this point.


"also i cited a fed ditrict court which used the dsame EXACT statute to define al qaeda as a FOREIGN POWER."
The Federal District Court case that you cite used the complete definition of foreign power laid out in SC Title 50, Chapter 36, Subchapter 1, Section 1801. However, SC Title 50, Chapter 36, Subchapter 1, Section 1802 limits the definition to (a) 1-3, specifically leaving out (4), "a group engaged in international terrorism or activities in preparation therefor". As I also noted, this case stated that it was making law **outside** FISA, and further stated that Congress had already covered domestic incidents of foreign intelligence collection by FISA. What was not covered was foreign incidents of foreign intelligence involving a U.S. Citizen. Again, in the decision, in case there was any doubt of the narrowness of what this covers, the court stated that this only applied to "searches targeting foreign powers (or their agents) which are conducted abroad." Given that restriction in the decision, I don't understand how you can hold that this supports your FISA contention. The court was very careful not to overturn the exception in 1802 (1) (B) involving US persons in the US. The new program admittedly targets exactly that set of people. It doesn't matter whether or not Al Qaeda is a foreign power, which you seem to think is the only relevant point. This exclusion stands either way. Please quote any section of this decision that you think overturns the FISA protections or interprets FISA law.

Finally, as a last point, you have not addressed that Alberto Gonzales has said explicitly that this program **DOES** violate the FISA restrictions. He is the Attorney General and the one who authorized the program, so for him to say this is a rather big blow to your assertion, since he would logically assert the program's legality under every possible statute. Since he's already said it's not legal under FISA, that limits his options in court and before Congressional hearings. Since Alberto Gonzales is an astute constitutional lawyer, what reason would he have for doing this?

To add to Gonzales' analysis, please refer to Orin Kerr's (another lawyer somewhat familiar with this subject) analysis of the same issue. The money quotes are:

"Putting aside the AUMF and statutory exceptions for now, let's consider whether the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 intentionally conducting electronic surveillance. I think the answer is probably yes. If the surveillance tapped wire communications under 1801(f)(2), the case is pretty clear: the surveillance involved people in the U.S. and surveillance in the U.S., and that's all that is required." So, it probably violates based on the restriction that involved people in the US. I think that's a great summary of what I've been saying.

and

"So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable."

The whole analysis, involving other statues, is available at: http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722

Don't get me wrong. The ultimate legality of this program is by no means decided; that'll have to come from the courts and Congress. However, FISA cannot and will not be used as a defense of it's legality. That's all I'm saying. Since you disagree, I'd appreciate answers to the questions above. Also, please note that two different considered legal opinions, including that of the Attorney General of the US, back up my position. How many back up your position?

reliapundit said...

clinton ordered - WITHOUT A COURT - the search and seizure of ALDRICH AMES HOME.


this was HELD TO BE LEGAL AND CONSTITUTIONAL because AMES WAS A FOREIGN AGENT/POWER UNDER DEFINITIONS OF THE FISA LAW, (AS interpreted by federal district courts).

Bush's order to the NSA was even LESS an "incursion" becasue: (1) WE ARE AT WAR NOW (we weren't then, when Ames was arrested); and (2) becasue these are INTERNATIONAL CALLS.

Fisa EXPLIXCITLY DEFINES "ELECTRONIC SURVEILLANCE" AS BEING BETWEEN TWO PARTIES BOTH OF WHO ARE IN THE USA.

SEE: FISA - 1801 (f):

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication,

under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes,

and if both the sender and all intended recipients are located within the United States; or ..."

FISA does NOT say IF ONE of the persons on the call is in the USA; it says BOTH.

Therefore, international calls can be intercepted without a court order becasue one is outsde the USA.

Anonymous said...

reliapundit -- "clinton ordered - WITHOUT A COURT - the search and seizure of ALDRICH AMES HOME.
this was HELD TO BE LEGAL AND CONSTITUTIONAL because AMES WAS A FOREIGN AGENT/POWER UNDER DEFINITIONS OF THE FISA LAW, (AS interpreted by federal district courts)."

As far as the Ames case goes, I certainly agree there is good fodder there for both sides. Before I go into a full-fledged lecture on the subject, I’d be interested to see just how much you know about the Ames case, the warrant-less activity involved in the case, and any subsequent fallout over it. Please be as specific as possible. Here’s a further hint. Clinton's Executive Order you put on your front page is involved. We’ll see how much you know, and then I’ll fill in any important pieces you left out.


Speaking of "leaving things out":

reliapundit -- "Fisa EXPLIXCITLY DEFINES "ELECTRONIC SURVEILLANCE" AS BEING BETWEEN TWO PARTIES BOTH OF WHO ARE IN THE USA. SEE: FISA - 1801 (f)(3):"
Let me first note that 1801 is a definitions section, with no actual law in it; it's merely defining terms that will be used later in the laws sections, so in order for this to be meaningful, you'd actually have to show where this definition is used in the laws.

However, that is a minor point compared to this one. You refer me to 1801(f)(3). Obviously, since there is an 1801(f)(3), there is also an 1801(f)(2) and 1801(f)(1). Indeed, there is also an 1801(f)(4). All of these are joined by an implicit "or" clause. So, the definition of "Electronic surveillance" is everything in all of these sections. When you say, "Fisa EXPLIXCITLY DEFINES "ELECTRONIC SURVEILLANCE" AS BEING BETWEEN TWO PARTIES BOTH OF WHO ARE IN THE USA," you ignore (1), (2), and (4):


(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

Please also note that your (3) is exclusively restricted to "radio communication" and **not** wire communication like (1) and (2). Did you notice that part?

So, your contention that "FISA does NOT say IF ONE of the persons on the call is in the USA; it says BOTH." is patently false. Section (2) of 1801(f) is clearly more applicable to this situation than (3).

Anonymous said...

Hurray for the bill of right!!!