Wiretapping--the Boring, Technical Stuff

UPDATE: The band plays on here. And the WaPo weighs in on international vs. domestic wiretapping.

This post continues the debate on warrantless wiretapping. Initially, I'm sorry for the hiatus. And I appreciate and enjoy this back and forth. Wiretapping law has been in the sweet-spot of my strike-zone for 25 years, in both work and writing. Dingo and sondjata are spirited and each is a "strong debater." Neither is apathetic, but both tackle the questions with passion minus the prevailing madness and malice.

Both sondjata and Dingo replied to a short link on Thursday and last Monday's post, the latter linking prior positions. This piece solely addresses related arguments by Dingo and sondjata about the meaning of "Foreign." Subsequent posts will address the asserted exclusivity of FISA and the claimed lack of accountability under Article II. If you can't wait, click here.

Dingo claims that the prior cases and FISA have a more limited scope than I've asserted. He and sondjata acknowledge FISA (and maybe Article II?) authorize wiretapping in the U.S. of aliens (i.e., neither a U.S. person nor permanent resident). But when U.S. persons or permanent residents are involved, Dingo argues "foreign" means just that--transmissions that both originate and terminate outside the United States. According to Dingo, neither the courts nor FISA sanction wiretapping the transmissions of U.S. persons for domestic (transmissions originating and terminating inside the United States) or international (transmissions originating or terminating, but not both, inside the U.S.), even if the contents involve foreign intelligence information.

Put differently, Dingo and sondjata claim "domestic" is defined partly by a transmission's routing and partly by citizenship--not content. And under Dingo's analysis, all such surveillance demands a warrant. This is flatly false under both case law and statutory language.

• Long-standing practice permits warrantless wiretapping international calls: First, pre-FISA history made no such distinction. Presidents can, and do, wiretap traffic to/from the U.S. without a warrant, as Attorney General Gonzales detailed:

  This Nation has a long tradition of wartime enemy surveillance—a tradition that can be traced to George Washington, who made frequent and effective use of secret intelligence. One source of Washington’s intelligence was intercepted British mail. See Central Intelligence Agency, Intelligence in the War of Independence 31, 32 (1997). In fact, Washington himself proposed that one of his Generals “contrive a means of opening [British letters] without breaking the seals, take copies of the contents, and then let them go on.” Id. at 32 (“From that point on, Washington was privy to British intelligence pouches between New York and Canada.”). And for as long as electronic communications have existed, the United States has intercepted those communications during wartime, and done so, not surprisingly, without judicial warrants. In the Civil War, for example, telegraph wiretapping was common and provided important intelligence for both sides. In World War I, President Wilson authorized the military to intercept all telegraph, telephone, and cable communications into and out of the United States; he inferred the authority to do so from the Constitution and from a general congressional authorization to use military force that did not mention anything about such surveillance. See Exec. Order No. 2604 (Apr. 28, 1917).

  The White Paper says the same:

  on December 8, 1941, the day after the attack on Pearl Harbor, President Roosevelt gave the Director of the FBI “temporary powers to direct all news censorship and to control all other telecommunications traffic in and out of the United States.” President Roosevelt soon supplanted that temporary regime by establishing an office for conducting such electronic surveillance in accordance with the War Powers Act of 1941. See Pub. L. No. 77-354, § 303, 55 Stat. 838, 840-41 (Dec. 18, 1941); Gottschalk, 5 Comm. & L. at 40. The President’s order gave the Government of the United States access to “communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country.”

  Further confirmation comes from President Clinton; specifically his NSA, in these two definitions from the NSA's 1993 wiretapping directive:

  9.8 (C) FOREIGN COMMUNICATION means a communication that has at least one COMMUNICANT outside of the UNITED STATES, or that is entirely among FOREIGN POWERS or between a FOREIGN POWER and officials of a FOREIGN POWER, but does not include communications intercepted by ELECTRONIC SURVEILLANCE directed at premises in the UNITED STATES predominantly for residential purposes.
  
