HR 5223 IH

To establish the National Commission on Surveillance Activities and the Rights of Americans.

April 27, 2006

Mr. CONYERS (for himself, Mr. WEXLER, Mr. GRIJALVA, Mr. SANDERS, Mr. MCDERMOTT, Ms. SCHAKOWSKY, Mr. STARK, Mr. CAPUANO, Ms. MCCOLLUM of Minnesota, Ms. BALDWIN, Mr. HONDA, Mrs. MALONEY, Mr. VAN HOLLEN, Mr. FARR, and Ms. LEE) introduced the following bill; which was referred to the Select Committee on Intelligence (Permanent Select), and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To establish the National Commission on Surveillance Activities and the Rights of Americans.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Surveillance Activities Commission Act of 2006'.

SEC. 2. DEFINITIONS.

In this Act--

(1) the term `Commission' means the National Commission on Surveillance Activities and the Rights of Americans established under section 3;

(2) the term `electronic surveillance' has the same meaning as in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801);

(3) the term `Foreign Intelligence Surveillance Court' means the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a));

(4) the terms `pen register' and `trap and trace device' have the same meaning as in section 3127 of title 18, United States Code;

(5) The term `physical search' has the same meaning as in section 301 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1821);

(6) the term `surveillance' means any electronic surveillance, physical search, use of a pen register or trap and trace device, order for the production of any tangible item, or surveillance activity for which a Federal or State government agent is required to obtain a warrant, before or after engaging in the activity; and

(7) the term `warrantless surveillance program' means a program of warrantless surveillance conducted inside the United States by any Federal or State agency.

SEC. 3. ESTABLISHMENT OF COMMISSION.

There is established in the legislative branch the National Commission on Surveillance Activities and the Rights of Americans to conduct an investigation and to study governmental operations with respect to warrantless surveillance conducted inside the United States and intelligence activities, and the extent, if any, to which illegal, improper, or unethical activities were engaged in by any Federal, State, or local government agency or any person employed by a Federal, State, or local government.

SEC. 4. PURPOSES.

The purposes of the Commission are to--

(1) examine and report upon the facts, causes, and use of executive authority relating to any warrantless surveillance conducted inside the United States that occurred after September 11, 2001, by the National Security Agency or any other Federal or State agency, and the extent to which any illegal, improper, or unethical activities were engaged in by any agency or by any person, acting either individually or in combination with others, in carrying out any surveillance activities;

(2) examine the origin and operation of any warrantless surveillance conducted inside the United States, including the collection, processing, analysis, dissemination, and retention of intelligence information;

(3) report on any constitutional, statutory, and regulatory basis for any warrantless surveillance program, including all presidential orders and authorizations, and all opinions, instructions, or guidance concerning any warrantless surveillance program provided by the Department of Justice, the Director of Central Intelligence, the Director of National Intelligence, the Director of the National Security Agency, the Department of Defense, or any department, office, or agency of the Federal Government, and any of their subordinate offices or officials, either in writing or verbally;

(4) examine any periodic reviews of any warrantless surveillance program, including all reviews conducted by the National Security Agency Inspector General, the Department of Justice, or any other Federal agency;

(5) gather any information regarding questions raised by any judge of the Foreign Intelligence Surveillance Court regarding any warrantless surveillance program or the utilization of intelligence collected under such program, and any response by the Department of Justice to any such inquiries, including any temporary cessation of such surveillance activities;

(6) investigate any participation by, or use of the facilities or personnel of, United States electronic communications providers in warrantless surveillance conducted inside the United States, including the origin of certifications or representations provided to such providers concerning the legal authority for their cooperation;

(7) ascertain, evaluate, and report on the evidence developed by all relevant governmental agencies regarding any facts or circumstances that may have violated the separation of powers enumerated in the Constitution of the United States, including--

(A) article I, sections 1 and 8 of the Constitution of the United States; and

(B) article III, sections 1 and 2 of the Constitution of the United States;

(8) ascertain and evaluate any potential violations, including violations of the first, fourth, and fourteenth amendments to the Constitution of the United States;

(9) investigate and report on any violation of the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.), or any other applicable law;

(10) examine the duty of the President to brief all Members of Congress regarding warrantless surveillance of United States citizens conducted inside the United States;

(11) build upon the investigations of other entities, and avoid unnecessary duplication, by reviewing the findings, conclusions, and recommendations of--

(A) any investigation by a Committee of the Senate or the House of Representatives; and

(B) other executive branch, congressional, or independent commission investigations into the warrantless surveillance conducted inside the United States;

(12) make a full and complete accounting of the circumstances surrounding warrantless surveillance conducted inside the United States, including an assessment of its effectiveness in protecting the United States from terrorism;

(13) make a full and complete accounting of the use of any appropriated funds by any Federal, State, or local government agency or any person employed by a Federal, State, or local government in carrying out warrantless surveillance; and

(14) investigate and report to the President and Congress on its findings, conclusions, and recommendations for corrective measures that should be taken regarding any violations of any law dealing with intelligence gathering, and to prevent future violations.

