2 thoughts on “Bush’s Defiant Defense of Absolute Presidential Power – Tikun Olam תיקון עולם إصلاح العالم
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  1. Generally, the Foreign Intelligence Surveillance Act (FISA) requires a warrant for the monitoring of U.S. persons on U.S. soil, but does not necessarily require a warrant for monitoring agents of foreign powers in similar circumstances. Keep in mind, this is intelligence monitoring, not wiretapping the phones of your local mafia hoodlums.

    According to 50 U.S.C. 1801, the definitions section of FISA, an agent of a foreign power is:

    b(1) any person other than a United States person, who—. . .

    acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States


    (b)(2) any person who. . .knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power. . . [or who] knowingly aids or abets any person in the conduct of activities described [herein].

    Note that there are two categories – intel agents of foreign powers, and terrorism agents of foreign powers. U.S. persons cannot be subjected to warrant-less monitoring under FISA in the traditional intelligence context. In stark contrast, U.S. persons who are engaged in terrorist activities (broadly defined, admittedly a civil liberties concern) may be defined as an agent of a foreign power. This is so because FISA clearly and unambiguously protects U.S. persons in one subsection discussing the pure intelligence context, yet in a parallel section relating to terrorism extends the definition of agent of a foreign power to “any person” – in other words there are strong textual and structural arguments that show the Congress believes that U.S. person status is irrelevant in the counterterrorism context. This is not the atrocity under the 4th Amendment that it might seem to be; the keystone of all 4th Amendment tests is reasonableness, and the Court hasn’t exactly examined this particular question in any great depth, so Congress was basically free to speak it’s mind on this issue.

    The power to monitor without warrant under FISA, even for U.S. persons involved in terrorism, is not unfettered.

    In addition to existing restrictions under Executive Order 12333 and other internal limits, FISA states in 50 U.S.C. 1802 that, “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 . . .”

    Got that? The definitions portion of FISA (sec. 1801) defines an agent of a foreign power to include people believed to be involved in terrorist operations, regardless of U.S. person status – a broader classification than the traditional pure intel definition of agent of a foreign power. The Act then goes on to provide for a presidential and AG certification / approval process for monitoring the communications of such persons – which sounds a lot like what Bush was describing in his speech today. There are also procedures for notifying the courts and congressional overseers – two other procedures Bush invoked in his speech.”

    It’s interesting (and revealing) to note that apparently (need to qualify these things) the Clinton Administration agreed with your general reading of FISA and with this Bush policy.

    In a 2000 US district court decision (US vs Bin Laden)


    the Clinton Administration argued, inter alia, that for intelligence gathering purposes that the government may monitor communications of foreign agents without a search warrant.

    See in particular, Section II, entitled:

    “An Exception to the Warrant Requirement for Foreign Intelligence Searches”

    In this ruling cited above, we see the following important passage:

    “Circuit courts applying Keith [that’s the FISA law] to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States that target foreign powers or their agents.”

  2. I’m not an attorney and so found it hard to follow your argument. I can’t tell whether you were merely expounding on points in my post or disagreeing with my argument. I’d find it easier if you could distill this comment into a clear cut summary.

    Are you arguing essentially that FISA does not require warrants for U.S. citizens who are defined as agents of a foreign power?

    From what I could follow I’d say this–you speak mostly about FISA and my posts about the NSA scandal don’t deal w. FISA per se (except as I compare it to Bush’s presidential order). While I have serious problems w. the secrecy involved in FISA related judicial decisions, the NSA situation is a pure & utter disaster.

    My problem with the NSA program is that there were no defined criteria for who would be monitored until Bush got wind of the NYT article last yr. Only then did they get around to creating some oversight of the program with criteria for monitoring. But Bush has never defined what the criteria are nor the precise nature of the oversight the program receives.

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