  9.9. (U) FOREIGN INTELLIGENCE means information relating to the capabilities, intentions, and activities of FOREIGN POWERS, organizations, or persons, and for purposes of this USSID includes both positive FOREIGN INTELLIGENCE and counterintelligence.

  United States Signals Intelligence Directive (USSID) 18, Legal Compliance and Minimization Procedures (27 July 1993) (emphasis in original). See also Halkin v. Helms, 598 F.2d 1, 4 (D.C. Cir. 1978) (quoted in Jabara v. Webster, 691 F.2d 272, 274-75 (6th Cir. 1982)) ("The mission of the NSA is to obtain intelligence from foreign electrical communications. . . The foreign intelligence derived from these signals is reported to the various agencies that have requested it (Hearings at 6). Only foreign communications are acquired, that is, communications having at least one foreign terminal (Hearings at 9)."); Memorandum of H. Bryan Cunningham to Senators Arlen Specter and Patrick Leahy at 3-4 (Feb. 3, 2006); Letter from Senator Pat Roberts to Senator Arlen Specter at 2-5 (Feb 3, 2006).



• Case law supports warrantless wiretapping. On top of ignoring history, Dingo misreads the cases. For example, Keith classed foreign intelligence information by content (and, to some extent, nationality), not circuit routing: "[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country." United States v. United States District Court, 407 U.S. 297, 308 (1972).
  
  Dingo compounds his error in claiming that pre-FISA Circuit Court decisions considered only warrantless "foreign intel" wiretapping of foreign-to-foreign transmissions (defined to include non U.S. persons in the U.S.). Yet elsewhere Dingo notes most case law involved calls between two U.S. points, some between two U.S. citizens. United States v. Clay, 430 F.2d 165, 171 (5th Cir. 1970). That's not foreign under his definition. Yet it was upheld--sans warrant.
  
  Indeed, Dingo's reasoning discards the concept of a "foreign power," or a foreign power's agents. Dingo implicitly assumes all agents of foreign powers are either abroad or aliens. The Keith Court, in contrast, recognized the need for espionage on U.S. persons collaborating with overseas threats; "domestic" being those without foreign connections:

  we use the term "domestic organization" in this opinion to mean a group or organization (whether formally or informally constituted) composed of citizens of the United States and which has no significant connection with a foreign power, its agents or agencies. No doubt there are cases where it will be difficult to distinguish between "domestic" and "foreign" unlawful activities directed against the Government of the United States where there is collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers. But this is not such a case.

  Nor was Padilla. See Activities of DOD Intelligence Components that Affect United States Persons, DoD 4240.1-R (Dec. 1982) ("Domestic activities refers to activities that take place within the United States that do not involve a significant connection with a foreign power, organization or person."). See also Halkin v. Helms, 690 F.2d 977, 983-85, 1003-04 (D.C. Cir. 1982) (U.S. persons; warrantless domestic, international and foreign wiretaps; dismissed on other grounds).
  
  Again, foreign national security intelligence is defined by its content, not its routing, not in the main its participants. See, e.g., United States v. Bin Laden, 126 F. Supp. 2d 256, 264 (S.D.N.Y. 2000):

  Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents.

  See also Jabara v. Webster, 476 F. Supp. 571, 575 (E.D. Mich. 1979) (FBI acquired copies of U.S. citizen's U.S.-to-foreign telegraphs) ("the Court is of the opinion that a warrant is not required for foreign intelligence electronic surveillances authorized by the President where the target of the surveillance is an agent of or acting in collaboration with a foreign power. Applying this holding to the instant case, the Court concludes that a warrant was not required for the FBI wiretaps in question. Based on the facts set forth in this affidavit, it would be impossible to conclude that the surveillance in question was not primarily for foreign intelligence purposes. Nor would it be possible to conclude that the subjects of these surveillances were not agents or collaborators of a foreign power. Therefore, on the authority of the above cited cases, the Court holds that prior judicial approval in the form of a warrant was not required for the surveillances in question."), rev'd on other grounds, 691 F.2d 272, 277 (6th Cir. 1982) ("Jabara does not contend on appeal that the NSA's interception of his foreign telegraphic communications violated his fourth amendment rights, and therefore we may take as a given the proposition that the NSA lawfully received and was in possession of the communications.").



