The indispensable New York Sun in its lead editorial yesterday had a powerful analysis about the gathering of intelligence:
'...But contrary to what you may read in some other newspapers, that law [Foreign Intelligence Surveillance Act of 1978] does not require that all such surveillance be authorized by a court. The law provides at least two special exceptions to the requirement of a court order. As FISA has been integrated into Title 50 of the U.S. Code, Chapter 36, Subchapter I, Section 1802, one such provision is helpfully headed 'Electronic surveillance authorization without a court order.''
'This 'without court order' was so clear that even President Carter, a Democrat not known for his vigilance in the war on terror, issued an executive order on May 23, 1979, stating, 'Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.' He said, 'without a court order.''
There is some discussion by the Sun editors of qualifications and circumstances in Section 1802. Then the argument continues:
'And if Section 1802 isn't enough, regard section 1811 of the same subchapter of the United States Code, 'Authorization during time of war.' It 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 Congress.'
Again, mark the phrase 'without a court order.''
The Sun editors expand on the question of whether Congress has declared war and conclude that Congress did formalize a state of war against our enemies after September 11.
But note the recurrence of the phrase 'without a court order' in the context of intelligence surveillance.
Greg Richards 12 20 05