Intellectual Integrity Watch: Special NRO Edition

by hilzoy

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.

Next?

Comments

[DaveL]

Golly, Hilzoy, it's almost as if Congress foresaw that Presidents might try that kind of dodge and carefully structured the statute to prevent it. Who'da thunk?

Good post.

[liberal japonicus]

I echo Ugh's comment about the NRO. Plus seeing the words Intellectual Integrity and NRO in the same title has me guffaw uncontrollably.

[Gromit]

(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 ..."

Why doesn't this provision alone proscribe intercepting communications across U.S. borders without a warrant? Do I misunderstand the legal meaning of "United States person"?

[Gromit]

Actually, I just found that definition in the law:

(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.

[Gromit]

Never mind, I think I get it now.

[DaveC]

IANAL, but some interesting pro-spying points are made at
This link

[John Thullen]

"Robbins goes on to say that being an agent of a foreign power makes you stop being a US person."

What happens if you are the agent of a higher power?

This may seem like my usual uncited snark, but I'm deadly serious. What if an atheist or an agnostic became President under such language?

Wouldn't the shoe be on the other foot and outrage reach revolutionary proportions?

After all, God would be trying to kill the President of the United States and God's agents on all of those mailing and telephone lists would need to be surveilled and rounded up.

I'm pro-spying too.

[Gary Farber]

"IANAL, but some interesting pro-spying points are made at"

The issue isn't pro or anti spying. It's pro or anti warrants. That's the point at question, DaveC.

[hilzoy]

And DaveC: I went and found the story that's referred to in your link. (I LOVE Lexis/Nexis.) It's important to the story that the NSA was in possession of the info it passed to the FBI legally. Why? Because the activities in question took place before FISA was passed.

The question in the case seems to have been: given that the NSA legally had some info, could it pass that info to the FBI, even though the FBI had no warrant, at a time when FISA had not been enacted? That's a far cry from the 'aha!' that Protein Wisdom is making it out to be.

[hilzoy]

By the bye, if any of you lawyers have a copy of Jabara v. Webster (6th circuit Court of Appeals, 1982) kicking around, you can check and see whether the newspaper-derived stuff above is right. Couldn't find a copy online.

[Ugh]

By the bye, if any of you lawyers have a copy of Jabara v. Webster (6th circuit Court of Appeals, 1982) kicking around, you can check and see whether the newspaper-derived stuff above is right.

Nor on Lexis? Should be there if the 691 F.2d 272 cite is correct.

[cleek]

i can't wait to see how the Senate roll over on this one. maybe they'll cut a deal where Frist has to give them one free cloture vote on the next two points of order.

[cleek]

err. crap...

i can't wait to see how the Senate...

should be: i can't wait to see how the Senate Dems...

[Gary Farber]

Incidentally, DaveC, since you seem to think Jeff has something resembling a valid point there somewhere, well, no, he's making shoepucky up. Which is what he generally does whenever he declaims upon What Democrats Think.

Specifically, here:

If the Dems’ argument is that, should an al Qaeda operative phone a US number, the NSA should hang up for fear of violating the rights of US citizen—even though there is no evidence the government ever planned to use the information gleaned in a criminal proceding—well, then, let them make that case.

Except, of course, this is like saying we're objecting to the fact that Jupiter is about to impact the earth, and yet we can't be allowed to use our native giant purple squirrels to defend ourselves. It's that close to the truth.

Back on the real planet earth, the argument from Democrats and concerned Republicans (of whom there are many; ask Arlen Specter, although I realize he's dangerously unreliable) is what you should have read in posts and comments here: why couldn't the President use FISA's capacity to work retroactivly? The law provides that at the Attorny-General's whim, he can issue a warrant on his own authority, and then has 72 hours to stroll over to the FISA Court, and get a warrant.

And as I linked to here, here's FISA's record:

According to this table compiled from DOJ statistics at the EPIC website, the FISA Court did not reject a single warrant application from its beginning in 1979 through 2002. In 2003 it rejected four applications. In 2004, the number was again zero.

So, in a quarter century, the FISA Court has rejected four government applications for warrants.

Read the rest here. Josh Marshall, note, and I, have numbers and fact. Jeff has messages in his teeth.

Of course, now I've suggested what the reasons for the perceived problem with FISA might be. But going on about how the Democrats want to stop sigint, stop spying, stop trying to infiltrate al Qaeda, stop eavesdropping, and worship Satan (okay, that's last one is not from Jeff, but it's his perennial tone): that's just a flat, and vicious, lie.

I hope you're getting this down.

[hilzoy]

Ugh: OMG!! I had for some reason never explored the Nexis part. Now I will be happily entertained for the next few decades ;) Thanks.

[Gary Farber]

"By the bye, if any of you lawyers have a copy of Jabara v. Webster (6th circuit Court of Appeals, 1982) kicking around, you can check and see whether the newspaper-derived stuff above is right."

From this I learned to ask: when did Findlaw put stuff before 1995 behind a firewall? Damn.

