All Bush legally needs to spy on protesters is a foreign connection?

"In all cases (absent a warrant or other authority to target a specific citizen), the information that NSA may process and pass on is governed by the overriding requirement that it be relevant to “foreign intelligence”. But this critical restriction, which was carefully and precisely defined in FISA, has been re-interpreted in a way that greatly weakens the protection given to U.S. citizens against unreasonable search and seizure of their personal communications and information. In restricting the use of NSA surveillance under the Foreign Intelligence Surveillance Act, Congress defined “foreign intelligence” to be “information that … is necessary to the ability of the United States to protect against actual or potential attack or other grave hostile acts of a foreign power … or sabotage or international terrorism by a foreign power or an agent of a foreign power” (see 50 USC § 1801). But internal NSA guidance, including USSID 18, instructs Sigint staff to use the much broader meaning of “intelligence that relates to the capabilities, intentions and activities of foreign powers, organizations, or persons” (emphasis added).

It is arguable that this definition places little effective restriction on the communications that NSA may collect, process, retain or disseminate. As has been frequently observed, the occasions on which the First Amendment most matters is when those exercising it are lawfully championing an unpopular cause. The activities of international non-government organizations, or any dissent within the U.S. which has an international component, will inevitably involve the “activities” of “foreign persons”. Thus, if a lawful U.S. organization has any foreign connection, this can under existing regulations be used to authorize dissemination of the “incidentally” intercepted communications of its U.S. members.

This is exactly what happened to the antiwar protestors of the 1960s and 70s. During the Church Committee hearings in 1975, Senator Walter Mondale observed that among the MINARET intercepts which he had inspected was one from a “leading U.S. antiwar activist – and we know him to be a moderate, peaceful person … sent a message to a popular singer in a foreign country… asking him to take part in a peace concert”. NSA Director Lt-Gen Allen testified that such messages nevertheless fell properly within the tasking given to NSA at the time. They involved a U.S. peace group, an international communication to “an overseas location where foreign support and funding was requested”. He added:

It’s certainly true that at this moment in time one would have certainly a different view of that than at the time.

Such testimony appears to confirm that NSA regulations, then as now, can make the lawful the targeting of legitimate dissent within the U.S., provided only that NSA can detect some foreign component within their activity. Very few protest groups would avoid falling under such a definition, whether concerned with the environment, privacy, international trade, racial or gender issues, or many others. Even if one administration did not wish the intelligence community to conduct such surveillances, the next could take an entirely different view.

( Senate Select Committee to Study Government Operations with Respect to Intelligence Activities (Church), 94th Congress, First session, Volume 5, “National Security Agency and Fourth Amendment Rights”, p37.)