The 2007 Eastern Regional Moot Court Competition

THE SUPREME COURT

OF THE UNITED STATES

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No. 2006-328

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William DeNolf, Bobby Bronner and Chester Comerford, Petitioners

United States, Respondent

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On Writ of Certiorari to the

United States Circuit Court of Appeals

Seventeenth Circuit

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ORDER OF THE COURT ON SUBMISSION

The petition for writ of certiorari to the United States Court of Appeals for the Fourteenth Circuit is granted for consideration of the following questions presented:

IT IS THEREFORE ORDERED that counsel appear before the Supreme Court to present oral argument on the following issues:

(1) Whether the President has the authority under Article II of the United States Constitution and/or the Authorization of Military Force to conduct warrantless surveillance of American citizens ;

and,

(2) Whether the 4^th Amendment to the United States Constitution and/or FISA were violated by the warrantless surveillance of American citizens.

On May 21, 2004, William DeNolf, Bobby Bronner and his cousin Chester Comerford were arrested by agents of the United States Government and charged with conspiring to blow up the Olympus branch of Citibank. DeNolf, Bronner and Comerford were members of a secret organization committed to the abolition of ATM fees known as Ban ATM Fees (BATM).[1] Based in Santa Monica, California, BATM was a splinter group of a larger secret survivalist organization known as Y2K-NOT-OK. The Federal Bureau of Investigation (FBI), concerned that many survivalist outfits were providing cover for opponents of the United States, surveilled a number of members of Y2K-NOT-OK between January, 15, 1998 and January 15, 2000 on suspicion that the group might plan to “cause or take advantage” of any complications arising from anticipated computer disruptions caused by the so-called “Y2K bug.” This surveillance included electronic devices and as infiltration of an undisclosed number of undercover FBI agents. The Government discontinued much of its surveillance of Y2K-NOT-OK shortly after the millennium passed without incident. The FBI concluded that Y2K-NOT-OK in general had no designs to harm the United States or its people. It did conclude, however, that elements of the organization were still a threat and, consequently, were to remain under direct surveillance by undercover agents of the FBI. Among these elements to remain under surveillance was BATM. After the millennium had come without incident or harm, Y2K-NOT-OK decided to disband. Consistent with existing federal law, the FBI informed Y2K-NOT-OK that it had been surveilled between January 15, 1998 and January 15, 2000.

When BATM split off from Y2K-NOT-OK, it took measures aimed at making additional government surveillance difficult if not unlikely. First, it ceased all use of telephones. Second, its members communicated through coded E-Mails or coded advertisements placed in English-speaking newspapers that were foreign owned and could be purchased in the United States. All E-Mails were sent using E-Mail accounts established outside the United States. Third, foreign travel was prohibited. Fourth, BATM’s seven original members decided among themselves to purge itself of all non-founding members. This ultimately included the undercover FBI agents.

On May 21, 2004, DeNolf, Bronner and Comerford were apprehended by federal agents as they attempted to enter the Olympus branch of Citibank. On their persons, authorities found a variety of items including explosive and detonative devices. The men were arrested and charged with attempting to blow up a building, possession of illegal explosives without a permit, attempted murder, and conspiracy to commit domestic terrorism.

DeNolf, Bronner and Comerford were arraigned before a federal magistrate at an undisclosed location in Olympus. They pled “not guilty” and were transferred to a maximum security federal prison in upstate Olympus. Counsel was provided under Special Administrative Measures (SAMs) established by the Attorney General of the United States. Part of these SAMs was the denial of discovery. On March 24, 2005, DeNolf, Bronner and Comerford filed suit in federal district court for New York seeking that the SAMs be lifted and that the United States be compelled to participate in discovery. The judge in the case, The Honorable D.R. Fair, instructed the United States to appear before him and to “show cause”for its use of SAMs and its denial of discovery. Before the parties were scheduled to appear, the New York Times reported that the United States had conducted warrantless wiretaps of suspected terrorists. Judge Fair ordered that the United States reveal how it had obtained evidence against DeNolf, Bronner and Comerford; specifically he asked if warrantless wiretaps had been used. The United States confirmed that DeNolf, Bronner and Comerford had been subjected to warrantless surveillance conducted by the NSA, in consultation with the Department of Justice. The NSA’s general power to conduct warrantless surveillance in cases involving suspected terrorists had been secretly authorized and re-authorized by President George W. Bush no fewer than “thirty times.” The president had not been involved with or privy to the specific decision to surveill DeNolf, Bronner or Comerford specifically. Decisions of who to surveill had been made by the Justice Department and the NSA.

