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C. Unconsented Physical Searches. A DoD intelligence component may conduct physical searches for foreign intelligence and counterintelligence purposes of United States persons who are outside the United States or of property of such persons that is located outside the United States if the search is conducted pursuant to a military warrant, express approval by the Attorney General or, in emergency circumstances, approval of a senior official of the Department of Defense. Where unconsented entry into real or personal property is involved, only the minimum intrusion necessary to obtain such information shall be permitted.

1.

Physical search pursuant to military warrant.
A search warrant may be issued with respect to
United States persons subject to the Uniform Code
of Military Justice, (10 U.S.C. 8802, Art. 2(1)
through (10)), by a military judge located outside
the United States who is authorized by 10 U.S.C.
§826 to preside at general courts-martial and who
has been designated by the Secretary of Defense to
exercise this authority. The warrant shall specify
the person or property to be searched and shall be
based on a finding that:

a.

There is probable cause to believe the
United States person against whom the search
is directed is

(1) a person who, for or on behalf of a

(2)

foreign power, is engaged in clandestine intelligence activities (including

covert activities intended to affect the
political or governmental process),
sabotage, or international terrorist
activities, or who conspires with, or
knowingly aids and abets such a person
engaging in such activities.

a person who is an officer or employee
of a foreign power;

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2.

b.

C.

d.

(3)

a person unlawfully acting for,
or pursuant to the direction of,
a foreign power. The mere fact
that a person's activities may
benefit or further the aims of
a foreign power is not enough
to bring that person under this
subsection (iii) absent evidence
that the person is taking directions
from, or acting in knowing concert
with, the foreign power.

The search is necessary to obtain significant foreign intelligence or counterintelligence;

The significant foreign intelligence or counterintelligence expected to be obtained could not be obtained by less intrusive means; and

The search is consistent with United States obligations under an applicable Status of Forces Agreement.

Physical search pursuant to Attorney General approval. A DOD intelligence component may conduct a physical search of a United States person who is outside the United States or of the property of a United States person that is located outside the United States if the search is approved by the Attorney General. Requests for approval will be forwarded to the Attorney General through the DOD General Counsel. Each request shall include:

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3.

d.

A description of the extent of the search
and a statement of facts supporting a
finding that the search will involve the
least amount of physical intrusion that
will accomplish the objective sought.

Physical search in emergency situations. A DOD intelligence component may conduct a physical search of a United States person who is outside the United States or of the property of a United States person that is located outside the United States in emergency situations under the following limitations:

a.

b.

Senior officials of the Department of
Defense designated in Section 5.B. may
authorize physical search in emergency
situations when securing the prior
approval of the Attorney General is not
practical because -

(1) the time required would cause failure
or substantial delay in obtaining
significant foreign intelligence or
counterintelligence and such failure
or delay would result in substantial
harm to the national security,

(2)

(3)

a person's life or physical safety
is reasonably believed to be in
imminent danger, or

there is an immediate threat of
destruction of government property
and local military or other appro-
priate law enforcement authorities
cannot be notified or reach the

scene in time to prevent the harm.

The senior official authorizing a physical search shall make a finding (unless a person's life is in immediate danger) that the requirements of subsection 4.C. 1. a. are met, there is no breaking or nonconsensual entry of real property and any container to be searched as in the lawful custody of the United States. This finding need not be in writing.

and assist in physical searches conducted by the Federal Bureau

of Investigation only as follows:

1. Foreign intelligence. When a DoD intelligence
component identifies a requirement for an
unconsented physical search within the United
States that is related to foreign intelligence,
such a requirement shall be submitted in writing
to the Director of the Federal Bureau of Inves-
tigation. Employees of DoD intelligence compo-
nents may not participate with the FBI in the
conduct of an authorized unconsented physical
search, but may be present and assist the FBI
in identifying articles of interest or render
technical assistance with respect to foreign
intelligence collection equipment.

2.

Counterintelligence.

When a DoD intelligence component identifies a requirement for an unconsented physical search within the United States that is related to counterintelligence, such a requirement shall be submitted in writing to the Director of the Federal Bureau of Investigation. Employees of DoD intelligence components may not participate with the FBI in the conduct of an authorized unconsented physical search but may be present and assist the FBI in identifying articles of interest or render technical assistance with respect to the analysis and exploitation of material and equipment identified for purposes of

a.

b.

-

protection of personnel of facilities of
any agency within the Intelligence Community;

investigation or prevention of clandestine
intelligence activities by foreign powers;

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3.

C.

d.

investigation or prevention of narcotics production or trafficking; or

investigation or prevention of inter-
national terrorist activities.

Other. Expert personnel provided to the
FBI in accordance with Procedure 21 may
participate in unconsented physical searches
as a part of their duties with the FBI.

E. Cooperation with physical searches by foreign officials. Employees of DoD intelligence components may not participate with foreign officials in the conduct of an unconsented physical search not conducted pursuant to these procedures but may be present and assist foreign officials in identifying articles of interest or render assistance with respect to foreign intelligence collection equipment. Sec. 5. Authority to request physical searches

A. Requests for approval of unconsented physical searches under subsections 4. C. 1. and 2. must be authorized

by:

B.

1. The Secretary or the Deputy Secretary of
Defense;

2.

3.

The Secretary or the Acting Secretary of a
Military Department.

The Director of the National Security Agency; or 4. The Director of the Defense Intelligence Agency. Authorization for physical searches under subsection

4.B. 3. may be granted by:

1. Any civilian Presidential appointee;

2. Any General or Flag officer; or

3.

The head of a DoD intelligence component.