Friday, December 16, 2005

The Problem with Simplistic Legal Analysis to Make Political Points

I’m sure that by now everyone has seen the stories in the New York Times and the Washington Post regarding the alleged NSA wiretapping of US persons pursuant to a secret Executive Order that may or may not be legal. I’m going to be very careful about the words I use because this is an incredibly complicated matter and I’m far from the most qualified attorney to pass judgments, especially legal ones. That said, I am qualified to read the US Code and that’s why this post from NRO’s The Corner both surprised me and at the same time ticked me off.

Here is the excerpt from the beginning of Mr. Levin’s post. Levin is, by the way a noted attorney and popular conservative legal commentator:

Some brief background: The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens -- 50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.”

Seems simple enough, right? The President can under certain circumstances authorize wiretaps or other electronic surveillance without obtaining a court order. However, when you actually read the text of 50 USC 1802 you get a much more restricted view of what actually is permitted.

Here’s a small snippet of the statute, with my own emphasis added:

(a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and …

From this it seems that, in fact, Levin’s depiction of the statute completely contradicts what the statute actually says. A FISA court order is required for all forms of surveillance except those that are exclusively between foreign powers or on foreign soil, AND where there is no likelihood of hearing a US person’s conversations. Not as Levin claims where “the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.” Bottom line is that Mr. Levin is just wrong, 180 degrees wrong.

Now I don’t have any reason to think that there is ill will or intentional deceit here, just laziness. Nevertheless, this kind of thing is completely inexcusable, especially from a lawyer. If you don’t know something, just say “I don’t really know or haven’t checked but here are my thoughts for what they are worth.” We here at TPS, myself especially, do this all time. It’s a CYA mechanism, nothing more nothing less, and there is no shame in admitting you don’t know something. Here, however, Levin not only states things as fact, but provides code citations to support his positions. Unfortunately, the two don’t add up and it leaves a false impression about what is going on. Both papers reported that there were legal opinions, albeit classified ones, issued on this topic written by some very well-credentialed attorneys, and thus, I’ll reserve judgment until either they are released or a better case is presented. At best we can conclude that there is something to investigate, and hopefully Congress won’t shirk its Constitutional responsibility to conduct executive oversight by backing down yet again.


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