In the National Review, James Robbins (h/t cleek) claims, about the NSA surveillance of US citizens, that "the legality of the acts can be demonstrated with a look through the Foreign Intelligence Surveillance Act (FISA)." His arguments are completely disingenuous, and as a public service, I thought I'd say why. Robbins says:
"For example, check out section 1802, "Electronic Surveillance Authorization Without Court Order." It is most instructive. There you will learn that "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" (emphasis mine).
Naturally, there are conditions. For example, the surveillance must be aimed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers." Wait, is a terrorist group considered a foreign power? Yes, as defined in section 1801, subsection (a), "foreign power" can mean "a group engaged in international terrorism or activities in preparation therefore," though the statue language would explicitly apply to "a faction of a foreign nation or nations.""
The actual text from FISA that Robbins refers to says:
"(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 ..."
Note the references to "a foreign power, as defined in section 1801(a)(1), (2), or (3) of this title". Here is sec. 1801 on 'foreign powers':
"(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;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments."
So: what Robbins has done is: leave out the part of the text that restricts the use of 'foreign powers' by adding 'as defined in section 1801(a)(1), (2), or (3) of this title'; then saying 'in sec. 1801, foreign powers includes terrorists', without noting that that's in 1801(a)(4), and is thus not relevant to the statute he's discussing.
Later, he says:
"O.K. fine, but what about the condition that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?" Doesn't that necessarily cut out any and all communication that is domestic in origin or destination? Well, not quite. Return to section 1801, subsection (i): "United States person," which includes citizens, legal aliens, and businesses, explicitly "does not include a corporation or an association which is a foreign power.""
Here's the actual definition of US person:
"(i) ''United States person'' means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section."
Note that 1801 specifically includes any citizen or legal permanent resident, and specifically excludes not 'agents of foreign powers', but "a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section." So there are several things wrong with Robbins' point here:
(a) Your average US citizen or permanent resident is not a corporation or association, but a human being, and this the exemption has nothing to do with him or her.
(b) Robbins has left off "as defined in section 1801(a)(1), (2), or (3) of this section", which makes it clear that the corporations and associations in question do not include terrorist groups (who are under 1801(a)(4).)
Robbins goes on to say that being an agent of a foreign power makes you stop being a US person:
"Well sure, but does that mean that even if you are a citizen you cash in your abovementioned rights by collaborating with terrorists? Yes you do. You have then become an "Agent of a foreign power" as defined under subsection (b)(2)(C). Such agents include anyone who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," and even includes those who aid and abet or knowingly conspire with those engaged in such behavior."
Again, this is false: the definition of 'United States person' noted above does not say that no agent of a foreign power can be a United States person. It says that no corporation or association that is a foreign power as defined under subsection (b)(2)(C) can be a United States person. That means that US citizens and permanent residents who are agents of foreign powers can be US persons. And therefore the authorization to conduct warrantless wiretaps when "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" is not affected by the fact that the US person in question might also be an agent of a foreign power.
Sloppy reporting or deliberate misinformation? We report; you decide.
*** UPDATE: Two more arguments: First, Jeff at Protein Wisdom cites an NYT article with the Headline "COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES”, and comments:
"Admittedly, the excerpt doesn’t talk about the need (or not) for warrants; but this does get us closer to warrantless monitoring, if the call proceeds from a foreign agent."
Unfortunately, no. The case in question concerns conduct that took place before FISA was enacted. It presumes that the NSA surveillance was legal, and concerns only the question: when the NSA turned over information to the FBI, did that act violate the Fourth Amendment? Excerpts from the case are here.
Second: Protein Wisdom, Silent Running, the terrifyingly-named Baldilocks, and no doubt others as well are citing Ronald Reagan's Executive Order no. 12333 in support of the claim that the NSA intercepts are legal. So what does that order have to say? Well:
"2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order." (emphasis added.)
Oops. So much for the idea that Ronald Reagan made it legal for the Attorney General to authorize warrantless surveillance at will.