[Congressional Record: January 4, 2007 (Senate)]
[Page S183-S185]


          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS


      By Mr. SPECTER:
  S. 187. A bill to provide sufficient resources to permit electronic
surveillance of United States persons for foreign intelligence purposes
to be conducted pursuant to individualized court-issued orders for
calls originating in the United States, to provide additional resources
to enhance oversight and streamline the procedures of the Foreign
Intelligence Surveillance Act of 1978, to ensure review of the
Terrorist Surveillance Program by the United States Supreme Court, and
for other purposes; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I am reintroducing the text of S. 4051,
which I originally introduced on November 14 of last year. And the
title articulates it in a succinct way, so I will read that. It is: a
bill to provide sufficient resources to permit electronic surveillance
of United States persons for foreign intelligence purposes to be
conducted pursuant to individualized court-issued warrants for calls
originating in the United States, to provide additional resources to
enhance oversight and streamline the procedures of the Foreign
Intelligence Surveillance Act of 1978, and to ensure review of the
Terrorist Surveillance Program by the United States Supreme Court.
  I made a number of efforts in the 109th Congress to subject the
President's surveillance program to judicial review in accordance with
the existing law that a search-and-seizure warrant or a wiretap ought
not to be issued without a judge making a finding of probable cause and
authorizing that kind of a search and seizure or that kind of a
wiretap.
  Without going into the entire history, that bill was refined to the
point where it is articulated in S. 4051 of the 109th Congress, which
would provide for individualized warrants for calls originating in the
United States and going out. That can be accomplished, according to the
CIA, if there are additional resources, which this bill provides, and
if the time for retroactive approval is extended from 3 days to 7 days.
  With respect to calls originating outside the United States and
coming in,

[[Page S184]]

we are advised there are simply too many of those to cover, so that on
those calls the bill would expedite the judicial review which is
currently in process.
  A Federal court in Detroit has declared the President's program
unconstitutional, and it is now pending in the Sixth Circuit. This bill
would mandate review by the Supreme Court of the United States and
would put review in the Federal courts on an accelerated timetable.
  There are objections to proceeding with legislation along this line
because of an interest in having hearings. Well, we have had a whole
series of hearings, and the administration has refused to tell the
Judiciary Committee the details of the program. Under our division of
authority, it is the Intelligence Committee which has jurisdiction over
this kind of a program.
  But, we could proceed with hearings and still enact legislation which
would provide constitutional protection for calls originating in the
United States, which is the more serious category. Citizens here,
people here in the United States, would have individual warrants and a
judicial determination of probable cause before the surveillance and
the wiretaps were put into effect.
  Meanwhile, the program goes on. It has been going on since late 2001.
It has been known to the public since December 16, 2005. And each day
that passes, there are more taps, there are more searches and seizures,
there is more surveillance, which may not comport with constitutional
provisions.
  There may be the motivation to show that the President has broken the
law. And there is no doubt that the surveillance program does violate
the Foreign Intelligence Surveillance Act of 1978. But the President
contends that he has inherent article II power as Commander in Chief
which supersedes the statute. And he may be right about that. But only
a court can determine. And under the existing standards, the court must
make a determination of the nature of the invasion of privacy
contrasted with the importance for the public welfare of providing
security. That is a judicial function.
  It seems to me that where you have an avenue to have probable cause
established in the traditional way on calls going out of the United
States, we ought to utilize it. We ought not to have that program
continue in effect without having that kind of constitutional
procedure.
  And then, as to calls originating outside of the United States, if
the President is right, that can be determined by the courts. Let that
proceed in that manner. And, the justification for delay--that we need
to show the President of the United States has violated the law--is a
wholly insufficient justification to withhold legislation that would be
a major improvement to this surveillance program.
  We can conclude, in my view, that he has violated FISA. But to
repeat--and I do not like to repeat--he may have the constitutional
authority for the surveillance program, but that has to be determined
by a judicial proceeding.
  Mr. President, I ask unanimous consent that a copy of the bill be
printed in the Record.
  There being no objection, the material was ordered to be printed in
the Record, as follows:

                                 S. 187

       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 Oversight and Resource Enhancement Act of
     2007''.

