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The material follows:
Section 1 contains the title of the Act, `The Counterintelligence Improvements Act of 1994.'
Section 2 adds a new title VIII to the National Security Act of 1947 (50 U.S.C. 401 et seq.) to govern access to Top Secret classified information.
Section 801 establishes the requirements for eligibility to access Top Secret information.
Subsection (a) specifies that the President and Vice President, Members of Congress, Justices of the Supreme Court and judges of other federal courts established pursuant to Article III of the Constitution are eligible, by virtue of their elected and appointed positions, for access to particularly sensitive classified information needed for the performance of their governmental functions without regard to other provisions of this title. This means that the incumbents of such positions are not required to meet the security requirements of other sections of the bill (e.g. submit to background investigations or reinvestigations) applicable to government employees.
Subsection (b) provides that with respect to government employees, access to Top Secret information shall be limited to employees who have been granted access pursuant to this title, who are citizens of the United States, who require routine access to such information in the performance of official governmental functions, and who have been determined to be trustworthy based upon a background investigation and other reinvestigations undertaken pursuant to section 802, below, and have otherwise satisfied the requirements of that section.
Subsection (c) provides that the President may by regulation permit access to Top Secret information by persons other than those listed in subsections (a) and (b). The Congress intends that such regulations cover access to Top Secret information by government employees who are not citizens of the United States or who do not require routine access to such information for the performance of official functions. It is also contemplated that there will be limited circumstances where it will be in the best interest of the United States to share such information with persons who are not government employees (including contractors). Such persons may, indeed, include foreign nationals in rare circumstances. The Congress expects the President to make appropriate allowances for such access in the regulations required by section 802.
Section 802 requires the President to issue, within 180 days of enactment of this title, regulations binding upon all elements of the Executive branch. Such regulations are required, at a minimum, to establish certain requirements enumerated in this section.
Subsection (A) sets forth the minimum requirements to be met as a condition of access to Top Secret information, to include the requirements for initial and periodic background investigations, requirements to consent to the Government's access to certain types of personal records, and requirements to report certain types of information to the Government.
Subsection (A)(1) provides that no employee of the United States Government shall be given access to Top Secret information unless such person has been the subject of a background investigation and has provided consent to the investigative agency responsible for conducting the investigation permitting access to certain types of records during the period of access and for five years thereafter. Such records include financial records covered by the Right to Financial Privacy Act of 1978; consumer credit reports covered by the Consumer Credit Protection Act; and records maintained by commercial entities within the United States pertaining to travel by the subject outside the United States. (Access by government investigative agencies to this category of records does not appear to be restricted under existing law, however, private commercial concerns may be reluctant to provide such information without the consent of the consumer.)
The three provisos at the end of the subsection (A)(1) place general limitations on the authority of the investigating agency to request or disseminate such information.
Proviso (i) states that an authorized investigative agency may not request information pursuant to this section for any purpose other than making a security clearance determination. Thus, this subsection does not provide authority to request information concerning any person who is not being contemplated for access to Top Secret information or who has such access presently or within the last five years.
Proviso (ii) states that where the individual concerned no longer has access to Top Secret information, no information may be requested by an authorized investigative agency unless such agency has reasonable grounds to believe, based upon specific and articulable facts available to it, that such persons may pose a threat to the continued security of the information to which he or she had previously had access. This means that information could not be requested concerning any person who had left government service, or who remained in government service after access had been terminated, unless the investigative agency had reasonable grounds to believe such person may pose a security concern. The Congress believes that where persons who no longer have access to highly classified information are concerned, there should be a specific basis to justify Government inquiries into their personal records.
Proviso (iii) prohibits any authorized investigative agency which obtains information pursuant to this section from disseminating it to any other department, agency, or entity for any purpose other than making a security clearance determination, or for a law enforcement or foreign counterintelligence purpose. Inasmuch as such information may be highly personal, its dissemination is justified only by the most compelling needs.
Subsection (A)(2) also requires persons being given access to particularly sensitive classified information to agree, as a condition of such access, to report, in accordance with applicable regulations, any travel to foreign countries during the period of access which has not been authorized as part of the subject's official duties. The Congress recognizes there will be cases, due to geographical location of the U.S. employee concerned, where foreign travel for personal reasons could be a routine, perhaps even daily, occurrence. By providing that reports of such travel be made in accordance with applicable regulations is intended to provide flexibility to accommodate such situations.
Subsection (A)(3) requires that persons being given access to
particularly sensitive classified information also report to the Federal Bureau of Investigation or to appropriate investigative authorities of the employing department, agency, or entity, any unauthorized contacts with persons known to be foreign nationals or persons representing foreign nationals, where an effort to acquire U.S. classified information is made or is apparent. For this latter purpose, unauthorized contacts do not include contacts made within the context of an authorized diplomatic relationship. In other words, where the employee is authorized to cultivate a diplomatic relationship, and in the course of such relationship, a foreign diplomat poses a question within the scope of such relationship, the answer to which would require classified information to be revealed, such an inquiry would not be required to be reported to investigative agencies. If, on the other hand, the foreign diplomat attempted to solicit classified information outside the scope of an authorized relationship, or attempted to recruit the U.S. diplomat to collect information in the future, such approach would be reportable under this section.
The final paragraph of subsection (A) provides that a failure by the subject to grant consent as required by this subsection, or make the reports required by this subsection, constitute ground for denial or termination of access to Top Secret information. The Congress does not intend that such failure will automatically result in such denial or termination, but rather that the department, agency, or entity concerned will evaluate all relevant information related to such failure and determine whether such action is appropriate.
Subsection (B) deals with requirements for reinvestigations of persons granted access to Top Secret information. Subsection (B)(1) provides that such persons will be subject to additional background investigations no less frequently than every 5 years. Although any failure to satisfy this requirement that is not solely attributable to the subject of the investigation shall not result in a loss or denial of access. The Congress recognizes that there may be practical reasons why reinvestigations are not accomplished within the five-year time frame. Where these are not solely attributable to subject, they should not result in any unfavorable action regarding his continued access. Subsection (B)(2) provides that such persons are subject to investigation at any time to ascertain whether they continue to meet the requirements for access. Thus, should an authorized investigative agency receive information at any time which may suggest such person may no longer meet the security requirements for access, an investigation may be undertaken.
Subsection (C) requires that the regulations address the matter of access to Top Secret information by persons other than the officials lists in section 801(A) above, or government employees eligible for access to such information as provided in section 801(B). The subsection provides that the President or other officials designated by the President for this purpose, may authorize access to such information by such persons only where such access is essential to protect or further the national security interests of the United States.
Subsection (D) requires that the President designate a single office within the Executive branch to monitor the implementation and operation of this title within the Executive branch, and provide an annual report to the President and appropriate congressional committees describing the operation of this title and recommending any needed improvements.
The bill requires that a copy of the implementing regulations required by this section be provided to the two intelligence committees 30 days prior to their effective date.
Section 803 provides authority for the President, or officials designated by the President for this purpose, to waive the provisions of this title and the regulations implementing this title for individual cases involving U.S. citizens or persons admitted to the United States for permanent residence, when essential to protect or further the national security interests of the United States, provided all such waives are made a matter of record, reported to the oversight office established pursuant to section 802, and are available for review by the intelligence committees.
The Congress recognizes there will be extraordinary circumstances when the president (or other senior officials) could be justified in waiving the investigative requirements or the consent requirements for particular persons as a condition of their receiving access to particularly sensitive classified information. The Congress believes, however, that such waiver authority ought to be limited to specific individuals who are either citizens of the United States or persons who are admitted to the United States for permanent residence. Such waiver authority is not granted to permit the exemption of entire classes of persons, or the employees of a particular department or agency, or to provide access for particular purposes (e.g., diplomatic
exchanges). Should the President wish to exempt classes of persons or entire departments or agencies from the requirements of this title, or provide for access by foreign nationals under limited circumstances, such exemptions should be made in the regulations issued pursuant to section 802, which are reported to the intelligence committees, rather than made subject to individual waives pursuant to section 803.
Section 804 contains the definitions of terms used in this title.
Section (a) defines the term `national security' as referring to the national defense and foreign relations of the United States.
Subsection (b) defines the term `information classified in the interest of national security' or `classified information' as meaning any information originated by or on behalf of the United States Government, the unauthorized disclosure of which would cause damage to the national security, and which has been marked and is controlled pursuant to Executive Order 12356, dated April 2, 1982, or successor orders, or the Atomic Energy Act of 1954.
Subsection (c) defines the term `Top Secret information' as information classified in the interest of national security, the unauthorized disclosure of which would cause exceptionally grave damage to the national security.
Subsection (d) defines the term `employee' for purposes of this title as including any persons who receives a salary or compensation of any kind from the United States Government, is a contractor or unpaid consultant of the United States Government, or otherwise acts for or on behalf of the United States Government, but does not include the President or Vice President, Members of Congress, Justices of the Supreme Court or judges of federal courts established pursuant to Article III of the Constitution.
Subsection (e) defines the term `authorized investigative agency' means an agency authorized by law or regulation to conduct investigations of persons who are proposed for access to Top Secret information to ascertain whether such persons satisfy the criteria for obtaining and retaining a security clearance. Such agencies would include the Federal Bureau of Investigation, the Defense Investigative Service, and other departments and agencies who are authorized to conduct such investigations.
Section 805 provides that this title shall take effect 180 days from its enactment. This period is necessary in order to allow time for the President to issue the implementing regulations required by section 802 prior to the effective date of this title.
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Section 3 of the bill adds a new title IX to the National Security Act of 1947 (50 U.S.C. 401 et seq.) to provide special requirements for the protection of cryptographic information. Persons with access to such information necessarily have the capability of inflicting grave damage upon the national security by enabling unauthorized persons to read or understand an unlimited number of U.S. communications at all levels of classification. In view of the peculiar sensitivity of such information, the Congress believes that special security measures should be imposed on persons who have access to this information.
It is the intent of the Congress, however, that only those Executive branch employees or contractors who have extensive involvement with, or in-depth knowledge of, classified cryptographic information need to be covered by the proposed title. This would include persons who develop U.S. codes or ciphers, persons who build or install devices or equipment which contain such codes or ciphers, and persons who are employed in locations where large volumes of classified information are processed by such devices or equipment, such as communications centers. It is not intended that persons who have access to cryptographic devices or equipment designed for personal use or office use should be covered by this title.
Section 901 establishes minimum uniform security requirements for Executive branch employees who are granted access to classified cryptographic information or routine, recurring access to any space in which classified cryptographic key is produced or processed, or is assigned responsibilities as a custodian of classified cryptographic key. The President may provide latitude in the regulations implementing this title for departments and agencies to impose additional, more stringent security measures upon such persons where circumstances may warrant.
Two basic requirements are imposed upon persons covered by the title. Subsection (a)(1)(A) requires that they meet the security requirements established by section 802 of the Act, as persons with access to
particularly sensitive information. Thus, persons covered by this title would also be subject to initial background investigations, reinvestigations not less than every five years, and unscheduled investigations as appropriate, to ensure they continue to meet the standards for access to classified cryptographic information, regardless of the level of security clearance such persons may otherwise have. They would also be required to provide their consent to the authorized governmental investigative authorities having access to the categories of records set forth in section 802.
Subsection (a)(1)(B) requires that persons covered by this title also be subject to periodic polygraph examinations conducted by appropriate governmental authorities, limited in scope to questions of a counterintelligence nature, during the period of their access to classified cryptographic information. This provision does not require such polygraph examinations for all such persons, but it does make such persons, regardless of the department or agency where they may be employed, subject to such examinations on an unscheduled basis while such access is maintained. In accordance with the implementing regulations required by section 902, it is anticipated that departments and agencies with employees or contractors covered by this title would establish or acquire a sufficient capability to conduct such examinations to maintain a credible deterrent to persons with access to such information.
The Congress also reemphasizes that this section provides for minimum standards. It is not the intent of the provision to restrict the use of the polygraph at the Central Intelligence Agency and National Security Agency, where polygraph examinations are routinely required of all employees and are not limited to questions of a counterintelligence nature.
Subsection 901(a)(2) provides that any refusal to submit to a counterintelligence-scope polygraph examination shall constitute grounds to remove such person from access to classified cryptographic information. It is not intended, however, that such person be subjected to any additional personnel or administrative action, including any adverse action on his or her security clearance, as a result of such refusal.
Moreover, subsection 901(a)(2) goes on to provide that no person shall be removed from access to classified cryptographic information or spaces based solely upon the interpretation of the machine results of a polygraph examination, which measure physiological responses, unless the head of the department or agency concerned determines, after further investigation, that the risk to the national security under the circumstances is so potentially grave that access cannot safely be permitted.
The Congress recognizes that a polygraph examination in essence measures certain physiological responses produced by answers to questions posed to the subject. Such responses might reflect deception on the part of the subject, but they might also reflect other, wholly innocent stimuli, both mental and physical. Indeed, while expert opinion varies in terms of how often the interpretation of polygraph results can be relied upon to show lying or deception, the Congress is aware of no expert who contends that interpretation of polygraph results provides an infallible indication of lying or deception. Accordingly, the Congress believes that an interpretation of polygraph results should not be the sole basis for denial of access to classified cryptographic information or spaces. It intends that where the results of such examinations do indicate lying or deception to key counterintelligence questions, that these discrepancies be resolved, where possible, through interviews with the subject and such further investigation as may be warranted. If such further investigation does not provide an independent basis for removal from access, such access should be granted or maintained unless the head of the department or agency concerned determines, in view of all the circumstances involved and the potentially grave risk to the national security, that access should not be permitted.
Subsection 901(b) sets forth the definitions of the terms used in this section.
Subsection (b)(1) defines the term `classified cryptographic information' as any information classified pursuant to law or Executive order which concerns the details of (A) the nature, preparation, or use of any code, cipher, or cryptographic system of the United States; or (B) the design, construction, use, maintenance, or repair of any cryptographic equipment. The proviso to this definition specifically excludes information concerning the use of cryptographic systems or equipment required for personal or office use.
This term is thus intended to cover classified information which reveals or contains detailed information concerning U.S. codes and cryptographic equipment, to include information concerning the nature and development of such codes or
equipment, and the design, construction, use, maintenance or repair of such equipment. (`Cryptographic equipment' is defined in subsection (b)(4) as any device, apparatus, or appliance used by the United States for authenticating communications, or disguising or concealing communications or their meaning.) The definition of `classified cryptographic information' is not intended, however, to cover persons who use cryptographic equipment that has been developed for personal or office use, such as a secure telephone, where such person is not also exposed to detailed information concerning the design, construction, use, maintenance or repair of such equipment. The term is intended to cover individuals, however, who require access to detailed information concerning the use of encoding equipment for other than personal or office use. For example, persons employed at government communications centers which process large volumes of classified information would be persons who fall within this definition.
Subsection b(2) defines the term `custodian of classified crytographic key' as meaning positions that require access to classified cryptologic key beyond that required to use or operate cryptographic equipment for personal or office use, future editions of such key, or such key used for multiple cryptographic devices. The term `classified cryptographic key', as defined in subsection (b)(3), refers to the information, which may take several forms, needed to set up and periodically change the operations of cryptographic equipment or devices to enable them to communicate in a secure manner.
Similar to the definition of `classified cryptographic information,' it is not the intent of the Congress to cover by this definition persons who are custodians of, or otherwise have access to, `classified cryptographic key' for personal or office use. Thus, persons who have access to such key in order to operate a secure telephone located in a single office are not covered by this definition. On the other hand, it is intended that persons who have access to such key in order to operate multiple cryptographic devices or who operate cryptographic devices which are used to process large volumes of classified information originating in multiple locations, such as government communications centers, would be covered by this definition.
Subsection (b)(5) defines the term `employee' to mean any person who receives a salary or compensation of any kind from a department or agency of the Executive branch, or is a contractor or unpaid consultant of such department or agency.
Subsection (b)(6) makes clear that the term `head of a department or agency' refers to the highest official who exercises supervisory control of the employee concerned, and does not include any intermediate supervisory officials who may otherwise qualify as heads of agencies within departments. For example, the Secretary of Defense would constitute the `head of the department' for all employees of the Department of Defense, and not the secretary of a military department or the director of a Defense agency.
Subsection (b)(7) defines the phrase `questions of a counterintelligence nature' as meaning questions specified to the subject of a polygraph examination in advance limited solely to ascertain whether such person is engaged in, or planning, espionage against the United States or knows persons who are so engaged. It is not intended that this definition encompass any question relating to the life-style of the subject, such as his or her sexual orientation, prior or present use of drugs or alcohol, etc. The sole thrust of such questions must be to ascertain whether the subject is acting on behalf of a foreign government, is involved in planning such activities, or knows others who are so engaged.
Section 902 of the bill requires the President to issue regulations to implement this title within 180 days of its enactment, and to provide copies of such regulations to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
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Section 4 of the bill would amend section 1104 of the Right to Financial Privacy Act of 1978 by adding a new subsection (d) to this section. The purpose of the amendment is to permit a person who is being considered for access to Top Secret information, as that term is defined in section 2 of the bill, to provide his or her consent to authorized investigative agencies of the U.S. Government obtaining access to his or her financial records, as defined by the Right to Financial Privacy Act, as a condition of receiving and maintaining access to such information.
