[Congressional Record: January 23, 2008 (Senate)]
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Foreign Intelligence Surveillance
Mr. LEAHY. Mr. President, the Senator from North Dakota is absolutely
right. Having managed a number of bills, I know that sometimes it is
hard to get people with amendments to come forth. I hope they do. Once
this bill is finished, we will go to the Foreign Intelligence
Surveillance Act or, as we know it here, FISA. It is intended to
protect both our national security and also the privacy and civil
liberties of all Americans. We are considering amendments to that
important act that will provide new flexibility to our intelligence
community. We all support surveillance authority. With terrorists
plotting against us and talking about it, we want to be able to use all
the various electronic and other means to find out what they are
saying. Unlike some in the administration who say we are dealing with
an antiquated law, we have updated this act many times, probably 30 or
more times since its historic passage after intelligence abuses of
earlier decades.
I came here 34 years ago. I well remember that this Nation was still
reeling from the excesses of the COINTELPRO when people were being
spied on by their Government simply because they disagreed with what
the Government was doing; in this case, the war in Vietnam. We enacted
FISA so we could do the legitimate thing of actually spying on people
who wanted to do harm to the United States at the time of the Cold War,
when we had adversaries all over the world. We also wanted to make sure
that Americans who were minding their own business, not doing anything
illegal, wouldn't be spied upon.
We rushed the so-called Protect America Act through the Senate just
before the August recess and with it were a number of excesses. They
came about because the administration broke agreements it had reached
with congressional leaders. The bill was hurriedly passed under intense
partisan pressure from the administration. In fact, the pressure was so
strong, they made it very clear why they were willing to break
agreements with those Republicans and Democrats who had been working
together to try to craft a bill that would protect America's interests
but also protect the privacy of individual Americans.
So we passed a bill that provides sweeping new powers to the
Government to engage in surveillance, without a warrant, of
international calls to and from the United States involving Americans,
and it provided no meaningful protection for the privacy and civil
liberties of the Americans who were on those calls. It could be an
American calling a member of their family studying overseas. It could
be a business person who, as they travel around to various companies
they represent, ends up having their telephone calls intercepted.
But before that flawed bill passed--the one that came about because
of the broken agreements by the administration--Senator Rockefeller and
I and several others in the House and Senate worked hard, in good faith
with the administration, to craft legislation that solved an identified
problem but, as I said, protected America's privacy and liberties.
Just before the August recess the administration decided instead to
ram through its version of the Protect America Act with excessive
grants of Government authority and without any accountability or checks
and balances. They did this after 6 years of breaking the law through
secret warrantless wiretapping programs. It was one of the most
egregious things I have seen in my 34 years in the Senate. First they
violate the law, and then instead of being held accountable, they ram
through a law designed to allow them to continue those actions. Some of
us saw it for what it was and voted against it. Both Senators from
Vermont voted against it. We are from a State that borders a foreign
country. We are concerned about our security, but we are also concerned
about our liberties and our privacy.
We did manage to include 6-month sunset in the Protect America Act so
we would have a chance to revisit this matter and do it right. The
Senate Judiciary Committee and the Intelligence Committee, as well as
our House counterparts, have spent the past month considering changes.
In the Senate Judiciary Committee we held open hearings. We had more
briefings than I can even count and meetings with the administration,
with people in the intelligence service, with people at the CIA, NSA,
and others. We considered legislative language in a number of open
business meetings where Senators from across the political spectrum
could be heard. Then we reported a good bill to the Senate before
Thanksgiving.
The bill we are now considering will permit the Government, while
targeting overseas, to review more Americans' communications with less
court supervision than ever before. I support surveillance of those who
might do us harm, but we also have to protect Americans' liberties.
Attorney General Mukasey said at his nomination hearing that
``protecting civil liberties, and people's confidence that those
liberties are protected, is a part of protecting national security.''
Let me repeat what the new Attorney General said:
Protecting civil liberties, and people's confidence that
those liberties are protected, is a part of protecting
national security.
I agree with him. That is what the Judiciary Committee bill does. I
commend the House of Representatives for passing a bill, the RESTORE
Act, that takes a balanced approach to these issues and allows the
intelligence community great flexibility to conduct surveillance of
overseas targets but also provides oversight and protection for
Americans' civil liberties. The Senate Select Committee on Intelligence
has also worked hard. I know Chairman Rockefeller was as disappointed
as I at the administration's partisan maneuvering just before the
August recess. After being here through six administrations, it has
always been my experience, with Republican or Democratic
administrations at certain points, when you are negotiating a key piece
of legislation with the administration, you have to rely on them to
keep their word and be honest with you, as they have to rely on you to
keep your word and be honest with them. Through six administrations, 34
years, I can never remember a time where an administration was less
truthful or flatly broke their word in the way this one did.
I commended the efforts of Senator Rockefeller and those working with
him. I do so again now. I believe both he and I want surveillance but
we want
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surveillance with oversight and accountability within the law. I also
want to praise our joint members. In the Judiciary Committee we have,
by practice, a certain number of members who serve on both Judiciary
and Intelligence for obvious reasons. The ranking member of Judiciary
and I, of course, have access to a great deal of intelligence whenever
we have requested it, but that is on an ongoing basis.
Senators Feinstein, Feingold, and Whitehouse contributed so much to
the work of the Judiciary Committee. They worked with me to author many
of the additional protections we adopted and reported. They had worked
on the bill in the Intelligence Committee and then worked with us.
These Senators and others on the Judiciary Committee worked hard to
craft amendments that will preserve the basic structure and authority
proposed in the bill reported by the Select Committee on Intelligence,
but then they added those crucial protections for Americans, the part
the Judiciary Committee, because of our oversight of courts, worries
about.
I believe we need to do more than the bill initially reported by the
Senate Select Committee on Intelligence does to protect the rights of
Americans. I know the chairman of that committee joins with me to
support many of the Judiciary Committee's improvements.
Let me cite briefly what they are. The Judiciary bill, for example,
makes clear that the Government cannot claim authority to operate
outside the law outside of FISA--by alluding to other legislative
measures never intended to provide that authority.
I will give you an example of what happened. The House and the Senate
passed an authorization for the use of military force. We did this
right after September 11. It was authorization to go in and capture
Osama bin Laden--the man who engineered 9/11, is still loose, and
taunts us periodically. But what happened? The administration was so
hellbent on getting into Iraq that when they had Osama bin Laden
cornered, they withdrew their forces and let him get away so they could
invade Iraq--a country that had absolutely nothing to do with 9/11. Now
they say that authorization allowed them to wiretap Americans without a
warrant. I have heard some strange, convoluted, cockamamie arguments
before in my life. This one takes the cake.
I introduced a resolution on this in the last Congress when we first
heard this canard. We authorized going after Osama bin Laden, but the
Senate did not authorize--explicitly or implicitly--the warrantless
wiretapping of Americans. By their logic, they could also say we
authorized the warrantless search of the distinguished Presiding
Officer's home or my home. This body did no such thing, but the
administration still is clinging to their phony legal argument.
The Judiciary bill would prevent that dangerous contention with
strong language that reaffirms that the Foreign Intelligence
Surveillance Act is the exclusive means for conducting electronic
surveillance for foreign intelligence purposes.
The Judiciary Committee's amendment would also provide a more
meaningful role for the FISA court to oversee this new surveillance
authority. The FISA court is a critical independent check on Government
excess in the sensitive area of electronic surveillance. The
administration claims that of course the Foreign Intelligence
Surveillance court can look at what they are doing, they just don't
want the court to be able to do anything about it. No. The Judiciary
Committee says the court should be able to look at what they are doing
and should be able to stop them if they are breaking the law. In this
Nation we fought a revolution over 200 years ago to have that right.
With the authority of a majority of the Judiciary Committee members,
I am going to offer a revised version of the Committee's amendment that
makes some changes to address technical issues and also to address some
of the claims the administration has made about our substitute.
For example, in response to concerns raised by the administration in
its Statement of Administration Policy, we have revised the exclusivity
provision to ensure that we are not overextending the scope of FISA. We
have also revised the provision concerning stay of decisions of the
FISA Court pending appeal, the provision clarifying that the bill does
not permit bulk collection of communications into or out of the United
States, and a few other provisions.
I believe these revisions make the Judiciary Committee's product even
stronger, and I urge my colleagues to support it.
Now, in the bill we have a title I, a title II. Title II in the
Intelligence bill talks about retroactive immunity. We do not address
that in the Judiciary Committee's bill, but I do strongly oppose the
bill reported by the Senate Select Committee on Intelligence in that
area. Their bill would grant blanket retroactive immunity to
telecommunications carriers for their warrantless surveillance
activities from 2001 through earlier this year. This surveillance was
contrary to FISA and violated the privacy rights of Americans.
The administration violated FISA for more than 5 years. They got
caught. If they had not gotten caught, they probably would still be
doing it. But when the public found out about the President's illegal
surveillance of Americans, the administration and the telephone
companies were sued by citizens who believe their privacy and their
rights were violated.
Now the administration is trying to get this Congress to terminate
those lawsuits. It is not that they are worried about the telephone
companies. They are not as concerned about the telephone companies as
they are about insulating themselves from accountability.
This is an administration that does not want us to ask them anything,
and they do not want to tell us anything. Interesting policy. If you do
ask them, they are not going to tell you. If they do tell you, it
appears oftentimes they do not tell you the truth.
Now, the rule of law is fundamental to our system. It has helped us
maintain the greatest democracy we have ever seen in our lifetimes. But
in conducting warrantless surveillance, the administration showed
flagrant disrespect for the rule of law. It is like the King of France,
who once said: ``L'Etat, c'est moi.'' ``The state is me.'' They are
saying: What we want to do is what we will do. And if we want to do it,
the law is irrelevant.
I cannot accept that.
The administration relied on legal opinions that were prepared in
secret and shown only to a tiny group of like-minded officials who made
sure they got the advice they wanted--advice that, when it saw the
light of day, people said: How could anybody possibly write a legal
memorandum like that?
Jack Goldsmith, who came in briefly to head the Justice Department's
Office of Legal Counsel, described the program as a ``legal mess.'' He
is a conservative Republican. He looked at this and said: It is a legal
mess. Now, the administration does not want a court to get a chance to
look at this legal mess. Retroactive immunity would assure that they
get their wish and that nobody could ask how and why they broke the
law.
Frankly, I do not believe anybody is above the law. I do not believe
a President is, I do not believe a Senator is, I do not believe anybody
is.
I do not believe that Congress can or should seek to take rights and
legal claims from those already harmed. I support the efforts of
Senators Specter and Whitehouse to use the legal concept of
substitution to place the Government in the shoes of the private
defendants who acted at its behest and to let it assume full
responsibility for the illegal conduct.
Although my preference, of course, is to allow the lawsuits to go
forward as they are, I believe the substitution alternative is
effective. It is far preferable to retroactive immunity, and it allows
this country to find out what happened.
Keep in mind why we have FISA. Congress passed that law only after we
discovered the abuses of J. Edgar Hoover's FBI. Through the COINTEL
Program, Hoover spied on Americans who objected and spoke out against
the war in Vietnam--which pretty well involved 100 percent of the
Vermont delegation in Congress.
It is like the Department of Defense today that is going around
videotaping Quakers protesting the war. Quakers
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always protest the war. But this administration seems to think, if you
disagree with them, somehow you are an enemy of the country and they
can justify spying on you. That is why we put these laws in place. Is
memory so short around here? Is memory so short or are we so frightened
by 9/11 that we are willing to throw away everything this country
fought for and everything that has made this country survive as long as
it has?
We were told this building was targeted by terrorists. I proudly come
into this building every day to go to work. It is the highlight of my
life, other than my wife and my family. But I come in here because I
believe 100 Members of the Senate can be the conscience of the Nation.
We can protect Americans' rights, we can protect those things that our
forefathers fought a revolution for, that we fought a civil war to
protect, that we fought two World Wars to protect. Now we are going to
throw it away because of a group of terrorists? This is ``Alice in
Wonderland.''
So as we debate these issues, let's keep in mind the reason we have
FISA in the first place. As I said, back in the 1970s we learned the
painful lesson that powerful surveillance tools, without adequate
oversight or the checks and balances of judicial review, lead to abuses
of the rights of the American people.
So I hope this debate will provide us with an opportunity to show the
American people what we stand for. We can show them that we will do all
we can to secure their future, but at the same time protect their
cherished rights and freedoms. Those are the rights and freedoms that
protected past generations and allowed us to have a future. If we do
not protect them, what will our children and grandchildren have?
It is incumbent upon us to stand up for this country. When you stand
up for this country, it does not mean jingoism, it does not mean
sloganeering. It means protecting what is best for this country. If we
do that, the terrorists will not win. The United States of America
wins. The people who rely on us around the world will win. Our example
will be one they will want to follow.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The FISA Bill
Mrs. FEINSTEIN. Mr. President, I know that both chairmen, Senator
Leahy of Judiciary and Senator Rockefeller of Intelligence, are coming
to the floor to speak on the FISA bill. I wish to take this
opportunity, as a member of both those committees, to speak about two
amendments I will offer when the time is appropriate. This is in
morning business and, therefore, I cannot offer them at this time.
The first amendment will deal with a new question, and that question
is: court review of telecom immunity. Let me explain what that means.
First, this amendment is submitted on behalf of Senators Bill Nelson,
Cardin, and myself. Senator Nelson is on the Intelligence Committee.
Senator Cardin is on the Judiciary Committee. I have also worked with
Senator Whitehouse on this, though I believe he is going in a slightly
different direction.
As Members know, the bill before us provides full retroactive
immunity for electronic service providers--that is the legal language--
that are alleged to have provided assistance as part of the Terrorist
Surveillance Program. The amendment I am offering creates a judicial
review by putting forth the issue of whether immunity should be granted
before the FISA Court. There would be no immunity for any individual,
private or public official--that is in the underlying bill--or any
other company other than electronic service providers.
So the immunity provision in the Intelligence bill only relates to
those providers of electronic surveillance--no one else and no other
company. I hear talk this would apply to Blackwater. It does not. This
is strictly for electronic surveillance.
The FISA Court has the most experience with FISA practice and
surveillance law. It has an unblemished record for protecting national
security secrets. It has 11 judges. They sit 24/7. It has an appellate
branch, and it is knowledgeable and skilled in intelligence matters.
Under the amendment, there would be a narrowly tailored three-part
review. First, the FISA Court would determine whether a
telecommunications company provided the assistance alleged in the cases
against them. If not, those cases are dismissed.
Second, if assistance was provided, the court would determine whether
the letter sent by the Government to the telecommunications company met
the requirements of 18 USC 2511. That is part of the FISA law. If they
did, the companies would be shielded from lawsuits.
