Thursday, January 05, 2006
Splitting hairs ...
A reader writes in:
It’s really this part of 50 USC 1801 that is the controlling portion of the statute:
Note that subclauses (1) (3) and (4) (the pertinent parts) contain the phrase “a warrant would be required for law enforcement purposes.” These surveillances are not being undertaken for law enforcement purposes.
Warrants are needed when one intends to go to court and obtain a conviction. The prosecution we are undertaking is markedly different.
My response: As for as the phrase "and a warrant would be required for law enforcement purposes," I think I disagree with your reading. The language uses the SUBJUNCTIVE mood, "would be," rather than "is." The language therefore does not assume that the surveillance is, in fact, used for law enforcement purposes. Rather, the law seems to require that the threshold we use for domestic interception of domestic-to-domestic calls - already established through lots of mobster court cases - be applied to national security related surveillance as well, if all parties are "known US persons."
i.e., "Regardless of the purpose of the surveillance, if you would need a warrant for law enforcement purposes, you would ALSO need a warrant for an intelligence-related surveillance, as well." In other words, what's good for the FBI is good for the NSA. The two agencies must abide by the same rules when it comes to monitoring US persons within the US."
Had Congress intended to require that the law ONLY require warrants if the intent is to pursue a criminal prosecution, then one would think Congress would have made that more explicit. For example, "If the surveillance is for the purposes of law enforcement, then warrants are required." The subjunctive mood would be absent in such a provision.
At any rate, at least one guy - the guy who plotted to blow up the Brooklyn Bridge, was prosecuted in part on the basis of these interceptions, and is no doubt working up an appeal.
As for the rest of the language in the statute, . I'm not a lawyer, of course, but it does seem that subparagraph 1), the most restrictive of government, still relies on the term "United States person," does it not? And the term "United States person" still excludes associations which are agents of foreign powers, no? And the definition of foreign power, or agent of a foreign power, still includes a violent foreign sect "not substantially composed of U.S. persons," no? And in that same paragraph, there is no particular requirement that that "sect" also be a state, correct? If all is true, then it comes down to whether Al Qaeda would qualify as a sect "not substantially composed of US persons." (But if the definition of "US person" excludes members of Al Qaeda, then it CANNOT be substantially composed of US persons, no matter how many it has, because they disqualify themselves by virtue of membership in the association, no?)
Further, the law specifies, in subpar 1), that the individual whose comms are being intercepted be "a known United States person." That's quite a different standard from "a possible United States person," si? If you were to carry out a surveillance op to the letter of the law, it would seem to allow you to tap a phone from a known Al Qaeda agent to an unknown individual until you can rule out his status as an agent. At that point, though, he would become a "known United States person," once you confirmed his residency or citizenship status (student Visas and temp visas don't qualify), he would be entitled to some protection.
The paragraph additionally says that the United States Person be "intentionally targeted." Which would exclude incidental events, such as when a US resident who is not targeted calls someone who is, right? And would also exclude an instance when a targeted person calls a nontargeted person. If the contents are acquired under one of the two circumstances above, then the incident does not qualify under paragraph i, right?
The other grafs rely on the construction "reasonable expectation of privacy." Is it really established that people on phone calls to Al Qaeda members - and to Afghanistan generally - really have a "reasonable expectation of privacy?"
Paragraph 2 says that acquisition from outside the US is fair game. So under the statute, you can tap anyone. But does this law pass constitutional muster? That would appear to be a separate question. If the technology exists to tap phone communications from outside the US - even domestic to domestic conversations, then does the 4th amendment retain any meaning WRT phone conversations for any of us? Otherwise Big Brother can listen in on any phone conversation, anywhere, so long as it's done from outside the country (but paragraph 1 limits that exposure, so maybe there isn't a constitutional issue after all.)
Paragraph 3: Expectation of privacy for a radio communication? Are they on crack??? But if one party is outside the country, then all is fair in love and other forms of war.
Splash, out
Jason
It’s really this part of 50 USC 1801 that is the controlling portion of the statute:
(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Note that subclauses (1) (3) and (4) (the pertinent parts) contain the phrase “a warrant would be required for law enforcement purposes.” These surveillances are not being undertaken for law enforcement purposes.
Warrants are needed when one intends to go to court and obtain a conviction. The prosecution we are undertaking is markedly different.
