This whole kefluffle is about “foreign intelligence”.

“An intelligence official who was authorized to speak only on the condition of anonymity said,  It s probably the most scrutinized program at the agency. The official emphasized that people whose communications were intercepted under the special program had to have a link to Al Qaeda or a related group, even if indirectly [...]”

“[...] officials who have been granted anonymity in describing the program because it is classified say the agency s recent domestic eavesdropping is focused on a limited group of people. Americans come to the program s attention only if they have received a call or e-mail message from a person overseas who is already suspected to be a member of certain terrorist groups or linked somehow to a member of such groups. And the agency still gets a warrant to intercept their calls or e-mail messages to other people in the United States.”

It’s a non-story jiggered up by the NYT to sell a book and those out on the impeachment limb have a long way back to climb.

I believe that the government has a right to wiretap, eavesdrop on or physically search an American citizen as long as the law enforcement agency involved can prove to a judge that it has probable cause for using such invasive investigative techniques. You’ll notice that is exactly what FISA makes possible, even to the extent that the AG can get a warrant retroactively, 72 hours after the tap has been initiated. The important thing is that there is a check on the power of the government to invade the privacy of an American citizen. It’s all about checks and balances. That’s it. It’s that simple. There is absolutely no reason for the Bush administration to side step the system of checks and balances in place. None whatsoever. Not timeliness, not secretiveness, nothing. Which is why its decision to get around the checks in place is so suspicious.

Randy –

First of all, the court in United States v. Truong Dinh Hung, 4th Cir. 1980 “actually applied pre-FISA standards to review warrantless electronic surveillance conducted before the statute’s enactment.” In 1983, the Justice Department “advised Congress that “the logic of [Truong] has little vitality after the enactment of” FISA.”

Second, Hung was not an American citizen. The Hung decision was, as far as I understand, focussed entirely on surrveilance of agents of foreign powers. Which is why the court specifically cited “foreign intelligence information.”

“The court in Truong held that “the executive branch should be excused from securing a warrant only when the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” 629 F.2d at 915. By “foreign intelligence reasons,” the court meant reasons other than conducting a criminal investigation or prosecution. Thus, the court upheld the electronic surveillance in question because its purpose “was to determine Truong’s source or sources for government documents” so that the U.S. government could stanch the flow of classified information to the government of Vietnam. Id. at 916. The court held, however, that warrantless surveillance was not permitted “once surveillance becomes primarily a criminal investigation,” or “when the government is primarily attempting to form the basis for a criminal prosecution.” Id. at 915.1″

The questions remaining after Hung was whether foreign intelligence could be used in criminal investigations, a question that was, I beleive, settled with a provision in the Patriot Act.

http://www.fas.org/irp/agency/doj/fisa/092502sup.html

that “the executive branch should be excused from securing a warrant only when the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” 629 F.2d at 915. By “foreign intelligence reasons,” the court meant reasons other than conducting a criminal investigation or prosecution. Thus, the court upheld the electronic surveillance in question because its purpose “was to determine Truong’s source or sources for government documents” so that the U.S. government could stanch the flow of classified information to the government of Vietnam. Id. at 916. The court held, however, that warrantless surveillance was not permitted “once surveillance becomes primarily a criminal investigation,” or “when the government is primarily attempting to form the basis for a criminal prosecution.” Id. at 915.1

1 The court in Truong did not distinguish between ordinary prosecutions (e.g., of an ordinary American citizen for homicide) and prosecutions of an agent of a foreign power to protect against espionage or terrorism.

Randy –

Note the phrase “foreign intelligence information.” . Truong Dinh Hung was nto a US citizen.

The other operative definition in that section of the law is not “agent of a foreign power” it is “United States person”:

“(ii) there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person;”

United States person is defined as follows:

“(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.”

Again the law specifically limits the disqualifying criteria to a person’s affiliation with nation states [(a)(1), (2), or (3)] and specifically excluding the definitions of foreign powers that pertain to terrorist groups. The reason I believe is because only a judge can make the final decision regarding the probably cause as to whether a United States person falls under the category of foreign agent. That’s the check on the power of the executive (through the attorney general) that FISA put in place and that Bush stepped around.

His resignation was in response to events surrounding his duties on the FISA court.

Its funny how is outrage goes only as far as the guarantee of his lifetime job and pension. An empty move that took no courage or conviction.

Funny how the judge didn t resign from his lifetime seat, only his seat on the FISA court.

What’s “funny”?

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

I’m no lawyer, but this seems to the point -

November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:

“The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], 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. *** 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.”

OK, now I see the argument you are making regarding specific limitation to the previous executive orders. You are correct.

That gives us an interesting comparison for the potential legality of the current activities. Would you agree that someone living in America could be considered an “agent of a foreign power” and therefore subject to a warrentless search under the specified limitations in the law if the executive order was written a little differently?

Dugger

If he’s a Clinton appointee, then his motives are immediately suspect. Is that it?

Wait a minute. Never mind.

You did quote the wrong section of the law. You quoted the difinition of Foreign agent but that has no bearing on the first criteria the AG has to meet to go ahead with a warrantless search. The AG can only order a warrantless search if the “premises, information, material, or property used exclusively by, or under the open and exclusive control of, a FOREIGN POWER or POWERS.” You cite the definition for FOREIGN AGENT but that doesn’t matter. Again, the premises, information, material or property have to used exclusively by a FOREIGN POWER. That’s the first criteria that has to be met with Foreign Power and Foreign Agent defined differently. The only definitions that matter in the first criteria for a warrantless search are the definitions in 1801 (a)(1), (2), or (3):

(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;

You will furthernote that these three definitions are different from the three other definitions of a foreign power which specifically refer to terrorist groups:

(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.

You cited the wrong section of the law.

First off JWG you’re quoting the wrong section of the law. The attorney general has to certify that the search pertains to the “premises, information, material, or property used exclusively by, or under the open and exclusive control of, a FOREIGN POWER or POWERS (as defined in section 1801 (a)(1), (2), or (3) of this title).” A foreign power is different from an agent of a foreign power. If you want to cite the correct section of the law you have to cite 1801 (a)(1), (2), or (3).

Second, the attorney general has to certify that “there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person;” So the porperty of a United States person cannot be a part of the search without a warrant.

Next, you failed to quote the entire definition of foreign agent. The part you left out:

(b)  Agent of a foreign power means
(1) any person other than a United States person, who
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or …”

Note that “any person other than a United States person, who ”

Further note that “subsection (a)(4) of this section” refers specifically to membership in terrorist organizations:

“(4) a group engaged in international terrorism or activities in preparation therefor;”

So even if an American citizen is a member of al-Qaeda they aren’t automatically considered a foreign agent for the purposes of FISA searches.

you re quoting the wrong section of the law

Nope. It is directly referenced from the ThinkProgress citation under “Definitions.”

So the porperty of a United States person cannot be a part of the search without a warrant.

Unless that person is an “agent of a foreign power” as defined in the same legislation.

you failed to quote the entire definition of foreign agent

I left it out because it didn’t matter…that section has TWO parts. I quoted the second part since it begins “Any person who” which includes a United States person.

Further note that  subsection (a)(4) of this section refers

Does a person have to meet EVERY point or just one point? If a person doesn’t meet the criteria for the subsection you reference why would that negate all other criteria?

Psst. Psst. Don t tell anybody but Robertson was a Clinton appointee.

And you think that is noteworthy for what reason?