While the last few days have brought a furious campaign of straw-grasping from a variety of Bush Administration "luminaries" -- Condoleeza Rice, Alberto Gonzalez, Dick Cheney, and even Bush himself -- the simple fact of the matter is that once all the smoke clears the analysis needed to determine whether Bush's NSA spying authorizations were illegal is quite simple. The law in question, the
Foreign Intelligence Suveillance Act, speaks to the question directly and obviates the need for analysis of any of the
post hoc rationalizations posited by the Administration
We'll start with what we know:
George W. Bush has authorized warrantless wiretaps of both domestic-to-international and international-to-domestic communications "more than 30 times" since September 11, 2001. He has taken pains to point out that the wiretaps never involved strictly intra-U.S. conversations. Bully for him, but does it matter? FISA says no. The law is explicit about when warrantless surveillance is permitted:
50 U.S.C. Sec. 1802
(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; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and 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.
What does all that mean? First of all, warrantless surveillance is illegal under FISA unless all three of the conditions set forth in 50 U.S.C. Sec 1802(a)(1)(A)-(C) are met. Of relevance to our discussion here are subsections (a)(1)(A) and (a)(1)(B). Under 1802(a)(1)(A), a warrantless wiretap is illegal unless it is solely directed at "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers." What is a foreign power? Helpfully, FISA defines the term:
50 U.S.C. Sec. 1801:
(a) "Foreign power" means--
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
Note that the law provides some help to the Administration here -- a group engaged in international terrorism or activities in preparation for terrorism is considered a "foreign power" under FISA. Unfortunately for Bush, that is far from the end of the analysis. For one, the people at both ends of the conversation being spied upon would have to be part of an identifiable group involved in international terrorism. Even assuming they were, however, the wiretap would still be illegal if any party to the conversation were a "United States person." Why? Because FISA makes illegal any warrantless wiretap that involves a "substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."
What is a "United States person"? Again, the statute spells it out:
50 U.S.C. Sec. 1801:
(i) "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.
Here is the crux of the issue. No one in the administration has argued that the NSA surveillance authorized by Bush was not directed at United States people as defined by FISA. I don't think this is an accident; my educated guess is that they know for certain that the surveillance was so directed. Bush's facile argument that the wiretaps were never directed at purely domestic conversations (like phone calls from NY to LA), is completely beside the point. The statute doesn't carve out exceptions to the general rule that warrantless wiretaps are illegal based on the place that the conversation occurred. FISA's limited exception is based entirely on the parties to the conversation.
While we don't yet know, and likely never will, the parties against whom the wiretaps were initiated, the available evidence strongly indicates that some of those ensnared in the NSA spying program were "United States person[s]" according to FISA. Which means that the Bush Administration broke the law. The rest of the babble coming from Administration officials in an attempt to justify the wiretaps? Sound and fury signifying nothing. FISA, the law that is so obviously on point, has been ignored in every major Administration defense of its spying program. Coincidence? I think not.