Take a Deep Breath
If you’re one of those getting your knickers in a twist over the fact that President Bush authorized the NSA to “spy on American citizens,” then I beg you to take a deep breath and read this article by James Robbins very carefully. And that goes double for anyone who was also throwing around the word “treason” at the height of the Joseph Wilson hysteria. The press should be just as anxious to know who tipped off the New York Times, and thus the world, about this secret program of eavesdropping as it was to learn the details of the Wilson leak. It seems much more critical to national security to keep secret exactly which conversations between al Qaeda operatives are being intercepted than to hide the fact that Joseph Wilson’s wife is the one who sent him to Niger.
Bottom line: the Foreign Surveillance Intelligence Act (FISA) explicitly authorizes the President to approve electronic surveillance without a court order. The New York Times has now revealed under what circumstances and how often it has actually been authorized since 9/11. As Robbins explains:
So how do the revelations in the Times help the terrorists? Think it through — if you were a terrorist and you believed (as most people seem to) that the NSA would ignore your communications if they crossed U.S. borders, your best move would be to set up communications relay stations inside the U.S. Terrorists are well known for their ability to find and exploit loopholes in our laws, and this would be a natural. For all we know our intelligence agencies have been exploiting these types of communications for years without the terrorists knowing it. Now they will fall silent, because now the bad guys know better. So New York Times writer James Risen will sell his book, the Times will increase circulation, politicians will beat their breasts and send out fundraising letters, and who will pay in the end?
You can answer that one.
related articles
- The War Within (July 1st, 2007)
- Five Years Later: Americans Trapped in Saudi Arabia (June 27th, 2007)
- Anti-immigrant Immigrant? (June 13th, 2007)
- WorldNetDaily: Elrod v. Thompson (June 11th, 2007)
- The Price of GOP Control (October 27th, 2006)
December 20th, 2005 at 12:37 am
Right or wrong, President Bush is not the first to authorize wiretaping phone w/o search warrant. I think the big uppraor at the NY Times clearly shows their heavy bias against the President, which means their reporting was more self-serving than anything.
So is it right or wrong? I don’t care, I don’t have anything to hide. They can wiretap my phone and what they will find is that the little time I spend talking on the phone will be time of great boring conversation :-).
December 20th, 2005 at 11:07 am
Do forgive me if I’m speaking out of bad information, but isn’t the dispositive issue here that it’s not FOREIGN surveillance? The Article I branch is not liberated from Article III checks and balances for domestic violations of the 4th Amendment quite yet. I mean, sure, the 4th Amendment barely keeps breathing, but it’s still in there, that crazy ole Bill of Rights, so inconvenient.
December 20th, 2005 at 11:42 am
First, according to the reports I’ve seen, this is about intercepting communications that cross the border and involve agents of al Qaeda (a “foreign power” under the statute). In what sense are such international communications “not foreign?” In what sense would they not constitute “foreign intelligence” under the statute?
Second, as you know, the Fourth Amendment does not prohibit all warrantless searches — certainly not warrantless searches for the purpose of gathering foreign intelligence rather than evidence for criminal prosecution.
December 20th, 2005 at 2:05 pm
I’m surprised that you feel this way from your originalist stand point.
The 4th A on its face does not limit itself to criminal investigations. As you point out, it’s not absolute, but limits “unreasonable searches and seizures.” It’s blackletter law for a lL that this is governed by the “reasonable expectation of privacy.” Surely you’ll concede that American citizens have a REOP when they are on their own telephones, so that the government must have probable cause to intrude.
As I understand it, some of these taps were of American citizens calling from within the borders to overseas recipients. How can you argue that that is not domestic? American citizens using the telephone within the United States surely enjoy protection from secret government intrusion without a finding of probable cause.
The President’s response to that is that his executive branch did make such a finding. That’s what scares me more than anything else. When a President feels like he can circumvent Article III courts, it usually means that he’s concerned that they won’t lean his way, not that he has adequate power. He’s afraid to lose his tool, so he creates a way around the constitutional barrier erected to keep him from doing just that. I’m not really so concerned about the 4th Amendment as I am separation of powers.