This provision is required because subsection 1104(a) limits the period a person may provide consent to a Government authority having access to his or her financial records to ninety days.
This section is also necessary to supplement and provide legal effect to subsection 803 [as added by section 2 of the bill] which requires that all persons who are granted access to Top Secret information provide their consent for authorized investigative agencies to be able to obtain access to their financial records pursuant to the Right to Financial Privacy Act of 1978.
The new subsection (d)(1) provides that notwithstanding the provisions of subsection 1104(a) (which limits the period a person may consent to access by government authority to his or her financial records to 90 days), a `customer', as defined in section 1101(5) of the Right to Financial Privacy Act of 1978, who is the subject of a personnel security investigation conducted by an authorized investigative agency of the U.S. Government as a condition of being granted access or maintaining access to Top Secret information, as defined by section 803(b) of the National Security Act of 1947, may authorize nonrevocable disclosure of all financial records maintained by financial institutions for the period of the customer's access to such information and for up to five years after such access to such information has been terminated, by such investigative agency, for an authorized security purpose.
Subsection (d)(2) provides that the consent given under subsection (1) must be contained in a signed and dated statement which identifies the financial records which are authorized to be disclosed. Such statement may also authorize the disclosure of financial records of accounts opened during the period covered by the consent agreement which are not identifiable at the time the account is opened. It is anticipated that such accounts would be covered by a general statement, identifying by category the types of accounts for which access is authorized, e.g. bank accounts, credit card accounts, etc. At the time of periodic reinvestigations of the subject, the investigating agency authorized to conduct the investigation concerned may request the subject to identify any accounts which had been opened since the date the consent agreement was signed as part of the investigative process.
In addition, subsection (d)(2) requires the investigating agency concerned to provide a copy of the consent agreement to any financial institution from which disclosure is sought, together with the certification required pursuant to section 1103((b) of the Right to Financial Privacy Act of 1978, that the Government authority concerned has complied with the applicable provisions of the Act. In the circumstances contemplated, such certification would encompass the following elements: (1) that the customer of the financial institution is the subject of a background investigation required by law for access to Top Secret information pursuant to this title; (2) that the Government authority concerned is the authorized investigating agency responsible for such investigation; (3) that the request is being made during the period in which the customer has authorized access pursuant to the consent agreement provided the financial institution; and (4) that, if the accounts were not specifically identified by the consent agreement, that the financial records being sought are, in fact, records covered by such consent agreement.
Subsection (d)(3) makes clear that the right of the customer, established pursuant to subsection 1104(c) of this section, pertains to any disclosures made pursuant to subsection (d). This means that the right of the customer to obtain a copy of the record required to be made by the financial institution of any disclosure to a Government authority, (unless the Government authority has obtained a court order pursuant to section 1109 of Act), is preserved in the circumstances contemplated by subsection (d).
Subsection (d)(4) requires an annual report to the two intelligence committees by the office established pursuant to section 802(D) of the National Security Act of 1947 [as added by section 2 of the bill] to monitor the implementation of these policies, which fully informs the committees concerning all requests for financial records made pursuant to this section. It is contemplated that such reports shall, at a minimum, identify the investigative agencies making such requests, provide the number of requests each such agency has made during the reporting period, and describe by appropriate category the uses made of such information.
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Section 5 amends chapter 37 of title 18, United States Code, to add a new section, creating a new criminal offense for the possession of espionage devices where the intent to use such devices to violate the espionage statutes can be shown.
It is the intent of Congress to permit the Government to prosecute the mere possession of espionage devices where intent to commit espionage can be
shown, without having to prove that information relating to the national defense had, in fact, been transmitted to a foreign government, and without having to prove a conspiracy to commit espionage involving a second person and an overt act in furtherance of the conspiracy by either of the two parties, as required by existing law.
Subsection (a) adds a new section 799a at the end of chapter 37 of title 18, United States Code, which provides that any person who knowingly maintains possession of any electronic, mechanical, or other device or equipment, the design and capability of which renders it primarily useful for the purpose of surreptitiously collecting or communicating information, with the intent to utilize such device or equipment to undertake actions which would violate sections 793, 794, 794a [as added by section 6, below] or 798 of title 18, or section 783(b) of title 50, United States Code, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.
Section 6 also amends chapter 37 of title 18, United States Code, to create a new criminal offense for any person who knowingly sells or transfers for any valuable consideration to a person whom he knows or has reason to believe to be an agent or representative of a foreign government, any classified document or material that such person knows to be marked or designated as `Top Secret,' or which such person knows to have had such marking or designation removed. Subsection (b) also provides that in any prosecution under this section, whether or not the document or material has been properly marked or designated pursuant to applicable law or Executive order is not an element of the offense. This subsection specifically provides, however, that it shall be a defense to any prosecution under this section that the information or document in question had been officially released to the public by an authorized representative of the United States Government prior to the sale or transfer in question.
Section 7 amends title 93 of title 18, United States Code, relating to the responsibilities of public officers and employees, to provide that any officer or employee of the United States, or person acting for or on behalf of the United States, who becomes possessed of `Top Secret' documents or materials, who knowingly removes such documents or materials without authority and retains them at an unauthorized location, shall be fined not more than $1,000, or imprisoned for not more than one year, or both.
Section 8 amends chapter 211 of title 18 of the United States Code by adding a new section 3239 to establish jurisdiction in certain U.S. federal courts to try cases involving violations of the espionage laws where the alleged misconduct takes place outside the United States.
Specifically, the U.S. District Court for the District of Columbia and the U.S. District Court for the Eastern District of Virginia are granted jurisdiction over any offense involving a violation of the U.S. statutes enumerated in the section which were begun or committed upon the high seas or elsewhere out of the jurisdiction of any particular state or district.
Section 9 amends section 3681 of title 18, United States Code, to provide for expansion of the forfeiture provision to certain espionage offenses that are not enumerated in the existing law. These include violations of 18 U.S.C. 793 (gathering defense information with the intent to damage the United States); 18 U.S.C. 798 (disclosure of communications intelligence); 50 U.S.C. 783(b) (communication of classified information by a government employee to a foreign government); and the new criminal offenses which are created by this Act (18 U.S.C. 799a possession of espionage devices, added by section 5, and 18 U.S.C. 794a the sale or transfer of `Top Secret' documents added by section 6).
The amendment to section 3681 also covers crimes of espionage that may be prosecuted under the Uniform Code of Military Justice, (Chapter 47 of Title 10, United States Code) or convictions in foreign courts which, if they occurred in the United States, would constitute offenses under the provisions of the United States Code enumerated above.
Section 10 amends 5 U.S.C. 8312 to provide that an individual may be denied an annuity or retired pay by the United States, to which he or she may otherwise have been entitled, if he or she is convicted in a
foreign country of offenses involving espionage against the United States for which such annuity or retired pay could have been denied had such offenses occurred within the United States.
A new subsection (d) is added to section 8312 which provides that for purposes of section 8312 an offense is established if the Attorney General certifies to the agency employing or formerly employing the person concerned that--
(1) the individual has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances that would violate the provisions of law enumerated in subsections (b) and (c) of section 8312, had such conduct occurred within the United States, and that such conviction was not being appealed or that final action had been taken on such appeal within the foreign country concerned;
(2) that such conviction was obtained in accordance with procedures that afforded the defendant due process rights comparable to those provided by the U.S. Constitution, and such conviction was based upon evidence that would have been admissible in U.S. courts; and
(3) that such conviction occurred after the effective date of subsection (d).
The proviso to subsection (d) also provides that any such certification made by the Attorney General is subject to review by the United States Court of Claims based upon the application of the person concerned, or his or her attorney, alleging that the conditions certified by the Attorney General have not been satisfied in this particular case. If the court determines, after appropriate review, that the conditions established by the statute have not been met, it shall order the annuity or retirement benefit restored and shall order any payments which may have been withheld or denied to be paid.
Section 11 would amend the Consumer Credit Protection Act by inserting `(a)' before the existing paragraph of section 608 (15 U.S.C. 1681f.) and by adding four new subsections.
Subsection (b) would provide that, notwithstanding the provisions of section 604 of the Act of this Title, a consumer reporting agency shall furnish a consumer report to the FBI when presented with a request for a consumer report made pursuant to this subsection by the FBI provided that the FBI Director, or the Director's designee, certifies in writing to the consumer reporting agency that such records are sought in connection with an authorized foreign counterintelligence investigation and that there are specific and articulable facts giving reason to believe the person to whom the requested consumer report relates is an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
It is the intent of Congress that, if the Director delegates his function under subsections (b) and (c) to a designee, he will delegate it no further down the FBI chain of command than the level of Deputy Assistant Director. The Congress also recognizes that the Director may delegate to the head or acting head of an FBI field office the authority to make the required certification in exigent circumstances where time is of the essence, provided that the Director is notified as soon as possible for the circumstances involved.
The Congress also accepts the FBI's assurance that it will not under any circumstances rely upon the substantive financial information from consumer reports obtained under this section without verifying such information with the institution concerned. As reflected in other provisions of the Consumer Credit Protection Act, Congress has long been concerned that credit reports may be inaccurate. The FBI has advised that to rely solely upon such information as the basis for further investigative inquiry without verifying its accuracy would constitute poor investigative practice. The Congress recognizes it could lead to unjustified intrusions upon the privacy of innocent Americans. The best evidence would be contained in the records of the financial institutions located through the use of consumer credit reports. The Congress expects that in its internal regulations implementing this provision the FBI will permit use of unverified credit bureau ratings or financial information only to locate actual financial transaction records on record with financial or commercial entities.
Subsection (c) would provide that, notwithstanding the provisions of section 604 of the Act, a consumer reporting agency shall furnish identifying information respecting any consumer, limited to name, address, former addresses, places of employment, or former places of employment, to a representative of the FBI when presented with a written request signed by the
FBI Director, or the Director's designee, stating that the information is necessary to the conduct of an authorized foreign counterintelligence investigation.'
Under current law (50 U.S.C. 1681f.) the FBI may obtain such identifying information upon request, but there is no requirement that a consumer reporting agency comply with the FBI's request and no limitation on disclosure of the request to the consumer. It is the intent of the Congress that any FBI request for information under this provision must meet the standards of applicable Attorney General's guidelines for obtaining identifying information. In addition, there should be reason to believe that the person has been in communication with a foreign power or an agent of a foreign power. The Congress understands and expects that the FBI would continue to request identifying information under the provision of existing law, but in such case the consumer reporting agency would not be compelled to comply with the FBI's request and would be permitted to disclose the request to the consumer. The Congress intends that the FBI should continue to compensate consumer credit reporting companies only for providing identifying information voluntarily as under existing law.
Subsection (d) would provide that no consumer reporting agency, or officer, employee, or agent of such institution, shall disclose to any person that the FBI has sought or obtained a consumer report or identifying information respecting any consumer under this section. Congress has enacted similar provisions to protect the security of foreign counterintelligence investigations in the Right to Financial Privacy Act and the Electronic Communications Privacy Act. The purpose is to prevent premature disclosure of a pending investigation and to enable the FBI, rather than the consumer reporting agency, to make whatever disclosures of the FBI's inquiries may be appropriate under existing Attorney General Guidelines. The language is not intended to preclude appropriate disclosure related to requests by relevant Congressional oversight committees.
Finally, subsection (e) would require that on an annual basis the FBI Director shall fully inform the House and Senate Intelligence Committees concerning the FBI's exercise of its authority under these provisions. As part of this report, the Congress intends that the FBI should inform the House or Senate Intelligence Committee of the facts and circumstances that are the basis for obtaining information concerning any domestic or group substantially composed of United States persons. It is not intended, however, that the report identify particular individuals whose consumer credit records were obtained pursuant to this section.
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Section 12 amends Chapter 204 of title 18, United States Code, to provide the Attorney General with discretionary authority to pay rewards for information leading to the arrest or conviction of espionage against the United States or leading to the prevention or frustration of such acts.
Subsection (a) renumbers the existing provisions of section 3071, which provides discretionary authority for the Attorney General to pay rewards for information leading to the arrest or conviction of persons for acts of terrorism against the United States, as subsection (a) of subsection 3071, and adds a new subsection (b) to this section.
The new subsection (b) provides that, with respect to acts of espionage involving or directed at United States information classified in the interests of national security, the Attorney General may reward any individual who furnishes information in either of three categories: (1) information leading to the arrest or conviction in any country of an individual or individuals for commission of an act of espionage against the United States; (2) information leading to the arrest or conviction of individuals in similar circumstances for conspiring to commit an act of espionage against the United States; and (3) information leading to the prevention or frustration of an act of espionage against the United States.
Subsection (b) of section 12 changes the maximum amount the Attorney General can pay as a reward for information provided under section 3071 from $500,000 to $1 million.
Subsection (c) amends the list of definitions in 18 U.S.C. 3077 to add definitions for two terms used in the amendments to section 3071. The term `act of espionage' is defined as an activity that is a violation of section 794, 794a [as added by section 6 of this Act], 798, or 799a [as added by section 5 of this Act] of title 18, or section 783 of title 50, United States Code. The term `United States information classified in the interest of national security' is defined as information owned or possessed by the United States Government concerning the national defense and foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure and that has been so designated.
Sec. 13. To provide a court order process for physical searches undertaken for foreign intelligence purposes.
Sec. 13 amends the Foreign Intelligence Surveillance Act of 1978 to add a new Title IV establishing statutory procedures for the approval and conduct of physical searches within the United States for foreign intelligence purposes. To the extent that the provisions of this title are the same as the provisions for electronic surveillance under FISA, the following section-by-section analysis restates in full the applicable FISA legislative history.
Section 401(a) authorizes submission of applications to the Foreign Intelligence Surveillance Court for an order approving a physical search in the United States, for the purpose of collecting foreign intelligence information, of the property, information or material of a foreign power as defined in section 101(a) (1), (2), and (3) of the Foreign Intelligence Surveillance Act (FISA), or the premises, property, information or material of an agent of a foreign power or a foreign power as defined in section 101(a) (4), (5), and (6) of FISA. Applications may be submitted only if the President has, by prior written authorization, empowered the Attorney General to approve the submission. This section does not require the President to authorize each specific application. He may authorize the Attorney General generally to seek applications under this title or upon such terms and conditions as the President wishes, so long as the terms and conditions are consistent with this title.
The reference to Presidential authorization does not mean that the President has independent, or `inherent,' authority to authorize physical search in the United States for the purpose of collecting foreign intelligence in any way contrary to the provisions of this title. As stated in section 406(a), the procedures of this bill are the exclusive means by which physical search, as defined in section 409(b), may be conducted in the United States for the purpose of collecting foreign intelligence.
Subsection (a) also authorizes a judge to whom an application is made to grant an order for physical search in the United States, for the purpose of collecting foreign intelligence information, of the specified premises, property, information or material, `notwithstanding any other law.' The `notwithstanding any other law' language is intended to make clear that, notwithstanding the Vienna Convention on Diplomatic Relations, the activities authorized by this bill may be conducted. The `notwithstanding any other law' wording also deals with the contention that 28 U.S.C. 1251, which grants the Supreme Court exclusive original jurisdiction over all actions against ambassadors of foreign states, would prevent a lower court from approving a physical search directed at a foreign ambassador.
It is noted, however, that the applications and orders authorized by this subsection do not apply to physical search of the premises of an `official' foreign power, as defined in section 101(a) (1), (2), or (3) of FISA. The Congress has determined that the balance between security and civil liberties does not require prior judicial involvement in physical search of premises of this category of targets. The physical search of premises of an `official' foreign power without a court order may be conducted only pursuant to regulations issued by the Attorney General, as provided in section 406(b). The physical search of premises of an `official' foreign power without a court order may include the search of property, information, or material that is located on those premises and is owned, used, or possessed by, or in transit from, that foreign power. However, the Congress does not intend that searches of premises of `official' foreign powers without court orders include searches of property `in transit to' such a foreign power that may be located on those premises, but has not yet come into full possession or use by that foreign power. For example, sealed packages delivered to an `official' foreign power from a person other than an officer or employee of that foreign power may not be searched without a court order, even if they are located on the premises of an `official' foreign power. In that circumstance, the court order is required because of the privacy interest of the person who is transmitting the package which has not yet been opened by the intended recipient.
Section 401(b) provides that the Foreign Intelligence Surveillance Court, as defined in section 409(e), shall have jurisdiction to hear applications for and grant orders approving physical search for the purpose of obtaining foreign intelligence anywhere within the United States under the procedures set forth in this Act. No judge shall hear the same application which has been denied previously by another judge. Subsection (b) also provides that, if any judge denies an application for an order authorizing a physical search under this Act, such judge shall provide immediately for the record a written statement of each reason for his decision. On motion of the United States, the record
shall be transmitted, under seal, to the Court of Review, as defined in section 409(f). As under FISA, this provision is intended to make clear that if the Government desires to pursue an application after a denial, it must seek review in the special court of review; it cannot apply to another judge of the Foreign Intelligence Surveillance Court. Obviously, where one judge has asked for additional information before approving an application, and that judge is unavailable when the Government comes forward with such additional information, the Government may seek approval from another judge. It would, however, have to inform the second judge about the first application.
The Congress intends that, as under FISA, the judges of the Foreign Intelligence Surveillance Court should have an opportunity to examine, when appropriate, the applications, orders, and statements of reasons for decisions in other cases.