Let me tell you quickly what that law says. That law, in
2511(2)(a)(ii)(A) and (ii)(B), allows for a certification in writing by
a person specified in section 2518(7) of this title--which means the
Attorney General, Deputy Attorney General, Associate Attorney General,
or by the principal prosecuting attorney of any State or subdivision
thereof acting pursuant to a statute of that State who reasonably
determines that a series of conditions are met: that an emergency
situation exists, immediate danger of death or physical injury to any
person, conspiratorial activity threatening the national security
interest or conspiratorial activities characteristic of organized
crime.
All those provisions, in one way or another, did exist. So a
certification in writing under section 2511 must be by one of the
people I enumerated, or by the Attorney General of the United States,
and say that no warrant or court order is required by law, that all
statutory requirements have been met, and that the specified assistance
is required. Then there are some provisions setting forth the period of
time during which the provision of the information, facilities,
technical assistance is authorized, et cetera. That is the law.
So the question is: Were the certifications provided adequate under
this law that I have read? If they were, the companies would be
shielded from lawsuits.
The third part is the hardest. In any case where the defendant
company did provide assistance but did not have a certification that
complied with the sections I have read in 2511, the FISA Court would
assess whether the company acted in good faith, as is the standard
under common law. The FISA Court would determine whether the company
had an objectively reasonable belief that compliance with the
Government's written request or directives for assistance were lawful.
In the underlying bill, all the cases against the phone companies
will be dismissed as long as the Attorney General can tell the court
that the Federal Government assured the companies that the assistance
it was seeking was legally permitted. That is the way it works in the
underlying bill. Under this formulation, there is no court review of
whether the assistance was, in fact, legal and adequate under the law
or whether the companies had an objectively reasonable belief they were
legal. This is a major shortcoming of any legislative or executive
grant of immunity.
I thought this when I voted for the immunity provision in
Intelligence. I had hoped it would be revised in the Judiciary
Committee. I hadn't come upon this solution until I discussed it at
length with Senator Whitehouse and also with several professors of law
and also with a Member of the House of Representatives. Then I thought,
I wonder if this is a way to handle the immunity question that is fair
and objective and handled by a court that is trained and deals with
these matters on a continuing basis. I believe it is.
There are many Senators who believe the immunity provision should be
taken out wholesale and that the current court case should continue.
That is why I have introduced this amendment with Senators Nelson and
Cardin, which puts before the Senate a court review option. This
amendment would allow phone companies to receive the immunity they are
seeking, but only if the independent review by
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the FISA Court determines whether the assistance that was provided is
lawful on its face or the companies had a good-faith, objectively
reasonable belief that it was in fact lawful.
The arguments run hot and heavy on both sides of the immunity
question. They may well prevent the successful passage of a bill by
both Houses. Here is some history, though.
Shortly after September 11, 2001, the Government reached out to
telecommunications companies to request their assistance in what has
become known as the terrorist surveillance program. Within 5 weeks of
9/11, letters were sent from senior Government officials to these
companies that put a governmental directive by the executive branch,
and these letters were sent every 30 to 45 days to the telecoms, from
October of 2001 to January of 2007, when the program was, in fact, put
under FISA Court orders.
Only a very small number of people in these companies had the
security clearances to be allowed to read and evaluate these letters or
directives. And then even they could only discuss the legal
ramifications internally. They could not go out and get other opinions
and vet it. That is a fact.
We also know that at the time the requests and directives were made,
there was an ongoing acute national threat. The administration was
warning that more attacks might be imminent, and we now know there was
a plot to launch a second wave of attacks against the west coast. In
such an environment, I believe, and I think most of us believe, the
private sector should help the Government when it is legal to do so. In
fact, we should want the private sector to do all it can to help
protect our Nation.
In addition, there has been a longstanding principle in common law
that if the Government asks a private party for help and makes such
assurances the help is legal, the person or company should be allowed
to provide assistance without fear of being held liable.
One would think this should especially be true in the case of
protecting our Nation's security.
However, this is not a situation that had not been contemplated or
prepared for. Congress passed FISA and included language in that
statute to address such situations regarding how and when the Federal
Government may seek assistance from private companies when conducting
electronic surveillance, where there is no court warrant. Those are the
sections I have read to you. In fact, the law is very clear on this and
under what circumstances a telecommunications company may provide such
information and services to the Government, again, as I have indicated.
Assistance can always be provided when there is a court warrant. In
this case, unfortunately, the administration did not even attempt to
get a FISA Court warrant. It essentially dismissed FISA out of hand as
a remedy. That is most unfortunate. The question comes, should the
telecoms be blamed for that? I think that is something we need to
grapple with.
The administration could have gone to the FISA Court. It chose under
its article II power or its misinterpretation of the AUMF that it would
not do that. Is that the responsibility of the telecoms?
As I have said, under United States Code, title 18, section 2511, the
sections I have read, assistance may be provided without warrant if the
Government provides a certification in writing that ``no warrant or
court order is required by law, that all statutory requirements have
been met, and that the specified assistance is required.'' That is the
law.
With that said, I have read the letters that were sent to the telecom
companies every 30 to 45 days for several years requesting assistance
and providing legal assurances. No one can say now with legal certainty
that the certification requirements of section 2511 were or were not
met. I believe this is a question that should be addressed by a Federal
court, and I further believe that the Foreign Intelligence Surveillance
Court is the court to do it.
The administration has had its own view that article II of the
Constitution provided the President with the authority to conduct
international electronic surveillance outside the law, as long as it
complied with the Fourth Amendment. To what extent the phone companies
relied on this legal theory I do not know, nor does anyone else at this
time, I believe.
But the companies have a reasonable argument. They relied on written
assurances in which the Attorney General, the top law enforcement
officer of the country, said their assistance was lawful. They were not
able to do due diligence because of security limitations. We have no
way of knowing the full content of their deliberations regarding
article II authority of the President, despite testimony they have
given to us on the Intelligence and Judiciary Committees.
In addition, these companies face serious, potentially
extraordinarily costly, litigation and are unable at the present time
to defend themselves in court or in public because of the Government's
use of the state secrets defense. This places the companies in a
fundamentally unfair place. Individuals and groups have made
allegations to which the companies cannot answer, nor can they respond
to what they believe are misstatements of fact and untruths.
I asked the companies, when somebody opposed to their position came
to testify before a committee of the other body: Why don't you testify
and respond? They said: Because our hands are tied; we cannot.
So today we are in a situation that creates a difficult and
consequential problem for Congress to address. The way Senator Nelson
of Florida and Senator Cardin and I see this is that the question of
whether telecommunications companies should receive immunity hinges on
whether the letters the Government sent to these companies meet the
requirements of 18 U.S.C. 2511. If not, did the companies have a good-
faith reason to believe there was a lawful reason to comply? In other
words, we should not grant immunity if companies were willingly and
knowingly violating the law.
I believe the best solution is to allow an independent court, skilled
in intelligence matters, to review the applicable law and determine
whether the requirements of the law or the common law principle were,
in fact, met. If they were, the companies would receive immunity. If
not, they would not.
I wish to briefly speak on the second amendment which I will broach
at the appropriate time, and that is the question of exclusivity. This
amendment is cosponsored by both chairmen, Senators Rockefeller and
Leahy, Senators Nelson, Whitehouse, Wyden, Hagel, Menendez, and Snowe.
I will describe it briefly.
We add language to reinforce the existing FISA exclusivity language
in Title 18 by making that language part of the FISA bill which is
codified in Title 50. The second provision answers the so-called AUMF,
the authorization to use military force, resolution loophole. The
administration has argued that the authorization of military force
against al-Qaida and the Taliban implicitly authorized warrantless
electronic surveillance. My amendment states that only an express
statutory authorization for electronic surveillance in future
legislation shall constitute an additional authority outside of FISA.
This makes clear that only specific future law that provides an
exception to FISA can supersede FISA.
Third, the amendment makes a similar change to the penalty section of
FISA. Currently, FISA says it is a criminal penalty to conduct
electronic surveillance except as authorized by statute. This amendment
replaces the general language with a prohibition on any electronic
surveillance except as authorized by FISA by the corresponding parts of
title 18 that govern domestic criminal wiretapping or any future
express statutory authorization for surveillance.
And finally, the amendment requires more clarity in a certification
that the Government provides to a telecom company when it requests
assistance for surveillance and there is no court order.
Remember, on the question of immunity, we have existing law. The law
I read earlier is vague and it is subject to interpretation. The
question is whether we do the interpretation or whether a proper
authority does the interpretation which, of course, is a court of law,
namely, in this case, the FISA Court.
Currently, certifications must say under 18 U.S.C. 2511 that all
statutory
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requirements for assistance must be met. The telecom official receiving
that certification is not given any specifics on what those statutory
requirements are, so the company cannot conduct its own legal review.
This amendment would require that if the assistance is based on
statutory authorization, the certification must specify what provision
in law provides that authority and that the conditions of that
provision have been met.
I believe our amendment will strengthen the exclusivity of FISA, and
I believe it is absolutely critical. Without this, we leave the door
open for future violations of FISA.
When FISA was first enacted in 1978, there was a big debate between
the Congress and the executive branch over whether the President was
bound by law. We have had a repeat of that debate over the past 2 years
since learning of the existence of the terrorist surveillance program.
But the end result of the debate in the 1970s was clear. FISA was
established as the exclusive means by which the Government may conduct
electronic surveillance for foreign intelligence purposes, period. FISA
was meant to be exclusive, and section 2511(f) of title 18 of the
United States Code states that it is, in fact, the exclusive authority
for domestic criminal wiretapping and that ``the Foreign Intelligence
Surveillance Act of 1978 shall be the exclusive means by which
electronic surveillance, as defined in section 101 of such act, and the
interception of domestic wire, oral, and electronic communications may
be conducted for foreign intelligence purposes.''
The legislative history is clear--ignored, but clear. In stating that
``FISA would prohibit the President, notwithstanding any inherent
powers, from violating the terms of that legislation,'' the 1978 report
language was a clear statement of the intent of the Congress at that
time, just as this amendment is now.
Congress also wrote in 1978 that in terms of authority for conducting
surveillance, ``FISA does not simply leave Presidential powers where it
finds them. To the contrary. The bill substitutes a clear legislative
authorization pursuant to statutory, not constitutional, standards.''
President Carter signed the 1978 bill. His signing statement said
this:
This bill requires for the first time a prior judicial
warrant for all
In italics--
all electronic surveillance for foreign intelligence or
counterintelligence purposes in the United States in which
communications of U.S. persons might be intercepted.
So it is crystal clear on its face that FISA was the only legal
authority under which the President could proceed when he authorized
the ``Terrorist Surveillance Program'' after September 11. He chose not
to. And this is where the issue becomes joined, I believe, one day
before the highest Court of the land: whether the President's Article
II power essentially still supersedes these clear statements of
legislative intent and clear drafting of law over many decades.
To make matters worse, the administration claimed and still does
claim that the resolution to authorize the use of force against al-
Qaida and the Taliban provided authority to institute the Terrorist
Surveillance Program. It does not.
I do not know one Member of Congress who believes they voted for the
TSP when they voted to authorize the use of force. It was never
contemplated, and I was present at many of those discussions, in
private and in public. It was never considered.
In fact, FISA allows for 15 days of warrantless surveillance
following a declaration of war. So Congress in 1978 had spoken on the
issue of wartime authorities, and it did not leave open the possibility
of open-ended warrantless surveillance.
Then the Department of Justice came to the Congress in September of
2001 with the PATRIOT Act. The legislation included numerous changes
needed to FISA to wage this new war, but the administration did not
request changes that would allow the TSP, the Terrorist Surveillance
Program, to function lawfully. Nor did the administration express the
limitations on FISA surveillance that the TSP was created to overcome.
In effect, we have a claim from this administration, which has never
been recanted, that the President has the authority to conduct
surveillance outside of FISA. We are spending enormous time and effort
to rewrite FISA, but there is no guarantee that the President will not
again authorize some new surveillance program outside the law. That is
why those of us who put this amendment together have taken so much time
to write strong exclusivity language right into this law.
When I have asked the Director of National Intelligence about this,
he has said that with the new FISA authorities in this bill, the
intelligence community wouldn't need to go outside of FISA. I would
like to find comfort in this response, but I don't, and that is why I
am offering this exclusivity amendment.
The President does not have the right to collect the content of
Americans' communications without obeying the governing law, and that
law is FISA.
I recognize the administration disagrees with me on this point. The
White House believes the President's Article II authority allows him to
conduct intelligence surveillance regardless of what Congress
legislates. I disagree.
However, we are not going to resolve that question. As I said,
ultimately it is for the Supreme Court to decide. But here now we must
make the strongest case that the only authority for electronic
surveillance is FISA, and we must again be as clear as possible exactly
when FISA authorizes such surveillance.
That is our function under article I of the Constitution.
Let me say, however, despite the fundamental differences of views
over separation of powers, this amendment has been carefully negotiated
with officials at the Department of Justice, the Office of the Director
of National Intelligence, and the National Security Agency. The
executive branch has not raised operational problems or concerns with
this language.
This exclusivity amendment will not affect ongoing or planned
surveillance operations. Of course, I should also say clearly that the
executive branch does not support the language. They do not want FISA
to be the exclusive authority. But, legislatively, that has been the
intention of this Congress since 1978.
I have tried to perform my due diligence on this whole terrorist
surveillance program and the FISA issue since the news of the
warrantless surveillance broke in December of 2005. I have become
convinced that without strong exclusivity language such as provided in
this amendment, another Congress in the future will be faced with
exactly the same thing we are now.
I will repeat what I said in December: I cannot support a bill that
does not clearly reestablish the primacy of FISA. We took the first
step with very modest language in the Intelligence Committee. The
Judiciary Committee passed very strong language, but unfortunately it
has not been added to the bill before us. Both committee chairmen have
cosponsored this amendment, as well as the others I have listed. The
Department of Justice and the intelligence community have thoroughly
reviewed the amendment. There is no operational impact. I hope we end
the question once and for all whether the President can go around the
law.
At the appropriate time, I will move this amendment, and I hope it
will be accepted by this body, as well as the court review of the
immunity amendment.
Mrs. FEINSTEIN. Madam President, I yield the floor, and I suggest the
absence of a quorum.
The PRESIDING OFFICER (Mrs. McCASKILL). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
[...]
[Congressional Record: January 23, 2008 (Senate)]
[Page S179-S194]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr23ja08-142]
FISA AMENDMENTS ACT OF 2007
Mr. REID. Madam President, I call for the regular order.
