Want proof that NSA snooping thwarts terror plots? Stand by, Senator Feinstein says

[stevenleser]

62. No, I'm not. You don't understand what that means.

The ultimate target of the investigation has to be a foreign sponsored or assisted espionage or terrorist group. That is what all of the caselaw on this says, and I have highlighted the relevant portions of US v Duggan below, to include a portion that spells out that the target may not be known.

Note also the last thing I bolded "Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

http://biotech.law.lsu.edu/cases/nat-sec/duggan.htm


II. FISA

[50] Enacted in 1978, FISA generally allows a federal officer, if authorized by the President of the United States acting through the Attorney General (or the Acting Attorney General or the Deputy Attorney General) of the United States, to obtain from a judge of the specially created FISA Court, see 50 U.S.C. ? 1803, an order "approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information." Id. ? 1802(b).

[51] FISA contains several definitions of "foreign power" and "agent of a foreign power." Most pertinently to this case, FISA defines "foreign power" to include "a group engaged in international terrorism or activities in preparation therefor." Id. ? 1801(a)(4). An "agent of a foreign power" is defined to include both "any person other than a United States person, who . . . acts in the United States as . . . a member of a foreign power as defined in [? 1801(a)(4)]," id. ? 1801(b)(1)(A), and "any person who . . . knowingly engages in . . . international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power," id. ? 1801(b)(2)(C). Section 1801(i) defines "United States person" to include

[52] a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), [and] an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence.

[53] The Act defines "foreign intelligence information," in part, as

[54] (1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against --

[55] (B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

[56] (2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to --

[57] (A) the national defense or security of the United States; or

[58] (B) the conduct of the foreign affairs of the United States.

[59] Id. ? 1801(e). "International terrorism" is defined to include activities that -- (1) involve violent acts or acts dangerous to human life that . . . would be a criminal violation if committed within the jurisdiction of the United States or any State;

[60] (2) appear to be intended --

[61] (A) to intimidate or coerce a civilian population;

[62] (B) to influence the policy of a government by intimidation or coercion; or

[63] (C) to affect the conduct of a government by assassination or kidnapping; and

[64] (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.

[65] Id. ? 1801(c).

[66] A federal officer making application for a FISA order approving electronic surveillance must include in his application, inter alia, "the identity, if known, or a description of the target of the electronic surveillance," id. ? 1804(a)(3); "a statement of the facts and circumstances relied upon by the applicant to justify his belief that . . . the target of the electronic surveillance is a foreign power or an agent of a foreign power," id. ? 1804(a)(4); and a certification by the Assistant to the President for National Security Affairs, or an executive branch designee of the President that, inter alia, the certifying official deems the information sought to be foreign intelligence information and that the purpose of the surveillance is to obtain foreign intelligence information, together with a statement of the basis for the certification that the information sought is the type of foreign intelligence information designated. Id. ? 1804(a)(7). When the target is a United States person, the government is required to minimize the acquisition and retention of nonpublic available information and to prohibit its dissemination, consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information, id. ? 1801(h); and the application must set out what minimization procedures are proposed, id. ? 1804(a)(5).

[67] The FISA Judge is authorized to enter an order approving electronic surveillance if he finds, inter alia, that

[68] on the basis of the facts submitted by the applicant there is probable cause to believe that --

[69] (A) the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States,

[70] id. ? 1805(a)(3), and finds that the applying official has obtained the requisite authorization and has submitted the required information, id. ?? 1805(a)(1), (2) and (5). If the target is a United States person, the FISA Judge is not to approve surveillance unless he finds that the certifications submitted pursuant to ? 1804(a)(7)(E) are not clearly erroneous on the basis of the data before him. Id. ? 1805(a)(5).

[71] Defendants mount two types of challenge with regard to FISA. First, they contend that the Act is unconstitutional on several grounds. In addition, they contend that even if FISA is not unconstitutional, its requirements were not met in this case.

