Page:ACLU v. NSA Opinion (August 17, 2006), US District Court, East-Michigan.djvu/26

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had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses,[1] and in 1978 Congress enacted the FISA.[2]

Title III specifically excluded from its coverage all interceptions of international or foreign communications; and was later amended to state that "the FISA of 1978 shall be the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted."[3]

The government argues that Title III's disclaimer language, at 18 U.S.C. § 2511(2)(f), that nothing therein should be construed to limit the constitutional power of the President (to make international wiretaps). In the Keith case, Justice Powell wrote that "Congress simply left Presidential powers where it found them", that the disclaimer was totally neutral, and not a grant of authority. U.S. v. U.S. District Court, 407 U.S. at 303.

The FISA defines a "United States person"[4] to include each of Plaintiffs herein and requires a prior warrant for any domestic international interception of their communications. For various exigencies, exceptions are made. That is, the government is granted fifteen days from Congressional Declaration of War within which it may conduct intercepts before application for an order.[5] It is also granted one year, on certification by the Attorney General,[6] and seventy-two hours for other [*27]

  1. S.REP. NO. 94-755, at 332 (1976)
  2. Pub. L. 95-511, Title I, 92 Stat 1976 (Oct. 25, 1978), codified as amended at 50 U.S.C. §§ 1801 et seq.
  3. 18 U.S.C. §2511(2)(f)
  4. 50 U.S.C. § 1801(h)(4)(i)("United States person) means a citizen of the United States, an alien lawfully admitted for permanent residence, 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 which is not a foreign power.
  5. 50 U.S.C. § 1811
  6. 50 U.S.C. § 1802