Intelligence Law School - Course 1: Lesson 1.2.2 “United States Person” Defined


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LESSON 1: INTRODUCTION


1.2 What is U.S. Intelligence Law?


1.2.2 “United States Person” Defined


Lecture Audio



Annotated Lecture Transcript

1.2.2 “United States Person” Defined

Before we get started, there is one critical definition you need to know about.

Throughout this course you’ll hear me refer to intelligence activities that affect “United States persons.”[1]

That term—“United States person”—is a critical legal term in U.S. intelligence law.

It’s defined to include 4 groups:

1)      Citizens of the United States;

2)     Aliens lawfully admitted for permanent residence (a.k.a. permanent residents, green-card holders, or resident aliens);[2]

3)     An unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence; or

4)     A corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power.[3]

 

So 2 of the 4 are people.

And 2 of the 4 are corporations or associations.

As far as individuals are concerned, there are only two types of people who qualify as United States persons:

1)      U.S. Citizens; and

2)     Permanent Residents (a.k.a Green-Card Holders or Resident Aliens).

 

If you’re a foreign student inside the United States on a student visa or work visa, then you’re not considered a “United States person” under U.S. intelligence law.

Only U.S. citizens and permanent residents qualify.

 

So what does this mean?

Well, when we cover the substance of intelligence law rules in later courses, you’ll notice that they are almost always defined in terms of what can be done to “United States persons.”

When that qualifier is present, then the rules in question do not apply at all to intelligence activities affecting people who aren’t United States persons.

There may be other rules that apply, or if you’re inside the United States there you may be entitled to some constitutional protections.

But as far as rules related to “United States persons,” you’re not included.  

 

This U.S.-person qualifier is put into the law specifically to make sure that these protections don’t restrict intelligence agencies ability to target foreign nationals.

I know it sounds harsh, but that’s just the way it is.

Keep in mind that most U.S. intelligence law rules were drafted during the Cold War.

As a result, they often reflect a far more xenophobic and nationalistic mentality than may seem appropriate in the modern world. 

For younger generations growing up after the Cold War, we’re used to a more global approach to human rights and essential freedoms.

Many of the rules we’ll cover in later courses may seem like relics of that old conflict-driven generation that almost destroyed the planet.

That’s because they are.

 

If you want to draft modern rules for the high-tech, globalized world we live in today, you’ll have to master all the laws in this series and get a job working inside the Community or for one of the congressional oversight committees.

Your first step will be our next lesson—Lesson 2: Primary Legal Authority in the Federal System.

 

Footnotes

[1] Below I have listed the statutory and administrative law definitions of “United States Person” as they appear in the text of various statutes and administrative rules.

“United States Person” Defined

Statutory Law Definitions

18 U.S.C. § 3077(2) (2010) (Title 18—Chapter 204: Rewards for Information Concerning Terrorist Acts and Espionage)

As used in this chapter [18 U.S.C. §§ 3071 et seq.], the term—

   (2) "United States person" means—

      (A) a national of the United States as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22));

      (B) an alien lawfully admitted for permanent residence in the United States as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20));

      (C) any person within the United States;

      (D) any employee or contractor of the United States Government, regardless of nationality, who is the victim or intended victim of an act of terrorism by virtue of that employment;

      (E) a sole proprietorship, partnership, company, or association composed principally of nationals or permanent resident aliens of the United States; and

      (F) a corporation organized under the laws of the United States, any State, the District of Columbia, or any territory or possession of the United States, and a foreign subsidiary of such corporation;

50 U.S.C. § 1801 (i) (2010) (Title 50—Chapter 36: Foreign Intelligence Surveillance—Subchapter A: Electronic Surveillance)

“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 U.S.C. § 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).

Administrative Law Definitions

Executive Order 12333, United States Intelligence Activities, ¶ 3.5(k) (2010)

United States person means a United States citizen, an alien known by the intelligence element concerned to be a permanent resident alien, an unincorporated association substantially composed of United States citizens or permanent resident aliens, or a corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments.

