Congressional Record: May 24, 2006 (Senate) Page S5121 STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. SPECTER (for himself and Mrs. Feinstein): S. 3001. A bill to ensure that all electronic surveillance of United States persons for foreign intelligence purposes is conducted pursuant to individualized court-issued orders, to streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, and for other purposes; to the Committee on the Judiciary. Mr. SPECTER. Mr. President, I seek recognition to introduce the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006. First, I would like to thank Senator Feinstein and her staff for their work on what I believe is an excellent and much needed proposal. No one disputes that preserving our homeland must be our first priority. Without that, every other goal falls away. And no one can dispute that the enemy we face today is an enemy beyond negotiation. It is an enemy that believes it is on a mission from God to establish a worldwide theocracy and destroy all those who preach tolerance of other ideas. It is an enemy that regards mercy as a moral failing, and proudly plays videotapes of its followers beheading innocent civilians. At the same time, no one disputes that we must, in fighting to preserve America, ensure that we protect what is uniquely American--our way of life, our principles, and our belief in liberty. Throughout our history, we have balanced the need to protect our Nation with the need to preserve our freedom. No one disputes that we must continue to achieve both of these ends. The question is how to do so. I believe that the Foreign Intelligence Surveillance Improvement and Enhancement Act goes a long way to answering this question. It is a responsible bill that establishes a workable framework for the future. This bill eliminates some artificial and outdated constraints in FISA: It grants the executive branch 7 days, instead of 3 days, for seeking an emergency order--a change that the FISA judges who testified before the Judiciary Committee advocated; it cuts through redtape by confirming that applications for FISA orders may be made by delegees of the Attorney General, such as the Deputy Attorney General and Assistant Attorney General of the National Security; it creates new emergency provisions, allowing extended periods of surveillance in the event our Nation is once again attacked; and it allocates additional personnel to DOJ to prepare applications for FISA orders in a prompt and timely manner. This bill also ensures that our civil liberties are protected by strengthening oversight of the executive branch: It eliminates the current ambiguity in FISA and the National Security Act of 1947, and makes it clear the executive branch must inform all members of the Senate and House Intelligence Committees on all electronic surveillance programs; it requires the executive branch to submit an additional report to the congressional Intelligence Committees listing any recommendations for legislative or administrative improvements in FISA, so that we in Congress can update FISA as needed; it establishes rigorous reporting requirements for the exercise of emergency surveillance powers; and it establishes a document management system to ensure that information concerning electronic surveillance programs is readily available for review by the Foreign Intelligence Surveillance Court and Congress, to allow for short term decisions and long-term accountability. I do have one concern over the bill, a concern over constitutionality. The bill states that the only way the President may carry out electronic surveillance is through the procedures outlined in FISA or the Federal Criminal Code. During the four hearings I held in the Senate Judiciary Committee, numerous scholars and five FISA judges called this provision into question. They testified that the President has certain inherent powers that we in Congress cannot take away. They explained that to the extent a bill purports to override the President's inherent powers, and tell the President that he may not use them, the bill might be unconstitutional. I think this is precisely the type of complex and weighty concern that we should work out in the Judiciary Committee, through study, analysis, and discussion. And I look forward to having those discussions with Senator Feinstein and the other members of the committee. I urge my colleagues to support the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006. ______
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S 3001 IS
109th CONGRESS 2d Session S. 3001
To ensure that all electronic surveillance of United States persons for foreign intelligence purposes is conducted pursuant to individualized court-issued orders, to streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, and for other purposes. IN THE SENATE OF THE UNITED STATES
May 24, 2006 Mr. SPECTER (for himself and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To ensure that all electronic surveillance of United States persons for foreign intelligence purposes is conducted pursuant to individualized court-issued orders, to streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, and for other purposes. 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 `Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006'.
TITLE I--CONSTRUCTION OF FOREIGN INTELLIGENCE SURVEILLANCE AUTHORITY SEC. 101. REITERATION OF CHAPTERS 119, 121, AND 206 OF TITLE 18, UNITED STATES CODE, AND FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AS EXCLUSIVE MEANS BY WHICH DOMESTIC ELECTRONIC SURVEILLANCE MAY BE CONDUCTED.
(a) Exclusive Means- Notwithstanding any other provision of law, chapters 119, 121, and 206 of title 18, United States Code, and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which electronic surveillance may be conducted on a United States person in the United States.
(b) Amendment to Foreign Intelligence Surveillance Act of 1978- Section 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by striking `authorized by statute' each place it appears and inserting `authorized by this title or chapter 119, 121 or 206 of title 18, United States Code'.
