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December 20, 2005

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Hilzoy: What I'd like to know is: what other decisions have they taken, based on their apparent belief that they can do literally anything they want?

They have set up a prison in Guantanamo Bay, and imprisoned people in it incommunicado. The people imprisoned there were (variously) sold to the US by bounty hunters, kidnapped by the CIA from countries where the US is not at war, or taken in combat against the US or its allies.

And how are we going to find out about those decisions?

You will read about them in the news from January 2002 onwards, and you will (it appears) pay no attention.

So: Congress supposedly authorized this program, and then passed a law reaffirming its illegality, and then, when the administration asked around to see whether the law might be amended to make this program legal, they were told that "that that would be difficult, if not impossible." And somehow this is all supposed to show that the administration had Congressional authorization for what it did.

Right.

This is the truly marvelous part, though. It takes a special kind of thinking, doncha think?

I had a couple of thoughts about the whys of why they would have engaged in this program here, the other day, by the way.

Also, maybe CIFA has been discussed here at some time I wasn't paying attention. As usual, a fair number of other posts.

"They have set up a prison in Guantanamo Bay, and imprisoned people in it incommunicado. The people imprisoned there were (variously) sold to the US by bounty hunters, kidnapped by the CIA from countries where the US is not at war, or taken in combat against the US or its allies."

Indeed. And no one here heard of any of this stuff until you just informed us. Many thanks.

"You will read about them in the news from January 2002 onwards, and you will (it appears) pay no attention."

Indeed. Hilzoy pays no attention. Quite so. Clearly.

Interesting view of her "appearance." Who could argue? What evidence could one possibly use?

What I'd like to know is: what other decisions have they taken, based on their apparent belief that they can do literally anything they want?
If the answer isn't "none", I don't want to know. What I don't know can't hurt me.

What I don't know can't hurt me.

I'm going to prove you wrong... but you won't know when.

Jes, was "you" a collective, non-Hilzoy "you," or have you been reading too much Lenin? Gracious.

Jes, was "you" a collective, non-Hilzoy "you"

Nope. It was specifically directed at Hilzoy.

Jes: reply.

hey all you legal scholars, does this guy have a point ?

cleek: no. Robbins cites FISA sec. 1802 thus:

"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 he's referring 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 he 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."

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."

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' (who can, apparently, be US persons), 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) He's left off "as defined in section 1801(a)(1), (2), or (3) of this section", in other words the part that makes it clear that the corporations and associations in question do NOT include terrorist groups (who are under 1801(a)(4).)

(c) In what he goes on to say, he seems to assume that being an agent of a foreign power makes you stop being a US person. This is false.

There's probably more wrong with what he says, but this should do for now.

I it a useful rule that anything posted on NRO is presumptively wrong until proven otherwise.

hilzoy, thanks.

anything posted on NRO is presumptively wrong until proven otherwise.

i agree... but when it comes to law, i don't have the chops to back my gut feeling. that's why i come here! :)

Actually, I think I might front-page my comment, as another intellectual integrity watch thingo.

but when it comes to law, i don't have the chops to back my gut feeling. that's why i come here! :)

I see, but don't underestimate the ability of people to conveniently leave out pertinent portions of the statute, and wholly ignore regulations and case law.

Speaking of coming here, why was not ObWi nominated for best group blog? Was it the wholesale slaughter of the other nominees that would ensue?

"Speaking of coming here, why was not ObWi nominated for best group blog?"

In which poll? (I ignore all of them, so far, because no one ever nominates me,or at least votes in numbers larger than countable on a hand; when one gives me significant votes, it will clearly have become entirely perceptive and wise and attention must be paid.) (This is also the principle under which the BlogStreet 100 Most Influential Blogs is perfectly obviously the Best Blog Measure Evah!) (Much though I float up and down between #10 and #20.)

Good point gary, I'm thinking of the poll where redstate and tpmcafe were running neck and neck in the last week or so.

It's rather frightening to find ourselves with an Attorney General who really doesn't even bother to pretend to engage in anything resembling legal reasoning before advising the President that he can do whatever he pleases.

So former Acting CIA Director John McLaughlin (not the former Father John of Nixon fame, now known for his tv shows) was just on PBS Newshour pushing the line that because of terrorists constantly switching to new cellphones and such on a daily, or even more frequent, basis, FISA warrants can't be used to track them because you'd be asking for a new warrant for each terrorist each day, and it's not practical.

As I said on Sunday, tech and volume were starting to look like the Secret Origins here. (I need to do a new post on this; I wanted to wait for a bit of clarifying settling, and that's now happened.)

That actually seems to be a not-unreasonable point. The reponse, of course, is that Congress has to consider the problem, and make law to deal with. The President doesn't get to make up the law on his own.

"The President doesn't get to make up the law on his own."

Makes perfect sense to me. This post does as well ... it is eminently reasonable and erudite while being faithful to our constitutional system.

Unlike the current administration. Anyway, bravo Hilzoy. Excellent post.

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