[72] A. The Constitutionality of FISA

[73] Defendants contend that FISA is unconstitutional principally on the grounds that (1) it is so broad as to deprive certain persons of due process of law, (2) it violates the probable cause requirement of the Fourth Amendment, and (3) it deprives nonresident aliens of the equal protection of the law. We find no merit in these contentions.*fn4

[74] 1. The Scope of the Act

[75] Defendants argue that FISA is impermissibly broad in several respects. They point out that foreign intelligence information includes "information with respect to a foreign power . . . that relates to . . . (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States." 50 U.S.C. ? 1801(e)(2). They also point to the definition of an agent of a foreign power as a person, other than a United States person, who

[76] 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,

[77] id. ? 1801(b)(1)(B) (emphasis added), and to the definition of an agent of a foreign power as any person who

[78] 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,

[79] id. ? 1801(b)(2)(A) (emphasis added). Defendants argue that the breadth of the above definitions gives the Act unlimited scope and permits the electronic surveillance of persons who "may" be engaging in activities that "may" violate United States law.

[80] Interesting though these arguments may be in the abstract, they have no application to the case at hand. The information relayed by Hanratty to the FBI clearly portrayed Megahey as a member of a "group engaged in international terrorism or activities in preparation therefor," id. ? 1801(a)(4); Megahey was therefore an agent of a foreign power under ? 1801(b)(1)(A). There is no suggestion in the record that Megahey was targeted because he was or may have been gathering intelligence. The sections of the Act relied upon by the defendants to show that the Act is impermissibly broad are simply irrelevant to this case. The sections and definitions plainly applicable to Megahey are explicit, unequivocal, and clearly defined.

[81] Nor are we impressed by defendants' argument that insofar as ? 1801(e)(2) defines foreign intelligence information as information that "relates to . . . (A) the national defense or the security of the United States; or (B) the conduct of the foreign affairs of the United States" it is impermissibly vague. Section 1801(e)(1)(B) defines foreign intelligence information as "information that relates to . . . the ability of the United States to protect against . . . international terrorism by a foreign power or an agent of a foreign power." Given the information provided by Hanratty, the government plainly had a basis under this section for describing the information sought by surveillance of Megahey, self-proclaimed leader of an international terrorist group, as foreign intelligence information. Thus, even if we thought ? 1801(e)(2)'s concepts of national defense, national security, or conduct of foreign affairs to be vague, which we do not, we would find therein no basis for reversing the convictions of these defendants, whose circumstances were governed by an entirely different definition.

[82] 2. The Probable Cause Requirement of the Fourth Amendment

[83] The Fourth Amendment provides that "no warrants shall issue, but upon probable cause. . . ." Defendants argue principally (1) that the Amendment applies to all proposed surveillances, including those in national security cases, and (2) that even if there were an exception for national security matters, it would not apply to terrorism cases where the objects of the terrorism are entirely outside of the United States. We reject these contentions.

[84] Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment. See United States v. Truong Dinh Hung, 629 F.2d 908, 912-14 (4th Cir. 1980), cert. denied, 454 U.S. 1144, 71 L. Ed. 2d 296, 102 S. Ct. 1004 (1982); United States v. Buck, 548 F.2d 871, 875 (9th Cir.), cert. denied, 434 U.S. 890, 54 L. Ed. 2d 175, 98 S. Ct. 263 (1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.) (en banc), cert. denied, 419 U.S. 881, 42 L. Ed. 2d 121, 95 S. Ct. 147 (1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973), cert. denied, 415 U.S. 960, 39 L. Ed. 2d 575, 94 S. Ct. 1490 (1974); but see Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594, 633-651 (D.C. Cir. 1975), (dictum), cert. denied, 425 U.S. 944, 48 L. Ed. 2d 187, 96 S. Ct. 1685 (1976). The Supreme Court specifically declined to address this issue in United States v. United States District Court [Keith, J.], 407 U.S. 297, 308, 321-22, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972) (hereinafter referred to as " Keith &quot , but it had made clear that the requirements of the Fourth Amendment may change when differing governmental interests are at stake, see Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), and it observed in Keith that the governmental interests presented in national security investigations differ substantially from those presented in traditional criminal investigations. 407 U.S. at 321-324.