Calendar No. 463
112th Congress Report
SENATE
2d Session 112-229
======================================================================
THE FAA SUNSETS EXTENSION ACT OF 2012
_______
September 20, 2012.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 3276]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, which considered the
original bill (S. 3276), to extend certain amendments made by
the FISA Amendments Act of 2008, and for other purposes, having
considered the same, reports favorably thereon, with amendment,
and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose of The FAA Sunsets Extension Act of 2012.................1
II. Background.......................................................3
III. History of the Bill and Committee Consideration..................8
IV. Section-by-Section Summary of the Bill..........................11
V. Congressional Budget Office Cost Estimate.......................12
VI. Regulatory Impact Evaluation....................................14
VII. Conclusion......................................................14
VIII.Additional and Minority Views...................................15
IX. Changes to Existing Law Made by the Bill, as Reported...........24
X. Appendix........................................................28
I. Purpose of the FAA Sunsets Extension Act of 2012
Title VII of the Foreign Intelligence Surveillance Act of
1978 (``FISA'') is scheduled to sunset on December 31, 2012,
unless it is reauthorized by Congress. Title VII of FISA was
initially enacted through the Foreign Intelligence Surveillance
Act of 1978 Amendments Act of 2008 (``FISA Amendments Act'' or
``FAA''). The FAA Sunsets Extension Act of 2012, as amended,
reauthorizes Title VII of FISA for three years, enabling
continued use of these important surveillance tools, while
improving and clarifying the oversight and accountability
provisions in Title VII to help ensure adequate protection of
the privacy rights and civil liberties of persons in the United
States.
The measure reported by the Committee reauthorizes the
provisions of Title VII of FISA until June 1, 2015. This is the
same date on which three other surveillance provisions of FISA
are set to expire, specifically Sections 206 and 215 of the USA
PATRIOT Act (P.L. 107-56) (colloquially known as the ``roving
wiretap'' and ``business records'' provisions) and Section
6001(a) of the Intelligence Reform and Terrorism Protection Act
(P.L. 108-458) (the ``lone wolf'' provision). Aligning the
sunsets for all of these provisions of FISA will allow Congress
to consider these important surveillance authorities in a
comprehensive fashion, and avoid the repeated consideration of
multiple sunsets that has resulted in a number of short-term
extensions during the past several years. Indeed, an
overwhelming, bipartisan majority of the Senate Select
Committee on Intelligence proposed the exact same approach when
it approved the Intelligence Authorization Act for Fiscal Year
2012, noting in its committee report that ``[t]he alignment of
all the remaining sunset dates in FISA--those recently extended
by Congress to June 1, 2015 and the sunset for Title VII--will
provide Congress with an opportunity to examine comprehensively
all expiring authorities at the same time rather than in a
piecemeal fashion.''\1\
---------------------------------------------------------------------------
\1\Senate Report 112-043, accompanying S. 1458, Intelligence
Authorization Act for Fiscal Year 2012, at p. 15.
---------------------------------------------------------------------------
The reported measure also bolsters the oversight and
accountability provisions contained in Title VII of FISA by,
among other things, requiring the Inspector General of the
Intelligence Community to conduct a comprehensive review of the
implementation of the FISA Amendments Act, with particular
regard to the protection of the privacy rights of United States
persons. The bill also clarifies the scope of the annual
reviews submitted by the relevant agencies involved in the
implementation of Title VII to ensure that Congress receives
sufficient information to perform its oversight duties. In
addition, in order to improve transparency, the bill requires
the Inspector General of the Intelligence Community to release
publicly a summary of his conclusions following the
comprehensive review of the implementation of the Title VII
surveillance authorities.
Senator Feinstein, Chairman of the Senate Select Committee
on Intelligence, has noted that none of these provisions pose
operational problems. Instead, this measure permits the
intelligence community to continue its surveillance activities
authorized under Title VII, while ensuring--through improved
oversight and accountability measures, and a more reasonable
sunset date--that the privacy rights and civil liberties of
Americans are protected.
II. Background
A. THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
The Foreign Intelligence Surveillance Act was enacted by
Congress in 1978 in the wake of revelations that the Government
had abused its power by conducting extensive surveillance on
American citizens during the 1960s and 1970s under the guise of
protecting national security.\2\ Through the passage of FISA,
Congress established a Foreign Intelligence Surveillance Court
(``FISC'' or ``FISA court'') comprised of sitting Federal
judges, as well as a statutory framework within which the FISA
court could determine when the Government could properly seek
to gather foreign intelligence information from United States
persons. The primary standard applied by the FISA court in
assessing surveillance requests by the Government is whether
there is probable cause to believe that the target of the
surveillance is the agent of a foreign power.\3\
---------------------------------------------------------------------------
\2\Foreign Intelligence Surveillance Act of 1978, P.L. 95-511, 50
U.S.C. Sec. 1801 et seq.
\3\See, e.g., 50 U.S.C. Sec. 1805(a)(2)(A). A detailed summary of
the history and legal standards of the Foreign Intelligence
Surveillance Act can be found in the following CRS report:
``Reauthorization of the FISA Amendments Act,'' Congressional Research
Service, September 12, 2012, available at http://www.crs.gov/pages/
Reports.aspx?PRODCODE=R42725&Source=search.
---------------------------------------------------------------------------
B. ENACTMENT OF THE FISA AMENDMENTS ACT OF 2008
Shortly after the terrorist attacks on September 11, 2001,
President Bush authorized the National Security Agency (NSA) to
conduct secret, warrantless surveillance within the United
States of international communications into and out of the
United States. President Bush stated that this surveillance was
directed at ``persons linked to al Qaeda or related terrorists
organizations.'' This warrantless surveillance was conducted
outside the scope of FISA, without any approval by the FISA
court, and without the full knowledge or consent of Congress.
The public first became aware of the existence of this
warrantless surveillance program in December 2005 through a
report in The New York Times. In January 2007, Attorney General
Alberto Gonzales announced that this warrantless surveillance
program, which came to be known as the Terrorist Surveillance
Program (TSP), would be conducted subject to the approval of
the FISA court.
In the spring of 2007, the Director of National
Intelligence submitted to Congress a proposal to amend FISA to
ease restrictions on the surveillance of communications of
foreigners where one or both parties to the communication were
located overseas. The legislative proposal allowed the
Government to target for surveillance any ``person reasonably
believed to be outside of the United States'' without the need
for a FISA court order. Congress enacted this proposed
legislation in August 2007 as the Protect America Act, but
imposed a six-month sunset on the legislation because of
concerns that the bill lacked sufficient protection for or
oversight of communications involving United States persons.
In the fall of 2007, Congress began consideration of
various legislative proposals to replace the Protect America
Act, which ultimately expired in February 2008. The Senate
Select Committee on Intelligence reported a bill in October
2007 that created a new legal framework for the collection of
communications targeting non-United States persons who were
reasonably believed to be located overseas. Notably, that bill,
S. 2248, included a provision that provided retroactive
immunity from civil suit to those private sector
telecommunications companies that had aided the Government in
conducting warrantless wiretapping through the Terrorist
Surveillance Program. In November 2007, the bill was
sequentially referred to the Senate Judiciary Committee, where
it was amended to remove the retroactive immunity provisions
and to include additional oversight and privacy protections.
The legislation that was ultimately enacted in July 2008,
however, retained the retroactive immunity provisions, but only
some of the oversight and privacy protection provisions that
had been included in the bill reported by the Senate Judiciary
Committee. The final legislation--the Foreign Intelligence
Surveillance Act of 1978 Amendments Act of 2008 (``FISA
Amendments Act'')--included a sunset date of December 31, 2012.
