“The FISA statute was created precisely because of the domestic wiretapping “for national security purposes during a time of war (Vietnam)” by Richard Nixon. FISA specifically was Congress’ check on the president’s surveillance powers. Bush ignored FISA as surely as Nixon ignored the existing laws when he conducted domestic wiretaps. Nixon had to resign because of it, A.J. Are you now saying that what Nixon did was legal?”
_____

Not quite: President Nixon’s abuse was allegedly in ordering wiretaps of political opponents and others on a so-called “enemies list.” That is, his personal/political enemies, not enemy agents of foreign governments or groups.

That his DOJ additionally used wiretaps, without probable cause, on US citizens active in radical groups such as SDS, etc., earned Nixon and John Mitchell censure; but where the “enemies list” surveillance might constitute an impeachable offense, the radical-groups surveillance was mere overzealousness. But note, these groups’ members were not listed in foreign enemy address books, and they were not tracked or discovered via surveillance of enemy agents.

Similar to Nixon’s “enemies list” abuses, as reportedly disclosed in the Barrett Report which is being held in lock-down by Senate Democrats, President Clinton used IRS audits and other federal investigative strategies to take the starch out of his political critics.

That Clinton’s IRS-audits-gambit was a straight-up equivalent of Nixon’s “enemies list” tactics, does not negate the Clinton Administration’s rightful claim, argued on identical points by Jamie Gorelick, Clinton’s Deputy Attorney General, to the same constitutional authority the Bush Administration asserts in the current NSA-FISA kerfuffle.

A big difference between the Clinton & Nixon Administrations, and the Bush Administration, is that President Bush has not attempted to claim or use his constitutional authority as a handy sap for mugging political opponents, as those two former presidents did.

“FISA specifically was Congress’ check on the president’s surveillance powers…”

No. FISA was Congress’ check on illicit use of surveillance powers. Unfortunately, the FISC fell into the overreaching hands of judicial activists who are apparently suffering from little Napoleon complexes: ONE warrant modification in eight years of Clinton applications, versus 179 modifications/denials in five years of Bush applications.

If another reason is needed to justify sidelining this court, try this one: MOUSSAOUI, August 22, 2001.

How did this departure from the established pattern of clear limitation to transactional information occur? I suggest that a clue is to be found in Congress’s rejection of the Administration’s proposal for “administrative subpoena” authority to obtain business records. n141 Congress rejected that proposal in favor of the 215 language, apparently concluding that the requirement of a court order in 215 was more protective of privacy interests. n142 In the process it may have felt that the involvement of a neutral magistrate made a limitation on the type of information less important. There are, however, some hints in the text of 215 that elements of the “administrative subpoena” proposal were simply inserted into the existing FISA business records provision. For example, the phrase “production of any tangible things (including books, records,
papers, documents, and other items)” n143 closely tracks language in the Attorney General’s administrative subpoena authority for use in drug investigations, which requires “production of any records (including books, papers, documents, and other tangible things).” n144 If so, Congress might have thought it was prescribing the kind of limited scope found in the administrative subpoena authorities.

Whatever the provenance of the 215 text, abandonment of the administrative subpoena option foreclosed one proven path to securing constitutionally permissible access. Administrative subpoenas have long been available to executive branch agencies, and they now exist in at least 335 [*61] different forms. n145 There is a substantial body of case law approving the use of administrative subpoenas, including Supreme Court decisions establishing general standards. n146 A key feature of administrative subpoena authority is its bifurcation of the authority to issue (held by the agency) and
the authority to enforce (held by a court). n147 This arrangement may facilitate testing the proper scope of a particular subpoena authority in court (provided the target whose records are obtained is given notice), especially if the authority is applied in a novel or controversial context. n148 Despite the diversity of administrative subpoena authorities, moreover, the distinct enforcement role of the courts, coupled with internal agency guidelines on subpoena use, dissemination of information, and compliance with other privacy or notice requirements, are effective mechanisms to police the use of
administrative subpoena authority. n149