Subsection (c) provides that the Court of Review shall have jurisdiction to review the denial of any application made under this title. If such court determines that the application was properly denied, the Court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
Subsection (d) provides that judicial proceedings under this title shall be concluded as expeditiously as possible. The record of proceedings under this title, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice of the United States in consultation with the Attorney General and the Director of Central Intelligence. The Congress intends that such measures shall be the same as those established pursuant to FISA and thus shall include such document, physical, personnel, or communications security measures as are necessary to protect information concerning proceedings under this title from unauthorized disclosure. As under FISA, such measures may also include the use of secure premises provided by the executive branch to hear an application and the employment of executive branch personnel to provide clerical and administrative assistance.
Application for an order
Section 402(a) specifies what information must be included in the application for a court order. Applications must be made by a Federal officer in writing under oath or affirmation. If the officer making the application is unable to verify the accuracy of the information or representations upon which the application is based, the application should include affidavits by other officers who are able to provide such personal verification. Thus, for example, if the applicant was an attorney in the Department of Justice who had not personally gathered the information contained in the application, it would be necessary that the application also contain an affidavit by an officer personally attesting to the status and reliability of any informants or other covert sources of information. By this means the source of all information contained in the application and its accuracy will have been sworn to by a named official of the U.S. Government and a chain of responsibility established for judicial review.
Each application must be approved by the Attorney General, who may grant such approval if he finds that the appropriate procedures have been followed. The Attorney General's written approval must indicate his belief that the facts and circumstances relied upon for the application would justify a judicial finding of probable cause to believe that the target is a foreign power or an agent of a foreign power, that the premises or property to be searched contains foreign intelligence information, and that the premises or property to be searched is owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power as well as his belief that all other statutory criteria have been met.
Paragraph (1) of subsection (a) requires that the application include the identity, if know, or a description of the target of the search. If the Government knows the identity of the target of the search, it is required to identify him. The target may be an individual or an entity.
The word `target' is nowhere defined in this title, although it is a key term because the standards to be applied differ depending on whom or what is targeted. The Congress intends that the target of a physical search is the individual or entity about whom or from whom information is sought. In most cases this would be the individual or entity who owns, uses, or possesses the premises or property to be searched. In some cases, however, it would be the
individual or entity to or from whom property is in transit. See section 402(a)(4)(C).
Generally, under this title, targeting foreign powers may be accomplished on a less strict basis than targeting of agents of foreign powers. An individual, of course, cannot be a foreign power, only an agent of a foreign power. Therefore, if the search is to be directed at an individual about whom information is sought, that individual is the target and must be shown to be an `agent of a foreign power.' Where two or three individuals are associated with one another, it might be argued that they are an `association' or an `entity,' which, if the proper showing is made, could be considered a `foreign power.' (This would especially be true if the individuals engaged in `international terrorism' and thereby might be a group engaged in international terrorism which is a defined `foreign power.') This does not mean, however, that property of each of these individuals can then be individually searched merely upon a showing that together they are a `foreign power.' Rather, to search the property of each individual would require a showing that each was an `agent of a foreign power,' with its higher standard.
Often, however, associations or entities will act in a `corporate' capacity, as distinguished from the acts of an individual in the association or entity. For example, corporations own or lease property, enter into contracts, and otherwise act as an entity distinct from the individuals therein. The fact that an individual officer or employee, acting in his official capacity, may sign the deed, lease, or contract on behalf of the corporation does not vitiate the fact that it is the corporation rather than the individual who is acting. Thus, it is possible to target a `foreign power' in such circumstances. In addition, it will be possible under this title to target a `foreign power' in certain rare cases, where the facility targeted, while owned, used, or possessed by the entity, is in fact dedicated to the use of one particular member of the entity, for instance, where each officer is assigned his own office. However, in order to justify the target as a `foreign power' rather than as an `agent of a foreign power,' the information sought must be concerning the entity, not the individual.
The judge in considering the application, wherever the Government claims the target is a `foreign power,' and especially where U.S. persons are officers or employees of the `foreign power,' must scrutinize the description of the information sought, and the property or premises to be searched, see section 402(a)(3), infra, to determine whether the target is really the `foreign power' rather than an `agent of a foreign power.' The judge must also closely scrutinize the minimization procedures to assure that where the target is a `foreign power,' the individual U.S. persons who may be members or employees of the power are properly protected.
Paragraph (2) requires that the application contain evidence of the authority to make this application. This would consist of the Presidential authorization to the Attorney General and the Attorney General's approval of the particular application.
Paragraph (3) requires that the application identify the Federal officer making the application; that is, the name of the person who actually presents the application to the judge. In addition, paragraph (3) requires that the application contain a detailed description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered. The description should be as specific as possible and should detail what type of premises or property are likely to be searched and what types of information, material, or property are likely to be seized, reproduced, or altered. Such specifics are necessary if the judge is meaningfully to assess the sufficiency and appropriateness of the minimization procedures.
Paragraph (4) requires a statement of the facts and circumstances justifying the applicant's belief that the target of the physical search is a foreign power or an agent of a foreign power, that the premises or property to be searched contains foreign intelligence information, and that the premises or property to be searched is owned, used, processed by, or is transit to or from a foreign power or an agent of a foreign power.
Paragraph (5) requires a statement of the proposed minimization procedures.
The statement of procedures required under this paragraph should be full and complete and normally subject to close judicial review. It is the intention of the Congress that minimization procedures be as uniform as possible for similar physical searches. The application of uniform procedures to identical searches will result in a more consistent implementation of the procedures, will result in improved capability to assure compliance with the procedures, and ultimately means a higher level of protection for the rights of U.S. persons.
Paragraph (6) requires the application to contain a statement of
the manner in which the physical search is to be conducted. The statement should be as detailed and specific as possible in light of the need for the judge in his order to specify the manner in which the physical search is to be conducted. For instance, where physical entry will be required, the application should so state indicating generally the circumstances involved.
Paragraph (7) requires a statement of the facts concerning all previous applications that have been made to any judge under this title involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.
Paragraph (8) requires a statement of the facts concerning any search that did not require a warrant due to exigent circumstances, as described in section 406(b), which involves any of the persons, premises, or property specified in the application. Pursuant to section 406(b), the court will already have received a full report from the Attorney General on any such search, including a description of the exigent circumstances.
Paragraph (9) requires that the application contain a statement that the purpose of the physical search is to obtain foreign intelligence information. This statement should be sufficiently detailed so as to state clearly what sorts of information the Government seeks. A simple designation of which subdefinition of `foreign intelligence information' is involved will not suffice. There must be an explanation of the determination approved by the Attorney General that the information sought is in fact foreign intelligence information. The requirement that this judgment be explained is to ensure that cases are considered carefully and to avoid statements that consist largely of boilerplate language. The Congress does not intend that the explanations be vague generalizations or standardized assertions. The applicant must similarly explain that the purpose of the physical search is to obtain the described foreign intelligence information. This requirement is designed to prevent physical searches of one target when the true purpose of the search is to gather information about another individual for other than foreign intelligence purposes. It is also designed to make explicit that the sole purpose of such physical search is to secure `foreign intelligence information,' as defined, and not to obtain some other type of information. The applicant must similarly explain why the information cannot be obtained through less intrusive techniques, see section 403(a)(1)(C). This requirement is particularly important in those cases when U.S. citizens or resident aliens are the target of the physical search.
Section 402(b) provides that the judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 403. Such additional proffers would, of course, be made part of the record and would be subject to the security safeguards applied to the application and order.
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Section 403(a) specifies the findings the judge must make before he grants an order approving physical search under this title. While the issuance of an order is mandatory if the judge finds that all the requirements of this section are met, the judge has the discretionary power to modify the order sought, such as with regard to the period of authorization or the minimization procedures to be followed. Modifications in the minimization procedures should take into account the impact of inconsistent procedures on successful implementation.
Paragraph (1) of this subsection requires the judge to find that the President has authorized the Attorney General to approve such applications.
Paragraph (2) requires the judge to find that the application has been made by a Federal officer and that the Attorney General has approved the application being submitted.
Paragraph (3) requires a finding that there is `probable cause' to believe that the target of the physical search is a foreign power or an agent of a foreign power, that the premises or property to be searched are owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power, and that physical search of such premises or property can reasonably be expected to yield foreign intelligence information which cannot reasonably be obtained by normal investigative means.
In determining whether `probable cause' exist under this section, the court should keep in mind that this standard is not the ordinary `probable cause' that a crime is being committed, applicable to searches and seizures for law enforcement purposes. Where a U.S. person is believed to be an `agent of a foreign power,' for example, there must be `probable cause' to believe that he is engaged in certain activities, but the criminality of these activities need not always be demonstrated to the same degree. The key words--`involve or may
involve'--indicate that the ordinary criminal probable cause standard does not apply with respect to the showing of criminality. For example, the activity identified by the Government may not yet involve the criminality, but if a reasonable person would believe that such activity is likely to lead to illegal activities, this would suffice. It is not intended that the Government show probable cause as to each and every element of the crime likely to be committed.
The determination by the court as to probable cause whether the person is engaging in certain activities or, for example, whether an entity is directed and controlled by a foreign government or governments, should include consideration of the same aspects of the reliability of the Government's information as is made in the ordinary criminal context--for example, the reliability of any informant, the circumstances of the informant's knowledge, the age of the information relied upon. On the other hand, all of the same strictures with respect to these matters which have developed in the criminal context may not be appropriate in the foreign intelligence context. That is, in the criminal context certain `rules' have developed or may develop for judging reliability of information. See, for example, SPINELLI v. UNITED STATES, 393 U.S. 410 (1969). It is not the intention of Congress that these `rules' necessarily be applied to consideration of probable cause under this title. Rather it is the intent of Congress that in judging the reliability of the information presented by the Government, the court look to the totality of the information and consider its reliability on a case-by-case basis.
In addition, in order to find `probable cause' to believe the subject of the surveillance is an `agent of a foreign power, as defined in section 101(b) of FISA, the judge must, of course, find that each and every element of that status exists. For example, if a U.S. citizen or resident alien is alleged to be acting on behalf of a foreign entity, the judge must first find probable cause to believe that the entity is a `foreign power' as defined in section 101(a) of FISA. There must also be probable cause to believe the person is acting for or on behalf of that foreign power and probable cause to believe that the efforts undertaken by the person on behalf of the foreign power constitute sabotage, international terrorism, or clandestine intelligence activities.
Similar findings of probable cause are required for each element necessary to establish that a U.S. citizen is conspiring with or aiding and abetting someone engaged in sabotage, international terrorism, or clandestine intelligence activities.
The proviso in paragraph (3)(A) states that no U.S. person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States. This provision is intended to reinforce the intent of the Congress that lawful political activities should never be the sole basis for a finding of probable cause to believe that a U.S. person is a foreign power or an agent of a foreign power. For example, the advocacy of violence falling short of incitement is protected by the first amendment, under the Supreme Court's decision in BRANDENBURG v. OHIO, 395 U.S. 444 (1969). Therefore, the pure advocacy of the commission of terrorist acts would not, in and of itself, be sufficient to establish probable cause that an individual or group is preparing for the commission of such acts. However, one cannot cloak himself in first amendment immunity by advocacy where he is engaged in clandestine intelligence activities, terrorism, or sabotage.
Paragraph (3) (B) and (C) require the judge to find probable cause to believe that the premises or property to be searched are owned, used, possessed, by or in transit to or from a foreign power or an agent of a foreign power and that physical search of such premises or property can reasonably be expected to yield foreign intelligence information which cannot reasonably be obtained by normal investigative means.
Paragraph (4) requires the judge to find that the procedures described in the application to minimize the acquisition and retention, and prohibit dissemination, of certain information relating to U.S. persons fit the definition of minimization procedures in this title. The Congress contemplates that the court would give these procedures most careful consideration. If it is not of the opinion that they will be effective, the procedures should be modified.
Paragraph (5) requires that the judge find that the application contains the statements required by section 402. If the statements do not conform to the requirements of section 402, they can and must be rejected by the court.
Subsection (b) specifies what the order approving the physical search must contain. Paragraph (1) requires that it must specify the Federal officer or officers authorized to conduct the physical search and the identity, if known, or a description of the target of the physical search. It must also specify the premises or property to be searched and the information, material or property to be seized, altered, or reproduced, as well as the type of
foreign intelligence information sought to be acquired. The order must include a statement of the manner in which the search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search. These requirements are designed in light of the Fourth Amendment's requirements that warrants describe with particularity and specificity the person, place, and objects to be searched and seized.
Paragraph (2) of subsection (b) details what the court directs in the order. The order shall direct that minimization procedures will be followed. The order may also direct that a landlord, custodian, or other specified person furnish information, facilities or assistance necessary to accomplish the search successfully and in secrecy and with a minimum of interference to the services provided by such person to the target of the search. If this is done, the court shall direct that the person rendering the assistance maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the search or the aid furnished that such person wishes to retain. The order presented to the person rendering assistance need not be the entire order approved by the judge under this title. Rather only that portion of the order described in section 403(b)(2) (B)-(C), signed by the judge need be given to the specified person. This portion of the order should specify the person directed to give assistance, the nature of the assistance required, and the period of time during which such assistance is authorized.
Paragraph (2)(C) requires that the order direct that the physical search be undertaken within 30 days of the date of the order, or, if the physical search is of the property, information or material of a foreign power as defined in section 101(a) (1), (2), or (3) of FISA, that such search be undertaken within one year of the order. The comparable periods in FISA are 90 days for most targets and one year for `official' foreign powers.
Paragraph (2)(D) requires that the order direct that the federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search. This report may be made to a judge other than the judge who granted the order approving the search.
Subsection 403(c) provides that at any time after a physical search has been carried out, the judge to whom the return has been made may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated. This provision is not intended to require that the judge assess such compliance, nor is it intended to limit such assessments to any particular intervals. However, it is useful to spell out the judge's authority explicitly so that there will be no doubt when a judge may review the manner in which information about U.S. persons is being handled.
Subsection 403(d) provides that applications made and orders granted under this title shall be retained for a period of at least ten years from the date of the application. This is identical to the FISA requirements, and the purpose is to assure accountability.
Subsection 403 (e) and (f) establish a special notice procedure for those rare cases where a physical search of the residence of a United States person is conducted under this title. This provision reflects the court opinions which describe the search of the home as being at the `core' of the fourth amendment. In PAYTON v. NEW YORK, 445 U.S. 573 (1980), the Supreme Court declared:
`The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: `The right of the people to be secure in their . . . houses . . . shall not be violated.' That language unequivocally establishes the proposition that `[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' Id. at 589-90 (quoting SILVERMAN v. UNITED STATES, 365 U.S. 505, 511 (1961)).
Special protection for homes is also consistent with other legislation which imposes criminal penalties for searches of private dwellings. (See 18 U.S.C. 2236).
Subsection (e) provides that not more than 60 days after a physical search of the residence of a United States person authorized by this title, or such a search in the `exigent circumstances' described in section 406(b), has been conducted, the Attorney General shall provide the United States person with an inventory which shall include (1) the existence or not of a court order authorizing the physical search and the date of the order; (2) the date of the physical search and an identification of the premises or property
searched; and
(3) a list of any information, material, or property seized, altered, or reproduced. Subsection (f) provides that on an ex parte showing of good cause by the Attorney General to a judge of the Foreign Intelligence Surveillance Court the provision of the inventory required by subsection (e) may be postponed for a period not to exceed 90 days. At the end of such period the provision of the inventory may, upon a similar showing, be postponed indefinitely. The denial of a request for such postponement may be reviewed as provided in section 401.
The Congress anticipates that searches of the residence of U.S. persons under this title will be infrequent. The `good cause' which may be grounds for postponement of notice is intended to include national security and practical considerations. Notice may harm national security by, for example, exposing an important ongoing espionage or international terrorism investigation. An illustration of practical grounds for postponement of notice would be a situation where the target was a permanent resident alien who returned after the search to his country of origin. It should be noted than the procedures for use of information under section 404, below, also require notice to any target against whom information acquired by a physical search under this title is to be used in legal proceedings.
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Section 404 places additional constraints on Government use of information obtained from physical search under this title and establishes detailed procedures under which information may be received in evidence, suppressed, or discovered. With respect to the use of information in legal proceedings, notice should be given to the aggrieved person as soon as possible, so as to allow for the disposition of any motions concerning evidence derived from physical search. In addition, the Attorney General should at all times be able to assess whether and to what extent the use of information made available by the Government to a State or local authority will be used.
Subsection (a) requires that information concerning U.S. persons acquired from physical search pursuant to this title may be used and disclosed by Federal officers and employees, without the consent of the U.S. person, only in accordance with the minimization procedures defined in section 409(c). This provision ensures that the use of such information is carefully restricted to actual foreign intelligence or law enforcement purposes. No information (whether or not it concerns a U.S. person) acquired from a physical search pursuant to this title may be used or disclosed except for lawful purposes. This is to ensure that information concerning foreign visitors and other non-U.S. persons, the use of which is not restricted to foreign intelligence or law enforcement purposes, is not used for illegal purposes.