[hilzoy]

So here we go: the case Jeff's story mentions, Jabara v. Webster, is about this issue: Assume that the NSA had lawfully intercepted his communications:

"Jabara does not contend on appeal that the NSA's interception of his foreign telegraphic communications violated his fourth amendment rights, and [**14] therefore we may take as a given the proposition that the NSA lawfully received and was in possession of the communications."

Can one find, somewhere in the NSA's turning them over to the FBI, something that one could call a 'search' or a 'seizure'? Here all sorts of delightful precedents are invoked:

"defendants argue, we think correctly, that Jabara's fourth amendment rights were not violated when the summaries were turned over to the FBI because this was not a "search" or "seizure" within the meaning of the amendment. This is a clear implication of such decisions as United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973), cert. denied, 421 U.S. 987, 44 L. Ed. 2d 477, 95 S. Ct. 1990 (1975). There an arson investigator gathered some papers from the floor of the burned building as evidence of the cause of the fire. These papers were later turned over to federal agents when they appeared to be gambling records. The court held that the papers were lawfully in the possession of the arson investigator under the "plain view" exception. It further held that the federal agents lawfully obtained possession from the arson investigator, stating (476 F.2d at 1014):

Evidence legally obtained by one police agency may be made available to other such agencies without a warrant, even for a use different [**15] from that for which it was originally taken. Gullett v. United States, 387 F.2d 307 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S. Ct. 1645, 20 L. Ed. 2d 307 (1968).

(...)

Jabara contends, however, that there was a "search" or "seizure" when the summaries were turned over by the NSA to the FBI under the holding in Walter v. United States, 447 U.S. 649, 65 L. Ed. 2d 410, 100 S. Ct. 2395 (1980). There some pornographic 8-millimeter films, in boxes that were in sealed packages, were misdelivered after shipment, and the recipient opened the packages. On the boxes were descriptions and drawings that clearly indicated their contents. The recipient, however, did not view the films but turned them over to an FBI agent. FBI agents, then, without a warrant, viewed the films with a projector. The question before the Court was whether the films should have been suppressed because the showing of the films with a [**16] projector was an illegal search under the fourth amendment.

In a five-to-four decision, the Court held that the showing of the film with a projector was a "search" and therefore the showing violated the fourth amendment. Justice Stevens authored the lead opinion for the majority, saying (447 U.S. at 654):

Notwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.

It is perfectly obvious that the agents' reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation [**17] -- that is to say, a search of the contents of the films -- was necessary in order to obtain the evidence which was to be used at trial.

[*278] The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field's opinion for the Court in Ex parte Jackson, 96 US 727, 24 L. Ed 877, established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.

(Citations and footnotes omitted).

In the instant case, on the contrary, Jabara's very words, summaries of which were supplied to the FBI, had been lawfully intercepted by and were in the records of the NSA. NSA therefore already had in its records, after it intercepted, all that it supplied to the FBI. Jabara appears to argue, however, that the fact that the NSA acquired, stored and retrieved a large amount of information using sophisticated, high-technology methods and equipment should lead to the conclusion that the NSA's acquisition of Jabara's telegraphic messages was [**18] not a search and that the only search occurred when, at the request of the FBI, the NSA retrieved Jabara's messages and delivered summaries to the FBI. There are two difficulties with this argument. First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI. Second, to the extent that Jabara relies on alleged facts surrounding the methods and technology of acquisition, storage and retrieval of information, such are, as was held by the district court, subject to the state secret privilege. (...)

Jabara, however, would have us apply still another analysis in support of his contention that his fourth amendment rights were violated when the FBI, without a warrant, requested and received summaries of his overseas messages. In this connection he relies on such cases [**19] as United States v. Bailey, 628 F.2d 938 (6th Cir. 1980). In Bailey, government undercover officers delivered a drum of a chemical, a precursor for the manufacture of a controlled substance, to defendant. The officers had installed a "beeper" inside the drum to aid in the surveillance and investigation of a suspected clandestine laboratory. The signal from the beeper was used by the officers to ascertain the location of the drum. The question raised was whether the placing of the beeper in the drum before it was delivered to defendant and the subsequent tracing of the drum by receipt of the signal from the beeper implicated the fourth amendment. In reaching the conclusion that the fourth amendment was implicated, our court, relying on Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), held that the question was whether defendant had a reasonable expectation of privacy with respect to the location of the drum. In this connection, our court stated (628 F.2d at 940):

We consider it irrelevant whether a particular governmental intrusion is classified as a "search" or as a "seizure." What matters is whether [**20] it violates an individual's legitimate expectation of privacy. Therefore, it is not necessary to speculate whether a beeper "searches" or "seizes" anything."

The phrase "it is not necessary to speculate whether a beeper "searches" or "seizes" anything" encapsulates everything I love about the law.

In any case, the deciding issue, according to the Court, was:

"Applying this analysis utilized by our court in Bailey, we agree that Jabara exhibited an actual (subjective) expectation of privacy when he sent the telegraphic messages overseas. But the question here is whether he had an expectation of privacy that society is prepared to recognize as reasonable [*279] after the messages had lawfully come into the possession of the NSA. For it was after the messages were intercepted and within the possession of the NSA and only when they were delivered to the FBI that Jabara contends that his fourth amendment rights were violated. We do not believe that an expectation that information lawfully [**21] in the possession of a government agency will not be disseminated, without a warrant, to another government agency is an expectation that society is prepared to recognize as reasonable."

