[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5371 Introduced in House (IH)]







109th CONGRESS
  2d Session
                                H. R. 5371

To reiterate that the Foreign Intelligence Surveillance Act of 1978 and 
title 18, United States Code, are the exclusive means by which domestic 
   electronic surveillance may be conducted, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 11, 2006

  Ms. Harman (for herself, Mr. Conyers, Mr. Hastings of Florida, Mr. 
   Boswell, Mr. Reyes, Mr. Cramer, Ms. Eshoo, Mr. Ruppersberger, Mr. 
    Boucher, Mr. Nadler, Mr. Scott of Virginia, Ms. Zoe Lofgren of 
   California, Ms. Jackson-Lee of Texas, Mr. Wexler, and Ms. Hooley) 
 introduced the following bill; which was referred to the Committee on 
the Judiciary, and in addition to the Select Committee on Intelligence 
 (Permanent Select), for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
To reiterate that the Foreign Intelligence Surveillance Act of 1978 and 
title 18, United States Code, are the exclusive means by which domestic 
   electronic surveillance may be conducted, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Lawful Intelligence and Surveillance 
of Terrorists in an Emergency by NSA Act'' or the ``LISTEN Act''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Conducting electronic surveillance of al Qaeda and 
        other international terrorist groups is integral to protecting 
        people in the United States from terrorism. Electronic 
        surveillance can assist in the detection and prevention of 
        terrorist plots.
            (2) Electronic surveillance may, at times, involve 
        surveillance of persons in the United States. Such electronic 
        surveillance is lawful if conducted in accordance with the 
        Fourth Amendment to the Constitution and the Foreign 
        Intelligence Surveillance Act of 1978 or chapters 119 or 121 of 
        title 18, United States Code.
            (3) It is essential that in protecting the United States 
        from enemies, the President does not compromise the civil 
        liberties that the President is charged with safeguarding. In 
        2004, Justice Sandra Day O'Connor explained in a plurality 
        opinion for the Supreme Court in Hamdi v. Rumsfeld, ``We have 
        long since made clear that a state of war is not a blank check 
        for the President when it comes to the rights of the Nation's 
        citizens''.
            (4) Section 8 of article I of the Constitution of the 
        United States provides that ``Congress shall have the Power . . 
        . to make all Laws which shall be necessary and proper for 
        carrying into Execution the foregoing Powers and all other 
        Powers vested in this Constitution in the Government of the 
        United States, or in any Department or Officer thereof''.
            (5) In passing the Foreign Intelligence Surveillance Act of 
        1978, Congress expressly determined that the Foreign 
        Intelligence Surveillance Act of 1978 and chapters 119 and 121 
        of title 18, United States Code, are the exclusive means by 
        which surveillance can be conducted in the United States.
            (6) The Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1801 et seq.) authorizes the Federal Government to 
        conduct electronic surveillance of persons in the United States 
        for purposes of gathering intelligence and counterintelligence. 
        The Act contains emergency procedures under which electronic 
        surveillance may begin up to 72 hours before the Federal 
        Government presents to the Foreign Intelligence Surveillance 
        Court an application for a court order approving electronic 
        surveillance.
            (7) The Fourth Amendment to the Constitution of the United 
        States declares that ``The right of the people to be secure in 
        their persons, houses, papers, and effects, against 
        unreasonable searches and seizures, shall not be violated, and 
        no Warrants shall issue, but upon probable cause, supported by 
        Oath or affirmation, and particularly describing the place to 
        be searched, and the persons or things to be seized''.
            (8) A determination of reasonableness under the Fourth 
        Amendment must ultimately be made by an independent magistrate, 
        not by an executive branch official.
            (9) The Authorization for Use of Military Force (Public Law 
        107-40), passed by Congress on September 14, 2001, does not 
        constitute legal authorization for electronic surveillance not 
        authorized by chapters 119 or 121 of title 18, United States 
        Code, or the Foreign Intelligence Surveillance Act of 1978 (50 
        U.S.C. 1801 et seq.).

