[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2453 Reported in Senate (RS)]
Calendar No. 609
109th CONGRESS
2d Session
S. 2453
To establish procedures for the review of electronic surveillance
programs.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 16 (legislative day, March 15), 2006
Mr. Specter (for himself and Mr. Hagel) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
September 13, 2006
Reported by Mr. Specter, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To establish procedures for the review of electronic surveillance
programs.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``National Security
Surveillance Act of 2006''.</DELETED>
<DELETED>SEC. 2. FINDINGS.</DELETED>
<DELETED> Congress finds the following:</DELETED>
<DELETED> (1) After the terrorist attacks of September 11,
2001, President Bush authorized the National Security Agency to
intercept communications between people inside the United
States, including American citizens, and terrorism suspects
overseas.</DELETED>
<DELETED> (2) One of the lessons learned from September 11,
2001, is that the enemies who seek to greatly harm and
terrorize our Nation utilize technologies and techniques that
defy conventional law enforcement practices.</DELETED>
<DELETED> (3) The Commander in Chief requires the ability
and means to detect and track an enemy that can master and
exploit modern technology.</DELETED>
<DELETED> (4) Although it is essential that the President
have all necessary means to protect us against our enemies, it
is equally essential that, in doing so, the President does not
compromise the very civil liberties that the President seeks to
safeguard. As Justice Hugo Black observed,''The President's
power, if any, to issue [an] order must stem either from an Act
of Congress or from the Constitution itself.``. Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion
by Black, J.).</DELETED>
<DELETED> (5) In 2004, Justice Sandra Day O'Connor explained
in her plurality opinion for the Supreme Court in Hamdi v.
Rumsfeld:''We have long since made clear that a state of war is
not a blank check for the President when it comes to the rights
of the Nation's citizens. Youngstown Sheet & Tube, 343 U.S., at
587, 72 S.Ct. 863. Whatever power the United States
Constitution envisions for the Executive in its exchanges with
other nations or with enemy organizations in times of conflict,
it most assuredly envisions a role for all three branches when
individual liberties are at stake.``. Hamdi v. Rumsfeld, 542
U.S. 507, 536 (2004) (citations omitted).</DELETED>
<DELETED> (6) Similarly, as Justice Jackson famously
observed in his Youngstown concurrence:''When the President
acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all
that he possesses in his own right plus all that Congress can
delegate. . . . When the President acts in absence of either a
congressional grant or denial of authority, he can only rely
upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain.
Therefore, congressional inertia, indifference or quiescence
may sometimes, at least as a practical matter, enable, if not
invite, measures on independent presidential responsibility . .
. When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of
Congress over the matter. Courts can sustain exclusive
Presidential control in such a case only by disabling the
Congress from acting upon the subject.``. Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J.,
concurring).</DELETED>
<DELETED> (7) The Constitution provides Congress with broad
powers of oversight over national security and foreign policy,
under article I, section 8 of the Constitution of the United
States, which confers on Congress numerous powers, including
the powers--</DELETED>
<DELETED> (A) ``To declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures
on Land and Water'';</DELETED>
<DELETED> (B) ``To raise and support
Armies'';</DELETED>
<DELETED> (C) ``To provide and maintain a
Navy'';</DELETED>
<DELETED> (D) ``To make Rules for the Government and
Regulation of the land and naval Forces'';</DELETED>
<DELETED> (E) ``To provide for calling forth the
Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions''; and</DELETED>
<DELETED> (F) ``To provide for organizing, arming,
and disciplining the Militia, and for governing such
Part of them as may be employed in the Service of the
United States''.</DELETED>
<DELETED> (8) It is in our Nation's best interest for
Congress to use its oversight power to establish a system to
ensure that electronic surveillance programs do not infringe on
the constitutional rights of Americans, while at the same time
making sure that the President has all the powers and means
necessary to detect and track our enemies.</DELETED>
<DELETED> (9) While Attorney General Alberto Gonzales
explained that the executive branch reviews the electronic
surveillance program of the National Security Agency every 45
days to ensure that the program is not overly broad, it is the
belief of Congress that approval and supervision of electronic
surveillance programs should be conducted outside of the
executive branch, by the Article III court established under
section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803). It is also the belief of Congress that
it is appropriate for an Article III court to pass upon the
constitutionality of electronic surveillance programs that may
implicate the rights of Americans.</DELETED>
<DELETED> (10) The Foreign Intelligence Surveillance Court
is the proper court to approve and supervise classified
electronic surveillance programs because it is adept at
maintaining the secrecy with which it was charged and it
possesses the requisite expertise and discretion for
adjudicating sensitive issues of national security.</DELETED>
<DELETED> (11) In 1975, then-Attorney General Edward Levi, a
strong defender of executive authority, testified that in times
of conflict, the President needs the power to conduct long-
range electronic surveillance and that a foreign intelligence
surveillance court should be empowered to issue special
warrants in these circumstances.</DELETED>
<DELETED> (12) This Act clarifies and definitively
establishes that the Foreign Intelligence Surveillance Court
has the authority to review electronic surveillance programs
and pass upon their constitutionality. Such authority is
consistent with well-established, longstanding
practices.</DELETED>
<DELETED> (13) The Foreign Intelligence Surveillance Court
already has broad authority to approve surveillance of members
of international conspiracies, in addition to granting warrants
for surveillance of a particular individual under sections 104,
105, and 402 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804, 1805, and 1842).</DELETED>
<DELETED> (14) Prosecutors have significant flexibility in
investigating domestic conspiracy cases. Courts have held that
flexible warrants comply with the fourth amendment to the
Constitution of the United States when they relate to complex,
far reaching, and multi-faceted criminal enterprises like drug
conspiracies and money laundering rings. The courts recognize
that applications for search warrants must be judged in a
common sense and realistic fashion, and the courts permit broad
warrant language where, due to the nature and circumstances of
the investigation and the criminal organization, more precise
descriptions are not feasible.</DELETED>
<DELETED> (15) Federal agents investigating international
terrorism by foreign enemies are entitled to tools at least as
broad as those used by Federal agents investigating domestic
crimes by United States citizens. The Supreme Court, in the
``Keith Case'', United States v. Unit</DELETED> <DELETED>ed
States District Court for the Eastern District of Michigan, 407
U.S. 297 (1972), recognized that the standards and procedures
used to fight ordinary crime may not be applicable to cases
involving national security. The Court recognized that national
``security surveillance may involve different policy and
practical considerations from the surveillance of ordinary
crime'' and that courts should be more flexible in issuing
warrants in national security cases. United States v. United
States District Court for the Eastern District of Michigan, 407
U.S. 297, 322 (1972).</DELETED>
<DELETED> (16) By authorizing the Foreign Intelligence
Surveillance Court to review electronic surveillance programs,
Congress preserves the ability of the Commander in Chief to use
the necessary means to guard our national security, while also
protecting the civil liberties and constitutional rights that
we cherish.</DELETED>
<DELETED>SEC. 3. DEFINITIONS.</DELETED>