And therefore:

"We conclude, therefore, that Jabara's fourth amendment rights were not violated when the FBI obtained summaries of his overseas telegraphic communications from NSA and that the district court erred in granting summary judgment to Jabara and that, on the contrary, it should have granted summary judgment to defendants as to this claim."

I think it's pretty clear that this is not relevant to the present set of circumstances.

[DaveM]

Hilzoy,

Your Lexis discovery/comment made me laugh harder than I have all week (OK, it's still early in the week). Enjoy your Lexis browsing.

[Gary Farber]

However, this took only five seconds more.

Happy to help.

[hilzoy]

DaveM: imho, it's not nearly as funny as ""it is not necessary to speculate whether a beeper "searches" or "seizes" anything".

[Slartibartfast]

Not ignoring this thread, quite, just discussing this exact same thing in...other threads.

Gary, you really ought to take the giant purple squirrels comment to Jeff's comments section. I think Jeff might appreciate it as art, even if he disagrees with it in spirit.

[Francis]

hilzoy, you really should consider going to law school in your abundant spare time. Sup. Ct. cases are full of such charming turns of phrase.

[replevin for a cow was always one of my favorites. couldn't possibly explain why.]

[DaveM]

And Gary, we're holding you personally responsible if Hilzoy spends the next four weeks performing multi-state Lexis searches to find out what every court in the country has written about bioethics and neglects her blogging "duties."

[Jeff G]

Not the points I was arguing at all. Luckily, they're still there, on my site.

I did, by the way, email James Robbins about your post, Hilzoy. Not sure if he'll get back to me -- after all, I'm notorious for "making shoepucky up" -- specifically, as Gary points out, with regard to my own opinions and speculations.

[DaveM]

Oops, false accusation. I guess it was Ugh who let the Lexis cat out of the bag.

[Dantheman]

"[replevin for a cow was always one of my favorites. couldn't possibly explain why.]"

What is even stranger is someone spending the time to create a several page long poem about the case. My favorite couplet:

For truly it must be like bovine heaven
To be the res in the writ of replevin.

[John Thullen]

I wonder how much chatter emanating from Norfolk and the dinner tables of Intelligant Design enthusiasts regarding Judge Jones of Dover Pa. fame the NSA, the F.B.I. and the Defense Department are picking up tonight.

[Slartibartfast]

after all, I'm notorious for "making shoepucky up"

This ought to be interesting.

[hilzoy]

Jeff G: Hi, and thanks for stopping by. I hope I got it sort of right in the update I was coincidentally adding while you were posting your comments. (Fwiw, I was trying to get the relevance of the article, not your broader arguments about Democrats. Like other people here, I don't think they're accurate, but they are also not relevant to the point at hand.)

[dmbeaster]

Sloppy reporting or deliberate misinformation? We report; you decide.

More like deliberate cheerleading. It does not matter how clunky the cheer actually is -- as long as ample noise is made on behalf of Dear Leader.

[Slartibartfast]

Maybe just one more time with the "Dear Leader" bit? I mean, before the veil is lifted from my eyes and I shout: "Eureka! How could I have been so BLIND?"

Probably not, but you never know.

[hilzoy]

Slarti: I seem to have missed the 'Dear Leader' reference...

[hilzoy]

Oh, I see. (Kicks self.)

[Catsy]

Slart, that veil will never be lifted until you give up your decoder ring.

[Slartibartfast]

I thought I'd given up the decoder ring, but I can't find my VRWC rhinoskin a$$-kicking boots, so I think I've screwed up bigtime.

[liberal japonicus]

Looking at Hil's 10:27, maybe she got them.

[Gary Farber]

"Not the points I was arguing at all. Luckily, they're still there, on my site."

It may be just me who is unclear whose comment Jeff is responding to here, given his lack of quoting or specifying.

"...after all, I'm notorious for 'making shoepucky up' -- specifically, as Gary points out, with regard to my own opinions and speculations."

Although we all "make up" our opinions and speculations, in one usage of the phrase, my characterization was in regard to the paragraph I quoted, wherein you made up "the Dems’ argument," I took it.

However, if you actually have a cite for a quote making this argument from one of the "Dems'" ("Democrats" is more courteous, as is "Democratic" as the adjective, but this is trivial, of course) leaders, I certainly apologize for being unaware that you weren't making up such a "Dems" "argument," and for my error in presumption.

[Gary Denton]

How would FISA apply if a Super-Echelon was activated at the NSA? From the parsed and clever turns of phrases the people who should know are employing I am wondering if that is it.

A Super-Echelon has the ability to scan the entire internet communications, IM, email, VOIP, for key words and phrases and when found store the message and all messages from the point of origen and recipient. As this is a broad scoop it may take a while to determine who they are actually monitoring.

