Why Do They Need to Spy on Americans Overseas without a Warrant?

by emptywheel

Mr. emptywheel has started on the pancakes, finally, but I've got time for one more post.

According to public reports, Bush has threatened to veto SSCI's FISA bill as written. That's because of an amendment submitted by Ron Wyden which requires the Administration to obtain a FISA warrant if they want to wiretap an American overseas. The additional views in the SSCI report on the bill reveals some of what we can expect as we go forward with this debate.

In his description of the amendment, Wyden (writing with Russ Feingold) makes it clear that the Attorney General should not be able to determine, by himself, that someone is an agent of a foreign power.

One amendment, which we offered along with Senator Whitehouse, ensures that whenever the government wants to target an American overseas, the FISA Court – and not just the Attorney General – must determine that there is probable cause that the American is an agent of a foreign power. Americans’ rights should not diminish when they cross the border, nor should the extent of those rights be subject to the whim of the executive branch without the checks and balances provided by the court.

Sheldon Whitehouse, in his longer description of the amendment, also emphasizes judicial review of who is an agent of a foreign power.

I cosponsored and strongly supported an amendment, proposed by Senator Wyden, and approved by the Committee, that requires the Government to obtain a traditional warrant from the Foreign Intelligence Surveillance Court (FISC) if the Government wants to collect, from a source within the United States, against an American overseas. The amendment also requires that, in order to collect surveillance overseas on a U.S. citizen traveling or living overseas, the Government obtain a determination from the FISC that the targeted U.S. citizen is a foreign power or the agent of a foreign power. Furthermore, the FISC must issue an ex parte order approving this surveillance. These changes are critical to ensuring that the new warrantless surveillance authority enacted under the Protect America Act does not allow the Government to intrude inappropriately upon the privacy of U.S. citizens. Nonetheless, the Administration has already signaled that this amendment may create certain challenges that need to be resolved. If the Administration intends to propose an alternative, it must preserve the Court’s role in determining whether there is probable cause to believe the U.S. citizen is a foreign power or an agent of a foreign power. U.S. citizens do not, and should not be expected to, leave their privacy rights behind every time they leave the United States.

But that judicial review is apparently a problem for Republicans (or at least Bond, Hatch, Chambliss, and Warner), who think we should just trust in the good intentions of the intelligence community and the Attorney General.

Unfortunately, the bill contains one very problematic provision, added by amendment, which, if not modified, will make it difficult to get our bill out of the Senate and may make it impossible to get the support of the President who must ultimately sign the bill. This provision prohibits surveillance of U.S. persons who are overseas without a court order. Those in favor of this amendment argue that we should not be conducting surveillance or searches of Americans without a court order. The Fourth Amendment, however, does not always require a warrant. Rather, warrantless surveillances and searches are routinely upheld by courts if they satisfy the reasonableness requirement of the Fourth Amendment. Thus, in the criminal law context, courts have recognized that no warrant is required to conduct a border search, an inventory search, consensual monitoring, certain vehicle searches, etc.

Similarly, under Executive Order 12333, section 2.5, signed by President Reagan in 1981, the Attorney General may authorize surveillances or searches of U.S. persons inside and outside the United States upon a finding of probable cause to believe that that person [ed. Note there is no mention of US person here] is a foreign power or an agent of a foreign power. Section 2.5 authority has worked well and without any known abuses. Congress chose in 1978 to leave this authority [ed. You mean the authority Reagan granted three years after passing FISA?] outside of FISA due to the court’s lack of jurisdiction overseas and other complicating intelligence matters. Nevertheless, we support the intent of the amendment: any time a U.S. person is the target of surveillance, the government should get an appropriate judicial ruling. However, since significant technical and legal problems [ed. such as?] with the provision’s language have unintended consequences that would cause the Intelligence Community to lose valuable intelligence on certain U.S. persons who are spying for a foreign power or supporting terrorism, we remain hopeful that we will be able to reach a compromise on this issue when we get to the floor.

As this U.S. person surveillance provision is discussed in the weeks ahead, I want to make sure that all Americans are clear about what individuals would be subject to this provision. The Intelligence Community is not targeting American businessmen traveling overseas on a trip or students studying abroad. It is not targeting ordinary tourists or our soldiers. Instead, they are targeting those few individuals on whom the Intelligence Community seeks to gather foreign intelligence information only after the Attorney General has found probable cause that these U.S. persons are foreign powers or agents of a foreign power. The men and women of our Intelligence Community are honorable people who have taken an oath to protect and defend the Constitution of the United States, and they understand their legal and operational boundaries. It is unfortunate that some are using scare tactics to confuse Americans into thinking that they might be monitored by the U.S. government when traveling overseas. Unless they are spying for a foreign country or supporting terrorism, our government has no foreign intelligence interest in them. [my emphasis]

Uh huh. It's the rule of "honorable people" without law again. That sounds safe.