<DELETED> The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended--</DELETED>
<DELETED> (1) by redesignating title VII as title
VIII;</DELETED>
<DELETED> (2) by redesignating section 701 as section 801;
and</DELETED>
<DELETED> (3) by inserting after title VI the
following:</DELETED>
<DELETED>``TITLE VII--ELECTRONIC SURVEILLANCE</DELETED>
<DELETED>``SEC. 701. DEFINITIONS.</DELETED>
<DELETED> ``As used in this title--</DELETED>
<DELETED> ``(1) the terms `agent of a foreign power',
`Attorney General', `foreign intelligence information',
`foreign power', `international terrorism', `minimization
procedures', `person', `United States', and `United States
person' have the same meaning as in section 101;</DELETED>
<DELETED> ``(2) the term `congressional intelligence
committees' means the Select Committee on Intelligence of the
Senate and the Permanent Select Committee on Intelligence of
the House of Representatives;</DELETED>
<DELETED> ``(3) the term `electronic communication' means
any transfer of signs, signals, writing, images, sounds, data,
or intelligence of any nature transmitted in whole or in part
by a wire, radio, electromagnetic, photoelectronic or
photooptical system, cable, or other like connection furnished
or operated by any person engaged as a common carrier in
providing or operating such facilities for the transmission of
communications;</DELETED>
<DELETED> ``(4) the term `electronic surveillance' means the
acquisition by an electronic, mechanical, or other surveillance
device of the substance of any electronic communication sent
by, received by, or intended to be received by a person who is
in the United States, where there is a reasonable possibility
that the surveillance will intercept communication in which a
person in the United States participating in the communication
has a reasonable expectation of privacy;</DELETED>
<DELETED> ``(5) the term `electronic surveillance program'
means a program to engage in electronic surveillance--
</DELETED>
<DELETED> ``(A) to gather foreign intelligence
information or to protect against international
terrorism or clandestine intelligence activities by
obtaining the substance of or information regarding
electronic communications sent by, received by, or
intended to be received by a foreign power, an agent or
agents of a foreign power, or a person or persons who
have had communication with a foreign power seeking to
commit an act of international terrorism or clandestine
intelligence activities against the United
States;</DELETED>
<DELETED> ``(B) where it is not feasible to name
every person or address every location to be subjected
to electronic surveillance; and</DELETED>
<DELETED> ``(C) where effective gathering of foreign
intelligence information requires an extended period of
electronic surveillance;</DELETED>
<DELETED> ``(6) the term `Foreign Intelligence Surveillance
Court' means the court, sitting en banc, established under
section 103(a);</DELETED>
<DELETED> ``(7) the term `Foreign Intelligence Surveillance
Court of review' means the court established under section
103(b);</DELETED>
<DELETED> ``(8) the term `intercept' means the acquisition
of the substance of any electronic communication by a person
through the use of any electronic, mechanical, or other device;
and</DELETED>
<DELETED> ``(9) the term `substance' means any information
concerning the words, purport, or meaning of a communication,
and does not include information identifying the sender,
origin, or recipient of the communication or the date or time
of its transmission.''.</DELETED>
<DELETED>SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION
TO REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.</DELETED>
<DELETED> Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 3, is amended by adding at the end the
following:</DELETED>
<DELETED>``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT
JURISDICTION TO REVIEW ELECTRONIC SURVEILLANCE
PROGRAMS.</DELETED>
<DELETED> ``(a) In General.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to issue an order under this title,
lasting not longer than 45 days, that authorizes an electronic
surveillance program to obtain foreign intelligence information or to
protect against international terrorism or clandestine intelligence
activities.</DELETED>
<DELETED> ``(b) Reauthorization.--In order to continue an electronic
surveillance program after the time period described in subsection (a),
the Attorney General shall submit a new application under section 703.
There shall be no limit on the number of times the Attorney General may
seek approval of an electronic surveillance program.</DELETED>
<DELETED> ``(c) Modifications and Appeal in Event Application Is
Denied.--</DELETED>
<DELETED> ``(1) In general.--In the event that the Foreign
Intelligence Surveillance Court refuses to approve an
application under subsection (a), the court shall state its
reasons in a written opinion.</DELETED>
<DELETED> ``(2) Opinion.--The court shall submit a written
opinion described in paragraph (1) to the Attorney General and
to each member of the congressional intelligence committees (or
any subcommittee thereof designated for oversight of electronic
surveillance programs under this title).</DELETED>
<DELETED> ``(3) Resubmission or appeal.--The Attorney
General shall be permitted to submit a new application under
section 703 for the electronic surveillance program, reflecting
modifications to address the concerns set forth in the written
opinion of the Foreign Intelligence Surveillance Court. There
shall be no limit on the number of times the Attorney General
may seek approval of an electronic surveillance program.
Alternatively, the Attorney General shall be permitted to
appeal the decision of the Foreign Intelligence Surveillance
Court to the Foreign Intelligence Surveillance Court of
Review.</DELETED>
<DELETED> ``(d) Communications Subject to This Title.--</DELETED>
<DELETED> ``(1) In general.--The provisions of this title
requiring authorization by the Foreign Intelligence
Surveillance Court apply only to interception of the substance
of electronic communications sent by, received by, or intended
to be received by a person who is in the United States, where
there is a reasonable possibility that a participant in the
communication has a reasonable expectation of
privacy.</DELETED>
<DELETED> ``(2) Exclusion.--The provisions of this title
requiring authorization by the Foreign Intelligence
Surveillance Court do not apply to information identifying the
sender, origin, or recipient of the electronic communication or
the date or time of its transmission that is obtained without
review of the substance of the electronic
communication.</DELETED>
<DELETED> ``(e) Existing Programs Subject to This Title.--</DELETED>
<DELETED> ``(1) In general.--The Attorney General shall
submit an application to the Foreign Intelligence Surveillance
Court for any electronic surveillance program to obtain foreign
intelligence information or to protect against international
terrorism or clandestine intelligence activities.</DELETED>
<DELETED> ``(2) Existing programs.--Not later than 45 days
after the date of enactment of this title, the Attorney General
shall submit an application under this title for approval of
the electronic surveillance program sometimes referred to as
the `Terrorist Surveillance Program' and discussed by the
Attorney General before the Committee on the Judiciary of the
United States Senate on February 6, 2006. Not later than 120
days after the date of enactment of this title, the Attorney
General shall submit applications under this title for approval
of any other electronic surveillance program in existence on
the date of enactment of this title that has not been submitted
to the Foreign Intelligence Surveillance Court.''.</DELETED>
<DELETED>SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE
PROGRAMS.</DELETED>
<DELETED> Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 4, is amended by adding at the end the
following:</DELETED>
<DELETED>``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC
SURVEILLANCE PROGRAMS.</DELETED>
<DELETED> ``(a) In General.--Each application for approval of an
electronic surveillance program under this title shall--</DELETED>
<DELETED> ``(1) be made by the Attorney General;</DELETED>
<DELETED> ``(2) include a statement of the authority
conferred on the Attorney General by the President of the
United States;</DELETED>
<DELETED> ``(3) include a statement setting forth the legal
basis for the conclusion by the Attorney General that the
electronic surveillance program is consistent with the