Echelon has existed for quite some time monitoring international calls, faxes and teletypes and coded transmissions and surely it is past time for a Super-Echelon with this capability.

[Anarch]

I thought I'd given up the decoder ring, but I can't find my VRWC rhinoskin a$$-kicking boots, so I think I've screwed up bigtime.

Rhinoskin? I thought they were rhinestone...

[Slartibartfast]

Jeez, speaking of...well, OT, anyway. Sometimes reality is just as good as The Onion.

[Jeff G]

Hilzoy --

Mr Robbins responded to my emails. His responses are posted in an update here. I also responded to your updates. Sorry we seem to be posting past each other.

Gary --

The construction "if the Dems argument..." followed up a paragraph that explains the reduction:

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. After all, the NSA can’t know, if they are simply monitoring phone trees, that the persons being contacted in the US are US citizens or not, because that would require a special mindreading power that not even Master Rove has perfected.

If the Dems’ argument is that, should an al Qaeda operative phone a US number, the NSA should hang up for fear of violating the rights of US citizen—even though there is no evidence the government ever planned to use the information gleaned in a criminal proceding—well, then, let them make that case.

Clearly you don't have to agree with it, but it is also quite clear that this is my reading of what I think the Democratic argument can be reduced to if I'm right on the facts preceeding it.

Thanks for engaging, Hilzoy. I think I'm going to call it a night on this stuff, have a Guinness, and watch Serenity.

[Gary Farber]

"Echelon has existed for quite some time monitoring international calls, faxes and teletypes and coded transmissions...."

"Echelon" is a term for a series of linked enterprises; it's not a technology, per se, any more than "the NSA" is a technology; both use technology.

"Clearly you don't have to agree with it, but it is also quite clear that this is my reading of what I think the Democratic argument can be reduced to if I'm right on the facts preceeding it."

I'm sure that's so, but it's on a disconnect from any reality of any actual Democratic argument that I'm aware of (please note that not all Democrats, leaders or peons, e-mail me to make sure I'm aware of their argument). This may be irrelevant to your point, of course.

[Gary Farber]

Nightline has been doing the FISA story, by the way. If you're on the West Coast, you might want to check it out.

[Jeff G]

Hilzoy --

Just a note to let you know Robbins responded again -- this time to the Reagan EO, his reading of which directly addresses some of your concerns as to US persons.

Also, Drudge is carrying links to both the Carter and Clinton's EOs, if you are interested.

Thanks again for the discussion. Now I'm really really going to watch a movie and have a Guinness.

[DaveC]

If you're on the West Coast, you might want to check it out.

I think that Jeff is in Colorado (Hi Jeff, love your caulking advice! - not that I ever do stuff right. My approach is ducttape around all openings, especially your teenage daughter.)

If they are both in CO, Gary + Jeff ought to get together - for a cage match.

Hey Gary, I let my paypal account go stale while my new card came in with the new expiration date. Now the paypal thingy won't let me change the date because they already have my card in the records, or some such error message. Any ideas? It's worth a Jackson to you, which was my intent.

For everybody who agrees with Gary's old friends whou thought him similar to Jesus, (pompous ass indeed!) send him a little something in honor of Christmas.

Best wishes for 2006 and I hope your prospects work out.

[DaveC]

Oh, and I should point out that I am a fan of Jeff who is, I gather, a stay-at-home dad, a writer, a teacher, a handyman, and a jerkwad.

I would follow his example, but only have the last part happening so far.

[Gary Farber]

"If they are both in CO, Gary + Jeff ought to get together - for a cage match."

Been there, done that. I keed. I did hope when I wrote that that I wouldn't hurt anyone's feelings, but if I did tick off Jeff (or anyone else; I seem to recall Avedon Carol feeling I'd been disrespectful to Jeralyn Merrit, though I may misremember, and certainly Jerayln's never said anything to me to indicate that), I'd have to say that it wasn't intended, and that I was sorry. Were that the case. I have no idea.

Comments on the piece welcome. For those who need things unpacked, the first sketch is the view in which I reverse reality to somewhere a tad beyond plausibility; sketch two was entirely based upon reality and real quotes, but exaggerated a wee bit, and with absurd phony quotes mixed in; sketch three was the straight poop version.

Comments on the piece quite welcome.

[Jeff G]

One last, Hilzoy, et al.

As I noted in my post, the FISA Court review backed the President's authority. But additionally, it also backs my and Robbins' contention that US personhood is not absolute:

After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution. We therefore remand for further proceedings in accordance with this opinion.

The court’s decision from which the government appeals imposed certain requirements and limitations accompanying an order authorizing electronic surveillance of an “agent of a foreign power” as defined in FISA. There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism.

[Gary Farber]

"Any ideas?"

Based on my past experience, you probably have to cancel that Paypal account and open a new one. This is not complicated, fortunately (by my subjective definition, and based upon the last time I did it; I can't promise they haven't since made it worse).

[Gary Farber]

Oh, and thanks, DaveC. My apologies for letting tiredness make me forget my manners for a moment.

