When the FBI Comes Calling…®

Intelligence Operations Abroad

What is generally the first form of surveillance which comes to mind when considering national security, intelligence operations abroad, are bound by few restrictions. There is an important distinction made in the field of intelligence gathering, between American citizens and non-citizens. With regard to intelligence operations, non-citizens do not hold the Constitutional protections as do citizens. Indeed, virtually the only sources of law restricting intelligence gathering of non-citizens are internal agency regulations and President Reagan's Executive Order 12333.

To the contrary, the primary source of legal constraints on intelligence gathering operations of U.S. citizens abroad comes from a recent Supreme Court Case, United States v. Bin Laden, 156 F. Supp. 2d 359 (S.D.N.Y. 2001). According to this case, there is, much like in FISA, a foreign intelligence exception to surveillance requirements. The case mandates that:

1. that the target be overseas
2. that it be authorized by the President or the Attorney General
3. that it be primarily for Foreign Intelligence purposes
4. that it be targeted at agents of foreign powers (by a standard of probable cause)
5. that it be held to a standard of reasonableness.

The problem with this form of surveillance, which distinguishes it from FISA, is that it requires no judicial pre-approval; instead it gives the executive unbridled power until it is challenged in court post facto. Consequently, when an individual is abroad, his communications (including those with anyone in the United States) may be intercepted at will. This becomes particularly problematic with regard to those communications related to one's defense. Because there exists no judicial pre-approval for these activities, it seems rather unlikely that the attorney-client privilege would be recognized, especially when broad, indiscriminate tools like ECHELON are used. Ambiguity tends to be exploited by the government in times of national crises.