Department of Defense Regulation 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ DL1.1.25 (Dec. 1982): United States Person

DL1.1.25.1. The term "United States person" means:

Ø  DL1.1.25.1.1. A United States citizen;

Ø  DL1.1.25.1.2. An alien known by the DoD intelligence component concerned to be a permanent resident alien;

Ø  DL1.1.25.1.3. An unincorporated association substantially composed of United States citizens or permanent resident aliens;

Ø  DL1.1.25.1.4. A corporation incorporated in the United States, except for a corporation directed and controlled by a foreign government or governments. A corporation or corporate subsidiary incorporated abroad, even if partially or wholly owned by a corporation incorporated in the United States, is not a United States person.

DL1.1.25.2. A person or organization outside the United States shall be presumed not to be a United States person unless specific information to the contrary is obtained. An alien in the United States shall be presumed not to be a United States person unless specific information to the contrary is obtained.

DL1.1.25.3. A permanent resident alien is a foreign national lawfully admitted into the United States for permanent residence.

 

Department of Defense Regulation 5240.1-R, Procedures Governing the Activities of DOD Intelligence Components that Affect U.S. Persons, ¶ C5.3.2.4 (Dec. 1982): SIGINT Guidelines for Determining whether a person is a “United States Person.”

For purposes of signals intelligence activities only, the following guidelines will apply in determining whether a person is a United States person:

Ø  C5.3.2.4.1. Person Known to be Currently in the United States

o    A person known to be currently in the United States will be treated as a United States person unless the nature of the person's communications or other available information concerning the person gives rise to a reasonable belief that such person is not a United States citizen or permanent resident alien.

Ø  C5.3.2.4.2. Person Known to be Currently Outside the United States

o    A person known to be currently outside the United States, or whose location is not known, will not be treated as a United States person unless the nature of the person's communications or other available information concerning the person give rise to a reasonable belief that such person is a United States citizen or permanent resident alien.

Ø  C5.3.2.4.3. Circumstances in which a Person Known to be an Alien Admitted for Permanent Residence may be assumed to have lost status as a United States Person

o    A person known to be an alien admitted for permanent residence may be assumed to have lost status as a United States person if the person leaves the United States and it is known that the person is not in compliance with the administrative formalities provided by law that enable such persons to reenter the United States without regard to the provisions of law that would otherwise restrict an alien's entry into the United States. The failure to follow the statutory procedures provides a reasonable basis to conclude that such alien has abandoned any intention of maintaining status as a permanent resident alien.

Ø  C5.3.2.4.4. Unincorporated Association whose Headquarters are located outside the United States

o    An unincorporated association whose headquarters are located outside the United States may be presumed not to be a United States person unless the collecting agency has information indicating that a substantial number of members are citizens of the United States or aliens lawfully admitted for permanent residence.

 

The Attorney General’s Guidelines for Domestic FBI Operations § VII (U) (Sept. 29, 2008)

Any of the following, but not including any association or corporation that is a foreign power as defined in Subpart G.1..3.:

1)                   an individual who is a United States citizen or an alien lawfully admitted for permanent residence;

2)                  an unincorporated association substantially composed of individuals who are United States persons; or

3)                  a corporation incorporated in the United States.

In applying paragraph 2., if a group or organization in the United States that is affiliated with a foreign-based international organization operates directly under the control of the international organization and has no independent program or activities in the United States, the membership of the entire international organization shall be considered in determining whether it is substantially composed of United States persons. If, however, the U.S.-based group or organization has programs or activities separate from, or in addition to, those directed by the international organization, only its membership in the United States shall be considered in determining whether it is substantially composed of United States persons. A classified directive provides further guidance concerning the determination of United States person status.

[2] As defined in section 101(a)(20) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(20).

[3] 50 U.S.C. § 1801 (i) (2010) (Title 50—Chapter 36: Foreign Intelligence Surveillance—Subchapter A: Electronic Surveillance) (“'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 U.S.C. § 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).”).


© 2012 David Alan Jordan. All rights reserved.