[hilzoy]

But jeff -- unless I'm missing something, that's about restrictions placed on the court as a condition of its giving a warrant, not about whether warrants are required at all.

(Movie? You don't need no stinking movie!)

[hilzoy]

I mean: no one (that I've run into) is arguing that the government can't engage in surveillance of US citizens with a warrant, or that it can;t get such a warrant from FISA by showing that there are grounds to think that that person is an agent of a foreign power. The question is, can they do this without a warrant; and I don't see that this FISA case is relevant to that question. (Admittedly, though, I stopped reading after the first 20 or so pages went by without a clearly relevant bit.)

[DaveC]

Your story is very funny, Gary! I'll try what you said with PayPal.

[dmbeaster]

Slarti:

Maybe just one more time with the "Dear Leader" bit? I mean, before the veil is lifted from my eyes and I shout: "Eureka! How could I have been so BLIND?"

Touchy tonight?

Maybe it would be nice to see a right wing argument on this that does not: 1) grossly distort the actual matter at issue (warrantless searches of Americans in America in violation of the Fourth Amendment); or 2) devolve into hero-worship and finding faith with the "trust me" argument advanced by Bush.

It would also be nice to hear some rational explanantion for why the righties advance "fart-in-the-elevator" quality arguments trying to legitimize this thing.

And yes, I do hope the veil is lifted from your eyes, though I did not expect the throw-away "Dear Leader" line to do it.

[Gary Farber]

"Maybe it would be nice to see...."

Look, this is just a suggestion, but maybe it would be nice if we tended to try to address ourselves more to what people here actually say here, and if they deserve chastisement, we can so chastise; choosing to instead treat people here -- those always on "the other side," although there isn't anything remotely resembling a homogenous "side," no matter how you slice and look in either direction -- as cardboard stand-ins for our own personal One Minute Hate exercises, isn't actually so nice.

I realize that the venting feels good, but it's done at the cost of shouting at another human being who, by definition according to the point I'm making, doesn't hold the views you, and the significant number of other people here who like to do this, are enraged by.

Overall, this strikes me as inappropriate and counter-productive, and educational to none. People are responsible for their own views, and not for the views of others we are choosing to lump them in with. If they specifically endorse someone else's views which should be condemned, fair game (within posting rules, of course). But demanding that we answer for someone else's views? Very unhelpful, it seems to me. It also falls under "do unto others."

Do I have any sort of point here? I'm saying, when Slart offends you, feel free to try to call him on what he did wrong and why. When someone else offends you, or "the right" in general, as you perceive it, take it up with them, or look into finding a non-sentient punching bag, instead.

As I said: just a suggestion.

Damn insomnia.

[Slartibartfast]

I suppose my command to get some sleep went unheeded, if not unread. I know: if only it were that simple.

My comment to dmbeaster was more a style point than anything else. I forget the reference, but while bully beef and rice can look good, bully beef and rice day after day, week after week can pall. Even hilzoy would get boring if she insisted on saying the same thing, day after day, in exactly the same way.

I fully realize that you may take any style points from me with a Vehicle Assembly Building-sized salt grain, of course, when taken at all.

[Slartibartfast]

It would also be nice to hear some rational explanantion for why the righties advance "fart-in-the-elevator" quality arguments trying to legitimize this thing.

I wouldn't presume to defend someone else's argument, dmbeaster. If you think I've done such a thing, somehow, please point it out and we can talk it over. In the meantime: what Gary said. And at risk of redundancy, I don't speak for "the righties", whoever they are, nor do they speak for me. If there's a "righty" meme pool, I didn't get invited to the party, nor do I hover attentively just outside the pool enclosure, hoping for a tidbit.

[Bruce Baugh]

I have a genuine question. I realize that stuff like this often said in an un-serious trolling spirit, but I'm really trying to work out the ramifications of claims, and precisely because I don't really understand, let alone sympathize with, some logic, I'm looking for help.

It looks to me like the justification for Bush's expansive approach to presidential power rests on the unique challenges posed by Islamic (and presumably potentially other) terrorism, such as that praticed by Al Qaeda. That is, it's for the duration of a particular sort of crisis that happens to be a (potentially) very long-lasting crisis.

If I've got that right...shouldn't President Clinton have sought that power? And shouldn't Congress have given it to him, if he asked for it? (Maybe even if he didn't?) Bin Laden first attacked the US in 1993, and there were the other terrorist incidents after that often cited as evidence of Clinton's neglect of the issue. The 9/11 attack was, basically, just more of the same, on a larger scale and more successful, but continuing an existing campaign. Since that campaign was already underway, should Clinton have been authorized to make warrantless searches, assign enemy combatant status and arrange for indefinite detention, and other key features of Bush's approach to the crisis?

In real life, of course, Republicans in Congress were deeply critical of Clinton's efforts to deal with Bin Laden. Were they mistaken? Do they owe him an apology for undermining executive response of a sort they now deem critical? Would Republican support for expansive federal effort in the '90s perhaps have improved things before 9/11?

