Having read dozens of discussions on the recent NSA/FISA/Monitoring issue, I have seen all sorts of responses--both measured and wild. I think it would be helpful to try to narrow the issues. To help do that, I'm going to posit some hypotheticals and see if we can get agreement on them. I'm labelling them alphabetically, and my intention is to start with the easiest issues and get harder as the list progresses. For reference, here is the FISA authorization. Here is the AUMF.
A) The NSA taps phone conversations from known Al Qaeda leader Zawahiri in Afghanistan to calls inside Afghanistan. Zawahiri is a known Egyptian national.
B) The NSA taps phone conversations from known Al Qaeda leader Zawahiri in Afghanistan to known Al Qaeda member Abu Musab al-Zarqawi in Iraq. Zawahiri is a known Egyptian national. Zarqawi is a known Jordanian national.
A and B are fully authorized by the AUMF. Both Zawahiri and Zarqawi are directly covered under "those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Since "all necessary and appropriate force" against them would almost certainly include shooting them with a sniper, it also covers listening in on their phone conversations for the purpose of finding out about Al Qaeda and/or their current locations.
Neither A nor B are forbidden by the FISA authorization. Neither Zawahiri nor Zarqawi are "a United States person" under section 1801 (i). Neither A nor B require oversight from the FISA court. Any information from A or B could be used as the basis of a later warrant.
C) The NSA taps a satellite-phone conversation from Zawahiri in Afghanistan to a person unknown in the United States which can later be tracked to a pay phone.
D) The NSA taps a land-line phone conversation from Zawahiri in Afghanistan to a person unknown in the United States which can later be tracked to a pay phone.
Both cases are clearly authorized by the AUMF. Neither case falls under the definition of "electronic surveillance" covered by FISA in section 1801 (f). The target is Zawahiri, not a person in the United States. Neither C nor D require oversight by the FISA court.
E) A person unknown in the United States calls Zawahiri in Afghanistan. The NSA monitors the phone call.
F) A known illegal alien in the United States calls Zawahiri in Afghanistan. The NSA monitors the phone call.
Both these cases are authorized by the AUMF because the target is Zawahiri a known member of the group which conducted the September 11, 2001 attacks. In neither case is this in the class of "electronic surveillance" covered by section 1801 (f) because the target is Zawahiri, not a United States person. Furthermore in case F) the person in the United States does not qualify as a United States person.
G) A phone call is placed from a US Senator's office on Capitol Hill to Zawahiri in Afghanistan. It is intercepted because all calls to Zawahiri are monitored.
One could argue that this call isn't from a known US person because we don't know who placed the call from the US Senator's office. But that is stretching it a bit. In any case, monitoring all incoming calls to Zawahiri is authorized by the AUMF. The Senator (and his office) were not the target of the tap nor were all the senders and recipients in the United States. This is not electronic surveillance covered by the FISA statute. No FISA oversight is needed.
H) A phone call is placed from the residence of a known Al Qaeda member who is located in the United states to Zawahiri in Afghanistan. That Al Qaeda member is a US citizen. The call is picked up because all calls to Zawahiri are monitored.
This is just like case G. The US person is not the target of the tap.
I) A log is maintained of all calls to or from Zawahiri in Afghanistan to attempt to later identify his contacts outside of the United States.
This is clearly authorized by the AUMF and requires no oversight from FISA because no US persons are involved.
J) A log is maintained of all calls to or from Zawahiri in Afghanistan to attempt to later identify his contacts both inside and outside of the United States.
This is clearly authorized by the AUMF. This requires no oversight from FISA because no US person is the target of the tap on Zawahiri's phones. See 1801 (f)(1) "...a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person..."
K) A log is maintained of all calls made by numbers who also called Zawahiri if origniated outside the US.
This is clearly authorized by the AUMF. FISA is not implicated because this involves no US persons in the US. No FISA oversight is needed.
L) A log is maintained of all calls made by numbers who also called Zawahiri from any origin--including the US, so long as the calls are made internationally.
This is clearly authorized by the AUMF. FISA is not implicated because these calls do not fall under "if both the sender and all intended recipients are located within the United States". No FISA oversight is needed.
M) A log is maintained of all calls made by numbers who also called Zawahiri from any origin--including the US, and including all such calls whether made internationally or within the United States. The identity of the caller is not known at the time the log was created.
This is authorized by the AUMF. FISA is not implicated because the target is not a particular US person. No FISA oversight is needed.
In all of these cases it is clear that NSA monitoring is authorized by the AUMF and FISA oversight is not needed. The harder cases are below.
N) A log is maintained of all calls made by numbers who Zawahiri called including those in the United States. The identity of the caller is not known before the log was created.
This is authorized by the AUMF. It isn't targetting a specific known US Person and thus a FISA warrant is not necessary. As a matter of best practice, it might be wise to have FISA monitor this to be sure that the NSA isn't actually targetting US Persons.
O) A log is maintained of all calls made by numbers who also called Zawahiri from any origin--including the US, and including all such calls whether made internationally or within the United States. The identity of the caller is known before the log was created and that person is a US citizen.
This is authorized by the AUMF. FISA authorization might be relevant. It involves a US person under 1801 (i). The question is whether or not the US person is the target of the tap. It is arguable that Zawahiri and/or his network is the target. That argument can't extend indefinitely (in a seven degrees of Kevin Bacon fashion) but I'm willing to buy it when someone makes a call directly to Zawahiri.
P) A log is maintained of all calls made by numbers who Zawahiri called including those in the United States. The identity of the caller is known before the log was created and that person is a US citizen.
This is authorized by the AUMF. I'm less willing to extend the argument from O) above because calls made from Zawahiri are less suspicious than those made to Zawahiri. (He could be calling to order a jade figurine from QVC, while calls going to him are less likely to be innocent). From my perspective this is still targetting Zawahiri and Al Qaeda and does not require a FISA warrant, but FISA oversight would be wise to ensure that US persons aren't the ultimate targets.
Q) Same as P and the information detects a large volume of calls with another US person. On further inspection this information reveals that the other person is a drug dealer. This person is prosecuted on evidence based on the monitoring.
This is not authorized by the AUMF. The AUMF authorizes force "in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Cases N, O, P, and Q could also exist at degrees of remove from Zawahiri. I'm not sure at which point I would say that you have gone beyond targetting Zawahiri into something else. I suspect I would put it at 2 or 3 degrees (in the US). FISA would of course not be implicated at any degree of separation for non-US persons outside of the US though for purposes of practicality you should certainly have a limit.
It should also be noted that once taps of Zawahiri reveal other persons to be members of Al Qaeda, those people who be subject to starting the chain of monitoring as a different step.
A somewhat different question would be maintaining a log of all calls from number to number (perhaps world-wide) so you could later examine it once a particular number was positively linked to Al Qaeda or a terrorist group. This would almost certainly not be covered by FISA (no intentional targetting of a particular person as to the creation of the log). I think the government should do that kind of thing when fighting Al Qaeda. I am not, however, thrilled with the idea of the database just being out there. Bush should set up an appropriate oversight mechanism to make sure that such a database is not misused. If he has set up such a program without doing so, it is indeed a black mark against him, though probably not an act of illegality.
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