The retroactive immunity provisions were not subject to the
sunset.
C. OVERVIEW OF TITLE VII OF FISA
The primary surveillance authority granted by the FISA
Amendments Act is found in Section 702 of FISA. Section 702
permits the Government to conduct domestic electronic
surveillance to collect foreign intelligence information from
individuals who are non-U.S. persons, and who are reasonably
believed to be located outside the United States. Under Section
702, the Government is not required to seek individualized
court orders authorizing surveillance as to specific targets.
Instead, the Attorney General and the Director of National
Intelligence (``DNI'') must submit to the FISA court annual
certifications identifying categories of foreign intelligence
targets that the Government seeks to surveil electronically.
Government acquisitions of data under Section 702 are
subject to a number of express limitations imposed by Congress.
Acquisitions under Section 702 may not intentionally target any
person known at the time of acquisition to be located in the
United States. In addition, the statute contains an express
prohibition against so-called ``reverse targeting,'' where the
Government intentionally targets a person located outside the
United States with the purpose of targeting a particular person
reasonably believed to be located within the United States.
Section 702 data collection also may not be used to
intentionally target a United States person reasonably believed
to be located outside the United States, nor may it be used to
intentionally acquire any wholly domestic communications, i.e.,
communications as to which the sender and all intended
recipients are known at the time of acquisition to be located
in the United States. Finally, Section 702 expressly requires
that all collection of data under this authority must be
conducted in a manner consistent with the Fourth Amendment to
the Constitution.
Section 702 also requires that the Attorney General, in
consultation with the DNI, adopt targeting and minimization
procedures, as well as acquisition guidelines. The statute
requires that the targeting procedures be ``reasonably
designed'' to ensure that the Government does not collect
wholly domestic communications, and that only persons outside
the United States are targeted for surveillance. The
minimization procedures adopted by the Attorney General must
protect the identities of United States persons, as well as any
nonpublic information concerning those individuals that might
be acquired incidentally by the Government. Before it will
approve a certification for Section 702 surveillance, the FISA
court must review and approve the targeting and minimization
procedures submitted by the Attorney General to ensure that
they comply with both the statute and the Fourth Amendment.
Although the Government is required to share with Congress any
significant legal opinions by the FISA court related to Section
702, these legal documents remain classified and have not been
disclosed publicly, either in redacted or summary form.
The acquisition guidelines are designed to ensure
compliance with the express limitations in Section 702
discussed above, including the prohibitions on ``reverse
targeting'' and the acquisition of wholly domestic
communications. Unlike the targeting and minimization
procedures, however, the acquisition guidelines are not subject
to FISA court approval.
Sections 703 and 704 of FISA specifically deal with the
targeting of United States persons reasonably believed to be
located outside the United States, in order to collect foreign
intelligence information. Under Section 703, the Government
must demonstrate to the FISA court that there is probable cause
that the target is a foreign power, an agent of a foreign
power, or an officer or employee of a foreign power, before it
can conduct electronic surveillance or acquire stored
electronic communications or data in the United States. When
the surveillance targets a U.S. person and is conducted
overseas, and when the target ``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,'' Section 704 requires a similar showing of probable
cause that the target is a foreign power, agent of a foreign
power, or an officer or employee of a foreign power. Notably,
prior to enactment of Section 704, such overseas acquisitions
targeting U.S. persons had been governed by Section 2.5 of
Executive Order 12333, and the probable cause determinations
had been made by the Attorney General. With enactment of
Section 704, the Government's showing of probable cause is now
subject to judicial review by the FISA court.
In addition to the judicial review provided by the FISA
court, Title VII of FISA contains a number of reporting and
oversight provisions to help protect the privacy rights and
civil liberties of U.S. persons, and to ensure compliance with
the statute. Every six months, for example, the Attorney
General and the DNI are required to provide Congress and the
FISA court with an assessment of compliance with the targeting
and minimization procedures, as well as compliance with the
acquisition guidelines. The statute also requires that the head
of each element of the intelligence community conducting an
acquisition authorized under Section 702 conduct an annual
review of the implementation of Section 702 surveillance. In
addition, attorneys with the Department of Justice coordinate
with the Office of the Director of National Intelligence
(``ODNI'') and conduct on-site reviews of the Section 702
surveillance activities of the relevant intelligence community
agencies at least once every 60 days. These reviews include
routine examinations of the targeting determinations made by
the relevant agencies. To date, these internal assessments and
reviews have not revealed any intentional attempt to circumvent
or violate the legal requirements of Section 702.
Under Section 702, the Inspector General of the Department
of Justice and the inspector general of each element of the
intelligence community authorized to acquire foreign
intelligence information under Section 702 are authorized--but
not required--to review certain aspects of the implementation
of Section 702. Although the Committee has had the opportunity
to review the reports of the inspector general for one of the
relevant agencies and only just recently received the first
compliance report from another, these reports do not cover the
full scope of topics set forth in the statutory authorization
for agency assessments. Moreover, there has been no
comprehensive review of the implementation of Section 702 by an
independent inspector general that covers all of the relevant
agencies in the intelligence community. Such a comprehensive
review that cuts across agency boundaries could be accomplished
by the newly-created Inspector General of the Intelligence
Community.
D. NEED FOR REAUTHORIZATION OF TITLE VII OF FISA
On February 8, 2012, the Attorney General and the Director
of National Intelligence (DNI) sent a letter to the leadership
of the Senate and the House of Representatives, urging Congress
to reauthorize Title VII of FISA, and noting that
reauthorization of this authority is ``the top legislative
priority of the Intelligence Community.''\4\ Attorney General
Holder and DNI Clapper asserted in that letter that
``[i]ntelligence collection under Title VII has produced and
continues to produce significant intelligence that is vital to
protect the Nation against international terrorism and other
threats.'' Along with the February 8, 2012 letter, the
administration provided Congress with an unclassified
background paper on Title VII that had been prepared by the
Department of Justice and the Office of Director of National
Intelligence.\5\ According to that unclassified background
paper, Section 702 collection ``provides information about the
plans and identities of terrorists'' and enables the
intelligence community to ``collect information about the
intentions and capabilities of weapons proliferators and other
foreign adversaries who threaten the United States.'' The
administration asserts that ``[f]ailure to reauthorize Section
702 would result in a loss of significant intelligence and
impede the ability of the Intelligence Community to respond
quickly to new threats and intelligence opportunities.''
---------------------------------------------------------------------------
\4\February 8, 2012 letter from DNI Clapper and Attorney General
Holder to Speaker Boehner, Majority Leader Reid, Rep. Pelosi, and
Senator McConnell. (Attached in Appendix).
\5\Id.
---------------------------------------------------------------------------
E. CHANGES TO SUNSET AND OVERSIGHT PROVISIONS IN S. 3276, AS REPORTED
1. June 2015 sunset
During its executive business meeting on July 19, 2012, the
Committee adopted and reported favorably a substitute amendment
to S. 3276 that was offered by Chairman Leahy and supported by
Senator Feinstein, Chairman of the Senate Select Committee on
Intelligence. As amended, the measure extends the sunset of
Title VII of FISA until June 1, 2015. Extending the sunset for
Title VII to 2015 will enable Congress to revisit these
important provisions in a timely manner--which is particularly
important since the work of the relevant inspectors general has
not yet been fully completed. Indeed, as acknowledged in the
Minority Views, the Inspector General for the Department of
Justice did not issue its first compliance report on Section
702 implementation until September 12, 2012, and that report
was necessarily limited in scope. The alternative of a five-
year extension of the Title VII authorities, without any
additional oversight or accountability improvements, and
without the benefit of the complete work of the inspectors
general, is ill-advised and inconsistent with this Committee's
constitutional responsibility to provide vigorous and effective
oversight.