Unlike authorities for administrative subpoenas, national security letter authorities do not include explicit enforcement mechanisms. n150 If the recipient of a national security letter refuses to comply, the government must approach a federal court for enforcement. n151 There are no reported decisions indicating that this has occurred, but if it did happen, the court could draw on existing administrative subpoena case law to resolve questions of scope and proper use. n152

[*62] In contrast to the administrative subpoena authority sought by the Administration, the language of 215 seems to rule out an easy test of its scope. Under 215 a records custodian immediately receives a FISA Court order to provide government access to “tangible things,” so failure to comply does not trigger an enforcement proceeding, but instead places the recipient in peril of being held in contempt. n153

SBD

Article: Counterintelligence and Access to Transactional Records: A Practical History of USA PATRIOT Act Section 215

SBD

In the past, the FBI has encountered situations in which the holders of relevant records refused to produce them absent a subpoena or other compelling authority. When those records did not fit within the defined categories for National Security Letters or the four categories then defined in the FISA business records section, the FBI had no means of compelling production.

Communication from the FBI Office of the General Counsel to All Divisions, New Legislation, Revisions to FCI/IT Legal Authorities, Foreign Intelligence Surveillance Act (Oct. 26, 2001), attached to Letter from Assistant Attorney General Bryant to Senator Feingold (Dec. 23, 2002), available at http://fas.org/irp/agency/doj/fisa/doj-fisa-patriot-122302c.pdf.

SBD

Here is one example:

” [I]n 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

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. 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.
That is the current state of the law.

It was not a shock to learn that shortly after the Sept. 11 attacks, President Bush authorized the National Security Agency to conduct intercepts of international phone calls to and from the United States. The 1978 Foreign Intelligence Surveillance Act permits the government to gather the foreign communications of people in the U.S. — without a warrant if quick action is important. But the law requires that, within 72 hours, investigators must go to a special secret court for a retroactive warrant.

The USA Patriot Act permits some exceptions to its general rules about warrants for wiretaps and searches, including a 15-day exception for searches in time of war. And there may be a controlling legal authority in the Sept. 14, 2001, congressional resolution that authorized the president to go after terrorists and use all necessary and appropriate force. It was not a declaration of war in a constitutional sense, but it may have been close enough for government work.

Certainly, there was an emergency need after the Sept. 11 attacks to sweep up as much information as possible about the chances of another terrorist attack. But a 72-hour emergency or a 15-day emergency doesn’t last four years.

In that time, Congress has extensively debated the rules on wiretaps and other forms of domestic surveillance. Administration officials have spent many hours before many committees urging lawmakers to provide them with great latitude. Congress acted, and the president signed.

Now the president and his lawyers are claiming that they have greater latitude. They say that neither the USA Patriot Act nor the 1978 Foreign Intelligence Surveillance Act actually sets the real boundary. The administration (and AJ…!) is saying the president has unlimited authority to order wiretaps in the pursuit of foreign terrorists, and that the Congress has no power to overrule him.

“We also believe the president has the inherent authority under the Constitution, as commander-in-chief, to engage in this kind of activity,” said Attorney General Alberto Gonzales. The Department of Justice made a similar assertion as far back as 2002, saying in a legal brief: “The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that Constitutional authority.” Gonzales last week declined to declassify relevant legal reviews made by the Department of Justice.

Perhaps they were researched in a Star Chamber? Putting the president above the Congress is an invitation to tyranny. The president has no powers except those specified in the Constitution and those enacted by law. President Bush is stretching the power of commander-in-chief of the Army and Navy by indicating that he can order the military and its agencies, such as the National Security Agency, to do whatever furthers the defense of the country from terrorists, regardless of whether actual force is involved.