(c) Amendment to Title 18, UNITED STATES CODE- Section 2511(2)(a)(ii)(B) of title 18, United States Code, is amended by striking `statutory requirements' and inserting `requirements under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), this chapter, or chapters 121 or 206 of this title'.
SEC. 102. SPECIFIC AUTHORIZATION REQUIRED FOR ANY REPEAL OR MODIFICATION OF TITLE I OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) IN GENERAL- Title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 109 the following new section:
`SPECIFIC AUTHORIZATION REQUIRED FOR ANY REPEAL OR MODIFICATION OF TITLE
`SEC. 109A. No provision of law shall be construed to implicitly repeal or modify this title or any provision thereof, nor shall any provision of law be deemed to repeal or modify this title in any manner unless such provision of law, if enacted after the date of the enactment of the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006, expressly amends or otherwise specifically cites this title.'.
(b) CLERICAL AMENDMENT- The table of contents for that Act is amended by inserting after the item relating to section 109 the following new item:
`Sec. 109A. Specific authorization required for any repeal or modification of title.'.
SEC. 103. PROHIBITION ON USE OF FUNDS FOR ELECTRONIC SURVEILLANCE NOT AUTHORIZED BY LAW.
Commencing on the effective date of this Act, no funds appropriated or otherwise made available by any Act may be obligated or expended to conduct electronic surveillance (as defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)), except in accordance with the provisions of law as follows:
(1) Title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(2) Title IV of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1841 et seq).
(3) Chapter 119 of title 18, United States Code.
(4) Chapter 121 of title 18, United States Code.
(5) Chapter 206 of title 18, United States Code.
SEC. 104. INFORMATION FOR CONGRESS ON THE TERRORIST SURVEILLANCE PROGRAM AND SIMILAR PROGRAMS.
As soon as practicable after the date of the enactment of this Act, but not later than seven days after such date, the President shall brief and inform each member of the congressional intelligence committees on the following:
(1) The Terrorist Surveillance Program of the National Security Agency.
(2) Any program which involves, whether in part or in whole, the electronic surveillance of United States persons in the United States for foreign intelligence purposes, and which is conducted by any department, agency, or other element of the United States Government, or by any entity at the direction of a department, agency, or other element of the United States Government, without fully complying with the procedures set forth in the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) or chapter 119, 121, or 206 of title 18, United States Code.
TITLE II--APPLICATIONS AND PROCEDURES FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE PURPOSES SEC. 201. EXTENSION OF PERIOD FOR APPLICATIONS FOR ORDERS FOR EMERGENCY ELECTRONIC SURVEILLANCE.
Section 105(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(f)) is amended by striking `72 hours' both places it appears and inserting `168 hours'.
SEC. 202. DELEGATION OF AUTHORITY TO APPROVE APPLICATIONS FOR ELECTRONIC SURVEILLANCE.
(a) IN GENERAL- Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a), by striking `Attorney General based upon his finding' and inserting `Attorney General (or a delegee of the Attorney General under subsection (f)) based upon a finding'; and
(2) by adding at the end the following new subsection:
`(f) The Attorney General may delegate the authority to approve an application under this section for an order approving electronic surveillance under this title to each of the following:
`(1) The Deputy Attorney General.
`(2) The Assistant Attorney General for National Security.'.
(b) CONFORMING AMENDMENT- Section 102(b) of such Act (50 U.S.C. 1802(b)) is amended by inserting `(or delegee of the Attorney General under section 104(f))' after `Attorney General'.
SEC. 203. ADDITIONAL AUTHORITY FOR EMERGENCY ELECTRONIC SURVEILLANCE.
Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is amended--
(1) by redesignating subsections (g), (h), (i), and (j) as subsections (h), (i), (j), and (k), respectively; and
(2) by inserting after subsection (f) the following new subsection (g):
`(g)(1)(A) Notwithstanding any other provision of this title and subject to the provisions of this subsection, the Attorney General may, with the concurrence of the Director of National Intelligence, appoint appropriate supervisory or executive personnel within the Federal Bureau of Investigation and the National Security Agency to authorize electronic surveillance on a United States person in the United States on an emergency basis pursuant to the provisions of this subsection.
`(B) For purposes of this subsection, an intelligence agent or employee acting under the supervision of a supervisor or executive appointed under subparagraph (A) may conduct emergency electronic surveillance under this subsection if such supervisor or executive reasonably determines that--
`(i) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
`(ii) the factual basis exists for the issuance of an order approving such surveillance under this title.
`(2) The supervisors and executives appointed by the Attorney General under paragraph (1) may only be officials as follows:
`(A) In the case of the Federal Bureau of Investigation, officials at or above the level of Special Agent in Charge.
`(B) In the case of the National Security Agency, officials at or above the level of head of branch of the National Security Agency.
