Monday, December 19, 2005
From a reader
...who has an intel background --
All true.
But in section 1802, the law limits the presidential authority to those defined in subparagraphs 1-3 here. Paragraph 4, the one mentioning terrorism, is not included. To wit:
Which means that the Federal Government's position would have to be that Al Qaeda is either "a foreign government or any component thereof," "a faction of a foreign nation or nations, not substantially composed of United States persons," or "an entitity that is openly acknowledged by a foreign government or governments to be directed and controlled by a such foreign governments.
I think we can rule out #3.
So then, Al Qaeda would have to meet the definition of number 1 and/or number 2.
You could argue #1 if you wanted to argue that since Mullah Omar was still at large, Al Qaeda are acting as the agents of a head of state, of sorts -- an argument that stretches credulity. Al Qaeda existed before Bin Ladin was invited to Afghanistan, and exists quite independently of the Taliban.
A better case might be made if Bin Ladin or Zawahiri proclaimed a new Caliphate by name, and anointed themselves some position in it. They did come close by naming Zarqawi an "emir."
Number 2 could be argued thus: Al Qaeda is obviously a faction of a foreign nation or nations: It's a violent faction of both Iraq and Afghanistan, in the same way that the IRA Provos are -- or were -- a violent faction of both Ireland and the UK.
Ok, I'll buy that. And if Al Qaeda is a violent faction of a foreign country, then the President can assert his powers under the FISA law.
Splash, out
Jason
I hope to ease your mind on this issue, though you did say you weren't all that bothered by it.
I would point you to Captain Ed's rundown on the issue: http://www.captainsquartersblog.com/mt/archives/005964.php
Based on a read of FISA regulations, you are a bit off base when you say you cannot make an intellectually honest argument that these were valid, since the targets were not agents of a "foreign government". The actual term is not "foreign government", but "foreign power".
FISA (http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36.html) states in Ch 36.I.1801.a.4 that a "foreign power" can be defined as "a group engaged in international terrorism or activities in preparation therefor", and Ch 36.I.1801.b.2.C states that an "agent of a foreign power" can be a person who "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power".
If it were solely about being an "agents of a foreign government" then your misgivings would be correct. But it appears that the administration did everything by the book, to include notifying both Congress and the FISA court.
Unfortunately the story is being spun, as well as being presented incorrectly out of ignorance (like my local news), as the US govt randomly listening to everyones phone calls looking for terrorist activity. But in reality, the targets only became so based on their information (phone #, email, address) being found in the possession of a group/individual engaged in international terrorism or activities in preparation therefor.
All true.
But in section 1802, the law limits the presidential authority to those defined in subparagraphs 1-3 here. Paragraph 4, the one mentioning terrorism, is not included. To wit:
As used in this subchapter: (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.
Which means that the Federal Government's position would have to be that Al Qaeda is either "a foreign government or any component thereof," "a faction of a foreign nation or nations, not substantially composed of United States persons," or "an entitity that is openly acknowledged by a foreign government or governments to be directed and controlled by a such foreign governments.
I think we can rule out #3.
So then, Al Qaeda would have to meet the definition of number 1 and/or number 2.
You could argue #1 if you wanted to argue that since Mullah Omar was still at large, Al Qaeda are acting as the agents of a head of state, of sorts -- an argument that stretches credulity. Al Qaeda existed before Bin Ladin was invited to Afghanistan, and exists quite independently of the Taliban.
A better case might be made if Bin Ladin or Zawahiri proclaimed a new Caliphate by name, and anointed themselves some position in it. They did come close by naming Zarqawi an "emir."
Number 2 could be argued thus: Al Qaeda is obviously a faction of a foreign nation or nations: It's a violent faction of both Iraq and Afghanistan, in the same way that the IRA Provos are -- or were -- a violent faction of both Ireland and the UK.
Ok, I'll buy that. And if Al Qaeda is a violent faction of a foreign country, then the President can assert his powers under the FISA law.
Splash, out
Jason
Comments:
We may be getting a little wrapped around the axel (so to speak) with our absolute applications of the English language. Al Qaeda is not a foreign government, per se, but is essentially the same as one in this context.
Perhaps we should give them a country so that they fit neatly into our arbitrary definintion of who we can spy on without a warrant.
Hillman
Perhaps we should give them a country so that they fit neatly into our arbitrary definintion of who we can spy on without a warrant.
Hillman
# posted by 
: 4:03 AM
: 4:03 AM
You appear to be quoting Glenn Greenwald, who clearly isn't quoting section 1802 of FISA. The words you quote come directly from his blog and are found nowhere in section 1802, as you can see by reading the statute yourself.
Furthermore, section 1805 contains a phrase which appears to me to be a loophole that allows unlimited warrantless surveillance of "United States persons" (as defined in section 1801) so long as the evidence obtained is never used against them in any proceeding except when the Attorney General finds compelling reasons to do so per the language in that section (lives at risk, etc.)
Finally, the FISA court, which has been apprised of these activities all along has voiced only one objection (so far as is known), namely that the evidence obtained will not be used in any warrant against a United States person.
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Furthermore, section 1805 contains a phrase which appears to me to be a loophole that allows unlimited warrantless surveillance of "United States persons" (as defined in section 1801) so long as the evidence obtained is never used against them in any proceeding except when the Attorney General finds compelling reasons to do so per the language in that section (lives at risk, etc.)
Finally, the FISA court, which has been apprised of these activities all along has voiced only one objection (so far as is known), namely that the evidence obtained will not be used in any warrant against a United States person.