[CharleyCarp]

Bruce, I think you've got the premise fundamentally wrong. The Yoo/Gonzales/Miers argument about Executive power doesn't have anything at all to do with the nature of Islamist terrorism, or the scope and duration of the threat from same. They contend that Millard Fillmore had these powers (and I suppose they'd point to the Perry expedition to Japan) -- they are inherent in Article II.

All Presidents always have the power to ignore any law that interferes with their ability to use the armed forces whenever they want to use the armed forces, for whatever purposes they would use them, so long as the President thought he/she was protecting the nation.

It's an astonishing leap, and astonishingly dangerous.

[Ugh]

Isn't it quite clear that the administration is not relying on FISA, or at least is only relying on it to the extent that they say the AUMF is the "except as otherwise provided by statute" mentioned in FISA? And, assuming that a bunch of B.S., in any event the President has the inherent authority to do this, statutes be damned?

[hilzoy]

Jeff G: I think that the FISA case not only does not support your claim that US personhood is not absolute, it constitutes evidence against it. The part you cite:

"the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism"

seems fairly clear: it says that the target (a) is aiding, abetting, etc., international terrorism, and (b) that the target is a US person. Which seems to me to imply that whatever Robbins thinks, you can be a US person and an agent of a foreign power at the same time.

Moreover, if you check p. 10 of the case, you find this:

"The definition of an agent of a foreign power, if it pertains to a U.S. person (which is the only category relevant to this case), is closely tied to criminal activity. The term includes any person who “knowingly engages in clandestine intelligence gathering activities . . . which activities involve or may involve a violation of the criminal statutes of the United States,” or “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor.” Id. §§ 1801(b)(2)(A), (C)."

Note: "The definition of an agent of a foreign power, if it pertains to a U.S. person". Again, this seems to make it pretty clear that you can be both a US person and an agent of a foreign power at once.

Which means that being an agent of a foreign power does not make your US personhood go away.

(This is clear from FISA, in any case.)

[Slartibartfast]

If I've got that right...shouldn't President Clinton have sought that power?

It seems I mentioned earlier how history has at least the appearance of repeating much more rapidly than we imagine.

Again, wierd.

[Christopher M]

replevin for a cow

Good old Rose 2d of Aberlone.

[CharleyCarp]

Hil, of course it doesn't. Personhood and agency are common concepts in the law. All of us are persons, some of us are agents some of the time -- some of us (me, for example) switch from being an agent of one entity to being an agent of another entity multiple times throughout the day. My personhood being unaffected.

You're an agent when you walk into a classroom, but not (I suspect) when you post to your blog. But always a person.

I thought that FISA review court opinion had a single line useful to the discussion:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

Op. at 48. I don't agree with the last, because I think we're in a Youngstown category where Presidential power can be affected by Congress. (I never remember the numbers of the categories). That issue wasn't before the FISA review court, though, as it made clear in the sentence following the excerpt:

The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

[spartikus]

From Slartibartfast's cite:

President Clinton's proposals would have expanded pre-trial detention and allowed more federal wiretaps of terrorism suspects, eased deportation of foreigners convicted of crimes, allowed the detention of aliens convicted or suspected of crimes, let the President criminalize fund-raising for terrorism, and revived visa denial provisions to keep dangerous people out of the US.

I'm not sure how this is equivalent to what Bush has done, which seemed to be the insinuation of the "history-repeating" reference?

[Ugh]

And what happened to President Clinton's proposals?

[hilzoy]

CharleyCarp: that seemed fairly straightforward to me, but the conservative blogs, and Jeff in particular, seem to be all afire with the idea that the definition of 'agent of a foreign power' shows that you can't be a US person if you support terrorism, and that that means that when FISA says that the AG has to certify that no US person's info will be picked up by surveillance, US citizens who support terrorism are excluded.

Robbins:

"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."

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."

Where do they get these people? And why do they give them a platform?

[Slartibartfast]

I'm not sure how this is equivalent to what Bush has done, which seemed to be the insinuation of the "history-repeating" reference?

I wasn't noting equivalence, just noting a bizarre resemblance. I'm not vouching for the veracity of it, either. Be amused or bemused by it, or ignore it completely as you please.

[Ugh]

Where do they get these people?

College republicans.

And why do they give them a platform?

Someone has to spew the BS that at least plausibly doesn't look like they're attached to the administration.

And I ask again, why the heck are we arguing over FISA when the administration has essentially stated that it is not relying on FISA? Haven't they acknowledged that, absent their BS interpretation of the AUMF and equally BS interpretation of the President's powers under the Constitution, FISA would apply and they're comitting felonies?

[Slartibartfast]

their BS interpretation of the AUMF

There's at least one well-respected legal mind that's giving AUMF at least a tentative nod, Ugh.

Plus, he's got a comments section where you can disagree with him.

[liberal japonicus]

the conservative blogs, and Jeff in particular, seem to be all afire with the idea that the definition of 'agent of a foreign power' shows that you can't be a US person if you support terrorism, and that that means that when FISA says that the AG has to certify that no US person's info will be picked up by surveillance, US citizens who support terrorism are excluded.

