Somebody's Gotta Answer Richard, Guess It'll Have To Be Me

A few days ago The Roanoke Times had this letter from a reader;

Never have I longed so much as now for the days when Clinton was our commander in chief. He could have authorized the same surveillance safeguards against the terrorists as Bush has done, and you would have never heard a peep out of the media.

Richard C. Long
Salem

Uh... Richard, he did. But not against terrorists, instead he used this same power to aid in the apprehension of Aldrich Ames (at least, he may have used it further, but I have no reference to other uses).

Once again it appears the Roanoke Times is willfully striving to keep their readers ignorant. It's been well over a week now since Richard posed his question, Instead of educating Richard and other readers on the proper and prior uses of NSA surveillance Wendy (Zomparelli, Publisher) and Tommy (Denton, Editor and former Lloyd Bentsen staffer) have decided to print several editorials and guest commentaries critical of President Bush's use of NSA surveillance. Including this one written by Dr. Robert Schultz, the John P. Fishwick Professor of English at Roanoke College, praising Frederick Boucher (D, Abingdon);

Rep. Rick Boucher, who represents our district as a ranking member of the House Judiciary Committee, did all of us a service when he carefully reviewed the legal questions surrounding President Bush's authorization of domestic spying by the National Security Agency ("Has the president violated the rule of law?" The Roanoke Times, Dec. 21). And now that the administration has formally defended these practices, the question that faces us has become clear: Is the president above the law?

What Richard does not know, and The Roanoke Times, Dr. Schultz, and Rick Boucher most certainly would prefer he remain ignorant of, is the pesky little fact that Bill Clinton and Jimmy Carter each have used the same provision of the US Code Title 50 > Chapter 36 > Subchapter I > § 1802. They would also prefer not to announce to the world that it's use has been upheld in Court. (link in pdf form)

I'm not a lawyer, but a reading of the code seems fairly straightforward to me. I have a link above to Cornell Law School's page which contains the text of this portion of the law. Allow me to paraphrase what I read there.

This section authorizes the President, through the Attorney General, to authorize electronic surveillance without a court order in order to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that the surveillance is directed at communication between foreign powers and not directed toward communication to which a United States person is a party. (emphasis mine)

I will even go so far as to use a broad definition of the phrase "United States person" to mean not only a citizen, but anyone residing legally or illegally in the United States.

The problem seems to be that most casual readers of this section of the US Code stopped reading right there. (If the Editorialist, Professor, and Legislator mentioned above have even read it at all.) As I said before, I'm not a lawyer, but I at least know that one should never stop reading a contract or anything else written by a lawyer at the point where one thinks his question has been answered. At that point it usually has not yet been answered, or the answer can be changed completely by any paragraph that may follow. In this case, if you stop reading there, you have not yet found the answer. The answer you think you have found will not be changed in any following paragraph because it was already changed on a previous page.

You must remember, in law, words have a specific meaning. Sometimes not the meaning they have in normal conversational english. In this case you must go backward to Title 50 > Chapter 36 > Subchapter I > § 1801 for a listing of definitions used in this subchapter, again I provide a link to Cornell Law School's page referring to this section. I quote it below;

(b) "Agent of a foreign power" means;
(1) any person other than a United States person, who;—
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person'’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or

OK, paragraph (1) clearly excludes "United States persons", doesn't it? Ooops. Notice that it ends with the little word "or". Go on to Paragraph (2) to see who else might be considered an "Agent of a foreign power", and notice that this time it does not begin with the phrase "any person other than a United States person", instead it begins with;

(2) any person who;
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in prepthereforetherefor, for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C). (all emphasis added by author)

This section of the US Code (in paragraph (2) sections (A),(B),(C),(D),&(E) clearly allows surveillance without a warrant against "United States persons" if there exists reasonable suspicion that such person is involved in, among other things, espionage, (ala Adrich Ames) or terrorism.

UPDATE:
While the above explores the nuances of the FISA law in general, and how it may be interepreted to allow just the type of surveillance currently being discussed. This law was passed by Congress in 1978. Those Legislators now decrying it's use have available to them the power to work for it's demise. Mr. Boucher, you could simply introduce legislation withdrawing the FISA act of 1978.

It should also be remembered that G.W. Bush also cliams validation for these actions under powers granted to the President by both the War Powers Act and Article II, section 2 of the United States Constitution.

Comments from my more legalistic friends welcome... (Chad, Steve, & Brian)