[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2362 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 2362

To establish the National Commission on Surveillance Activities and the 
                          Rights of Americans.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 2, 2006

   Mr. Byrd introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To establish the National Commission on Surveillance Activities and the 
                          Rights of Americans.

    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 ``Surveillance Activities Commission 
Act of 2006''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``Commission'' means the National Commission 
        on Surveillance Activities and the Rights of Americans 
        established under section 3;
            (2) the term ``electronic surveillance'' has the same 
        meaning as in section 101 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801);
            (3) the term ``Foreign Intelligence Surveillance Court'' 
        means the court established under section 103(a) of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a));
            (4) the terms ``pen register'' and ``trap and trace 
        device'' have the same meaning as in section 3127 of title 18, 
        United States Code;
            (5) The term ``physical search'' has the same meaning as in 
        section 301 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1821);
            (6) the term ``surveillance'' means any electronic 
        surveillance, physical search, use of a pen register or trap 
        and trace device, order for the production of any tangible 
        item, or surveillance activity for which a Federal or State 
        government agent is required to obtain a warrant, before or 
        after engaging in the activity; and
            (7) the term ``warrantless surveillance program'' means a 
        program of warrantless surveillance conducted inside the United 
        States by any Federal or State agency.

SEC. 3. ESTABLISHMENT OF COMMISSION.

    There is established in the legislative branch the National 
Commission on Surveillance Activities and the Rights of Americans to 
conduct an investigation and to study governmental operations with 
respect to warrantless surveillance conducted inside the United States 
and intelligence activities, and the extent, if any, to which illegal, 
improper, or unethical activities were engaged in by any Federal, 
State, or local government agency or any person employed by a Federal, 
State, or local government.

SEC. 4. PURPOSES.

    The purposes of the Commission are to--
            (1) examine and report upon the facts, causes, and use of 
        executive authority relating to any warrantless surveillance 
        conducted inside the United States that occurred after 
        September 11, 2001, by the National Security Agency or any 
        other Federal or State agency, and the extent to which any 
        illegal, improper, or unethical activities were engaged in by 
        any agency or by any person, acting either individually or in 
        combination with others, in carrying out any surveillance 
        activities;
            (2) examine the origin and operation of any warrantless 
        surveillance conducted inside the United States, including the 
        collection, processing, analysis, dissemination, and retention 
        of intelligence information;
            (3) report on any constitutional, statutory, and regulatory 
        basis for any warrantless surveillance program, including all 
        presidential orders and authorizations, and all opinions, 
        instructions, or guidance concerning any warrantless 
        surveillance program provided by the Department of Justice, the 
        Director of Central Intelligence, the Director of National 
        Intelligence, the Director of the National Security Agency, the 
        Department of Defense, or any department, office, or agency of 
        the Federal Government, and any of their subordinate offices or 
        officials, either in writing or verbally;
            (4) examine any periodic reviews of any warrantless 
        surveillance program, including all reviews conducted by the 
        National Security Agency Inspector General, the Department of 
        Justice, or any other Federal agency;
            (5) gather any information regarding questions raised by 
        any judge of the Foreign Intelligence Surveillance Court 
        regarding any warrantless surveillance program or the 
        utilization of intelligence collected under such program, and 
        any response by the Department of Justice to any such 
        inquiries, including any temporary cessation of such 
        surveillance activities;
            (6) investigate any participation by, or use of the 
        facilities or personnel of, United States electronic 
        communications providers in warrantless surveillance conducted 
        inside the United States, including the origin of 
        certifications or representations provided to such providers 
        concerning the legal authority for their cooperation;
            (7) ascertain, evaluate, and report on the evidence 
        developed by all relevant governmental agencies regarding any 
        facts or circumstances that may have violated the separation of 
        powers enumerated in the Constitution of the United States, 
        including--
                    (A) article I, sections 1 and 8 of the Constitution 
                of the United States; and
                    (B) article III, sections 1 and 2 of the 
                Constitution of the United States;
            (8) ascertain and evaluate any potential violations, 
        including violations of the first, fourth, and fourteenth 
        amendments to the Constitution of the United States;
            (9) investigate and report on any violation of the Foreign 
        Intelligence Surveillance Act (50 U.S.C. 1801 et seq.), or any 
        other applicable law;
            (10) examine the duty of the President to brief all Members 
        of Congress regarding warrantless surveillance of United States 
        citizens conducted inside the United States;
            (11) build upon the investigations of other entities, and 
        avoid unnecessary duplication, by reviewing the findings, 
        conclusions, and recommendations of--
                    (A) any investigation by a Committee of the Senate 
                or the House of Representatives; and
                    (B) other executive branch, congressional, or 
                independent commission investigations into the 
                warrantless surveillance conducted inside the United 
                States;
            (12) make a full and complete accounting of the 
        circumstances surrounding warrantless surveillance conducted 
        inside the United States, including an assessment of its 
        effectiveness in protecting the United States from terrorism;
            (13) make a full and complete accounting of the use of any 
        appropriated funds by any Federal, State, or local government 
        agency or any person employed by a Federal, State, or local 
        government in carrying out warrantless surveillance; and
            (14) investigate and report to the President and Congress 
        on its findings, conclusions, and recommendations for 
        corrective measures that should be taken regarding any 
        violations of any law dealing with intelligence gathering, and 
        to prevent future violations.