The PRESIDING OFFICER. The clerk will report the pending business by
title.
The assistant legislative clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
The Senate proceeded to consider the bill, which had been reported
from the Select Committee on Intelligence and the Committee on the
Judiciary, with an amendment to strike all after the enacting clause
and insert in lieu thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of
2007'' or the ``FISA Amendments Act of 2007''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Targeting the communications of certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of certain communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Review of previous actions.
Sec. 111. Technical and conforming amendments.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. TARGETING THE COMMUNICATIONS OF CERTAIN PERSONS
OUTSIDE THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``SEC. 701. DEFINITIONS.
``In this title:
``(1) In general.--The terms `agent of a foreign power',
`Attorney General', `contents', `electronic surveillance',
`foreign intelligence information', `foreign power',
`minimization procedures', `person', `United States', and
`United States person' shall have the meanings given such
terms in section 101.
``(2) Additional definitions.--
``(A) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(i) the Select Committee on Intelligence of the Senate;
and
``(ii) the Permanent Select Committee on Intelligence of
the House of Representatives.
``(B) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(C) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence
Surveillance Court of Review' and `Court of Review' mean the
court established by section 103(b).
``(D) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(i) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(ii) a provider of electronic communications service, as
that term is defined in section 2510 of title 18, United
States Code;
``(iii) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(iv) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored; or
``(v) an officer, employee, or agent of an entity described
in clause (i), (ii), (iii), or (iv).
``(E) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``SEC. 702. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES.
``(a) Authorization.--Notwithstanding any other provision
of law, including title I, the Attorney General and the
Director of National Intelligence may authorize jointly, for
periods of up to 1 year, the targeting of persons reasonably
believed to be located outside the United States to acquire
foreign intelligence information.
``(b) Limitations.--An acquisition authorized under
subsection (a)--
``(1) may not intentionally target any person known at the
time of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably
believed to be outside the United States if a significant
purpose of such acquisition is to acquire the communications
of a specific person reasonably believed to be located in
[[Page S180]]
the United States, except in accordance with title I; and
``(3) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) United States Persons Located Outside the United
States.--
``(1) Acquisition inside the united states of united states
persons outside the united states.--An acquisition authorized
under subsection (a) that constitutes electronic surveillance
and occurs inside the United States may not intentionally
target a United States person reasonably believed to be
outside the United States, except in accordance with the
procedures under title I.
``(2) Acquisition outside the united states of united
states persons outside the united states.--
``(A) In general.--An acquisition by an electronic,
mechanical, or other surveillance device outside the United
States may not intentionally target a United States person
reasonably believed to be outside the United States to
acquire the contents of a wire or radio communication sent by
or intended to be received by that United States person under
circumstances in which a person has reasonable expectation of
privacy and a warrant would be required for law enforcement
purposes if the technique were used inside the United States
unless--
``(i) the Foreign Intelligence Surveillance Court has
entered an order approving electronic surveillance of that
United States person under section 105, or in the case of an
emergency situation, electronic surveillance against the
target is being conducted in a manner consistent with title
I; or
``(ii)(I) the Foreign Intelligence Surveillance Court has
entered a order under subparagraph (B) that there is probable
cause to believe that the United States person is a foreign
power or an agent of a foreign power;
``(II) the Attorney General has established minimization
procedures for that acquisition that meet the definition of
minimization procedures under section 101(h); and
``(III) the dissemination provisions of the minimization
procedures described in subclause (II) have been approved
under subparagraph (C).
``(B) Probable cause determination; review.--
``(i) In general.--The Attorney General may submit to the
Foreign Intelligence Surveillance Court the determination of
the Attorney General, together with any supporting
affidavits, that a United States person who is outside the
United States is a foreign power or an agent of a foreign
power.
``(ii) Review.--The Court shall review, any probable cause
determination submitted by the Attorney General under this
subparagraph. The review under this clause shall be limited
to whether, on the basis of the facts submitted by the
Attorney General, there is probable cause to believe that the
United States person who is outside the United States is a
foreign power or an agent of a foreign power.
``(iii) Order.--If the Court, after conducting a review
under clause (ii), determines that there is probable cause to
believe that the United States person is a foreign power or
an agent of a foreign power, the court shall issue an order
approving the acquisition. An order under this clause shall
be effective for 90 days, and may be renewed for additional
90-day periods.
``(iv) No probable cause.--If the Court, after conducting a
review under clause (ii), determines that there is not
probable cause to believe that a United States person is a
foreign power or an agent of a foreign power, it shall enter
an order so stating and provide a written statement for the
record of the reasons for such determination. The Government
may appeal an order under this clause to the Foreign
Intelligence Surveillance Court of Review.
``(C) Review of minimization procedures.--
``(i) In general.--The Foreign Intelligence Surveillance
Court shall review the minimization procedures applicable to
dissemination of information obtained through an acquisition
authorized under subparagraph (A) to assess whether such
procedures meet the definition of minimization procedures
under section 101(h) with respect to dissemination.
``(ii) Review.--The Court shall issue an order approving
the procedures applicable to dissemination as submitted or as
modified to comply with section 101(h).
``(iii) Procedures do not meet definition.--If the Court
determines that the procedures applicable to dissemination of
information obtained through an acquisition authorized under
subparagraph (A) do not meet the definition of minimization
procedures under section 101(h) with respect to
dissemination, it shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause to the Foreign Intelligence Surveillance Court of
Review.
``(D) Emergency procedures.--
``(i) In general.--Notwithstanding any other provision of
this paragraph, the Attorney General may authorize the
emergency employment of an acquisition under subparagraph (A)
if the Attorney General--
``(I) reasonably determines that--
``(aa) an emergency situation exists with respect to the
employment of an acquisition under subparagraph (A) before a
determination of probable cause can with due diligence be
obtained; and
``(bb) the factual basis for issuance of a determination
under subparagraph (B) to approve such an acquisition exists;
``(II) informs a judge of the Foreign Intelligence
Surveillance Court at the time of such authorization that the
decision has been made to employ an emergency acquisition;
``(III) submits a request in accordance with subparagraph
(B) to the judge notified under subclause (II) as soon as
practicable, but later than 72 hours after the Attorney
General authorizes such an acquisition; and
``(IV) requires that minimization procedures meeting the
definition of minimization procedures under section 101(h) be
followed.
``(ii) Termination.--In the absence of a judicial
determination finding probable cause to believe that the
United States person that is the subject of an emergency
employment of an acquisition under clause (i) is a foreign
power or an agent of a foreign power, the emergency
employment of an acquisition under clause (i) shall terminate
when the information sought is obtained, when the request for
a determination is denied, or after the expiration of 72
hours from the time of authorization by the Attorney General,
whichever is earliest.
``(iii) Use of information.--If the Court determines that
there is not probable cause to believe that a United States
is a foreign power or an agent of a foreign power in response
to a request for a determination under clause (i)(III), or in
any other case where the emergency employment of an
acquisition under this subparagraph is terminated and no
determination finding probable cause is issued, no
information obtained or evidence derived from such
acquisition shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such acquisition shall subsequently be used or
disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(3) Procedures.--
``(A) Submittal to foreign intelligence surveillance
court.--Not later than 30 days after the date of the
enactment of the FISA Amendments Act of 2007, the Attorney
General shall submit to the Foreign Intelligence Surveillance
Court the procedures to be used in determining whether a
target reasonably believed to be outside the United States is
a United States person.
``(B) Review by foreign intelligence surveillance court.--
The Foreign Intelligence Surveillance Court shall review, the
procedures submitted under subparagraph (A), and shall
approve those procedures if they are reasonably designed to
determine whether a target reasonably believed to be outside
the United States is a United States person. If the Court
concludes otherwise, the Court shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal
such an order to the Foreign Intelligence Surveillance Court
of Review.
``(C) Use in targeting.--Any targeting of persons
reasonably believed to be located outside the United States
shall use the procedures approved by the Foreign Intelligence
Surveillance Court under subparagraph (B). Any new or amended
procedures may be used with respect to the targeting of
persons reasonably believed to be located outside the United
States upon approval of the new or amended procedures by the
Court, which shall review such procedures under paragraph
(B).
``(4) Transition procedures concerning the targeting of
united states persons overseas.--Any authorization in effect
on the date of enactment of the FISA Amendments Act of 2007
under section 2.5 of Executive Order 12333 to intentionally
target a United States person reasonably believed to be
located outside the United States, to acquire the contents of
a wire or radio communication sent by or intended to be
received by that United States person, shall remain in
effect, and shall constitute a sufficient basis for
conducting such an acquisition of a United States person
located outside the United States, until that authorization
expires or 90 days after the date of enactment of the FISA
Amendments Act of 2007, whichever is earlier.
``(d) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (g);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (e) and (f).
``(e) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States, and that an application is
filed under title I, if otherwise required, when a
significant purpose of an acquisition authorized under
subsection (a) is to acquire the communications of a specific
person reasonably believed to be located in the United
States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(f) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt, consistent with the requirements of section
101(h), minimization procedures for acquisitions authorized
under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (i).
``(g) Certification.--
[[Page S181]]
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States and that such procedures have been
approved by, or will promptly be submitted for approval by,
the Foreign Intelligence Surveillance Court pursuant to
subsection (i);
``(ii) the procedures referred to in clause (i) are
consistent with the requirements of the fourth amendment to
the Constitution of the United States and do not permit the
intentional targeting of any person who is known at the time
of acquisition to be located in the United States;
``(iii) the procedures referred to in clause (i) require
that an application is filed under title I, if otherwise
required, when a significant purpose of an acquisition
authorized under subsection (a) is to acquire the
communications of a specific person reasonably believed to be
located in the United States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h); and
``(II) have been approved by, or will promptly be submitted
for approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (i);
``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition is limited to communications to
which at least 1 party is a specific individual target who is
reasonably believed to be located outside of the United
States, and a significant purpose of the acquisition of the
communications of any target is to obtain foreign
intelligence information; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall immediately affirm such directive, and order the
recipient to comply with the directive. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(D) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
shall issue an order requiring the electronic communication
service provider to comply with the directive if the judge
finds that the directive was issued in accordance with
paragraph (1), meets the requirements of this section, and is
otherwise lawful. The judge shall provide a written statement
for the record of the reasons for a determination under this
paragraph.
``(D) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of the decision issued pursuant to
paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review shall have jurisdiction
to consider such a petition and shall provide a written
statement for the record of the reasons for a decision under
this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(i) Judicial Review.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (d) or targeting and minimization procedures
adopted pursuant to subsections (e) and (f).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (g) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (e) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States, and are reasonably designed to
ensure that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a specific person reasonably believed to be
located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (f) to assess
whether such procedures meet the definition of minimization
procedures under section 101(h).
``(5) Orders.--
``(A) Approval.--If the Court finds that a certification
required by subsection (g) contains all of the required
elements and that the targeting and minimization procedures
required by subsections (e) and (f) are consistent with the
requirements of those subsections and with the fourth
amendment to the Constitution of the United States, the Court
shall enter an order approving the continued use of the
procedures for the acquisition authorized under subsection
(a).
``(B) Correction of deficiencies.--
``(i) In general.--If the Court finds that a certification
required by subsection (g) does not contain all of the
required elements, or that the procedures required by
subsections (e) and (f) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the Court's order--
``(I) correct any deficiency identified by the Court's
order not later than 30 days after the date the Court issues
the order; or
``(II) cease the acquisition authorized under subsection
(a).
[[Page S182]]
``(ii) Limitation on use of information.--
``(I) In general.--Except as provided in subclause (II), no
information obtained or evidence derived from an acquisition
under clause (i)(I) shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(II) Exception.--If the Government corrects any
deficiency identified by the Court's order under clause (i),
the Court may permit the use or disclosure of information
acquired before the date of the correction pursuant to such
minimization procedures as the Court shall establish for
purposes of this clause.
``(C) Requirement for written statement.--In support of its
orders under this subsection, the Court shall provide,
simultaneously with the orders, for the record a written
statement of its reasons.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government may
appeal any order under this section to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such order. For any decision
affirming, reversing, or modifying an order of the Foreign
Intelligence Surveillance Court, the Court of Review shall
provide for the record a written statement of its reasons.
``(B) Stay pending appeal.--The Government may move for a
stay of any order of the Foreign Intelligence Surveillance
Court under paragraph (5)(B)(i) pending review by the Court
en banc or pending appeal to the Foreign Intelligence
Surveillance Court of Review.
``(C) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under subparagraph
(A). The record for such review shall be transmitted under
seal to the Supreme Court of the United States, which shall
have jurisdiction to review such decision.
``(7) Compliance review.--The Court may review and assess
compliance with the minimization procedures submitted to the
Court pursuant to subsections (c) and (f) by reviewing the
semiannual assessments submitted by the Attorney General and
the Director of National Intelligence pursuant to subsection
(l)(1) with respect to compliance with minimization
procedures. In conducting a review under this paragraph, the
Court may, to the extent necessary, require the Government to
provide additional information regarding the acquisition,
retention, or dissemination of information concerning United
States persons during the course of an acquisition authorized
under subsection (a).
``(8) Remedial authority.--The Foreign Intelligence
Surveillance Court shall have authority to fashion remedies
as necessary to enforce--
``(A) any order issued under this section; and
``(B) compliance with any such order.
``(j) Judicial Proceedings.--Judicial proceedings under
this section shall be conducted as expeditiously as possible.
``(k) Maintenance of Records.--
``(1) Standards.--A record of a proceeding under this
section, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures adopted by the Chief Justice of the United
States, in consultation with the Attorney General and the
Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--A directive made or an order
granted under this section shall be retained for a period of
not less than 10 years from the date on which such directive
or such order is made.
``(l) Oversight.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the targeting and
minimization procedures required by subsections (c), (e), and
(f) and shall submit each such assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) the congressional intelligence committees.
``(2) Agency assessment.--The Inspectors General of the
Department of Justice and of any element of the intelligence
community authorized to acquire foreign intelligence
information under subsection (a)--
``(A) are authorized to review the compliance of their
agency or element with the targeting and minimization
procedures required by subsections (c), (e), and (f);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United
States person identity and the number of United States person
identities subsequently disseminated by the element concerned
in response to requests for identities that were not referred
to by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that were
later determined to be located in the United States and the
number of persons located in the United States whose
communications were reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) the congressional intelligence committees.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of an element of
the intelligence community conducting an acquisition
authorized under subsection (a) shall direct the element to
conduct an annual review to determine whether there is reason
to believe that foreign intelligence information has been or
will be obtained from the acquisition. The annual review
shall provide, with respect to such acquisitions authorized
under subsection (a)--
``(i) an accounting of the number of disseminated
intelligence reports containing a reference to a United
States person identity;
``(ii) an accounting of the number of United States person
identities subsequently disseminated by that element in
response to requests for identities that were not referred to
by name or title in the original reporting; and
``(iii) the number of targets that were later determined to
be located in the United States and the number of persons
located in the United States whose communications were
reviewed.
