Hiding in plain sight

Both Jed Babbin and the New York Sun’s editorialist explain the likely legal background to the NSA program of electronic eavesdropping exposed in the New York Times story by James Risen and Eric Lichtblau last week. Risen and Lichtblau based the story on information provided by “[n]early a dozen current and former officials, who were granted anonymity because of the classified nature of the program.” According to the Times, these current and former officials “discussed [the NSA eavesdropping program] with reporters for The New York Times because of their concerns about the operation’s legality and oversight.”

Babbin and the Sun editorial make argue, however, the president appears to have followed the applicable law to the letter in authorizing the program. Risen and Lichtblau are obscure on the legality or applicable legal analysis regarding the NSA program. They write:

Mr. Bush’s executive order allowing some warrantless eavesdropping on those inside the United States – including American citizens, permanent legal residents, tourists and other foreigners – is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.

Risen and Lichtblau don’t address the provisions of the Foreign Intelligence Surveillance Act that provide for warrantless electronic eavesdropping; they don’t even mention FISA except by indirectly by reference to “FISA wiretap warrants” and “the Foreign Intelligence Surveillance court” (or “the FISA court”).

From the Times story it is far easier to infer the illegality of the leaks on which it is based than to infer the illegality of the program itself. When the Times says that it granted its “nearly” dozen informants anonymity because the information they were leaking is classified, the Times is saying that it granted them anonymity because they were breaking the law. In order to get its story, the Times protected them from prosecution by concealing their identity.

The Times’s informants appear to me to be reading the applicable law regarding their own conduct correctly. Federal law (18 U.S.C. § 798) prohibits the disclosure of several narrowly defined categories of information, specifically including classified information regarding communications intelligence:

a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

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(3) concerning the communication intelligence activities of the United States or any foreign government…

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Shall be fined under this title or imprisoned not more than ten years, or both.

The following subsection (b) makes clear the applicability of the act to the informants and information related to the Times story:

The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;

The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

Despite the vague insinuations of Times story, it is at best unclear whether the described NSA program violated any law. It is, on the other hand, altogether too clear that the Times story itself involved an epidemic of lawbreaking among current and former government officials. Here is a scandal hiding in plain sight, though it is not a scandal that the Times chooses to report. Who will blow the whistle and demand that the malefactors be brought to account?

UPDATE: Bob Owens addresses today’s Risen and Lichtblau story at Confederate Yankee in “Risen’s new lows.”

MORE: Reader Nate Geisinger writes:

While I can’t speak to any power to authorize warrantless eavesdropping which the President may derive from Congress’s resolution to authorize war against al-Qaida, it does not appear to me that he has such powers under FISA. Unlike the left, I don’t doubt that the program was necessary, but I think that in referring to “provisions of the Foreign Intelligence Surveillance Act that provide for warrantless electronic eavesdropping,” Powerline is overselling the President’s case.

Section 1801 of FISA defines “foreign power” and “agent of a foreign power” in several ways, one of which is “a group engaged in international terrorism or activities in preparation therefor.” However, section 1802, which allows the president to order electronic eavesdropping without a warrant, requires the Attorney General to certify that the communications acquired pursuant to such an order are “between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3).” This wording specifically excludes the parts of section 1801 which include terrorists as agents of a foreign power.

Also required in the Attorney General’s certification is an assertion that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”

As you probably know, the definition of “United States person” contained in FISA is very broad, and probably would have included the 9/11 hijackers (depending on whether they were considered permanent residents).

Furthermore, I can’t find any language in FISA which supports the assertion that the law only applies to entirely domestic communications (which I heard one Fox News anchor make). The definition of “electronic surveillance” only requires that the intercepted communications were sent to or from a United States person; I can find no reference to domestic versus international communications.

My hope is that the President’s order simply authorized the NSA to retain any communications related to terrorism. My understanding is that NSA routinely comes into possession of communications to or from United States persons in the course of its activities, but that absent a FISA warrant, it must delete such communications within a specified time. Since FISA applications require the target of surveillance to be identified by name or description, it seems to me that it would be impossible to obtain a warrant to intercept and retain an entire category of communication. Perhaps the President rightly decided that deleting these communications was foolish in a post-9/11 world.

Of course, without access to the President’s order, it’s impossible for the public to judge its legality, and all of this is speculative. And, as I mentioned above, he may indeed have the power to bypass FISA under the war resolution. The most discouraging facet of this whole story is that none of the reporting I have read or seen on television has clarified these questions.

Mr. Geisinger’s message raises the question of the president’s residual power to authorize the NSA program regardless of FISA. The point I was trying to raise is that the Times article barely hints at the complications of the applicable legal analysis regarding the NSA program; it is impossible to apply the appropriate legal analysis absent knowledge of all relevant facts, and we lack knowledge of almost all relevant facts. By contrast, the illegality of the underlying leak of information to the Times by “nearly” a dozen current and former governemnt officials is much clearer.

AND THIS: Orin Kerr provides his “tentative take” on the applicable analysis of the legal issues regarding the NSA program. Professor Kerr’s analysis confirms my sense that the legal issues are murkier than the vague insinuations of the Times article to the contrary. See also Hugh Hewitt’s posts here and here.

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