SEC. 5. COMPOSITION OF COMMISSION.

    (a) Members.--The Commission shall be composed of 14 members, of 
whom--
            (1) 1 member, who shall serve as Chairman of the 
        Commission, shall be appointed by the Majority Leader of the 
        Senate, in consultation with the Majority Leader of the House 
        of Representatives;
            (2) 1 member, who shall serve as Vice Chairman of the 
        Commission, shall be appointed by the Minority Leader of the 
        Senate, in consultation with the Minority Leader of the House 
        of Representatives;
            (3) 1 member shall be appointed by the Chairman of the 
        Committee on the Judiciary of the Senate;
            (4) 1 member shall be appointed by the Ranking Member of 
        the Committee on the Judiciary of the Senate;
            (5) 1 member shall be appointed by the Chairman of the 
        Select Committee on Intelligence of the Senate;
            (6) 1 member shall be appointed by the Vice Chairman of the 
        Select Committee on Intelligence of the Senate;
            (7) 1 member shall be appointed by the Chairman of the 
        Committee on the Judiciary of the House of Representatives;
            (8) 1 member shall be appointed by the Ranking Member of 
        the Committee on the Judiciary of the House of Representatives;
            (9) 1 member shall be appointed by the Chairman of the 
        Permanent Select Committee on Intelligence of the House of 
        Representatives;
            (10) 1 member shall be appointed by the Ranking Member of 
        the Permanent Select Committee on Intelligence of the House of 
        Representatives;
            (11) 1 member shall be appointed by the Chairman of the 
        Committee on Appropriations of the Senate;
            (12) 1 member shall be appointed by the Ranking Member of 
        the Committee on Appropriations of the Senate;
            (13) 1 member shall be appointed by the Chairman of the 
        Committee on Appropriations of the House of Representatives; 
        and
            (14) 1 member shall be appointed by the Ranking Member of 
        the Committee on Appropriations of the House of 
        Representatives.
    (b) Date of Appointment.--All members of the Commission shall be 
appointed not later than the date that is 3 months after the date of 
enactment of this Act.
    (c) Qualifications; Initial Meeting.--
            (1)  Nongovernmental appointees.--An individual appointed 
        to the Commission may not be an officer or employee of the 
        Federal Government or any State or local government.
            (2) Other qualifications.--It is the sense of Congress that 
        individuals appointed to the Commission should be prominent 
        United States citizens, with national recognition and 
        significant depth of experience in such professions as law, 
        intelligence gathering, and foreign affairs.
            (3) Initial meeting.--The Commission shall meet and begin 
        the operations of the Commission as soon as practicable.
    (d) Quorum; Vacancies.--After its initial meeting, the Commission 
shall meet upon the call of the Chairman or a majority of its members. 
Six members of the Commission shall constitute a quorum. Any vacancy in 
the Commission shall not affect its powers, but shall be filled in the 
same manner in which the original appointment was made.

SEC. 6. FUNCTIONS OF COMMISSION.