``(B) Use of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall use each such review to evaluate the
adequacy of the minimization procedures utilized by such
element or the application of the minimization procedures to
a particular acquisition authorized under subsection (a).
``(C) Provision of review to foreign intelligence
surveillance court.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall provide such review to the Foreign
Intelligence Surveillance Court.
``(4) Reports to congress.--
``(A) Semiannual report.--Not less frequently than once
every 6 months, the Attorney General shall fully inform, in a
manner consistent with national security, the congressional
intelligence committees, the Committee on the Judiciary of
the Senate, and the Committee on the Judiciary of the House
of Representatives, concerning the implementation of this
Act.
``(B) Content.--Each report made under subparagraph (A)
shall include--
``(i) any certifications made under subsection (g) during
the reporting period;
``(ii) any directives issued under subsection (h) during
the reporting period;
``(iii) the judicial review during the reporting period of
any such certifications and targeting and minimization
procedures utilized with respect to such acquisition,
including a copy of any order or pleading in connection with
such review that contains a significant legal interpretation
of the provisions of this Act;
``(iv) any actions taken to challenge or enforce a
directive under paragraphs (4) or (5) of subsections (h);
``(v) any compliance reviews conducted by the Department of
Justice or the Office of the Director of National
Intelligence of acquisitions authorized under subsection (a);
``(vi) a description of any incidents of noncompliance with
a directive issued by the Attorney General and the Director
of National Intelligence under subsection (h), including--
``(I) incidents of noncompliance by an element of the
intelligence community with procedures adopted pursuant to
subsections (c), (e), and (f); and
``(II) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under subsection (h);
``(vii) any procedures implementing this section; and
``(viii) any annual review conducted pursuant to paragraph
(3).
``SEC. 703. USE OF INFORMATION ACQUIRED UNDER SECTION 702.
``Information acquired from an acquisition conducted under
section 702 shall be deemed to be information acquired from
an electronic surveillance pursuant to title I for purposes
of section 106, except for the purposes of subsection (j) of
such section.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``Sec. 701. Definitions.
``Sec. 702. Procedures for acquiring the communications of certain
persons outside the United States.
``Sec. 703. Use of information acquired under section 702.''.
(c) Sunset.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a)(2) and (b) shall cease to
have effect on December 31, 2011.
(2) Continuing applicability.--Section 702(h)(3) of the
Foreign Intelligence Surveillance Act of 1978 (as amended by
subsection (a)) shall remain in effect with respect to any
directive issued pursuant to section 702(h) of that Act (as
so amended) during the period such directive was in effect.
The use of information acquired by an acquisition conducted
under section 702 of that Act (as so amended) shall continue
to be governed by the provisions of section 703 of that Act
(as so amended).
[[Page S183]]
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND
INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED
``Sec. 112. (a) This Act shall be the exclusive means for
targeting United States persons for the purpose of acquiring
their communications or communications information for
foreign intelligence purposes, whether such persons are
inside the United States or outside the United States, except
in cases where specific statutory authorization exists to
obtain communications information without an order under this
Act.
``(b) Chapters 119 and 121 of title 18, United States Code,
and this Act shall be the exclusive means by which electronic
surveillance and the interception of domestic wire, oral, or
electronic communications may be conducted.
``(c) Subsections (a) and (b) shall apply unless specific
statutory authorization for electronic surveillance, other
than as an amendment to this Act, is enacted. Such specific
statutory authorization shall be the only exception to
subsection (a) and (b).''.
(b) Conforming Amendments.--
(1) In general.--Section 2511(2)(a) of title 18, United
States Code, is amended by adding at the end the following:
``(iii) A certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information shall
identify the specific provision of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) that
provides an exception from providing a court order, and shall
certify that the statutory requirements of such provision
have been met.''.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by adding after the item
relating to section 111, the following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.''.
(c) Offense.--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 in
such section and inserting ``authorized by this title or
chapter 119, 121, or 206 of title 18, United States Code''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Inclusion of Certain Orders in Semi-Annual Reports of
Attorney General.--Subsection (a)(5) of section 601 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1871) is amended by striking ``(not including orders)'' and
inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following new subsection:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings associated with such decision,
order, or opinion, not later than 45 days after such
decision, order, or opinion is issued; and
``(2) a copy of any such decision, order, or opinion, and
the pleadings associated with such decision, order, or
opinion, that was issued during the 5-year period ending on
the date of the enactment of the FISA Amendments Act of 2007
and not previously submitted in a report under subsection
(a).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if the Director of the Federal Bureau of Investigation is
unavailable--'';
(E) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(F) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3) of this subsection, by striking ``or the
Director of National Intelligence'' and inserting ``the
Director of National Intelligence, or the Director of the
Central Intelligence Agency''.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(6) by amending subsection (e), as redesignated by
paragraph (5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(A) determines that 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;
``(B) determines that the factual basis for issuance of an
order under this title to approve such electronic
surveillance exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under section 103 at the time of
such authorization that the decision has been made to employ
emergency electronic surveillance; and
``(D) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not later than 168 hours after the Attorney
General authorizes such surveillance.
``(2) If the Attorney General authorizes the emergency
employment of electronic surveillance under paragraph (1),
the Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate
when the information sought is obtained, when the application
for the order is denied, or after the expiration of 168 hours
from the time of authorization by the Attorney General,
whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) In the event that such application for approval is
denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, upon the request of the applicant, the
judge shall also authorize the installation and use of pen
registers and trap and trace devices, and direct the
disclosure of the information set forth in section
402(d)(2).''.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by
striking ``radio communication'' and inserting
``communication''.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(E) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if the Director of the Federal Bureau of Investigation is
unavailable--''; and
(2) in subsection (d)(1)(A), by striking ``or the Director
of National Intelligence'' and inserting ``the Director of
National Intelligence, or the Director of the Central
Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
[[Page S184]]
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of a physical search if the Attorney General--
``(A) determines that an emergency situation exists with
respect to the employment of a physical search to obtain
foreign intelligence information before an order authorizing
such physical search can with due diligence be obtained;
``(B) determines that the factual basis for issuance of an
order under this title to approve such physical search
exists;
``(C) informs, either personally or through a designee, a
judge of the Foreign Intelligence Surveillance Court at the
time of such authorization that the decision has been made to
employ an emergency physical search; and
``(D) makes an application in accordance with this title to
a judge of the Foreign Intelligence Surveillance Court as
soon as practicable, but not more than 168 hours after the
Attorney General authorizes such physical search.
``(2) If the Attorney General authorizes the emergency
employment of a physical search under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
physical search, the physical search shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 168 hours from
the time of authorization by the Attorney General, whichever
is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5)(A) In the event that such application for approval is
denied, or in any other case where the physical search is
terminated and no order is issued approving the physical
search, no information obtained or evidence derived from such
physical search shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such physical search shall subsequently be used
or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(B) The Attorney General shall assess compliance with the
requirements of subparagraph (A).''.
(c) Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended--
(1) in section 304(a)(4), as redesignated by subsection (b)
of this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND
TRACE DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``168 hours''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``168 hours''.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges.--Subsection (a) of section 103
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803) is amended by inserting ``at least'' before
``seven of the United States judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978, as amended by
subsection (a) of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection may,
on its own initiative, or upon the request of the Government
in any proceeding or a party under section 501(f) or
paragraph (4) or (5) of section 702(h), hold a hearing or
rehearing, en banc, when ordered by a majority of the judges
that constitute such court upon a determination that--
``(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by
the court en banc. When exercising such authority, the court
en banc shall comply with any requirements of this Act on the
exercise of such authority.
``(C) For purposes of this paragraph, the court en banc
shall consist of all judges who constitute the court
established under this subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered
under any title of this Act, while the court established
under subsection (a) conducts a rehearing, while an appeal is
pending to the court established under subsection (b), or
while a petition of certiorari is pending in the Supreme
Court of the United States, or during the pendency of any
review by that court.
``(2) The authority described in paragraph (1) shall apply
to an order entered under any provision of this Act.''.
SEC. 110. REVIEW OF PREVIOUS ACTIONS.
(a) Definitions.--In this section--
(1) the term ``element of the intelligence community''
means an element of the intelligence community specified in
or designated under section 3(4) of the National Security Act
of 1947 (50 U.S.C. 401a(4)); and
(2) the term ``Terrorist Surveillance Program'' means the
intelligence program publicly confirmed by the President in a
radio address on December 17, 2005, and any previous,
subsequent or related, versions or elements of that program.
(b) Audit.--Not later than 180 days after the date of the
enactment of this Act, the Inspectors General of the
Department of Justice and relevant elements of the
intelligence community shall work in conjunction to complete
a comprehensive audit of the Terrorist Surveillance Program
and any closely related intelligence activities, which shall
include acquiring all documents relevant to such programs,
including memoranda concerning the legal authority of a
program, authorizations of a program, certifications to
telecommunications carriers, and court orders.
(c) Report.----
(1) In general.--Not later than 30 days after the
completion of the audit under subsection (b), the Inspectors
General shall submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives and the Select Committee on Intelligence
and the Committee on the Judiciary of the Senate a joint
report containing the results of that audit, including all
documents acquired pursuant to the conduct of that audit.
(2) Form.--The report under paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
(d) Expedited Security Clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by an
Inspector General or any appropriate staff of an Inspector
General for a security clearance necessary for the conduct of
the audit under subsection (b) is conducted as expeditiously
as possible.
(e) Additional Legal and Other Personnel for the Inspectors
General.--The Inspectors General of the Department of Justice
and of the relevant elements of the intelligence community
are authorized such additional legal and other personnel as
may be necessary to carry out the prompt and timely
preparation of the audit and report required under this
section. Personnel authorized by this subsection shall
perform such duties relating to the audit as the relevant
Inspector General shall direct. The personnel authorized by
this subsection are in addition to any other personnel
authorized by law.
SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702''; and
(2) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702''.
Modification of Committee Reported Substitute
Mr. REID. Madam President, I am authorized by the chairman of the
Judiciary Committee and, certainly, a majority of the Judiciary
Committee to modify the Judiciary substitute amendment, and I send that
modification to the desk.
The PRESIDING OFFICER. The amendment is so modified.
The modification is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of
2008'' or the ``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Targeting the communications of certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of certain communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
[[Page S185]]
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Review of previous actions.
Sec. 111. Technical and conforming amendments.
TITLE II--OTHER PROVISIONS
Sec. 201. Severability.
Sec. 202. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. TARGETING THE COMMUNICATIONS OF CERTAIN PERSONS
OUTSIDE THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``SEC. 701. DEFINITIONS.
``In this title:
``(1) In general.--The terms `agent of a foreign power',
`Attorney General', `electronic surveillance', `foreign
intelligence information', `foreign power', `minimization
procedures', `person', `United States', and `United States
person' shall have the meanings given such terms in section
101.
``(2) Additional definitions.--
``(A) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(i) the Select Committee on Intelligence of the Senate;
and
``(ii) the Permanent Select Committee on Intelligence of
the House of Representatives.
``(B) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(C) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence
Surveillance Court of Review' and `Court of Review' mean the
court established by section 103(b).
``(D) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(i) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(ii) a provider of electronic communications service, as
that term is defined in section 2510 of title 18, United
States Code;
``(iii) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(iv) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored; or
``(v) an officer, employee, or agent of an entity described
in clause (i), (ii), (iii), or (iv).
``(E) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``SEC. 702. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES.
``(a) Authorization.--Notwithstanding any other provision
of law, including title I, the Attorney General and the
Director of National Intelligence may authorize jointly, for
periods of up to 1 year, the targeting of persons reasonably
believed to be located outside the United States to acquire
foreign intelligence information.
``(b) Limitations.--An acquisition authorized under
subsection (a)--
``(1) may not intentionally target any person known at the
time of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably
believed to be outside the United States if a significant
purpose of such acquisition is to acquire the communications
of a particular, known person reasonably believed to be
located in the United States, except in accordance with title
I; and
``(3) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) United States Persons Located Outside the United
States.--
``(1) Acquisition inside the united states of united states
persons outside the united states.--An acquisition authorized
under subsection (a) that occurs inside the United States
and--
``(A) constitutes electronic surveillance; or
``(B) is an acquisition of stored electronic communications
or stored electronic data that otherwise requires a court
order under this Act,
may not intentionally target a United States person
reasonably believed to be outside the United States, except
in accordance with title I or III. For the purposes of an
acquisition under this subsection, the term `agent of a
foreign power' as used in those titles shall include a person
who is an officer of a foreign power or an employee of a
foreign power who is reasonably believed to have access to
foreign intelligence information.
``(2) Acquisition outside the united states of united
states persons outside the united states.--
``(A) Jurisdiction and scope.--
``(i) Jurisdiction.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order pursuant to
subparagraph (C).
``(ii) Scope.--No element of the intelligence community may
intentionally target, for the purpose of acquiring foreign
intelligence information, a United States person reasonably
believed to be located outside the United States under
circumstances in which the targeted United States person has
a reasonable expectation of privacy and a warrant would be
required if the acquisition were conducted inside the United
States for law enforcement purposes, unless a judge of the
Foreign Intelligence Surveillance Court has entered an order
or the Attorney General has authorized an emergency
acquisition pursuant to subparagraph (C) or (D) or any other
provision of this Act.
``(iii) Limitations.--
``(I) Moving or misidentified targets.--In the event that
the targeted United States person is reasonably believed to
be in the United States during the pendency of an order
issued pursuant to subparagraph (C), such acquisition shall
cease until authority is obtained pursuant to this Act or the
targeted United States person is again reasonably believed to
be located outside the United States during the pendency of
an order issued pursuant to subparagraph (C).
``(II) Applicability.--If the acquisition could be
authorized under paragraph (1), the procedures of paragraph
(1) shall apply, unless an order or emergency acquisition
authority has been obtained under a provision of this Act
other than under this paragraph.