A June 2015 sunset date would also align with the sunset
dates for the other expiring provisions of FISA, namely
Sections 206 and 215 of the USA PATRIOT Act (the ``roving
wiretap'' and ``business records'' provisions) and Section
6001(a) of the Intelligence Reform and Terrorism Protection Act
(the ``lone wolf'' provision). This alignment will provide
Congress with the opportunity to consider these important
surveillance provisions in a comprehensive manner. The Minority
Views assert that aligning these sunsets would somehow cause
operational problems because the intelligence community might
be concerned that these intelligence tools would ``disappear in
the middle of an operation,'' and, therefore, would forego
using one of these provisions.\6\ The Minority Views overlook,
however, that the FISA Amendments Act already provides for
transition procedures that would ensure that any orders,
authorizations, or directives issued prior to the sunset date
would not just ``disappear,'' but rather would continue in
effect until the date of the expiration of such order,
authorization, or directive.\7\ Nothing in the measure reported
by the Committee would change how those transition procedures
operate, and the Committee has received no information from the
intelligence community indicating any such concern.
---------------------------------------------------------------------------
\6\Minority Views at 5.
\7\Section 404(b)(1) of the FISA Amendments Act of 2008 (P.L. 110-
261).
---------------------------------------------------------------------------
To the contrary, the Chairman of the Senate Select
Committee on Intelligence has stated that none of the
provisions in the substitute amendment--including the June 2015
sunset--pose any operational problems. Indeed, an overwhelming
bipartisan majority of the Senate Select Committee on
Intelligence proposed an identical approach to aligning the
FISA sunsets when that committee reported S. 1458, the
Intelligence Authorization Act for Fiscal Year 2012. After
approving the bill by a 14-1 bipartisan vote, the Senate
Intelligence Committee stated in its report to the full Senate
that ``alignment of all the remaining sunset dates in FISA--
those recently extended by Congress to June 1, 2015 and the
sunset for Title VII--will provide Congress with an opportunity
to examine comprehensively all expiring authorities at the same
time rather than in a piecemeal fashion.''\8\
---------------------------------------------------------------------------
\8\Senate Report 112-043, accompanying S. 1458, Intelligence
Authorization Act for Fiscal Year 2012, at p. 15.
---------------------------------------------------------------------------
2. Improved oversight
The measure reported by the Committee also requires the
Inspector General of the Intelligence Community to conduct a
comprehensive and independent review of the implementation of
the FISA Amendments Act surveillance authorities, and expands
and clarifies the scope of the inspector general reviews and
annual reporting requirements.\9\ The Inspector General of the
Intelligence Community would be required to review the
procedures and guidelines developed by the intelligence
community to implement Section 702, particularly with respect
to the protection of the privacy rights of U.S. persons. In
addition, the Inspector General of the Intelligence Community
would be required to evaluate the limitations, procedures, and
guidelines designed to protect U.S. person privacy rights, as
well as an evaluation of the circumstances under which the
contents of communications may be searched in order to review
the communications of particular U.S. persons.
---------------------------------------------------------------------------
\9\The assertion in the Minority Views that the reported bill
``requires the Inspector Generals [sic] of the various Intelligence
Community agencies to review the acquisition, use, and dissemination of
Section 702 information'' is incorrect. See Minority Views at 4. The
reported bill clarifies the scope of the existing authorization and
requirements for the Inspectors General for the relevant agencies, but
does not require any review of the acquisition, use, or dissemination
of Section 702 information. Pursuant to Section 3(b)(2) of the reported
bill, the Inspector General of the Intelligence Community (not the
Inspectors General for the other relevant agencies) is authorized--but
not required--to conduct such a review.
---------------------------------------------------------------------------
Contrary to the argument in the Minority Views, the
reported measure provides the Inspector General of the
Intelligence Community with the authority to evaluate the
specific procedures, guidelines, and limitations outlined in
existing statute, not to develop privacy policy. Interestingly,
in arguing against an independent review by the Inspector
General of the Intelligence Community, the Minority Views
inadvertently provides support for periodic sunsets of the
Title VII provisions, noting that ``[i]n fact, the process of
reauthorizing the legislation has enabled the Committee to
investigate this very subject.''\10\
---------------------------------------------------------------------------
\10\See Minority Views at 6.
---------------------------------------------------------------------------
Finally, the Inspector General of the Intelligence
Community would be required to make publicly available a
summary of the findings and conclusions of any review conducted
pursuant to this authority. Significantly, this provision does
not require the Inspector General of the Intelligence Community
to issue a full unclassified report, but rather it requires
that a summary of the findings and conclusions be made publicly
available ``in a manner consistent with the protection of the
national security of the United States.'' As such, the repeated
assertions in the Minority Views that the bill requires public
disclosure of a heavily redacted ``report'' are plainly
inaccurate.\11\
---------------------------------------------------------------------------
\11\Id. In addition, the citation in footnote 16 of the Minority
Views to Senate Report No. 112-174 is inapposite, as that report was
issued by the Senate Select Committee on Intelligence, not the Senate
Judiciary Committee, and contains no pertinent description of the IC IG
review authorized by the measure reported by this Committee.
---------------------------------------------------------------------------
III. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
The FAA Sunsets Extension Act of 2012 was introduced as S.
3276 in the Senate Select Committee on Intelligence (SSCI).
During a closed meeting on May 22, 2012, the SSCI considered
the bill and amendments. The bill introduced in the SSCI
provided for an extension of the Title VII authorities--without
amendment--until June 1, 2017. That legislation was reported by
the SSCI to the full Senate on June 7, 2012, with Report No.
112-174.
B. COMMITTEE CONSIDERATION
At the request of the Chairman and Ranking Member, the
Committee was provided a classified briefing on Title VII of
FISA by administration officials on June 26, 2012. On June 28,
2012, Chairman Leahy and Ranking Member Grassley sent a letter
to Majority Leader Harry Reid jointly requesting that the FAA
Sunsets Extension Act of 2012, S. 3276, be referred
sequentially to the Senate Judiciary Committee for
consideration. The bill was placed on the Committee's agenda
for consideration on July 12, 2012. Pursuant to the request of
Ranking Member Grassley, the bill was held over for
consideration the following week.
On July 19, 2012, the Committee on the Judiciary considered
S. 3276 during an open and public executive business meeting.
Chairman Leahy offered a substitute amendment, described above,
that was agreed to by the Committee. Senator Kyl and Senator
Sessions later requested that they be recorded as having
opposed adoption of the substitute amendment.
The Committee then proceeded to consideration of a number
of amendments that had been filed in advance of the July 19
executive business meeting. With the exception of the
substitute amendment offered by Chairman Leahy and the
amendment offered jointly by Senators Lee and Durbin, none of
the other amendments filed or offered by the Minority dealt
with the substance of FISA, the FISA Amendments Act, or any
other provision in Title 50. Instead, despite requests from
both Chairman Leahy and Senator Feinstein that those amendments
be offered at another time in order to facilitate the
expeditious consideration of these important surveillance
provisions, Republican Senators offered a series of amendments
that Senator Feinstein described as ``extraneous''.
Senator Kyl offered an amendment to create a new offense in
Title 18 in order to prohibit material support with the intent
to reward or facilitate international terrorism. The amendment
would also increase the maximum penalties for existing material
support crimes. The amendment was rejected by a roll call vote.
The vote record is as follows:
Tally: 8 Yeas, 10 Nays
Yeas (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT),
Coburn (R-OK).
Nays (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA),
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
Senator Grassley offered an amendment to add the death
penalty as a punishment to certain crimes involving weapons of
mass destruction. Senator Feinstein offered a motion to table
the amendment. The motion to table was accepted by a roll call
vote.