• FISA doesn't misuse "foreign:" Both sondjata and Dingo argue FISA is the mechanism for national security wiretapping of foreign transmissions (i.e., those that neither originate or terminate in the United States without a U.S. person-party), but not international communications.
  
  Dingo can't point where FISA says so--because it doesn't. Again, Dingo confuses a transmission's content with its physical path (and nationalities of the parties). The relevant definitions show instead that 'Foreign intelligence information' is a content, not location based term (50 U.S.C. § 1801(e)), meaning in part "information that relates to, and if concerning a United States person is necessary to. . . [threats] by a foreign power or an agent of a foreign power." That says nothing about transmission routing--as evident in U.S. v. Brown, 908 F.2d 968 (Table)(4th Cir. 1990), where the surveilled traffic was domestic, international and foreign.
  
  Neither does citizenship control absolutely. Rather, FISA's definition of "agent of a foreign power," 50 U.S.C. § 1801(b)(2) specifically covers citizens and permanent residents who "knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power." Proof U.S. persons in America can be the target of a FISA foreign intel wiretap.¹ Which is logical. [Added sentence 8:30am] In Dingo's world, evidence of the requisite foreign power connection -- a connection to a foreign power -- could simultaneously prove and prohibit classing a call "foreign intelligence information."
  
  But assume, for a moment, Dingo is correct. How does that help his case? If FISA's inapplicable, the Article II argument is stronger, says Powerline's John Hinderaker:

  It’s worth noting that all of the cases cited above involved warrantless searches inside the United States. The NSA program, in contrast, involves international communications only, and the intercepts take place at least in part, and perhaps wholly, outside the United States. Thus, the NSA case is even clearer than the cases that have already upheld Presidential power.

Conclusion: I'm puzzled at the logic behind making international wiretapping tougher than solely U.S. communications. Fortunately, it's not the law.

When Al Qaeda Fed Xs a dirty bomb to a U.S. citizen living near Logan, the citizen's a terrorist acting as agent for a foreign terrorist organization. To protect America and to terminate terrorists, his phone is a necessary and fitting source of foreign intelligence information. Even if he only dials the weather report at JFK.

More:

Dan Eggen in the Febuary 8th Washington Post:

Ever since media reports revealed the existence of a warrantless government eavesdropping program targeting U.S. citizens and residents, Bush administration officials have taken great pains to emphasize that the effort involves only international telephone calls and e-mails.

The question from both Democratic and Republican members of the Senate Judiciary Committee at a hearing Monday was: Why stop there? Why not intercept domestic calls, as well? . . .

Many national security law experts said yesterday that the distinction makes little sense legally, because the administration concluded that President Bush has the constitutional authority to order wiretaps on U.S. citizens and residents without court approval.

Once that threshold is crossed, numerous experts said yesterday, there is little reason to limit the kind of calls that can be intercepted. It is irrelevant where the other contact is located, they said.

"The rationale for this surveillance has nothing to do with anything tied to a border," said Geoffrey R. Stone, a University of Chicago law professor critical of the administration's legal justifications for the NSA program.

"There's no pragmatic reason and no principled reason why, if it is okay for NSA to listen in on phone calls between someone in Detroit and Pakistan without a warrant, they also can't listen in on a phone call between Detroit and New York," Stone said.

______________

¹ The same point is inherent in 50 U.S.C. § 1801(f)(1), one prong of the definition of electronic surveillance: "any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States." And the definition of "agent of a foreign power, 50 U.S.C. § 1801(b)(2)(b), includes any person (which in the context means U.S. persons and aliens) who "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." U.S. criminal laws have almost no extraterritorial reach, so this provision clearly contemplates foreign intel wiretaps on transmissions that originate or terminate, or both, in the U.S., even where an eavesdropped party is a citizen.

This is confirmed in the Electronic Communications Privacy Act provision that references FISA (18 U.S.C. § 2511(f)), which employs Dingo's terminology (emphasis added):

Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law. . .