SEC. 3. REITERATION OF CHAPTERS 119 AND 121 OF TITLE 18, UNITED STATES 
              CODE, AND THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
              1978 AS THE EXCLUSIVE MEANS BY WHICH DOMESTIC ELECTRONIC 
              SURVEILLANCE MAY BE CONDUCTED.

    Notwithstanding any other provision of law, chapters 119 and 121 of 
title 18, United States Code, and the Foreign Intelligence Surveillance 
Act of 1978 (50 U.S.C. 1801 et seq.) shall be the exclusive means by 
which electronic surveillance may be conducted.

SEC. 4. COMPLIANCE WITH FISA REQUIREMENTS.

    (a) Ensuring Compliance.--The President shall ensure that all 
electronic surveillance of persons in the United States is conducted in 
accordance with chapters 119 or 121 of title 18, United States Code, or 
title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801 et seq.).
    (b) Procedures.--The President shall ensure that the procedures for 
applying for an order for electronic surveillance under title I of the 
Foreign Intelligence Surveillance Act of 1978 continue to be adequate 
for the timely and efficient electronic surveillance of appropriate 
targets.
    (c) Report.--
            (1) In general.--If at any time the President determines 
        that the procedures described in subsection (b) are not 
        adequate for the timely and efficient electronic surveillance 
        of appropriate targets in accordance with title I of the 
        Foreign Intelligence Surveillance Act of 1978, the President 
        shall submit to the relevant congressional committees a report 
        containing findings and recommendations with respect to 
        emergency applications and, to the extent deemed necessary by 
        the President, routine applications for an order under such 
        title on--
                    (A) the level of resources and personnel needed at 
                the National Security Agency and the Department of 
                Justice to handle such applications to the Foreign 
                Intelligence Surveillance Court;
                    (B) the need for new information technology systems 
                to facilitate the near real-time approval of such 
                applications to the Foreign Intelligence Surveillance 
                Court;
                    (C) how to streamline the processing of information 
                that must be presented to the Foreign Intelligence 
                Surveillance Court for such an application;
                    (D) how to expedite review within the National 
                Security Agency, the Department of Justice, or other 
                appropriate agencies or departments of such 
                applications before such an application is submitted to 
                the Attorney General;
                    (E) whether a senior official reporting to the 
                Attorney General, such as the Deputy Attorney General 
                or the Assistant Attorney General for National 
                Security, should be authorized to approve such 
                applications; and
                    (F) the need for any legislative changes to improve 
                such procedures.
            (2) Date of submission.--The report under paragraph (1) 
        shall be submitted to the relevant congressional committees not 
        later than 30 days after the date on which the President 
        determines under such paragraph that the procedures described 
        in subsection (b) are not adequate for the timely electronic 
        surveillance of appropriate targets in the United States.
    (d) Rule of Construction.--Nothing in this section shall be 
construed to authorize the President to conduct electronic surveillance 
other than in accordance with title I of the Foreign Intelligence 
Surveillance Act of 1978 or chapters 119 or 121 of title 18, United 
States Code.

SEC. 5. AUTHORIZATION FOR INCREASED RESOURCES TO PROCESS FOREIGN 
              INTELLIGENCE SURVEILLANCE ACT APPLICATIONS.

    There are authorized to be appropriated to the National Security 
Agency and the Department of Justice for the activities of the Office 
of Intelligence Policy and Review such sums as may be necessary to meet 
the increased personnel and information technology demands to ensure 
the timely and efficient processing of applications to the Foreign 
Intelligence Surveillance Court.

SEC. 6. DEFINITIONS.

    In this Act:
            (1) Electronic surveillance.--The term ``electronic 
        surveillance'' has the meaning given the term in section 101(f) 
        of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
        1801(f)).
            (2) Foreign intelligence surveillance court.--The term 
        ``Foreign Intelligence Surveillance Court'' has the meaning 
        given the term in section 301(3) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1821(3)).
            (3) Relevant congressional committees.--The term ``relevant 
        congressional committees'' means 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.
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