SEC. 5. COMPOSITION OF COMMISSION.

(a) Members- The Commission shall be composed of 14 members, of whom--

(1) 1 member, who shall serve as Chairman of the Commission, shall be appointed by the Majority Leader of the Senate, in consultation with the Majority Leader of the House of Representatives;

(2) 1 member, who shall serve as Vice Chairman of the Commission, shall be appointed by the Minority Leader of the Senate, in consultation with the Minority Leader of the House of Representatives;

(3) 1 member shall be appointed by the Chairman of the Committee on the Judiciary of the Senate;

(4) 1 member shall be appointed by the Ranking Member of the Committee on the Judiciary of the Senate;

(5) 1 member shall be appointed by the Chairman of the Select Committee on Intelligence of the Senate;

(6) 1 member shall be appointed by the Vice Chairman of the Select Committee on Intelligence of the Senate;

(7) 1 member shall be appointed by the Chairman of the Committee on the Judiciary of the House of Representatives;

(8) 1 member shall be appointed by the Ranking Member of the Committee on the Judiciary of the House of Representatives;

(9) 1 member shall be appointed by the Chairman of the Permanent Select Committee on Intelligence of the House of Representatives;

(10) 1 member shall be appointed by the Ranking Member of the Permanent Select Committee on Intelligence of the House of Representatives;

(11) 1 member shall be appointed by the Chairman of the Committee on Appropriations of the Senate;

(12) 1 member shall be appointed by the Ranking Member of the Committee on Appropriations of the Senate;

(13) 1 member shall be appointed by the Chairman of the Committee on Appropriations of the House of Representatives; and

(14) 1 member shall be appointed by the Ranking Member of the Committee on Appropriations of the House of Representatives.

(b) Date of Appointment- All members of the Commission shall be appointed not later than the date that is 3 months after the date of enactment of this Act.

(c) Qualifications; Initial Meeting-

(1) NONGOVERNMENTAL APPOINTEES- An individual appointed to the Commission may not be an officer or employee of the Federal Government or any State or local government.

(2) OTHER QUALIFICATIONS- It is the sense of Congress that individuals appointed to the Commission should be prominent United States citizens, with national recognition and significant depth of experience in such professions as law, intelligence gathering, and foreign affairs.

(3) INITIAL MEETING- The Commission shall meet and begin the operations of the Commission as soon as practicable.

(d) Quorum; Vacancies- After its initial meeting, the Commission shall meet upon the call of the Chairman or a majority of its members. Six members of the Commission shall constitute a quorum. Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.

SEC. 6. FUNCTIONS OF COMMISSION.

The functions of the Commission are to--

(1) conduct an investigation that--

(A) investigates relevant facts and circumstances relating to all incidents of warrantless surveillance conducted inside the United States, including any relevant legislation, Executive order, regulation, plan, policy, practice, or procedure; and

(B) may include relevant facts and circumstances relating to--

(i) intelligence agencies and intelligence gathering;

(ii) the Authorization for Use of Military Force, (Public Law 107-40; 50 U.S.C. 1541 note), as a justification for warrantless surveillance conducted inside the United States;

(iii) any use of appropriated funds in carrying out warrantless surveillance conducted inside the United States in contradiction of Federal law;

(iv) the jurisdiction of the Foreign Intelligence Surveillance Court, in issuing warrants for the purpose of surveillance conducted inside the United States;

(v) the role of congressional oversight and resource allocation;

(vi) possible legislative initiatives that could strengthen the use of lawful surveillance conducted inside the United States in effectively protecting national security, while preserving constitutional checks and balances and liberties; and

(vii) other areas of the public and private sectors determined relevant by the Commission for its inquiry; and

(2) submit to the President and Congress such reports as are required by this Act containing such findings, conclusions, and recommendations as the Commission shall determine, including proposing organization, coordination, planning, management arrangements, procedures, rules, and regulations.

SEC. 7. POWERS OF COMMISSION.

(a) In General-

(1) HEARINGS AND EVIDENCE- The Commission or, on the authority of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out this Act--

(A) hold such hearings and sit and act at such times and places, take such testimony, receive such evidence, administer such oaths; and

(B) subject to paragraph (2)(A), require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Commission or such designated subcommittee or designated member may determine advisable.

(2) SUBPOENAS-

(A) ISSUANCE-

(i) IN GENERAL- A subpoena may be issued under this subsection only--

(I) by the agreement of the Chairman and the Vice Chairman; or

(II) by the affirmative vote of 8 members of the Commission.

(ii) SIGNATURE- Subject to clause (i), subpoenas issued under this subsection may be issued under the signature of the Chairman or any member designated by a majority of the Commission, and may be served by any person designated by the Chairman or by a member designated by a majority of the Commission.

(B) ENFORCEMENT- In the case of contumacy or failure to obey a subpoena issued the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.

(b) Contracting- The Commission may, to such extent and in such amounts as are provided in appropriation Acts, enter into contracts to enable the Commission to discharge its duties under this Act.

