4 ms·

Oof, that is a complicated question to answer. In short, outside of EO 12333, there is the Constitution, other Executive Orders, federal statutes (e.g., Foreign

Oof, that is a complicated question to answer. In short, outside of EO 12333, there is the Constitution, other Executive Orders, federal statutes (e.g., Foreign Intelligence and Surveillance Act, Intelligence Authorization Act(s), etc.), case law, etc. which would have to be considered as part of that process. I highly recommend taking a look at the Intelligence Community Legal Reference Book published by ODNI [1]. If you're into that kind of stuff, it is a fascinating read. [1] https://www.dni.gov/files/documents/IC_Legal_Ref_2009.pdf https://www.dni.gov/files/documents/IC_Legal_Ref_2009.pdf

phobosanomaly 6y ago
Sorry, I didn't do a good job of spelling that out. I was trying to be more narrow and keep it with EO 12333. My argument was: A. The definition of foreign power and foreign agent are loose enough that a legal team acting in bad faith could make the argument that protesters could be included in the latter group. B. EO 12333 could then be applied to those protestors, which would allow the FBI to engage in unconsented physical searches, etc under the executive order C. Could occur at a time when the heads of the White House, DOJ, and IC elements were politically aligned and showed no dissent D. Could occur under a situation of disorganized oversight occurring during a time of national chaos Under this more specific scenario, what would prevent this from happening, where a protester is included in a legal definition made in bad faith that makes an end-run around those other obstacles you mentioned (via EO 12333) to arrive at novel law enforcement powers? Again, I appreciate you taking the time to talk about this. I'm just curious and bored so I wanted to play with the idea.
- bladegash 6y ago
  This is a bit outside of my domain of expertise from my previous life, but I’ll do my best to answer... There isn’t really an end run around they can use. The definitions may be a little loose, but when it concerns a United States person, the requirements in the Foreign Intelligence Surveillance Act come in to play. There is typically a presumption that anyone in the United States is a US person, unless evidence exists otherwise, so the protestors in your scenario would almost certainly be presumed US persons. As a result, a warrant would have to be obtained via the FISA court in order to conduct the unconsented physical search[1]. EO 12333 isn’t saying the FBI has carte Blanche to conduct those activities (even if the AG tries to say so). It is saying that IF someone is going to conduct those activities in the United States/domestically, the FBI will be the only ones to do so. It doesn’t preclude them from still having to abide by FISA though. There is a lot more flexibility for anywhere/anyone outside of the US though. Hypothetically, could a coordinated modification be made to the EO and/or the agency’s attorney general guidelines? Possibly, but probably not for anything that is consequential. Like I mentioned, there are a lot of other factors that limit the AG’s flexibility. That’s why when you kind of have to look at things like EO 12333 in context of a bunch of other policies and established precedents. It’s really only part of the story within a very complicated legal framework. Sorry, it is late at night and my brain isn’t working as well at this point. I appreciate the discussion and if I can think of anything else tomorrow I’ll try to respond a little further. [1] https://www.law.cornell.edu/uscode/text/50/1822 https://www.law.cornell.edu/uscode/text/50/1822
  - phobosanomaly 6y ago
    Don't apologize, I think that was a great explanation. "It’s really only part of the story within a very complicated legal framework." I work in the biological sciences, and this resonates with me strongly. When discussing things here I often find people taking isolated biochemical pathways out of the broader context of the biochemical milieu of the cell. Now, I am one of those people, but I'm taking a single legal element, and ignoring the broader legislative milieu. Plus I'm really high, so even the minutiae is fascinating. Thanks for taking the time to discuss. Appreciate it.

phobosanomaly 6y ago

Sorry, I didn't do a good job of spelling that out. I was trying to be more narrow and keep it with EO 12333. My argument was: A. The definition of foreign power and foreign agent are loose enough that a legal team acting in bad faith could make the argument that protesters could be included in the latter group. B. EO 12333 could then be applied to those protestors, which would allow the FBI to engage in unconsented physical searches, etc under the executive order C. Could occur at a time when the heads of the White House, DOJ, and IC elements were politically aligned and showed no dissent D. Could occur under a situation of disorganized oversight occurring during a time of national chaos Under this more specific scenario, what would prevent this from happening, where a protester is included in a legal definition made in bad faith that makes an end-run around those other obstacles you mentioned (via EO 12333) to arrive at novel law enforcement powers? Again, I appreciate you taking the time to talk about this. I'm just curious and bored so I wanted to play with the idea.

bladegash 6y ago
This is a bit outside of my domain of expertise from my previous life, but I’ll do my best to answer... There isn’t really an end run around they can use. The definitions may be a little loose, but when it concerns a United States person, the requirements in the Foreign Intelligence Surveillance Act come in to play. There is typically a presumption that anyone in the United States is a US person, unless evidence exists otherwise, so the protestors in your scenario would almost certainly be presumed US persons. As a result, a warrant would have to be obtained via the FISA court in order to conduct the unconsented physical search[1]. EO 12333 isn’t saying the FBI has carte Blanche to conduct those activities (even if the AG tries to say so). It is saying that IF someone is going to conduct those activities in the United States/domestically, the FBI will be the only ones to do so. It doesn’t preclude them from still having to abide by FISA though. There is a lot more flexibility for anywhere/anyone outside of the US though. Hypothetically, could a coordinated modification be made to the EO and/or the agency’s attorney general guidelines? Possibly, but probably not for anything that is consequential. Like I mentioned, there are a lot of other factors that limit the AG’s flexibility. That’s why when you kind of have to look at things like EO 12333 in context of a bunch of other policies and established precedents. It’s really only part of the story within a very complicated legal framework. Sorry, it is late at night and my brain isn’t working as well at this point. I appreciate the discussion and if I can think of anything else tomorrow I’ll try to respond a little further. [1] https://www.law.cornell.edu/uscode/text/50/1822 https://www.law.cornell.edu/uscode/text/50/1822
- phobosanomaly 6y ago
  Don't apologize, I think that was a great explanation. "It’s really only part of the story within a very complicated legal framework." I work in the biological sciences, and this resonates with me strongly. When discussing things here I often find people taking isolated biochemical pathways out of the broader context of the biochemical milieu of the cell. Now, I am one of those people, but I'm taking a single legal element, and ignoring the broader legislative milieu. Plus I'm really high, so even the minutiae is fascinating. Thanks for taking the time to discuss. Appreciate it.