This notion brings to mind the trial of Min Yasui, who was the first to contest the constitutionality of Exclusion Order 9066 during WWII. The judge in the trial focussed much attention on the fact that his family, while Methodists, maintained a Shinto shrine in their house.

My trial had been the first time the constitutionality of Executive Order 9066 was tested. During the trial, the judge had surprised me by questioning me directly:

"What is Shinto?"

"Shinto? As I understand, Shinto is the national religion of Japan."

"Do you give adherence to its precepts?"

"My mother and father were Methodists in Japan, and I myself have been a Methodist in this country, and I don't know about the precepts of the Shinto religion."

"Was not Shinto practiced in your household?"

"No, sir."[1]

I thought they were a bunch of stupid questions. I didn't know anything about Shintoism. But the judge pushed on: Were food offerings placed on the graves of members of my family? Did I accept the divinity of the emperor of Japan? Despite my denials, he seemed to insist that I was a believer in the Shinto religion, in a way that cast doubt on my loyalty. He wanted to find me guilty, and he was searching for any basis by which he could. I'm sure he was under tremendous pressure to rule in favor of the government.

When the judge issued his ruling in my case, he found DeWitt's curfew order unconstitutional when applied to American citizens in the absence of martial law. I thought: Boy, we won this one! Then he continued, "However …," and he ruled I had forfeited my citizenship by "choosing" allegiance to Japan—that I was an enemy alien, in spite of all the evidence to the contrary—and therefore the curfew applied to me. No one ever made such a claim before or since. It was so obviously foolish—even the Justice Department never disputed my citizenship before the appeals court and the Supreme Court.

link

[DaveC]

that seemed fairly straightforward to me, but the conservative blogs, and Jeff in particular, seem to be all afire with the idea that the definition of 'agent of a foreign power' shows that you can't be a US person if you support terrorism, and that that means that when FISA says that the AG has to certify that no US person's info will be picked up by surveillance, US citizens who support terrorism are excluded.

Well, yes, if a US person supports terrorism, especially against the US, then that person has forfeited their rights as a citizen, because they are a combatant against our country. It looks like to me that the Democrats, and newspapers, and intellectuals are interested more in defending terrorists, and prosecuting those who fight terrorists, than with protecting ordinary people. I know that this is an unsophisticated take on this, but it is why
I dont trust liberals with national security issues.

[Ugh]

There's at least one well-respected legal mind that's giving AUMF at least a tentative nod, Ugh.

I'm sorry, I'm distracting from my larger point with my BS insertions, again, it's clear that the administration is not relying on FISA.

[Slartibartfast]

Well, yes, if a US person supports terrorism, especially against the US, then that person has forfeited their rights as a citizen, because they are a combatant against our country.

Well, I have a problem with that, used as justification. Combat is not the passing of information, nor is it the plotting to do acts of sabotage. Using someone's telephone conversations, furthermore, as a sort of ex post facto justification for having listened in on them to begin with seems weak, too.

There may in fact be good justifications for listening, but I don't think this is one of them.

[hilzoy]

DaveC: I'm not talking about what I think; I'm talking about what the law says. And it does not, at present, say that you forfeit your citizenship, or for that matter your status as a 'United States Person' under FISA, if you aid and abet terrorism.

Nothing about this -- nothing at all -- concerns my personal views on terrorists. It's just about the question: does the fact that someone supports terrorism mean that, ACCORDING TO FISA, it's OK to wiretap them without a warrant? And the answer is: no.

Of course, you can still wiretap them with a warrant.

[spartikus]

I wasn't noting equivalence, just noting a bizarre resemblance.

Administration A responds to national emergency by trying to implement looser restrictions, using established legal principles to do so.

Administration B responds to national emergency by dispensing entirely with restrictions, and does so through apparent subterfuge.

Where's the "bizarre" resemblance?

[Gary Farber]

"Again, this seems to make it pretty clear that you can be both a US person and an agent of a foreign power at once."

Um, remember wasshername, the Washington woman arrested a couple of years ago, who was Karl Rove's cousin, for being an "agent of Iraq"? (I wonder whatever happened with that that case; it disappeared from my radar screen after she was charged.) She was more than a "U.S. person," of course, but a citizen.

[Gary Farber]

Susan Lindauer.

It sure would be nice not to have to reload ObWi pages 2-3 times to make them work.

[Jeremy Osner]

Well, yes, if a US person supports terrorism, especially against the US, then that person has forfeited their rights as a citizen

And if a person is suspected of supporting terrorism, that person's rights are preemptively forfeited until it can be determined that the suspicion is incorrect.

DaveC, you are failing to get the reason for requiring a warrant before the government can search or seize. The government has to establish its suspicions before a judge -- it can't justify searches by claiming "we suspected X is a terrorist", without getting a warrant. Otherwise it has free reign to peek and pry without check.

[john miller]

DaveC, please define terrorism.

I consider McVeigh's actions to have been terrorist in nature.

I consider those who bombed abortion clinics to have been terroists.

Do you believe they did not have a right to trial and forfeited all their rights as US citizens?

