"Warrantless Wiretaps" in review - where in this line of reasoning do you disagree?

Question

1) The NSA was created to detect / monitor foreign threats to the US.
2) The Bill of Rights protects US citizens and legal residents, thus it is not relevant to the NSA's spying on foreigners abroad. If Congress funds the operation, the NSA can legally spy on foreigners at will without a warrant.
3) A Cold War tactic of the Soviets was to infiltrate the US. In response to this the NSA's attention was drawn inside, and to, our borders.
4) FISA was enacted in 1978 to limit the NSA's activities with respect to cross-border and US-internal electronic surveillance.
5) FISA is a limiting statute - if it doesn't apply to an NSA activity not covered by another law, the activity is legal.
6) FISA contains a definitions section limiting its application to specific, enumerated circumstances.
7) If the NSA targets a foreigner, and monitors, using a satellite in orbit, that foreigner's calls into and from the US, this does not fit any of those circumstances, thus FISA does not apply.

Cory no, read the statute - it applies to all examples of the circumstances described in the definitions section - - - like all statutes. And limiting does mean that if something isn't covered by the statute, it's legal unless it's made illegal by another statute or Constitutional provision - an ENABLING statute means if it's not covered, the govt can't do it.

No, cory, FISA is NOT an enabling statute - read the statute, it is clearly a limiting statute.

map, that's just not true.

If a foreign terrorist also runs a bookie operation and the NSA is tapping his calls and I call him up and say I want to bet $20K on the Notre Dame game, yes, that tape can be used against me when I'm tried for illegal gambling.

Hello, no, you're wrong. The "target" is the one the govt is listening to. If you call that person, that doesn't make you the "target" and it doesn't create a new warrant requirement.

If they don't need a warrant to tap X's phone, and you call X or X calls you, the fact that you're a citizen doesn't create a new need for a warrant. If the govt based on what you said to X decides to tap your calls, NOW it needs a warrant.

But that's not what we're talking about.

We don't know that the facts are what the NSA and Gonzales said they are.

All we have on the facts is what they said.

We can sit here all day and make up our own facts that would justify any conclusion, legal or illegal, but that would be pointless.

All I'm saying is that it is crystal clear, if the facts are as represented by the NSA and Gonzales, that the program in question does not violate FISA.

.....and that because it does not violate FISA it is not illegal, because FISA is a LIMITING statute NOT an ENABLING statute.

Answer 1

Cogent points, but lost on the mob that controls the elections in this country. I for one will enjoy listening to liberals scream about principles to the same mob they have been duping for so long into ignoring principle for convenience ( i.e. "Progressive" tax schemes, A.D.A., Public Perscription charity, basically every federal entitlement there is.)
Where is the poster boy for warrantless foreign wiretaps? What innocent American got screwed by a secret wiretap?
Joe Couch-potato doesn't care; if we lose a small right we don't need or use, in order to catch terrorists, then those are the breaks...

Answer 2

Those wiretaps are also targeted for Americans communicating with suspected terrorist abroad(and probably within the US too). Can't just target 1 side when 2 are communicating. And FISA apply to all secret surveillance programs in the US. Under FISA a judge actually granted several wiretaps over his cell phone just after 9/11. In his car. FISA can grant permission that quick in certain cases.

Warrantless wiretaps are not necessarily actual person ease dropping on a conversation between 2. It could be computer program scanning for certain key words, patterns of key words, voice match data...etc. So it can be hard to get warrants in time for those type of programs. That's why many want to update it to be able to use much broader surveillance programs that utilize high tech stuff. Especially IT.

FISA was created before IT revolution. It's different world now. It probably is outdated. FISA was created to create more accountability. We need secret programs, but those also need checks and balances. FISA actually don't ask too much. It just ask you report what you do(who you wiretap) to secret court. This process gives evidence legitimacy and credibility it wouldn't have otherwise if done wrecklessly.

Answer 3

2. Partially correct -- the 4th Amendment protects anyone inside the US against improper govt action. The protections are for all "persons" -- citizenship or legal residency is not a factor. But yes, the NSA can legally spy on foreigners OUTSIDE THE US without a warrant. It's not entirely "at will". See 50 USC 1802 and other parts of FISA.

4. Partially correct -- FISA limits all foreign surveillance activities within its scope, not just those done by the NSA

5. Incorrect -- 18 USC 2511 defines FISA as a limiting statute that applies to all such surveillance.

[EDIT: Quoting 18 USC 2511 -- " Except as otherwise specifically provided ... any person who (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;.... shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)." -- It says that other than for the exceptions provided by statute, all unauthorized wiretaps are illegal.]

6. Correct, but backwards -- FISA authorizes specific activities that would otherwise be illegal

7. Incorrect -- see Title III of the Ominibus Crime Control Act, including inter alia 18 USC 2511.

Answer 4

The bill of rights doesn't specify US citizens or legal residents. If an illegal alien is arrested for a crime such as robbery, he has the right to a fair trial and legal representation. He is also afforded 4 amendment protections.

As for the NSA, if information is uncovered in a monitored call between the US and another country, none of the evidence obtained can be used against the person in the US unless there was a warrant.

Answer 5

My problem is I see a warrant as a way to ensure that there is some oversight to the activity. Without judicial oversight, the activity takes place without any outside credibility check of probable cause. Conducting such activities in secret, without judicial approval or boundaries, encourages misuse and abuse of power. Hoover's 'files' and surveillance orders against American citizens and the McCarthy 'witch hunts' are examples I can think of to illustrate potential for unchecked abuse of power.

Answer 6

The Gov't needs the tools to catch the bad guys. There are just too many things the general public doesn't even know.

It cannot possibly effect the rights of citizens unless they are doing something illegal. Why would anyone disagree with law enforcement for safety and security.

Answer 7

No problem here. What's funny is most people who are opposed to this don't call anyone outside the city they live in.

Answer 8

I don't think it's strong enough.

But, anyone who is against wiretapping of suspected terrorists in this manner is un-American.