`(3) A supervisor or executive responsible for the emergency employment of electronic surveillance under this subsection shall submit to the Attorney General (and, if authorized by the Attorney General, to the Deputy Attorney General and the Assistant Attorney General for National Security) a request for approval of the surveillance within 24 hours of the commencement of the surveillance. The request shall set forth the ground for the belief specified in paragraph (1), together with such other information as the Attorney General shall require.
`(4)(A) The review of a request under paragraph (3) shall be completed by the official concerned under that paragraph as soon as practicable, but not more than 72 hours after the commencement of the electronic surveillance concerned under paragraph (1).
`(B)(i) If the official concerned determines that the electronic surveillance does not meet the requirements of paragraph (1), the surveillance shall terminate immediately and may not be recommenced by any supervisor or executive appointed under paragraph (1), or any agent or employee acting under the supervision of such supervisor or executive, absent additional facts or changes in circumstances that lead a supervisor or executive appointed under paragraph (1) to reasonably believe that the requirements of paragraph (1) are satisfied.
`(ii) In the event of a determination under clause (i), the Attorney General shall not be required, under section 106(j), to notify any United States person of the fact that the electronic surveillance covered by such determination was conducted before the termination of the surveillance under that clause. However, the official making such determination shall notify the court established by section 103(a) of such determination, and shall also provide notice of such determination in the first report that is submitted under section 108(a) after such determination is made.
`(C) If the official concerned determines that the surveillance meets the requirements of subsection (f), the surveillance may continue, subject to the requirements of paragraph (5).
`(5)(A) An application in accordance with this title shall be made to a judge having jurisdiction under section 103 as soon as practicable but not more than 168 hours after the commencement of electronic surveillance under paragraph (1).
`(B) In the absence of a judicial order approving electronic surveillance commenced under paragraph (1), the surveillance shall terminate at the earlier of--
`(i) when the information sought is obtained; or
`(ii) when the application under subparagraph (A) for an order approving the surveillance is denied; or
`(iii) 168 hours after the commencement of the surveillance.
`(C) If an application under subparagraph (A) for an order approving electronic surveillance commenced under paragraph (1) is denied, or in any other case in which the surveillance is terminated and no order approving the surveillance is issued by a court, the use of information obtained or evidence derived from the surveillance shall be governed by the provisions of subsection (f).
`(D) The denial of an application submitted under subparagraph (A) may be reviewed as provided in section 103.
`(6) Any person who engages in the emergency employment of electronic surveillance under paragraph (1) shall follow the minimization procedures otherwise required by this title for the issuance of a judicial order approving the conduct of electronic surveillance.
`(7) Not later than 30 days after appointing supervisors and executives under paragraph (1) to authorize the exercise of authority in that paragraph, the Attorney General, in consultation with the Director of National Intelligence, shall submit to the Foreign Intelligence Surveillance Court and the congressional intelligence committees, and bring up to date as required, a report that--
`(A) identifies the number of supervisors and executives who have been so appointed and the positions held by such supervisors and executives; and
`(B) sets forth guidelines or other directives that describe the responsibilities of such supervisors and executives under this subsection.'.
SEC. 204. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.
(a) AUTHORITY FOR ADDITIONAL JUDGES- Section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended--
(1) by inserting `(1)' after `(a)';
(2) by designating the second sentence as paragraph (4) and indenting such paragraph, as so designated, two ems from the left margin; and
(3) by inserting after paragraph (1), as so designated, the following new paragraph:
`(2) In addition to the judges designated under paragraph (1), the Chief Justice of the United States may designate as judges of the court established by paragraph (1) such judges appointed under Article III of the Constitution of the United States as the Chief Justice determines appropriate in order to provide for the prompt and timely consideration under section 105 of applications under section 104 for electronic surveillance under this title. Any judge designated under this paragraph shall be designated publicly.'.
(b) CONSIDERATION OF EMERGENCY APPLICATIONS- Such section is further amended by inserting after paragraph (2), as added by subsection (a)(3) of this section, the following new paragraph:
`(3) A judge of the court shall make a determination to approve, deny, or seek modification of an application submitted pursuant to section subsection (f) or (g) of section 105 not later than 24 hours after the receipt of such application by the court.'.
SEC. 205. DOCUMENT MANAGEMENT SYSTEM FOR APPLICATIONS FOR ORDERS APPROVING ELECTRONIC SURVEILLANCE.
(a) SYSTEM REQUIRED- The Attorney General shall, in consultation with the Director of the Federal Bureau of Investigation, the Director of the National Security Agency, and the Foreign Intelligence Surveillance Court, develop and implement a secure, classified document management system that permits the prompt preparation, modification, and review by appropriate personnel of the Department of Justice, the Federal Bureau of Investigation, the National Security Agency, and other applicable elements of the United States Government of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) before their submittal to the Foreign Intelligence Surveillance Court.