``(B) Application.--Each application for an order under
this paragraph shall be made by a Federal officer in writing
upon oath or affirmation to a judge having jurisdiction under
subparagraph (A)(i). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application as set forth in this
paragraph and shall include--
``(i) the identity, if known, or a description of the
specific United States person who is the target of the
acquisition;
``(ii) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the target of the
acquisition is--
``(I) a United States person reasonably believed to be
located outside the United States; and
``(II) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(iii) a certification or certifications by the Assistant
to the President for National Security Affairs or an
executive branch official or officials designated by the
President from among those executive officers employed in the
area of national security or defense and appointed by the
President by and with the advice and consent of the Senate--
``(I) that the certifying official deems the information
sought to be foreign intelligence information;
``(II) that a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(III) that designates the type of foreign intelligence
information being sought according to the categories
described in section 101(e); and
``(IV) that includes a statement of the basis for the
certification that the information sought is the type of
foreign intelligence information designated;
``(iv) a statement of the proposed minimization procedures
consistent with the requirements of section 101(h) or section
301(4);
``(v) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(vi) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(C) Order.--
``(i) Findings.--If, upon an application made pursuant to
subparagraph (B), a judge having jurisdiction under
subparagraph (A)(i) finds that--
``(I) on the basis of the facts submitted by the applicant
there is probable cause to believe that the specified target
of the acquisition is--
``(aa) a person reasonably believed to be located outside
the United States; and
``(bb) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(II) the proposed minimization procedures, with respect
to their dissemination provisions, meet the definition of
minimization procedures under section 101(h) or section
301(4); and
``(III) the certification or certifications required by
subparagraph (B) are not clearly erroneous on the basis of
the statement made under subparagraph (B)(iii)(IV),
the Court shall issue an ex parte order so stating.
[[Page S186]]
``(ii) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under clause
(i)(I), a judge having jurisdiction under subparagraph (A)(i)
may consider past activities of the target, as well as facts
and circumstances relating to current or future activities of
the target. However, no United States person may be
considered a foreign power, agent of a foreign power, or
officer or employee of a foreign power solely upon the basis
of activities protected by the first amendment to the
Constitution of the United States.
``(iii) Review.--
``(I) Limitations on review.--Review by a judge having
jurisdiction under subparagraph (A)(i) shall be limited to
that required to make the findings described in clause (i).
The judge shall not have jurisdiction to review the means by
which an acquisition under this paragraph may be conducted.
``(II) Review of probable cause.--If the judge determines
that the facts submitted under subparagraph (B) are
insufficient to establish probable cause to issue an order
under this subparagraph, the judge shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal an
order under this subclause pursuant to subparagraph (E).
``(III) Review of minimization procedures.--If the judge
determines that the minimization procedures applicable to
dissemination of information obtained through an acquisition
under this subparagraph do not meet the definition of
minimization procedures under section 101(h) or section
301(4), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
subclause pursuant to subparagraph (E).
``(iv) Duration.--An order under this subparagraph shall be
effective for a period not to exceed 90 days and such order
may be renewed for additional 90-day periods upon submission
of renewal applications meeting the requirements of
subparagraph (B).
``(D) Emergency authorization.--
``(i) Authority for emergency authorization.--
Notwithstanding any other provision in this subsection, if
the Attorney General reasonably determines that--
``(I) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subparagraph (C) before an order
under that subsection may, with due diligence, be obtained;
and
``(II) the factual basis for issuance of an order under
this paragraph exists,
the Attorney General may authorize the emergency acquisition
if a judge having jurisdiction under subparagraph (A)(i) is
informed by the Attorney General or a designee of the
Attorney General at the time of such authorization that the
decision has been made to conduct such acquisition and if an
application in accordance with this paragraph is made to a
judge of the Foreign Intelligence Surveillance Court as soon
as practicable, but not more than 168 hours after the
Attorney General authorizes such acquisition.
``(ii) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by
this subparagraph be followed.
``(iii) Termination of emergency authorization.--In the
absence of an order under subparagraph (C), the acquisition
shall terminate when the information sought is obtained, if
the application for the order is denied, or after the
expiration of 168 hours from the time of authorization by the
Attorney General, whichever is earliest.
``(iv) Use of information.--In the event that such
application is denied, or in any other case where the
acquisition is terminated and no order is issued approving
the acquisition, no information obtained or evidence derived
from such acquisition, except under circumstances in which
the target of the acquisition is determined not to be a
United States person during the pendency of the 168-hour
emergency acquisition period, shall be received in evidence
or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(E) Appeal.--
``(i) Appeal to the court of review.--The Government may
file an appeal with the Foreign Intelligence Surveillance
Court of Review for review of an order issued pursuant to
subparagraph (C). The Court of Review shall have jurisdiction
to consider such appeal and shall provide a written statement
for the record of the reasons for a decision under this
subparagraph.
``(ii) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under clause (i). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(F) Joint applications and orders.--If an acquisition
targeting a United States person under paragraph (1) or this
paragraph is proposed to be conducted both inside and outside
the United States, a judge having jurisdiction under
subparagraph (A) and section 103(a) may issue simultaneously,
upon the request of the Government in a joint application
complying with the requirements of subparagraph (B) and
section 104 or 303, orders authorizing the proposed
acquisition under subparagraph (B) and section 105 or 304 as
applicable.
``(G) Concurrent authorization.--If an order authorizing
electronic surveillance or physical search has been obtained
under section 105 or 304 and that order is in effect, the
Attorney General may authorize, during the pendency of such
order and without an order under this paragraph, an
acquisition under this paragraph of foreign intelligence
information targeting that United States person while such
person is reasonably believed to be located outside the
United States. Prior to issuing such an authorization, the
Attorney General shall submit dissemination provisions of
minimization procedures for such an acquisition to a judge
having jurisdiction under subparagraph (A) for approval.
``(d) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (g);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (e) and (f).
``(e) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States, and that an application is
filed under title I, if otherwise required, when a
significant purpose of an acquisition authorized under
subsection (a) is to acquire the communications of a
particular, known person reasonably believed to be located in
the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(f) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt, consistent with the requirements of section
101(h), minimization procedures for acquisitions authorized
under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (i).
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States and that such procedures have been
approved by, or will promptly be submitted for approval by,
the Foreign Intelligence Surveillance Court pursuant to
subsection (i);
``(ii) the procedures referred to in clause (i) are
consistent with the requirements of the fourth amendment to
the Constitution of the United States and do not permit the
intentional targeting of any person who is known at the time
of acquisition to be located in the United States;
``(iii) the procedures referred to in clause (i) require
that an application is filed under title I, if otherwise
required, when a significant purpose of an acquisition
authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h); and
``(II) have been approved by, or will promptly be submitted
for approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (i);
``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition of the contents (as that term is
defined in section 2510(8) of title
[[Page S187]]
18, United States Code)) of any communication is limited to
communications to which any party is an individual target
(which shall not be limited to known or named individuals)
who is reasonably believed to be located outside of the
United States, and a significant purpose of the acquisition
of the communications of the target is to obtain foreign
intelligence information; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall immediately affirm such directive, and order the
recipient to comply with the directive. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(D) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
shall issue an order requiring the electronic communication
service provider to comply with the directive if the judge
finds that the directive was issued in accordance with
paragraph (1), meets the requirements of this section, and is
otherwise lawful. The judge shall provide a written statement
for the record of the reasons for a determination under this
paragraph.
``(D) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of the decision issued pursuant to
paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review shall have jurisdiction
to consider such a petition and shall provide a written
statement for the record of the reasons for a decision under
this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(i) Judicial Review.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (d) or targeting and minimization procedures
adopted pursuant to subsections (e) and (f).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (g) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (e) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States, and are reasonably designed to
ensure that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (f) to assess
whether such procedures meet the definition of minimization
procedures under section 101(h).
``(5) Orders.--
``(A) Approval.--If the Court finds that a certification
required by subsection (g) contains all of the required
elements and that the targeting and minimization procedures
required by subsections (e) and (f) are consistent with the
requirements of those subsections and with the fourth
amendment to the Constitution of the United States, the Court
shall enter an order approving the continued use of the
procedures for the acquisition authorized under subsection
(a).
``(B) Correction of deficiencies.--
``(i) In general.--If the Court finds that a certification
required by subsection (g) does not contain all of the
required elements, or that the procedures required by
subsections (e) and (f) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the Court's order--
``(I) correct any deficiency identified by the Court's
order not later than 30 days after the date the Court issues
the order; or
``(II) cease the acquisition authorized under subsection
(a).
``(ii) Limitation on use of information.--
``(I) In general.--Except as provided in subclause (II), no
information obtained or evidence derived from an acquisition
under clause (i)(I) concerning any United States person shall
be received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in or before any court, grand
jury, department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from
such acquisition shall subsequently be used or disclosed in
any other manner by Federal officers or employees without the
consent of such person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(II) Exception.--If the Government corrects any
deficiency identified by the Court's order under clause (i),
the Court may permit the use or disclosure of information
acquired before the date of the correction pursuant to such
minimization procedures as the Court shall establish for
purposes of this clause.
``(C) Requirement for written statement.--In support of its
orders under this subsection, the Court shall provide,
simultaneously with the orders, for the record a written
statement of its reasons.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government may
appeal any order under this section to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such order. For any decision
affirming, reversing, or modifying
[[Page S188]]
an order of the Foreign Intelligence Surveillance Court, the
Court of Review shall provide for the record a written
statement of its reasons.
``(B) Continuation of acquisition pending rehearing or
appeal.--Any acquisition affected by an order under paragraph
(5)(B) may continue--
``(i) during the pendency of any rehearing of the order by
the Court en banc; or
``(ii) if the Government appeals an order under this
section, until the Court of Review enters an order under
subparagraph (C).
``(C) Implementation pending appeal.--Not later than 30
days after the date on which an appeal of an order under
paragraph (5)(B) directing the correction of a deficiency is
filed, the Court of Review shall determine, and enter a
corresponding order regarding, whether all or any part of the
correction order, as issued or modified, shall be implemented
during the pendency of the appeal.
``(D) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under subparagraph
(A). The record for such review shall be transmitted under
seal to the Supreme Court of the United States, which shall
have jurisdiction to review such decision.
``(7) Compliance reviews.--During the period that
minimization procedures approved under paragraph (5)(A) are
in effect, the Court may review and assess compliance with
such procedures by reviewing the semiannual assessments
submitted by the Attorney General and the Director of
National Intelligence pursuant to subsection (l)(1) with
respect to compliance with such procedures. In conducting a
review under this paragraph, the Court may, to the extent
necessary, require the Government to provide additional
information regarding the acquisition, retention, or
dissemination of information concerning United States persons
during the course of an acquisition authorized under
subsection (a). The Court may fashion remedies it determines
necessary to enforce compliance.
``(j) Judicial Proceedings.--Judicial proceedings under
this section shall be conducted as expeditiously as possible.
``(k) Maintenance of Records.--
``(1) Standards.--A record of a proceeding under this
section, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures adopted by the Chief Justice of the United
States, in consultation with the Attorney General and the
Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--A directive made or an order
granted under this section shall be retained for a period of
not less than 10 years from the date on which such directive
or such order is made.
``(l) Oversight.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the targeting and
minimization procedures required by subsections (c), (e), and
(f) and shall submit each such assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) the congressional intelligence committees.
``(2) Agency assessment.--The Inspectors General of the
Department of Justice and of any element of the intelligence
community authorized to acquire foreign intelligence
information under subsection (a)--
``(A) are authorized to review the compliance of their
agency or element with the targeting and minimization
procedures required by subsections (c), (e), and (f);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United
States person identity and the number of United States person
identities subsequently disseminated by the element concerned
in response to requests for identities that were not referred
to by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that were
later determined to be located in the United States and an
estimate of the number of persons reasonably believed to be
located in the United States whose communications were
reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) the congressional intelligence committees.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of an element of
the intelligence community conducting an acquisition
authorized under subsection (a) shall direct the element to
conduct an annual review to determine whether there is reason
to believe that foreign intelligence information has been or
will be obtained from the acquisition. The annual review
shall provide, with respect to such acquisitions authorized
under subsection (a)--
``(i) an accounting of the number of disseminated
intelligence reports containing a reference to a United
States person identity;
``(ii) an accounting of the number of United States person
identities subsequently disseminated by that element in
response to requests for identities that were not referred to
by name or title in the original reporting; and
``(iii) the number of targets that were later determined to
be located in the United States and an estimate of the number
of persons reasonably believed to be located in the United
States whose communications were reviewed.
``(B) Use of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall use each such review to evaluate the
adequacy of the minimization procedures utilized by such
element or the application of the minimization procedures to
a particular acquisition authorized under subsection (a).
``(C) Provision of review to foreign intelligence
surveillance court.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall provide such review to the Foreign
Intelligence Surveillance Court.
``(4) Reports to congress.--
``(A) Semiannual report.--Not less frequently than once
every 6 months, the Attorney General shall fully inform, in a
manner consistent with national security, the congressional
intelligence committees, the Committee on the Judiciary of
the Senate, and the Committee on the Judiciary of the House
of Representatives, concerning the implementation of this
Act.
``(B) Content.--Each report made under subparagraph (A)
shall include--
``(i) any certifications made under subsection (g) during
the reporting period;
``(ii) any directives issued under subsection (h) during
the reporting period;
``(iii) the judicial review during the reporting period of
any such certifications and targeting and minimization
procedures utilized with respect to such acquisition,
including a copy of any order or pleading in connection with
such review that contains a significant legal interpretation
of the provisions of this Act;
``(iv) any actions taken to challenge or enforce a
directive under paragraphs (4) or (5) of subsections (h);
``(v) any compliance reviews conducted by the Department of
Justice or the Office of the Director of National
Intelligence of acquisitions authorized under subsection (a);
``(vi) a description of any incidents of noncompliance with
a directive issued by the Attorney General and the Director
of National Intelligence under subsection (h), including--
``(I) incidents of noncompliance by an element of the
intelligence community with procedures adopted pursuant to
subsections (c), (e), and (f); and
``(II) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under subsection (h);
``(vii) any procedures implementing this section; and
``(viii) any annual review conducted pursuant to paragraph
(3).
``SEC. 703. USE OF INFORMATION ACQUIRED UNDER SECTION 702.
``Information acquired from an acquisition conducted under
section 702 shall be deemed to be information acquired from
an electronic surveillance pursuant to title I for purposes
of section 106, except for the purposes of subsection (j) of
such section.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``Sec. 701. Definitions.
``Sec. 702. Procedures for acquiring the communications of certain
persons outside the United States.
``Sec. 703. Use of information acquired under section 702.''.
(c) Sunset.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a)(2) and (b) shall cease to
have effect on December 31, 2011.
(2) Continuing applicability.--Section 702(h)(3) of the
Foreign Intelligence Surveillance Act of 1978 (as amended by
subsection (a)) shall remain in effect with respect to any
directive issued pursuant to section 702(h) of that Act (as
so amended) during the period such directive was in effect.