Saxby Chambliss gets even more silly, when he hails the judiciousness of the intelligence community in spying on Americans overseas.

I am concerned that Senator Wyden’s amendment is an attempt by Congress to micromanage the Intelligence Community. Currently, under Executive Order 12333, Section 2.5, the Attorney General may authorize the targeting of a U.S. person overseas upon finding probable cause to believe that the individual is a foreign power or agent of a foreign power. Senator Wyden’s amendment seeks to prevent the Intelligence Community from acting quickly and with discretion in a process which has worked well to protect U.S. persons for almost thirty years. The Intelligence Community will now be required to obtain authorization from the FISC prior to conducting surveillance against terrorists or spies overseas who assist foreign governments merely because they are United States persons. It is my belief that the Intelligence Community has demonstrated to Congress how judicious, selective and careful they have been when it comes to protecting the very small number of U.S. citizens this applies to and does not necessarily need the FISC to approve their actions every step along the way. [my emphasis]

It's not that I don't think many members of the intelligence community are judicious and careful. It's just that that's now how these things work.

So why are Republicans--and Bush Cheney in particular--so intent on retaining the ability of the Attorney General to declare Americans traveling overseas spies?

Update: Fixed some of my pre-pancake errors.

Comments

[Mad Dogs]

And EW, reading Laura's piece with Starks take on things, I came across this little gem:

"The committee rejected several other amendments opposed by Rockefeller and Bond, however, including one by Feingold that would “limit the use of U.S. information obtained through targeting procedures that the FISA court determines are not reasonably designed to target persons reasonably believed to be overseas.” It failed 5-10."

If I understand this correctly, it sure seems like any and all info gathered on US persons during the eavesdropping, even eavesdropping that the FISC determines is not targeted at folks overseas, is usable in any way, shape or form.

Such as IRS "tax evasion" prosecution or "laundering" money.

And it also seems to say if the US collects this info "domestically", that is Ok.

Talk about the mother of all "drift-nets".

[earlofhuntingdon]

A citizen's rights vis a vis her government are not dependent on her travel plans. The government's claims of loyalty are not limited in time or space; neither are the obligations and the restraint it owes its citizens.

The immunity game hides who's playing; it also hides how they play. The days when a lone gunman tapped an individual phone line are long gone. The government now copies entire data streams, filtering it later for "targets of interest", which change over time. Unlike governments in Canada, Europe or Australia, there are virtually no limits on what can be done with that information once collected.

The stored data files are like a vault full of cash with the doors sometimes left open: even the most committed guards will falter; unscrupulous ones, including outsourced service providers, will ransack at will.

The immunity game hides something else: it is part of a gambit to hide and institutionalize that abuse. Apart from being harmful, that can be enormously profitable.

[Jane S.]

Wouldn't it be a better world if somehow EW could virtually hand out pancakes to all her readers? The pancakes might help absorb the bile that rises up when you read how we should just trust them to do the right thing.

[oldtree]

thanks for waiting!

why, after 2 centuries are we suddenly trashing the constitution to model ourselves after nazi germany? Who could gain from this? Terrorism is a hilarious excuse, but hardly valid. Geo. Washington was a terrorist. Ben Franklin, John Adams, Tom Jefferson. They were also really different people. One wanted real democracy, one approved of a compromise, one wanted a new monarchy. One had fun pretending he was an ordinary "person"

today we need to investigate people because they are a danger to us. really? because they live in an oil producing country? We could have spent 500 billion on renewable energy, creating an infrastructure that would not need oil except as a lubricant. We can produce quite enough of that on our own. We could have repowered this country with solar, hydro, bio, wind, and dare I say it, conservation. We could have been free. We could have been independent. It must not be to the liking of most of those people in power today. It is still not taken seriously by our government.

So, for each of us that uses the energy today; Do you have a substitute for it? Our government has gone along with people that want you to purchase only their product. The government is owned by corrupt businesses that believe survival is their only mantra. No responsibility to anything else. Not to the people that make up the entity. So, the corporation has really become a person. But the people are not represented in any way.

