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President Bush Tonight: "We Will Not Sit Back and Wait to be Hit Again"

8:17 PM, Jan 31, 2006 • By DANIEL MCKIVERGAN
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Given the president's remarks, here is an interesting note on the NSA/FISA controversy sent in by a Worldwide Standard reader:

President Bush's wiretaps were absolutely -- without any doubt -- NOT in violation of FISA, but you have to read between the lines of [Attorney General] Gonzales' 42-page legal report.

The key:

1. Footnote #5, p.17

[To avoid revealing details about the operation of the program, it is assumed for purposes of this paper that the activities described by the President constitute "electronic surveillance," as defined by FISA, 50 U.S.C. § 1801(f).]

2. 50 USC Sec. 1801(f)(2), particularly the clause "…if such acquisition occurs in the United States…."

3. Footnote #6, p. 19

FISA's legislative history reveals that these provisions were intended to exclude certain intelligence activities conducted by the National Security Agency from the coverage of FISA. According to the report of the Senate Judiciary Committee on FISA, "this provision [referencing what became the first part of section 2511(2)(f)] is designed to make clear that the legislation does not deal with international signals intelligence activities as currently engaged in by the National Security Agency and electronic surveillance conducted outside the United States." S. Rep. No. 95-604, at 64 (1978), reprinted in 1978 U.S.C.C.A.N. 3904, 3965. The legislative history also makes clear that the definition of "electronic surveillance" was crafted for the same reason. See id. at 33-34, 1978 U.S.C.C.A.N. at 3934-36. FISA thereby "adopts the view expressed by the Attorney General during the hearings that enacting statutory controls to regulate the National Security Agency and the surveillance of Americans abroad raises problems best left to separate legislation." Id. at 64, 1978 U.S.C.C.A.N. at 3965. Such legislation placing limitations on traditional NSA activities was drafted, but never passed. See National Intelligence Reorganization and Reform Act of 1978: Hearings Before the Senate Select Committee on Intelligence, 95th Cong., 2d Sess. 999- 1007 (1978) (text of unenacted legislation). And Congress understood that the NSA surveillance that it intended categorically to exclude from FISA could include the monitoring of international communications into or out of the United States of U.S. citizens. The report specifically referred to the Church Committee report for its description of the NSA's activities, S. Rep. No. 95-604, at 64 n.63, 1978 U.S.C.C.A.N. at 3965-66 n.63, which stated that "the NSA intercepts messages passing over international lines of communication, some of which have one terminal within the United States. Traveling over these lines of communication, especially those with one terminal in the United States, are messages of Americans . . . ." S. Rep. 94-755, at Book II, 308 (1976). Congress's understanding in the legislative history of FISA that such communications could be intercepted outside FISA procedures is notable.

It appears the careful definition of "electronic surveillance" as used in FISA exempts the program from FISA. This is evident when you re-read the original New York Times article and realize that the government officials were not concerned about FISA but rather 4th Amendment violations. It's interesting that talking head law professors are not concerned about the Fourth Amendment, but rather about FISA. This strongly suggests that Bush is on firm legal footing.