There is no specific restriction in this title regarding to whom Federal officers may disclose information concerning U.S. persons acquired pursuant to this title although specific minimization procedures might require specific restrictions in particular cases. First, the Congress believes that dissemination should be permitted to State and local law enforcement officials. If Federal agents conducting a physical search authorized under this title were to acquire information relating to a violation of State criminal law, such as homicide, the agents could hardly be expected to conceal such information from the appropriate local officials. There will be an appropriate weighing of criminal law enforcement needs against possible harm to national security from the disclosure. Second, the Congress can conceive of situations where disclosure should be made outside of Government channels. For example, Federal agents may learn of a terrorist plot to kidnap a business executive. Certainly in such cases they should be permitted to disclose such information to the executive and his company in order to provide for the executive's security.
Finally, the Congress believes that foreign intelligence information relating to crimes, espionage activities, or the acts and intentions of foreign powers may, in some circumstances, be appropriately disseminated to cooperating intelligence services of other nations. So long as all the procedures of this title are followed by the Federal officers, including minimization and the limitations on dissemination, this cooperative relationship should not be terminated by a blanket prohibition on dissemination to foreign intelligence services. The Congress wishes to stress, however, that any such dissemination be reviewed carefully to ensure that there is a sufficient reason why disclosure of information to foreign intelligence services is in the interests of the United States.
Disclosure, in compelling circumstances, to local officials for the purpose of enforcing the criminal law, to the targets of clandestine intelligence activity or planned violence, and to foreign intelligence services under the circumstances described above are generally the only exceptions to the rule that dissemination should be limited to Federal officials.
Subsection (b) requires that any disclosure of information for law enforcement purposes must be accompanied by a statement that such evidence, or any information derived therefrom, may be used in a criminal proceeding only with the advance authorization of the Attorney General. This provision is designed to eliminate circumstances in which a local prosecutor has no knowledge that evidence was obtained through a foreign intelligence search. In granting approval of the use of evidence the Attorney General would alert the prosecutor to the search and he, in turn, could alert the court in accordance with subsection (c) or (d).
Subsections (c) through (i) set forth the procedures under which information acquired by means of physical search under this title may be received in evidence or otherwise used or disclosed in any trial, hearing or other Federal or State proceeding. Although the primary purpose of physical search conducted pursuant to this title is not likely to be the gathering of criminal evidence, it is contemplated that such evidence will be acquired and these subsections establish the procedural mechanisms by which such information may be used in formal proceedings. Notice should be given to the aggrieved person as soon as possible, so as to allow for the disposition of any motions concerning evidence derived from physical search under this title.
At the outset the Congress recognizes that nothing in these subsections abrogates the rights afforded a criminal defendant under BRADY v. MARYLAND, 373 U.S. 83 (1963), and the Jencks Act, 18 United States Code, Section 3500 ET SEQ. These legal principles inhere in any such proceedings and are wholly consistent with the procedures detailed here. Furthermore, nothing contained in this section is intended to alter the traditional principle that the Government cannot use material at trial against a criminal defendant, and then withhold from him such material at trial. UNITED STATES v. ANDOLSCHEK, 142 F. 2d 503 (2nd. Cir. 1944).
Subsection (c) states that whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from a physical search of the premises or property of that aggrieved person pursuant to the authority of this title, the United States shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information. This provision applies to information acquired from a physical search under this title or any fruits thereof.
Subsection (d) places the same requirements upon the States and their political subdivisions, and also requires notice to the Attorney General. The Attorney General should at all times be able to assess whether and to what extent the use of information made available by the Government to a State or local authority may be used.
Subsection (e) provides a separate statutory vehicle by which an aggrieved person against whom evidence derived or obtained from a physical search under this title is to be or has been introduced or otherwise used or disclosed in any trial, hearing or proceeding may move to suppress the information acquired by physical search or evidence derived therefrom. The grounds for such motion would be that (1) the information was unlawfully acquired, or (2) the search was not made in conformity with the order of authorization or approval. A motion under this subsection must be made before the trial, hearing, or proceeding unless there was no opportunity to make such a motion or the movant was not aware of the grounds for the motion. It should be noted that the term `aggrieved person,' as defined in section 409(d) does not include those who are mentioned in documents obtained or copied in a physical search.
Subsection (f) states in detail the procedure the court shall follow when it receives a notification under subsection (c) or (d) or a suppression motion is fined under subsection (e). This procedure applies, for example, whenever an individual makes a motion pursuant to subsection (d) or any other statute or rule of the United States to discover, obtain or suppress evidence or information obtained or derived from physical search conducted pursuant to this title (for example, Rule 12 of the Federal Rules of Criminal Procedure). Although a number of different procedures might be used to attack the legality of the search, it is this procedure `notwithstanding any other law' that must be used to resolve the question. The procedures set out in subsection (f) apply whatever the underlying rule or statute referred to in the motion. This is necessary to prevent the carefully drawn procedures in subsection (f) from being bypassed by the inventive litigant using a new statute, rule or judicial construction.
The special procedures in subsection (f) cannot be invoked until they are triggered by a Government affidavit that disclosure of an adversary hearing would harm the national security of the United States. If no such assertion is made, it is envisioned that mandatory disclosure of the application and order, and discretionary disclosure of other surveillance materials, would be available to the defendant. When the procedure is so triggered, however, the Government must make available to the court a copy of the court order and accompanying application upon which the physical search was based.
The court must then conduct an ex parte, in camera inspection of these materials as well as any other documents relating to the search which the Government may be ordered to provide, to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. The subsection further provides that in making such a determination, the court may order disclosed to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the physical search only where such disclosure is necessary to make an accurate determination of the legality of the physical search.
The procedures set forth in subsection (f) are intended to strike a reasonable balance between an entirely in camera proceeding which might adversely affect the defendant's ability to defend himself, and mandatory disclosure, which might occasionally result in the revelation of sensitive foreign intelligence information. The decision whether it is necessary to order disclosure to a person is for the Court to make after reviewing the underlying documentation and determining its volume, scope, and complexity. Note the discussion of these matters in UNITED STATES v. BUTENKO, SUPRA. There, the Court of Appeals, faced with the difficult problem of determining what standard to follow in balancing national security interests with the right to a fair trial, stated with respect to electronic surveillance:
`The distinguished district court judge reviewed in camera the records of the wiretaps at issue here before holding the surveillance to be legal. . . . Since the question confronting the district court as to the second set of interceptions was the legality of the taps, not the existence of tainted evidence, it was within his discretion to grant or to deny Ivanov's request for disclosure and a hearing. The exercise of this discretion is to be guided by an evaluation of the complexity of the factors to be considered by the court and by the likelihood that adversary presentation would substantially promote a more accurate decision.' (494 F. 2d at 607.)
Thus, in some cases, the Court will likely be able to determine the legality of the search without any disclosure to the defendant. In other cases, however, the question may be more complex because of, for example, indications of possible misrepresentation of fact, vague identification of the persons to be targeted or search records which include a significant amount of non-foreign intelligence information, calling into question compliance with the minimization standards contained in the order. In such cases, it is contemplated that the court will likely decide to order disclosure to the defendant, in whole or in part, since such disclosure `is necessary to make an accurate determination of the legality of the physical search.'
Cases may arise, of course, where the Court believes that disclosure is necessary to make an accurate determination of legality, but the Government argues that to do so, even given the Court's broad discretionary power to excise certain sensitive portions, would damage the national security. In such situations the Government must choose--either disclose the material or forgo the use of the search-based evidence. Indeed, if the Government objects to the disclosure, thus preventing a proper adjudication of legality, the prosecution would probably have to be dismissed.
Subsection (g) states that if the United States district court pursuant to subsection (f) determines that the physical search was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved
person. If the court determines that the physical search was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
The general phrase `in accordance with the requirements of law' has been chosen to deal with the problem of what procedures are to be followed in those cases where the trial court determines that the surveillance was unlawfully authorized or conducted. The evidence obtained would not, of course, be admissible during the trial. But beyond this, in the case of an illegal surveillance, the Government is constitutionally mandated to surrender to the defendant all the records of the surveillance in its possession in order for the defendant to make an intelligent motion on the question of taint. The Supreme Court in ALDERMAN v. UNITED STATES, 394 U.S. 165 (1968) held that, once a defendant claiming evidence against him was the fruit of unconstitutional electronic surveillance has established the illegality of such surveillance (and his `standing' to object), he must be given confidential materials in the Government's files to assist him in establishing the existence of `taint.' The Court rejected the Government's contention that the trial court could be permitted to screen the files in camera and give the defendant only material which was `arguably relevant' to his claim, saying such screening would be sufficiently subject to error to interfere with the effectiveness of adversary litigation of the question of `taint.' The Supreme Court refused to reconsider the ALDERMAN rule and, in fact reasserted its validity in its KEITH decision. (UNITED STATES v. ALDERMAN, supra, at 393.)
When the court determines that the surveillance was lawfully authorized and conducted, it would, of course, deny any motion to suppress. In addition, once a judicial determination is made that the surveillance was lawful, a motion for discovery of evidence must be denied unless disclosure or discovery is required by due process.
Subsection (h) states that orders granting motions or requests under subsection (g), decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court. It is intended that all orders regarding legality and disclosure shall be final and binding only where the rulings are against the Government.
Subsection (i) states that the provisions of this section regarding the use or disclosure of information obtained or derived from a search shall apply to information obtained or derived from a search conducted without a court order to obtain foreign intelligence information which is not a physical search as defined in this title solely because the existence of exigent circumstances would not require a warrant for law enforcement purposes. As discussed with respect to section 406(b), below, a search may be conducted without a court order to obtain foreign intelligence information in exigent circumstances. This subsection makes clear that the use or disclosure of information obtained or derived from such a search must be governed by the provisions of this section.
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Section 405(a) provides that on a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence concerning all physical searches conducted pursuant to this title, and all other searches, except those reported under section 108 of FISA relating to electronic surveillance, conducted in the United States for foreign intelligence purposes. The reference to `all other searches' is intended to include those searches which would require a judicial warrant for law enforcement purposes absent exigent circumstances. Also included are any other searches which may not fall within the definitions of `physical search' and `electronic surveillance' under this Act, but which may be conducted in the United States to collect foreign intelligence information.
In addition, on an annual basis the Attorney General shall provide to those committees a report setting forth with respect to the preceding calendar year (a) the total number of applications made for orders approving physical searches under this title; and (b) the total number of such orders either granted, modified, or denied. The comparable provision of FISA requires a public report to the Administrative Office of the United States Courts. The reports concerning physical searches are to be submitted to the committees, and may be classified, because the Justice Department has advised that the numbers may be so few as to reveal sensitive information concerning U.S. foreign counterintelligence activities.
Subsection (b) of section 405 provides that whenever a search is conducted without a court order to obtain foreign intelligence information which is not a physical search as defined in this title solely because the existence of exigent circumstances would not require a warrant for law enforcement purposes, a full report of such search, including a description of the exigent circumstances, shall be maintained by the Attorney General. Each such report shall be transmitted to the Foreign Intelligence Surveillance Court promptly after the search is conducted.
The term `exigent circumstances' means circumstances in which it is impossible, for practical reasons, to apply for a court order authorizing the search before the opportunity to conduct the search would be lost due to the delay. As discussed below with respect to section 406(b), such searches may be conducted only pursuant to regulations issued by the Attorney General and reported to the intelligence committees. The exigent circumstances that may justify a search without a court order must relate solely to the time required to apply for a court order. Whenever the circumstances allow time to apply for a court order, such an order must be obtained. If a search is approved without a court order due to exigent circumstances and then is postponed, the process of application for a court order must being at once and every reasonable effort must be made to apply for an order. If the opportunity for the search reappears before the application is submitted, the search may be conducted only if that opportunity is so limited in duration and so unlikely to recur that further delay to obtain the court order would preclude the search.
An example is the search of a package entrusted to a courier in an espionage network. The courier may receive the package without warning and be instructed to deliver it with a tight deadline. If the courier is a U.S. intelligence source, the package may be accessible to Federal officers for a brief time, and Federal officers may have no advance knowledge that the courier will receive the package. If all the conditions that would justify a court order are met, the search may be approved. If the courier is unable to make the package available at the expected time and the search is postponed with the possibility of a later opportunity, the process of application for an order must begin as soon as possible so that every reasonable effort is made to obtain a court order prior to the next opportunity for a search. If more than one search is contemplated, the application process should also begin as soon as possible and every reasonable effort must be made to obtain a court order prior to the next search or searches.
Section 406(a) provides that the procedures contained in this title shall be the exclusive means by which a physical search, as defined in this title, may be conducted in the United States for foreign intelligence purposes, and an order issued under this title authorizing a physical search shall constitute a search warrant authorized by law for purposes of any law.
The intent of the `exclusive means' provision is the same as the comparable FISA provision, as reflected in the statement of managers accompanying the Conference Report on FISA. The establishment by this title of exclusive means by which the President may conduct physical searches within the United States to collect foreign intelligence information does not foreclose a different decision by the Supreme Court. The intent is to apply the standard set forth in Justice Jackson's concurring opinion in the Steel Seizure Case: `When a President takes measures incompatible with the express or implied will of Congress, his power is at the lowest ebb, for then he can rely only upon his own Constitutional power minus any Constitutional power of Congress over the matter.' YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, 343 U.S. 579, 673 (1952).
Subsection (a) of section 406 also provides that an order issued under this title authorizing a physical search shall constitute a search warrant authorized by law for purposes of any other law. For example, a federal statute makes it a crime for a federal law enforcement officer to search a private dwelling without a judicial warrant, except incident to an arrest or with the consent of the occupant. 18 United States Code, Section 2236. While a Justice Department opinion has concluded that this statute does not bar `properly authorized warrantless physical searches for national security purposes,' the opinion states that `the issue is not free from doubt.' See S. Rept. 98-660, p. 18. This provision resolves that issue by making clear that a court order under this title meets the statutory warrant requirement for dwelling searches. Similar federal statutes prohibit the opening of mail in United States postal channels without a judicial warrant. See 18 United States Code, Sections 1701-1702, 1703(b) and 39 United States Code, Section 3623(d). This title is not intended to modify or supersede those federal statutes which authorize FBI access without a warrant to financial or telephone records or similar information in
foreign counterintelligence investigations.
Subsection (b) of section 406 provides that searches conducted in the United States to collect foreign intelligence information, other than physical searches as defined in this title and electronic surveillance as defined in FISA, and physical searches conducted in the United States without a court order to collect foreign intelligence information, may be conducted only pursuant to regulations issued by the Attorney General. This provision is intended to apply primarily to two types of activity--first, searches conducted in exigent circumstances without a warrant which, absent exigent circumstances, would require a warrant for law enforcement purposes; and second, physical searches of the premises of `official' foreign powers which do not come within the jurisdiction of the Court under section 401(a) of this title. This provision also would apply to any other searches which may not fall within the definitions of `physical search' and `electronic surveillance' in this Act, but which may be conducted in the United States to collect foreign intelligence information.
The regulations issued by the Attorney General for these activities, and any changes to those regulations, are to be provided to the intelligence committees at least 14 days prior to taking effect. Any regulations issued by the Attorney General regarding such activities which were in effect as of January 1, 1994, shall be deemed to be regulations required by this subsection.
Section 407(a)(1) makes it a criminal offense for officers or employees of the United States to intentionally engage in physical search within the United States under color of law for the purpose of obtaining foreign intelligence information except as authorized by statute. Section 407(a)(2) makes it a criminal offense for officers or employees of the United States to intentionally disclose or use information obtained under color of law by physical search, knowing or having reason to know that the information was obtained through physical search not authorized by statute and conducted in the United States for the purpose of obtaining foreign intelligence information. Section 407(b) provides an affirmative defense to a law enforcement or investigative officer who engages in such an activity for law enforcement purposes in the course of this official duties, and the physical search was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction. The penalty is a fine of not more than $10,000 or imprisonment for not more than five years, or both. Section 407(d) makes clear that there is Federal jurisdiction over an offense under this section of the person committing the offense was an officer or employee of the United States when the offense was committed.
One of the important purposes of this title is to afford security to intelligence personnel so that if they act in accordance with the statute, they will be insulated from liability; it is not to afford them immunity when they intentionally violate the law. The word `intentionally' was carefully chosen. It is intended to reflect the most strict standard for criminal culpability. The Government would have to prove beyond a reasonable doubt both that the conduct engaged in was in fact a violation, and that it was engaged in with a conscious objective or desire to commit a violation.
Section 408 imposes civil liability for violations of section 407, and authorizes an `aggrieved person,' as defined in section 409(d), to recover actual damages, punitive damages, and reasonable attorney's fees and other investigative and litigation costs reasonably incurred. Since the civil cause of action only arises in connection with a violation of the criminal provision, the statutory defense does not have to be restated. Although included in the definition of `aggrieved person,' foreign powers and non-U.S. persons who act in the United States as officers or employees of foreign powers or as members of international terrorist groups would be prohibited from bringing actions under section 407. Other foreign visitors, including those covered by section 101(b)(1)(B) of the definition of `agent of a foreign power,' would have a cause of action under this provision. Those barred from the civil remedy will be primarily those persons who are themselves immune from criminal or civil liability because of their diplomatic status.
