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Executive Orders For Warrantless Wiretapping

Here is the entire FISA Act. Section 1802 covers electronic surveillance under the Act without a court order. You may have to check the GAO database to make sure none have been updated recently. I will be posting another version from Lexis later, but since readers can't access it without paying, I thought this publicly available version would be helpful to get you started.

Section 1811 of the act pertaining to surveillance during wartime states:

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.

Section 1805 of the Act covers emergency situations where a court order cannot be obtained in advance. Such surveillance can only last 72 hours before an Order is applied for.

(f) Emergency orders
Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that--

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. (My emphsisis)

Section 1809 contains the penalties for those, including law enforcement officers, who conduct electronic surveillance in violation of the Act. Up to five years in jail is authorized. There is a section containing a defense to the charges, but it requires that there have been a court order for the surveillance:

It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.

*******
In 1979, President Jimmy Carter issued this order on warrantless electonic surveillance when national security is at issue. Note the paragraph that says:

1-105. Section 2-203 of Executive Order No. 12036 [set out under section 401 of this title] is amended by inserting the following at the end of that section: "Any monitoring which constitutes electronic surveillance as defined in the Foreign Intelligence Surveillance Act of 1978 shall be conducted in accordance with that Act as well as this Order."

I have not seen President Bush's exective order that he referred to today in his speech. Again, these sections may not be completely updated, so it's just a primer to get you started.

Also to come: a recap of how the Patriot Act affected FISA, what Ashcroft asked for and what Congress gave him.

< Bush Admits Ordering Secret Wiretaps More Than 30 Times | Blog Upgrade: Comments Back on >
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  • Re: Executive Orders For Warrantless Wiretapping (none / 0) (#1)
    by Dadler on Sat Dec 17, 2005 at 02:11:39 PM EST
    I see "foreign intelligence information". Nothing that says "domestic". I see "emergency situations where a court order cannot be obtained in advance." Nothing that says "non-emergency situations where a court order is certainly able to be obtained in advance." Am I missing something here?

    Re: Executive Orders For Warrantless Wiretapping (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 02:13:48 PM EST
    I don't think you are, Dadler. In addition, Bush's argument that Congress gave him the equivalent of a declaration of war is patently ridiculous, GWOT verbiage nonwithstanding.

    Re: Executive Orders For Warrantless Wiretapping (none / 0) (#5)
    by Talkleft Visitor on Sat Dec 17, 2005 at 02:57:02 PM EST
    I think the following is the relevant portion of the statute:
    § 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;
    Not by Executive Order. Personally, I don't think Bush or Gonzales should serve more than 5-6 years in prison for their offenses. But I'm soft.

    Re: Executive Orders For Warrantless Wiretapping (none / 0) (#6)
    by Steven Sanderson on Sat Dec 17, 2005 at 03:36:25 PM EST
    Warrantless wiretapping brings back memories of the Mitchell Doctrine under which the Nixon administration argued that in national security cases the President, or the U.S. Attorney General as his representative, could bypass the Fourth Amendment and legally order warrantless wiretaps. Of course the U.S. Supreme Court ruled unanimously against the Nixon crowd in the Keith decision. Even with the FISA Court in place, the Bush administration is going for a power grab that'll likely far exceed what was attempted with the Mitchell Doctrine. That is very frightening.

    Re: Executive Orders For Warrantless Wiretapping (none / 0) (#7)
    by Talkleft Visitor on Sat Dec 17, 2005 at 04:48:42 PM EST
    Even with the FISA Court in place, the Bush administration is going for a power grab that'll likely far exceed what was attempted with the Mitchell Doctrine. That is very frightening. I agree. Imagine what the Hildebeast will do with these powers...

    Re: Executive Orders For Warrantless Wiretapping (none / 0) (#8)
    by soccerdad on Sat Dec 17, 2005 at 05:47:57 PM EST
    This is spot on from David Sirota
    The story of President Bush deliberately breaking the law to create a domestic spy operation is a lot of different things: it is a tale of power abuse, arrogance, and contempt for the law by an out-of-control president. But it is also a story of how today's major media behave with near total deference to power and its own profit motive. What we are watching, even in the seemingly small details of the coverage, is no less than the media's complicity in helping estsablish a quasi-legal framework for what was a clearly illegal abuse of government power. It is in the clearest sense the media being used as tools of state power in overriding the very laws that are supposed to confine state power


    Re: Executive Orders For Warrantless Wiretapping (none / 0) (#9)
    by Talkleft Visitor on Sat Dec 17, 2005 at 05:50:59 PM EST
    Did anyone find an extra-chomosome or two lying around here? Scott seems to be missing a few.

    Re: Executive Orders For Warrantless Wiretapping (none / 0) (#10)
    by Strick on Sat Dec 17, 2005 at 08:12:48 PM EST
    There might be more to the law than seems from what's quoted here:
    Generally, the Foreign Intelligence Surveillance Act (FISA) requires a warrant for the monitoring of U.S. persons on U.S. soil, but does not necessarily require a warrant for monitoring agents of foreign powers in similar circumstances. Keep in mind, this is intelligence monitoring, not wiretapping the phones of your local mafia hoodlums. According to 50 U.S.C. 1801, the definitions section of FISA, an agent of a foreign power is: b(1) any person other than a United States person, who?. . . acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States OR (b)(2) any person who. . .knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power. . . [or who] knowingly aids or abets any person in the conduct of activities described [herein].
    http://coldfury.com/index.php/?p=6116

    Strick, that's based on an intentional misquoting of the statute, as exposed here.

    Re: Executive Orders For Warrantless Wiretapping (none / 0) (#12)
    by Patrick on Sun Dec 18, 2005 at 11:43:17 AM EST
    If I read it correctly, it's not an intentional misquote. It's a difference of interpretation. A legal distinction on which some people disagree.