requirements of the Constitution of the United
States;</DELETED>
<DELETED> ``(4) certify that the information sought cannot
reasonably be obtained by conventional investigative techniques
or through an application under section 104;</DELETED>
<DELETED> ``(5) include the name, if known, identity, or
description of the foreign power or agent of a foreign power
seeking to commit an act of international terrorism or
clandestine intelligence activities against the United States
that the electronic surveillance program seeks to monitor or
detect;</DELETED>
<DELETED> ``(6) include a statement of the means and
operational procedures by which the surveillance will be
executed and effected;</DELETED>
<DELETED> ``(7) include a statement of the facts and
circumstances relied upon by the Attorney General to justify
the belief that at least 1 of the participants in the
communications to be intercepted by the electronic surveillance
program will be the foreign power or agent of a foreign power
that is specified under paragraph (5), or a person who has had
communication with the foreign power or agent of a foreign
power that is specified under paragraph (5), and is seeking to
commit an act of international terrorism or clandestine
intelligence activities against the United States;</DELETED>
<DELETED> ``(8) include a statement of the proposed
minimization procedures;</DELETED>
<DELETED> ``(9) include a detailed description of the nature
of the information sought and the type of communication to be
intercepted by the electronic surveillance program;</DELETED>
<DELETED> ``(10) include an estimate of the number of
communications to be intercepted by the electronic surveillance
program during the requested authorization period;</DELETED>
<DELETED> ``(11) specify the date that the electronic
surveillance program that is the subject of the application was
initiated, if it was initiated before submission of the
application;</DELETED>
<DELETED> ``(12) certify that any electronic surveillance of
a person in the United States under this title shall cease 45
days after the date of the authorization, unless the Government
has obtained judicial authorization for continued surveillance
of the person in the United States under section 104 or another
Federal statute;</DELETED>
<DELETED> ``(13) include a statement of the facts concerning
all previous applications that have been made to the Foreign
Intelligence Surveillance Court under this title involving the
electronic surveillance program in the application, including
the minimization procedures and the means and operational
procedures proposed, and the Foreign Intelligence Surveillance
Court's decision on each previous application; and</DELETED>
<DELETED> ``(14) include a statement of the facts concerning
the implementation of the electronic surveillance program
described in the application, including, for any period of
operation of the program authorized at least 45 days prior to
the date of submission of the application--</DELETED>
<DELETED> ``(A) the minimization procedures
implemented;</DELETED>
<DELETED> ``(B) the means and operational procedures
by which the surveillance was executed and
effected;</DELETED>
<DELETED> ``(C) the number of communications
subjected to the electronic surveillance
program;</DELETED>
<DELETED> ``(D) the identity, if known, or a
description of any United States person whose
communications sent or received in the United States
were intercepted by the electronic surveillance
program; and</DELETED>
<DELETED> ``(E) a description of the foreign
intelligence information obtained through the
electronic surveillance program.</DELETED>
<DELETED> ``(b) Additional Information.--The Foreign Intelligence
Surveillance Court may require the Attorney General to furnish such
other information as may be necessary to make a determination under
section 704.''.</DELETED>
<DELETED>SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE
PROGRAMS.</DELETED>
<DELETED> Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 5, is amended by adding at the end the
following:</DELETED>
<DELETED>``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE
PROGRAMS.</DELETED>
<DELETED> ``(a) Necessary Findings.--Upon receipt of an application
under section 703, the Foreign Intelligence Surveillance Court shall
enter an ex parte order as requested, or as modified, approving the
electronic surveillance program if it finds that--</DELETED>
<DELETED> ``(1) the President has authorized the Attorney
General to make the application for electronic surveillance for
foreign intelligence information;</DELETED>
<DELETED> ``(2) approval of the electronic surveillance
program in the application is consistent with the duty of the
Foreign Intelligence Surveillance Court to uphold the
Constitution of the United States;</DELETED>
<DELETED> ``(3) there is probable cause to believe that the
electronic surveillance program will intercept communications
of the foreign power or agent of a foreign power specified in
the application, or a person who has had communication with the
foreign power or agent of a foreign power that is specified in
the application and is seeking to commit an act of
international terrorism or clandestine intelligence activities
against the United States;</DELETED>
<DELETED> ``(4) the proposed minimization procedures meet
the definition of minimization procedures under section
101(h);</DELETED>
<DELETED> ``(5) the application contains all statements and
certifications required by section 703; and</DELETED>
<DELETED> ``(6) an evaluation of the implementation of the
electronic surveillance program, as described in subsection
(b), supports approval of the application.</DELETED>
<DELETED> ``(b) Evaluation of the Implementation of the Electronic
Surveillance Program.--In determining whether the implementation of the
electronic surveillance program supports approval of the application
for purposes of subsection (a)(6), the Foreign Intelligence
Surveillance Court shall consider the performance of the electronic
surveillance program for at least 3 previously authorized periods, to
the extent such information is available, and shall--</DELETED>
<DELETED> ``(1) evaluate whether the electronic surveillance
program has been implemented in accordance with the proposal by
the Federal Government by comparing--</DELETED>
<DELETED> ``(A) the minimization procedures proposed
with the minimization procedures implemented;</DELETED>
<DELETED> ``(B) the nature of the information sought
with the nature of the information obtained;
and</DELETED>
<DELETED> ``(C) the means and operational procedures
proposed with the means and operational procedures
implemented;</DELETED>
<DELETED> ``(2) consider the number of communications
intercepted by the electronic surveillance program and the
length of time the electronic surveillance program has been in
existence; and</DELETED>
<DELETED> ``(3) consider the effectiveness of the electronic
surveillance program, as reflected by the foreign intelligence
information obtained.''.</DELETED>
<DELETED>SEC. 7. CONGRESSIONAL OVERSIGHT.</DELETED>
<DELETED> Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 6, is amended by adding at the end the
following:</DELETED>
<DELETED>``SEC. 705. CONGRESSIONAL OVERSIGHT.</DELETED>
<DELETED> ``(a) In General.--The President shall submit to each
member of the congressional intelligence committees (or any
subcommittee thereof designated for oversight of electronic
surveillance programs under this title) a report on the management and
operational details of the electronic surveillance program generally
and on any specific, surveillance conducted under the electronic
surveillance program whenever requested by either of the committees, or
any such subcommittee, as applicable.</DELETED>
<DELETED> ``(b) Semi-Annual Reports.--</DELETED>
<DELETED> ``(1) In general.--In addition to any reports
required under subsection (a), the President shall, not later
than 6 months after the date of enactment of this Act and every
6 months thereafter, fully inform each member of the
congressional intelligence committees (or any subcommittee
thereof designated for oversight of electronic surveillance
programs under this title) on all electronic surveillance
conducted under the electronic surveillance program.</DELETED>
<DELETED> ``(2) Contents.--Each report under paragraph (1)
shall include the following:</DELETED>
<DELETED> ``(A) A complete discussion of the
management, operational details, effectiveness, and
necessity of the electronic surveillance program
generally, and of the management, operational details,
effectiveness, and necessity of all electronic
