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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Sunday, December 18, 2005

Purposely misquoting FISA to defend the Bush Administration

Defenders of the Bush Administration are resorting to outright distortions and deliberate falsehoods about the Foreign Intelligence Security Act (FISA) in order to argue that the Administration's warrantless eavesdropping on U.S. citizens complies with the mandates of that statute. To do so, they are simply lying -- and that term is used advisedly -- about what FISA says by misquoting the statute in order to make it appear that the Administration’s clearly illegal behavior conforms to the statute.

This is a real case study in how total falsehoods are disseminated by a single right-wing blogger who is then linked to and approvingly cited by large, highly partisan bloggers, which then cause the outright falsehoods to be bestowed with credibility and take on the status of a conventionally accepted talking point in defense of the Administration.

A blogger named Al Maviva wrote a staggeringly dishonest post which he said was based upon what he called a "little legal research" concerning FISA. He then proceeded to deliberately mis-quote the statute in order to reach the patently false conclusion that "the President probably does have the power to order NSA to monitor suspects, without a warrant, in terrorism cases."

This post was then cited and linked to, in some cases with approval, by several large conservative bloggers, and thereafter wormed its way up to the conservative motherload of Internet traffic, Instapundit, who approvingly linked to it. I have no doubt that -- thanks to law professor Instapundit and these others Administration defenders -- tens of thousands of people (at least) have now read this "legal analysis" defending the legality of the Administration’s conduct which is based on a glaringly unethical distortion of the language of FISA.

We’re not talking here about an unconvincing or erroneous legal argument. This is something different entirely – it is an argument based upon a fundamental misquoting of the law in question designed to make illegal behavior look legal.

FISA is a relatively straightforward statute and the issue here is a simple one. The statute begins with § 1801, which in Section(a) defines various types of "foreign powers" on whom the Government can eavesdrop.

Under Section(a), subsections (1)-(3) essentially refer to foreign governments or groups expressly controlled by a foreign government.

Subsections (1)-(3) do not include non-governmental terrorist organizations, such as Al Qaeda. Such groups – i.e., terrorists organizations – are referenced in subsection (4) only.

The next section of FISA -- § 1802 -- allows warrantless eavesdropping for up to one year (provided other procedures are complied with). But it does so only for "electronic surveillance [that] is solely directed at communications" among foreign powers referred to by subsections (1)-(3) -- but not subsection (4). Thus, this authorization to conduct warrantless searches is expressly limited to communications among subsection (1)-(3) foreign governments but does not even arguably extend to subsection (4) terrorist groups.

But that does not stop Al Maviva from arguing that the Administration was allowed to engage in warrantless eavesdropping on terrorist groups pursuant to this section. To argue this, he purports to quote the authorization language of § 1802, but omits from his quotation the part of the statute which entirely negates his argument -- namely, the part which limits this authorization to subsections (1)-(3), but excludes subsection (4).

Compare Al Maviva’s quotation of the statute with what the statute actually says. Here is Al Maviva, setting forth his "legal analysis" and pretending to quote from the statute:

In addition to existing restrictions under Executive Order 12333 and other internal limits, FISA states in 50 U.S.C. 1802 that, "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 . . ." (emphasis added).


So you read that "legal analysis" and you are supposed to think: "Oh, wow - under FISA, the Administration is allowed to engage in warrantless surveillance for up to one year of anyone referenced in section 1801, which includes terrorist organizations. So Bush really did nothing wrong after all. I can’t believe how the Bush-hating MSM is making it seem like he broke the law when he clearly obeyed the law." And that is exactly what Bush worshiping bloggers said when passing on this "legal analysis," along with others who misleadingly and partially quote section 1802 to make it seem as though it renders the Administration's conduct legal.

But here is what that section of the statute actually says, when quoted correctly and fully:

(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;



When pretending to quote the statute, Al Maviva simply omitted the language making clear that the warrantless authorization applies only to foreign powers referenced in subsections (A)(1)-(3), and not to terrorist organizations, referenced in (A)(4).

Thus, contrary to the only point made in Al Maviva’s "legal analysis" to defend the Bush Administration, there is no basis whatsoever for asserting that FISA authorizes the Administration to eavesdrop on individuals suspected of working with terrorist organizations. Such eavesdropping unquestionably requires a warrant or compliance with the 72-hour emergency procedures of section 1805.

The only way to argue that the Bush Administration’s warrantless eavesdropping on suspected terrorists, including U.S. citizens, complied with the law is by misquoting the law in order to change its requirements.

That’s exactly what Al Maviva did, and his patently dishonest argument was then given wide circulation by Instapundit and others, and the "substance" of the argument is now undoubtedly being used by those who don’t know any better, and by those who do, to absurdly claim that there is a reasonable argument to make that the Administration complied with the law. There is no such argument to make -- at least not when the law is quoted accurately.

If the Defend-Bush-No-Matter-What crowd needs to defend Bush here, that's fine, but at least they ought to be intellectually honest about what they are defending. The Administration most plainly did not comply with FISA. It deliberately chose to violate FISA based on the Administration's view, grounded in John Yoo's Memorandum, that it has the right to exert unchecked Executive power in times of even undeclared war, meaning that it has the right to violate Congressional statutes.

It is not in reasonable dispute that the Administration violated FISA. It plainly did. The statute explicitly requires judicial warrants for eavesdropping on alleged terrorist suspects except where there is an emergency need to eavesdrop before one can be obtained, in which case the Government is authorized to eavesdrop for up to 72 hours without a warrant.

Here, the Administration decided that, notwithstanding those statutory requirements, it would eavesdrop on terrorist suspects (at least) without obtaining warrants, and the President thus issued an order "authorizing" such warrantless surveillance. Put simply, then, the Administration engaged in surveillance in clear and deliberate violation of FISA.

Thus, those who want to defend the Administration therefore have to argue -- as the Administration itself has done -- that the Administration has the right to violate Congressional statutes. There is no good faith basis for arguing that the Administration complied with FISA, which is why those who are trying to do so have to distort the law when pretending to quote from it.

UPDATE: Glenn Reynolds, to his credit, appended an update to his original post which linked to the Al Maviva "legal analysis." In his update, Reynolds included a link to my post here and noted my argument that Al Maviva "misquotes the statute." (John Cole at Balloon-Juice has done the same).

But Reynolds also then asserts, with no analysis whatsoever (other than a meaninglessly unspecific notation that "people fail to appreciate how limited their protection against government surveillance" is) that it is "not so clear" that the Administration's warrantless surveillance violated FISA. But FISA, at least in this regard, is not complicated and, as demonstrated here, it is crystal clear that the Administration's warrantless eavesdropping violated its mandates. That is the only reason an Executive Order was needed from Bush to the NSA. To believe that it's "not so clear" that the Administration violated FISA is simply to allow one's pro-Administration desires to overwhelm one's judgment.

UPDATE II: The notion advanced by Bush defenders that the Administration's warrantless surveillance on American citizens complied with FISA is so plainly wrong that not even the Administration is claiming this to be the case. Instead, the Administration is acknowledging that this surveillance was not authorized by FISA but is insisting that it has the power to eavesdrop on American citizens without a warrant even though this Congressional statute bars it from doing so.

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