The Government’s decision to conduct the surveillance of DeNolf, Bronner and Comerford occurred while the NSA was tracking international efforts at disrupting the 2003 Woman’s World Cup which was held in the United States. In the summer of 2003, Bronner sent an email to Comerford and DeNolf using a wireless network found in a coffee shop in Olympus that was regularly frequented by an infamous Welsh football hooligan Willie Bored. Comerford read the message at a similar coffee shop in Seattle. It is unclear if or where DeNolf read this message. Because Bored frequently changed E-Mail addresses, the NSA was surveilling all electronic communications from that coffee shop involving at least one foreign email account or server. Bronner, as fate would have it, was using the same Welsh E-Mail server as Bored (drefwen.com). Bronner’s message did not discuss any specific plans of action or calls for violence. It did, however, include expressions of hatred for ATMs and banks in general. Alarmed by Bronner’s message, and unaware that DeNolf, Bronner and Comerford were in the United States, the NSA received permission from the Department of Justice to monitor all future E-Mail communications to or from DeNolf, Bronner and Comerford without a warrant. At no time, did the United States seek a FISA Court warrant, nor was the FBI or any United States Attorneys informed of the surveillance of DeNolf, Bronner or Comerford.

DeNolf, Bronner and Comerford filed a new motion requesting that Judge Fair find the Government’s warrantless surveillance in their case in violation of the 4^th Amendment to the United States Constitution and that he dismiss the case. The United States argued that the decision to order the warrantless surveillance was a political one that it was justified both under the President’s Article II constitutional powers as Commander-in-Chief and under a congressional resolution, the Authorization for Use of Military Force (AUMF), which empowered the President to "use all necessary and appropriate force" against "nations, organizations, or persons" that the President determines "planned, authorized, committed, or aided" in the September 11, 2001 Al-Qaeda attacks. Judge Fair found for DeNolf, Bronner and Comerford, but stayed his decision so that it could be heard on appeal by this court. Accordingly, we reverse the ruling of the District Court and find for the United States that the evidence be admissible.

The President of the United States has no greater responsibility than protecting the safety of the American people. Accordingly, the President has authorized the National Security Agency (NSA) to intercept certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. The President has made clear that he will use any and all constitutional and statutory authorities to protect the American people from further terrorist attacks. The NSA activities are a part of that effort. The President is not only permitted, but bound to protect the American people from imminent threats. See The Prize Cases, 2 Black 635 (1863). Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the nation and the Constitution gives him all necessary authority to fulfill that duty. The President has independent authority to repel attacks by third parties even without specific congressional authorization. See Campbell v. Clinton, 203 F. 3d. 19 (D.C. Circuit 2000). Congress has recognized this authority in the preamble to the Authorization for the Use of Military Force (AUMF) of September 18, 2001 (115 Stat. 224) and in the War Powers Resolution (50 U.S.C. § 1541 (c).

This constitutional authority includes the authority to order warantless foreign intelligence surveillance within the United States. The Supreme Court has said that warrants are generally required in the context of purely domestic threats, but it expressly distinguished foreign threats. See U.S. v. U.S. District Court 407 U.S. 297 (1972). As Justice White demonstrated nearly forty years ago, a warrant is unnecessary “if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.” Katz v. U.S. 389 U.S. 347 (1967).

The President’s constitutional authority to direct the NSA to conduct the activities in this case is supplemented by statutory authority under the AUMF. The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001,…in order to prevent any future acts of international terrorism against the United States.” The AUMF cannot be read as limited to authorizing the use of force against the Taliban alone. Indeed, those who committed the attacks of September 11 resided in the United States for some time prior to the attacks. The reality of the September 11 attacks demonstrates that the authorization of force covers activities both in the United States and abroad.