surveillance conducted under the program, during the 6-
month period ending on the date of such
report.</DELETED>
<DELETED> ``(B) The total number of targets of
electronic surveillance commenced or continued under
the electronic surveillance program.</DELETED>
<DELETED> ``(C) The total number of United States
persons targeted for electronic surveillance under the
electronic surveillance program.</DELETED>
<DELETED> ``(D) The total number of targets of
electronic surveillance under the electronic
surveillance program for which an application was
submitted under section 104 for an order under section
105 approving electronic surveillance, and, of such
applications, the total number either granted,
modified, or denied.</DELETED>
<DELETED> ``(E) Any other information specified, in
writing, to be included in such report by the
congressional intelligence committees or any
subcommittees thereof designated for oversight of the
electronic surveillance program.</DELETED>
<DELETED> ``(F) A description of the nature of the
information sought under the electronic surveillance
program, the types of communications subjected to such
program, and whether the information sought under such
program could be reasonably obtained by less intrusive
investigative techniques in a timely and effective
manner.</DELETED>
<DELETED> ``(c) Form of Reports.--Any report or information
submitted under this section shall be submitted in classified
form.''.</DELETED>
<DELETED>SEC. 8. EMERGENCY AUTHORIZATION.</DELETED>
<DELETED> Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 6, is amended by adding at the end the
following:</DELETED>
<DELETED>``SEC. 706. EMERGENCY AUTHORIZATION.</DELETED>
<DELETED> ``Notwithstanding any other provision of law, the
President, through the Attorney General, may authorize electronic
surveillance without a court order under this title to, acquire foreign
intelligence information for a period not to exceed 45 days following a
declaration of war by Congress.''.</DELETED>
<DELETED>SEC. 9. CONFORMING AMENDMENT.</DELETED>
<DELETED> The table of contents for the Foreign Intelligence
Surveillance Act of 1978 is amended by striking the items related to
title VII and section 701 and inserting the following:</DELETED>
<DELETED>``TITLE VII--ELECTRONIC SURVEILLANCE
<DELETED>``Sec. 701. Definitions
<DELETED>``Sec. 702. Foreign Intelligence Surveillance Court
jurisdiction to review electronic
surveillance programs
<DELETED>``Sec. 703. Applications for approval of electronic
surveillance programs
<DELETED>``Sec. 704. Approval of electronic surveillance programs
<DELETED>``Sec. 705. Congressional oversight
<DELETED>``Sec. 706. Emergency Authorization
<DELETED>``TITLE VIII--EFFECTIVE DATE
<DELETED>``Sec. 801. Effective date''.
</DELETED>SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Security Surveillance Act
of 2006''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) After the terrorist attacks of September 11, 2001,
President Bush authorized the National Security Agency to
intercept communications between people inside the United
States, including American citizens, and terrorism suspects
overseas.
(2) One of the lessons learned from September 11, 2001, is
that the enemies who seek to greatly harm and terrorize our
Nation utilize technologies and techniques that defy
conventional law enforcement practices.
(3) For days before September 11, 2001, the Federal Bureau
of Investigation suspected that confessed terrorist Zacarias
Moussaoui was planning to hijack a commercial plane. The
Federal Bureau of Investigation, however, could not meet the
requirements to obtain a traditional criminal warrant or an
order under the Foreign Intelligence Surveillance Act of 1978
to search his laptop computer (Report of the 9/11 Commission
273-76).
(4) The President, as the constitutional officer most
directly responsible for protecting the United States from
attack, requires the ability and means to detect and track an
enemy that can master and exploit modern technology.
(5) It is equally essential, however, that in protecting
the United Sates against our enemies, the President does not
compromise the very civil liberties that he seeks to safeguard.
As Justice Hugo Black observed, ``The President's power, if
any, to issue [an] order must stem either from an Act of
Congress or from the Constitution itself.'' Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black,
J.). Similarly, in 2004, Justice Sandra Day O'Connor explained
in her plurality opinion for the Supreme Court in Hamdi v.
Rumsfeld: ``We have long since made clear that a state of war
is not a blank check for the President when it comes to the
rights of the Nation's citizens.'' Hamdi v. Rumsfeld, 542 U.S.
507, 536 (2004) (citations omitted).
(6) When deciding issues of national security, it is in our
Nation's best interest that, to the extent feasible, all 3
branches of the Federal Government should be involved. This
helps guarantee that electronic surveillance programs do not
infringe on the constitutional rights of Americans, while at
the same time ensuring that the President has all the powers
and means necessary to detect and track our enemies and protect
our Nation from attack.
(7) As Justice Sandra Day O'Connor explained in her
plurality opinion for the Supreme Court in Hamdi v. Rumsfeld,
``Whatever power the United States Constitution envisions for
the Executive in its exchanges with other nations or with enemy
organizations in times of conflict, it most assuredly envisions
a role for all 3 branches when individual liberties are at
stake.'' Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations
omitted).
(8) Similarly, Justice Jackson famously explained in his
Youngstown concurrence: ``When the President acts pursuant to
an express or implied authorization of Congress, his authority
is at its maximum, for it includes all that he possesses in his
own right plus all that Congress can delegate... When the
President acts in absence of either a congressional grant or
denial of authority, he can only rely upon his own independent
powers, but there is a zone of twilight in which he and
Congress may have concurrent authority, or in which its
distribution is uncertain. Therefore, congressional inertia,
indifference or quiescence may sometimes, at least as a
practical matter, enable, if not invite, measures on
independent presidential responsibility... When the President
takes measures incompatible with the expressed or implied will
of Congress, his power is at its lowest ebb, for then he can
rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter. Courts can
sustain exclusive Presidential control in such a case only by
disabling the Congress from acting upon the subject.''
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38
(1952) (Jackson, J., concurring).
(9) Congress clearly has the authority to enact legislation
with respect to electronic surveillance programs. The
Constitution provides Congress with broad powers of oversight
over national security and foreign policy, under article I,
section 8 of the Constitution of the United States, which
confers on Congress numerous powers, including the powers--
(A) ``To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land
and Water'';
(B) ``To raise and support Armies'';
(C) ``To provide and maintain a Navy'';
(D) ``To make Rules for the Government and
Regulation of the land and naval Forces'';
(E) ``To provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections
and repel Invasions''; and
(F) ``To provide for organizing, arming, and
disciplining the Militia, and for governing such Part
of them as may be employed in the Service of the United
States''.
(10) While Attorney General Alberto Gonzales explained that
the executive branch reviews the electronic surveillance
program of the National Security Agency every 45 days to ensure
that the program is not overly broad, it is the belief of
Congress that approval and supervision of electronic
surveillance programs should be conducted outside of the
executive branch, by the article III court established under
section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803). It is also the belief of Congress that
it is appropriate for an article III court to pass upon the
constitutionality of electronic surveillance programs that may
implicate the rights of Americans.
(11) The Foreign Intelligence Surveillance Court is the
proper court to approve and supervise classified electronic
surveillance programs because it is adept at maintaining the
secrecy with which it was charged and it possesses the
requisite expertise and discretion for adjudicating sensitive
issues of national security.