[dmbeaster]

Look, this is just a suggestion, but maybe it would be nice if we tended to try to address ourselves more to what people here actually say here, and if they deserve chastisement, we can so chastise;

My short point had nothing to do with anything Slarti said (which is obvious), but refers generally to the numerous arguments trying to justify the illegal wiretapping that are discussed in part in this main post and generally on the web. They all stink horribly.

As near as I can tell, almost no one on this comment list is trying to justify the warrantless searches. At best, some are expressing an understanding of whether laws need to be adjusted to address a new type of concern, but no one posting here seems to be defnding the actual modus operandi of Bush (search now secretly -- make up nonsense about legality if caught). And that line of argument is what stinks.

An intellectually honest argument would acknowledge at least some wrongdoing by Bush in what has occurred, and talk about the shades of grey that actually exist on this topic -- as opposed to mouthing any nonsense in order to stay comfy in the belief that nothing wrong has occurred.

So much right wing commentary, in general and not in this post, seems to duplicate Bush's primary failing of being unable to acknowledge any error.

[CharleyCarp]

Well, yes, if a US person supports terrorism, especially against the US, then that person has forfeited their rights as a citizen, because they are a combatant against our country.

This is obviously a statement of opinion, and it is an opinion that has no basis in the law. (And is not our government's position, which is why Lindh and Padilla, to name two, have never been guests of the US Navy in Cuba). I can announce that all who advocate replacing our Republic with a Tyrany are traitors, and forfeit their rights of citizenship. I can also command the tide not to come in. Guess what?

[Jeff G]

Hilzoy --

You didn't excerpt the first part of that quote from the FISA court review. Here's the complete quote:

[...] we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution.

[...] the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism.

The target is BOTH an agent of a foreign power and a US person. But BECAUSE he is an agent of a foreign power, the restrictions imposed by FISA are not required by FISA or the Constitution.

Incidentally, I was not a College Republican, and 2004 was the first time in my life I voted Republican.

[Ugh]

2004 was the first time in my life I voted Republican.

Well we canceled each other out then, at least since 1992.

[Carleton Wu]

Jeff G,
If Hilzoy's point was that this clause prevents warrantless tapping of US persons, and that no other part of the law could be read to remove the status of "US persons" from US citizens or permanent residents, how does the quote above challege this?

That is to say, if your point is that the target is BOTH an agent of a foreign power and a US person, then the clause Hil cited applies, and warrantless searches cannot occur unless there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party...

Congrats about the whole Republican thing, I guess. I was not in the Glee Club, although I admit to having been gleefully snarky on several occasions prior to 2004.

[CharleyCarp]

Jeff G, you understand that because the target was a US person, they were applying for a FISA warrant, right? And that they got their warrant? And that they got the review court to strike the restrictions on the warrant that limited who, within the Justice Department, could participate in the investigation?

[Francis]

"But BECAUSE he is an agent of a foreign power, the restrictions imposed by FISA are not required by FISA or the Constitution."

wrong, wrong, wrong.

the holding is: Because the government has made an adequate showing to the FISA court that the individual is both a US citizen and a foreign agent, the particular restrictions imposed by the lower court are reversed.

the holding is not : the government has the unilateral power to ignore FISA and the constitution if it believes that a citizen is an agent of a foreign power.

the bulk of the decision concerns the scope of a FISA warrant, and the conclusion, found on pg 36 is this:

if the [FISA] court concluded that the government's sole objective was merely to gain evidence of past criminal conduct -- even foreign intelligence crimes -- to punish the agent rather than halt ongoing espionage or terrorist activity, the application [for a warrant] should be denied.

also, on page 37,

But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes.

given these limitations, the court found that FISA (which requires that a particularized showing be made to a FISA court) is constitutional.

that is ALL that the case stands for. Nothing, but nothing in the case stands for the proposition that the govt, either pursuant to or in deliberate avoidance of FISA, may engage in long-term warrantless searches of US citizens' conversations.

and anyone who continues to argue a broader interpretation, including JeffG, needs to read the damn case more carefully.

[Francis]

damn it, missed something.

In addition to finding FISA constitutional, the court found that particular requirements imposed on the govt by the lower court, in excess of those required by FISA, lacked statutory basis.

outcome: The appellate court reversed and remanded, meaning that it directed the lower court to issue the FISA warrant without the particularized nonstatutory restrictions.

[Francis]

DaveC:

do you really want the executive branch to have the power to strip citizenship unilaterally? Have you put any thought into the legal and practical consequences of that position?

[Gary Farber]

"2004 was the first time in my life I voted Republican."

I heard.

I slaved for, like, two, maybe even three, whole hours writing this thing, by the way, and it's certainly the most sustained piece of non-link-based writing I've ever yet blogged, in case anyone other than DaveC wants to check it out. At least a few people seemed to twitch a faint smile here and there at it. Although it's just a report on the Rocky Mountain Blogger Bash of 2004, with character sketches. Just saying, again, because I so looove the sound of my own voice. (And the look of my ASCII: hubbabubba!)