The vote record is as follows:
Tally: 10 Yeas, 8 Nays
Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA),
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT),
Coburn (R-OK).
Senator Cornyn offered an amendment to require the
President, within 30 days, to disclose to the Senate and House
Committees on the Judiciary, Intelligence and Armed Services,
the Department of Justice's Office of Legal Counsel memos
discussing the legal basis for the targeted killing of United
States citizens abroad. Senator Feinstein offered a motion to
table the amendment. The motion to table was accepted by a roll
call vote.
The vote record is as follows:
Tally: 10 Yeas, 8 Nays
Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA),
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT),
Coburn (R-OK).
Senator Lee offered an amendment to require the Government
to obtain a warrant before querying the content of
communications collected under the FISA Amendments Act with the
purpose of finding a United States person's communications. The
amendment was rejected by a roll call vote.
The vote record is as follows:
Tally: 3 Yeas, 15 Nays
Yeas (3): Durbin (D-IL), Coons (D-DE), Lee (R-UT).
Nays (15): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA),
Schumer (D-NY), Whitehouse (D-RI), Klobuchar (D-MN), Franken
(D-MN), Blumenthal (D-CT), Grassley (R-IA), Hatch (R-UT), Kyl
(R-AZ), Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Coburn
(R-OK).
Senator Grassley offered an amendment to require the
Department of Justice Inspector General to audit all Federal
criminal wiretap applications in 2009 and 2010 in order to
determine whether Department of Justice officials reviewed the
contents of applications filed with the Federal courts. Senator
Feinstein offered a motion to table the amendment. The motion
to table was accepted by a roll call vote.
The vote record is as follows:
Tally: 10 Yeas, 8 Nays
Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA),
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT),
Coburn (R-OK).
Senator Cornyn offered an amendment to require the
President, within seven days, to report to congressional
leaders and the heads of the Senate and House intelligence
committees any targeted killing of a United States citizen
abroad. Senator Feinstein offered a motion to table the
amendment. The motion to table was accepted by a roll call
vote.
The vote record is as follows:
Tally: 10 Yeas, 8 Nays
Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA),
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT),
Coburn (R-OK).
Following the roll call vote on the Cornyn amendment, the
Committee was unable to maintain a quorum and recessed subject
to the call of the chair. At 2:15 p.m. on July 19, 2012, a
sufficient quorum of the Committee assembled, and the Committee
resumed the executive business meeting. The Committee then
voted to report S. 3276, the FAA Sunsets Extension Act, as
amended, favorably to the full Senate. The Committee proceeded
by roll call vote as follows:
Tally: 10 Yeas, 8 Nays
Yeas (10): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA),
Schumer (D-NY), Durbin (D-IL), Whitehouse (D-RI), Klobuchar (D-
MN), Franken (D-MN), Coons (D-DE), Blumenthal (D-CT).
Nays (8): Grassley (R-IA), Hatch (R-UT), Kyl (R-AZ),
Sessions (R-AL), Graham (R-SC), Cornyn (R-TX), Lee (R-UT),
Coburn (R-OK).
IV. Section-by-Section Summary of the Bill
Section 1. Short title
This section provides that the legislation may be cited as
the ``FAA Sunsets Extension Act of 2012.''
Section 2. Extension of FISA Amendments Act of 2008 Sunset
This section extends the sunset on Title VII of the Foreign
Intelligence Surveillance Act from December 31, 2012 to June 1,
2015.
Section 3. Inspector general reviews
This section clarifies the scope of the authorization for
reviews by the inspectors general for agencies and elements of
the intelligence community that implement Section 702 of FISA.
It ensures that such reviews cover any agency or element that
has targeting or minimization procedures approved by the FISA
court pursuant to Section 702. Additionally, this section
requires that under such inspectors general reviews, an
accounting of the number of targets that are later determined
to be United States persons be included. Current law only
requires an accounting of the number of targets later
determined to be located within the United States.
This section also requires a new independent review by the
recently established Inspector General of the Intelligence
Community, which was created in 2010 (P.L. 111-259). The review
requires the Inspector General of the Intelligence Community to
report on the procedures and guidelines developed by the
intelligence community to implement Section 702 of FISA, with
respect to the protection of the privacy rights of United
States persons. The Inspector General of the Intelligence
Community review must include an evaluation of the limitations,
procedures, and guidelines designed to protect United States
person privacy rights, as well as an evaluation of the
circumstances under which the contents of communications may be
searched in order to review the communications of particular
United States persons. The Inspector General of the
Intelligence Community review is required to be submitted no
later than December 31, 2014.
Finally, this section requires an unclassified summary of
the findings and conclusions of the Inspector General's report
required in this section to be made publicly available.
Section 4. Annual reviews
This section makes changes to the annual review
requirements for those agencies and elements of the
intelligence community that implement Section 702 of FISA. The
changes made under this section are consistent with changes
made to the inspector general provisions in Section 3. This
section clarifies that annual reviews must be submitted by the
head of any agency or element that has targeting or
minimization procedures approved by the FISA court pursuant to
Section 702. Additionally, this section requires that those
annual reviews include an accounting of the number of targets
that are later determined to be United States persons. Current
law only requires an accounting of the number of targets later
determined to be located within the United States.
V. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S.
3276, the following estimate and comparison prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 14, 2012.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3276, the FAA
Sunsets Extension Act of 2012.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 3276--FAA Sunsets Extension Act of 2012
S. 3276 would extend the authority of the federal
government to conduct surveillance pursuant to the FISA
Amendments Act of 2008 (Public Law 110-261). Because CBO does
not provide cost estimates for classified programs, this
estimate addresses only the budgetary effects on unclassified
programs affected by the bill. On that basis, CBO estimates
that implementing S. 3276 would have no significant cost to the
federal government.
Enacting the bill could affect direct spending and
revenues; therefore, pay-as-you-go procedures apply. However,
CBO estimates that any effects would be insignificant for each
year.
The FISA Amendments Act of 2008 clarified the authority of
the federal government to surveil and intercept communications
of certain persons located outside the United States. S. 3276
would extend the provisions of that act through June 1, 2015
(otherwise, they expire after December 31, 2012). As a result,
the government might be able to pursue cases that it otherwise
would not be able to prosecute. CBO expects that S. 3276 would
apply to a relatively small number of additional offenders, so
any increase in costs for law enforcement, court proceedings,
or prison operations would not be significant. Any such costs
would be subject to the availability of appropriated funds.
In addition, S. 3276 would require the Inspector General of
the Intelligence Community to review certain procedures and
guidelines to protect the privacy rights of persons in the
United States and prepare a report based on that review. Based
on information from the intelligence community, CBO estimates
that any additional costs to complete those activities would
not be significant in any year.
Because those prosecuted and convicted under S. 3276 could
be subject to criminal fines, the federal government might
collect additional fines if the legislation is enacted.
Criminal fines are deposited as revenues in the Crime Victims
Fund and later spent. CBO expects that any additional revenues
and direct spending would not be significant because of the
relatively small number of cases likely to be affected.
The bill would impose both private-sector and
intergovernmental mandates by extending an existing mandate
that would require providers of electronic communication
services to furnish information. The bill also would extend an
existing mandate by exempting electronic communication service
providers from liability when they comply with an order to
furnish information. CBO cannot determine whether the costs to
electronic communication service providers to furnish
information as required by the bill or the forgone damages of
individuals that sue such providers would exceed the annual
threshold established by the Unfunded Mandates Reform Act
(UMRA) for private-sector mandates ($146 million in 2012,
adjusted annually for inflation). However, few public entities
receive requests to provide information, so the costs to
intergovernmental entities would be small. The bill also would
impose a mandate by extending an existing preemption of state
and local liability laws. CBO estimates that the costs to
public entities of all the intergovernmental mandates in the
bill would be small and well below the annual threshold
established in UMRA ($73 million in 2012, adjusted annually for
inflation).