Since we have come full circle and the experiment has failed, some change can be expected. We are more concerned about an illiterate ex saudi citizen than we are about anything that really matters. Imagine being so scared of a guy that got a couple dozen idiots to do a suicide job? It didn't scare the navy in WWII when it happened many times every day for well over a year, until the end of a war that was shorter than the one we are now in.

Our priorities show much about our mental state. Change is the most difficult thing one can do. Since the priorities in this country are so varied, someone smart figured out how to scare enough of us into ignoring all of the freedoms we had never tried to understand before. Change has come. Would anyone argue that the targets of the wiretaps and intercepts are less than 90% americans? The began spying on Americans the day they came in to power. We know they have never acted on any intercept in a foreign land to prevent a terrorist attack. Far from it. They have provided intelligence and weapons to those they claim are our enemy.

It is hard to believe. That is what a group of people figured everyone would say. Now it is too late.

hope the pancakes are good, and thanks for the best insight into our government that I have seen

[montag]

Hmm. How does all this jive with the recent news that the US is collecting--and retaining--information on US citizens traveling overseas, to include whom they visit, with whom they travel, even casually, and their reading habits?

With that info--which has apparently not been collected by intelligence agencies and is readily available on a number of government computer systems--leaving it all up to the intelligence services and the Attorney General is a demonstrably unsound principle. Look, generally, at the abuses which have been made of national security letters in the last few years as an example indicating that administrative determinations, cutting the courts out of the process entirely, are seriously flawed.

What bothers me, though, about all this is one thing: underlying this posturing over the degree of involvement of FISC is a decided avoidance of any talk of misuse of the intelligence services and the FBI for political purposes. FISC, over the years, has been a virtual rubber stamp for whatever the FBI or CIA has wanted, and FISA--even before the changes from PATRIOT Act onward--had plenty of exceptions for emergencies. Every agency dealing with FISC--for almost thirty years--knows what will fly with FISC and what won't.

So, why the sudden desire on the part of the Bushies to do an end-run around the FISC? The key, of course, is their desire, well before 9/11, to nullify FISA and FISC, and the roots of that partly lie in their notions about the "unitary executive," but, there ought to be, given the composition of this White House from the beginning, serious suspicion that this White House has been using the intelligence services to spy on political opponents of all stripes. It was their modus operandi, from the outset, to use the power of government to institutionalize one-party rule. Why, then, would anyone still believe that this White House, given their record, would treat the intelligence services as off-limits for political corruption?

Healthy skepticism would suggest that the intelligence services would be the very first part of government the Bushies would try to corrupt for political purposes (and we have some evidence they were trying to do that five weeks after assuming office, and, then, there's the Plame business).

One would think the Dems would have figured this out by now....

[earlofhuntingdon]

Data bases, like bureaucracies, feed on themselves, demanding ever more resources. Our government, for example, has no constraints on how long it keeps our data. And among the fads of IT development are facial recognition s/w and personality profiling. Prone to errors and abuse that are infrequently corrected, these programs are mushrooming; so are the data bases that feed them, from travel reading to travel plans to countless bits and pieces that formerly were never collected, collated and analyzed.

I wouldn't trust Jack Bauer to use them effectively; why would I trust Dick Cheney or Karl Rove not to abuse them?

[MarkC]

Framed slightly differently, this reads to me as if travelling outside the US will constitute grounds for suspicion of being a foreign agent.

Laozi 65: 民之難治，以其智多。"People's being hard to govern comes from their knowing too much."

[Mad Dogs]

The Repugs make most clear their disdain for "democracy" and instead bow and genuflect to the dictatorship of the "Imperial Presidency":

"ADDITIONAL VIEWS OF SENATORS BOND, CHAMBLISS, HATCH, AND WARNER"

"One of the most important provisions in this bill is retroactive liability protection for those telecommunication carriers alleged to have assisted the government with the President’s Terrorist Surveillance Program (TSP). We believe, without any doubt, that the President properly used his authority under Article II of the Constitution to protect this country in the wake of the 9/11 terrorist attacks. We believe that the TSP was legal, necessary, and most likely prevented another terrorist attack against the homeland."

"Those who constantly harp on the misleading assertion that the TSP was illegal conveniently ignore the federal case law that recognizes the President’s Article II authority to engage in warrantless surveillance in the context of gathering foreign intelligence. Instead, they assert that the TSP violated FISA. The last time we checked, the Constitution always trumps any statute passed by Congress, including FISA."

King George never had such good friends. And the American people, let them eat cake.