Is Wikileaks a "Foreign Power" for FISA Purposes?
Another interesting hypothetical raised by the Wikileaks situation is whether Wikileaks counts as a "foreign power" for purposes of FISA. 50 USC 1801(a) defines "foreign power" as any of the following:
(1) a foreign government or any component thereof, whether or not recognized by the United States; (2) a faction of a foreign na
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Another interesting hypothetical raised by the Wikileaks situation is whether Wikileaks counts as a "foreign power" for purposes of FISA. 50 USC 1801(a) defines "foreign power" as any of the following:
(1) a foreign government or any component thereof, whether or not recognized by the United States;By and large this list is state government-centric, in the sense that the definition largely is concerned not with the foreign origin of an entity but rather with ties to a foreign government. There are exceptions for terrorism and WMD proliferation, and for informal foreign political entities, but one can't help but notice how, well, Westphalian the definition is. So along comes Wikileaks, a foreign non-state entity not engaged in terrorism but definitely engaged in undermining U.S. foreign policy, and the question arises whether it could be fit into any of the components of the definition. The only somewhat plausible candidate on this list, so far as I can see, is "(5) a foreign-based political organization, not substantially composed of United States persons." But can Wikileaks be described as a political organization? It certainly has a policy axe to grind, and in that sense is a "political" organization. But is that term as used in FISA better read to refer narrowly to entities engaged in the competition for government power - i.e., to political parties? As is so often the case, the language of the statute is broad enough to be pulled in different directions. I've not read the legislative history to see whether it sheds any light, and am not aware of what FISC precedent might have to say about it. I'll be happy to update this post if anything substantial comes to light.
(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;
(6) an entity that is directed and controlled by a foreign government or governments; or
(7) an entity not substantially composed of United States persons that is engaged in the international proliferation of weapons of mass destruction
Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
