Posted 10:13 AM by Robert

And While You're at It, You Might As Well ... II

The Man Without Qualities has received the following letter from Philippe Richards regarding the prior post on the FISA First Amendment exclusion:

I disagree with you about FISA's probable cause standard, but your First Amendment discussion really takes the cake for sheer ridiculousness.

The FBI can use the statement made on a soapbox in Central Park, whether slanderous or not. It's evidence. What the statute says is that someone cannot be considered an agent of a foreign power solely because of First Amendment activities. For example, you could not be considered an agent of Britain for FISA purposes solely because you might have said you were glad Britain beat Argentina in the World Cup. Or by arguing in public that Israel should get out of the West Bank. These things don't make you an agent of Britain or of the Palestinian authority. And by the way, admitting you are a member of Al-Qaeda is something other than a First Amendment activity. It's a confession to membership in a criminal conspiracy, and is not "protected" by the First Amendment(what government would have any interest in suppressing that kind of speech?).

But this isn't even the type of activity that the FISA provision is concerned with. No, what it is concerned with, ironically, is a situation where the United States person really is an agent of a foreign power. These agents are all over the U.S., especially in Washington, which is literally crawling with them. They are openly acting as agents of foreign powers, friendly and unfriendly, are even meeting with high-level US officials, especially Members of Congress. You've undoubtedly seen some on TV. Have who figured out who these people are?

I'll give you a hint. Many have offices on K Street in D.C.

Many lobbyists have offices "on K Street in D.C." Mr. Richards appears to believe that the FISA First Amendment exclusion mostly concerns protection of lobbyists. I see little chance that this writer is correct, since the clear language of the exclusion applies to all United States persons and all of their "activities protected by the first amendment to the Constitution of the United States." Speaking on a public soapbox is the absolute paradigm of activities protected by the first amendment to the Constitution of the United States. Simply put: one's own "activities protected by the first amendment to the Constitution of the United States" can be used as evidence in a criminal trial - even though the activities themselves cannot be made crimes. A public confession of a crime is still protected speech. But the FISA exclusion expressly states that these activities can't be used as the sole evidence supporting a finding that a target is an agent of a foreign power. It is true, as the writer says, that "you could not be considered an agent of Britain for FISA purposes solely because you might have said you were glad Britain beat Argentina in the World Cup" - but this should be because being "glad Britain beat Argentina in the World Cup" does not normally have probative value of foreign agency.

On the other hand, if Mr. Richards is correct, then the FISA First Amendment exclusion is much more bizarre and inappropriate than I could possibly have imagined.