Constitutional Law

It's 'All Foreign to Foreign'?

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Perusing National Intelligence Director Mike McConnell's interview with The El Paso Times, I see that, in addition to charging the Bush administration's critics as accessories to murder, he asserts that the FISA revisions allowing warrantless surveillance of international communications involving people on U.S. soil are far narrower than they actually are. In fact, he seems to deny that the amended law allows warrantless surveillance of international communications involving people on U.S. soil:

Q: And this [the email and phone calls covered by the new, improved FISA] is still all foreign to foreign communication?

A: All foreign to foreign.

McConnell is saying that all the Protect America Act did was allow warrantless surveillance of entirely international communications that happen to travel through a U.S. switch, router, or server. In fact, the law allows warrantless monitoring of any American's email and phone calls as long as the surveillance is "directed at a person reasonably believed to be located outside of the United States" and obtaining foreign intelligence is "a significant purpose" of the surveillance. Both of those determinations are left entirely to the executive branch. In practice, then, the government could eavesdrop on every international phone call and read every international email message of anyone in the United States simply by asserting that the people on the other end of the communications were the real targets.

Even Andrew McCarthy of the Foundation for the Defense of Democracies, a regular defender of Bush's terrorism policies who not only backs the FISA revisions but wants to scrap the statute entirely, agrees that the amended version of the law allows warrantless surveillance of communications between people in the U.S. and people in other countries. So how can McConnell claim the coverage is "all foreign to foreign"? Later in the interview, it seems he is trying to create some wiggle room (emphasis added):

There's a claim of reverse targeting. Now what that means is we would target somebody in a foreign country who is calling into the United States and our intent is to not go after the bad guy, but to listen to somebody in the United States. That's not legal, it's, it would be a breach of the Fourth Amendment. You can go to jail for that sort of thing. And if a foreign bad guy is calling into the United States, if there's a need to have a warrant, for the person in the United States, you just get a warrant. And so if a terrorist calls in and it's another terrorist [on the other end], I think the American public would want us to do surveillance of that U.S. person in this case. So we would just get a warrant and do that. It's a manageable thing.

Notice that McConnell says "it would be a breach of the Fourth Amendment" if "our intent" were "to listen to somebody in the United States." In other words, the NSA can legally "listen to somebody in the United States" as long as it denies that was its intent. Then McConnell says that "if there's a need for a warrant"—as determined by him and Attorney General Alberto Gonzales—well, then they'll get a warrant. Not exactly reassuring. All McConnell is saying here is that if the government declares that someone in the U.S. is the target, it has to get a warrant. But it can avoid that inconvenience simply by claiming that the real target is somewhere else.

Still, it's interesting that McConnell concedes the Fourth Amendment (and not just FISA) requires a warrant for monitoring international communications if the surveillance is knowingly (and admittedly) "directed" at someone in the U.S. By contrast, the Justice Department's position seems to be that the Constitution does not require a warrant for surveillance of domestic-to-foreign communications, period, or at least not when the president's men say the surveillance has something to do with national security.

It's possible none of this matters. As The New York Times reported on Sunday, the president continues to maintain that he did not need congressional approval for the warrantless surveillance, which he insists is perfectly consistent with the Fourth Amendment and the rest of the Constitution, whether authorized by statute or not (emphasis added):

Bush administration officials have already signaled that, in their view, the president retains his constitutional authority to do whatever it takes to protect the country, regardless of any action Congress takes. At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress.

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  1. Bow before the unitary executive, peasant!

  2. Deception is the cornerstone of this administration. They thrive off deceiving the public. They probably spend hours crafting their speeches and soon to be responses with ambiguities to convince you it means something it does not. So far is seems that most republicans believe it’s legitimate behavior.

  3. It’s just Taoism, really. The warrantless surveillance that can be legalized by Congress is not the true surveillance. Those who speak of it, are not cleared to know of it. Those with the security clearance do not speak.

    If Congress said the administration could do anything it wants, as long as they print it in black ink, the prez would reserve the right to use a green crayon.

    Here’s what I don’t get: why the press still reports all this breathlessly, as if it meant something.

  4. Since when can law enforcement officials “go to jail” for violating the 4th Amendment? I’ve long believed it should be a crime, but it’s not. Their only punishment, if at all, is the exclusion of evidence at their target’s criminal trial.

    LEOs who violate a criminal defendant’s constitutional rights should be subject to the same punishment (including death) the defendant gets, in place of the exclusionary rule. The tainted evidence is not excluded from trial, but the cop who violated the defendant’s rights to acquire the evidence will get the same sentence the defendant gets. They can be cell mates, or strapped to the lethal injection gurney together.

    Unfortunately, I do think an unintended conseqence would be that nothing would be found to be a constitutional violation, in order to spare a ‘good cop’ from being punished.

  5. The whole point of Congressional oversight is to prevent a President who is paranoid, stupid, or who deems a certain illegal practice effective even if it isn’t, from going forward. If he can do whatever he thinks is needed to “to protect the Country” the sky’s the limit. Not much different from the divine right of kings.

  6. amazing and unbelievable. unbelievable and amazing.
    all hell f’inna break loose now. at least one can hope

  7. KNEEL BEFORE ZOD!

    I’m starting to think Dubya is Zod. Or at least he thinks he is.

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