Wednesday, December 21, 2005

FISA and "United States Persons"

We've been getting more FISA talk on the cable news channels this morning. To review the bidding, at question is the FISA subchapter titled "Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court[.]"

The mainstream media discussion has centered on who, exactly, was targeted by the non-court approved phone intercepts. The pertinent parts of this FISA subchapter appear to be:
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party[.] (Emphasis added.)

The main point seems to be whether or not the unwarranted intercepts were conducted with "no substantial liklihood" that a "United States person" was involved.

Next question: what is a "United States person?"

The answer seems to lie somewhere in section 1 of the Fourteenth Amendment.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It's probably safe to say that if you're a citizen, you're a "United States person." I'm not certain yet whether legal aliens qualify.

More on that as information surfaces.


Here's the final sub-sub-sub paragraph of this subchapter of FISA:
Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

See what you think, but this appears to me to be double/triple/quadruple negative language that says the Attorney General needs a warrant to conduct electronic surveillance on a United States person.

Whatever kind of person that is, exactly.

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