    The functions of the Commission are to--
            (1) conduct an investigation that--
                    (A) investigates relevant facts and circumstances 
                relating to all incidents of warrantless surveillance 
                conducted inside the United States, including any 
                relevant legislation, Executive order, regulation, 
                plan, policy, practice, or procedure; and
                    (B) may include relevant facts and circumstances 
                relating to--
                            (i) intelligence agencies and intelligence 
                        gathering;
                            (ii) the Authorization for Use of Military 
                        Force, (Public Law 107-40; 50 U.S.C. 1541 
                        note), as a justification for warrantless 
                        surveillance conducted inside the United 
                        States;
                            (iii) any use of appropriated funds in 
                        carrying out warrantless surveillance conducted 
                        inside the United States in contradiction of 
                        Federal law;
                            (iv) the jurisdiction of the Foreign 
                        Intelligence Surveillance Court, in issuing 
                        warrants for the purpose of surveillance 
                        conducted inside the United States;
                            (v) the role of congressional oversight and 
                        resource allocation;
                            (vi) possible legislative initiatives that 
                        could strengthen the use of lawful surveillance 
                        conducted inside the United States in 
                        effectively protecting national security, while 
                        preserving constitutional checks and balances 
                        and liberties; and
                            (vii) other areas of the public and private 
                        sectors determined relevant by the Commission 
                        for its inquiry; and
            (2) submit to the President and Congress such reports as 
        are required by this Act containing such findings, conclusions, 
        and recommendations as the Commission shall determine, 
        including proposing organization, coordination, planning, 
        management arrangements, procedures, rules, and regulations.

SEC. 7. POWERS OF COMMISSION.

    (a) In General.--
            (1) Hearings and evidence.--The Commission or, on the 
        authority of the Commission, any subcommittee or member 
        thereof, may, for the purpose of carrying out this Act--
                    (A) hold such hearings and sit and act at such 
                times and places, take such testimony, receive such 
                evidence, administer such oaths; and
                    (B) subject to paragraph (2)(A), require, by 
                subpoena or otherwise, the attendance and testimony of 
                such witnesses and the production of such books, 
                records, correspondence, memoranda, papers, and 
                documents, as the Commission or such designated 
                subcommittee or designated member may determine 
                advisable.
            (2) Subpoenas.--
                    (A) Issuance.--
                            (i) In general.--A subpoena may be issued 
                        under this subsection only--
                                    (I) by the agreement of the 
                                Chairman and the Vice Chairman; or
                                    (II) by the affirmative vote of 8 
                                members of the Commission.
                            (ii) Signature.--Subject to clause (i), 
                        subpoenas issued under this subsection may be 
                        issued under the signature of the Chairman or 
                        any member designated by a majority of the 
                        Commission, and may be served by any person 
                        designated by the Chairman or by a member 
                        designated by a majority of the Commission.
                    (B) Enforcement.--In the case of contumacy or 
                failure to obey a subpoena issued the United States 
                district court for the judicial district in which the 
                subpoenaed person resides, is served, or may be found, 
                or where the subpoena is returnable, may issue an order 
                requiring such person to appear at any designated place 
                to testify or to produce documentary or other evidence. 
                Any failure to obey the order of the court may be 
                punished by the court as a contempt of that court.
    (b) Contracting.--The Commission may, to such extent and in such 
amounts as are provided in appropriation Acts, enter into contracts to 
enable the Commission to discharge its duties under this Act.
    (c) Information From Federal Agencies.--
            (1) In general.--The Commission is authorized to secure 
        directly from any executive department, bureau, agency, board, 
        commission, office, independent establishment, or 
        instrumentality of the Federal Government, information, 
        suggestions, estimates, and statistics for the purposes of this 
        Act. Each department, bureau, agency, board, commission, 
        office, independent establishment, or instrumentality shall, to 
        the extent authorized by law, furnish such information, 
        suggestions, estimates, and statistics directly to the 
        Commission, upon request made by the Chairman, the Chairman of 
        any subcommittee created by a majority of the Commission, or 
        any member designated by a majority of the Commission.
            (2) Receipt, handling, storage, and dissemination.--
        Information shall only be received, handled, stored, and 
        disseminated by members of the Commission and its staff 
        consistent with all applicable statutes, regulations, and 
        Executive orders.
    (d) Assistance From Federal Agencies.--
            (1) General services administration.--The Administrator of 
        General Services shall provide to the Commission on a 
        reimbursable basis administrative support and other services 
        for the performance of the Commission's functions.
            (2) Other departments and agencies.--In addition to the 
        assistance prescribed in paragraph (1), departments and 
        agencies of the United States may provide to the Commission 
        such services, funds, facilities, staff, and other support 
        services as they may determine advisable and as may be 
        authorized by law.
    (e) Postal Services.--The Commission may use the United States 
mails in the same manner and under the same conditions as departments 
and agencies of the United States.

SEC. 8. NONAPPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT.