In Hamdi v. Rumsfeld 542 U.S. 507(2004), the Supreme Court addressed the scope of the AUMF. In that decision, the Court concluded that the AUMF “clearly and unmistakably authorizes the fundamental incident of waging war.” Communications intelligence targeted at the enemy is, and has been throughout history, a fundamental incident of the use of military force. A war cannot be fought blind. Because communications gathering activities constitute, in the language of Hamdi, a fundamental incident of waging war, the AUMF clearly and unmistakably authorizes this tactic. Accordingly, the President’s “authority [in this case] is at its maximum.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) Justice Jackson, concurring. The President’s authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act (FISA) 92 Stat. 1783. FISA expressly excepts from the warrant requirement electronic surveillance which is “authorized by statute.” The AUMF satisfies this requirement.

The NSA activities described are also consistent with the Fourth Amendment. The Fourth Amendment’s central requirement is one of reasonableness. For searches conducted in the course of ordinary criminal law enforcement, reasonableness would generally require a warrant. See Board of Education v. Earls, 536 U.S. 822(2002). Outside of the ordinary criminal law context, however, the Supreme Court has, at times, dispensed with the warrant requirement, instead focusing on the reasonableness of the search under the totality of the circumstances. Where electronic communication is at issue, the government has consistently been given wide latitude. See Games v. United States Secret Service, 36 F. 3d 457 (5th Cir. 1994), Tyler v. Berodt, 877 F.2d 705 (8^th Cir. 1989). In particular, the Supreme Court has long recognized that “special needs, beyond the normal need for law enforcement” can justify departure from the warrant requirement. See City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

Foreign intelligence, especially in the midst of an armed conflict where the adversary has already launched catastrophic attacks within the United States, fits squarely within the special needs exception to the warrant requirement. See United States v. Duggan, 743 F. 2d. 59 (2^nd Cir. 1984). Intercepting communications into and out of the United States of persons who may be linked to terrorism in order to detect and prevent a catastrophic terrorist attack is clearly reasonable. According to the Supreme Court, a reasonable expectation of privacy is broken into two parts; first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347 (1968). In the case at hand, neither prong is met. Additionally, reasonableness is generally determined by “balancing the nature of the intrusion on the individual’s privacy against the promotion of legitimate government interests.” Earls at 829. There is no doubt an important privacy interest at stake here for the petitioners. However, that must be balanced against the government’s compelling interest in protecting the security of the nation. This is not a close call. The world is a dangerous place. In protecting the lives of American citizens, the President must be given wide latitude.

Also, the border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect anything entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005). The government did no more than this here. There is no rationale in the case law for treating data differently than physical storage devices.

It is also clear that there is considerable precedent for allowing a broad Presidential prerogative in a time of conflict. In In Re Neagle 105 U.S. 1 (1890), the Supreme Court granted implicit powers to the President. Those powers have been exercised in similar contexts many times in the past and have been upheld by the Supreme Court. See Korematsu v. U.S. 323 U.S. 214 (1944), upholding Presidential authority to confine American citizens in internment camps, Hirabayashi v. United States 320 U.S. 81 (1943), upholding war time curfews for certain groups of citizens, and Ex Parte Quirin 371 U.S. 1 (1942), upholding the use of military tribunals to try saboteurs for acts of war .

Further, in United States v. Curtiss-Wright 299 U.S. 304 (1936), the Supreme Court conferred upon the President the sole authority to make decisions on behalf of the United States in international relations. For the above reasons, constitutional support for the President to pursue his effort to preserve the lives and property of Americans clearly exists.

The basic legal question here is not new. In 1978, after extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted FISA. FISA comprehensively regulates electronic surveillance within the United States.

Specifically, 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law: "A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute." "Electronic surveillance" is defined in 50 U.S.C. 1801(f) to mean, in relevant part:

(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. . . .

