Whether or not Presidents Carter and Clinton violated the FISA act on their watches is, at the end of the day, irrelevant. Two wrongs don’t make a right, nor do three ,or four, or a thousand. All that really matters right now is whether Mister Bush committed a wrong, and determining that will take smashing the mirrors and clearing the smoke.
Mister Bush committed a wrong if he authorized non-court approved surveillance on U.S. persons in violation of the FISA law, which resides in a series of subsections of U.S. Code. In working our way through that maze, we may as well start at the beginning.
Subsection 1801 defines a number of descriptions of groups, individuals and activities including “foreign power,” “agent of a foreign power,” “international terrorism,” “sabotage” and “electronic surveillance.”
But the most important definition in this section is the one that describes a “United States person,” which states:
“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
It’s a fair assumption that the plain English abstraction of this legalese is that if you’re a citizen or legal resident of the United States, you’re a United States person.
Let’s move ahead to Subsection 1802, which authorizes electronic surveillance without court order under certain conditions. It says that…
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…
[Among other things]
…there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party[.]
This appears to protect any United States person from unwarranted surveillance.
The last part of this subsection says:
Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.
This seems to be quintuple negative lawyer speak that says the courts don’t have jurisdiction over electronic surveillance unless there’s a United States person who “may be” involved.
Let’s skip ahead now to Subsection 1181, “Authorization during time of war,” which in its entirety reads:
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.
One can reasonably assume this means that the prohibition from electronically spying on U.S. persons is waived fifteen days from a Congressional declaration of war.
Did the congressional Authorizations for Use of Military Force (AUMFs) of September 2001 and September 2002 constitute declarations of war by virtue of “specific statutory authority?”
Lamentably, they probably did.
So unless Congress and its lawyers can prove beyond doubt that electronic surveillance was targeted against non-U.S. persons outside of the 15-day window that the FISA act describes, Messrs. Bush and Gonzalez will skate away from this scandal on the thin ice of a new day.
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I’m watching MSNBC’s Mrs. FED Chairman interviewing Joe Biden on this issue. Neither of them seem to have a clue about the real legal and constitutional issues on this subject.
As Perry White, Superman’s boss on the Daily Planet used to say:
“Great Caesar’s ghost!”
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By the way, if you haven’t read much Shakespeare, you might want to start with his Tragedy of Julius Caesar. It may give you historical perspective on our contemporary situation.