Surely the “strict constructionists” on the Supreme Court and the federal judiciary eventually will point out what a stretch this is. The most important presidential responsibility under Article II is that he must “take care that the laws be faithfully executed.” That includes following the requirements of laws that limit executive power. There’s not much fidelity in an executive who debates and lobbies Congress to shape a law to his liking and then goes beyond its writ.

Willful disregard of a law is potentially an impeachable offense. It is at least as impeachable as having a sexual escapade under the Oval Office desk and lying about it later. The members of the House Judiciary Committee who staged the impeachment of President Clinton ought to be as outraged at this situation. They ought to investigate it, consider it carefully and report either a bill that would change the wiretap laws to suit the president or a bill of impeachment.

I’m just saying…

COMMENTARY
© 2005 National Institute for Trial Advocacy

TITLE 50. WAR AND NATIONAL DEFENSE
CHAPTER 36. FOREIGN INTELLIGENCE SURVEILLANCE
ELECTRONIC SURVEILLANCE

OVERVIEW OF ELECTRONIC SURVEILLANCE

Prof. Daniel D. Blinka
Marquette University Law School
The National Institute for Trial Advocacy
Notre Dame Law School

The Foreign Intelligence Surveillance Act (FISA), 50 USCS §§ 1801-1811, broadly governs electronic surveillance conducted to acquire foreign intelligence information. The term “electronic surveillance” includes interception by “electronic, mechanical, or other surveillance device of the contents of any wire or radio communication.” 50 USCS § 1801(f)(1). Most importantly for present purposes, FISA also regulates video surveillance conducted for foreign intelligence purposes, including “silent video” that captures no aural communication. 50 USCS § 1801(f)(4).

Electronic surveillance under FISA can be initiated in one of two ways. Section 1802 permits the President, through the Attorney General, to authorize video (or other) surveillance, subject to stringent limitations and reporting requirements. More commonly, designated federal officers, with the Attorney General’s approval, may apply for an electronic surveillance order to a specially constituted court. The application’s contents must include a statement of facts that identify the foreign “target,” explain why it is believed that the place or facility to be monitored will yield information, and describe in detail the nature of the information sought and the activities to be monitored. 50 USCS § 1804(a). The applications must also propose “minimization procedures” which must, among other things, reasonably ensure that the video (or other) surveillance minimizes the acquisition and retention of “nonpublicly available information concerning unconsenting United States persons” in a way that is nonetheless “consistent” with the need to collect foreign intelligence information. The statute also prohibits the dissemination of such information. See 50 USCS § 1801(h).

Court orders must contain detailed findings and instructions regarding the scope of the video (or other) surveillance, including its duration and the minimization procedures that must be followed. The order may authorize agents to enter property in order to set up the surveillance equipment. For example, agents might “sneak” into a home, apartment, or office and install a hidden video camera, if so authorized. See 50 USCS § 1805.

Originally enacted in 1978, FISA included “roving surveillance” authority to deal with highly mobile persons who communicate through a variety of devices. In the wake of the September 11, 2001 terrorist attacks, the USA PATRIOT Act (Public Law 107-56) broadened FISA to facilitate the identification and monitoring of suspected terrorists. For example–

(1) Under 50 USCS § 1804, as amended, FISA orders may be issued whenever foreign intelligence gathering is “a significant purpose”; the former law limited FISA to situations in which such intelligence was “the purpose”.

(2) Under 50 USCS § 1805, the periods have been lengthened during which surveillance may be maintained on “non-United States persons,” who are foreign agents.

(3) Roving wiretaps under FISA are now governed by the same procedures that are found in 18 USCS §§ 2510 et seq.

(4) Orders authorizing pen registers or trap-and-trace devices under FISA no longer require proof as to how the target telephone is being used. Amended 50 USCS § 1842 permits such devices to be used in “any investigation to obtain foreign intelligence information not concerning a United States person [as defined in 50 USCS § 1801] or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment.”