The use of information acquired by an acquisition conducted
under section 702 of that Act (as so amended) shall continue
to be governed by the provisions of section 703 of that Act
(as so amended).
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
[[Page S189]]
``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND
INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED
``Sec. 112. (a) Except as provided in subsection (b), the
procedures of chapters 119, 121 and 206 of title 18, United
States Code, and this Act shall be the exclusive means by
which electronic surveillance and the interception of
domestic wire, oral, or electronic communications may be
conducted.
``(b) Only an express statutory authorization for
electronic surveillance or the interception of domestic,
wire, oral, or electronic communications, other than as an
amendment to this Act or chapters 119, 121, or 206 of title
18, United States Code, shall constitute an additional
exclusive means for the purpose of subsection (a).''.
(b) Offense.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
(1) in subsection (a), by striking ``authorized by
statute'' each place it appears in such section and inserting
``authorized by this Act, chapter 119, 121, or 206 of title
18, United States Code, or any express statutory
authorization that is an additional exclusive means for
conducting electronic surveillance under section 112.''; and
(2) by adding at the end the following:
``(e) Definition.--For the purpose of this section, the
term `electronic surveillance' means electronic surveillance
as defined in section 101(f) of this Act.''.
(c) Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2)(a) of
title 18, United States Code, is amended by adding at the end
the following:
``(iii) If a certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the specific statutory provision, and shall certify
that the statutory requirements have been met.''.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by adding after the item
relating to section 111, the following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Inclusion of Certain Orders in Semi-Annual Reports of
Attorney General.--Subsection (a)(5) of section 601 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1871) is amended by striking ``(not including orders)'' and
inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following new subsection:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings associated with such decision,
order, or opinion, not later than 45 days after such
decision, order, or opinion is issued; and
``(2) a copy of any such decision, order, or opinion, and
the pleadings associated with such decision, order, or
opinion, that was issued during the 5-year period ending on
the date of the enactment of the FISA Amendments Act of 2008
and not previously submitted in a report under subsection
(a).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if the Director of the Federal Bureau of Investigation is
unavailable--'';
(E) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(F) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3) of this subsection, by striking ``or the
Director of National Intelligence'' and inserting ``the
Director of National Intelligence, or the Director of the
Central Intelligence Agency''.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(6) by amending subsection (e), as redesignated by
paragraph (5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(A) determines that 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;
``(B) determines that the factual basis for issuance of an
order under this title to approve such electronic
surveillance exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under section 103 at the time of
such authorization that the decision has been made to employ
emergency electronic surveillance; and
``(D) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not later than 168 hours after the Attorney
General authorizes such surveillance.
``(2) If the Attorney General authorizes the emergency
employment of electronic surveillance under paragraph (1),
the Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate
when the information sought is obtained, when the application
for the order is denied, or after the expiration of 168 hours
from the time of authorization by the Attorney General,
whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) In the event that such application for approval is
denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, upon the request of the applicant, the
judge shall also authorize the installation and use of pen
registers and trap and trace devices, and direct the
disclosure of the information set forth in section
402(d)(2).''.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by
striking ``radio communication'' and inserting
``communication''.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(E) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if the Director
[[Page S190]]
of the Federal Bureau of Investigation is unavailable--'';
and
(2) in subsection (d)(1)(A), by striking ``or the Director
of National Intelligence'' and inserting ``the Director of
National Intelligence, or the Director of the Central
Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of a physical search if the Attorney General--
``(A) determines that an emergency situation exists with
respect to the employment of a physical search to obtain
foreign intelligence information before an order authorizing
such physical search can with due diligence be obtained;
``(B) determines that the factual basis for issuance of an
order under this title to approve such physical search
exists;
``(C) informs, either personally or through a designee, a
judge of the Foreign Intelligence Surveillance Court at the
time of such authorization that the decision has been made to
employ an emergency physical search; and
``(D) makes an application in accordance with this title to
a judge of the Foreign Intelligence Surveillance Court as
soon as practicable, but not more than 168 hours after the
Attorney General authorizes such physical search.
``(2) If the Attorney General authorizes the emergency
employment of a physical search under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
physical search, the physical search shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 168 hours from
the time of authorization by the Attorney General, whichever
is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5)(A) In the event that such application for approval is
denied, or in any other case where the physical search is
terminated and no order is issued approving the physical
search, no information obtained or evidence derived from such
physical search shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such physical search shall subsequently be used
or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(B) The Attorney General shall assess compliance with the
requirements of subparagraph (A).''.
(c) Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended--
(1) in section 304(a)(4), as redesignated by subsection (b)
of this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND
TRACE DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``168 hours''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``168 hours''.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges.--Subsection (a) of section 103
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803) is amended by inserting ``at least'' before
``seven of the United States judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978, as amended by
subsection (a) of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection may,
on its own initiative, or upon the request of the Government
in any proceeding or a party under section 501(f) or
paragraph (4) or (5) of section 702(h), hold a hearing or
rehearing, en banc, when ordered by a majority of the judges
that constitute such court upon a determination that--
``(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by
the court en banc. When exercising such authority, the court
en banc shall comply with any requirements of this Act on the
exercise of such authority.
``(C) For purposes of this paragraph, the court en banc
shall consist of all judges who constitute the court
established under this subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered
under any title of this Act, while the court established
under subsection (a) conducts a rehearing, while an appeal is
pending to the court established under subsection (b), or
while a petition of certiorari is pending in the Supreme
Court of the United States, or during the pendency of any
review by that court.
``(2) The authority described in paragraph (1) shall apply
to an order entered under any provision of this Act.''.
SEC. 110. REVIEW OF PREVIOUS ACTIONS.
(a) Definitions.--In this section:
(1) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(A) the Select Committee on Intelligence and the Committee
on the Judiciary of the Senate; and
(B) the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(2) Terrorist surveillance program and program.--The terms
``Terrorist Surveillance Program'' and ``Program'' mean the
intelligence activity involving communications that was
authorized by the President during the period beginning on
September 11, 2001, and ending on January 17, 2007.
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the
Office of the Director of National Intelligence, the
Department of Justice, the National Security Agency, and any
other element of the intelligence community that participated
in the Terrorist Surveillance Program shall work in
conjunction to complete a comprehensive review of, with
respect to the oversight authority and responsibility of each
such Inspector General--
(A) all of the facts necessary to describe the
establishment, implementation, product, and use of the
product of the Program;
(B) the procedures and substance of, and access to, the
legal reviews of the Program;
(C) communications with, and participation of, individuals
and entities in the private sector related to the Program;
(D) interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program;
and
(E) any other matters identified by such an Inspector
General that would enable that Inspector General to report a
complete description of the Program, with respect to such
element.
(2) Cooperation.--Each Inspector General required to
conduct a review under paragraph (1) shall--
(A) work in conjunction, to the extent possible, with any
other Inspector General required to conduct such a review;
and
(B) utilize to the extent practicable, and not
unnecessarily duplicate or delay, such reviews or audits that
have been completed or are being undertaken by such an
Inspector General or by any other office of the Executive
Branch related to the Program.
(c) Reports.--
(1) Preliminary reports.--Not later than 60 days after the
date of the enactment of this Act, the Inspectors General of
the Office of the Director of National Intelligence and the
Department of Justice, in conjunction with any other
Inspector General required to conduct a review under
subsection (b)(1), shall submit to the appropriate committees
of Congress an interim report that describes the planned
scope of such review.
(2) Final report.--Not later than 1 year after the date of
the enactment of this Act, the Inspectors General required to
conduct such a review shall submit to the appropriate
committees of Congress, to the extent practicable, a
comprehensive report on such reviews that includes any
recommendations of such Inspectors General within the
oversight authority and responsibility of such Inspector
General with respect to the reviews.
(3) Form.--A report submitted under this subsection shall
be submitted in unclassified form, but may include a
classified annex. The unclassified report shall not disclose
the name or identity of any individual or entity
[[Page S191]]
of the private sector that participated in the Program or
with whom there was communication about the Program.
(d) Resources.--
(1) Expedited security clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by an
Inspector General or any appropriate staff of an Inspector
General for a security clearance necessary for the conduct of
the review under subsection (b)(1) is carried out as
expeditiously as possible.
(2) Additional legal and other personnel for the inspectors
general.--An Inspector General required to conduct a review
under subsection (b)(1) and submit a report under subsection
(c) is authorized to hire such additional legal or other
personnel as may be necessary to carry out such review and
prepare such report in a prompt and timely manner. Personnel
authorized to be hired under this paragraph--
(A) shall perform such duties relating to such a review as
the relevant Inspector General shall direct; and
(B) are in addition to any other personnel authorized by
law.
SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702''; and
(2) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702''.
TITLE II--OTHER PROVISIONS
SEC. 201. SEVERABILITY.
If any provision of this Act, any amendment made by this
Act, or the application thereof to any person or
circumstances is held invalid, the validity of the remainder
of the Act, any such amendments, and of the application of
such provisions to other persons and circumstances shall not
be affected thereby.
SEC. 202. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.
(a) In General.--Except as provided in subsection (c), the
amendments made by this Act shall take effect on the date of
the enactment of this Act.
(b) Repeal.--
(1) In general.--Except as provided in subsection (c),
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by striking the items
relating to sections 105A, 105B, and 105C.
(c) Transitions Procedures.--
(1) Protection from liability.--Notwithstanding subsection
(b)(1), subsection (l) of section 105B of the Foreign
Intelligence Surveillance Act of 1978 shall remain in effect
with respect to any directives issued pursuant to such
section 105B for information, facilities, or assistance
provided during the period such directive was or is in
effect.
(2) Orders in effect.--
(A) Orders in effect on date of enactment.--Notwithstanding
any other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978--
(i) any order in effect on the date of enactment of this
Act issued pursuant to the Foreign Intelligence Surveillance
Act of 1978 or section 6(b) of the Protect America Act of
2007 (Public Law 110-55; 121 Stat. 556) shall remain in
effect until the date of expiration of such order; and
(ii) at the request of the applicant, the court established
under section 103(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803(a)) shall reauthorize such order
if the facts and circumstances continue to justify issuance
of such order under the provisions of such Act, as in effect
on the day before the date of the enactment of the Protect
America Act of 2007, except as amended by sections 102, 103,
104, 105, 106, 107, 108, and 109 of this Act.
(B) Orders in effect on december 31, 2011.--Any order
issued under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101 of this
Act, in effect on December 31, 2011, shall continue in effect
until the date of the expiration of such order. Any such
order shall be governed by the applicable provisions of the
Foreign Intelligence Surveillance Act of 1978, as so amended.
(3) Authorizations and directives in effect.--
(A) Authorizations and directives in effect on date of
enactment.--Notwithstanding any other provision of this Act
or of the Foreign Intelligence Surveillance Act of 1978, any
authorization or directive in effect on the date of the
enactment of this Act issued pursuant to the Protect America
Act of 2007, or any amendment made by that Act, shall remain
in effect until the date of expiration of such authorization
or directive. Any such authorization or directive shall be
governed by the applicable provisions of the Protect America
Act of 2007 (121 Stat. 552), and the amendment made by that
Act, and, except as provided in paragraph (4) of this
subsection, any acquisition pursuant to such authorization or
directive shall be deemed not to constitute 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)), as construed in accordance with section 105A of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805a)).
(B) Authorizations and directives in effect on december 31,
2011.--Any authorization or directive issued under title VII
of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 101 of this Act, in effect on December 31,
2011, shall continue in effect until the date of the
expiration of such authorization or directive. Any such
authorization or directive shall be governed by the
applicable provisions of the Foreign Intelligence
Surveillance Act of 1978, as so amended.
(4) Use of information acquired under protect america
act.--Information acquired from an acquisition conducted
under the Protect America Act of 2007, and the amendments
made by that Act, shall be deemed to be information acquired
from an electronic surveillance pursuant to title I of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) for purposes of section 106 of that Act (50 U.S.C.
1806), except for purposes of subsection (j) of such section.
(5) New orders.--Notwithstanding any other provision of
this Act or of the Foreign Intelligence Surveillance Act of
1978--
(A) the government may file an application for an order
under the Foreign Intelligence Surveillance Act of 1978, as
in effect on the day before the date of the enactment of the
Protect America Act of 2007, except as amended by sections
102, 103, 104, 105, 106, 107, 108, and 109 of this Act; and
(B) the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall enter an
order granting such an application if the application meets
the requirements of such Act, as in effect on the day before
the date of the enactment of the Protect America Act of 2007,
except as amended by sections 102, 103, 104, 105, 106, 107,
108, and 109 of this Act.
(6) Extant authorizations.--At the request of the
applicant, the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall
extinguish any extant authorization to conduct electronic
surveillance or physical search entered pursuant to such Act.
(7) Applicable provisions.--Any surveillance conducted
pursuant to an order entered pursuant to this subsection
shall be subject to the provisions of the Foreign
Intelligence Surveillance Act of 1978, as in effect on the
day before the date of the enactment of the Protect America
Act of 2007, except as amended by sections 102, 103, 104,
105, 106, 107, 108, and 109 of this Act.
Mr. REID. Madam President, we have conferred with our colleagues on
the other side of the aisle. Senator Bond is aware of this new
amendment. He has not had time to study the amendment. He has been busy
all day, as have all my Republican colleagues at their retreat. But he
will have time to work on this tonight. His staff is working on it. We
hope tomorrow to have a couple hours of debate, and then it is my
understanding there could be and likely will be a motion to table this
amendment.
I want to make sure Senators have adequate time to debate this
amendment tomorrow. This is, if not the key amendment, one of the key
amendments to this legislation, and we want to make sure everyone has
adequate time. We are going to come in early in the morning and start
this matter as quickly as we can. So I am not going to ask consent
tonight as to how much time will be spent on it, but this will be the
matter we take up tomorrow.
I have spoken to Senator Whitehouse, who is a member not only of the
Judiciary Committee but also the Intelligence Committee. He has a very
important amendment he wishes to offer. It is a bipartisan amendment he
has worked on for a significant period of time, and we look forward to
this amendment.
Hopefully, we can work our way through some of these contentious
amendments tomorrow. It is something we need to do, and we are going to
work as hard as we can. There are strong feelings on each side.
Everyone has worked in good faith. I especially appreciate the
cooperation of Senator Leahy and Senator Rockefeller. They have not
agreed on everything, but they have agreed on a lot, and they have
worked in a very professional manner in working our way to the point
where we now are.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Madam President, there will be no more votes tonight. We
have a number of Senators who wish to speak. We understand Senator Bond
will be here, Senator Rockefeller will be here, Senator Dodd will be
here. That is good. They are going to be
[[Page S192]]
speaking about the legislation that is now before this body.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CARDIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARDIN. Madam President, I take this time to speak in favor of
the Leahy substitute amendment to the FISA legislation. I start by
thanking Senator Rockefeller and Senator Bond, Senator Leahy and
Senator Specter for their extraordinary work on this most difficult
subject. This is not an easy subject. We are dealing with a technology
that has changed and the need of our country to get information through
our intelligence community, which is important for our national
security, and protecting the constitutional and civil rights of the
people of our Nation.
