“Foreign Intelligence” ≠ Foreigner Intelligence (Expatriate Americans in PRISM)

by Peter Spiro

The NSA may be collecting data on Americans in the United States. What about Americans abroad?

“Foreign intelligence” is a term threaded through the surveillance debate, with a general understanding that collecting that kind of information is okay. The term is defined in a territorial sense, in the sense of intelligence originating outside of the United States. Under the FISA Amendments Act, the Attorney General and the NDI are required to adopt “targeting procedures that are reasonably designed to ensure that any [intelligence acquisition] is limited to targeting persons reasonably believed to be located outside the United States.”

If intelligence is “foreign” in that sense, the gloves seem to come off. (We’re talking not just metadata, but the contents of emails and other electronic communications, the kind of stuff which in the ordinary case clearly requires probable cause.) The FISA Amendments Act does bar “intentionally target[ing] a United States person reasonably believed to be located outside the United States.” But there doesn’t seem to be any mechanism to police that constraint or the citizenship determination (or at least not any mechanism that has been publicly disclosed).

If on the internet it’s difficult to draw the domestic/foreign line in territorial terms, it’s only more so in terms of citizenship. The surveillance is all secret, so there’s no chance to declare yourself an American. There’s really no way for the Government to know whether you are a citizen or not. There is no master list of US citizens. For every John Smith Bank of America employee temporarily in London (who might be easily flagged as a US citizen), there are many who have acquired citizenship in less obvious ways and who don’t wear their American identity on their electronic sleeve. Does the NSA have a citizenship algorithm?

This may be as much a problem with the doctrine as with the practice. Under the conventional reading of the Supreme Court’s 1958 decision in Reid v. Covert, constitutional rights are portable to US citizens. If you’re American, you have the same rights against governmental action in Paris as you do in Detroit. But even in the non-virtual world, it’s tough to know the citizenship status of people behind foreign doors you are about to knock down. There’s no evidence that anyone in the intelligence apparatus is even trying to stay true to the constitutional rule. Perhaps yet another reason for several million expatriate Americans to feel second class.

http://opiniojuris.org/2013/06/12/foreign-intelligence-%e2%89%a0-foreigner-intelligence/

7 Responses

  1. NSA could cross reference with US passports as a start – very likely that Americans living abroad would keep their passport current as the local country might insist on it as a form of identification to be carried around.  Then there may be the dual nationals who have a local passport and the American passport – local ID would be enough – and might be harder to distinguish them.
    On passports, one thing that troubles me for this is the apparent approach of State that Ashley Deeks writes about over at Lawfare as one path for getting Snowden back of the US revoking a passport and then seeking deportation or expulsion of the person by the host country.  Some time back I read about an American of Muslim origin who had traveled to Sudan.  Once there, they were interrogated by the US authorities and were pressured to become an informer in the Muslim community.  When they refused to play that role, their passport was cancelled by the US and they were without travel documents.  The last I read was they were seeking asylum in Sweden.
    Passport pressure has been a hallmark of State Department use and abuse for a while.  Can well remember Paul Robeson having difficulties getting a US passport as was the case for Richard Wright.  Wright only was able to get a US passport to travel to France once a formal invitation from the cultural attaché of the French Embassy was sent.  The right to a passport is a vital right – the key document when you are an American abroad – and State or law enforcement types jerking people around whose political beliefs they do not like or alleged criminality is very troubling.
    Best,
    Ben

  2. Fascinating.  Citizenship status was very much on my mind today as I met with a French woman in Paris this afternoon.  THE question on her mind?  “Am I an American citizen?”  She has U.S. connections that may indeed make her an “Accidental American” though she was not born in the U.S. and only lived there for less than one year when she was a toddler.  And yet…
    Why is she concerned?  Because her French bank is curious thanks to FATCA.   Suddenly clarification of her status is of great importance and to get a determination she has made an appointment with and will travel to a US Embassy in a third country which was willing to schedule an appointment for her fairly quickly (the local US Embassy in her country has no openings for the next 3-6 months).  
    Not only is it hard for the US government to know the status of possible U.S. persons in another country, many of these people don’t know themselves.  The form, DS-4079, which must be filled out in these cases is quite interesting:
    http://www.state.gov/documents/organization/97025.pdf
    I myself had trouble with some of the questions and English is my first language.  Imagine trying to do it when you don’t speak English at all.  