(12) In 1975, [then] Attorney General Edward Levi, a strong
defender of executive authority, testified that in times of
conflict, the President needs the power to conduct long-range
electronic surveillance and that a foreign intelligence
surveillance court should be empowered to issue special
approval orders in these circumstances.
(13) The Foreign Intelligence Surveillance Act of 1978
clarifies and definitively establishes that the Foreign
Intelligence Surveillance Court has the authority to review
electronic surveillance programs and pass upon their
constitutionality. Such authority is consistent with well-
established, longstanding practices.
(14) The Foreign Intelligence Surveillance Court already
has broad authority to approve surveillance of members of
international conspiracies, in addition to granting warrants
for surveillance of a particular individual under sections 104,
105, and 402 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804, 1805, and 1842).
(15) Prosecutors have significant flexibility in
investigating domestic conspiracy cases. Courts have held that
flexible warrants comply with the 4th amendment to the
Constitution of the United States when they relate to complex,
far-reaching, and multifaceted criminal enterprises like drug
conspiracies and money laundering rings. The courts recognize
that applications for search warrants must be judged in a
common sense and realistic fashion, and the courts permit broad
warrant language where, due to the nature and circumstances of
the investigation and the criminal organization, more precise
descriptions are not feasible.
(16) Federal agents investigating international terrorism
by foreign enemies are entitled to tools at least as broad as
those used by law enforcement officers investigating domestic
crimes by United States citizens. The Supreme Court, in the
``Keith Case'', United States v. United States District Court
for the Eastern District of Michigan, 407 U.S. 297 (1972),
recognized that the standards and procedures used to fight
ordinary crime may not be applicable to cases involving
national security. The Court recognized that national
``security surveillance may involve different policy and
practical considerations from the surveillance of ordinary
crime'' and that courts should be more flexible in issuing
warrants in national security cases. United States v. United
States District Court for the Eastern District of Michigan, 407
U.S. 297, 322 (1972).
(17) By authorizing the Foreign Intelligence Surveillance
Court to review electronic surveillance programs, Congress
preserves the ability of the President to use the necessary
means to guard our national security, while also protecting the
civil liberties and constitutional rights that we cherish.
SEC. 3. DEFINITIONS.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) is amended--
(1) by redesignating title VII as title IX;
(2) by redesignating section 701 as section 901; and
(3) by inserting after title VI the following:
``TITLE VII--ELECTRONIC SURVEILLANCE
``SEC. 701. DEFINITION.
``As used in this title--
``(1) the terms `agent of a foreign power', `Attorney
General', `foreign power', `international terrorism',
`minimization procedures', `person', `United States', and
`United States person' have the same meaning as in section 101;
``(2) the term `congressional intelligence committees'
means the Select Committee on Intelligence of the Senate and
the Permanent Select Committee on Intelligence of the House of
Representatives;
``(3) the term `electronic communication' means any
transfer of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted, in whole or in part, by
a wire, radio, electro magnetic, photo electronic or photo
optical system, cable, or other like connection furnished or
operated by any person engaged as a common carrier in providing
or operating such facilities for the transmission of
communications;
``(4) the term `electronic tracking' means the acquisition
by an electronic, mechanical, or other surveillance device of
the substance of any electronic communication sent by, received
by, or intended to be received by a person who is reasonably
believed to be in the United States, through the intentional
targeting of that person's communications, where a person in
the United States participating in the communication has a
reasonable expectation of privacy;
``(5) the term `electronic surveillance program' means a
program to engage in electronic tracking--
``(A) that has as a significant purpose the
gathering of foreign intelligence information or
protecting against international terrorism;
``(B) where it is not technically feasible to name
every person or address every location to be subjected
to electronic tracking;
``(C) where effective gathering of foreign
intelligence information requires the flexibility to
begin electronic surveillance immediately after
learning of suspect activity; and
``(D) where effective gathering of foreign
intelligence information requires an extended period of
electronic surveillance;
``(6) the term `foreign intelligence information' has the
same meaning as in section 101 and includes information
necessary to protect against international terrorism;
``(7) the term `Foreign Intelligence Surveillance Court'
means the court established under section 103(a);
``(8) the term `Foreign Intelligence Surveillance Court of
Review' means the court established under section 103(b);
``(9) the term `intercept' means the acquisition of the
substance of any electronic communication by a person through
the use of any electronic, mechanical, or other device; and
``(10) the term `substance' means any information
concerning the symbols, sounds, words, purport, or meaning of a
communication, and does not include dialing, routing,
addressing, or signaling.''.
SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO REVIEW
ELECTRONIC SURVEILLANCE PROGRAMS.
(a) In General.--Title VII of the Foreign Intelligence Surveillance
Act of 1978, as amended by section 3, is amended by adding at the end
the following:
``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO
REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.
``(a) Authorization of Review.--
``(1) Initial authorization.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to issue an order
under this title, lasting not longer than 90 days, that
authorizes an electronic surveillance program to obtain foreign
intelligence information or to protect against international
terrorism.
``(2) Reauthorization.--The Foreign Intelligence
Surveillance Court shall have jurisdiction to reauthorize an
electronic surveillance program for a period of time not longer
than such court determines to be reasonable.
``(3) Resubmission or appeal.--In the event that the
Foreign Intelligence Surveillance Court refuses to approve an
application under this subsection, the Attorney General may
submit a new application. There shall be no limit on the number
of times the Attorney General may seek approval of an
electronic surveillance program. Alternatively, the Attorney
General may appeal the decision of the Foreign Intelligence
Surveillance Court to the Foreign Intelligence Surveillance
Court of Review.
``(b) Mandatory Transfer for Review.--
``(1) In general.--In any case before any court challenging
the legality of classified communications intelligence activity
relating to a foreign threat, including an electronic
surveillance program, or in which the legality of any such
activity or program is in issue, if the Attorney General files
an affidavit under oath that the case should be transferred to
the Foreign Intelligence Court of Review because further
proceedings in the originating court would harm the national
security of the United States, the originating court shall
transfer the case to the Foreign Intelligence Surveillance
Court of Review for further proceedings under this subsection.
``(2) Retransfer to originating court.--Upon completion of
review pursuant to this subsection, the Foreign Intelligence
Surveillance Court of Review shall remand the case to the
originating court for further proceedings consistent with its
opinion.
``(3) Preservation of litigation.--In any case that is
transferred and received under this subsection, all litigation
privileges shall be preserved.
``(4) Certiorari and effects of decisions.--The decision
the Foreign Intelligence Surveillance Court of Review made
under paragraph (1), including a decision that the disclosure
of national security information is constitutionally required,
shall be subject to certiorari review in the United States
Supreme Court, and shall otherwise be binding in all other
courts.
``(5) Dismissal.--The Foreign Intelligence Surveillance
Court of Review or a court that is an originating court under
paragraph (1) may dismiss a challenge to the legality of an
electronic surveillance program for any reason provided for
under law.