December 20th, 2005 at 2:30 pm
I gotta go with Rex on some of this. My conversations would be mighily boring and so I’m not concerned personally. The “tension” we have to balance here is security vs. freedom. Of course, right after 9/11 everybody was yelling “Security! Security!” but now a few years later we seem to have forgotten that security of the type that keeps the bad guys from bombing and running into our tall buildings with planes might impinge on some of our freedoms. I’m not a fan of the President, but I can’t fault him in this IF it is to keep us secure. IF it morphs into something else, I have faith in Congress and the American people to cry “Uncle!” Right now the only ones doing that are the press and the Libertarians. I think it’s something to keep an eye on, but not something to get in a wad about.
December 20th, 2005 at 4:11 pm
This may be off-topic a bit, but I am always amused when Leftists get upset about things like this and scream about invasions of privacy, but have nothing to say when the IRS wants to look at my personal bank statements for the past three years!
You want to cry about an invasion of privacy? I would rather the Feds listen to my phone calls to Iran track my every dollar spent.
Until the left gets on board with making IRS audits illegal without probable cause, then I have no problem with them being outraged that Mohammed and Abdul are being listened to while they chat…
My two cents.
December 20th, 2005 at 4:12 pm
Edit from previous comment: Insert “than” between “Iran” and “track” in the second sentence of the second paragraph.
Carry on…
December 20th, 2005 at 4:15 pm
Security vs. Freedom
They both can become idols!
December 20th, 2005 at 9:19 pm
JRB said…
No, I won’t. Not if they are engaging in international communications with a foreign power or an agent of a foreign power. By the way, you have a much greater expectation that the privacy of your home will be free from physical intrusion by government agents conducting secret searches. And yet, “the Clinton administration argued that the president has ‘inherent authority’ to order physical searches — including break-ins at the homes of U.S. citizens — for foreign intelligence purposes without any warrant or permission from any outside body.” This power was actually exercised in the Aldrich Ames case.
All international postal mail is subject to warrantless search at the border (United States v. Ramsey). Why should email or phone calls be any different?
I didn’t. I asked you in what sense the communications would be “not foreign” or would not contain “foreign intelligence information,” which is, according to subsection (e)(1)(B), “information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against sabotage or international terrorism by a foreign power or an agent of a foreign power.”
Of course there is a domestic component as well as a foreign component to cross-border communications. The domestic component is the only reason FISA is relevant. FISA governs the domestic collection of foreign intelligence — not foreign collection. When the government eavesdrops on a conversation overseas, it doesn’t apply to the FISA court for a warrant.
I argued, or rather I referred to Robbins arguing, that FISA expressly authorizes warrantless domestic eavesdropping. To be more precise than Robbins, I think FISA expressly authorizes warrantless electronic surveillance when both parties are agents of foreign powers and neither is a U.S. person. It’s unclear, but some of the cases being discussed may well be in that category.
For those cross-border communications where one party is a U.S. person, the case that FISA authorizes it is weaker, but one might argue that where the U.S. person has become the agent of a foreign power, it might still be authorized. But, even if the statute doesn’t authorize such collections, what prohibits it?
It’s not a question of “circumventing” courts. That implies that the courts have tried to stop the activity and are being ignored. Where is the evidence of that?
I am interested in finding out, to the extent we can get some declassified descriptions of these cases, why these were treated differently. I suspect they probably didn’t go the FISA route because they didn’t think they had the time to put together evidence to meet the standard on an individualized showing for a particular phone number. Remember that Moussaoui leads were not followed as vigorously as they could have been because of worries that they couldn’t meet the FISA standard of probable cause to believe that he was an agent of a foreign power.
I think you need to recognize the practical considerations here. Say you capture a mid-level or high-level al Qaeda operative. There’s reason to believe he was involved in coordinating an operation against the U.S. He has a cell phone filled with phone numbers.
What do you do with those numbers?
Do you start an in-depth investigation of who all those numbers belong to? Of course. Do you wait until that investigation is mature enough to give you probable cause to believe that any particular individual user of those numbers is an agent of a foreign power? Or do you immediately begin collecting foreign intelligence from the calls to and from those numbers in hopes of thwarting an ongoing plot? What if a U.S. person calls one of those numbers? Ignore it? What if that U.S. person is in on the plot?
This is not new. We have always monitored the communications of our enemies in war without asking a court’s permission first. If our enemies are communicating with U.S. persons, guess what — those communications are going to get captured. It always has been and always will be thus.
This is war, not cops and robbers.