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merh's musings
Posted by merh in General Discussion: Presidential
Thu Jul 10th 2008, 07:46 PM
Please provide me the language from the legislation that supports your lovely little "bullet points".

I'll start, make it easy on you.

1) Judicial review is no longer required for a wiretap. The Attorney General or the freaking Director of National Intelligence simply have to issue an "authorization" that they are "targeting people reasonably believed to be located outside the United States."


MYTH (well actually blatant lie, but let's settle for myth).

‘SEC. 703. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES TARGETING UNITED STATES PERSONS OUTSIDE THE UNITED STATES.

‘(a) Jurisdiction of the Foreign Intelligence Surveillance Court-

‘(1) IN GENERAL- The Foreign Intelligence Surveillance Court shall have jurisdiction to review an application and to enter an order approving the targeting of a United States person reasonably believed to be located outside the United States to acquire foreign intelligence information, if the acquisition constitutes electronic surveillance or the acquisition of stored electronic communications or stored electronic data that requires an order under this Act, and such acquisition is conducted within the United States.

‘(2) LIMITATION- If a United States person targeted under this subsection is reasonably believed to be located in the United States during the effective period of an order issued pursuant to subsection (c), an acquisition targeting such United States person under this section shall cease unless the targeted United States person is again reasonably believed to be located outside the United States while an order issued pursuant to subsection (c) is in effect. Nothing in this section shall be construed to limit the authority of the Government to seek an order or authorization under, or otherwise engage in any activity that is authorized under, any other title of this Act.

‘(b) Application-

‘(1) IN GENERAL- Each application for an order under this section shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under subsection (a)(1). Each application shall require the approval of the Attorney General based upon the Attorney General’s finding that it satisfies the criteria and requirements of such application, as set forth in this section, and shall include--

‘(A) the identity of the Federal officer making the application;

‘(B) the identity, if known, or a description of the United States person who is the target of the acquisition;

‘(C) a statement of the facts and circumstances relied upon to justify the applicant’s belief that the United States person who is the target of the acquisition is--

‘(i) a person reasonably believed to be located outside the United States; and

‘(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

‘(D) a statement of proposed minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate;

‘(E) a description of the nature of the information sought and the type of communications or activities to be subjected to acquisition;

‘(F) a certification made by the Attorney General or an official specified in section 104(a)(6) that--

‘(i) the certifying official deems the information sought to be foreign intelligence information;

‘(ii) a significant purpose of the acquisition is to obtain foreign intelligence information;

‘(iii) such information cannot reasonably be obtained by normal investigative techniques;

‘(iv) designates the type of foreign intelligence information being sought according to the categories described in section 101(e); and

‘(v) includes a statement of the basis for the certification that--

‘(I) the information sought is the type of foreign intelligence information designated; and

‘(II) such information cannot reasonably be obtained by normal investigative techniques;

‘(G) a summary statement of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition;

‘(H) the identity of any electronic communication service provider necessary to effect the acquisition, provided that the application is not required to identify the specific facilities, places, premises, or property at which the acquisition authorized under this section will be directed or conducted;

‘(I) a statement of the facts concerning any previous applications that have been made to any judge of the Foreign Intelligence Surveillance Court involving the United States person specified in the application and the action taken on each previous application; and

‘(J) a statement of the period of time for which the acquisition is required to be maintained, provided that such period of time shall not exceed 90 days per application.

‘(2) OTHER REQUIREMENTS OF THE ATTORNEY GENERAL- The Attorney General may require any other affidavit or certification from any other officer in connection with the application.

‘(3) OTHER REQUIREMENTS OF THE JUDGE- The judge may require the applicant to furnish such other information as may be necessary to make the findings required by subsection (c)(1).

‘(c) Order-

‘(1) FINDINGS- Upon an application made pursuant to subsection (b), the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested or as modified by the Court approving the acquisition if the Court finds that--

‘(A) the application has been made by a Federal officer and approved by the Attorney General;

‘(B) on the basis of the facts submitted by the applicant, for the United States person who is the target of the acquisition, there is probable cause to believe that the target is--

‘(i) a person reasonably believed to be located outside the United States; and

‘(ii) a foreign power, an agent of a foreign power, or an officer or employee of a foreign power;

‘(C) the proposed minimization procedures meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate; and

‘(D) the application that has been filed contains all statements and certifications required by subsection (b) and the certification or certifications are not clearly erroneous on the basis of the statement made under subsection (b)(1)(F)(v) and any other information furnished under subsection (b)(3).

‘(2) PROBABLE CAUSE- In determining whether or not probable cause exists for purposes of paragraph (1)(B), a judge having jurisdiction under subsection (a)(1) may consider past activities of the target and facts and circumstances relating to current or future activities of the target. No United States person may be considered a foreign power, agent of a foreign power, or officer or employee of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.


So what do you have to support #2 - I just debunked #1 as court order is required, identity of target is required and monitoring stops if that US citizen returns to the US (unless new application to the court is made with new evidence/probable cause and in compliance with the requirements). Oh and please notice the entire paragraph in this provision dedicated to PROBABLE CAUSE. That silly ole 4th amendment, no warrant issue but based upon probable cause, or something like that. Not only does it protect the 4th (that damned probable cause thing), it protects the 1st.

Think of the application as an affidavit that is required by the courts before they will issue a search warrant to the police for regular old criminal shit. What differs here is the application requires more than the affidavit.

Your turn, back up #2.

On second thought, my posts debunk #2 & #3 as well.

2) The government does not need to reveal the target of their surveillance, and the NSA is the sole arbiter of who ends up being spied upon.

3) Judicial review is limited to simply confirming that the authorization "contains all the required elements." There is no required disclosure of individuals being targeted or the information that is being sought.


Have you got anything on 4 & 5?



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Faith is not simply a patience that passively suffers until the storm is past. Rather, it is a spirit that bears things - with resignations, yes, but above all, with blazing, serene hope. ~~ Corazon C. Aquino
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