  3. There are restrictions (not bans) on the collection of intelligence regarding U.S. persons.  A relevant discussion of them is available here: http://www.fas.org/irp/agency/army/uspersons.html 

  4. Thanks to Victoria and John for the interesting pointers. The military intelligence directive (sort of surprised it isn’t classified) seems to evidence some sensitivity to the issue. Perhaps there’s more that we don’t know about by way of insulating citizens abroad from intelligence collection? One might suspect a lot of slippage in the intervening decade.
    Victoria’s observations go to the place more generally of US citizens abroad and the increasing burden of citizenship post-FATCA. The form is somewhat puzzling – my understanding is that these days you can’t lose citizenship short of express renunciation. But perhaps the State Dept is loosening to help individuals who were unwitting citizens and who would face the whole tax complex if they were deemed to have retained citizenship. (BTW anyone interested in the plight of American expats should check out Victoria’s blog here – very interesting stuff.)

  5. Thank you very much, Peter, for the reply and for the link to my blog.
    Oddly enough, there are two ways to shed U.S. citizenship.  One is to renounce which is expensive and takes time.  The other is to relinquish.  The latter means that at the same time you commit an expatriating act, you inform the U.S. government that you did so with the INTENT to give up your U.S. citizenship.
    So, for example, if I was granted French citizenship, all I have to do is send a letter to the U.S. government (State, I think) informing them of my act (taking an oath to a foreign power) and my intention (to no longer be an American).  Peter Dunn wrote a very nice piece about the difference between relinquishment and renunciation here.
    http://isaacbrocksociety.ca/2011/12/12/relinquish-dont-renounce-if-you-can/
    Alas this is not necessarily helpful for Accidental Americans. Some might be able to relinquish but I think most have to renounce.  Depends on the circumstances.  And would you believe that they are still liable for U.S. taxes and reporting even though they didn’t know they were Americans and required to file?  Phil Hodgen has the basic process here:
    http://hodgen.com/accidental-american-exit-tax/

  6. Victoria, That’s extremely interesting. Of course in the past when there was very little incentive to lose your citizenship, no one would think in these terms.
     
    One follow up: is it clear that the US is recognizing relinquishment? In other words, if I write a memo saying that when, eg, I naturalize in another country I intend to relinquish my US citizenship, the government is recognizing it as effective? 

  7. Peter,  a lot of very interesting stuff is coming out as Americans abroad react to FATCA/citizenship-based taxation.  What is extraordinary is how we are coming together, sharing information and talking about our strategies.  You’re right, for years renunciation of US citizenship was a huge taboo and people who did it kept quiet.  Now we’ve got people openly discussing that and our other options.  Is this the formation of a true diaspora?  Maybe, maybe not.  What is clear is that we are seeing the creation of a worldwide community with many actors i(duals, accidentals, one passport Americans abroad, diaspora organizations….) in many different countries but who have finally found something to pull them together.  Even our language has changed – we now refer to Americans in the U.S. as “homelanders.”
    Yes, the US government does recognize relinquishment.  The US embassies abroad confirmed it.  Peter Dunn went on to do it and received his CLN (Certificate of Loss of Nationality) from the US government. He is not longer an American.  Since then others have done it as well and have received their CLNs (some even backdated).  
    One last remark (just because I find it rather ironic).  There is a list published every quarter of people who renounce/relinquish.  This was meant to shame those who did it.  Beware, the list is NOT accurate and the numbers are suspicious.  There are people who have renounced who do not show up on the list.  Peter Dunn himself insisted that his name appear.  So the list that was mean to shame has become something of a “Hall of Fame” in certain circles.  This is something that would have been inconceivable a year or two ago.

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