(b) SCOPE OF SYSTEM- The document management system required by subsection (a) shall--
(1) permit and facilitate the prompt submittal of applications to the Foreign Intelligence Surveillance Court under section 104 or 105(g)(5) of the Foreign Intelligence Surveillance Act of 1978; and
(2) permit and facilitate the prompt transmittal of rulings of the Foreign Intelligence Surveillance Court to personnel submitting applications described in paragraph (1).
SEC. 206. ADDITIONAL PERSONNEL FOR PREPARATION AND CONSIDERATION OF APPLICATIONS FOR ORDERS APPROVING ELECTRONIC SURVEILLANCE.
(a) OFFICE OF INTELLIGENCE POLICY AND REVIEW-
(1) ADDITIONAL PERSONNEL- The Office of Intelligence Policy and Review of the Department of Justice is hereby authorized such additional personnel, including not fewer than 21 full-time attorneys, as may be necessary to carry out the prompt and timely preparation, modification, and review of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for orders under section 105 of that Act (50 U.S.C. 1805) approving electronic surveillance for foreign intelligence purposes.
(2) ASSIGNMENT- The Attorney General shall assign personnel authorized by paragraph (1) to and among appropriate offices of the National Security Agency in order that such personnel may directly assist personnel of the Agency in preparing applications described in that paragraph.
(b) FEDERAL BUREAU OF INVESTIGATION-
(1) ADDITIONAL LEGAL AND OTHER PERSONNEL- The National Security Branch of the Federal Bureau of Investigation is hereby authorized such additional legal and other personnel as may be necessary to carry out the prompt and timely preparation of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes.
(2) ASSIGNMENT- The Director of the Federal Bureau of Investigation shall assign personnel authorized by paragraph (1) to and among the field offices of the Federal Bureau of Investigation in order that such personnel may directly assist personnel of the Bureau in such field offices in preparing applications described in that paragraph.
(c) ADDITIONAL LEGAL AND OTHER PERSONNEL FOR NATIONAL SECURITY AGENCY- The National Security Agency is hereby authorized such additional legal and other personnel as may be necessary to carry out the prompt and timely preparation of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes.
(d) ADDITIONAL LEGAL AND OTHER PERSONNEL FOR FOREIGN INTELLIGENCE SURVEILLANCE COURT- There is hereby authorized for the Foreign Intelligence Surveillance Court such additional staff personnel as may be necessary to facilitate the prompt and timely consideration by that Court of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes. Personnel authorized by this paragraph shall perform such duties relating to the consideration of such applications as that Court shall direct.
(e) SUPPLEMENT NOT SUPPLANT- The personnel authorized by this section are in addition to any other personnel authorized by law.
SEC. 207. REPORT ON PROCEDURES FOR APPLICATIONS FOR ORDERS APPROVING ELECTRONIC SURVEILLANCE.
(a) REVIEW- The Attorney General shall, in consultation with the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review, review the procedures applicable to the submittal under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) of applications for orders under section 105 of that Act (50 U.S.C. 1805) approving electronic surveillance for foreign intelligence purposes.
(b) ELEMENTS- The review required by subsection (a) shall address the following:
(1) The procedures described in subsection (a).
(2) The requirements, if any, under such procedures that impose recurring, undue impediments on the submittal to the Foreign Intelligence Surveillance Court of applications described in subsection (a), including requirements for the submittal of information that is unnecessary for that Court in its consideration of such applications.
(3) A determination of recommendations for legislative or administrative action in light of the matters addressed under paragraphs (1) and (2).
(4) The average length of time, over the previous calendar year, between--
(A) the submittal of a request or recommendation by a Federal officer to the Department of Justice for an application under section 104 of the Foreign Intelligence Surveillance Act of 1978 for an order under section 105 of that Act; and
(B) the decision of the Department of Justice on such request or recommendation.
(5) The requirements imposed by the Department of Justice in determining whether to submit an application under section 104 of the Foreign Intelligence Surveillance Act of 1978 for an order under section 105 of that Act.
(c) MODIFICATION OF PROCEDURES-
(1) IN GENERAL- If the Attorney General determines as a result of the review required by subsection (a) that the procedures described in that subsection should be modified, including modification to address requirements described by subsection (b)(2), the Attorney General shall prescribe in regulations such modifications as the Attorney General considers appropriate. Such modification shall be consistent with the provisions of title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(2) SCOPE- Any procedures prescribed under paragraph (1) shall, to the extent practicable, apply uniformly among all elements of the Department of Justice, and among any other element of the United States Government, concerned with the submittal of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes.
