The "analysis" given on one TV newscast early this morning (Saturday) was that a specific Federal Law prohibits the recording of anything said by "US Persons¹" without a court order. A specific citation for the law was given, but unfortunately I wasn't where I could record it.

1. "US Persons" obviously includes citizens of the US, but has in many cases and for some but not all purposes been extended to include aliens legally in the US, so the concept is a bit fuzzy.

In the case of a conversation between a "US Person" and a "non-US person" that law has been interpreted to mean that an agency or agent of the Federal Government could record anything said by the "non-US person" but needed a warrant to record the other half of the conversation - what was said by the "US Person."

It does rather defy logic that if, as in an example given (paraphrased from recollection), a foreign national calls a "US Person" it is legal to record the question "where do you strike next?" asked by the foreign person but is not legal to record "we're going to nuke Boston next Thursday" in the reply by the "US Person;" but that has been(?) the interpretation of the specific law cited.²

2. No reference to judicial decisions on this interpretation were made, so it has to be taken as an "unverified" interpretation.

Since the "permission" was given in a secret document that has not been released, the report on it's content and on how it may have been used is pure wild-assed guesswork.

The Constitutional bar on covert surveillance (especially wire-tapping or other covert listening) would appear to come from the IV amendment:

Amendment IV - Search and seizure. Ratified 12/15/1791.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The courts have taken a very strict interpretation here, that the intent is that there shall be no search and/or seizure in the absence of a Warrant. Exceptions are generally limited to cases where there is credible evidence that a crime is in the process of being committed³, and in some cases where there is "open visibility" of a clear cause.⁴

3. The phrase "clear and present danger" is frequently cited as justification for a warrantless search here, and includes the lawful "pat down" if a law enforcement officer suspects a reasonable possibility of a weapon. A pat down search for drugs would be a different matter.

4. A law enforcement officer who stops you for a traffic offense cannot ordinarily search your vehicle without valid reason, but if you left the bong visible on the seat where it is easily seen when he/she approaches your vehicle, a search would probably be upheld.

The only statement from the Executive Department has been that "no laws were violated." Since the Patriot Act gave any "person of specific level of authority"⁵ in the FBI and several other "security agencies" the power to authorize wire-taps on personal recognizance without judicial approval (i.e. without a warrant), it likely may be claimed that the Presidental instruction merely extended this authority⁶ to the NSF.

5. EVERY agent of the FBI who is authorized to conduct "field investigations" is "of that specific level of authority" and is not required to account for cases in which he/she decides to listen in on someone.

6. The Patriot Act has not been subjected to judicial review and many people believe that quite a few things therein are significant violations of Constitutional rights of citizens (and others).

There is a substantial body of case law supporting the appropriate existence of "secrets" in the "national interest." Some precedents may (or may not) support the "reasonable search and seizure"⁷ that is asserted as being authorized in the "secret instruction." Recent legislation, specifically the Patriot Act but included some earlier stuff, may support what is claimed to have been done as "legal."

7. Listening is search. Recording is seizure. Both are implied in what is reported.

Most of what I've seen thus far on this incident seems motivated more by politics than by concern about the health of the nation, although it does appear that there probably is a cause for concern and quite likely for adjudication. A court review of the legality of what's apparently been done is unlikely, and certainly won't occur in any timely fashion.

Pending further information, about all one can do is "have an opinion." I do have one, but I'll have to wait a bit to see if it's a good one.

John