On July 19, 2012, CBO transmitted a cost estimate for S.
3276, the FISA Amendments Act Reauthorization Act of 2012, as
reported by the Senate Select Committee on Intelligence on June
7, 2012. That version of the bill would not require reviews or
reports by the Inspector General of the Intelligence Community;
otherwise, the bills are similar and the cost estimates are the
same.
On July 2, 2012, CBO transmitted a cost estimate for H.R.
5949, the FISA Amendments Act Reauthorization Act of 2012, as
ordered reported by the House Committee on the Judiciary on
June 19, 2012. On July 19, 2012, CBO transmitted a cost
estimate for H.R. 5949 as reported by the House Permanent
Select Committee on Intelligence on June 28, 2012. CBO
estimated that both versions of H.R. 5949 would have no
significant cost to the federal government.
The CBO staff contacts for this estimate are Mark Grabowicz
(for federal costs), J'nell L. Blanco (for the impact on state
and local governments), and Elizabeth Bass (for the impact on
the private sector). The estimate was approved by Theresa
Gullo, Deputy Assistant Director for Budget Analysis.
VI. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 3276.
VII. Conclusion
The FAA Sunsets Extension Act of 2012, S. 3276, was
reported favorably with an amendment to the Senate by the
Committee on the Judiciary. The bill, as amended, preserves
important surveillance authorities for the collection of
foreign intelligence information while enhancing oversight and
reporting requirements. The reported measure contains a June
2015 sunset that aligns with the sunset dates for other
important provisions of FISA, including the business records
provision, the roving wiretap provision, and the ``lone wolf''
provision. A shorter sunset period ensures appropriate
Congressional oversight of the implementation of the FISA
Amendments Act. Additionally, the legislation contains new
reporting requirements on the implementation of the
surveillance authorities with respect to the privacy rights of
United States persons. A new review by the Inspector General of
the Intelligence Community that spans the entire intelligence
community would provide valuable information to Congress as it
performs its oversight role. Moreover, an unclassified summary
of the findings of this comprehensive report must be made
publicly available in order to bolster accountability and
transparency. Because the current surveillance authorities are
due to expire at the end of this year, the Committee recommends
swift action on S. 3276, as reported.
VIII. Additional and Minority Views
----------
ADDITIONAL VIEWS FROM SENATOR DURBIN AND MINORITY VIEWS FROM SENATOR
LEE
It is unclear how many communications involving American
citizens are collected, stored, and analyzed by the government
under Section 702 of the Foreign Intelligence Surveillance Act
(``FISA''). However large this number may be, we believe there
should be meaningful protections when the government searches
through such communications looking for information on
individual American citizens. Otherwise, by means of these so-
called ``backdoor'' searches, the government could potentially
conduct significant warrantless surveillance on American
persons. Current administration of the FISA Amendments Act thus
implicates core Fourth Amendment values.
The amendment we introduced would clarify that Section 702
of FISA does not permit the government to search the contents
of communications acquired pursuant to Section 702 for the
purpose of finding communications of a particular United States
person. In effect, the amendment would require that the
government obtain a warrant before performing queries within
the communications it has collected under Section 702 for the
purpose of finding an American person's communications. The
amendment excludes from the warrant requirement instances in
which an emergency authorization has been obtained, the life or
physical safety of the American person targeted by the search
is in danger and the search is for the purpose of assisting
that person, or where the United States person targeted in the
search has consented to that search. The amendment is identical
to that offered by Senators Wyden and Udall (CO) during
consideration of the bill by the Select Committee on
Intelligence.
FISA requires that the government obtain a FISA Court
warrant any time it seeks to conduct surveillance on a U.S.
person. Indirect surveillance of U.S. persons by means of
backdoor searches should be no different. No one disputes that
the government may have a legitimate need to conduct queries of
information collected under Section 702, and we would think no
one is surprised that the government asserts that a warrant
requirement would be burdensome. Indeed, that is the precise
nature of a warrant requirement--to require the government to
articulate and justify the need for its intrusion on the
privacy of U.S. persons. Whether under Title III or FISA more
generally, the government will often have legitimate needs to
conduct searches. But no one would suggest that the existence
of a legitimate need for information obviates the need for the
government to obtain a warrant in those contexts, and we find
the assertion of this argument with respect to Section 702
similarly unpersuasive.
Dick Durbin.
Michael S. Lee.
MINORITY VIEWS OF SENATORS GRASSLEY, HATCH, KYL, SESSIONS, GRAHAM,
CORNYN AND COBURN
Expiring Provisions Should Be Extended to 2017
On February 8, 2012, Attorney General Eric Holder and
Director of National Intelligence James Clapper wrote to
Speaker of the House Boehner, Majority Leader Reid, Minority
Leader Pelosi, and Minority Leader McConnell urging Congress to
reauthorize Title VII of the Foreign Intelligence Surveillance
Act (FISA), enacted by the FISA Amendments Act of 2008 (FAA)
which is set to expire at the end of this year. In that letter,
Attorney General Holder and Director Clapper wrote,
``Intelligence collection under Title VII has produced and
continues to produce significant intelligence that is vital to
protect the nation against international terrorism and other
threats.''\1\ The letter described the critical importance of
Title VII, including Section 702, which authorizes surveillance
of non-U.S. persons located overseas who are of foreign
intelligence value. The authors added that ``[r]eauthorizing
this authority is the top legislative priority of the
Intelligence Community.''\2\
---------------------------------------------------------------------------
\1\Letter from James R. Clapper, Director of National Intelligence,
and Eric Holder, Attorney General, to John Boehner, Speaker of the
House, Harry Reid, Senate Majority Leader, Nancy Pelosi, House Minority
Leader, and Mitch McConnell, Senate Minority Leader (February 8, 2012)
(on file with U.S. Senate Judiciary Committee minority staff).
\2\ Id.
---------------------------------------------------------------------------
Title VII of FISA includes several valuable tools,
described more fully below, which allow the Intelligence
Community to quickly gather information on terrorist threats
and intelligence leads. Most notably, Section 702 authorizes,
with approval from the Foreign Intelligence Surveillance Court
(FISC), electronic surveillance of non-U.S. persons located
overseas, but without the need for individualized orders for
every target of the surveillance, as is required for
surveillance of anyone inside the United States. According to
the Director of National Intelligence and Attorney General,
Section 702 gives the Intelligence Community the flexibility to
rapidly respond to a wide variety of threats against the United
States.\3\ The Attorney General and the Director of National
Intelligence warned that failure to reauthorize Title VII of
FISA would ``result in a loss of significant intelligence and
the ability of the Intelligence Community to respond quickly to
new threats and intelligence opportunities.''\4\
---------------------------------------------------------------------------
\3\ Id.
\4\ Id.
---------------------------------------------------------------------------
On May 22, 2012, in a 13-2 bipartisan vote, the Senate
Select Committee on Intelligence (SSCI) reported out S. 3276,
FAA Sunsets Extension Act of 2012, without amendment. The bill
does exactly what the Administration requested; namely, it
provides a clean reauthorization through June 1, 2017. It
simply replaces the current date of December 31, 2012 in the
statute with the new date. In reporting the bill to the Senate
floor, the SSCI stated that Title VII ``has been implemented
with attention to protecting the privacy and civil oversight of
U.S. persons, and has been subject to extensive oversight by
the Executive branch, the FISC, as well as Congress.''\5\
---------------------------------------------------------------------------
\5\FAA Sunsets Extension Act of 2012, S. Rep. No. 112-174, at 2
(2012) (majority report).
