Big Dog’s Take On Electronic Surveillance Uproar: It’s The Law

There has been a flurry of information coming out since the New York Times published a story about the President authorizing electronic surveillance of communications between suspected terrorists (or people of interest) and foreign countries. The press and the left have had a field day discussing how George Bush has violated people’s civil rights and how he has broken the law. Howard Dean and several other Democrats are mentioning the impeachment word once again and John Dean, of Watergate infamy, has weighed in with his belief that Bush should be impeached. The whole mess involves the fact that the President did not obtain warrants prior to conducting the surveillance (or shortly thereafter as provided for in law). Let us take a look at a few items to clear this up. I am sure these things will not make N Mallory or Adam happy, but they are the truth and I am sure they deserve to be informed even if they are unwilling to overlook their Bush hatred.

The President did not break the law. Title 50 of the United States Code, Chapter 36, Subchapter 1, section 1801 gives the President authority to do what George Bush is doing. The law states:

(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;

And defines agent of a foreign power as

(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
(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 preparation therefor, 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)

The President has stated that the surveillance is directed against people who are already suspected of illegal activities in support of al-Qaida. This narrowly defined group of people have demonstrated that they are not acting in the best interest of the United States and the president is acting, in accordance with the USC, to monitor these people.

In addition, it is important to point out that Presidents Carter, Reagan and Clinton engaged in the same activities. Byron York provides this from Jamie Gorelick:

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes,” Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, “and that the President may, as has been done, delegate this authority to the Attorney General.”

Gorelick clearly defends the fact that Clinton authorized searches without a search warrant in accordance with the law (50 USC). This information was given to a Senate Intelligence Committee that has many of the same members on it today. They were OK then with the application of the law but are now opposed to it. They are calling for an impeachment and more investigations because President Bush followed the law as did his predecessor and other Presidents before him.

This should dispel the rumors and innuendo regarding this matter. It should, but it won’t because I have gotten comments and read the blogs. They all say that the President broke the law. The people who are echoing their leaders are not well informed enough about the law to understand the truth. They do not see this as a political ploy to garner votes in the next election. To top it off, the controversy was fueled by a piece on the Newsweek website. Jonathan Alter wrote a piece in which he indicates the NYT has been holding this story for a year (something I already mentioned in previous comments and posts) and that the President met with the publisher of the NYT. The article intimates that the President did this to keep the story from coming out and letting everyone know he was acting like a dictator and that he was a law breaker. The story also indicates the story was held to benefit the President.

I can say without a doubt that if the NYT thought it could use the story against the President before the last election it would have. There is no doubt they would have done anything to help Kerry win. I don’t know why the story was held but you can bet it was not to protect the President or help the country. As for the meeting, it is likely that the President did not want the story published so that we could keep the information from the enemy. Everyone seems to have forgotten that when we told the public we were monitoring the terrorist’s satellite phone calls, they stopped using them.

The facts are undeniable. The President acted in accordance with the law as previously indicated. Past Presidents including the left’s hero Bill Clinton used the same law to conduct surveillance without warrants. The left has defended the practice in the past in the name of national security (despite their lack of desire for national security). From this we can conclude the uproar is designed to discredit the President and garner votes for the next election. It is my belief that the release was timed to help defeat the Patriot Act and to take some of the attention away from the successful election in Iraq.

UPDATE See Executive Order 12333 for information regarding surveillance of agents of a foreign power. This should tie up loose ends that a recent commenter was concerned about. (Yes, a United States Person can be an agent of a foreign power).



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6 Responses to “Big Dog’s Take On Electronic Surveillance Uproar: It’s The Law”

  1. Steven Von Maasz says:

    It’s very touching of you to attempt to provide a legal rationale for the orders the President has signed, but the statute you cite does not authoize warrantless interception of the communications of “United States persons,” so I would be surprised to see a successful defense based on this section, if it is true that American citizens were so surveilled. At the very least it behooves Congress to determine exactly whose communications were intercepted and why, if they are going to continue to play any role whatsoever in governing this country. If they abrogate this oversight responsibility, they might just as well go home and leave us to be ruled solely by the President, who doesn’t seem to care now whether Congress makes laws or doesn’t.

  2. Big Dog says:

    It is always nice when a person of such superior intellect uses condescending rhetoric to attempt to make a point.
    We were told that the people involved were al-Qaida suspects so I doubt they fit the description of a United States Person. I believe that the statute says you may not target United States Persons and there are actions to take if those people are intercepted as part of the process of target foreign agents.
    While it is certainly the Congresses’ job to look into these matters the fact that they knew about them for a long time means they could have investigated without this being leaked to the public. The leak was a crime and should be investigated as deeply as the sham Valerie Plame investigation.
    Congress makes laws and they are interpreted by lawyers and judges. The Attorney General has looked at this and said it was OK. If a court, not Congress, declares the interpretation to be wrong then we can stop doing it. However, this does not negate the fact that the process being aired publicly is an exercise designed to garner votes and it was illegal to disclose a secret program.
    I would have no problem if they did not surveil at all. I just want you and all the others who think this is wrong not to open your mouths if we get attacked again and a lot of people die. You just keep quiet and smile knowing that your misplaced idea of civil liberty contributed to the deaths. That won’t happen though. You will be the first one to blame him for not protecting you.

  3. Big Dog says:

    It is also important to note that Executive Order 12333 signed by Ronald Reagan states:

    2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.

    Notice that the Attorney General may conduct surveillance against an agent of a foreign power. If you read the definitions from 50 USC item (1) indicates any person other than a United States Person. Then item (2) describes what the agent of a foreign power is. In all reality, a United States person could be under surveillance if that person fit the definition of an agent of a foreign power.
    Therefore, if a United States Person were conducting clandestine activities for a terrorist organization, that person could be under surveillance per EO 12333 because he is considered an agent of a foreign power.

  4. Mr Bob says:

    The US Persons statute (intel oversight) refers to US military personnel (NAVY,ARMY,AF,MARINES) spying on US persons.
    It does not apply to the NSA, FBI or a civilian (which the president is.)

  5. ACLU Wants to Gut Anti-Terror Capabilities

    From Jay at Stop the ACLU:
    Apparantly it isn’t enough for the ACLU that the NY Times leaked classified information that we are spying on international phone calls of suspected terrorist. They now want all details released! Whether they are ju…

  6. Well Seasoned says:

    It appears to me that there are cogent arguments on both sides … and that a case for legaity and a case for illegality can be made at the discretion of the syphilitic political whore making the case. Politics aside, there are only two issues that count with me. First, who leaked the surveillance to the NYT – that person should go to jail for a long time … or be shot. Second, was there any abuse of the information collected from this surveillance … that is, was it used for anything other than national security purposes. If the answer to the second is “NO”, then who gives a damn … keep on trucking, George. I’m eager to hear the cry for justice on the left for the first. So far, it ain’t even a whisper … hypocrisy rides again!