(d) REPORT- Not later than 90 days after the effective date of this Act, the Attorney General shall submit to the Committee on the Judiciary and the Select Committee on Intelligence of the Senate and the Committee the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives a report setting forth the procedures applicable to applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes, including any modification to such procedures prescribed under subsection (c).
SEC. 208. TRAINING OF FEDERAL BUREAU OF INVESTIGATION AND NATIONAL SECURITY AGENCY PERSONNEL IN FOREIGN INTELLIGENCE SURVEILLANCE MATTERS.
The Director of the Federal Bureau of Investigation and the Director of the National Security Agency shall each, in consultation with the Attorney General--
(1) develop regulations to establish procedures for conducting and seeking approval of electronic surveillance on an emergency basis, and for preparing and properly submitting and receiving applications and orders, under sections 104 and 105 of the Foreign Intelligence Surveillance Act of 1978; and
(2) prescribe related training for the personnel of the applicable agency.
SEC. 209. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN WARTIME.
Section 111 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1811) is amended by striking `following a declaration of war by the Congress' and inserting `following any of the following:
`(1) A declaration of war by the Congress.
`(2) An authorization for the use of military force within the meaning of section 2(c)(2) of the War Powers Resolution (50 U.S.C. 1541(c)(2)).
`(3) A national emergency created by attack upon the United States, its territories or possessions, or the Armed Forces within the meaning of section 2(c)(3) of the War Powers Resolution (50 U.S.C. 1541(c)(3)).'.
TITLE III--OTHER MATTERS SEC. 301. DEFINITIONS.
In this Act:
(1) The term `congressional intelligence committees' means--
(A) the Select Committee on Intelligence of the Senate; and
(B) the Permanent Select Committee on Intelligence of the House of Representatives.
(2) The term `Foreign Intelligence Surveillance Court' means the court established by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(3) The term `Foreign Intelligence Surveillance Court of Review' means the court established by section 103(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b).
(4) The term `United States person' has the meaning given such term in section 101(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(i)).
SEC. 302. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary to carry out this Act and the amendments made by this Act.
SEC. 303. EFFECTIVE DATE.
(a) IN GENERAL- Except as provided in subsection (b), this Act, and the amendments made by this Act, shall take effect on the date that is 30 days after the date of the enactment of this Act.
(b) INFORMATION ON TERRORIST SURVEILLANCE PROGRAM- Section 104 shall take effect on the date of the enactment of this Act.
END
A BILL
To ensure that all electronic surveillance of United States persons for foreign intelligence purposes is conducted pursuant to individualized court-issued orders, to streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, and for other purposes. 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 `Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006'.
TITLE I--CONSTRUCTION OF FOREIGN INTELLIGENCE SURVEILLANCE AUTHORITY SEC. 101. REITERATION OF CHAPTERS 119, 121, AND 206 OF TITLE 18, UNITED STATES CODE, AND FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AS EXCLUSIVE MEANS BY WHICH DOMESTIC ELECTRONIC SURVEILLANCE MAY BE CONDUCTED.
(a) Exclusive Means- Notwithstanding any other provision of law, chapters 119, 121, and 206 of title 18, United States Code, and the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by which electronic surveillance (as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)) may be conducted.
(b) Amendment to Foreign Intelligence Surveillance Act of 1978- Section 109(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by striking `authorized by statute' each place it appears and inserting `authorized by this title or chapter 119, 121 or 206 of title 18, United States Code'.
(c) Amendment to Title 18, UNITED STATES CODE- Section 2511(2)(a)(ii)(B) of title 18, United States Code, is amended by striking `statutory requirements' and inserting `requirements under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), this chapter, or chapters 121 or 206 of this title'.
SEC. 102. SPECIFIC AUTHORIZATION REQUIRED FOR ANY REPEAL OR MODIFICATION OF TITLE I OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) IN GENERAL- Title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after section 109 the following new section:
`SPECIFIC AUTHORIZATION REQUIRED FOR ANY REPEAL OR MODIFICATION OF TITLE
`SEC. 109A. No provision of law shall be construed to implicitly repeal or modify this title or any provision thereof, nor shall any provision of law be deemed to repeal or modify this title in any manner unless such provision of law, if enacted after the date of the enactment of the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2006, expressly amends or otherwise specifically cites this title.'.
(b) CLERICAL AMENDMENT- The table of contents for that Act is amended by inserting after the item relating to section 109 the following new item:
`Sec. 109A. Specific authorization required for any repeal or modification of title.'.
SEC. 103. INFORMATION FOR CONGRESS ON THE TERRORIST SURVEILLANCE PROGRAM AND SIMILAR PROGRAMS.