---------------------------------------------------------------------------
In reaching its conclusion, the SSCI found that:
Section 702 of FISA is narrowly tailored to
ensure that it may only be used to target non-U.S.
persons located abroad;
Congress recognized at the time the FISA
Amendments Act was enacted, it was not possible to
collect information from a foreign target without also
collecting information about people with whom that
target was communicating. Therefore, Congress mandated
that the Attorney General adopt, and the FISC approve,
procedures to minimize the acquisition, retention, and
dissemination of information concerning U.S. persons.
These minimization procedures, along with
the numerous reporting requirements already in
existence under FISA ``enable the Committee to evaluate
the extent to which [minimization] procedures are
effective in protecting the privacy and civil liberties
of U.S. persons.''
The Inspector Generals of the National
Security Agency (NSA) and the Intelligence Community
are currently conducting a review to determine whether
it is feasible to estimate the number of people located
in the U.S. whose communications may have been
incidentally collected under Section 702 of FISA, and
therefore no amendments on this subject are
necessary.\6\
---------------------------------------------------------------------------
\6\Id. at 8.
---------------------------------------------------------------------------
Chairman Feinstein issued Additional Views to the
Committee's report, explaining why the SSCI rejected several
amendments which sought to shorten the sunset provision and add
additional burdens on the Intelligence Community. The Chairman
wrote that after several hearings, numerous staff meetings with
Intelligence Community representatives, and reviews of
classified reports and FISC documents as part of its oversight
function, the SSCI concluded that existing FAA provisions were
adequate to protect the privacy and civil liberties of U.S.
persons.
SSCI Chairman Feinstein concluded that:
Ultimately, it is in the Nation's interest to see this
statute reauthorized, and the first priority of this
Congress, must be to ensure that this important law
does not lapse at the end of the year. The Committee's
action to report a clean bill that would extend the
sunsets of the FISA Amendments Act, without amendment
that could impede its ultimate enactment, is an
important step in ensuring this result.\7\
---------------------------------------------------------------------------
\7\Id. at 9.
We agree with Chairman Feinstein's statement. A clean
version of S. 3276 (i.e., without amendment) would simply
extend the sunset date from December 31, 2012 to June 1, 2017.
That is the only change that should be made to the statute. Our
oversight of the implementation of the statute has found no
evidence that it has been intentionally misused or that more
oversight is needed. A clean bill would allow the Intelligence
Community to continue utilizing these valuable tools against
potential terrorists or other intelligence targets without
interruption or delay and will provide the Intelligence
Community with much needed certainty and stability.
Title VII provides not only valuable intelligence tools but
also privacy protections. It was designed to facilitate the
collection of intelligence information about non-U.S. persons
abroad while balancing the Fourth Amendment rights of U.S.
persons whose communications are incidentally collected in the
course of such surveillance. No changes are therefore necessary
to the statute.
Section 702
As noted above, Section 702 authorizes, with approval of
the FISC, electronic surveillance of non-U.S. persons located
overseas, but without the need for individualized orders for
every target of the surveillance.\8\ Section 702 specifically
prohibits targeting U.S. persons, acquiring wholly domestic
communications, or targeting someone outside the U.S. with the
intent to collect information on a target inside the U.S.
(known as ``reverse-targeting''). Thus, since the target of any
surveillance is a non-U.S. person, the only way that a U.S.
citizen's privacy is potentially compromised is if that U.S.
person is in contact with the foreign target. In essence, the
surveillance only incidentally affects U.S. persons. Section
702 also requires that the government demonstrate to the FISC
that it has ``targeting procedures'' that are designed to weed
out intentional collection of communications of anyone located
inside the United States, that the Intelligence Community uses
``minimization procedures'' that restrict the use of any
information about U.S. persons that is incidentally collected,
and that it has ``acquisition guidelines'' that ensure that the
statutory limits on collection are obeyed.
---------------------------------------------------------------------------
\8\50 U.S.C. Sec. 1881a.
---------------------------------------------------------------------------
Under Section 702, the FISC reviews and approves annual
certifications from the Attorney General and Director of
National Intelligence about collection of information on
categories of foreign intelligence targets, what procedures the
Intelligence Community will use to accomplish this
surveillance, how they will target subjects for surveillance,
and how the Intelligence Community will use the information.
This format allows the FISC to review on whom and how the
Intelligence Community is conducting surveillance while also
protecting the constitutional rights of U.S. persons.
In addition, FISA requires that the Attorney General and
Director of National Intelligence conduct semi-annual
assessments of the Intelligence Community's compliance with the
targeting and minimization procedures and the acquisition
guidelines and report to Congress on the results of their
audits. Separately, they internally review compliance every 60
days. Furthermore, the statute authorizes the Inspector General
of the Department of Justice to review the program at any time
and requires that significant opinions of the FISC and the FISC
appellate court be provided to Congress.
The combination of the statutory limitations on collection,
targeting and minimization procedures, and acquisition
guidelines, FISC review of those procedures and guidelines, and
compliance oversight by the Administration and Congress, ensure
that the rights of U.S. persons are sufficiently protected when
their communications are incidentally collected in the course
of targeting non-U.S. persons located abroad.
Sections 703 and 704
Sections 703\9\ and 704\10\ cover electronic surveillance
or searches of stored communications of U.S. persons who are
located abroad, when conducted in the United States, and other
searches of U.S. persons abroad, respectively. They require
that the government obtain authorization from the FISC for such
searches, and such authorization is dependent on showing of
probable cause that the targeted U.S. person is a foreign
power, an agent of a foreign power, or an officer or employee
of a foreign power.
---------------------------------------------------------------------------
\9\50 U.S.C. 1881b.
\10\50 U.S.C. 1881c.
---------------------------------------------------------------------------
AMENDMENTS IN COMMITTEE
Despite the Administration's desire to pass a clean bill
with an extension to 2017, and the SSCI's thoughtful
conclusions in reporting such a bill, the Chairman proceeded
with a substitute amendment. The substitute amendment is
unnecessary. It will simply delay passage of a critical
national security bill and provide uncertainty for our national
security operators in the field. Indeed, the substitute creates
a risk that the statute will be allowed to sunset, causing
operational problems and the loss of a valuable and productive
national security tool.
The substitute amendment: (1) seeks to shorten the sunset
provision from June 1, 2017 to June 1, 2015; (2) requires the
Inspector Generals of the various Intelligence Community
agencies to review the acquisition, use, and dissemination of
Section 702 information; (3) requires the Inspector General of
the Intelligence Community to review the acquisition, use, and
dissemination of Section 702 information and evaluate its
impact on the privacy rights of U.S. citizens; and (4) requires
the Inspector General to produce and publicly release an
unclassified report of its findings.
First of all, by shortening the extension of the Title VII
provisions to less than three years, Congress fails to provide
needed certainty and predictability to law enforcement and
counterterrorism officials. The Majority argues that in
shortening the sunset to June 1, 2015, it provides ``Congress
with the opportunity to consider these important surveillance
provisions in a comprehensive manner'' with other expiring
provisions of FISA--sections 206 and 215 of the USA PATRIOT Act
(the ``roving wiretap'' and ``business records'' provisions)
and section 6001(a) of the Intelligence Reform and Terrorism
Protection Act (the ``lone wolf'' provision).\11\ While
addressing the extension of these statutes together may offer
some convenience, it is problematic.
---------------------------------------------------------------------------
\11\Id. at 6-7.