    (a) In General.--The Federal Advisory Committee Act (5 U.S.C. App.) 
shall not apply to the Commission.
    (b) Public Meetings and Release of Public Versions of Reports.--The 
Commission shall--
            (1) hold public hearings and meetings to the extent 
        appropriate; and
            (2) release public versions of the reports required under 
        subsections (a) and (b) of section 12.
    (c) Public Hearings.--Any public hearings of the Commission shall 
be conducted in a manner consistent with the protection of information 
provided to or developed for or by the Commission as required by any 
applicable statute, regulation, or Executive order.

SEC. 9. STAFF OF COMMISSION.

    (a) In General.--
            (1) Appointment and compensation.--The Chairman, in 
        consultation with the Vice Chairman and in accordance with 
        rules agreed upon by the Commission, may appoint and fix the 
        compensation of a staff director and such other personnel as 
        may be necessary to enable the Commission to carry out its 
        functions, without regard to the provisions of title 5, United 
        States Code, governing appointments in the competitive service, 
        and without regard to the provisions of chapter 51 and 
        subchapter III of chapter 53 of such title relating to 
        classification and General Schedule pay rates, except that no 
        rate of pay fixed under this subsection may exceed the 
        equivalent of that payable for a position at level V of the 
        Executive Schedule under section 5316 of title 5, United States 
        Code.
            (2) Personnel as federal employees.--
                    (A) In general.--The executive director and any 
                personnel of the Commission who are employees shall be 
                employees under section 2105 of title 5, United States 
                Code, for purposes of chapters 63, 81, 83, 84, 85, 87, 
                89, 89A, 89B, and 90 of that title.
                    (B) Members of commission.--Subparagraph (A) shall 
                not be construed to apply to members of the Commission.
    (b) Detailees.--Any Federal Government employee may be detailed to 
the Commission without reimbursement from the Commission, and such 
detailee shall retain the rights, status, and privileges of his or her 
regular employment without interruption.
    (c) Consultant Services.--The Commission is authorized to procure 
the services of experts and consultants in accordance with section 3109 
of title 5, United States Code, but at rates not to exceed the daily 
rate paid a person occupying a position at level IV of the Executive 
Schedule under section 5315 of title 5, United States Code.

SEC. 10. COMPENSATION AND TRAVEL EXPENSES.

    (a) Compensation.--Each member of the Commission may be compensated 
at not to exceed the daily equivalent of the annual rate of basic pay 
in effect for a position at level IV of the Executive Schedule under 
section 5315 of title 5, United States Code, for each day during which 
that member is engaged in the actual performance of the duties of the 
Commission.
    (b) Travel Expenses.--While away from their homes or regular places 
of business in the performance of services for the Commission, members 
of the Commission shall be allowed travel expenses, including per diem 
in lieu of subsistence, in the same manner as persons employed 
intermittently in the Government service are allowed expenses under 
section 5703(b) of title 5, United States Code.

SEC. 11. SECURITY CLEARANCES FOR COMMISSION MEMBERS AND STAFF.

    The appropriate Federal departments or agencies shall cooperate 
with the Commission in expeditiously providing to the Commission 
members and staff appropriate security clearances to the extent 
possible under the relevant procedures and requirements, except that no 
person shall be provided with access to classified information under 
this Act without the appropriate security clearances.

SEC. 12. REPORTS OF COMMISSION; TERMINATION.

    (a) Interim Reports.--The Commission shall submit to the President 
and Congress interim reports containing such findings, conclusions, and 
recommendations for corrective measures as have been agreed to by a 
majority of Commission members.
    (b) Final Report.--Not later than 18 months after the date of 
enactment of this Act, the Commission shall submit to the President and 
Congress a final report containing such findings, conclusions, and 
recommendations for corrective measures as have been agreed to by a 
majority of Commission members.
    (c) Classified Information.--Each report submitted under subsection 
(a) or (b) shall be in unclassified form, but may include a classified 
annex.
    (d) Termination.--
            (1) In general.--The Commission, and all the authorities of 
        this Act, shall terminate 60 days after the date on which the 
        final report is submitted under subsection (b).
            (2) Administrative activities before termination.--The 
        Commission may use the 60-day period referred to in paragraph 
        (1) for the purpose of concluding its activities, including 
        providing testimony to committees of Congress concerning its 
        reports and disseminating the final report.

SEC. 13. FUNDING.

    (a) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as are necessary to carry out this Act.
    (b) Duration of Availability.--Amounts made available to the 
Commission under subsection (a) shall remain available until the 
termination of the Commission.
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