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Edited on Mon Mar-20-06 09:24 PM by papau
warentless physical searches previously legal now follow FISA eavesdropping rules. http://mediamatters.org/items/2005122400023: Warrantless searches of Americans are legal under the 1978 Foreign Intelligence Surveillance Act Conservatives such as nationally syndicated radio host Rush Limbaugh and American Cause president Bay Buchanan have defended the administration by falsely claiming that the administration's authorization of domestic surveillance by the NSA without warrants is legal under FISA. In fact, FISA, which was enacted in 1978, contains provisions that limit such surveillance to communications "exclusively between foreign powers," specifically stating that the president may authorize electronic surveillance without a court order only if there is "no substantial likelihood" that the communications of "a United States person" -- a U.S. citizen or anyone else legally in the United States -- will be intercepted. Such provisions do not allow for the Bush administration's authorization of domestic surveillance of communications between persons inside the United States and parties outside the country. FISA also allows the president and the attorney general to conduct surveillance without a court order for the purpose of gathering "foreign intelligence information" for "a period" no more than 15 days "following a declaration of war by the Congress." This provision does not permit Bush's conduct either, as he acknowledged that he had reauthorized the program more than 30 times since 2001, and said that the program is "reviewed approximately every 45 days." 4: Clinton, Carter also authorized warrantless searches of U.S. citizens Another tactic conservatives have used to defend the Bush administration has been to claim that it is not unusual for a president to authorize secret surveillance of U.S. citizens without a court order, asserting that Democratic presidents have also done so. For example, on the December 21 edition of Fox News's Special Report, host Brit Hume claimed that former presidents Jimmy Carter and Bill Clinton issued executive orders "to perform wiretaps and searches of American citizens without a warrant." But as the ThinkProgress weblog noted on December 20, executive orders on the topic by Clinton and Carter were merely explaining the rules established by FISA, which do not allow for warrantless searches on "United States persons." Subsequent reports by NBC chief foreign affairs correspondent Andrea Mitchell and The Washington Post also debunked the conservative talking point while noting that the claim was highlighted in the December 21 RNC press release. From ThinkProgress, which documented how internet gossip Matt Drudge selectively cited from the Clinton and Carter executive orders to falsely suggest they authorized secret surveillance of U.S. citizens without court-obtained warrants: What Drudge says: Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order" What Clinton actually signed: Section 1. Pursuant to section 302(a)(1) <50 U.S.C. 1822(a)> of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.
That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.
The entire controversy about Bush's program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton's 1995 executive order did not authorize that.
Drudge pulls the same trick with Carter.
What Drudge says:
Jimmy Carter Signed Executive Order on May 23, 1979: "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."
What Carter's executive order actually says:
1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.
What the Attorney General has to certify under that section is that the surveillance will not contain "the contents of any communication to which a United States person is a party." So again, no U.S. persons are involved.
8: Gorelick testimony proved Clinton asserted "the same authority" as Bush
In a December 20 article headlined "Clinton Claimed Authority to Order No-Warrant Searches," National Review White House correspondent Byron York drew attention to then-Deputy Attorney General Jamie Gorelick's July 14, 1994, testimony before the House Intelligence Committee, in which she stated that the president has "inherent authority to conduct warrantless physical searches." While York's article did not explicitly draw a parallel between the Clinton administration's 1994 policy regarding such searches and the current Bush administration controversy regarding unwarranted domestic surveillance, conservative media figures such as National Review editor Rich Lowry and syndicated columnist Charles Krauthammer have done just that.
But Gorelick's testimony does not prove that the Clinton administration believed it had the authority to bypass FISA regulations, as the Bush administration has argued in the case of the NSA's domestic wiretapping program.
Unlike electronic surveillance, the "physical searches" to which Gorelick referred were not restricted by FISA at the time of her 1994 testimony. Therefore, by asserting the authority to conduct physical searches for foreign intelligence purposes, the Clinton administration was not asserting that it did not have to comply with FISA. In October 1994, Congress passed legislation -- with Clinton's support -- to require FISA warrants for physical searches. Thereafter, the Clinton administration never argued that any "inherent authority" pre-empted FISA. To the contrary, in February 1995 Clinton issued an executive order that implemented the new FISA requirements on physical searches.
By contrast, the Bush administration has argued that it has the authority to authorize surveillance of domestic communications without court orders, despite FISA's clear and longstanding restrictions on warrantless electronic eavesdropping.