---------------------------------------------------------------------------
By aligning the expiration of the FAA with expiring
provisions of the USA PATRIOT Act, we run the risk of failing
to authorize not one, but two sets of vital national security
tools. Such risks and unpredictability factor into how
intelligence and counter-terrorism operations are designed. If
those charged with protecting our national security are
concerned with whether such a valuable tool will disappear in
the middle of an operation, they may choose to forego the
utilization of the tool and apply their resources elsewhere by
using less effective, but more stable techniques. Further, by
focusing on a host of national security tools at once, as
opposed to in alternating authorization cycles, it limits the
focus and scrutiny that is placed on each individual provision,
potentially weakening the current level of oversight provided
to these tools.
The majority's report itself provides an example of the
danger of attempting to reauthorize differing tools at the same
time. The report--deliberately or not--obfuscates the crucial
differences between Title VII of FISA and other parts of the
statute. In describing the activities conducted under Section
702, the report uses the loaded phrase, ``domestic electronic
surveillance.''\12\ This phrase implies that the U.S.
government intentionally collects, without a warrant, domestic
communications of U.S. persons under Section 702. It does not.
The Section 702 program targets non-U.S. persons who are
located abroad. At the most, it would only incidentally collect
an international communication of a U.S. person if that U.S.
person happened to communicate with a targeted person who is
outside the United States. Nevertheless, the canard that Title
VII is a ``domestic surveillance program'' directed at U.S.
citizens and not requiring warrants, in violation of the
Constitution, is widespread. Title VII has a different purpose
and legal basis than those domestic surveillance provisions
authorized elsewhere in the statute. Therefore, mixing together
discussion of these different tools only confuses and
complicates dispassionate oversight of each one.
---------------------------------------------------------------------------
\12\Id. at 4.
---------------------------------------------------------------------------
Neither this Committee, the SSCI, nor the Administration
has found instances where the expiring provisions have been
intentionally or systematically misused. As the SSCI Chairman
reported in the Committee report, ``Through four years of
oversight, the Committee has not identified a single case where
a government official engaged in a willful effort to circumvent
or violate the law.''\13\ In fact, Chairman Leahy himself has
admitted, ``I do not believe that there is any evidence that
the law has been abused, or that the communications of U.S.
persons are being intentionally targeted.''\14\ Given the
robust oversight in place, a shortened sunset date aligning
multiple national security authorizations creates instability,
provides no benefits, and potentially weakens the level of
scrutiny the provisions are given in alternating authorization
cycles.
---------------------------------------------------------------------------
\13\Id. at 7.
\14\Senator Patrick J. Leahy, ``Opening Statement, Executive
Business Meeting,'' (July 19, 2012), available at: http://
www.leahy.senate.gov/press/senate-judiciary-committee-approves-leahy-
authored-substitute-amendment-to-reauthorization-of-fisa-amendments-
act.
---------------------------------------------------------------------------
Secondly, we believe that the law as currently authorized
contains significant oversight and review by the various
Inspectors General. Section 702(1)(2) specifically authorizes
``[t]he Inspector General of the Department of Justice and the
Inspector General of each element of the intelligence community
authorized to acquire foreign intelligence information under
[the FAA]'' the authority to review compliance with the
law.\15\ Nowhere in this authorization are the Inspectors
General limited to a single review. In fact, while the
Inspector General for the Department of Justice just issued the
first compliance report on Section 702 on September 12, 2012,
nothing in the statute precludes the Inspector General from
continuing to review compliance with Section 702 in the future.
---------------------------------------------------------------------------
\15\50 U.S.C. Sec. 1881a(1)(2) (2006).
---------------------------------------------------------------------------
The current authorization for the Inspectors General is in
line with the general mission of Inspectors General, namely,
identifying fraud, waste, and abuse within a government agency.
The substitute amendment would deviate from this current
authorization and would instead elevate the role of the
Inspectors General from independent watchdog to that of
potential policy maker. For example, the substitute amendment
would delegate decisions about what constitutes ``privacy'' to
the Inspectors General authorizing them to make value judgments
about the worth of the Section 702 foreign intelligence
collected as compared to the Inspector General's view of
privacy interests. The amendment never defines ``privacy,'' an
inherently vague and broad term that would be left to the
Inspector General to define as he preferred based on his
understanding of its meaning. This is beyond both the authority
and capability of an Inspector General. Policy analysis should
be left to policymakers. In particular, determining the
relative worth of intelligence information with potentially
competing concepts of ``privacy'' should be the role of
Congress. We cannot outsource our responsibility for making
such determinations to others. We have all the information
necessary to make such determinations, and leaving it to
someone else is abandoning our responsibilities. In fact, the
process of reauthorizing the legislation has enabled the
Committee to investigate this very subject.
Thirdly, the substitute amendment requires the Inspector
General to issue an ``unclassified summary of the findings of
[the] comprehensive report''\16\ the amendment authorizes.
While we agree that transparency is the hallmark of a good and
open government, national security programs such as those
authorized under FAA deal with our nation's most sensitive
information used to protect American lives. If the Inspector
General were to issue an unclassified report based upon a
review of classified information, the resulting report would be
so heavily redacted that it would be incomprehensible and of
little use to those who would seek to review it. There would be
no context, no facts, and no application of facts to law. Such
a report would be of no value or utility to the American people
because the basis of any conclusion would be redacted. The
report would raise more questions than it answers--which is
perhaps the ultimate goal of such a provision.
---------------------------------------------------------------------------
\16\FAA Sunsets Extension Act of 2012, S. Rep. No. 112-174, at 11
(2012) (majority report).
---------------------------------------------------------------------------
There were a number of additional amendments offered by
Minority members of the Committee that were debated and voted
on during the Committee's executive business meeting. These
amendments dealt with important national security topics
including the criminal penalties associated with weapons of
mass destruction, criminalizing rewards for facilitating
international terrorism, disclosure of memoranda authorizing
the targeted killing of United States citizens abroad, an audit
of federal criminal wiretap applications, and Congressional
notification for targeted killing of United States citizens
abroad. Unfortunately, aside from amendments offered by Senator
Kyl and Senator Lee, all amendments offered by the Minority
members were subject to motions to table. This decision by
members of the Majority to move to table amendments offered by
the Minority is troubling and a break from the usual Committee
practice to vote on amendments dealing with complex and
difficult subject matters.
Instead, Majority members argued that amendments should be
germane and relevant to the underlying legislation in order to
obtain an up or down vote. Each of these amendments dealt with
important and pressing national security matters and should
have received an open and fair debate. At least one of these
amendments had previously passed the Committee on a bipartisan
voice vote during debate of the extension of expiring
provisions of the USA PATRIOT Act.\17\ It is imperative that
these issues receive an open and fair debate in the Committee
and it is concerning that these amendments were subjected to a
germaneness and relevance standard, especially given the fact
that the Majority Leader has routinely prevented Minority
senators from offering and debating important topics on the
Senate floor.
---------------------------------------------------------------------------
\17\See The USA PATRIOT Act Sunset Extension Act of 2011, S. Rep.
No. 112-13, at 21 (2011) (adopting an amendment by Senator Grassley
adding the death penalty as a punishment for certain crimes involving
weapons of mass destruction).
---------------------------------------------------------------------------
Finally, it is worth noting that the Majority's Committee
Report fails to accurately detail the events that transpired on
the afternoon of July 19, 2012, when the vote on final passage
of S. 3276, the FAA Sunsets Extension Act, as amended,
occurred. The Majority's description notes that the final tally
of votes was 10 Yeas and 8 Nays. However, during the initial
roll call vote the final tally was initially 9 Yeas and 9 Nays,
with Senator Durbin voting against S. 3276 as amended.\18\
However, after the Chairman asked if any member wished to
change his or her vote, Senator Durbin stated that while
Chairman Leahy's bill was a ``positive step forward'' and still
``needs a lot of work,'' he ultimately changed his vote in
order for the bill to be reported to the Senate floor.\19\
---------------------------------------------------------------------------
\18\See Joanna Anderson, Surveillance Authority Extension Gets
Senate Panel's Support, Cong. Quarterly, July 19, 2012, available at
http://www.cq.com/doc/committees-
2012071900298886?wr=eFF6U1QqRXM3azFlbndPUmNaS3c2dw (noting that
``Durbin initially voted against advancing the bill to the full Senate,
but [later] relented . . .'').
