Media conservatives wrongly claimed provisions in FISA authorized Bush's domestic spying

››› ››› SIMON MALOY

Conservatives in the media claimed that Bush's authorization of domestic surveillance by the NSA without warrants is legal under the 1978 Foreign Intelligence Surveillance Act. However, provisions of the law allow warrantless surveillance of foreign powers only, or for just 15 days following a declaration of war.

Nationally syndicated radio host Rush Limbaugh and Bay Buchanan, president of conservative group The American Cause, claimed that Bush's authorization of domestic surveillance by the National Security Administration (NSA) without warrants is legal under the 1978 Foreign Intelligence Surveillance Act (FISA). However, FISA contains provisions that limit such warrantless surveillance to communications "exclusively between foreign powers." Those provisions do not apply to Bush's conduct, as he authorized domestic surveillance of communications between persons inside the United States and parties outside the country. FISA specifically states that the president may authorize electronic surveillance without a court order only if there is "no substantial likelihood" that the communications of "a United States person" will be acquired.

FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering "foreign intelligence information" for no more than 15 days "following a declaration of war by the Congress." This provision does not permit Bush's conduct either, as he acknowledged reauthorizing the program more than 30 times since 2001.

The FISA (Title 50, Chapter 36 of the United States Code) provision (Title 50, Section 1802 -- or "50 USC 1802") which Limbaugh was explicitly and Buchanan was apparently referring to allows the president to authorize surveillance without a court order if the attorney general certifies that the surveillance is "solely directed" at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers;" or, "the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power." The law also states that warrantless surveillance is permissible only if the attorney general certifies that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

A second section within FISA, titled "Authorization during time of war" (50 USC 1811), states that the president may authorize warrantless surveillance for a period of no more than 15 days after Congress declares war.

On the December 20 broadcast of The Rush Limbaugh Show, Limbaugh read excerpts from a December 19 New York Sun editorial that purported to explain the powers FISA accords the president. He claimed: "All of this is literally nothing. It is legal." The Sun editorial noted that FISA "is said to restrict the Bush administration's activities," but also that FISA "does not require that all such surveillance be authorized by a court." The Sun pointed to the two FISA sections noted above as proof that the president need not always pursue a warrant:

The law provides at least two special exceptions to the requirement of a court order. As FISA has been integrated into Title 50 of the U.S. Code, Chapter 36, Subchapter I, Section 1802, one such provision is helpfully headed, "Electronic surveillance authorization without court order."

[...]

Now, Section 1802 does impose some conditions, including that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." But the law defines "United States person" somewhat narrowly, so that it would not include illegal aliens or, arguably, those who fraudulently obtained legal status.

And if Section 1802 isn't enough, regard section 1811 of the same subchapter of the United States Code, "Authorization during time of war." It states, "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." Again, mark the phrase, "without a court order."

It certainly is the president's view, and ours, that Congress's declarations following September 11 formalized the state of war that was brought to us by our enemies. It will no doubt be debated whether the 15-day period is renewable. It is clear, though, that under the definitions included in the Act, "Foreign intelligence information" may include information concerning a United States person that is necessary not only to "the national defense or the security of the United States," but even merely to "the conduct of the foreign affairs of the United States."

However, the Sun editorial failed to explain adequately how these two provisions would enable the Bush administration to surveil U.S. citizens. As the Sun noted, FISA strictly defines a "Unites States person" as a citizen or legal resident of the United States. Under that definition, the only way the Bush administration would be in accordance with this law is if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." But Bush has acknowledged authorizing the surveillance of people in the United States, and, contrary to the Sun's suggestion, he did not limit those being spied upon to "illegal aliens or ... those who fraudulently obtained legal status." At a December 19 press conference, he said that the calls being monitored "are from outside the country to in the country, or vice versa." Moreover, the Sun's assertion that it "will no doubt be debated whether the 15-day period is renewable" fails to take into account the text of the law, which states unequivocally that the period of unwarranted surveillance following a declaration of war cannot exceed 15 days. Here is the full text of the relevant section:

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

In his reading of the Sun editorial, Limbaugh neglected to provide any explanation of how these statutes sanctioned Bush's conduct. From the December 20 broadcast of The Rush Limbaugh Show:

LIMBAUGH: Let me go to The New York Sun editorial today -- actually, lead editorial from yesterday -- couple of excerpts here: "But contrary to what you may read in some other newspapers, that law, the Foreign Intelligence Surveillance Act of 1978 -- which, by the way, Jimmy Carter was president then, a Democrat -- that law, the FISA law, does not require that all such surveillance be authorized by a court."

Somebody tell Jerry in West Milwaukee. "The law provides at least two special exceptions to the requirement of a court order, as FISA has been integrated into Title 50 of the U.S. Code, Chapter 36, Subchapter 1, Section 1802," blah-blah-blah-blah-blah, "one such provision is helpfully headed 'Electronic surveillance authorization without a court order.' That's the title of the law: 'Electronic surveillance authorization without a court order.'" It's in the FISA law from 1978; Jimmy Carter was president. What more do I need to say?

[...]

Now, there is some discussion by the editors at The New York Sun of qualifications and circumstances in Section 1802. That's where they go to next in the editorial. And then -- then the argument continues. "If Section 1802 isn't enough, regard Section 1811 of the same Subchapter of the United States Code, 'Authorization during time of war.' It states: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by Congress."

Now, the important thing there is to mark the phrase "without a court order." Then in the rest of the editorial, the Sun editorial writers expand on the question of whether Congress has declared war in this circumstance by authorizing the use of force in their numerous resolutions. And they conclude that Congress did formalize a state of war against our enemies after September 11th.

But note the recurrence in -- in this -- in the FISA law of the phrase, "without a court order," in the context of intelligence surveillance. It's all over the place. See -- it -- it's -- it's -- all of this is moot, folks. All of this is literally nothing. It is legal.

On the December 20 edition of CNN's The Situation Room, Buchanan claimed that Bush "clearly" acted "within the law," adding that FISA "says that agents of foreign powers, when they're engaged in any kind of terrorist activities, they can, without any kind of [warrant], go ahead and wiretap these individuals." But, again, unless the president limited his authorization to those excluded from FISA's definition of "United States person," the administration was not in accordance with FISA.

From the December 20 edition of CNN's The Situation Room:

BUCHANAN: This is one of the most highly secret programs that was taking place. Obviously, the president wasn't going to talk about it. What he did is clearly within the law because that act, particularly that Foreign Intelligence Surveillance Act, says that agents of foreign powers, when they're engaged in any kind of terrorist activities, the president can, without any kind of wiretap, go ahead and wiretap these individuals without any warrant, excuse me, from a court. They can wiretap.

Posted In
Justice & Civil Liberties, Domestic Spying
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