``(c) Modifications and Appeal in Event Application Is Denied.--In
the event that the Foreign Intelligence Surveillance Court declines to
approve an application under subsection (a)--
``(1) the court shall state its reasons in a written
opinion, which it shall submit to the Attorney General; and
``(2) the Attorney General may submit a new application
under section 703 for the electronic surveillance program.''.
SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.
Title VII of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 4, is amended by adding at the end the following:
``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE
PROGRAMS.
``(a) In General.--Each application for approval of an electronic
surveillance program under this title (including for reauthorization)
shall--
``(1) be made by the Attorney General or his designee;
``(2) include a statement of the authority conferred on the
Attorney General by the President of the United States;
``(3) include a statement setting forth the legal basis for
the conclusion by the Attorney General that the electronic
surveillance program is consistent with the Constitution of the
United States;
``(4) certify that a significant purpose of the electronic
surveillance program is to gather foreign intelligence
information or to protect against international terrorism;
``(5) certify that the information sought cannot reasonably
be obtained by normal investigative techniques or through an
application under section 104;
``(6) include a statement of the means and operational
procedures by which the electronic tracking will be executed
and effected;
``(7) include an explanation of how the electronic
surveillance program is reasonably designed to ensure that the
communications that are intercepted are communications of or
with--
``(A) a foreign power that is engaged in
international terrorism activities or in preparation
therefor;
``(B) an agent of a foreign power that is engaged
in international terrorism activities or in preparation
therefor; or
``(C) a person reasonably believed to have
communication with or be associated with a foreign
power that is engaged in international terrorism
activities or in preparation therefor or an agent of a
foreign power that is engaged in international
terrorism activities or in preparation therefor;
``(8) include a statement of the proposed minimization
procedures;
``(9) if the electronic surveillance program that is the
subject of the application was initiated prior to the date the
application was submitted, specify the date that the program
was initiated;
``(10) include a description of all previous applications
that have been made under this title involving the electronic
surveillance program in the application (including the
minimization procedures and the means and operational
procedures proposed) and the decision on each previous
application; and
``(11) include a statement of facts concerning the
implementation of the electronic surveillance program described
in the application, including, for any period of operation of
the program authorized not less than 90 days prior to the date
of submission of the application--
``(A) the minimization procedures implemented; and
``(B) the means and operational procedures by which
the electronic tracking was executed and effected.
``(b) Additional Information.--The Foreign Intelligence
Surveillance Court may require the Attorney General to furnish such
other information as may be necessary to make a determination under
section 704.''.
SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.
Title VII of the Foreign Intelligence Surveillance Act 18 of 1978,
as amended by section 5, is amended by adding at the end the following:
``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.
``(a) Necessary Findings.--Upon receipt of an application under
section 703, the Foreign Intelligence Surveillance Court shall enter an
ex parte order as requested, or as modified, approving the electronic
surveillance program if it finds that--
``(1) the President has authorized the Attorney General to
make the application for electronic surveillance for foreign
intelligence information or to protect against international
terrorism;
``(2) approval of the electronic surveillance program in
the application is consistent with the Constitution of the
United States;
``(3) the electronic surveillance program is reasonably
designed to ensure that the communications that are intercepted
are communications of or with--
``(A) a foreign power that is engaged in
international terrorism activities or in preparation
therefor;
``(B) an agent of a foreign power that is engaged
in international terrorism activities or in preparation
therefor; or
``(C) a person reasonably believed to have
communication with or be associated with a foreign
power that is engaged in international terrorism
activities or in preparation therefor or an agent of a
foreign power that is engaged in international
terrorism activities or in preparation therefor;
``(4) the proposed minimization procedures meet the
definition of minimization procedures under section 101(h); and
``(5) the application contains all statements and
certifications required by section 703.
``(b) Considerations.--In considering the constitutionality of the
electronic surveillance program under subsection (a), the Foreign
Intelligence Surveillance Court may consider--
``(1) whether the electronic surveillance program has been
implemented in accordance with the proposal by the Attorney
General by comparing--
``(A) the minimization procedures proposed with the
minimization procedures actually implemented;
``(B) the nature of the information sought with the
nature of the information actually obtained; and
``(C) the means and operational procedures proposed
with the means and operational procedures actually
implemented; and
``(2) whether foreign intelligence information has been
obtained through the electronic surveillance program.
``(c) Contents of Order.--An order approving an electronic
surveillance program under this section shall direct--
``(1) that the minimization procedures be followed;
``(2) that, upon the request of the applicant, specified
communication or other common carriers, landlords, custodians,
or other specified person, furnish the applicant forthwith with
all information, facilities, or technical assistance necessary
to undertake the electronic surveillance program in such a
manner as will protect its secrecy and produce a minimum of
interference with the services that such carriers, landlords,
custodians, or other persons are providing potential targets of
the electronic surveillance program;
``(3) that any record concerning the electronic
surveillance program or the aid furnished or retained by such
carriers, landlords, custodians, or other persons are
maintained under security procedures approved by the Attorney
General and the Director of National Intelligence; and
``(4) that the applicant compensate, at the prevailing
rate, such carriers, landlords, custodians, or other persons
for furnishing such aid.''.
SEC. 7. CONGRESSIONAL OVERSIGHT.
Title VII of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 6, is amended by adding at the end the following:
``SEC. 705. CONGRESSIONAL OVERSIGHT.
``(a) In General.--Not less often than every 180 days, the Attorney
General shall submit to the congressional intelligence committees a
report in classified form on the activities during the previous 180-day
period under any electronic surveillance program authorized under this
title.
``(b) Contents.--Each report submitted under subsection (a) shall
provide, with respect to the previous 180-day period, a description
of--
``(1) the minimization procedures implemented;
``(2) the means and operational procedures by which the
surveillance was executed and effected;
``(3) significant decisions of the Foreign Intelligence
Surveillance Court on applications made under section 703;
``(4) the total number of applications made for orders
approving electronic surveillance pursuant to this title; and
``(5) the total number of orders applied for that are
granted, modified, or denied.
``(c) Rule of Construction.--Nothing in this title shall be
construed to limit the authority or responsibility of any committee of
either House of Congress to obtain such information as such committee
may need to carry out its respective functions and duties.''.
SEC. 8. CLARIFICATION OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) In General.--The Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by inserting after title VII, as
amended by this Act, the following:
``TITLE VIII--EXECUTIVE AUTHORITY
``SEC. 801. EXECUTIVE AUTHORITY.
``Nothing in this Act shall be construed to limit the
constitutional authority of the President to collect intelligence with
respect to foreign powers and agents of foreign powers.''.
(b) Repeal.--Sections 111, 309, and 404 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are repealed.
(c) Conforming Amendments.--
(1) Title 18.--Section 2511(2) of title 18, United States
Code, is amended--
(A) in paragraph (e), by striking ``, as defined in
section 101'' and all that follows through the end of
the paragraph and inserting the following: ``under the
Constitution or the Foreign Intelligence Surveillance
Act of 1978.''; and
(B) in paragraph (f), by striking ``from
international or foreign communications,'' and all that
follows through the end of the paragraph and inserting
``that is authorized under a Federal statute or the
Constitution of the United States.''