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Section 409(a) provides that the terms `foreign power,' `agent of a foreign power,' `international terrorism,' `sabotage,' `foreign intelligence information,' `Attorney General,' `United States person,' `United States,' `person,' and `State' shall have the same meaning as in Section 101 of the Foreign Intelligence Surveillance Act of 1978 (FISA). The legislative history of these FISA definitions is applied to physical search below. Because many of the substantive aspects of this title derive from the FISA
definitions of particular terms, this subsection is critical to understanding this title as a whole.
The definition of `foreign power' in section 101(a) of FISA reads as follows:
(a) `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.
`Foreign power' is defined in section 101(a) of FISA in six separate ways. These definitions are crucial because physical searches may only be targeted against foreign powers or agents of foreign powers.
It is expected that certain of the defined `foreign powers' will be found in the United States and targeted directly; others are not likely to be found in the United States but are included in the definition more to enable certain persons who are their agents, and who may be in the United States, to be targeted as `agents of a foreign power,' as defined. As will appear below, the six categories may well overlap, and an entity may well be found to a `foreign power' under more than one category. This is not improper. These categories are intended to be all-encompassing, and clear lines cannot always be drawn between different descriptions of the types of entities which justify targeting physical search. The six categories are:
(1) `A foreign government or any component thereof, whether or not recognized by the United States.' This category would include foreign embassies and consulates and similar `official' foreign government establishments that are located in the United States.
(2) `A faction of a foreign nation or nations, not substantially composed of United States persons.' This category is intended to include factions of a foreign nation or nations which are in a contest for power over, or control of the territory of, a foreign nation or nations. An example of such a faction might be the PLO, the Eritrean Liberation Front, or similar organizations. Specifically excluded from this category is any faction of a foreign nation or nations which is substantially composed of permanent resident aliens or citizens of the United States. The word `substantially' means a significant proportion, but it may be less than a majority.
(3) `An entity, which is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.' This category is specifically delineated in order to treat entities of this type in the same manner as the government they serve by including them within those `official' foreign powers whose premises may be subject to a physical search without a court order. Only entities `openly acknowledged' by a foreign government to be both directed and controlled by it are subject to this provision.
Those entities which are clearly arms of a government or governments meet this definition. This category would include, for example, a legitimate commercial establishment which is directed and controlled by a foreign government. Such a legitimate commercial establishment might be a foreign government's airline, even though it was incorporated in the United States. Also included in this definition would be international organizations of states such as the Organization of Petroleum Exporting Countries or the Organization for African Unity. Where such organizations are involved, it is not necessary to show that one or two countries control the organization. Rather, it is sufficient to show that the organization is made up of governmental entities which collectively direct and control the organization.
It is recognized that this type of foreign power includes corporations or organizations present in the United States which may have many United States citizens as employees or even officers. Nevertheless, this fact does not detract from the fact that the organization acts as an arm of a foreign government or governments and as such may engage in activities directly affecting our national interests or security. In such circumstances a physical
search targeted against such an entity should focus on the premises, property, information, or material of the organization, not of its employees or members who are United States citizens. A search of the premises, property, information, or material of an individual employee could be justified only by obtaining a separate court order for the individual target.
A law firm, public relations firm, or other legitimate concern that merely represents a foreign government or its interests does not mean it is an entity in this category. The question whether a group, commercial enterprise, or organization comes within the scope of this definition is one for the court to answer on the basis of a probable cause standard.
(4) `A group engaged in international terrorism or activities in preparation therefor.' The term `international terrorism' is a defined term, see below, and includes within it a criminal standard. A group under this category must be engaged in `international terrorism,' as defined, or be in preparation therefor. Such groups would include Black September, the Red Army Faction, the Red Brigades, and the Japanese Red Army. It would not include groups engaged in terrorism of a purely domestic nature. The citizenship of the terrorist group or its members while relevant to the determination of whether it is a `foreign power,' is not determinative. It is not required that the group be `foreign-based,' because in the world of international terrorism a group often does not have a particular `base,' or if it does, it may be impossible to determine. Perhaps more importantly, where its base is located is often irrelevant to the foreign intelligence interest or concern with respect to the group. There have been domestically based international terrorist groups, which have engaged in acts overseas which have resulted in deaths. The group must be engaged in criminal terrorist activities, which are international in scope or manner of execution. See the discussion of `international terrorism,' below.
Generally, such groups will not be targeted in the United States as `foreign powers,' if only because such a group is not likely to maintain an official presence here. Rather, members of the group may be in the United States either singly or in bunches, and they will be targeted as `agents of a foreign power,' to wit, agents of a group engaged in international terrorism.
(5) `A foreign-based political organization, not substantially composed of United States persons.' This category would include foreign political parties. In some countries, both totalitarian and parliamentary, ruling parties effectively control the government. Thus, information concerning the activities and intentions of these parties can directly relate to the activities and intentions of their government. Moreover, the intentions and positions of minority parties can also be of great importance to this nation, because, although minorities, they may affect the course of their government or they may come to power, in which case it would be important to have prior knowledge of their positions and intentions. Finally, this category is not limited to political parties; their are other foreign political organizations which exercise or have potential political power in a foreign country or internationally. Because it can be important to this nation to have intelligence concerning any organization which exercises or has potential political power in a foreign country or internationally targeting such organizations can be proper. On the other hand, where a political organization is domestically based or is substantially composed of U.S. persons and does not otherwise fall within the other definitions of `foreign power' or `agent of a foreign power,' the gathering of political information concerning that organization by physical search--even though desired or even important to this Government--is improper and raises grave First Amendment questions. This definition clearly does not include organizations comprised of Americans of Greek, Irish, Jewish, Chinese, or other extractions who have joined together out of interest or concern for the country of their ethnic origin.
(6) An entity, which is directed and controlled by a foreign government or `governments.' This category is similar to category (3) above, except that the entity need not be openly acknowledged to be directed and controlled by a foreign government or governments. Such an entity must be acting as an arm of the government with respect to activities that are of foreign intelligence or counterintelligence significance. An example would be an entity which appears to be a legitimate commercial establishment, but which is being utilized by a foreign government as a cover for espionage activities. The concerns set forth with respect to openly controlled entities apply to this category as well. There is the added danger that targeting of a covertly controlled entity, substantially composed of U.S. persons, would potentially offer a means for evading the requirements for targeting of individual U.S. persons. Therefore, it is important to emphasize that the judge must find probable cause the entity is both `directed' and `controlled' by a foreign government or
governments. Merely following the directions of a foreign government which wants a group to lobby or speak out publicly on behalf of the government's interests, is not in itself sufficient to place the group in this category. While direction and control are separate elements to be established, the same evidence can demonstrate both.
Again, a law firm, public relations firm, etc. that merely represents a foreign government or its interests does not mean it is an entity in this category. The entity which sees its own interests as parallel to those of a foreign government and acts accordingly is not by this directed and controlled by that government. It is only when the foreign government or its agents influence the entity to the extent that the entity yields its independent judgments that an entity become directed and controlled by a foreign government. In particular cases, obviously, it may be difficult to discern the actual direction and control, and, of course, circumstantial evidence may suffice in establishing probable cause, but no entity which purports to be a U.S. person should be considered directed and controlled by a foreign government solely on the basis that its activities are consistent with the desires of a foreign government.
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The term `agent of a foreign power' is defined in section 101(b) of FISA as follows:
(b) `Agent of a foreign power' means--
(1) any person other than a United States person, who--
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4);
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(2) any person who--
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; or
(D) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(1) Non-Resident Aliens in the United States: There are two separate categories of the definition of `agent of a foreign power' in section 101(b) of FISA. The first cannot be applied to United States citizens and permanent resident aliens; it is, therefore, limited to aliens in the United States who are tourists, visiting businessmen, exchange visitors, foreign seamen, diplomatic and consular personnel, illegal aliens, etc.
Most of the persons in this category are protected by the fourth amendment when they are in the United States. By requiring a judicial warrant on the basis of statutory criteria, such persons' fourth amendment protections would be increased from their status under current operating procedures of the executive branch. On the other hand, the protections afforded such persons are not as great as those afforded United States persons. The standard for targeting nonresident aliens does not have a criminal standard; and there is no requirement to minimize the acquisition, retention, and dissemination of information with respect to such persons. The Congress is convinced that the protections afforded nonresident aliens in this title fully satisfy the Constitution.
The basic test under the fourth amendment is that a search be reasonable. Reasonableness itself is determined by weighing the Government's legitimate need for the information sought against the invasion of privacy the search entails.
The findings of probable cause required to be made by the judge as to nonresident aliens directly relate to the likelihood of obtaining foreign intelligence from physical search of their premises, property, information, or material. Such information must by definition directly and substantially relate
to important foreign policy or national security concerns, and the Attorney General must find that the purpose of the search is to obtain such information.
As to the `equal protection' question, the Congress notes that the Supreme Court has held that where there are compelling considerations of national security, alienage distinctions are constitutional. See e.g., HAMPTON v. MOW SUN WONG, 426 U.S. 88, 116 (1976). Those distinctions must, however, be reasonable in light of the demonstrated need and not be overly broad. With respect to those non-resident aliens who fit within the two categories of agents of foreign powers in section 101(b)(1) of FISA, that need was demonstrated during the congressional consideration of FISA. It should be noted that, in light of the particular requirements for physical search as compared to electronic surveillance, there are fewer procedural differences between U.S. persons and non-resident aliens under this title than under FISA.
Subsection (b)(1)(A) includes in its definition of `agent of a foreign power" those persons, who are not U.S. persons, who act in the United States as officers or employees of a foreign power, or as members of a foreign power as defined in subsection (a)(4), i.e., groups engaged in international terrorist activities or activities in preparation therefor.
Non-resident aliens who act in the United States as officers or employees of a foreign power are likely sources of foreign intelligence or counterintelligence information. The definition excludes persons who serve as officers or employers of a foreign power in their home country, but do not act in that capacity in the United States. The reference to employees of a foreign power is meant to include those persons who have a normal employee-employer relationship. It is not intended to encompass such foreign visitors as professors, lecturers, exchange students, performer or athletes, even if they are receiving remuneration or expenses from their home government in such capacity.
Groups engaged in international terrorism would not likely have `officers' or `employees.' A member of an international terrorist group will most likely not identify himself as such upon entering the United States, as would an officer or employee of a foreign power. In the latter instance, a copy of the person's visa application will usually suffice to show that he is acting in the United States as an officer or employee of a foreign power. However, in the case of a member of an international terrorist group, the government will most likely have to rely on more circumstantial evidence, such as concealment of one's true identity or affiliation with the group, or other facts and circumstances indicating that such person is in the United States for the purpose of furthering terrorist activities. The term `member' means an active, knowing member of the group or organization which is engaged in international terrorism or activities in preparation therefor. It does not include mere sympathizers, fellow-travelers, or persons who may have merely attended members of the group. On the other hand, if a person has received terrorist training from such a group, this would be substantial evidence that he was a member of the group.
Subsection (b)(1)(B) defines an `agent of a foreign power' as a person who is not a U.S. person and who acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities.
This provision reflects two concerns. The first is the counterintelligence interest in certain foreign visitors as to whom it could be shown with a high degree of probability that they would engage in clandestine intelligence activities, but before sufficient information can be established showing that they are so engaged. As a practical matter, less intrusive techniques may not enable the Government to obtain sufficient information about persons visiting the United States for only a limited time and who do not have a history of activities in the United States to show that they are indeed engaged in clandestine intelligence activities. A second concern, however, is that this non-criminal standard should not be used as a basis for targeting foreign visitors from any nation, but should be limited to foreign visitors acting on behalf of certain foreign powers as to which it could be shown systematically engaged in clandestine intelligence activities threatening the security of the United States.
In light of these two legitimate concerns, this provision does not require a showing that the individual foreign visitors is himself currently engaged in clandestine intelligence activities, but rather that the circumstances of his presence here indicate that he may engage in such activities which are contrary to this nation's interests. In addition, it must be shown that he is acting for
or on behalf of a foreign power which engages in clandestine intelligence activities in the United States which are contrary to the interests of the United States. It is intended that the Government show that the foreign power has demonstrated some pattern or practice of engaging in clandestine intelligence activities in the United States contrary to the interests of the United States.
The phrase, `acts for or on behalf of a foreign power,' is here intended to require the Government to show a nexus between the individual and the foreign power that suggests that the person is likely to do the bidding of a foreign power. For example, visitors from totalitarian countries present in the United States under the auspices, sponsorship, or direction of their government would satisfy this standard.
The term `interests' refers to important concerns or long-term goals of the United States, including interests embodied in law. It might be said that any country which engages in clandestine intelligence activities in the U.S. ipso facto acts contrary to this Nation's interests. This is clearly not intended here.
Once the requisite facts with regard to the foreign power are established, the question is whether the circumstances of the person's presence in the United States indicate that the person may engage in clandestine intelligence activities for that foreign power contrary to the interests of the United States. The answer to this question will vary according to what is known about the intelligence operations of the particular foreign power. Among the factors that might be taken into account are whether the foreign visitor engages in activities with respect to which there is evidence that other visitors who engage in similar activities are officers, agents, or acting on behalf of the intelligence service of that foreign power. If the Government can show from experience that a particular foreign power uses a certain class of visitors to this country for carrying out secret intelligence assignments, this too would indicate that a visitor in this class may engage in clandestine intelligence activities.
The standard `may engage in such activities' means that a physical search can be conducted to anticipate clandestine intelligence activities by such persons, rather than waiting until after they have taken place. The additional standards for aiding or abetting, and conspiracy, require probable cause that the foreign visitor is knowingly assisting persons who are already engaged in clandestine intelligence activities. The `knowingly' requirements are the same as in the aiding or abetting and conspiracy standards for U.S. persons, discussed regarding subsection (b)(2)(A) and (B) below.
This provision does not treat nationals of certain countries differently from others solely on the basis of their nationality. Instead, targeting of the nationals of other countries depends on the activities of the governments of those countries and whether the individual is acting on behalf of the foreign government. There must also be probable cause to believe that the physical search of the premises or property of the individual can reasonably be expected to yield foreign intelligence information which cannot reasonably be obtained by normal investigative means.
The term `clandestine intelligence activities' is intended to have the same meaning as in subsection (b)(2)(A) and (B), discussed below.
(2) `Any Person'--The second part of the FISA definition of `agent of a foreign power' requires that whenever a United States person is to be the target of a physical search there must be a showing that his activities at least may involve a violation of law. As a matter of principle, no United States citizen in the United States should be targeted for a physical search by his government absent some showing that he at least may violate the laws of our society. A citizen in the United States should be able to know that his government cannot invade his privacy with the most intrusive techniques if he conducts himself lawfully.
On the other hand, the physical searches under this title are not primarily for the purpose of gathering evidence of a crime. They are to obtain foreign intelligence information, which when it concerns United States persons must be necessary to important national concerns. Combating espionage and covert actions of other nations in this country is an extremely important national concern. Prosecution is one way, but only one way and not always the best way, to combat such activities. `Doubling' an agent or feeding him false or useless information are other ways. Monitoring him to discover other spies, their tradecraft and equipment can be vitally useful. Prosecution, while disabling one known agent, may only mean that the foreign power replaces him with one whom it may take years to find or who may never be found.
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Paragraph (2)(A) allows physical search of property of any person who is knowingly engaged in clandestine intelligence gathering activities, which activities involve or may involve a violation of the criminal statutes of the United States.
The first aspect of this definition is that the person is engaging in such acts `knowingly.' This does not mean that he must know, or that the Government must show that he knows, that he may be violating a Federal criminal law. It does mean that he must known that he is engaging in clandestine intelligence gathering activities and that he knows that he is doing so on behalf of a foreign power. It is often difficult to prove what a person knows and what he does not know. The Congress intends that circumstantial evidence should be sufficient to show the requisite knowledge. If, for example, a person is transmitting classified defense secrets to the military attache of a foreign embassy, this should be sufficient to show that he knows he is acting for or on behalf of a foreign power. Similarly, if a person has received training in or equipment for espionage, for example a microdot camera or disguised radio device, this too should be sufficient to show that he knows what he is doing. While this, and the other provisions under paragraph (2), are not intended to reach one who in fact is ignorant as to the nature of what he is doing, the knowing requirement is not intended to force the Government to disprove his ignorance when a person engaged in such activities would reasonably suspect that he was acting for or on behalf of a foreign power.
Next, the person must be `engaged' in the proscribed activities. Unlike the standard for foreign visitors, the fact that he `may engage' in these activities some time in the future is not sufficient. For example, if evidence shows that a person has recently engaged in the activities, this would normally suffice to show probable cause that he is `engaged' in such activities now.
On the other hand, evidence that a person engaged in the proscribed activities six months or longer ago might well, depending on the circumstances and other evidence, be sufficient to show probable cause that he is still engaged in the activities. For instance, evidence that a U.S. person was for years a spy for a power currently hostile to the United States, but who has dropped out of sight for a few years, would probably be sufficient to show `probable cause' that he was, having now reappeared, continuing to engage in the clandestine intelligence activities.
