Villa Beausoleil

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Saturday, December 17, 2005

The Foreign Intelligence Surveillance Act

According to the Foreign Intelligence Surveillance Act, warrantless surveillance of communications is legal as long as the Attorney General certifies in writing under oath that Dubya's intelligence program is solely aimed at: (1) intercepting the content of communications of foreign powers, or (2) intercepting technical information not including the contents of communications, that are from property controlled by a foreign power (like an embassy) and (3) that there is no substantial likelihood that the communications intercepted will be those of US citizens or permanent residents, and (4) that there are minimization procedures in place to prevent (3), and these minimization procedures are reported to certain Congressional committees. To sum up -- no warrant needed if the communications are those of a foreign power, without involving either US citizens or "agents" of foreign powers (I know, "agents" are not mentioned above, but that's precisely why they require warrants -- see next paragraph). Warrants are needed (from a special FISA judge) in any case involving communications of (1) United States Persons (defined as US citizens or permanent residents), (2) "agents" of a foreign power, or (3) terrorist groups as opposed to "foreign powers". (NOTE: I was originally wrong on this point and have corrected it here.) The business of "agents" as opposed to the foreign power itself is very confusing. Where is the dividing line between the power itself, and the agent? When is a person the embodiment of the foreign power, and when is a person merely an "agent"? The definitions in FISA are not illuminating on this topic. Apparently, United States Persons can be foreign agents for the purpose of FISA. However, "no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States." Also, I read somewhere that there may be an amendment allowing "terrorist groups" to fall under the same warrantless search provisions as "foreign powers." But I can't seem to chase it up. If anyone has the answer to this or to my issue with the practical difference between a foreign power and a foreign agent, let me know!! Exceptions: (1) No warrants are needed if it's an emergency, but a warrant application must be made within 72 hours. (2) No warrants needed within the first 15 days after a declaration of war by Congress. So, if the NYT article of December 16th and their follow up of the 17th are correct, is our government violating the law? We report, you decide.

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