(2) FISA.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
(A) in subsection (a)--
(i) in paragraph (1)--
(I) by inserting ``or under the
Constitution'' after ``authorized by
statute''; and
(II) by striking ``or'' at the end;
(ii) in paragraph (2)--
(I) by inserting ``or under the
Constitution'' after ``authorized by
statute''; and
(II) by striking the period and
inserting ``; or''; and
(iii) by adding at the end the following:
``(3) knowingly discloses or uses information obtained
under color of law by electronic surveillance in a manner or
for a purpose not authorized by law.''; and
(B) in subsection (c)--
(i) by striking ``$10,000'' and inserting
``$100,000''; and
(ii) by striking ``five years'' and
inserting ``15 years''.
SEC. 9. OTHER CONFORMING AMENDMENTS TO FISA.
(a) Reference.--In this section, a reference to ``FISA'' shall mean
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.)
(b) Definitions.--Section 101 of FISA (50 U.S.C. 1801) is amended--
(1) in subsection (b)(1)--
(A) in subparagraph (B), by striking ``or'' after
the semicolon; and
(B) by adding at the end the following:
``(D) otherwise possesses or is expected to
transmit or receive foreign intelligence information
within the United States; or'';
(2) by striking subsection (f) and inserting the following:
``(f) `Electronic surveillance' means--
``(1) the installation or use of an electronic, mechanical,
or other surveillance device for the intentional collection of
information concerning a particular known person who is
reasonably believed to be in the United States by intentionally
targeting that person under circumstances in which that person
has a reasonable expectation of privacy and a warrant would be
required for law enforcement purposes; or
``(2) the intentional acquisition of the contents of any
communication under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, and if both the sender
and all intended recipients are located within the United
States.'';
(3) in subsection (g), by inserting before the period the
following: ``or a person or persons designated by the Attorney
General or Acting Attorney General'';
(4) in subsection (h)--
(A) in paragraph (2), by inserting ``and'' after
the semicolon;
(B) in paragraph (3), by striking ``; and'' and
inserting a period; and
(C) by striking paragraph (4); and
(5) by striking subsection (n) and inserting the following:
``(n) `contents' has the meaning set forth in section 2510(8) of
title 18, United States Code.''.
(c) Electronic Surveillance Authorization.--Section 102 of FISA (50
U.S.C. 1802) is amended to read as follows:
``electronic surveillance authorization without court order;
certification by attorney general; reports to congressional committees;
transmittal under seal; duties and compensation of communication common
carrier; applications; jurisdiction of court
``Sec. 102. (a)(1) Notwithstanding any other law, the President
through the Attorney General, may authorize electronic surveillance
without a court order under this title to acquire foreign intelligence
information for periods of up to 1 year if the Attorney General
certifies in writing under oath that--
``(A)(i) the acquisition of the contents of communications
of foreign powers, as defined in section 101(a), an agent of a
foreign power as defined in section 101(b)(1); or
``(ii) the acquisition of technical intelligence, other
than the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in paragraph (1), (2), or (3) of section
101(a); and
``(B) the proposed minimization procedures with respect to
such surveillance meet the definition of minimization
procedures under section 101(h);
if the Attorney General reports such minimization procedures and any
changes thereto to the Senate Select Committee on Intelligence and the
House Permanent Select Committee on Intelligence at least 30 days prior
to their effective date, unless the Attorney General determines
immediate action is required and notifies the committees immediately of
such minimization procedures and the reason for their becoming
effective immediately.
``(2) An electronic surveillance authorized by this subsection may
be conducted only in accordance with the Attorney General's
certification and the minimization procedures. The Attorney General
shall assess compliance with such procedures and shall report such
assessments to the Senate Select Committee on Intelligence and the
House Permanent Select Committee on Intelligence under the provisions
of section 108(a).
``(3) The Attorney General shall immediately transmit under seal to
the court established under section 103(a) a copy of his certification.
Such certification shall be maintained under security measures
established by the Chief Justice with the concurrence of the Attorney
General, in consultation with the Director of National Intelligence,
and shall remain sealed unless--
``(A) an application for a court order with respect to the
surveillance is made under section 104; or
``(B) the certification is necessary to determine the
legality of the surveillance under section 106(f).
``(b) The Attorney General is also authorized to deliver to a
provider of any electronic communication service, landlord, custodian,
or other person (including any officer, employee, agent, or other
specified person thereof) who has access to electronic communications,
either as they are transmitted or while they are stored, or equipment
that is being or may be used to transmit or store such communications,
a certificate requiring that such person or persons furnish any
information, facilities, or technical assistance to an official
authorized by the President to engage in electronic surveillance for
foreign intelligence purposes, for periods of up to 1 year if the
Attorney General certifies in writing to the carrier under oath that
such provision of information, facilities, or technical assistance does
not constitute electronic surveillance as defined in section 101(f).
``(c) With respect to electronic surveillance or the furnishing of
any information, facilities, or technical assistance authorized by this
section, the Attorney General may direct a provider of any electronic
communication service, landlord, custodian or other person (including
any officer, employee, agent, or other specified person thereof) who
has access to electronic communications, either as they are transmitted
or while they are stored or equipment that is being or may be used to
transmit or store such communications to--
``(1) furnish all information, facilities, or technical
assistance necessary to accomplish the electronic surveillance
in such a manner as will protect its secrecy and produce a
minimum of interference with the services that such provider of
any electronic communication service, landlord, custodian, or
other person is providing its customers; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence any
records concerning the surveillance or the aid furnished which
such provider of any electronic communication service,
landlord, custodian, or other person wishes to retain.
The Government shall compensate, at the prevailing rate, such provider
of any electronic communication service, landlord, custodian, or other
person for furnishing such aid.
``(d) Electronic surveillance directed solely at the collection of
international radio communications of diplomatically immune persons in
the United States may be authorized by an official authorized by the
President to engage in electronic surveillance for foreign intelligence
purposes in accordance with procedures approved by the Attorney
General.''.
(d) Designation of Judges.--Section 103 of FISA (50 U.S.C. 1803) is
amended in subsection (a), by inserting, ``at least'' before ``seven of
the United States Judiciary''.
(e) Applications for Court Orders.--Section 104 of FISA (50 U.S.C.
1804) is amended:
(1) in subsection (a), by striking paragraphs (6) through
(11) and inserting the following:
``(6) a certification or certifications by the Assistant to
the President for National Security Affairs or an executive
branch official authorized by the President to conduct
electronic surveillance for foreign intelligence purposes--
``(A) that the certifying official deems the
information sought to be foreign intelligence
information;
``(B) that a significant purpose of the
surveillance is to obtain foreign intelligence
information;
``(C) that such information cannot reasonably be
obtained by normal investigative techniques; and
``(D) including a statement of the basis for the
certification that--
``(i) the information sought is the type of
foreign intelligence information designated;
and
``(ii) such information cannot reasonably
be obtained by normal investigative techniques;
and
``(7) a statement of the period of time for which the
electronic surveillance is required to be maintained, and if
the nature of the intelligence gathering is such that the
approval of the use of electronic surveillance under this title
should not automatically terminate when the described type of
information has first been obtained, a description of facts
supporting the belief that additional information of the same
type will be obtained thereafter.'';
(2) by striking subsection (b); and
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively.