Probably the most critical term in this provision is `clandestine intelligence gathering activities.' It is anticipated that most clandestine intelligence gathering activities will constitute a violation of the various criminal laws aimed at espionage, either directly or by failure to register, see e.g., 18 U.S. Sections 792-799, 951; 42 U.S.C. Sections 2272-2278b; and 50 U.S.C. Section 855. The term `clandestine intelligence gathering activities' is intended to have the same meaning as the word espionage in normal parlance, rather than as a legal term denoting a particular offense. The term also includes those activities directly supportive of espionage such as maintaining a `safehouse,' servicing `letter drops,' running an `accommodation address,' laundering funds, recruiting new agents, infiltrating or exfiltrating agents under cover, creating false documents for an agent's `cover,' or utilizing a radio to receive or transmit instructions or information by `burst transmission.' `Clandestine intelligence gathering activities' are intended to be activities which no reasonable person would engage in without knowing that society would not condone it. As the words indicate, the activities must be `clandestine,' that is, efforts have been taken to conceal the activities.
This does not necessarily mean that the information gathered by the agent must itself be secret or nonpublic, although that would usually be the case. It is possible that a spy may be tasked to obtain information which is technically available to the public, but which a foreign power would not like it known that it was seeking. If a spy, for instance, used false identification or a ruse to obtain the information and then delivered the information by means of a microdot hidden in a magazine left at a `dead drop,' both the means by which he gathered and the means by which he transmitted the information would be `clandestine,' even though the information itself might not be secret. It can be proper for the government to monitor such a person, even if the information he is collecting at that moment is not secret, because his activities identify him as a spy. On the one hand, having done his job successfully he may be given a new assignment to collect secret information. On the other hand, by monitoring his contacts in this enterprise, the Government can learn valuable information concerning the tactics, capabilities, and personnel of the foreign intelligence service.
Obviously, gathering classified defense information, information about intelligence sources and methods, and classified diplomatic information qualifies as clandestine intelligence gathering activities if it is
done in a clandestine manner. In addition, the Congress is aware that foreign powers also target their intelligence apparatus against American technology and trade secrets, economic developments, political information, and even personal information for purposes of blackmail or coercion. The gathering of any such information may be within the term `clandestine intelligence gathering activities.'
As noted above, `clandestine intelligence gathering activities' are intended to be conduct of the nature associated with spies and espionage in its generic sense, but the term is supposed to be flexible with respect to what is being gathered because the intelligence priorities and requirements differ between nations over time, and this title is intended to allow physical search in counterintelligence investigations of different foreign powers' intelligence activities well into the future.
It is possible, although unlikely, that certain groups of Americans might indeed come close to using espionage techniques for otherwise lawful purposes. Thus, the provisions require as a separate element of proof that the person be engaged in clandestine intelligence gathering activities `for or on behalf of a foreign power.' This means that the Government will have to show probable cause to believe that the person is not only engaged in clandestine intelligence gathering activities, but also that those activities are for or on behalf of a foreign power. Thus, if all that can be shown is that a person is stealing defense secrets and using a `dead drop' to pass them on, the Government will have to show more, that is, probable cause to believe that he is doing this for a foreign power.
Similarly, the fact that a person gathers information and transmits it for a foreign power by itself does not satisfy the standard of this definition. Americans for personal or commercial reasons may legitimately gather information for foreign powers, as indeed registered lobbyists often do, but their activity, if legitimate, does not utilize the tradecraft of espionage. (The Congress does not intend that `clandestine intelligence gathering activities' must necessarily include the use of espionage tradecraft, but its use is significant.) Thus, there seems little likelihood that a person would be engaged in clandestine intelligence gathering activities for or on behalf of a foreign power and not in fact be engaged in reprehensible conduct of substantial concern to this Nation's security.
As an added safeguard, however, the Government must also show that there is probable cause to believe that the person is engaged in activities that at least may violate the Federal criminal law. As noted above, it is expected that most persons under this definition would be likely to violate laws directed against espionage. In addition, there are other laws which might be violated, for example, 18 U.S.C. section 2514 which proscribes interstate transportation of stolen property; and 50 U.S.C. section 2021-2032, the Export Administration Act.
The words `may involve' as used in this subparagraph are not intended to encompass individuals whose activities clearly do not violate Federal law. They are intended to encompass individuals engaged in clandestine gathering activities which may, as an integral part of those activities, involve a violation of Federal law. They cover the situation where the Government cannot establish probable cause that the foreign agent's activities involve a specific criminal act, but where there are sufficient specific and articulable facts to indicate that a crime may be involved.
This `may involve' standard is necessary in order to permit the Government to investigate adequately in cases such as those where Federal agents have witnessed `meets' or `drops' between a foreign intelligence officer and a citizen who might have access to highly classified or similarly sensitive information; information is being passed, but the Federal agents have been unable to determine precisely what information is being transmitted. Such a lack of knowledge would of course disable the Government from establishing that a crime was involved or what specific crime was being committed. Nevertheless, the circumstances might be such as to indicate that the activity may involve a crime. The crime involved might be one of several violations depending, for example, upon the nature of the information being gathered.
In applying this standard, the judge is expected to take all known relevant circumstances into account--for example, who the person is, where he is employed, whether he has access to classified or other sensitive information, the nature of the clandestine meetings or other clandestine activity, the method of transmission, and whether there are any other likely innocent explanations for the behavior. It is intended, moreover, that the circumstances must not merely be suspicious, but must be of such a nature as to lead a reasonable
man to conclude that there is probable cause to believe the activity may involve a Federal criminal violation.
The term `may involve' not only requires less information regarding the crime involved, but also permits a physical search at some point prior to the time when a crime sought to be prevented, as for example, the transfer of classified documents, actually occurs. There need not be a current or imminent violation if there is probable cause that criminal acts may be committed. However, upon an assertion by the Government that an informant has claimed that someone has been instructed by a foreign power to go into `deep cover' for several years before actually commencing espionage activities, such facts would not necessarily be encompassed by the phrase `may involve.' A physical search cannot be justified unless there is probable cause to believe that the person is engaged in such activities, even though the relationship of those activities to a specific violation of law may be more uncertain or likely to occur in the future.
It should be made perfectly clear that a physical search would not be authorized under this, or any other definition of agent of a foreign power, against an American reporter merely because he gathers information for publication in a newspaper, even if the information was classified by the Government. Nor would it be authorized against a Government employee or former employee who reveals secrets to a reporter or in a book for the purpose of informing the American people. The definition would not authorize searches of the property of ethnic Americans who lawfully gather political information and perhaps even lawfully share it with the foreign government of their national origin. It obviously would not apply to lawful activities to lobby, influence, or inform Members of Congress or the administration to take certain positions with respect to foreign or domestic concerns. Nor would it apply to lawful gathering of information preparatory to such lawful activities.
In the case of an organization whose leaders are engaged in clandestine intelligence gathering activities, such activity cannot be attributed to every member of the group. There must be probable cause that a particular member is himself engaged in such activity before a search of his property may be authorized under this subparagraph.
In short, for a person to be an agent of a foreign power under this definition he must be knowingly engaged in clandestine intelligence gathering activities, like espionage, for or on behalf of a foreign power, and those activities must be such that they at least `may involve' a violation of Federal criminal law.
A particularly difficult problem may arise where a person is `turned' or `doubled;' that is, having started as an agent for a foreign power, he is persuaded instead to work for this Government. The standard under this paragraph requires that a person knowingly engage in activities for or on behalf of a foreign power. If the person is in fact working for this Government and not for the foreign power, this standard is obviously not met and his property could not be searched under this paragraph. Often, however, there may be substantial doubt whether he is acting under this Government's control or under the control of a foreign power. It may well be unclear which side is deceiving which. The Congress recognizes that the fact that a supposedly `doubled' agent indeed does carry out his assignments and instructions from this Government does not mean that he has stopped carrying out his assignments and instructions from the foreign power contrary to this Government's interest. It is the intent of Congress that, until such time as the `doubled' agent is trusted enough to seek his consent to a search, his property may be subject to an unconsented search on the basis of his acting for or on behalf of a foreign power.
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Paragraph (2)(B) defines agent of a foreign power as a person who pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States.
The term `any other clandestine intelligence activities' is intended to refer to covert actions by intelligence services of foreign powers. Not only do foreign powers engage in spying in the United States to obtain information, they also engage in activities which are intended to harm the Nation's security by affecting the course of our Government, the course of public opinion, or the activities of individuals. Such activities may include political action (recruiting, bribery or influencing of public officials to act in favor of the foreign power), disguised propaganda (including the planting of false or misleading articles or stories), and harassment, intimidation, or even
assassination of individuals who oppose the foreign power. Such activity can undermine our democratic institutions as well as directly threaten the peace and safety of our citizens.
On the other hand, there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of their first amendment rights. Because of this, a stricter standard has been created--stricter than that applicable to `clandestine intelligence gathering activities'--which must be satisfied before a person may be targeted as an agent of a foreign power under this definition.
First, the person must be shown to be acting `pursuant to the direction of an intelligence service or network of a foreign power.' No such showing is required for any of the other definitions of agent of a foreign power. Americans may well communicate with non-intelligence personnel from the government of a country about which they have an interest to gain information or engage in efforts on behalf of that country, but this is not covert action and it is not intended to be covered by this definition.
Second, the activities engaged in must presently involve or be about to involve a violation of Federal criminal law. Again, this is a higher standard than is found in the other definitions, where the activities `may' involve a violation of law. In this area where there is a close line between protected First Amendment activity and the activity giving rise to a search, it is most important that where a search does occur the activity be such that it involves or is about to involve a violation of a Federal criminal statute.
There are a number of crimes that might be involved in covert actions, for example, bribery of public officials, campaign law violations, foreign agent registration requirements, denial of civil rights, et cetera. It is important to note, however, that the fact of a criminal violation does not establish or even necessarily suggest, that a person is engaged in `any other clandestine intelligence activity.' Americans through ignorance or inadvertence may well technically violate campaign law requirements or foreign agent registration requirements, and such violations do not even justify electronic surveillance for law enforcement purposes, see 18 U.S.C. section 2516. Under this definition it is necessary to show separately from the criminal violation that the facts support a probable cause to believe that the person is, pursuant to the direction of an intelligence service or network of a foreign power, knowingly engaged in any other clandestine intelligence activities for or on behalf of such foreign power.
The intent of this provision is to enable search of the property of those hard-core agents who are writing as to what they are doing and who are intentionally carrying out the bidding of a foreign power's intelligence service to engage in covert action in the United States.
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Paragraph (2)(C) allows physical search of the property of any person, including a U.S. person, who knowingly engages in sabotage or international terrorism, or activities which are in preparation therefor, for or on behalf of a foreign power. The terms `sabotage' and `international terrorism' are defined separately and require a showing of criminal activity. Again, in no event is mere sympathy for, identity of interest with, or vocal support for the goals of a foreign group, even a foreign-based terrorist group, sufficient to justify surveillance under this subparagraph.
[The `preparation' standard does not mean preparation for a specific violent act, but for activities that involve violent acts. It may reasonably be interpreted to cover providing the personnel, training, funding or other means for the commission of acts of international terrorism. It also permits physical search at some point before the dangers sought to be prevented actually occur.]
The term `activities which are in preparation' for sabotage or international terrorism is intended to encompass activities supportive of acts of serious violence--for example, purchase or surreptitious importation into the United States of explosives, planning for assassinations or financing or training for such activities. Of course, other activities supportive of terrorist acts could in other circumstances likewise satisfy this standard. The circumstances must be such as would lead a reasonable man to conclude that there is probable cause to believe the person is knowingly engaged in activities which are in preparation for sabotage or terrorism.
The term `preparation' does not require evidence of preparation for one specific terrorist act, because the definition of `international terrorism' speaks of `activities that involve violent acts' and means a range of acts, not just a single act. Here, the term, `preparation' acquires its meaning in the context of the special definition of `international terrorism,' which could reasonably be interpreted to cover, for example, providing the personnel, training, funding, or other means for the commission of acts of terrorism,
rather than one particular bombing. The `preparation' provision permits physical search at some point before the danger sought to be prevented--for example, a kidnaping, bombing, or hijacking--actually occurs. This standard is in no way intended to dilute the requirement of knowledge, or the requisite connection with a `foreign power' as defined in FISA.
It is clearly not the intent to permit physical search solely on the basis of information that someone might commit acts of international terrorism or sabotage in the distant future. There must be a showing that the person is currently engaged in activities which are in preparation for the commission of such acts.
The `preparation' standard would allow physical search where the Government cannot establish probable cause that an individual has already knowingly engaged in sabotage or terrorism, but where there are specific and articulable facts to indicate that the individual's activities are in preparation for sabotage or international terrorism. The judge is expected to take all the known circumstances into account. The circumstances must be such as would lead a reasonable man to conclude that there is probable cause to believe the person is knowingly engaged in activities which are in preparation for sabotage or terrorism.
It should be noted that the `preparation' standard only need apply where there is insufficient evidence to show that the person is in fact a terrorist. Where the Government can show that the person is a known international terrorist, like the notorious `Carlos,' or that the person has been engaging in international terrorism for or on behalf of a group engaged in international terrorism, there is no need to show that the person is in the act of preparing for further terrorist acts. One might wonder why the Government would not immediately arrest such persons. In some cases they may not have violated U.S. law, even though they may have murdered hundreds of persons abroad. In other cases it may be more fruitful in terms of combating international terrorism to monitor the activities of such persons in the United States to identify otherwise unknown terrorists here, their international support structure, and the location of their weapons or explosives. If a person who has engaged in international terrorism visits the United States or resides in the United States, the Government would be able to conduct a search to determine his activities, whether or not there is evidence to show he is presently planning some particular violent act.
Finally, any person targeted for search under this paragraph must be shown to have a knowing connection with the `foreign power' for whom he is working. In the case of international terrorism, it is anticipated that in most cases this connection will be shown to exist with a group engaged in international terrorism. The case may arise where a U.S. person is acting for or on behalf of such a group that is substantially composed of U.S. persons. In such a case, the judge must examine the circumstances carefully to determine whether the organization is `a group engaged in international terrorism,' as defined, and not a purely domestic group engaged in domestic terrorism.
Paragraph 2(D) allows physical search of the property of any person, including a U.S. person, who knowingly aids or abets any person in the conduct of activities described in subparagraphs (2)(A)-(C) above, or knowingly conspires with any person to engage in such activities. The knowledge requirement is applicable to both the status of the person being aided by the proposed target of the search and the nature of the activity being promoted. This standard requires the Government to establish probable cause that the prospective target knows both that the person with whom he is conspiring or whom he is aiding or abetting is engaged in the described activities as an agent of a foreign power and that his own conduct is assisting or furthering such activities. The innocent dupe who unwittingly aids a foreign intelligence officer cannot be targeted under this provision. In the case of a person alleged to be knowingly aiding or abetting those engaged in international terrorism on behalf of a foreign power, such a person might be assisting a group engaged in both lawful political activity and unlawful terrorist acts. In such a case, it would be necessary to establish probable cause that the individual was aware of the terrorist activities undertaken by the group and was knowingly furthering them, and not merely that he was aware of and furthering the group's lawful activity.
An illustration of the `knowing' requirement is provided by the case of Dr. Martin Luther King, Jr. Dr. King was subjected to electronic surveillance on `national security grounds' when he continued to associate with two advisors whom the Government had apprised him were suspected of being
American Communist Party members and by implication, agents of a foreign power. Dr. King's mere continued association and consultation with those advisers, despite the Government's warnings, would clearly not have been a sufficient basis under this title to target Dr. King's property for physical search.
Indeed, even if there had been probable cause to believe that the advisers alleged to be Communists were engaged in criminal clandestine intelligence activity for a foreign power within the meaning of this section, and even if there were probable cause to believe Dr. King was aware they were acting for a foreign power, it would also have been necessary under this title to establish probable cause that Dr. King was knowingly engaged in furthering his advisers' criminal clandestine intelligence activities. Absent one or more of these required showings, Dr. King could not have been found to be one who knowingly aids or abets a foreign agent.
As was noted above, however, the `knowing' requirement can be satisfied by circumstantial evidence, and there is no requirement for the Government to disprove lack of knowledge where the circumstances were such that a reasonable man would know what he was doing.
The term `international terrorism' is defined in section 101(c) of FISA as follows:
(c) `International terrorism' means activities that--
(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by intimidation or coercion; or
(C) to affect the conduct of a government by assassination or kidnaping; and
(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the location in which their perpetrators operate or seek asylum.
Subsection 101(c) of FISA defines the term `international terrorism' by requiring three separate aspects of activities to be shown. The first aspect describes the nature of the acts involved in the activity: the activities must involve `violent acts or acts dangerous to human life' which are a violation of either State or Federal law, or which, if committed in the United States, would violate either State or Federal law. The violent acts covered by the definition mean both violence to persons and grave or serious violence to property.
The Congress intends that the property of terrorists and saboteurs acting for foreign powers should be subject to search under this title when they are in the United States, even if the target of their violent acts has been within a foreign country and therefore outside actual Federal or State jurisdiction. This departure from a strict criminal standard is justified by the international responsibility of governments to prevent their territory from being used as a base for launching terrorist attacks against other countries as well as to aid in the apprehension of those who commit such crimes of violence. We demand that other countries live up to this responsibility and it is important that in our legislation we demonstrate a will to do so ourselves.
The second aspect of this definition relates to the purpose to which the activities are directed. The purpose of the terrorist activities must be either intimidation of the civilian population, the intimidation of national leaders in order to force a significant change in government policy, or the affecting of government conduct by assassination or kidnaping. Examples of activities which in and of themselves would meet these requirements would be: the detonation of bombs in a metropolitan area, the kidnaping of a high-ranking government official, the hijacking of an airplane in a deliberate and articulated effort to force the government to release a certain class of prisoners or to suspend aid to a particular country, the deliberate assassination of persons to strike fear into others to deter them from exercising their rights or the destruction of vital governmental facilities. Of course other violent acts might also satisfy these requirements if the requisite purpose is demonstrated.