As soon as practicable after the date of the enactment of this Act, but not later than seven days after such date, the President shall brief and inform each member of the congressional intelligence committees on the following:
(1) The Terrorist Surveillance Program of the National Security Agency.
(2) Any program which involves, whether in part or in whole, the electronic surveillance of United States persons in the United States for foreign intelligence purposes, and which is conducted by any department, agency, or other element of the United States Government, or by any entity at the direction of a department, agency, or other element of the United States Government, without fully complying with the procedures set forth in the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) or chapter 119, 121, or 206 of title 18, United States Code.
TITLE II--APPLICATIONS AND PROCEDURES FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE PURPOSES SEC. 201. EXTENSION OF PERIOD FOR APPLICATIONS FOR ORDERS FOR EMERGENCY ELECTRONIC SURVEILLANCE.
Section 105(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(f)) is amended by striking `72 hours' both places it appears and inserting `168 hours'.
SEC. 202. DELEGATION OF AUTHORITY TO APPROVE APPLICATIONS FOR ELECTRONIC SURVEILLANCE.
(a) IN GENERAL- Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a), by striking `Attorney General based upon his finding' and inserting `Attorney General (or a delegee of the Attorney General under subsection (f)) based upon a finding'; and
(2) by adding at the end the following new subsection:
`(f) The Attorney General may delegate the authority to approve an application under this section for an order approving electronic surveillance under this title to each of the following:
`(1) The Deputy Attorney General.
`(2) The Assistant Attorney General for National Security.'.
(b) CONFORMING AMENDMENT- Section 102(b) of such Act (50 U.S.C. 1802(b)) is amended by inserting `(or delegee of the Attorney General under section 104(f))' after `Attorney General'.
SEC. 203. ADDITIONAL AUTHORITY FOR EMERGENCY ELECTRONIC SURVEILLANCE.
Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is amended--
(1) by redesignating subsections (g), (h), (i), and (j) as subsections (h), (i), (j), and (k), respectively; and
(2) by inserting after subsection (f) the following new subsection (g):
`(g)(1)(A) Notwithstanding any other provision of this title and subject to the provisions of this subsection, the Attorney General may, with the concurrence of the Director of National Intelligence, appoint appropriate supervisory or executive personnel within the Federal Bureau of Investigation and the National Security Agency to authorize electronic surveillance on a United States person in the United States on an emergency basis pursuant to the provisions of this subsection.
`(B) For purposes of this subsection, an intelligence agent or employee acting under the supervision of a supervisor or executive appointed under subparagraph (A) may conduct emergency electronic surveillance under this subsection if such supervisor or executive reasonably determines that--
`(i) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
`(ii) the factual basis exists for the issuance of an order approving such surveillance under this title.
`(2) The supervisors and executives appointed by the Attorney General under paragraph (1) may only be officials as follows:
`(A) In the case of the Federal Bureau of Investigation, officials at or above the level of Special Agent in Charge.
`(B) In the case of the National Security Agency, officials at or above the level of head of branch of the National Security Agency.
`(3) A supervisor or executive responsible for the emergency employment of electronic surveillance under this subsection shall submit to the Attorney General (and, if authorized by the Attorney General, to the Deputy Attorney General and the Assistant Attorney General for National Security) a request for approval of the surveillance within 24 hours of the commencement of the surveillance. The request shall set forth the ground for the belief specified in paragraph (1), together with such other information as the Attorney General shall require.
`(4)(A) The review of a request under paragraph (3) shall be completed by the official concerned under that paragraph as soon as practicable, but not more than 72 hours after the commencement of the electronic surveillance concerned under paragraph (1).
`(B)(i) If the official concerned determines that the electronic surveillance does not meet the requirements of paragraph (1), the surveillance shall terminate immediately and may not be recommenced by any supervisor or executive appointed under paragraph (1), or any agent or employee acting under the supervision of such supervisor or executive, absent additional facts or changes in circumstances that lead a supervisor or executive appointed under paragraph (1) to reasonably believe that the requirements of paragraph (1) are satisfied.
`(ii) In the event of a determination under clause (i), the Attorney General shall not be required, under section 106(j), to notify any United States person of the fact that the electronic surveillance covered by such determination was conducted before the termination of the surveillance under that clause. However, the official making such determination shall notify the court established by section 103(a) of such determination, and shall also provide notice of such determination in the first report that is submitted under section 108(a) after such determination is made.
`(C) If the official concerned determines that the surveillance meets the requirements of subsection (f), the surveillance may continue, subject to the requirements of paragraph (5).
`(5)(A) An application in accordance with this title shall be made to a judge having jurisdiction under section 103 as soon as practicable but not more than 168 hours after the commencement of electronic surveillance under paragraph (1).