A "United States person" is defined in 50 U.S.C. 1801(i) as "a citizen of the United States [or] an alien lawfully admitted for permanent residence." It is clear that the NSA surveillance program violates the basic prohibition of 50 U.S.C. 1809 — intentionally conducting electronic surveillance. The case is pretty clear: the surveillance involved people in the U.S. and surveillance in the U.S., and that's all that is required.

When dealing with eavesdropping on United States citizens, Katz v. United States, 389 U.S. 347 (1968) controls. In that case, the Supreme Court held that a person is entitled to a reasonable expectation of privacy so long as that person demonstrates an actual expectation of privacy and that expectation is one that society is prepared to accept as reasonable. In that case, Katz was deemed to have a reasonable expectation of privacy in his electronic communications by entering a phone booth and closing the door. Further, society was prepared to accept as reasonable the proposition that the government would not surreptitiously listen to private communications without judicial approval. Technology has certainly advanced since the time of Mr. Katz and his phone calls, but the basic premise remains the same. In this case, the petitioners clearly exhibited a subjective expectation of privacy. They not only eschewed phone communications altogether, but sent coded emails from an anonymous computer in a coffee shop. It is hard to imagine that in going to such elaborate measures, they did not have an actual expectation of privacy. Further, it is an expectation that society is prepared to accept as reasonable. It is hard to imagine that, when compared to Katz, that society could be anything short of outraged by such governmental conduct.

The government also contends that this type of activity should fall within the “special needs exception” to the warrant requirement of the 4^th Amendment. While the need to gather intelligence on the enemy surely qualifies as a special need, that is only the beginning of the inquiry. Traditionally, the Supreme Court has then looked at a variety of factors to determine whether the search is reasonable. These factors have included the extent of the intrusion, the degree of discretion involved, and the need to bypass the warrant requirement. For example, the Supreme Court upheld drunk driving checkpoints because they were standardized, the stops were minimally intrusive, and dispensing with the warrant requirement was necessary to keep drunk drivers off the road. Similarly, it has upheld school drug testing programs because of the reduced expectation of privacy in the school setting, the limited nature of the program, and the opportunity to opt out of testing. See Board of Education v. Earls, 536 U.S. 822(2002).

The program at issue in this case has none of the safeguards found to be the hallmarks of “special needs” searches in other contexts. It consists not of a minimally intrusive stop on a highway or a urine test, but of the wiretapping of private email communications. It is not a standardized process, but one with unlimited discretion in a process that remains largely secret. Those whose emails have been read have been given no opportunity to opt out of the surveillance. Finally, the fact that FISA has been used successfully for nearly thirty years clearly shows that the need to dispense with the warrant requirement in not necessary in this case. In cases where the government has gone beyond the narrow confines of the special needs doctrine, the Supreme Court has not hesitated to strike down programs. See Ferguson v. City of Charleston, 532 U.S. 67 (2001). We should not hesitate here.

The majority contends that because the President has invoked a claim of national security, that he is entitled to wide latitude. However, experience has taught us what a dangerous proposition this is. As the Supreme Court in Ex Parte Milligan, 4 ( Wall.) 2, (1866) held more than a century ago:

This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate.

The idea of unchecked and unlimited Presidential power is, indeed, frightful to contemplate. It was also inconceivable to the Framers of this great country. The Milligan court made this clear, stating:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence….

It is clear, in the case at bar, that all powers necessary to deal with the fight against terrorism exist within a constitutional framework. There is no need for the President, or any one else, to go to extra-constitutional measures to accomplish these aims. Mere convenience is not a sufficient answer, nor is executive prerogative. The President, in cooperation with Congress, has all the tools necessary to prevail in this battle. In his now classic dissent in the infamous Korematsu decision, Justice Jackson eloquently stated the danger to future generations that is associated with looking to extra-constitutional means in times of crisis:

[A] judicial construction of the due process clause that will sustain [interning people due to race] is a far more subtle blow to liberty than the promulgation of the order itself. A military order . . . is not apt to last longer than the military emergency . . . But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle lies like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes . . . A military commander may overstep the bounds of constitutionality, and that is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image.