9: Aldrich Ames investigation is example of Clinton administration bypassing FISA regulations
Some conservatives have specifically cited the joint CIA/FBI investigation of Aldrich Ames, a CIA analyst ultimately convicted of espionage, as an example of Clinton invoking executive authority to overstep FISA by authorizing a physical search of a suspect without a court order. For example, on the December 21 edition of CNN's The Situation Room, Republican attorney Victoria Toensing falsely claimed that the Clinton administration did "carry out that authority" to bypass the FISA requirements "when they went into Aldrich Ames's house without a warrant."
But as with Gorelick's testimony, the Ames investigation took place before the 1995 FISA amendment requiring warrants for physical searches. In other words, in conducting these searches, the Clinton administration did not bypass FISA because FISA did not address physical searches. Further, there is ample evidence that the Clinton administration complied with the FISA requirements that did exist on wiretapping: U.S. District Court Judge Royce C. Lamberth, who previously served on the FISA court, has noted the "key role" the court played in the Ames case to "authorize physical entries to plant eavesdropping devices"; and former deputy assistant attorney general Mark M. Richard established that "the Attorney General was asked to sign as many as nine certifications to the FISA court in support of applications for FISA surveillance" during the Ames investigation.
10: Clinton administration conducted domestic spying
Conservative media figures have claimed that during the Clinton administration, the NSA used a program known as Echelon to monitor the domestic communications of United States citizens without a warrant. While most have offered no evidence to support this assertion, NewsMax, a right-wing news website, cited a February 27, 2000, CBS News 60 Minutes report that correspondent Steve Kroft introduced by asserting: "If you made a phone call today or sent an email to a friend, there's a good chance what you said or wrote was captured and screened by the country's largest intelligence agency. The top-secret Global Surveillance Network is called Echelon, and it's run by the National Security Agency." NewsMax used the 60 Minutes segment to call into question The New York Times' December 16 report that Bush's "decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad."
On December 19, Limbaugh read the NewsMax article on his nationally syndicated radio show. Limbaugh told listeners that Bush's surveillance program "started in previous administrations. You've heard of the NSA massive computer-gathering program called Echelon. 60 Minutes did a story on this in February of 2000. Bill Clinton still in office." The Echelon claim has also been repeated by Wall Street Journal columnist John Fund and radio host G. Gordon Liddy.
The 60 Minutes report appears to have been based largely on anecdotal evidence provided by a former Canadian intelligence agent and a former intelligence employee who worked at Menwith Hill, the American spy station in Great Britain, in 1979. In addition, the report contained footage of an assertion by then-Rep. Bob Barr (R-GA) that "Project Echelon engages in the interception of literally millions of communications involving United States citizens." But the report also included comments from then-chairman of the House Permanent Select Committee on Intelligence Rep. Porter Goss (R-FL), who, Kroft reported, "still believes ... that the NSA does not eavesdrop on innocent American citizens." Kroft asked Goss: "ow can you be sure that no one is listening to those conversations?" Goss responded, "We do have methods for that, and I am relatively sure that those procedures are working very well."
While Goss did not say in his 60 Minutes interview that the NSA does not spy on the domestic communications of Americans without a warrant, then-director of central intelligence George J. Tenet and then-National Security Agency director Lt. Gen. Michael V. Hayden said exactly that to Goss's committee less than two months later. As ThinkProgress has noted, Tenet testified before the intelligence committee on April 12, 2000. Denying allegations that Echelon was used to spy on Americans in the United States without a warrant, Tenet stated: "We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department." In the same hearing, Hayden testified: "If (an) American person is in the United States of America, I must have a court order before I initiate any collection
Hayden also denied the "urban myth" that the NSA "ask(s) others to do on our behalf that which we cannot do for ourselves." This appears to have been a response to the allegation -- noted by 60 Minutes -- that the NSA was exchanging information with foreign intelligence services that did monitor the domestic communications of Americans. Hayden stated: "By executive order, it is illegal for us to ask others to do what we cannot do ourselves, and we don't do it."
Tenet and Hayden's congressional testimony leaves two possibilities: Either they were not telling Congress the truth, or the claim that the NSA used the Echelon program to monitor the domestic communications of Americans is incorrect.
Hayden now serves as principal deputy director of national intelligence and has vigorously defended Bush's warrantless domestic surveillance program. At a December 19 press conference, he acknowledged that Bush's program goes beyond what is authorized under FISA. Hayden described it as "a more -- I'll use the word 'aggressive' program than would be traditionally available under FISA."
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