`(B) In the absence of a judicial order approving electronic surveillance commenced under paragraph (1), the surveillance shall terminate at the earlier of--
`(i) when the information sought is obtained; or
`(ii) when the application under subparagraph (A) for an order approving the surveillance is denied; or
`(iii) 168 hours after the commencement of the surveillance, unless an application under subparagraph (A) is pending, in which case the surveillance may continue for up to an additional 24 hours while the judge has the application under advisement.
`(C) If an application under subparagraph (A) for an order approving electronic surveillance commenced under paragraph (1) is denied, or in any other case in which the surveillance is terminated and no order approving the surveillance is issued by a court, the use of information obtained or evidence derived from the surveillance shall be governed by the provisions of subsection (f).
`(D) The denial of an application submitted under subparagraph (A) may be reviewed as provided in section 103.
`(6) Any person who engages in the emergency employment of electronic surveillance under paragraph (1) shall follow the minimization procedures otherwise required by this title for the issuance of a judicial order approving the conduct of electronic surveillance.
`(7) Not later than 30 days after appointing supervisors and executives under paragraph (1) to authorize the exercise of authority in that paragraph, the Attorney General, in consultation with the Director of National Intelligence, shall submit to the Foreign Intelligence Surveillance Court and the congressional intelligence committees, and bring up to date as required, a report that--
`(A) identifies the number of supervisors and executives who have been so appointed and the positions held by such supervisors and executives; and
`(B) sets forth guidelines or other directives that describe the responsibilities of such supervisors and executives under this subsection.'.
SEC. 204. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.
(a) AUTHORITY FOR ADDITIONAL JUDGES- Section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) is amended--
(1) by inserting `(1)' after `(a)';
(2) in paragraph (1), as so designated, by inserting `at least' before `seven of the United States judicial circuits';
(3) by designating the second sentence as paragraph (4) and indenting such paragraph, as so designated, two ems from the left margin; and
(4) by inserting after paragraph (1), as so designated, the following new paragraph:
`(2) In addition to the judges designated under paragraph (1), the Chief Justice of the United States may designate as judges of the court established by paragraph (1) such judges appointed under Article III of the Constitution of the United States as the Chief Justice determines appropriate in order to provide for the prompt and timely consideration under section 105 of applications under section 104 for electronic surveillance under this title. Any judge designated under this paragraph shall be designated publicly.'.
(b) CONSIDERATION OF EMERGENCY APPLICATIONS- Such section is further amended by inserting after paragraph (2), as added by subsection (a)(3) of this section, the following new paragraph:
`(3) A judge of the court shall make a determination to approve, deny, or seek modification of an application submitted pursuant to section subsection (f) or (g) of section 105 not later than 24 hours after the receipt of such application by the court.'.
SEC. 205. DOCUMENT MANAGEMENT SYSTEM FOR APPLICATIONS FOR ORDERS APPROVING ELECTRONIC SURVEILLANCE.
(a) SYSTEM REQUIRED- The Attorney General shall, in consultation with the Director of the Federal Bureau of Investigation, the Director of the National Security Agency, and the Foreign Intelligence Surveillance Court, develop and implement a secure, classified document management system that permits the prompt preparation, modification, and review by appropriate personnel of the Department of Justice, the Federal Bureau of Investigation, the National Security Agency, and other applicable elements of the United States Government of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) before their submittal to the Foreign Intelligence Surveillance Court.
(b) SCOPE OF SYSTEM- The document management system required by subsection (a) shall--
(1) permit and facilitate the prompt submittal of applications to the Foreign Intelligence Surveillance Court under section 104 or 105(g)(5) of the Foreign Intelligence Surveillance Act of 1978; and
(2) permit and facilitate the prompt transmittal of rulings of the Foreign Intelligence Surveillance Court to personnel submitting applications described in paragraph (1).
SEC. 206. ADDITIONAL PERSONNEL FOR PREPARATION AND CONSIDERATION OF APPLICATIONS FOR ORDERS APPROVING ELECTRONIC SURVEILLANCE.
(a) OFFICE OF INTELLIGENCE POLICY AND REVIEW-
(1) ADDITIONAL PERSONNEL- The Office of Intelligence Policy and Review of the Department of Justice is hereby authorized such additional personnel, including not fewer than 21 full-time attorneys, as may be necessary to carry out the prompt and timely preparation, modification, and review of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for orders under section 105 of that Act (50 U.S.C. 1805) approving electronic surveillance for foreign intelligence purposes.
(2) ASSIGNMENT- The Attorney General shall assign personnel authorized by paragraph (1) to and among appropriate offices of the National Security Agency in order that such personnel may directly assist personnel of the Agency in preparing applications described in that paragraph.