(c) Information From Federal Agencies-

(1) IN GENERAL- The Commission is authorized to secure directly from any executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality of the Federal Government, information, suggestions, estimates, and statistics for the purposes of this Act. Each department, bureau, agency, board, commission, office, independent establishment, or instrumentality shall, to the extent authorized by law, furnish such information, suggestions, estimates, and statistics directly to the Commission, upon request made by the Chairman, the Chairman of any subcommittee created by a majority of the Commission, or any member designated by a majority of the Commission.

(2) RECEIPT, HANDLING, STORAGE, AND DISSEMINATION- Information shall only be received, handled, stored, and disseminated by members of the Commission and its staff consistent with all applicable statutes, regulations, and Executive orders.

(d) Assistance From Federal Agencies-

(1) GENERAL SERVICES ADMINISTRATION- The Administrator of General Services shall provide to the Commission on a reimbursable basis administrative support and other services for the performance of the Commission's functions.

(2) OTHER DEPARTMENTS AND AGENCIES- In addition to the assistance prescribed in paragraph (1), departments and agencies of the United States may provide to the Commission such services, funds, facilities, staff, and other support services as they may determine advisable and as may be authorized by law.

(e) Postal Services- The Commission may use the United States mails in the same manner and under the same conditions as departments and agencies of the United States.

SEC. 8. NONAPPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT.

(a) In General- The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Commission.

(b) Public Meetings and Release of Public Versions of Reports- The Commission shall--

(1) hold public hearings and meetings to the extent appropriate; and

(2) release public versions of the reports required under subsections (a) and (b) of section 12.

(c) Public Hearings- Any public hearings of the Commission shall be conducted in a manner consistent with the protection of information provided to or developed for or by the Commission as required by any applicable statute, regulation, or Executive order.

SEC. 9. STAFF OF COMMISSION.

(a) In General-

(1) APPOINTMENT AND COMPENSATION- The Chairman, in consultation with the Vice Chairman and in accordance with rules agreed upon by the Commission, may appoint and fix the compensation of a staff director and such other personnel as may be necessary to enable the Commission to carry out its functions, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that no rate of pay fixed under this subsection may exceed the equivalent of that payable for a position at level V of the Executive Schedule under section 5316 of title 5, United States Code.

(2) PERSONNEL AS FEDERAL EMPLOYEES-

(A) IN GENERAL- The executive director and any personnel of the Commission who are employees shall be employees under section 2105 of title 5, United States Code, for purposes of chapters 63, 81, 83, 84, 85, 87, 89, 89A, 89B, and 90 of that title.

(B) MEMBERS OF COMMISSION- Subparagraph (A) shall not be construed to apply to members of the Commission.

(b) Detailees- Any Federal Government employee may be detailed to the Commission without reimbursement from the Commission, and such detailee shall retain the rights, status, and privileges of his or her regular employment without interruption.

(c) Consultant Services- The Commission is authorized to procure the services of experts and consultants in accordance with section 3109 of title 5, United States Code, but at rates not to exceed the daily rate paid a person occupying a position at level IV of the Executive Schedule under section 5315 of title 5, United States Code.

SEC. 10. COMPENSATION AND TRAVEL EXPENSES.

(a) Compensation- Each member of the Commission may be compensated at not to exceed the daily equivalent of the annual rate of basic pay in effect for a position at level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day during which that member is engaged in the actual performance of the duties of the Commission.

(b) Travel Expenses- While away from their homes or regular places of business in the performance of services for the Commission, members of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703(b) of title 5, United States Code.

SEC. 11. SECURITY CLEARANCES FOR COMMISSION MEMBERS AND STAFF.

The appropriate Federal departments or agencies shall cooperate with the Commission in expeditiously providing to the Commission members and staff appropriate security clearances to the extent possible under the relevant procedures and requirements, except that no person shall be provided with access to classified information under this Act without the appropriate security clearances.

SEC. 12. REPORTS OF COMMISSION; TERMINATION.

(a) Interim Reports- The Commission shall submit to the President and Congress interim reports containing such findings, conclusions, and recommendations for corrective measures as have been agreed to by a majority of Commission members.

(b) Final Report- Not later than 18 months after the date of enactment of this Act, the Commission shall submit to the President and Congress a final report containing such findings, conclusions, and recommendations for corrective measures as have been agreed to by a majority of Commission members.

(c) Classified Information- Each report submitted under subsection (a) or (b) shall be in unclassified form, but may include a classified annex.

(d) Termination-

(1) IN GENERAL- The Commission, and all the authorities of this Act, shall terminate 60 days after the date on which the final report is submitted under subsection (b).

(2) ADMINISTRATIVE ACTIVITIES BEFORE TERMINATION- The Commission may use the 60-day period referred to in paragraph (1) for the purpose of concluding its activities, including providing testimony to committees of Congress concerning its reports and disseminating the final report.

SEC. 13. FUNDING.

(a) Authorization of Appropriations- There are authorized to be appropriated such sums as are necessary to carry out this Act.

(b) Duration of Availability- Amounts made available to the Commission under subsection (a) shall remain available until the termination of the Commission.

END