My response: As for as the phrase "and a warrant would be required for law enforcement purposes," I think I disagree with your reading. The language uses the SUBJUNCTIVE mood, "would be," rather than "is." The language therefore does not assume that the surveillance is, in fact, used for law enforcement purposes. Rather, the law seems to require that the threshold we use for domestic interception of domestic-to-domestic calls - already established through lots of mobster court cases - be applied to national security related surveillance as well, if all parties are "known US persons."
i.e., "Regardless of the purpose of the surveillance, if you would need a warrant for law enforcement purposes, you would ALSO need a warrant for an intelligence-related surveillance, as well." In other words, what's good for the FBI is good for the NSA. The two agencies must abide by the same rules when it comes to monitoring US persons within the US."
Had Congress intended to require that the law ONLY require warrants if the intent is to pursue a criminal prosecution, then one would think Congress would have made that more explicit. For example, "If the surveillance is for the purposes of law enforcement, then warrants are required." The subjunctive mood would be absent in such a provision.
At any rate, at least one guy - the guy who plotted to blow up the Brooklyn Bridge, was prosecuted in part on the basis of these interceptions, and is no doubt working up an appeal.
As for the rest of the language in the statute, . I'm not a lawyer, of course, but it does seem that subparagraph 1), the most restrictive of government, still relies on the term "United States person," does it not? And the term "United States person" still excludes associations which are agents of foreign powers, no? And the definition of foreign power, or agent of a foreign power, still includes a violent foreign sect "not substantially composed of U.S. persons," no? And in that same paragraph, there is no particular requirement that that "sect" also be a state, correct? If all is true, then it comes down to whether Al Qaeda would qualify as a sect "not substantially composed of US persons." (But if the definition of "US person" excludes members of Al Qaeda, then it CANNOT be substantially composed of US persons, no matter how many it has, because they disqualify themselves by virtue of membership in the association, no?)
Further, the law specifies, in subpar 1), that the individual whose comms are being intercepted be "a known United States person." That's quite a different standard from "a possible United States person," si? If you were to carry out a surveillance op to the letter of the law, it would seem to allow you to tap a phone from a known Al Qaeda agent to an unknown individual until you can rule out his status as an agent. At that point, though, he would become a "known United States person," once you confirmed his residency or citizenship status (student Visas and temp visas don't qualify), he would be entitled to some protection.
The paragraph additionally says that the United States Person be "intentionally targeted." Which would exclude incidental events, such as when a US resident who is not targeted calls someone who is, right? And would also exclude an instance when a targeted person calls a nontargeted person. If the contents are acquired under one of the two circumstances above, then the incident does not qualify under paragraph i, right?
The other grafs rely on the construction "reasonable expectation of privacy." Is it really established that people on phone calls to Al Qaeda members - and to Afghanistan generally - really have a "reasonable expectation of privacy?"
Paragraph 2 says that acquisition from outside the US is fair game. So under the statute, you can tap anyone. But does this law pass constitutional muster? That would appear to be a separate question. If the technology exists to tap phone communications from outside the US - even domestic to domestic conversations, then does the 4th amendment retain any meaning WRT phone conversations for any of us? Otherwise Big Brother can listen in on any phone conversation, anywhere, so long as it's done from outside the country (but paragraph 1 limits that exposure, so maybe there isn't a constitutional issue after all.)
Paragraph 3: Expectation of privacy for a radio communication? Are they on crack??? But if one party is outside the country, then all is fair in love and other forms of war.
Splash, out
Jason
Comments:
Had Congress intended to require that the law ONLY require warrants if the intent is to pursue a criminal prosecution, then one would think Congress would have made that more explicit.
If one would think Congress is, would be, or ever has been capable of writing laws that foresee all the potentialities in which they'd be applied, or the second and third order consequences of the laws they write, then one would think our law books wouldn't be more full of ammendments to correct such short-sightedness than they are of laws themselves. Most of these yahoos can't think past the end of their next check from an indian tribe, let alone past next week.
MAJ D
If one would think Congress is, would be, or ever has been capable of writing laws that foresee all the potentialities in which they'd be applied, or the second and third order consequences of the laws they write, then one would think our law books wouldn't be more full of ammendments to correct such short-sightedness than they are of laws themselves. Most of these yahoos can't think past the end of their next check from an indian tribe, let alone past next week.
MAJ D
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