The Leahy substitute is a bill that was carefully worked and drafted
within the Judiciary Committee. The Intelligence Committee came up with
their legislation. We passed it rather quickly before the recess. The
Judiciary Committee spent a lot of time looking at the substance of how
we could make sure we got the language right, to make sure the
intelligence community has the information they need, and that we do
protect the rights of the people of our own country. The Leahy
substitute does that, with the right balance.
I start by saying that I have been to NSA on many occasions. It is
located in the State of Maryland. The dedicated men and women who work
there work very hard to protect the interests of our Nation. They do it
with a great deal of dedication and sensitivity to the type of
information they obtain and how important it is to our country, but it
must be done in the right way. The need for the FISA legislation is so
we can continue to get information from non-Americans that is important
for our national security. Much of this information is obtained from
what we call foreign to foreign, where we have communications between
an American and a non-American in a country outside of the United
States, but because of technology it falls within the definition of the
FISA statute. We need to clarify that in a way that will allow the
intelligence community to get that information foreign to foreign,
information that is important for the security of our country. The
Leahy substitute recognizes the change in technology and the need for
this information but does it in a way that protects the constitutional
rights of the citizens of our own country and the civil rights of
Americans.
Where an American is a target, that person should have certain
rights. The Leahy substitute protects Americans who are targets of
intelligence gathering when they are outside of the United States. When
they are inside the United States, there has never been a question that
you need to get certain warrants and certain information. Well, this
legislation also makes it clear that where an American is a target
outside of the United States, that individual will have proper
protection. But the legislation goes further and says that in the
course of obtaining information, you may get incidental information
about an American who was not the target of the investigation, but the
American comes up in the communication that has been gathered. We have
certain minimization rules to protect the rights of Americans who are
incidental to the information being gathered by the intelligence
community. The Leahy substitute protects Americans through
strengthening the minimization rules.
The Leahy substitute protects the process by involving the courts.
The FISA courts are involved in making sure that the right procedures
are used in gathering information so that Americans are protected.
The Leahy substitute contains a provision offered by Senator
Feinstein to make it clear that the gathering of information under the
FISA statute is the exclusive way in which the intelligence community
can get information of foreign-to-foreign communications or
communications that involve telecommunications centers located in the
United States, but that the FISA statute is the exclusive way to
proceed so there will not be confusion in the future as to whether
there are extraordinary authorities you can use warrantless types of
intercepts without having congressional approval. It is the right
balance, as I have indicated before, and I urge my colleagues to
support the Judiciary Committee's substitute offered by Senator Leahy.
It even goes further than that. The Leahy substitute does not contain
the retroactive immunity. The Intelligence Committee bill contains
retroactive immunity for telecommunications companies. Now, my major
problem with that is it will take away the appropriate jurisdiction of
our courts to act as a check and balance on potential abuses of our
rights of privacy. I must tell my colleagues--and I said this in the
Judiciary Committee and I have said it on the floor--that
telecommunications companies operating in good faith are entitled to
help, entitled to relief. They have serious problems in defending their
rights because of the confidential nature of the information they are
dealing with, but there are ways to deal with that without compromising
the independence of the judicial branch of Government, without
compromising in the future the ability of our courts to make sure we
protect the rights of our citizens.
If we adopt the Leahy substitute, there are going to be other
amendments that will be offered that will deal in a responsible way
with the concerns of the telecommunications companies. Senator Specter
has an amendment that says: Look, if the telecommunications companies
are operating in good faith, if they are innocent in all this where
they can't defend themselves, then let's let the Government be
substituted for the telecommunications company. That protects their
interests, without compromising the ability of our courts to make sure
that all of our rights have been protected. I think that is a better
course than what the Intelligence Committee did. There will be an
amendment offered by Senator Feinstein which I am a cosponsor of that
says, look, we should at least have the courts--the courts--make a
judgment as to whether the telecommunications companies operated in
good faith under law. That decision shouldn't be made by the executive
branch that asked them for the information. That makes common sense to
me and offers us at least some protection to make sure we are moving
with court supervision. So the Leahy substitute offers us the advantage
of eliminating the retroactive immunity which is extremely
controversial, and allows us to consider that in its own right, which I
am certain we will have a chance to do by the amendments that have been
noted.
In addition, the Leahy substitute contains an amendment I offered in
the Judiciary Committee that changes the sunset provisions, the
termination of these provisions, from a 6-year sunset to a 4-year
sunset. Why is that important? First, it is interesting to point out
that the members of the Intelligence Committee and the members of the
Judiciary Committee, in fact all of the Members of this body, have said
we have gotten a lot of cooperation from the intelligence community,
from the administration in carrying out our responsibility as the
legislative branch of Government to oversee what the executive branch
is doing in this area. There has been tremendous cooperation. Why?
Because they know we have to pass a statute to continue this authority.
We have gotten access to information that at least initially the
administration indicated we would not have access to. Well, we got
access to it--some of us did. I am sorry more were not offered the
opportunity to take a look at the confidential communications--the
classified communications. That type of cooperation is helpful when you
have the requirement that Congress has to act.
Four years is preferable to six because it will mean the next
administration that will take office in January of next year will have
to deal with this issue. If we continue a 6-year sunset, there will be
no need for the next two Congresses and the administration ever to have
to deal with this authority and to take a look at it to see whether it
is operating properly, to see whether technology changes have caused it
to need to change the way the law is
[[Page S193]]
drafted. But a 4-year sunset will mean we will have plenty of time for
the agency with predictability to establish its practices for gathering
intelligence information about foreign subjects, but we will also have
an opportunity to review during the next administration whether these
provisions need to be modified, whether there is a different way, a
more effective way that we can get this information protecting the
rights of the people of this Nation.
For all of those reasons, I urge this body to approve the substitute
that is being offered by Senator Leahy. It is the product of the
Judiciary Committee. I believe it is a better way for us to collect the
information. It gives us the chance to take a look at the immunity
issue fresh and to make sure we don't compromise in the future the
proper roles of our courts in protecting the privacy of the citizens of
our own country. It provides for a much stronger oversight by the
legislative branch of Government, and I urge my colleagues to support
that amendment.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
____________________
[...]
[Congressional Record: January 23, 2008 (Senate)]
[Page S216-S219]
FISA
Mr. DODD. Mr. President, let me begin my remarks, I know tomorrow we
are going to begin more formal debate on the FISA legislation. This is
to be a continuation of the effort, for those who wonder what this is,
this is the Foreign Intelligence Surveillance Act. This was the debate
which was the last item of debate before the holiday break back in mid-
December.
The legislation was withdrawn and was not completed. Senator
Rockefeller, Senator Bond, the chairman and the ranking Republican, and
members of the Intelligence Committee, Senator Leahy, Senator Specter,
and members of the Judiciary Committee, Republicans and Democrats have
worked on this legislation.
I wish to begin my comments by thanking them for their efforts on
trying to develop a piece of legislation that would reflect the
realities of today.
There has been some history of this bill. My intention this evening
is to spend some time talking about a section of this bill dealing with
retroactive immunity, which my colleagues and others who followed this
debate know I spent some 10 hours on the floor of this body back in
December expressing strong opposition to that provision of this bill;
not over the general thrust of the bill.
The Foreign Intelligence Surveillance Act is critically important to
our country. It provides a means by which you can have a proper warrant
extended or given out by governmental authorities to collect data,
information, critical to our security.
For those who know the history of this, it dates back to the 1970s as
a result of the Church Committee's efforts revealing some of the
egregious activities of the Nixon administration in listening in,
eavesdropping, wiretapping, without any kind of court order, warrant or
legal authorities.
So the Congress, working in a bipartisan fashion, I think almost
unanimously adopted the Foreign Intelligence Surveillance Act in the
late 1970s. Since that time, this bill has been amended I think some 30
or 40 times, maybe more, I know it has been a number of times over the
years. In nearly every instance, almost unanimously amended to reflect
the changes over the years and the sophistication of those who would do
us harm or damage, as well as our ability to more carefully apprehend
or listen in or gather information that could help us protect our
Nation from those who would do us great harm.
That is a very brief history of this. We are once again at a
situation to try and modernize and reflect the needs of our Nation.
There is a tension that that exists between making sure we are secure
and safe and simultaneously doing it in a manner in which we protect
the basic rights of the American citizens.
There has been this tension throughout our history. But we are a
nation grounded in rights and liberties. It is the history of our
country. It is what made us unique as a people going back more than two
centuries.
Over the years, we have faced very significant challenges, both at
home and abroad. So we have had a need to provide for the means by
which we collect data and information that would protect us, to make us
aware of those who would do us harm, and yet simultaneously make sure
that in the process of doing that, we do not abandon the rights and
liberties we all share as Americans. The Constitution does not belong
to any political party. I have said that over and over again. Certainly
today, as we debate these issues involving the FISA legislation, I hope
everyone understands very clearly my objections to the provisions of
this bill have nothing to do whatsoever with the important efforts to
make it possible for us to collect data that would keep us safe, but I
feel passionately that we not allow this vehicle, this piece of
legislation, to be used as a means by which we reward behavior that
violated the basic liberties of American citizens by granting
retroactive immunity to telecom companies that decided, for whatever
reason, to agree, at the Bush administration's request, to provide
literally millions of telephone conversations, e-mails, and faxes, not
for a month or 6 months or a year but for 5 years, in a concerted
effort contrary to the law of our land.
So that is what brings me to the floor this evening. It is what
brought me to the floor of this body before the holiday recess, talking
and expressing my strong opposition to those provisions of this
legislation. There are other concerns I would point out about this bill
that other Members will raise. Senator Feingold has strong objections
to certain provisions of this legislation, others have other ideas I am
confident have merit.
But I commend Senator Rockefeller and Senator Bond. They have done
the best job, in many ways, of dealing with these sets of questions.
But why in the world we decided we are going to grant retroactive
immunity to these telephone companies is what mystifies me, concerns me
deeply, because of the precedent-setting nature of it.
There are those who would argue that in order for us to be more
secure, we must give up some rights, that you have to make that choice.
You cannot be secure, as we would like to be, if we are unwilling to
give up these rights and liberties.
I think this false dichotomy is dangerous. In fact, I think the
opposite is true. In fact, if you protect these rights and liberties,
that is what makes us more secure. Once you begin traveling down that
slippery slope of deciding on this particular occasion we are going to
walk away from these rights and these liberties, once you begin that
process, it gets easier and easier to do.
In this case, we are talking about telecom companies. We are talking
about communications between private citizens, e-mails, faxes, phone
conversations. Why not medical information? Why not financial
information? When is the next example going to come up where companies
that knew better, not should have known better, knew better, in my
view.
One of the companies that may have complied with the Bush
administration's request, in fact, was deeply involved in the drafting
of this legislation in the 1970s, in putting the FISA bill together.
This was not some first year law school student who did not know the
law of the land in terms of FISA, they knew the law, they understood
it.
In fact, there are phone companies that refused to comply with the
request of the Bush administration absent a court order. Those
companies said: Give us a court order, we will comply. Absent a court
order, we will not comply.
So there were companies that understood the differences when these
requests were made more than 5 years ago.
So this was not a question of ``everybody did it,'' the same argument
that children bring to their parents from time to time, or ``we were
ordered on high,'' in what is known as the Nuremberg defense which
asserts that there were those in higher positions who said we ought to
do this. That was the defense given in 1945 at the Nuremberg trials by
the 21 defendants who claimed they were only obeying orders given by
Hitler. Though this situation before us is obviously enormously
different, a similar argument, that the companies were ordered to do
this, defies logic and the facts of this case.
With that background and the history of the FISA legislation--and
there are others who will provide more detail--let me share some
concerns about this particular area of the law. I will be utilizing
whatever vehicles are available to me, including language I will offer
to strike these provisions, to see to it that this bill does not go
forward with retroactive immunity as drafted
[[Page S217]]
in the legislation included in the bill. I rise, in fact, in strong
opposition to the retroactive immunity provisions of the Foreign
Intelligence Surveillance Act as passed by the Intelligence Committee.
I strongly support the Leahy substitute to the current legislation. It
is my hope the Senate adopts this important measure. If it does, it
will solve this particular problem. However, I am concerned that, once
again, we will return to a Foreign Intelligence Surveillance Act that
will grant retroactive immunity to telecom companies.
As my colleagues know, I have strongly opposed retroactive immunity
for the telecommunications companies that may have violated the privacy
of millions of our fellow citizens. Last month, I opposed retroactive
immunity on the Senate floor for more than 10 hours. The bill was
withdrawn that day, but I am concerned that tomorrow retroactive
immunity will return, and I am prepared to fight it again.
Since last month, little has changed. Retroactive immunity is as
dangerous to American civil liberties as it was last month, and my
opposition to it is just as passionate. The last 6 years have seen the
President--the Bush administration's pattern of continual abuses
against civil liberties.
Again, if this were the first instance and it went on for a few
months, a year, these companies acquiescing to an administration's
request, an administration that had made it its business to protect the
basic liberties of Americans throughout its terms in office, I would
not be standing here. I am not so rigid, so doctrinaire that I am
unwilling to accept that at times of emergency such as in the wake of
9/11, you might have such a request being made by an administration--
not that I think it is right, but it could happen. I would say if it
did and a handful of companies for a few months or a year, even,
complied with it and went forward, I wouldn't be happy about it, but I
would understand it. But that is not what happened here. That is not
what this administration has been involved in. From Guantanamo, from
Abu Ghraib, from rendition, secret prisons, habeas corpus, torture, a
scandal involving the Attorney General's Office, the U.S. attorneys
offices around the country--how many examples do you need to have? How
many do we have to learn about to finally understand that we have an
administration regrettably that just doesn't seem to understand the
importance of the rule of law, the basic rights and liberties of the
American public?
My concern is that we had a pattern of behavior, almost nonstop,
going on some 6 years and still apparently ongoing today. Then add that
to the fact that this collection of data, this collection of
information went on not for 6 months or a year but for 5 long years and
would have continued, had there not been a story in the media which
uncovered, through a whistleblower, that this was going on. It would
still be going on today, despite the absence of any court order, or a
warrant being granted by the FISA courts. There is a pattern of
behavior that is going unchecked, and behavior went on for more than 5
years. That is why I stand here, because I am not going to tolerate--at
least this Member is not--accepting these abuses and granting
retroactive immunity. It is, once again, a walking away from this
problem, inviting even more of the same in the coming days.
