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Chapter 2

SUBJECTS OF INTERNATIONAL LAW

States-International Status, Attributes,

and Types

Rights and Duties of States

Self-Preservation

On October 25, 1978, President Carter approved the Foreign Intelligence Surveillance Act of 1978, Public Law 95-511 (92 Stat. 1783; 50 U.S.C. 1801–1811; 18 U.S.C. 2511, 2518, 2519). The Act provides a statutory procedure for courts to authorize use of electronic surveillance to obtain foreign intelligence information, and establishes a rule of law governing such surveillance within the United States in respect of intelligence gathering activities of foreign powers within the United States. At the same time it attempts to strike a balance between protection of personal liberties guaranteed by the Constitution and the protection of national security.

Section 102 of the Act establishes, in subsection (a), conditions and procedures under which the President, through the Attorney General, may authorize electronic surveillance to acquire foreign intelligence information for periods of up to one year without a court order under title I of the Act ("Electronic Surveillance within the United States for Foreign Intelligence Purposes"). Subsection (b) authorizes applications to the (special) court established by section 103 for an order, and the grant by a judge of that court of an order, in conformity with section 105, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information. Subsection (b) also deprives the (special) court of jurisdiction to grant any order approving electronic surveillance directed solely as described in subsection (a) (1) (A), unless the surveillance may involve the acquisition of communications of any United States person.

Under section 103 of the Act, the Chief Justice of the United States is required to designate seven United States district court judges from seven of the United States judicial circuits, to constitute a court having jurisdiction to hear applications for and to grant orders approving electronic surveillance under the procedures set forth in the Act. The Chief Justice must also designate three judges from the United States

district courts or courts of appeals, who together comprise a court of review having jurisdiction to review denial (by a designated district judge) of any application made under the Act. (The Supreme Court has jurisdiction to review on certiorari a decision by the court of review, determining that an application was properly denied.) Records of proceedings under the Act, including applications made and orders granted, are to be maintained under security measures which the Chief Justice shall establish, in consultation with the Attorney General and the Director of Central Intelligence. Judges designated under section 103 so serve for a maximum of seven years and are ineligible for redesignation; provision is made, however, for staggered terms for the judges first designated for each court.

Section 104 details, in subsection (a), the criteria and contents required in an application for an order to a judge having jurisdiction under section 103, with exceptions, set out in subsection (b), where the target of the surveillance is a foreign power and each of the facilities or places at which the surveillance is directed is owned, leased, or exclusively used by that foreign power.

Section 105 prescribes the conditions under which the order is to be issued, its contents, and its duration. It authorizes, and prescribes conditions for, emergency employment of electronic surveillance on authorization of the Attorney General, for a period of up to twentyfour hours; it also places limitations upon the use of information or evidence from such emergency surveillance where no order is issued approving the surveillance or where an application for such an order is denied.

Section 106 establishes rules for the use of information acquired from an electronic surveillance, as well as for its disclosure and its being entered into evidence or otherwise used or disclosed in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority, either of the United States or of a State or a political subdivision thereof, against the "aggrieved person" (in regard to whom, see the text of section 101 of the Act, post). Section 106 includes detailed requirements for notifications to the "aggrieved person" and to courts and other authorities. It also sets out procedures regarding motions to suppress evidence on grounds that the information was unlawfully acquired or the surveillance was not made in conformity with an order of authorization or approval.

Section 108, "Congressional Oversight," requires full informational, semiannual reports by the Attorney General to the House Permanent Select Committee on Intelligence and to the Senate Select Committee on Intelligence, and annual reports for a five-year period by those committees to the House of Representatives and the Senate, respectively.

