Saturday, July 15, 2006

More on Specter's "Compromise"

Let's take a look at pages 25 thru 27 of S.2453. (text of the bill is in blockquotes, with my commentary in between, and I've bolded some of the text for effect)
"TITLE VIII-EXECUTIVE AUTHORITY
"SEC. 801 EXECUTIVE AUTHORITY.

"Nothing in this act shall be construed to limit the constitutional authority of the President to gather foreign intelligence or monitor the activities and communications of any person reasonably believed to be associated with a foreign enemy of the United States.".
That doesn't confuse the issue now does it? I thought the whole issue here was the president overstepping his authority.
(b) REPEAL. -Sections 111, 309, anf 404 of the Foreign Intelligence Surveillance Act of 1978v(50 U.S.C. 1811, 1829, and 1844) are repealed.
Ok, let's see what they want to repeal:

SUBCHAPTER I—ELECTRONIC SURVEILLANCE
§ 1811. Authorization during time of war

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 a period not to exceed fifteen calendar days following a declaration of war by the Congress.

SUBCHAPTER II—PHYSICAL SEARCHES
§ 1829. Authorization during time of war

Notwithstanding any other provision of law, the President, through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.

SUBCHAPTER III—PEN REGISTERS AND TRAP AND TRACE DEVICES FOR FOREIGN INTELLIGENCE PURPOSES
§ 1844. Authorization during time of war

Notwithstanding any other provision of law, the President, through the Attorney General, may authorize the use of a pen register or trap and trace device without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by Congress.

Back to Specter's bill:
(c) CONFORMING AMENDMENTS.-
(A) TITLE 18. - Section 2511(2) of title 18, United States Code, is amended-
(i) in paragraph (e), by striking ", as definedin section 101" and all that follows through the end of the paragraph and inserting the following: "under the constitutional authority of the executive of the Foreign Surveillance Act of 1978.";
Ok, let's see what that does:

TITLE 18—CRIMES AND CRIMINAL PROCEDURE
PART I—CRIMES
CHAPTER 119—WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
§ 2511. Interception and disclosure of wire, oral, or electronic communications prohibited

(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.

ok....now Specter wants it to read:

(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, under the constitutional authority of the executive or the Foreign Intelligence Surveillance Act of 1978.

And just what is section 101 of the Foreign Intelligence Surveillance Act of 1978?
It's the definitions section of the FISA law (public law 95-511) which is section 1801 of US code 50.

-HEAD-
Sec. 1801. Definitions

-STATUTE-
As used in this subchapter:
(a) "Foreign power" means -
(1) a foreign government or any component thereof, whether or
not recognized by the United States;
(2) a faction of a foreign nation or nations, not
substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign
government or governments to be directed and controlled by such
foreign government or governments;
(4) a group engaged in international terrorism or activities
in preparation therefor;
(5) a foreign-based political organization, not substantially
composed of United States persons; or
(6) an entity that is directed and controlled by a foreign
government or governments.

(b) "Agent of a foreign power" means -
(1) any person other than a United States person, who -
(A) acts in the United States as an officer or employee of
a foreign power, or as a member of a foreign power as defined
in subsection (a)(4) of this section;
(B) acts for or on behalf of a foreign power which engages
in clandestine intelligence activities in the United States
contrary to the interests of the United States, when the
circumstances of such person's presence in the United States
indicate that such person may engage in such activities in
the United States, or when such person knowingly aids or
abets any person in the conduct of such activities or
knowingly conspires with any person to engage in such
activities; or

(2) any person who -
(A) knowingly engages in clandestine intelligence gathering
activities for or on behalf of a foreign power, which
activities involve or may involve a violation of the criminal
statutes of the United States;
(B) pursuant to the direction of an intelligence service or
network of a foreign power, knowingly engages in any other
clandestine intelligence activities for or on behalf of such
foreign power, which activities involve or are about to
involve a violation of the criminal statutes of the United
States;
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation therefor,
for or on behalf of a foreign power;
(D) knowingly enters the United States under a false or
fraudulent identity for or on behalf of a foreign power or,
while in the United States, knowingly assumes a false or
fraudulent identity for or on behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of
activities described in subparagraph (A), (B), or (C) or
knowingly conspires with any person to engage in activities
described in subparagraph (A), (B), or (C).

(c) "International terrorism" means activities that -
(1) involve violent acts or acts dangerous to human life that
are a violation of the criminal laws of the United States or of
any State, or that would be a criminal violation if committed
within the jurisdiction of the United States or any State;
(2) appear to be intended -
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation
or coercion; or
(C) to affect the conduct of a government by assassination
or kidnapping; and

(3) occur totally outside the United States, or transcend
national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to coerce or
intimidate, or the locale in which their perpetrators operate
or seek asylum.

(d) "Sabotage" means activities that involve a violation of
chapter 105 of title 18, or that would involve such a violation
if committed against the United States.
(e) "Foreign intelligence information" means -
(1) information that relates to, and if concerning a United
States person is necessary to, the ability of the United States
to protect against -
(A) actual or potential attack or other grave hostile acts
of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power
or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of a
foreign power; or

(2) information with respect to a foreign power or foreign
territory that relates to, and if concerning a United States
person is necessary to -
(A) the national defense or the security of the United
States; or
(B) the conduct of the foreign affairs of the United
States.