    TITLE I--ENHANCEMENT OF RESOURCES AND PERSONNEL FOR ELECTRONIC
             SURVEILLANCE FOR FOREIGN INTELLIGENCE PURPOSES

     SEC. 101. 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, accordingly; 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) of this section, the following new
     paragraph:
       ``(3) A judge of the court established by paragraph (1)
     shall make a determination to approve, deny, or seek
     modification of an application submitted under section
     subsection (f) or (g) of section 105 not later than 24 hours
     after the receipt of such application by the court.''.

     SEC. 102. 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 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
     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 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 authorized for the
     Foreign Intelligence Surveillance Court such additional
     personnel (other than judges) 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. 103. 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 establishing 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 (50
     U.S.C. 1804 and 1805); and
       (2) prescribe related training for the personnel of the
     applicable agency.

  TITLE II--IMPROVEMENT OF FOREIGN INTELLIGENCE SURVEILLANCE AUTHORITY

     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. 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

[[Page S185]]

     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).

     SEC. 203. INDIVIDUALIZED FISA APPLICATIONS.

       The contents of any wire or radio communication sent by a
     person who is reasonably believed to be inside the United
     States to a person outside the United States may not be
     retained or used unless a court order authorized under the
     Foreign Intelligence Surveillance Act is obtained.

     SEC. 204. ISSUES RESERVED FOR THE COURTS.

       Nothing in this Act shall be deemed to amend those
     provisions of FISA concerning any wire or radio communication
     sent from outside the United States to a person inside the
     United States. The constitutionality of such interceptions
     shall be determined by the courts, including the President's
     claim that his Article II authority supersedes FISA.

TITLE III--ENHANCED CONGRESSIONAL OVERSIGHT AND SUPREME COURT REVIEW OF
                   THE TERRORIST SURVEILLANCE PROGRAM

     SEC. 301. CONGRESSIONAL OVERSIGHT.

       (a) Electronic Surveillance Under FISA.--Section 108 of the
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
     1808) is amended--
       (1) in subsection (a)(2)--
       (A) in subparagraph (B), by striking ``and'' at the end;
       (B) in subparagraph (C), by striking the period and
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(D) the authority under which the electronic surveillance
     is conducted.''; and
       (2) by striking subsection (b) and inserting the following:
       ``(b) On a semiannual basis, the Attorney General
     additionally shall fully inform the Permanent Select
     Committee on Intelligence of the House of Representatives and
     the Select Committee on Intelligence of the Senate on
     electronic surveillance conducted without a court order.''.
       (b) Intelligence Activities.--The National Security Act of
     1947 (50 U.S.C. 401 et seq.) is amended--
       (1) in section 501 (50 U.S.C. 413)--
       (A) by redesignating subsection (f) as subsection (g); and
       (B) by inserting after subsection (e) the following new
     subsection:
       ``(f) The Chair of each of the congressional intelligence
     committees, in consultation with the ranking member of the
     committee for which the person is Chair, may inform, on a
     bipartisan basis, all members or any individual members of
     such committee of a report submitted under subsection (a)(1)
     or subsection (b) as such Chair considers necessary.''; and
       (2) in section 502 (50 U.S.C. 414), by adding at the end
     the following new subsection:
       ``(d) Informing of Committee Members.--The Chair of each of
     the congressional intelligence committees, in consultation
     with the ranking member of the committee for which the person
     is Chair, may inform, on a bipartisan basis, all members or
     any individual members of such committee of a report
     submitted under subsection (a) as such Chair considers
     necessary.''.

     SEC. 302. SUPREME COURT REVIEW OF THE TERRORIST SURVEILLANCE
                   PROGRAM.

       (a) In General.--Upon appeal by the United States or any
     party to the underlying proceedings, the Supreme Court of the
     United States shall review the final decision of any United
     States court of appeal concerning the legality of the
     Terrorist Surveillance Program.
       (b) Expedited Consideration.--It shall be the duty of the
     Supreme Court of the United States to advance on the docket
     and to expedite to the greatest possible extent the
     disposition of any matter brought under subsection (a).
       (c) Definition.--In this section, the term ``Terrorist
     Surveillance Program'' means the program identified by the
     President of the United States on December 17, 2005, to
     intercept international communications into and out of the
     United States of persons linked to al Qaeda or related
     terrorist organizations.

                        TITLE IV--OTHER MATTERS

     SEC. 401. DEFINITION.

       In this Act, 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)).

     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.

       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.
                                 ______