While the majority contends that Youngstown supports the government’s position, this simply defies logic. In Justice Jackson’s typology from Youngstown, the President’s powers are at their lowest point when used in contravention of the expressed intent of Congress. In passing the AUMF, Congress, as the name implies, authorized the President to use military force. It certainly didn’t write a blank check to wage a war against terrorism as he saw fit. And Congress certainly did not repeal or amend FISA. Nowhere in the AUMF is the word surveillance even mentioned. To twist the phrase “necessary and appropriate force” to include reading emails of American citizens is to stretch those words beyond recognition. This concept is not new. In Little v. Barreme 6 U.S. (2 Cranch) 170 (1804) the Supreme Court found a violation in a seizure pursuant to a Presidential order of a ship during the “Quasi War” with France. The Court found that Congress had authorized the seizure of ships going to France only. Accordingly, the President’s unilateral order to seize a ship coming from France went too far as it was beyond the clear words of the congressional action. Just as in Youngstown, the Court struck down executive action, taken during wartime, said to be necessary, but implicitly disapproved by Congress.

The majority also relies on Hamdi in its search for a broad executive power. It is true that in the Hamdi decision, the Supreme Court did allow the detention of an American citizen captured on a foreign battlefield in a conventional war to fall within the reach of the AUMF. But, spying on communications involving people in this country is very different from being labeled an enemy combatant. As Justice O’Connor wrote for the plurality, “whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in timer of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Just last term, this same administration argued that a general federal statute, the Controlled Substances Act, gave the Attorney General authority to override a specific state law. The Supreme Court rejected this argument, holding that the federal law did not grant such authority. Congress, the Court held, “does not alter fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouse holes.” Gonzales v. Oregon 126 S. Ct. 904 (2006). That same logic applies with equal force here. If Congress had intended to provide such broad, sweeping power to the President, it surely would have said so.

It is for the forgoing reasons that I find this decision so frightening and I respectfully dissent.

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

This joint resolution may be cited as the `Authorization for Use of Military Force'.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

§ 1801. Definitions

As used in this title [50 USCS §§ 1801 et seq.]:
   (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
         (C) engages in international terrorism or activities in preparation therefore; 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 statues 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;
         (D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
         (E) 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--
         (A) to intimidate or coerce a civilian population;
         (B) to influence the policy of a government by intimidation or coercion; or
         (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 [18 USCS §§ 2151 et seq.], 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, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511(2)(i) of title 18, United States Code;
      (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.
   (g) "Attorney General" means the Attorney General of the United States (or Acting Attorney General) or the Deputy Attorney General.
   (h) "Minimization procedures", with respect to electronic surveillance, means--
      (1) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
      (2) procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1), shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand foreign intelligence information or assess its importance;
      (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
      (4) notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 102(a) [50 USCS § 1802(a)], procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 105 [50 USCS § 1805] is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.
   (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 [8 USCS § 1101(a)(20)]), 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.
   (l) "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.

§ 1802. 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

(a)
   (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title [50 USCS §§ 1801 et seq.] 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 101(a) (1), (2), or (3) [50 USCS § 1801(a)(1), (2), or (3)]; 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 101(a) (1), (2), or (3) [50 USCS § 1801(a)(1), (2), or (3)];
      (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; and
      (C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 101(h) [50 USCS § 1801(h)]; and
   if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
   (2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 108(a) [50 USCS § 1808(a)].
   (3) The Attorney General shall immediately transmit under seal to the court established under section 103(a) [50 USCS § 1803(a)] a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless--
      (A) an application for a court order with respect to the surveillance is made under sections 101(h)(4) and 104 [50 USCS §§ 1801(h)(4) and 1804]; or
      (B) the certification is necessary to determine the legality of the surveillance under section 106(f) [50 USCS § 1806(f)].
   (4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to--
      (A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and
      (B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
   The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

(b) Applications for a court order under this title [50 USCS §§ 1801 et seq.] are authorized if the President has, by written authorization, empowered the Attormy [Attorney] General to approve applications to the court having jurisdiction under section 103 [50 USCS § 1803] and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 105 [50 USCS § 1805], 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) unless such surveillance may involve the acquisition of communications of any United States person.