The third aspect of this definition relates to the requirement that the activities be international or foreign in scope. The terrorist activities must occur totally outside the United States or otherwise be international in character. Thus, if a member of the Baader-Meinhof Group or the Japanese Red
Army, who has engaged in terrorist acts abroad, comes to the United States, he or she may be immediately placed under surveillance. If the activities have not occurred totally outside the United States, then it must be shown that the activities transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locate in which their perpetrators operate or seek asylum. Remembering that this is a definition of `international terrorism,' there must be a substantial international character with respect to these considerations. The fact that an airplane is hijacked while flying over Canada between Alaska and Chicago does not itself make the activity international terrorism. A domestic terrorist group which explodes a bomb in the international arrivals area of a U.S. airport, does not by this alone become engaged in international terrorism. However, if a domestic group kidnaps foreign officials in the United States or abroad to affect the conduct of that foreign government this would be international terrorism. Finally, if a domestic terrorist group receives direction or substantial support from a foreign government or a foreign terrorist group, its terrorist activities made possible by that support or conducted in response to that direction could be international terrorism. It is important, however, to recognize that this substantial support or direction must already have been established before a search could be authorized. This definition does not allow search of the property of Americans merely to determine if they are receiving foreign support or direction. Moreover, support is not intended to include moral or vocal support. It must be material, technical, training, or other substantive support, and the support must be of the activities involving terrorist acts, not just general support to a group which may engage in both terrorist activities as well as other lawful activities. Direction means direction and does not mean suggestions.
Activities parallel to or consistent with the desires of a foreign power do not by themselves satisfy the requirement that the foreign power is directing the group. Finally, the fact that particular members of a domestic group engage in international terrorism does not mean that all members of that group are similarly engaged.
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The term `sabotage' is defined in section 101(d) of FISA as follows:
(d) `Sabotage' means activities that involve a violation of chapter 105 of title 18, United States Code, or that would involve such a violation if committed against the United States.
Subsection (d) defines sabotage as activities which involve crimes under chapter 105 of title 18, United States Code, if conducted against the United States. By its terms, chapter 105 makes criminal only acts of sabotage against U.S. Government facilities. The definition of sabotage in this title is expanded to include similar acts when committed against a State or another nation's facilities and materials relating to defense. Thus, sabotage directed against state and local police facilities and equipment, or against the defense facilities of foreign nations, would constitute sabotage under this definition. Of course, a physical search under this title could be undertaken only if such sabotage was knowingly conducted for or on behalf of a `foreign power' as defined and the information sought constituted foreign intelligence information as defined. Where persons have knowingly engaged in sabotage of State or foreign facilities for or on behalf of a foreign power, the property of such persons should be subject to physical search in this country for foreign intelligence purposes even in the absence of probable cause to believe that they will engage in sabotage against Federal facilities.
The primary thrust of this bill is to protect Americans both from improper activities by our intelligence agencies as well as from hostile acts by foreign powers and their agents. Any information which relates to these general security and foreign relations concerns can help protect Americans and their interests from hostile activities of foreign powers. Where this information does not concern U.S. persons, the countervailing privacy considerations militating against seeking such information through physical search are outweighed by the need for the information. Therefore, the definition of foreign intelligence information includes any information relating to these broad security or foreign relations concerns, so long as the information does not concern U.S. persons. Where U.S. persons are involved, the definition is much stricter; it requires that the information be `necessary' to these security or foreign relations concerns.
Where the term `necessary' is used, the Congress intends to require more than a showing that the information would be useful or convenient. The Congress intends to require a showing that the information is both important and required. The use of this standard is intended to mandate that a significant need be demonstrated by those seeking the search. For example, it is often contended that a counterintelligence officer or intelligence analyst, if not the policymaker himself, must have every possible bit of information about a subject because it might provide an important piece of the larger picture. In that sense, any information related to the specified purposes might be called `necessary' but such a reading is clearly not intended.
Subparagraph (e)(1)(A) of the FISA definition defines foreign intelligence information as information which relates to, and if concerning a U.S. person, is necessary to, the ability of the United States to protect against actual or potential attack or other grave hostile acts of foreign power or its agents. This category is intended to encompass information which relates to foreign military capabilities and intentions, as well as acts of force or aggression which would have serious adverse consequences to the national security of the United States. The term `hostile acts' must be read in the context of the subparagraph which is keyed to actual or potential attack. Thus, only grave types of hostile acts would be envisioned as falling within this provision.
Subparagraph (e)(1)(B) of the FISA definition includes information which relates to, and if concerning a U.S. person, is necessary to, the ability of the United States to protect itself against sabotage or terrorism by a foreign power or foreign target. It is anticipated that the type of information described in this subparagraph will be the type sought when a physical search is targeted against the type of foreign power defined in section 101(a)(4) of FISA, or against the type of foreign agent defined in section 101(b)(2)(C) of FISA.
Subparagraph (e)(1)(C) of the FISA definition includes information which relates to, and if concerning a U.S. person, is necessary to, the ability of the United States to protect against the clandestine intelligence activities by an intelligence service or network of a foreign power or by a foreign agent. This subparagraph encompasses classic counterintelligence information.
This subsection is not intended to encompass information sought about political activity by U.S. citizens allegedly necessary to determine the nature and extent of any possible involvement in those activities by the intelligence services of foreign powers. Such a dragnet approach to counterintelligence has been the basis for improper investigations of citizens prior to the enactment of FISA and is not intended to be a permissible avenue of `foreign intelligence' collection under this subparagraph. Nor does this subparagraph include efforts to prevent `newsleaks' or to prevent publication of such leaked information in the American press, unless there is reason to believe that such leaking or publication is itself being done by an agent of a foreign intelligence service to harm the national security.
Information about a U.S. person's private affairs is not intended to be included in the meaning of `foreign intelligence information' unless it may relate to his activities on behalf of a foreign power. For example, the Government should not seek purely personal information about a U.S. citizen or permanent resident alien, who is a suspected spy, merely to learn something that would be `compromising.' This restriction might not be applicable to agents of foreign powers as defined in section 101(b)(1) of FISA, because compromising information about their private lives may itself be foreign intelligence information.
It should be noted that under paragraph (e)(1) of the FISA definition there is no requirement that the attack, grave hostile act, sabotage, terrorism, or clandestine intelligence activities be directed against the United States in order for information to constitute `foreign intelligence information,' as defined. Obviously, armed attacks and similar grave hostile acts against any nation in this interdependent world more often than not directly affect the security and foreign relations of all countries. War in the Mid East or in the Horn of Africa, for example, inevitably involves this nation's security and foreign relations. Sabotage and international terrorism also, even if confined to one foreign country, may indeed affect the interests and security of the United States. The kidnaping of a high official of an allied nation can affect the course of government and security of that nation, thereby affecting this nation's security and foreign relations. Finally, clandestine intelligence activities of one nation directed against another can easily affect this nation. This occurred in West Germany where Soviet spies in the German Defense Ministry compromised NATO secrets, which included American secrets. It can also
occur when other nations engage in clandestine intelligence activities against one another in the United States.
Finally, the term `foreign intelligence information,' especially as defined in subparagraphs (e)(1)(B) and (e)(1)(C) of FISA, can include evidence of certain crimes relating to sabotage, international terrorism, or clandestine intelligence activities. With respect to information concerning U.S. persons, foreign intelligence information includes information necessary to protect against clandestine intelligence activities of foreign powers or their agents. Information about a spy's espionage activities obviously is within this definition, and it is most likely at the same time evidence of criminal activities. How this information may be used `to protect' against clandestine intelligence activities is not prescribed by the definition of foreign intelligence information, although, of course, how it is used may be affected by minimization procedures, see section 410(c) of this title, infra. And no information acquired pursuant to this title could be used for other than lawful purposes, see section 404(a) of this title. Obviously, use of `foreign intelligence information' as evidence in a criminal trial is one way the Government can lawfully protect against clandestine intelligence activities, sabotage, and international terrorism. This title, explicitly recognizes that information which is evidence of crimes involving clandestine intelligence activities, sabotage, and international terrorism can be sought, retained, and used pursuant to this title.
Paragraph (e)(2) of the FISA definition includes information which relates to, and if concerning a U.S. person, is necessary to, (A) the national defense or the security of the Nation or (B) the conduct of the foreign affairs of the United States. This also requires that the information sought involve information with respect to foreign powers or territories, and would therefore not include information about the views or planned statements or activities of Members of Congress, executive branch officials, or private citizens concerning the foreign affairs or national defense of the United States. The information must pertain to a foreign power or foreign territory; and thus it cannot simply be information about a citizen of a foreign country who is visiting the United States unless the information would contribute to meeting intelligence requirements with respect to a foreign power or territory. With these limitations, the Congress believes that the adoption of a `relates to' standard would not authorize improper treatment. In this regard, the Congress fully intends that the vigorous exercise of its oversight authority will provide another valuable check.
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Subsection 101(g) of FISA defines `Attorney General' to mean the Attorney General of the United States (or Acting Attorney General) or the Deputy Attorney General. The Deputy Attorney General is appropriate because, as the second-ranking official in the Justice Department, he would most often be the Acting Attorney General in the Attorney General's absence.
The definition of `United States person' in section 101(i) of FISA reads as follows:
(i) `United States person' means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act), 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).
This title is designed to afford primary protection to `United States persons.' Thus, minimization is only required with respect to information concerning U.S. persons; the definition of `foreign intelligence information' is much broader where non-U.S. persons are involved; and the definition of `agent of a foreign power' is broader for non-U.S. persons. Associations or corporations which would otherwise be United States persons are excluded from the definition if they are also within the first three subdefinitions of `foreign power,' see section 101(a)(1)-(3) of FISA, no matter what their membership or place of incorporation.
The definition treats as `United States persons' groups allegedly engaged in international terrorism, see section 101(a)(4) of FISA, and entities allegedly covertly controlled and directed by a foreign government or governments, see section 101(a)(6) of FISA, if they are substantially composed of U.S. citizens or permanent resident aliens or incorporated in the United States, and foreign-based political organizations if they are incorporated in the United States. This does NOT in any way prohibit searches targeted against such
associations or corporations if they meet the definition of `foreign power.' Where the definition of `foreign intelligence information' applies to information concerning such entities, the information must be `necessary' to the national security or foreign relations concerns. This is critical where the target of a search is `an entity directed and controlled by a foreign government or governments,' see section 101(a)(6) of FISA. Such an entity may be entirely composed of U.S. citizens; it may also be engaged in totally lawful and proper activities. There may be a legitimate need for a search targeted at such an entity where it is directed and controlled by a foreign government or governments, but this non-criminal standard can only be supported so long as such entities, which are either incorporated in the United States or substantially composed of U.S. citizens or permanent resident aliens, are treated as United States persons. The added scrutiny that results from a determination that the information is `necessary' is the minimum which can justify such a broad targeting standard with respect to an entity composed of Americans or incorporated in the United States.
In addition, information concerning entities which are incorporated in the U.S. or which are substantially composed of Americans is subject to minimization even if the entities also might be foreign powers, as defined in section 101(a)(4)-(6) FISA. Where a judge has approved the targeting of such an entity and the information sought is necessary, it is not expected that much minimization would be required as to the entity. For instance, if a group of Americans is a group engaged in international terrorism, it is expected that almost all information about the group would be `necessary' to the United States to protect against international terrorism. However, a domestic political group might be found by a judge to be covertly directed and controlled by a foreign government, and information concerning that direction and control might be found necessary to protect the United States against clandestine intelligence activities. But that entity might also engage in legitimate political activities not relating to the foreign government's direction and control. In such a circumstance, minimization is both appropriate and important.
The special protections afforded U.S. persons are not appropriate where an association or corporation is a `foreign power' as defined in section 101(a)(1)-(3) of FISA. The entities covered by these subdefinitions are not subject to much doubt. They are all `official' foreign powers more likely than not flying a foreign flag outside their door. Thus, there is little opportunity for error or abuse by intelligence agencies.
The term `unincorporated association' in the definition of `United States person' is meant to include any group, entity, or organization which is not incorporated under the laws of the United States or of any State. The term `members' here, as opposed to its use in section 101(b)(1)(A) of FISA, is not intended, of course, to be limited to formal, card-carrying members. For instance, an unincorporated commercial establishment's employees would be members under this definition. The Congress intends the reference to `a substantial number of members' to be equivalent to the term `substantially composed of' used in parts (2) and (5) of the FISA definition of `foreign power.' In both contexts the words `substantial' or `substantially" require that there be a significant proportion, but less than a majority. The judge is expected to take all the known circumstances into account in determining whether an association is a `United States person.'
The term `United States' is a defined as follows in section 101(j) of FISA:
(j) `United States,' when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
As defined, the United States includes all areas under the territorial sovereignty of the United States whether incorporated or not, e.g., Puerto Rico, Guam, the Virgin Islands, and American Samoa. The Trust Territory of the Pacific Islands is not, at this time, under the territorial sovereignty of the United States. It is, however, included in the term `United States' for the purposes of this title, so long as it is under the trusteeship of the United States. At such time as all or part of the Trust Territory enters into as Commonwealth relationship with the United States, it is intended that any such part be considered under the territorial sovereignty of the United States. If the trusteeship is ended with parts or all of those islands becoming independent, this title would not apply to those parts.
The term `territorial sovereignty' in the definition does not include U.S. embassies, consulates, military or other U.S. flag vessels outside the United States, etc.; it does include land in the United States occupied by foreign embassies, consulates, missions, etc. Despite the fact that foreign missions are sometimes referred to as being `extraterritorial,' all national
maintain territorial sovereignty over foreign missions and may expel, as persona non grata, persons therein and condemn the property by right of eminent domain. Military bases and areas under military occupation abroad (e.g., the United States sector in West Berlin) are not under the territorial sovereignty of the United States.
In this title terms such as `foreign-based' and `foreign territory' refer to places outside the `United States,' as defined here.
The term person is defined in section 101(m) of FISA to mean any individual, including any officer or employee of the Federal Government, or any group, entity, association corporation, or foreign power. `Person' is defined in the broadest sense possible. It is intended to make explicit that entities can be persons, where the term `person' is used. For example, while it is expected that most entities would be targeted under the `foreign power' standard (which cannot be applied to individuals), it is possible that entities could be targeted under certain of the `agent of a foreign power' standards, see section 101(b)(2)(A)-(D) of FISA. Where it is intended that only natural persons are referred to, the term `individual' U.S. person or `individual" person is used.
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The term `State' is defined in section 101(o) of FISA to mean any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.
Section 409(b) of this title defines `physical search' to mean any physical intrusion into premises or property (including examination of the interior of property by technical means) or any seizure, reproduction 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 `electronic surveillance' as defined in subsection 101(f) of FISA. The definition expressly includes `altering' property so as to ensure that the court is informed and approves of any planned physical alteration of property incidental to a search, e.g., the replacement of a lock so as to conceal the fact of the search.
This definition is meant to be broadly inclusive, because the effect of including a particular means of search is not to prohibit it but to subject it to the statutory procedures. It is not means, however, to require a court order in any case where a search warrant would not be required in an ordinary criminal context. The provision that `a warrant would be required for law enforcement purposes' does not mean that a court must previously have required a warrant for the particular type of search carried out under this title. The techniques involved may not have come before a court for determination as to whether a warrant is required. Nevertheless, the search activity is intended to be covered if a warrant would be required for law enforcement purposes, as determined on the basis of an assessment of the similarity with other activities which the courts have ruled upon, and the reasonableness of the expectation of privacy that a U.S. person would have with respect to such activity.
In response to questions during the deliberations on FISA, the Department of Justice opined that foreign governments--and in some circumstances their diplomatic agents have no fourth amendment rights under the Constitution. By latter of April 19, 1978, from John Harmon, Assistant Attorney General, Office of Legal Counsel, to Chairman Boland of the House Intelligence Committee, the Department of Justice opined that foreign states and their official agents, to the extent that they are not subject to our laws, are not protected by the fourth amendment. Whether the Department of Justice is correct in its opinion, on an issue which has never been addressed by any court, the coverage of the definition of `physical search' is not intended--by the use of the words `a warrant would be required for law enforcement purposes'--to exclude searches merely because they are targeted against an entity or person not entitled to protection under the fourth amendment. Rather, the phrase is intended to exclude only those search activities which would not require a warrant even if a U.S. person were the target. The Congress expects that, if an agency wishes to use a new technique in the United States affecting private information, material or property without consent, it will seek a ruling from the Attorney General as to whether the technique requires a court order. The intelligence committees should be advised of such rulings.
Law enforcement officials may, if they wish, continue to obtain an ordinary search warrant if the facts and circumstances justify it.
The minimization procedures of this title provide vital safeguards because they regulate the acquisition, retention, and dissemination of information about U.S. persons, including persons who are not the authorized targets of a physical search. For example, a document written by an entirely innocent American may be seized in a search targeted for someone else. Or an American may be the sender or recipient of property that is searched because it is in transit to or from an agent of a foreign power or a foreign power. The procedures also protect Americans who are referred to in documents or other information seized or reproduced in a physical search.