\19\Id.
---------------------------------------------------------------------------
CONCLUSION
We agree with the thirteen bi-partisan members of the SSCI
that this important piece of national security legislation
should pass without amendment and without delay. We also agree
with the 301 members of the House of Representatives who voted
on September 12, 2012, to extend the FAA, without amendment,
through December 31, 2017.\20\ We disagree with substitute
amendment adopted by the Majority as it makes unnecessary
changes to the statute that do little more than risk the
necessary reauthorization of these authorities. Simply put, the
FAA has and will continue to provide vital foreign intelligence
information necessary for the Nation's security. Extending the
expiring provisions without amendment provides the operational
continuity that agents on the ground, at home and abroad, need
and deserve.
---------------------------------------------------------------------------
\20\FISA Amendments Act Reauthorization Act of 2012, H.R. 5949,
112th Cong. (2012).
---------------------------------------------------------------------------
Charles E. Grassley.
Orrin G. Hatch.
Jon Kyl.
Jeff Sessions.
Lindsey Graham.
John Cornyn.
Tom Coburn.
IX. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S.3276, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 50--WAR AND NATIONAL DEFENSE
* * * * * * *
CHAPTER 36--FOREIGN INTELLIGENCE SURVEILLANCE ACT
SUBCHAPTER VI--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
Section 702. Procedures for targeting certain persons outside the
United States other than United States persons.
(1) Assessments and Reviews.--
(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 adopted in accordance with subsections
(d) and (e) and the guidelines adopted in accordance with
subsection (f) and shall submit each assessment to--
(A) the Foreign Intelligence Surveillance
Court; and
(B) consistent with the Rules of the House of
Representatives, the Standing Rules of the
Senate, and Senate Resolution 400 of the 94th
Congress or any successor Senate resolution--
(i) the congressional intelligence
committees; and
(ii) the Committees on the Judiciary
of the House of Representatives and the
Senate.
(2) Agency Assessment.--The Inspector General of the
Department of Justice and the Inspector General of each element
of the intelligence community [authorized to acquire foreign
intelligence information under subsection (a)] with targeting
or minimization procedures approved under this section, with
respect to the department or element of such Inspector
General--
(A) are authorized to review compliance with
the targeting and minimization procedures
adopted in accordance with subsections (d) and
(e) and the guidelines adopted in accordance
with subsection (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
United States persons or located in the United
States, and to the extent possible, whether
communications of such targets were reviewed;
and
(D) shall provide each [such review] review
conducted under this paragraph to--
(i) the Attorney General;
(ii) the Director of National
Intelligence; [and]
(iii) the Inspector General of the
Intelligence Community; and
[(iii)] (iv) consistent with the
Rules of the House of Representatives,
the Standing Rules of the Senate, and
Senate Resolution 400 of the 94th
Congress or any successor Senate
resolution--
(I) the congressional intelligence
committees; and
(II) the Committees on the Judiciary
of the House of Representatives and the
Senate.
(3) Inspector general of the intelligence community
review.--
(A) In general.--The Inspector General of the
Intelligence Community is authorized to review
the acquisition, use, and dissemination of
information acquired under subsection (a) in
order to review compliance with the targeting
and minimization procedures adopted in
accordance with subsections (d) and (e) and the
guidelines adopted in accordance with
subsection (f), and in order to conduct the
review required by subparagraph (B).
(B) Mandatory review.--The Inspector General
of the Intelligence Community shall review the
procedures and guidelines developed by the
Intelligence Community to implement this
section, with respect to the protection of the
privacy rights of United States persons,
including--
(i) an evaluation of the limitations
outlined in subsection (b), the
procedures approved in accordance with
subsections (d) and (e), and the
guidelines outlined in subsection (f),
with respect to the protection of the
privacy rights of United States
persons; and
(ii) an evaluation of the
circumstances under which the contents
of communications acquired pursuant to
subsection (a) may be searched in order
to review the communications of
particular United States persons.
(C) Consideration of other reviews and
assessments.--The review conducted under
subparagraph (B) should take into
consideration, to the extent relevant and
appropriate, any reviews and assessments that
have been completed or are being undertaken
under this section.
(D) Report.--Not later than December 31,
2014, the Inspector General of the Intelligence
Community shall submit a report regarding the
review conducted under subparagraph (B) to--
(i) the Attorney General;
(ii) the Director of National
Intelligence; and
(iii) consistent with the Rules of
the House of Representatives, the
Standing Rules of the Senate, and
Senate Resolution 400 of the 94th
Congress or any successor Senate
resolution--
(I) the congressional
intelligence committees; and
(II) the Committees on the
Judiciary of the House of
Representatives and the Senate.
(E) Public reporting of findings and
conclusions.--In a manner consistent with the
protection of the national security of the
United States, and in unclassified form, the
Inspector General of the Intelligence Community
shall make publicly available a summary of the
findings and conclusions of the review
conducted under subparagraph (B).
(4) [(3)] Annual Review.--
(A) Requirement to Conduct.--The head of each
element of the intelligence community
[conducting an acquisition authorized under
subsection (a)] with targeting or minimization
procedures approved under this section shall
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] acquisitions
authorized under subsection (a). [The annual
review] As applicable, the annual review shall
provide, with respect to 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;
(iii) the number of targets that were
later determined to be United States
persons or located in the United States
and, to the extent possible, whether
communications of such targets were
reviewed; and
(iv) a description of any procedures
developed by the head of such element
of the intelligence community and
approved by the Director of National
Intelligence to assess, in a manner
consistent with national security,
operational requirements and the
privacy interests of United States
persons, the extent to which the
acquisitions authorized under
subsection (a) acquired the
communications of United States
persons, and the results of any such
assessment.
* * * * * * *
FISA Amendments Act of 2008
Public Law No. 110-261
50 U.S.C. 1881 note
Section 403. Repeals.
(b) FISA Amendments Act of 2008.--
(1) In general.--Except as provided in section 404,
effective [December 31, 2012] June 1, 2015, title VII
of the Foreign Intelligence Surveillance Act of 1978,
as amended by section 101(a), is repealed.
(2) Technical and conforming amendments.--Effective
[December 31, 2012] June 1, 2015--
(A) the table of contents in the first
section of such Act (50 U.S.C. 1801 et seq.) is
amended by striking the items related to title
VII;
(B) except as provided in section 404,
section 601(a)(1) of such Act (50 U.S.C.
1871(a)(1)) is amended to read as such section
read on the day before the date of the
enactment of this Act; and
(C) except as provided in section 404,
section 2511(2)(a)(ii)(A) of title 18, United
States Code, is amended by striking ``or a
court order pursuant to section 704 of the
Foreign Intelligence Surveillance Act of
1978''.
Section 404. Transition Procedures.
(b) Transition Procedures for FISA Amendments Act of 2008
Provisions.
(1) Orders in effect on [december 31, 2012] June 1,
2015.--Notwithstanding any other provision of this Act,
any amendment made by this Act, or the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), any order, authorization, or directive issued
or made under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101(a),
shall continue in effect until the date of the
expiration of such order, authorization, or directive.
* * * * * * *