(f) "Electronic surveillance" means -
(1) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire or radio
communication sent by or intended to be received by a
particular, known United States person who is in the United
States, if the contents are acquired by intentionally targeting
that United States person, under circumstances in which a
person has a reasonable expectation of privacy and a warrant
would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire communication
to or from a person in the United States, without the consent
of any party thereto, if such acquisition occurs in the United
States, but does not include the acquisition of those
communications of computer trespassers that would be
permissible under section 2511(2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical,
or other surveillance device of the contents of any radio
communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender
and all intended recipients are located within the United
States; or
(4) the installation or use of an electronic, mechanical, or
other surveillance device in the United States for monitoring
to acquire information, other than from a wire or radio
communication, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes.

(g) "Attorney General" means the Attorney General of the United
States (or Acting Attorney General) or the Deputy Attorney
General.
(h) "Minimization procedures", with respect to electronic
surveillance, means -
(1) specific procedures, which shall be adopted by the
Attorney General, that are reasonably designed in light of the
purpose and technique of the particular surveillance, to
minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information concerning
unconsenting United States persons consistent with the need of
the United States to obtain, produce, and disseminate foreign
intelligence information;
(2) procedures that require that nonpublicly available
information, which is not foreign intelligence information, as
defined in subsection (e)(1) of this section, shall not be
disseminated in a manner that identifies any United States
person, without such person's consent, unless such person's
identity is necessary to understand foreign intelligence
information or assess its importance;
(3) notwithstanding paragraphs (1) and (2), procedures that
allow for the retention and dissemination of information that
is evidence of a crime which has been, is being, or is about to
be committed and that is to be retained or disseminated for law
enforcement purposes; and
(4) notwithstanding paragraphs (1), (2), and (3), with
respect to any electronic surveillance approved pursuant to
section 1802(a) of this title, procedures that require that no
contents of any communication to which a United States person
is a party shall be disclosed, disseminated, or used for any
purpose or retained for longer than 72 hours unless a court
order under section 1805 of this title is obtained or unless
the Attorney General determines that the information indicates
a threat of death or serious bodily harm to any person.

(i) "United States person" means a citizen of the United
States, an alien lawfully admitted for permanent residence (as
defined in section 1101(a)(20) of title 8), an unincorporated
association a substantial number of members of which are citizens
of the United States or aliens lawfully admitted for permanent
residence, or a corporation which is incorporated in the United
States, but does not include a corporation or an association
which is a foreign power, as defined in subsection (a)(1), (2),
or (3) of this section.
(j) "United States", when used in a geographic sense, means all
areas under the territorial sovereignty of the United States and
the Trust Territory of the Pacific Islands.
(k) "Aggrieved person" means a person who is the target of an
electronic surveillance or any other person whose communications
or activities were subject to electronic surveillance.
(l) "Wire communication" means any communication while it is
being carried by a wire, cable, or other like connection
furnished or operated by any person engaged as a common carrier
in providing or operating such facilities for the transmission of
interstate or foreign communications.
(m) "Person" means any individual, including any officer or
employee of the Federal Government, or any group, entity,
association, corporation, or foreign power.
(n) "Contents", when used with respect to a communication,
includes any information concerning the identity of the parties
to such communication or the existence, substance, purport, or
meaning of that communication.
(o) "State" means any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Trust Territory
of the Pacific Islands, and any territory or possession of the
United States.

So if I'm reading this correctly Specter wants to ignore the definitions in FISA and allow the president to use his "executive authority" to define the who, what, where and how of government electronic surveillance.

Back to the bill:
and (ii) in paragraph (f), by striking "from international or foreign communications," and all that follows through the end of the paragraph and inserting "that is permitted under a Federal Statute or the Constitution of the United States.".
Here's how paragraph (f) reads now:

(f)Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Here's how Specter wants it to read:

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information that is permitted under a Federal Statute or the Constitution of the United States.

Looks like he's basically gutting FISA. Instead of using FISA to determine the exclusive means by which electronic surveillance may be conducted, now it will be whatever is permitted by "Federal Statute" (which will be his bill) or the Constitution, which will include (I suspect) the president's "Executive Authority."

Back to the bill:
(B) FISA. - SECTION 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a) is amended-
(i) in paragraph (1), by inserting "or under the constitutional authority of the executive" after "authorized by statute"; and
Let's break it down, how the referenced paragraph (1) reads now:

§ 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or

Now, how Specter wants it to read:

§ 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(1) engages in electronic surveillance under color of law except as authorized by statute; or under the constitutional authority of the executive.

It's obvious what that's all about.

Back into the belly of the beast:
(ii) in paragraph (2), by inserting "or executed under the constitutional authority of the executive" after "authorized by statute".
Here's how paragraph (2) reads now:

§ 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

Specter's version:

§ 1809. Criminal sanctions
(a) Prohibited activities
A person is guilty of an offense if he intentionally—
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute or executed under the constitutional authority of the executive.

More CYA for the executive by Specter and friends.

We're almost through this abomination:
(2) RETROACTIVE EFFECT.- The amendments made by paragraph (1) shall be construed to have the same effective date as the Foreign Intelligence Surveillance Act of 1978.
So basically, Specter's gutting FISA, and giving the President the authority that FISA was created to reign in. And on top of that he wants to make it all retroactive. Some compromise.

There's one last section of the bill, SECTION 10, which just amends the FISA table of contents.

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