Section 109 contains penal sanctions for engaging in electronic surveillance under color of law except as authorized by statute, or for disclosure or use of information so obtained, if a person knows or has reason to know that the information was obtained by electronic surveillance not authorized by statute. Section 110 confers upon an "aggrieved person," "other than a foreign power or an agent of a foreign power, as defined in section 101 (a) or (b) (1) (A)" (see, post), who has been the victim, in effect, of an offense under section 109, a right to damages against any person committing a violation under section 109. Recovery includes actual damages (not less than liquidated damages of $1,000, or $100 per day for each day of violation, whichever is greater), punitive damages, and reasonable attorney's fees and other investigation and litigation costs reasonably incurred. Section 111, "Authorization during Time of War," reads:

AUTHORIZATION DURING TIME OF WAR

Sec. 111. Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

Sec. 101, containing definitions, reads in part:

(a) "Foreign power" means

(1) a foreign government or any component thereof, whether or not recognized by the United States;

(2) a faction of a foreign nation or nations, not substantially composed of United States persons;

(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;

(4) a group engaged in international terrorism or activities in preparation therefor;

(5) a foreign-based political organization, not substantially composed of United States persons; or

(6) an entity that is directed and controlled by a foreign government or governments.

(b) "Agent of a foreign power" means

(1) any person other than a United States person, who

(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a) (4); (B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or

(2) any person who

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

or

(D) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

(c) "International terrorism" means activities that

(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;

(2) appear to be intended

or

(A) to intimidate or coerce a civilian population;

(B) to influence the policy of a government by intimidation or coercion ;

(C) to affect the conduct of a government by assassination or kidnapping; and

(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.

(d) "Sabotage" means activities that involve a violation of chapter 105 of title 18, United States Code, or that would involve such a violation if committed against the United States.

(e) "Foreign intelligence information" means—

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to

(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.

(f) "Electronic surveillance" means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or (4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information,

other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 101 (a) (20) of the Immigration and Nationality Act), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a) (1), (2), or (3).

(j) "United States", when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.

(k) "Aggrieved person" means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.

(1) "Wire communication" means any communication while it is being carried by a wire, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.

(m) "Person" means any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.

(n) "Contents", when used with respect to a communication, includes any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication.

(o) "State" means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.

For the report of the Senate Committee on the Judiciary on S. 1566, see S. Rept. 95-604 (Pts. I and II), 95th Cong., 2d sess. (1978); for the report of the Senate Select Committee on Intelligence, see S. Rept. 95-701, 95th Cong., 2d sess. (1978); for the report of the House Permanent Select Committee on Intelligence, upon H.R. 7308 (in lieu of which S. 1566 was passed), see H.R. Rept. 95-1283, 95th Cong., 2d sess. (1978). The conference report is H.R. Rept. 95-1720, 95th Cong., 2d sess. (1978).

Judicial authorization for electronic surveillance to investigate and prevent specified serious crimes had been instituted by the Omnibus Crime Control and Safe Streets Act of 1968 (P.L. 90-351, June 19, 1968, 82 Stat. 197), which did not, however, legislate in the national security area. A longstanding policy of warrantless electronic surveillance for national defense, and thereafter for national security, purposes, dated back to an authorization from President Franklin D. Roosevelt to Attorney General Robert H. Jackson, May 21, 1940 (printed U.S. v. Smith, 321 F. Supp. 424, 430-431 (CD, Calif., 1971)). The Supreme Court held that the practice was subject to Fourth Amendment standards (a warrant issued by a magistrate upon a showing of probable cause), in regard to internal, or domestic, security, in U.S. v. U.S. District Court, 407 U.S. 297, decided June 19, 1972, affirming 444 F.2d 651 (6 Cir. 1971). The case is known as the Keith case, from the name of the U.S. district court judge (Damon J. Keith), whose order in U.S. v. Sinclair, 321 F. Supp. 1074 (ED, Mich., 1971), had given rise to it.

The Foreign Intelligence Surveillance Act of 1978 subjected the exercise of this power to ultimate judicial scrutiny and congressional oversight.

On January 24, 1978, President Carter signed Executive Order 12036, "United States Intelligence Activities," which, building upon

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