By Andrew Walden
The day after Iraq’s stunning December 15 election success, the New York Times wrote, "Under a presidential order signed in 2002, the …(National Security Agency) has monitored the international telephone calls and international email messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible ‘dirty numbers’ linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications."
U.S. Rep. Ed Case, D-Hawaii, Second District, responded on Dec. 19, 2005, demanding to know, "Why the President would apparently now choose to ignore this established and tested FISA (Foreign Intelligence Surveillance Act) authority, which has been utilized for over two decades …." His statement was splashed over the front page of every daily newspaper in Hawaii.
Case, the local media, and The New York Times all chose not to mention that President Bill Clinton asserted his authority to conduct physical searches "for foreign intelligence purposes" without a warrant in Executive Order 12949, dated Feb. 9, 1995, during the Bosnia War.
As President Clinton clearly explained in his order, "Pursuant to section 302(a)(1) of the (FISA) Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information ... ." Notably, this order came after a 1994 Congressional expansion of the FISA law.
Bill Clinton also authorized warrantless physical searches and electronic surveillance against Aldrich Ames, a U.S. citizen living in Virginia, who was suspected of spying for the Soviets and the Russians. Ames and his wife Rosario, a naturalized U.S. citizen, were arrested on Feb. 21, 1994. They both pled guilty. Had their case gone to trial, much of the evidence against them would have been derived from legally admissible warrantless wiretaps and physical searches.
The Times also neglects to inform readers that Jimmy Carter on May 23, 1979 signed Executive Order 12139 authorizing warrantless electronic surveillance and explaining the authority of the President to do so, "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 ... ." This was in response to the Iranian hostage crisis.
The Times even skipped the chance to take a swipe at Ronald Reagan ignoring Executive Order 12333, which Reagan signed on Dec. 4, 1981. Reagan’s order provides for warrantless searches directed against "a foreign power or an agent of a foreign power." It also says: "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."
Without even a hint of irony, Case’s statement describes an "intelligence community which appears to have been, for several years, under severe pressure from the White House to go where they may not have gone before."
The FISA law subchapter on electronic surveillance begins: "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" and if several other limiting conditions are met. Those conditions include that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."
A "United States person" is defined by the FISA law as "a citizen of the United States, an alien lawfully admitted for permanent residence," and most associations and corporations -- but there is a key exception allowing warrantless searches and surveillance if the "U.S. person" is found to be an agent of a foreign power. This exception is what allowed the warrantless electronic surveillance and searches in the Ames case. It also allows for warrantless surveillance and searches of U.S. citizens who are found to be agents of al-Qaeda or other recognized foreign terrorist groups by the U.S. Attorney General or other officials designated by the President. In 1994 Bill Clinton’s Deputy Attorney General, Jamie Gorelick, defended the warrantless surveillance of Ames telling the House Select Committee on Intelligence, "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 and that the president may, as he has done, delegate this authority to the attorney general."
The significance of Gorelick’s statement is accentuated by Justice Department memos released on April 28, 2004, and written up in the next day’s Washington Times: "Newly released Justice Department memos show that Sept. 11 panel commissioner Jamie S. Gorelick was more intimately involved than previously thought with hampering communications between U.S. intelligence and law-enforcement agencies fighting terrorism.
"As the No. 2 person in the Clinton Justice Department, Ms. Gorelick rejected advice from the U.S. attorney for the Southern District of New York, who warned against placing more limits on communications between law-enforcement officials and prosecutors pursuing counterterrorism cases, according to several internal documents written in summer 1995."
Gorelick’s efforts to hamper communications -- constructing "the wall" between intelligence and law enforcement -- are blamed by some for the U.S. failure to spot the 9-11 plot before it happened. The USA Patriot Act tore down these restrictions -- yet even the ultra-restrictive Gorelick recognized Presidential authority to conduct warrantless "searches for foreign intelligence purposes".
Case asks, "… is my government spying on me without any check and balance?"
The short answer is no -- except in cases where the U.S. Attorney General has found a specific "U.S. person" to be "an agent of a foreign power" in accordance with the FISA law.
The FISA Law in its original form was signed by Jimmy Carter in 1978. According to the Washington Times: "A Washington Post report at the time said the new FISA law permits ‘the government (primarily NSA with the occasional help of an FBI 'black bag job' or break-in) to continue electronic spying without a court order if it is directed solely at the premises or communications of 'official' powers, such as governments, factions or entities openly known to be directed and controlled by foreign governments.
"The year after FISA became law, a columnist in The Washington Post described what could still happen to any person or group determined to be ‘an agent of a foreign power.
"‘Once the attorney general has made that finding about someone, then the FBI can spy on them or burglarize their offices,’ wrote William Greider in a May 1979 column."
Obviously the media and Representative Case left out a few pertinent facts in order to make their latest attack on President Bush sound plausible. Not omitted from public release in the past few days -- a treasure trove of information useful to al-Qaeda. The revelation of previously secret -- and fully legal -- techniques being used to stop them from carrying out further acts of terrorism on U.S. soil makes al-Qaeda’s job easier. No partisan attack designed for short term political advantage can justify this kind of damage to homeland security.
NYT Article: http://tinyurl.com/7ql2b
Washington Times article: http://www.washtimes.com/national/20040429-122228-6538r.htm
Clinton and Carter’s Executive Orders: http://www.fas.org/irp/offdocs/eo12139.htm , http://www.fas.org/irp/offdocs/eo/eo-12949.htm
Reagan’s Executive Order 12333: http://www.fas.org/irp/offdocs/eo12333.htm
Ed Case’s Statement: http://www.hawaiireporter.com/story.aspx?b11be7ee-d987-4a7b-89a1-3ba57c4db7b8