(f) Issuance of Order.--Section 105 of FISA (50 U.S.C. 1805) is
amended--
(1) in subsection (a), by--
(A) striking paragraph (1); and
(B) redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) by striking paragraph (1) of subsection (c) and
inserting the following:
``(1) An order approving an electronic surveillance under this
section shall specify--
``(A) the identity, if known, or a description of the
specific target of the electronic surveillance identified or
described in the application pursuant to section 104(a)(3);
``(B) the nature and location of each of the facilities or
places at which the electronic surveillance will be directed,
if known; and
``(C) the period of time during which the electronic
surveillance is approved.'';
(3) by striking subsection (d) and inserting the following:
``(d) Each order under this section shall specify the type of
electronic surveillance involved, including whether physical entry is
required.'';
(4) by striking paragraphs (1) and (2) of subsection (e)
and inserting the following:
``(1) An order issued under this section may approve an electronic
surveillance may be for a period not to exceed 1 year. If such
emergency employment of electronic surveillance is authorized, the
official authorizing the emergency employment of electronic
surveillance shall require that the minimization procedures required by
this title for the issuance of a judicial order be followed.
``(2) Extensions of an order issued under this title may be granted
on the same basis as an original order upon an application for an
extension and new findings made in the same manner as required for an
original order and may be for a period not to exceed 1 year.'';
(5) by striking subsection (f) and inserting the following:
``(f)(1) Notwithstanding any other provision of this title, when an
official authorized by the President to conduct electronic surveillance
reasonably determines that--
``(A) an emergency situation exists with respect to the
employment of electronic surveillance to obtain foreign
intelligence information before an order authorizing such
surveillance can with due diligence be obtained; and
``(B) the factual basis for issuance of an order under this
title to approve such surveillance exists;
that official may authorize the emergency employment of electronic
surveillance in accordance with paragraph (2).
``(2) Under paragraph (1), the following requirements shall be
satisfied:
``(A) The Attorney General shall be informed of the
emergency electronic surveillance.
``(B) A judge having jurisdiction under section 103 shall
be informed by the Attorney General or his designee as soon as
practicable following such authorization that the decision has
been made to employ emergency electronic surveillance.
``(C) An application in accordance with this title shall be
made to that judge or another judge having jurisdiction under
section 103 as soon as practicable, but not more than 7 days
after such surveillance is authorized. In the absence of a
judicial order approving such electronic surveillance, the
surveillance shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of emergency
authorization, whichever is earliest. In the event that such
application for approval is denied, or in any other case where
the electronic surveillance is terminated and no order is
issued approving the surveillance, no information obtained or
evidence derived from such surveillance shall be received in
evidence or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if the
information indicates a threat of death or serious bodily harm
to any person. A denial of the application made under this
subsection may be reviewed as provided in section 103.''; and
(6) in subsection (i) by--
(A) striking ``a wire or'' and inserting ``any'';
(B) striking ``chapter'' and inserting ``title'';
and
(C) by adding at the end ``, or in response to
certification by the Attorney General or his designee
seeking information, facilities, or technical
assistance from such person that does not constitute
electronic surveillance as defined in section 101(f
)''.
(g) Use of Information.--Section 106 of FISA (50 U.S.C. 1806) is
amended--
(1) in subsection (i), by--
(A) deleting ``radio''; and
(B) inserting ``Attorney General determines that
the content'' after ``contain significant foreign
intelligence or''; and
(2) in subsection (k), by deleting ``104(a)(7)'' and
inserting ``104(a)(6)''.
(h) Congressional Oversight.--Section 108 of FISA (50 U.S.C. 1808)
is amended by adding at the end the following:
``(c) Document Management System for Applications for Orders
Approving Electronic Surveillance.--
``(1) System proposed.--The Attorney General and Director
of National Intelligence shall, in consultation with the
Director of the Federal Bureau of Investigation, the Director
of the National Security Agency, the Director of the Central
Intelligence Agency, and the Foreign Intelligence Surveillance
Court, conduct a feasibility study to develop and implement a
secure, classified document management system that permits the
prompt preparation, modification, and review by appropriate
personnel of the Department of Justice, the Federal Bureau of
Investigation, the National Security Agency, and other
applicable elements of the United States Government of
applications under section 104 before their submittal to the
Foreign Intelligence Surveillance Court.
``(2) Scope of system.--The document management system
proposed in paragraph (1) shall--
``(A) permit and facilitate the prompt submittal of
applications and all other matters, including
electronic filings, to the Foreign Intelligence
Surveillance Court under section 104 or 105(g)(5); and
``(B) permit and facilitate the prompt transmittal
of rulings of the Foreign Intelligence Surveillance
Court to personnel submitting applications described in
paragraph (1).''.
(i) Criminal Sanctions.--Section 109 of FISA (50 U.S.C. 1809) is
amended by striking subsection (a) and inserting the following:
``(a) Prohibited Activities.--A person is guilty of an offense if
he intentionally--
``(1) engages in electronic surveillance, as defined in
section 101(f), under color of law except as authorized by law;
or
``(2) discloses or uses information obtained under color of
law by electronic surveillance, knowing or having reason to
know that the information was obtained through electronic
surveillance not authorized by law.''.
(j) Authorization During Time of War.--Title I of FISA is amended
by striking section 111.
(k) Physical Searches.--Title III of Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1821 et seq.) is amended--
(1) in section 301 (50 U.S.C. 1821), by striking paragraph
(5) and inserting the following:
``(5) `Physical search' means any physical intrusion within
the United States into premises or property (including
examination of the interior of property by technical means)
that is intended to result in a seizure, reproduction,
inspection, or alteration of information, material, or
property, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, but does not include
activities conducted in accordance with sections 102 or 105.'';
(2) in section 307, by striking subsection (a) and
inserting the following:
``(a) A person is guilty of an offense if he intentionally--
``(1) under color of law for the purpose of obtaining
foreign intelligence information, executes a physical search
within the United States except as authorized by statute or
under the Constitution; or
``(2) discloses or uses information obtained under color of
law by physical search within the United States, knowing or
having reason to know that the information was obtained through
physical search not authorized by statute or the
Constitution.''; and
(3) by striking section 309.
SEC. 10. CONFORMING AMENDMENT TO TABLE OF CONTENTS.
The table of contents for the Foreign Intelligence Surveillance Act
of 1978 is amended by striking the items related to title VII and
section 701 and inserting the following:
``TITLE VII--ELECTRONIC SURVEILLANCE
``Sec. 701. Definition.
``Sec. 702. Foreign intelligence surveillance court jurisdiction to
review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance
programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.
``TITLE VIII--EXECUTIVE AUTHORITY
``Sec. 801. Executive authority.''.
Calendar No. 609
109th CONGRESS
2d Session
S. 2453
_______________________________________________________________________
A BILL
To establish procedures for the review of electronic surveillance
programs.
_______________________________________________________________________
September 13, 2006
Reported with an amendment