It is alleged, of course, that the administration worked outside the
law with giant telecom corporations to compile Americans' private
domestic communications--in other words, a database of enormous scale
and scope. Those corporations are alleged to have spied secretly and
without warrant on their own American customers.
Here is only one of the most egregious examples. According to the
Electronic Frontier Foundation:
Clear, first-hand whistleblower documentary evidence
[states] . . . that for year on end every e-mail, every text
message, every phone call carried over the massive fiber-
optic links of sixteen separate companies routed through
AT&T's Internet hub in San Francisco--hundreds of millions of
private, domestic communications--have been . . . copied in
their entirety by AT&T and knowingly diverted wholesale by
means of multiple ``splitters'' into a secret room controlled
exclusively by the NSA.
Those are not my words; those are the words of the Electronic
Frontier Foundation. To me, those facts speak clearly. If true, they
represent an outrage against privacy, a massive betrayal of trust.
I know many see this differently. No doubt they do so in good faith.
They find the telecoms' actions defensible and legally justified. To
them, immunity is a fitting defense for companies that were only doing
their patriotic duty. Perhaps they are right. I think otherwise, but I
am willing to concede they may be right.
But the President and his supporters need to prove far more than
that. I think they need to show that they are so right and that our
case is so far beyond the pale that no court ever need settle the
argument, that we can shut down the argument here and now. That is what
this will do. It will shut down this argument, and we will never, ever
know what data was collected, why, who ordered this, who was
responsible, if we grant retroactive immunity.
Retroactive immunity shuts the courthouse door for good. It settles
the issue with politicians, not with judges and jurist, and it puts
Americans permanently in the dark on this issue. Did the telecoms break
the law? I have my own strong views on this but, candidly, I don't
know. That is what courts exist for. Pass immunity, and we will never
know the answer to that question. The President's favorite corporations
will be unchallenged. Their arguments will never be heard in a court of
law. The truth behind this unprecedented domestic spying will never see
the light of day. The book on our Government's actions will be closed
for good and sealed and locked and handed over to safekeeping of those
few whom George Bush trusts to keep a secret.
Over the next couple of days, I will do my best to explain why
retroactive immunity is so dangerous and, conversely, why it is so
important to President Bush. But first it would be useful to consider
the history of the bill before us, as I did at the outset of my
remarks, and how it fits into the history of the President's
warrantless spying on Americans.
For years, President Bush allowed Americans to be spied on with no
warrant, no court order, and no oversight. The origins of this bill,
the FISA Amendments Act, lie in the exposure of that spying in 2005.
That year, the New York Times revealed President Bush's ongoing abuse
of power. To quote from that investigation:
Under a presidential order signed in 2002, the National
Security Agency has monitored the international telephone
calls and international e-mail messages of hundreds, perhaps
thousands of people inside the United States without warrants
over the past 3 years.
In fact, we later learned that the President's warrantless spying was
authorized as early as 2001. Disgraced former Attorney General Alberto
Gonzales, in a 2006 white paper, attempted to justify that spying. His
argument rested on the specious claim that in authorizing the President
to go to war in Afghanistan, Congress had also somehow authorized the
President to listen in on the phone calls of Americans. But many of
those who voted on the original authorization of force found this claim
to new Executive powers to be laughable.
Here is what former majority leader Tom Daschle wrote at the time or
shortly thereafter:
As Senate majority leader . . . I helped negotiate that law
with the White House counsel's office over two harried days.
I can state categorically that the subject of warrantless
wiretaps of American citizens never came up. . . . I am also
confident that the 98 senators who voted in favor of
authorization of force against al Qaeda did not believe that
they were also voting for warrantless domestic surveillance.
Such claims to expand Executive power based on the authorization for
military force have since been struck down by the courts.
Recently, the administration has changed its argument, now grounding
its warrantless surveillance power in the extremely nebulous authority
of the President to defend the country that they find in the
Constitution. Of course, that begs the question, exactly what doesn't
fit in under defending the country? If we take the President at his
word, we would concede to him nearly unlimited power, power that
belongs in this case in the hands of our courts. Congress has worked to
bring the President's surveillance program
[[Page S218]]
back where it belongs--under the rule of law. At the same time, we have
worked to modernize FISA and ease restrictions on terrorist
surveillance.
The Protect America Act, a bill attempting to respond to the two-
pronged challenge--poorly, in my view--passed in August. But it is set
to expire this coming February. The bill now before us would create a
legal regime for surveillance under reworked and more reasonable rules.
But crucially, President Bush has demanded that this bill include
full retroactive immunity for corporations complicit in domestic
spying. In a speech on September 19, he stated that ``it's particularly
important for Congress to provide meaningful liability protection to
those companies.'' In October, he stiffened his demand, vowing to veto
any bill that did not shield the telecom corporations. And last month,
he resorted to shameful, misleading scare tactics, accusing Congress of
failing ``to keep the American people safe.'' That is absolutely
outrageous. An American President, at a time when there are serious
threats and reliable information that the threat still persists, an
American President is saying: Despite your efforts to modernize FISA by
providing the additional tools we need for proper surveillance on
terrorist activities, I will veto this bill, I will deny you this
legislation, if you don't provide protection for a handful of
corporations that violated the law. That is an incredible admission,
the fact that he is willing to lose all of the efforts we are making to
modernize FISA in order to grant retroactive immunity so you are not in
a court of law. Who is putting the country at greater risk? That is
what the debate is about. That is what the President has said. He will
veto the bill if we don't provide protection for a handful of
corporations that, for 5 long years, when their legal departments knew
exactly what the law was--AT&T was involved in the drafting of the FISA
legislation in 1978. How can that company possibly claim they didn't
know what the law of the land was when it came to FISA, going before
the secret FISA courts, getting those warrants to allow for the
Government to go in and do the proper surveillance and grant the
immunity that these companies would receive under that kind of a
situation. To avoid that court altogether was wrong. For 5 long years,
they did that.
Now the President says: I don't care what Jay Rockefeller or what Kit
Bond or what the Intelligence Committee has done to modernize FISA. If
you don't give me those protections I want for those handful of
corporations, then you are not going to get this bill that modernizes
the surveillance on terrorist activity.
The very same month, the FISA Amendments Act came before the Senate
Select Committee on Intelligence. Per the President's demand, it
included full retroactive immunity for the telecom corporations. Don't
give me it, I will veto the bill. And the committee went along. Senator
Nelson of Florida offered an amendment to strip that immunity and
instead allow the matter to be settled in the courts. It failed on a 3-
to-12 vote in committee. As it passed out of the Intelligence Committee
by a vote of 13 to 2, the bill still put corporations literally above
the law and assured that the President's invasion of privacy would
remain a secret.
At that time, I made public my strong objections on immunity, but the
bill also had to pass through the Judiciary Committee. Through an open
and transparent process, the Judiciary Committee amended several
provisions relating to title I and reported out a bill lacking the
egregious immunity provisions. However, I am still concerned that when
Senator Feingold proposed an amendment to strip immunity for good, it
failed by a vote of 7 to 12 in the committee.
So here we are, facing a final decision on whether the
telecommunications companies will get off the hook for good without us
ever knowing anything more about it, because if you grant immunity,
that is it. We will never learn anything else. The President is as
intent as ever he was on making that happen. He wants immunity back in
this bill at all costs, including a willingness to veto very important
legislation, without the meaningful provisions of this bill that would
provide this country with the kind of protection and security we ought
to have. He is willing to lose all of that. He is willing to trade off
all of that to give a handful of corporations immunity.
What he is truly offering is secrecy in place of openness. Fiat in
place of law. And in place of the forthright argument of judicial
deliberation that ought to be this country's pride, there are two
simple words he offers: Trust me.
I would never take that offer, not even from a perfect President.
Because in a republic, power was made to be shared; because power must
be bound by firm laws, not the whims of whomever happens to sit in the
Executive chair; because only two things make the difference between a
President and a king--the oversight of the legislative body, and the
rulings of the courts.
It is why our Founders formed this Government the way they did, with
three branches of government coequally sharing the powers to govern.
Each is a check on the other. That is what the Founders had been
through: the absence of that.
``Trust me.'' Those two small words bridge the entire gap between the
rule of law and the rule of men, and it is a dangerous irony that when
we need the rule of law the most, the rule of men is at its most
seductive.
It is a universal truth that the loss of liberty at home is
to be charged to the provisions against danger . . . from
abroad.
Let me repeat that.
It is a universal truth that the loss of liberty at home is
to be charged to the provisions against danger . . . from
abroad.
That is from James Madison, the father of our Constitution. He made
that prediction more than two centuries ago. If we pass immunity, and
put our President's word above the courts and witnesses and evidence
and deliberations, we bring that prophecy a step closer to coming true.
I repeat it again:
It is a universal truth that the loss of liberty at home is
to be charged to the provisions against danger . . . from
abroad.
James Madison.
So that is the deeper issue behind this bill. That is the source of
my passion, if you will. I reject President Bush's ``trust me'' because
I have seen what we get when we accept it.
I go back and mention just the maze, the list of egregious violations
of the rule of law over the last 6 years. With that aside, were this a
Democratic administration that would suggest this, I would be as
passionate about it, not because I distrust them necessarily but
because once we succumb to the passions or the desires of the rule of
men over the rule of law, then we trade off the most important
fundamental essence of who we are as a people.
We are a nation of laws and not men. How many times have we heard
that? You learn that in your first week of constitutional law. You
learn in your American history class as a high school student the
importance of the rule of law. If we walk away from that, then, of
course, we walk away from who we are as a people.
After all of that, President Bush, of course, comes to us in all
innocence and begs, once again: Trust me. He means it literally. Here
in the world's greatest deliberative body only a small handful of
Senators know even the barest facts; only a tiny minority of us have
even seen the classified documents that explain exactly what the
telecoms have done, exactly what actions we are asked to make legally
disappear.
I have been a Member of this body for over a quarter of a century. I
am a senior member of the Foreign Relations Committee. I have no right
to see this? As a Member of this body, as a senior member of the
Foreign Relations Committee, I am prohibited. Only the administration
can see this and one or two people here who are granted the right to
actually see and understand what went on.
So we are being asked as a body to blindly grant this immunity, take
this issue away entirely so no one can ever learn anything more about 5
long years of millions--millions--of Americans, with their private
phone conversations, their faxes, and e-mails. Every word uttered is
now being held and kept. And this administration knows it. The people
in charge of it know it. And we want to find out why this happened, who
ordered this, who provided this. If we grant this immunity, we will
never know the answers to those questions.
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So as far as the rest of us--we are flying blind. And in that state
of blindness, we can only offer one kind of oversight. The President's
favorite kind: the token kind. And here, in the dark, we are expected
to grant President Bush's wish. Because, of course, he knows best. Does
that sound familiar to any of my colleagues?
In 2002, we took the President's word and faulty intelligence on
weapons of mass destruction, and we mistakenly approved what has become
the disaster in Iraq.
Is history repeating itself in a small way today? Are we about to
blindly legalize gravely serious crimes?
If we have learned anything--if we have learned anything at all--it
must be this: Great decisions must be built on equally strong
foundations of fact. Of course, we are not voting to go to war today.
Today's issue is not nearly as immense, I would argue. But one thing is
as huge as it was in 2002; and that is, the yawning gap between what we
know and what we are asked to do.
So I stand again and oppose this immunity--wrong in itself,
grievously wrong, I would add, in what it represents: contempt for
debate, contempt for the courts, and contempt for the rule of law. As I
did in December, I will speak against that contempt as strongly as I
can.
So I will reserve further debate and discussion for tomorrow, as we
go forward with this. I say this respectfully to my colleagues. I do
not know if a cloture motion will be filed or not, but I hope there
will be enough people who will join me.
This bill can go forward without this immunity in it. And it ought to
go forward. There are some amendments that will be offered, some of
which I will support. There are ideas to improve on the FISA provisions
of the bill to see to it that the Foreign Intelligence Surveillance Act
will do exactly what we want it to do: to allow us to get that
surveillance on those who would do us harm and simultaneously make sure
that basic liberties are going to be protected.
But I will do everything in my power, to the extent that any one
Member of this body can, to see to it we do not go forward in the
provision of this bill that grants retroactive immunity for the
egregious misbehavior, to put it mildly, that went on here.
The courts may prove otherwise. I do not know. Maybe someone will
prove what they did turned out to be legally correct. But we are never
going to know that if we, as a body--Democrats and Republicans--walk
away from the rule of law and deny the courts of this land which have
the ability to do this. The argument that you cannot rely on the courts
to engage in a deliberation involving information that should be held
secret is wrong. We have done it on thousands of cases over the years,
and we can do it here.
So I hope there will be those who will join me in saying to the
President: If you want to veto this bill, go ahead. You veto it because
you did not get your corporations' immunity. You explain that to the
American public, why we did not have the tools available that kept
America safe from those who would do us harm--because a handful of
corporations decided to violate the law, in my view, and did so because
the Bush administration asked them to do that. You are going to veto
this bill to deny us those tools that our intelligence communities
ought to have to protect American citizens at a dangerous time. You
make that decision.
So when this debate continues tomorrow, I will offer some additional
thoughts in support of the Leahy amendment. I will be offering my own
amendment, to strike retroactive immunity, and I will be considering
other amendments along the way.
If all of that fails, then I will engage in the historic rights
reserved in this body for individual Members to talk for a while, to
talk about the rule of law, and to talk about the importance of it. I
do not think I have ever done this before. I have been here a long
time, and I rarely engage in such activities. I respect those who have.
The Founders of this wonderful institution granted the rights of
individual Senators to be significant, including the power of one
Senator to be able to hold the floor on an important matter about which
they care deeply. I care deeply about this issue. I think all of my
colleagues do. I just hope they will care enough about it to see to it
this bill does not go forward with the precedent-setting nature of
granting immunity in this case. It is not warranted. It is not
deserved. It was not a minor mistake over a brief period of time.
There is a pattern of behavior, and it went on for too long, and it
would still go on if it had not been for a report done by a newspaper
and a whistleblower who stood up within the phone company, who had the
courage to say this was wrong, or we would still be engaged in these
practices today.
I think we as a body--Democrats and Republicans--need to say to this
administration, and all future administrations, that you are not going
to step all over the liberties and rights of American citizens in the
name of security. That is a false choice, and we are not going to
tolerate that and set the precedent tonight or tomorrow by agreeing to
such a grant of immunity in this bill.
Mr. President, I appreciate the patience of the Chair and yield the
floor.
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