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Friday, February 10, 2006
Legal Justification IV: FISA
By Dr. Steven Taylor @ 7:12 pm

(Part of a series of sorts: Previously: Part I, Part II, and Part III).

This afternoon I was suffering surfing (although I think that was a Freudian typo) the radio and caught a few minutes of Tom Sullivan sitting in for Rush Limbaugh (I was bored with the Gretsky conversation being engaged in by the guy sitting in for Colin Cowherd-there’s only so much that can be said with the current fact set, and he kept saying it over and over and over).

At any rate, he mentioned some column (I can’t remember by whom) that allegedly demonstrated how what the President has done to date was within the scope of FISA and cited section 1802. Indeed, he challenged all who were listening to Google “FISA Section 1802.”

The portions that he read over the air were such that it was clear Sullivan really didn’t know what he was talking about, as he seemed to think that the administration had been complying with the briefing requirements listed in 1802, when this has clearly not been the case (noted below).

However, upon reading the section, it becomes clear that Sullivan missed more than just the reporting requirement issue.

This portion of the code is numbered and named as follows: US CODE: Title 50,1802.

Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court.

I am no attorney, but this looks like a rather relevant portion of FISA vis-a-vis the NSA program currently under scrutiny. Note, in particular, the bolded portion below:

(a)
(1) 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 periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) 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, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;

Unless one construes the AUMF to fulfill the requirements in sub-section (a)(1), it seems plain that the NSA program is in violation of this portion of the statute. If the AUMF does not fit that sub-section, then the problem goes beyond the warrants problem to the problem that the law explicitly forbids the capturing of the communications of a “United States person.”

Even if we assume that that is the case, the administration has failed to conform to the following sub-section:

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.
(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, …

Note the inclusion of the Intelligence Committees of both Houses of Congress and the Chief Judge of the FISA Court-i.e., checks and balances.

There haven’t been any such reports to the committees in question. Yes, there were briefings of a set of members but not of the whole committees. Indeed, this week was the first time that the full committees have received formal briefings.

The remarkable thing about Sullivan’s argument is that he read the reporting requirements over the air, and simply assumed that they were being complied with.

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