Wednesday, December 21, 2005

So what exactly is a US Person??

With the controversy over the Domestic Spy Scandal, I have notice that there is much confusion over what a US person is. The Right and The Left are confused about who or what is a US person. Well the FISA defines a US person as
"“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), 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) of this section."

What is an "alien lawfully admitted for permanent residence" also known as a permanent resident alien? This attorney defines it as
"An alien admitted to the United States as a lawful permanent resident. Permanent residents are also commonly referred to as immigrants; however, the Immigration and Nationality Act (INA) broadly defines an immigrant as any alien in the United States, except one legally admitted under specific nonimmigrant categories (INA section 101(a)(15)). An illegal alien who entered the United States without inspection, for example, would be strictly defined as an immigrant under the INA but is not a permanent resident alien. Lawful permanent residents are legally accorded the privilege of residing permanently in the United States. They may be issued immigrant visas by the Department of State overseas or adjusted to permanent resident status by the Immigration and Naturalization Service in the United States."

Looking at these definitions, it is pretty straightforward that a British tourist is not a US person. Nor is a college student from Saudi Arabia here on a student visa. A computer engineer from India here on an H1B visa is not a US person.

Now the second part of the definition deals with corporations.
"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) of this section."
A foreign power is defined as
“Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
This is were determining a US person vis-a-vis corporations are concerned gets complicated. Some examples:
The American Red Cross is a US person.
The International Committee of the Red Cross is not a US person.
Ford Motor Company is a US person. It's subsidiaries overseas like Ford UK are not.
Some companies fall into a gray area. Citgo is one. It is owned by Petróleos de Venezuela S.A.(PDVSA), a world energy corporation, owned by the Venezuelan State. It has an American subsidiary based in Houston, its employees are mostly Americans. Yet, at the direction of Venezuela's president Citgo sold discounted heating oil to low income residents of Boston and the Bronx. So does Citgo fall under the category of
"an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;"???
or
"an entity that is directed and controlled by a foreign government or governments."????

Determining who or what is a US person is easy right??? HAHAHhahaha.......

And that is why you need a FISA court. To not only issue warrants for eavesdropping, but to determine if a company like Citgo is a US person and if there is probable cause for eavesdropping.

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