SBD

Under our system, each branch of government exercises certain limiting authorities over the other two: the president appoints the justices who interpret the laws passed by congress which the president is constrained to uphold. It’s that circular system of “checks and balances” that keeps us from having a monarchy or dictatorship. Read Article II again, man. PLEASE! We as Americans cannot begin to take the Cuban view of executive authority. The Congress, remember, is the branch of government — the only one, by the way — that has the power to ADD TO THE CONSTITUTION — they can rewrite, with ratification from the states, the very document you assert gives the president supreme power! And if the courts ruled against the president in some instance, would you argue that they lack the power to do so — that they, too, cannot “limit his power”? Come on, AJ, you’re way too smart to believe that…

“The problem is how do we take legally gained intel on potential attaks (NSA, CIA, etc) and pass that as information for probable cause for law enforcement (FISA, DOJ, FISA).”

Amen, brother. A thousand times, Amen.

Well, if you are not aware of the constitution process, there is not much reason to continue this debate.

You need to knock all these cases down to make your case:

http://powerlineblog.com/archives/012631.php

Enjoy!

“Intelligence is not the same as evidence for prosecution. FISA deals with evidence for prosecution. And judges like Robertson decided they would play ‘omnipotent one’ and unilaterally decide intel could not be used as probably cause to start criminal investigations.”

I’m starting to think none of you has ever read the FISA law…

(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when—
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
(e)
(i) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, intercepted by means authorized by sections 2511 (2)(a)(ii), 2511 (2)(b)–(c), 2511(2)(e), 2516, and 2518 of this chapter,
(ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation,
(iii) having obtained or received the information in connection with a criminal investigation, and
(iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation,
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

“The Congress cannot enact a law to limit the President’s authority – that is clear. What you are tyring to claim, is he doesn’t have the power to monitor our enemies because FISA says so. ”

– My God, do you even know the first thing about the Constitution? Congress’ power to enact laws limiting the president’s authority is inherent in the tricameral form of government. In a monarchy, you’re correct, in a democracy, the Congress passes the laws, which the president is sworn to uphold — for example, FISA was passed precisely to limit the ability of future presidents to do what Nixon did: wiretap government employees, supposed “for national security purposes during a time of war…” The Courts also have ability to limit the president’s authority, by acting as the interpreter between the Congressional and executive branches. That’s civics 101

“Show where in the Constitution the President is barred from monitoring our enemies activities in a time of war.”

– He isn’t. He is barred by STATUTE from monitoring persons on domestic soil by the FISA Law. The Constitution gives the president the authority to COMMAND THE ARMED FORCES DURING WAR, and to direct intelligence gathering AGAINST FOREIGN POWERS in that pursuit. FISA covers the gathering of DOMESTIC intelligence. DOMESTIC… FOREIGN… note the difference…

“what you have to accept is the administration argument is valid, and then you have to counter it.”

– hang on, I have to accept that the administration’s argument is VALID and then counter it? HUH????

And now a point: the Truong case was decided BEFORE the FISA law was enacted. It didn’t deal with the FISA statute at all and is therefore irrelevant. If this were 1978, and we were still in the gray area between Nixon’s declaration — identical to Bush’s — that his inherent wartime powers allow domestic surveillance (or as Mr. Nixon put it, allow him to trangress laws in a way that would otherwise be illegal) Truong might matter. But as ThnkProgress put it so well:

The Truong case was decided in 1978 — the same year FISA was passed — and did not deal with the FISA law. As the court noted right before the excerpt, “Truong dealt with a pre-FISA surveillance… it had no occasion to consider the application of the statute…” The Truong case dealt with the President’s power in the absence of a congressional statute.

This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet, “where the president is acting contrary to congressional authority…the president’s authority is at its lowest ebb.”

The article also conveniently omits the two sentences after the excerpt:

It was incumbent upon the [Truong] 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. The question before us is the reverse…

All the court is saying here is that whether FISA imposes limits on the President’s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains, “[T]he question before us is the reverse.”

…so long as I’m “on my way out the back door…”