Section 409(C) of this title defines `minimization procedures,' with respect to physical search, in three paragraphs that are similar to the definitions of this term in section 101(h) of FISA.
Paragraph (c)(1) defines `minimization procedures' as specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and techniques of the particular physical search, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.
The definition begins by stating that the minimization procedures must be specific procedures. This is intended to demonstrate that the definition is not itself a statement of the minimization procedures but rather a general statement of principle which will be given content by the specific procedures which will govern the actual searches. It is also intended to suggest that the actual procedures be as specific as practicable in light of the search technique and its purposes.
The definition that states that the procedures must be `reasonably designed in light of the purposes and technique of the particular physical search.' It is recognized that minimization procedures may have to differ depending on the search technique. For instance, minimization with respect to searches of packages entrusted to couriers would not be comparable to searches involving entry of residential premises.
The definition of minimization speaks in terms of minimizing acquisition and retention and prohibiting dissemination.
The Congress recognizes that in some cases it may not be possible or reasonable to avoid acquiring irrelevant information in a physical search. It is recognized that given the nature of intelligence gathering minimizing acquisition should not be as strict as for law enforcement searches. By minimizing retention the Congress intends that information acquired, which is not necessary for obtaining, producing, or disseminating foreign intelligence information, be destroyed where feasible and appropriate, as with copies of photographed or reproduced documents. In certain cases destruction might take place almost immediately, while in other cases the information might be retained for a reason in order to determine whether it did indeed relate to one of the approved purposes. Procedures governing minimization--particularly how long information should be retained and how it should be destroyed once it is deemed irrelevant--are normally approved by the court and subject to judicial supervision.
The Congress recognizes that it may not be feasible to cut and paste documents or other materials where some information is relevant and some is not. Therefore, minimizing retention can also include other measures designed to limit retention of such irrelevant material to an essentially non-usable form.
The standard for dissemination is higher than for acquisition and retention, but the prohibition on dissemination should be designed to be consistent with the need of the United States to obtain, produce, and disseminate until that determination was made (or would only be disseminated to those who could determine its usefulness). Even with respect to information needed for an approved purpose, dissemination should be restricted to those officials with a need for such information. And, again, the judge, in approving the minimization procedures, could require specific restrictions on the retrieval of such information.
There are a number of means and techniques which the minimization procedures may require to achieve the purpose set out in the definition. These may include, where appropriate, but are not limited to:
(A) destruction of unnecessary information acquired;
(B) provision with respect to what may be filed and on what
basis, what may be retrieved and on what basis, and what may be disseminated, to whom and on what basis;
(C) provision for the deletion of the identity of United States persons where not necessary to assess the importance or understand the information;
(D) provision relating to the proper authority in particular cases to approve the retention or dissemination of the identity of United States persons;
(E) provision relating to internal review of the minimization process; and
(F) provision relating to adequate accounting information concerning United States person used or disseminated.
Minimization, however, is not required with respect to all information which may be acquired by physical search. First, publicly available information need not be minimized. By publicly available, the Congress means information which in fact is generally available to the public. Such information can include generally published information or information in the public record which is generally available to the public, e.g., statements of incorporation on file in state offices. Also included would be trade names such as a Xerox copier, a Boeing 747, etc. Second, where a person has consented to waive minimization with respect to the acquisition, retention, or dissemination of information about him through physical search, no minimization is required. The Congress intends that this consent be explicit and informed. A general authorization to obtain information about him, such as may be made by a person seeking Government employment, is not sufficient. As here used, consent to waive minimization must be specific with respect to the acquisition, retention, and dissemination of information concerning the person acquired by physical search. There is not, however, any requirement that the person know the time, manner, purpose, or target of any particular search. It is expected that this allowance will be used rarely and then with respect to high ranking Government officials. Obviously, a refusal to consent should not in any sense be held against a person.
Finally, only information concerning a United States person need be minimized. This includes both documents written by a United States person as well as documents which he has not prepared but which mention him. The Supreme Court has held that persons have no constitutionally protected right of privacy with respect to what others say about them. See ALDERMAN v. UNITED STATES, 394 U.S. 195 (1968). Nevertheless, the Executive Branch in its own procedures has demonstrated that it can minimize retention and prohibit dissemination of such information consistent with legitimate foreign intelligence needs. Recognizing the less substantial privacy interest in such information, however, the `reasonably designed' procedures may take account of the differences between information in which persons have a constitutionally protected interest and that in which they do not. Therefore, more flexibility in the procedures may be afforded with respect to information concerning U.S. persons obtained from documents written by others. Of course, information concerning U.S. persons may come in other circumstances where their privacy is invaded; in such situations the person whose property is searched has had his privacy interests invaded and minimization procedures are required.
Because minimization is only required with respect to information concerning U.S. persons, where materials seized or reproduced are encoded or otherwise not processed, so that the contents are unknown, there is no requirement to minimize the acquisition and retention, or to prohibit the dissemination, of such materials until their contents are known. Nevertheless, the minimization procedures can be structured to apply to other agencies of Government, so that if any agency different from the searching agency decodes or processes the materials, it could be required to minimize the retention and dissemination of information therein concerning U.S. persons.
It is recognized that writers of documents are unlikely to state that they are or are not U.S. persons. Intelligence officers and analysts therefore must use their judgment as to when the procedures apply. While not suggesting that the procedures require the following, as a general rule, persons in the United States might be presumed to be U.S. persons unless there is some reason to believe otherwise. The Congress does not intend or expect, however, that intelligence officers will destroy possibly meaningful information merely because there is a question whether a person is a U.S. person.
The definition states that minimization procedures must minimize acquisition and retention, and prohibit dissemination, of information subject to
minimization `consistent with the need of the United States to obtain produce, and disseminate foreign intelligence information.'
`Foreign intelligence information' is, of course, a defined term, with respect to U.S. persons, it must be `necessary' to the listed security and foreign relations purposes. However, the definition of `minimization procedures' does not state that only `foreign intelligence information' can be acquired, retained, or disseminated. The Congress recognizes full well that bits and pieces of information, which taken together could not possibly be considered `necessary,' may together or over time take on significance and become `necessary.' Nothing in this definition is intended to forbid the retention or even limited dissemination of such bits and pieces before their full significance becomes apparent.
An example would be where the Government conducts a surreptitious entry to photograph papers and effects of a known spy, who is a U.S. person. It is `necessary' to identify anyone working with him in his network, feeding him his information, or to whom he reports. Therefore, it is necessary to acquire, retain and disseminate information concerning all his contacts and acquaintances and movements. Among his contacts and acquaintances, however, there are likely to be a large number of innocent persons. Yet, information concerning these persons must be retained at least until it is determined that they are not involved in the clandestine intelligence activities and may have to be disseminated in order to determine their innocence. Where after a reasonable period of time, which may in fact be an extended period of time, there is no reason to believe such persons are involved in the clandestine intelligence activities, there should be some effort, for example, either to destroy the information concerning such persons, or seal the file so that it is not normally available, or to make the file not retrievable by the name of the innocent person. It is recognized that the failure to gather further incriminating information concerning the contacts or acquaintances of the spy does not necessarily mean they are in fact innocent--instead, they may merely be very sophisticated and well-versed in their espionage tradecraft. Therefore, for an extended period it may be necessary to have information concerning such acquaintances, for an investigation of another spy may indicate the same acquaintance, which may justify more intensive scrutiny of him, which then may result in breaking his cover. (It bears repeating that physical search could not be targeted against such acquaintances until it could be shown that they were in fact agents of foreign powers, as defined.)
It is disconcerting to some that mere association with an alleged spy may be enough to cast suspicion on a person such that his innocence must be established. It seems contradictory to one of our basic tenets that a person is presumed innocent in the eyes of the law until proven guilty. However, in intelligence as in law enforcement, leads must be followed. Especially in counterintelligence cases where often trained professional foreign intelligence personnel are involved, a lead which initially ends in a `dry hole' can hardly be considered a dead issue, although it may be temporarily shelved to divert limited resources to other leads. Therefore, this Congress intends that a significant degree of latitude be given in counterintelligence and counterterrorism cases with respect to the retention of information and the dissemination of information between and among counterintelligence components of the Government.
On the other hand, given this degree of latitude the Congress believes it imperative that with respect to information concerning U.S. persons which is retained as necessary for counterintelligence or counterterrorism purposes, rigorous and strict controls be placed on the retrieval of such identifiable information and its dissemination or use for purposes other than counterintelligence of counterterrorism.
In this regard, it is important to note two points governing dissemination. First, the procedures should recognize that use within an agency may be subject to minimization. Many agencies have widely disparate functions themselves, or are subordinate elements of departments which have functions totally unrelated to intelligence. It is the intent of the commit that use within an agency is potentially subject to minimization. While restrictions on use within an agency need not necessarily be the same as the restrictions on interagency dissemination, it is clear that some controls on interagency use are appropriate.
Second, some might consider that any derogatory information concerning a person holding a security clearance or concerning a person who in the future might be considered for a security clearance would be information disseminable as being for `counterintelligence' purposes. This is not intended. The latitude the Congress intends to afford counterintelligence components with respect to retention and dissemination between them of information for counterintelligence and counterterrorism purposes is not designed or intended to allow
the same latitude for general personnel security purposes.
Where the purpose of a search is not counterintelligence or counterterrorism, there is not the same compelling need for latitude in the retention of information concerning U.S. persons.
One of the results of minimizing retention and dissemination under this title is that some information will be destroyed, retained in a non-identifiable manner, or sealed in a manner to prevent dissemination. Although there may be cases in which information acquired from a physical search for foreign intelligence purposes will be used as evidence of a crime, these cases are expected to be relatively few in number, unlike searches in criminal investigations the very purpose of which is to obtain evidence of criminal activity. In light of the relatively few cases in which information acquired under this title may be used as evidence, the better practice is to allow the destruction of information that is not foreign intelligence information or evidence of criminal activity. This course will safeguard the privacy of individuals more effectively, insuring that irrelevant information will not be filed. The Congress believes that existing criminal statutes relating to obstruction of justice will deter any efforts to tamper with evidence acquired under this chapter. Such destruction should occur, of course, only pursuant to the minimization procedures.
Destruction insures that the information cannot be used to `taint' a civil or criminal proceeding; accordingly, there is no requirement to index information which is destroyed or otherwise not used or disseminated.
The definition of minimization procedures states that the Attorney General shall adopt appropriate procedures. In most cases, of course, these procedures will be reviewed and approved, modified, or disapproved by the judge approving the physical search. In those cases where no warrant is required, no judge will review the procedures, and it is important that it is the Attorney general, as the chief law enforcement officer, who ultimately approves them. It is expected that the procedures adopted by the Attorney general will have been thoroughly coordinated with the affected agencies in the executive branch.
On the basis of the experience under FISA, the Congress recognizes that administrative need for minimization procedures to be as uniform as possible. This does not mean, however, that judges should not fully scrutinize proposed minimization procedures just because the same procedures have been approved by another judge in another case. Not only might the earlier judge have overlooked something, but also it is critical to determine at least that factors militating in favor of uniformity are not outweighed by other considerations. For instance, the Congress expects that minimization procedures for searches of the property individuals would be more strict than those for searches of the property of foreign powers. If the judge believes a modification is called for, he should require it. If the Government finds the change unacceptable, it may, of course, appeal the decision to the special Court of Review.
Paragraph (2) of the definition requires that all minimization procedures contain a requirement that any information which is not foreign intelligence information as defined in section 101(e)(1) of FISA not be disseminated in a manner which identifies an individual United States person, without his consent, unless the identity is necessary to understand such foreign intelligence information or assess its importance. The purpose of this special dissemination standard is to protect United States persons from dissemination of information which identifies them in those areas where the Government's need for their identity is least established. The adjectival use of the name of a United States person entity, such as the brand name of a product, is not restricted by this provision because such information is publicly available.
Two exceptions are allowed to the prohibition on dissemination in paragraph (2). The first allows dissemination where a U.S. person's identity is `necessary to understand' foreign intelligence information. The person's identity must be needed to make the information fully intelligible. If the information can be understood without identifying the U.S. person, it should be disseminated that way. However, sometimes it might be difficult or impossible to make sense out of the information without a U.S. person's identity. The second exception allows dissemination where a U.S. person's identity is necessary to `assess [the] importance' of foreign intelligence information. The word `importance' means important in terms of the interests set out in the definition of foreign intelligence information. `Necessary' does not mean that the identity must be essential to understand the information or assess its importance. The word necessary requires that a knowledgeable intelligence analyst make a determination that the identity will contribute in a meaningful way to the ability of the recipient of the information to understand the
information or assess its importance.
Paragraph (3) of the definition allows retention and dissemination information which is evidence of a crime which has been, or is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes. As noted above, see section 101(e) of FISA, evidence of certain crimes like espionage would itself constitute `foreign intelligence information,' as defined, because it is necessary to protect against clandestine intelligence activities by foreign powers or their agents. Similarly, much information concerning international terrorism would likewise constitute evidence of crimes and also be `foreign intelligence information,' as defined. This paragraph does not relate to information, even though it constitutes evidence of a crime, which is also needed by the United States in order to obtain, produce or disseminate foreign intelligence information. Rather, this paragraph applies to evidence of crimes which otherwise would have to be minimized because it was not needed to obtain, produce, or disseminate foreign intelligence information. For example, in the course of a search evidence of a serious crime totally unrelated to intelligence matters might be incidentally acquired. Such evidence should not be required to be destroyed. Where the information is not foreign intelligence information, however, retention and dissemination of such evidence is allowed only for law enforcement purposes. Such purposes include arrest, prosecution, and other law enforcement measures taken for the purpose of preventing the crime. Thus, this paragraph is not a loophole by which the Government can generally keep and disseminate derogatory information about individuals which may be a technical violation of law, where there is no intent actually to enforce the criminal law. On the other hand, where the evidence also constitutes `foreign intelligence information,' as defined, this paragraph does not apply, and the information may be disseminated and used for purposes other than enforcing the criminal law.
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Section 409(d) of this title defines `aggrieved person' to mean a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search. As defined, the term is intended to be coextensive, but no broader than, those persons who have standing to raise claims under the Fourth Amendment with respect to physical search.
Section 409(e) of this title defines `Foreign Intelligence Surveillance Court' to mean the court established by section 103(a) of FISA, which provides that the Chief Justice of the United States shall publicly designate seven district court judges from seven of the United States judicial circuits who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this Act. Pursuant to section 103(d) of FISA, each judge designated under this section shall so serve for a maximum of seven years and shall not be eligible for redesignation, except that the first judges designated under subsection (a) were to be designated for terms of from one to seven years so that one term expired each year. As a result, there has been a regular annual rotation of at least one new judge onto the Foreign Intelligence Surveillance Court since 1979.
The legislative history of FISA established the intent of Congress that the court shall sit continuously in the District of Columbia, that the designated judges shall serve by rotation determined by the Chief Justice, that they may be assigned to other judicial duties in the District of Columbia which are not inconsistent with their duties under this Act, and that more than one judge shall be available at all times to perform the duties required by this Act. The Chief Justice is expected to consult with the chief of judges of the judicial circuits in making designations of judges under section 103 of FISA.
The FISA legislative history also stated that staffing of the court with at least one judge from each circuit would provide geographical diversity, and bringing the chief judges into the selection process would promote ideological balance. Requiring the special court to sit continuously in the District of Columbia would facilitate necessary security procedures and, by ensuring that at least one judge is always available, would ensure speedy access to it by the Attorney General when timeliness is essential for intelligence purposes. It was anticipated that only one or two judges would be in Washington, on a rotating basis, at any given time. Such a procedure would minimize judge shopping and would make it unlikely that an application for an order for the same target would be heard by the same judge who granted the earlier order for that target.
Section 409(f) defines `Court of Review' to mean the court established by section 103(b) of FISA, which provides that the Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this Act. Pursuant to section 103(d) of FISA, judges designated under subsection (b) shall so serve for a maximum of seven years and shall not be eligible for redesignation. The judges first designated under subsection (b) were to be designated for terms of three, five, and seven years.
The FISA legislative history stated that the Chief Justice is expected to consult with the chief judges of the judicial circuits in making these designations. There is no requirement that the special court of review sit continuously as it is anticipated that the exercise of its functions will be rare.
Section 410 of this title states that the provisions of this title shall become effective 90 days after the date of enactment of this title, except that any physical search approved by the Attorney General to gather foreign intelligence information shall not be deemed unlawful for failure to follow the procedures of this title, if that search is conducted within 180 days following the date of enactment of this title pursuant to regulations issued by the Attorney general, which are in the possession of the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives prior to the date of enactment.
This provision allows some flexibility in the timing of implementation of the statutory physical search procedures. The Congress intends that the Attorney General shall begin making applications for orders under this title and the court may grant such orders as soon as practicable after the effective date of this title. Prior to the first application, U.S. intelligence officers may conduct physical searches under the Executive branch procedures previously in effect. The Congress intends that after the Attorney General makes the first application to the court under this title, no subsequent physical search which requires a court order under this title shall be approved by the Attorney General without a court order. Searches approved by the Attorney General prior to that date, but not yet conducted, may be carried out so long as they occur within 180 days of enactment.
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