Since there are many different opinions on what is and constitutes a legal "warrantless" spying mission on domestic targets, I decided to look up a little information. The site I found is not a government agency but it had a pretty descriptive FAQ. Going through it, I found two interesting entries.
FAQ
How does FISA work?
Under FISA, requests for counterintelligence warrants are funneled through the Justice Department, which reviews applications by the CIA as well as other agencies before submitting them to the FISA court. 50 U.S.C. §§ 1804(a), 1822(a)(1) (1994). Each application to the FISA court must first be personally approved by the Attorney General. See 50 U.S.C. § 1804(a).
The application must contain, among other things,
a statement of reasons to believe that the target of the surveillance is a foreign power or agent of a foreign power, specified information on the implementation of the surveillance, and a "certification" from a high-ranking executive branch official stating that the official "deems the information sought to be foreign intelligence information" and that the information sought "cannot reasonably be obtained by normal investigative techniques."
See generally 50 U.S.C. §§ 1804(a)(7), 1805(a) (setting forth the findings necessary to support the issuance of an order authorizing surveillance).
Particular facts or representations required include: statements regarding all previous applications involving the target; "detailed description of the nature of the information sought and of the type of communication or activities to be subject to the surveillance," § 1804(a)(6); the length of time surveillance is required, § 1804(a)(10); whether physical entry into a premises is necessary, and proposed procedures to minimize the acquisition, use, and retention of information concerning nonconsenting U.S. persons. § 1804(b).
On the basis of the application, a FISC judge must find probable cause that the target is a foreign power or agent of a foreign power, and that the facilities where the surveillance is directed are or will be used by the target.
For U.S. persons, the FISC judge must find probable cause that one of four conditions has been met: (1) the target knowingly engages in clandestine intelligence activities on behalf of a foreign power which "may involve" a criminal law violation; (2) the target knowingly engages in other secret intelligence activities on behalf of a foreign power pursuant to the direction of an intelligence network and his activities involve or are about to involve criminal violations; (3) the target knowingly engages in sabotage or international terrorism or is preparing for such activities; or (4) the target knowingly aids or abets another who acts in one of the above ways.
Courts have attached conditions to the executive's use of warrantless surveillance, including the requirement that the President or Attorney General authorize the search, the search targets a foreign power or its agents, and the primary purpose of the search is to gather foreign intelligence information. See Exec. Order No. 12,333, § 2.5, 3 C.F.R. 200 (1982), reprinted in 50 U.S.C. § 401 note (1994) (requiring approval of attorney general for warrantless searches).
An order of the FISC may approve electronic surveillance of an agent of a foreign power for ninety days and of a foreign power for a year. Extensions may be granted on the same terms, except that targets who are foreign powers may be subject to surveillance for an additional year if there is probable cause to believe that no communication of any U.S. person will be acquired.
Does FISA authorize surveillance without a court order?
Yes. In general, the Justice Department may engage in electronic surveillance to collect FII without a court order for periods up to one year. 50 U.S.C. § 1802. There must be no "substantial likelihood" that the intercepted communications include those to which a U.S. person is a party. § 1802(a)(1)(B).
Such electronic surveillance must be certified by the Attorney General and then noticed to the Senate and House intelligence committees. § 1802(a)(2). A copy of the certification must be filed with the FISC, where it remains sealed unless (a) an application for a warrant with respect to it is filed, or (b) the legality of the surveillance is challenged in another federal district court under § 1806(f). § 1802(a)(3). Common carriers must assist in the surveillance and maintain its secrecy. § 1802(a)(4).
In emergencies, the Attorney General may authorize immediate surveillance but must "as soon as practicable, but not more than twenty-four hours" later, seek judicial review of the emergency application. § 1805(e).
So what's this part about intelligence gathering not involving U.S. persons? Does this mean (and it may require more digging) that FISA does not allow intelligence gathering...at all...when U.S. citizens are involved? I don't know. I found it and I'm giving it to you.
What do you make of it?