Man Without Qualities

Thursday, June 13, 2002

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

The renovating homeowner's most terrifying moments of epiphany are often marked by the contractor emitting the words "And while you're at it, you might as well ..." With this fateful utterance begins the description of a huge extension of the modest project one originally conceived, an argument made horribly ineluctable by the cruelly casual observation "it will be a lot cheaper to do it all now!" And the worst of it is HE'S USUALLY RIGHT! Do contractors have to go to some demonic school to learn this kind of thing?

Well, sensible people understand that the Foreign Surveillance Intelligence Act (FISA) needs an overhaul, especially its way-too-high “probable cause” standard for search warrants of non US persons. But while you’re at it, there are other bizarre aspects of FISA that need to be changed, too. Within FISA’s provisions for issuing warrants against agents of foreign powers is the following prohibition:

“[N]o United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.”

Zacarias Moussaoui was not a United States person, so this provision was not implicated in the FBI’s failure to obtain a warrant to search his computer. But if Moussaoui had been a United States person, consideration of the evidence of his contacts with “radical Islamic” representatives in Europe – the very French intelligence on which Agent Rowley’s memo places so much trust - would arguable have been expressly disallowed.

But the more recent arrest of Jose Padilla, also known as Abdullah Al Mujahir throws the irrationality of the above provision into high relief. Mr. Padilla is a United States person, who appears to be the agent of a foreign power – al Qaeda. We know this largely because of his contacts with “radical Islamic” representatives in Europe. But as Ann Coulter points out, “radical Islamic” representatives are very common in the general mix of Islam, especially in places like Britain. Much of this evidence of contacts with “radical Islamic” representatives would likely be impermissible under FISA in establishing Padilla’s status as an agent of the radical Islamic terrorist conspiracy al Qaeda.

Does this make any sense? Suppose an American citizen gets up on a soap box in Central Park and tells the public: “I am an agent of al Qaeda, the very group that destroyed the World Trade Center.” There is no question that such an American citizen has the First Amendment right to say such things in such a place and cannot be punished for saying it, but there is no also question that his statements could be used against him as evidence in a criminal conspiracy prosecution. So why does FISA expressly prohibit the FBI from using that evidence to establish his status as an “agent of a foreign power” in order to obtain a FISA warrant?

Any evidence that demonstrates a target is an agent of a foreign power - even if the evidence arises from activities of a United States person that are protected by the First Amendment - should be allowed for the purposes of showing an American is an agent of a foreign power and obtaining a FISA warrant.

The FISA First Amendment provision is even more bizarre than what the Padilla case exposes. Suppose the American citizen’s soapbox statements were slanderous in some way. Suppose, for example, he said that he has become a member of al Qaeda because George Bush had ordered the murder of Ten Million innocent Islamic babies, a statement that he knows to be completely false. Well, under the slander law and the Constitution, George Bush could successfully sue that American for slander – and Mr. Bush even has the right to obtain punitive damages for the intentionally slanderous statement. So the American doesn’t have a complete right to say the things he said. It is true that the First Amendment prohibits anybody from stopping his soap box speech – but he can be punished for it later. So in that case his speech doesn’t seem to be “activities protected by the first amendment to the Constitution of the United States.” So the statements can be used to obtain a FISA warrant?

Or suppose the American citizen chose to articulate his statement that he was a member of al Qaeda in print, in a way that made him money and also intentionally infringed someone else’s copyright. The owner of the copyright could obtain an injunction and damages, and federal copyright law makes the infringement a felony. It seems impossible to argue in this case that his statement of affiliation with al Qaeda constituted “activities protected by the first amendment to the Constitution of the United States.” So it appears his statements can be used to obtain a FISA warrant.

Could anyone in his right mind argue this makes sense? But that's what FISA says.

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