(b) FEDERAL BUREAU OF INVESTIGATION-
(1) ADDITIONAL LEGAL AND OTHER PERSONNEL- The National Security Branch of the Federal Bureau of Investigation is hereby authorized such additional legal and other personnel as may be necessary to carry out the prompt and timely preparation of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes.
(2) ASSIGNMENT- The Director of the Federal Bureau of Investigation shall assign personnel authorized by paragraph (1) to and among the field offices of the Federal Bureau of Investigation in order that such personnel may directly assist personnel of the Bureau in such field offices in preparing applications described in that paragraph.
(c) ADDITIONAL LEGAL AND OTHER PERSONNEL FOR NATIONAL SECURITY AGENCY- The National Security Agency is hereby authorized such additional legal and other personnel as may be necessary to carry out the prompt and timely preparation of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes.
(d) ADDITIONAL LEGAL AND OTHER PERSONNEL FOR FOREIGN INTELLIGENCE SURVEILLANCE COURT- There is hereby authorized for the Foreign Intelligence Surveillance Court such additional staff personnel as may be necessary to facilitate the prompt and timely consideration by that Court of applications under section 104 of the Foreign Intelligence Surveillance Act of 1978 for orders under section 105 of that Act approving electronic surveillance for foreign intelligence purposes. Personnel authorized by this paragraph shall perform such duties relating to the consideration of such applications as that Court shall direct.
(e) SUPPLEMENT NOT SUPPLANT- The personnel authorized by this section are in addition to any other personnel authorized by law.
SEC. 207. TRAINING OF FEDERAL BUREAU OF INVESTIGATION AND NATIONAL SECURITY AGENCY PERSONNEL IN FOREIGN INTELLIGENCE SURVEILLANCE MATTERS.
The Director of the Federal Bureau of Investigation and the Director of the National Security Agency shall each, in consultation with the Attorney General--
(1) develop regulations to establish procedures for conducting and seeking approval of electronic surveillance on an emergency basis, and for preparing and properly submitting and receiving applications and orders, under sections 104 and 105 of the Foreign Intelligence Surveillance Act of 1978; and
(2) prescribe related training for the personnel of the applicable agency.
SEC. 208. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN WARTIME.
Section 111 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1811) is amended by striking `following a declaration of war by the Congress' and inserting `following any of the following:
`(1) A declaration of war by the Congress.
`(2) An authorization for the use of military force within the meaning of section 2(c)(2) of the War Powers Resolution (50 U.S.C. 1541(c)(2)).
`(3) A national emergency created by attack upon the United States, its territories or possessions, or the Armed Forces within the meaning of section 2(c)(3) of the War Powers Resolution (50 U.S.C. 1541(c)(3)).'.
TITLE III--FOREIGN-FOREIGN COMMUNICATIONS SEC. 301. ACQUISITION OF FOREIGN-FOREIGN COMMUNICATIONS.
(a) IN GENERAL- Notwithstanding any other provision of this Act or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), no court order shall be required for the acquisition through electronic surveillance of the contents of any communication between one person who is not located within the United States and another person who is not located within the United States for the purpose of collecting foreign intelligence information even if such communication passes through, or the surveillance device is located within, the United States.
(b) TREATMENT OF INTERCEPTED COMMUNICATIONS INVOLVING DOMESTIC PARTY- If surveillance conducted as described in subsection (a) inadvertently collects a communication in which at least one party is within the United States, the contents of such communications shall be handled in accordance with the minimization procedures set forth in section 101(h)(4) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(h)(4)).
(c) DEFINITIONS- In this section, the terms `contents', `electronic surveillance', and `foreign intelligence information' have the meaning given such terms in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
TITLE IV--OTHER MATTERS SEC. 401. DEFINITIONS.
In this Act:
(1) The term `congressional intelligence committees' means--
(A) the Select Committee on Intelligence of the Senate; and
(B) the Permanent Select Committee on Intelligence of the House of Representatives.
(2) The term `Foreign Intelligence Surveillance Court' means the court established by section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(3) The term `Foreign Intelligence Surveillance Court of Review' means the court established by section 103(b) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(b).
(4) The term `United States person' has the meaning given such term in section 101(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(i)).
SEC. 402. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be necessary to carry out this Act and the amendments made by this Act.
SEC. 403. EFFECTIVE DATE.
Except as provided in section 103, this Act, and the amendments made by this Act, shall take effect on the date that is 30 days after the date of the enactment of this Act.
Calendar No. 610
109th CONGRESS 2d Session S. 3001 A BILL To ensure that all electronic surveillance of United States persons for foreign intelligence purposes is conducted pursuant to individualized court-issued orders, to streamline the procedures of the Foreign Intelligence Surveillance Act of 1978, and for other purposes.
September 13, 2006 Reported with an amendment