[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2453 Introduced in Senate (IS)]


109th CONGRESS
  2d Session
                                S. 2453

   To establish procedures for the review of electronic surveillance 
                               programs.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

               March 16 (legislative day, March 15), 2006

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

_______________________________________________________________________

                                 A BILL


 
   To establish procedures for the review of electronic surveillance 
                               programs.

    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 ``National Security Surveillance Act 
of 2006''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) After the terrorist attacks of September 11, 2001, 
        President Bush authorized the National Security Agency to 
        intercept communications between people inside the United 
        States, including American citizens, and terrorism suspects 
        overseas.
            (2) One of the lessons learned from September 11, 2001, is 
        that the enemies who seek to greatly harm and terrorize our 
        Nation utilize technologies and techniques that defy 
        conventional law enforcement practices.
            (3) The Commander in Chief requires the ability and means 
        to detect and track an enemy that can master and exploit modern 
        technology.
            (4) Although it is essential that the President have all 
        necessary means to protect us against our enemies, it is 
        equally essential that, in doing so, the President does not 
        compromise the very civil liberties that the President seeks to 
        safeguard. As Justice Hugo Black observed, ``The President's 
        power, if any, to issue [an] order must stem either from an Act 
        of Congress or from the Constitution itself.''. Youngstown 
        Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion 
        by Black, J.).
            (5) In 2004, Justice Sandra Day O'Connor explained in her 
        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. Youngstown Sheet & Tube, 343 U.S., at 
        587, 72 S.Ct. 863. Whatever power the United States 
        Constitution envisions for the Executive in its exchanges with 
        other nations or with enemy organizations in times of conflict, 
        it most assuredly envisions a role for all three branches when 
        individual liberties are at stake.''. Hamdi v. Rumsfeld, 542 
        U.S. 507, 536 (2004) (citations omitted).
            (6) Similarly, as Justice Jackson famously observed in his 
        Youngstown concurrence: ``When the President acts pursuant to 
        an express or implied authorization of Congress, his authority 
        is at its maximum, for it includes all that he possesses in his 
        own right plus all that Congress can delegate. ... When the 
        President acts in absence of either a congressional grant or 
        denial of authority, he can only rely upon his own independent 
        powers, but there is a zone of twilight in which he and 
        Congress may have concurrent authority, or in which its 
        distribution is uncertain. Therefore, congressional inertia, 
        indifference or quiescence may sometimes, at least as a 
        practical matter, enable, if not invite, measures on 
        independent presidential responsibility ... When the President 
        takes measures incompatible with the expressed or implied will 
        of Congress, his power is at its lowest ebb, for then he can 
        rely only upon his own constitutional powers minus any 
        constitutional powers of Congress over the matter. Courts can 
        sustain exclusive Presidential control in such a case only by 
        disabling the Congress from acting upon the subject.''. 
        Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 
        (1952) (Jackson, J., concurring).
            (7) The Constitution provides Congress with broad powers of 
        oversight over national security and foreign policy, under 
        article I, section 8 of the Constitution of the United States, 
        which confers on Congress numerous powers, including the 
        powers--
                    (A) ``To declare War, grant Letters of Marque and 
                Reprisal, and make Rules concerning Captures on Land 
                and Water'';
                    (B) ``To raise and support Armies'';
                    (C) ``To provide and maintain a Navy'';
                    (D) ``To make Rules for the Government and 
                Regulation of the land and naval Forces'';
                    (E) ``To provide for calling forth the Militia to 
                execute the Laws of the Union, suppress Insurrections 
                and repel Invasions''; and
                    (F) ``To provide for organizing, arming, and 
                disciplining the Militia, and for governing such Part 
                of them as may be employed in the Service of the United 
                States''.
            (8) It is in our Nation's best interest for Congress to use 
        its oversight power to establish a system to ensure that 
        electronic surveillance programs do not infringe on the 
        constitutional rights of Americans, while at the same time 
        making sure that the President has all the powers and means 
        necessary to detect and track our enemies.
            (9) While Attorney General Alberto Gonzales explained that 
        the executive branch reviews the electronic surveillance 
        program of the National Security Agency every 45 days to ensure 
        that the program is not overly broad, it is the belief of 
        Congress that approval and supervision of electronic 
        surveillance programs should be conducted outside of the 
        executive branch, by the Article III court established under 
        section 103 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1803). It is also the belief of Congress that 
        it is appropriate for an Article III court to pass upon the 
        constitutionality of electronic surveillance programs that may 
        implicate the rights of Americans.
            (10) The Foreign Intelligence Surveillance Court is the 
        proper court to approve and supervise classified electronic 
        surveillance programs because it is adept at maintaining the 
        secrecy with which it was charged and it possesses the 
        requisite expertise and discretion for adjudicating sensitive 
        issues of national security.
            (11) In 1975, then-Attorney General Edward Levi, a strong 
        defender of executive authority, testified that in times of 
        conflict, the President needs the power to conduct long-range 
        electronic surveillance and that a foreign intelligence 
        surveillance court should be empowered to issue special 
        warrants in these circumstances.
            (12) This Act clarifies and definitively establishes that 
        the Foreign Intelligence Surveillance Court has the authority 
        to review electronic surveillance programs and pass upon their 
        constitutionality. Such authority is consistent with well-
        established, longstanding practices.
            (13) The Foreign Intelligence Surveillance Court already 
        has broad authority to approve surveillance of members of 
        international conspiracies, in addition to granting warrants 
        for surveillance of a particular individual under sections 104, 
        105, and 402 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1804, 1805, and 1842).
            (14) Prosecutors have significant flexibility in 
        investigating domestic conspiracy cases. Courts have held that 
        flexible warrants comply with the fourth amendment to the 
        Constitution of the United States when they relate to complex, 
        far reaching, and multi-faceted criminal enterprises like drug 
        conspiracies and money laundering rings. The courts recognize 
        that applications for search warrants must be judged in a 
        common sense and realistic fashion, and the courts permit broad 
        warrant language where, due to the nature and circumstances of 
        the investigation and the criminal organization, more precise 
        descriptions are not feasible.
            (15) Federal agents investigating international terrorism 
        by foreign enemies are entitled to tools at least as broad as 
        those used by Federal agents investigating domestic crimes by 
        United States citizens. The Supreme Court, in the ``Keith 
        Case'', United States v. United States District Court for the 
        Eastern District of Michigan, 407 U.S. 297 (1972), recognized 
        that the standards and procedures used to fight ordinary crime 
        may not be applicable to cases involving national security. The 
        Court recognized that national ``security surveillance may 
        involve different policy and practical considerations from the 
        surveillance of ordinary crime'' and that courts should be more 
        flexible in issuing warrants in national security cases. United 
        States v. United States District Court for the Eastern District 
        of Michigan, 407 U.S. 297, 322 (1972).
            (16) By authorizing the Foreign Intelligence Surveillance 
        Court to review electronic surveillance programs, Congress 
        preserves the ability of the Commander in Chief to use the 
        necessary means to guard our national security, while also 
        protecting the civil liberties and constitutional rights that 
        we cherish.

SEC. 3. DEFINITIONS.

    The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
et seq.) is amended--
            (1) by redesignating title VII as title VIII;
            (2) by redesignating section 701 as section 801; and
            (3) by inserting after title VI the following:

                  ``TITLE VII--ELECTRONIC SURVEILLANCE

``SEC. 701. DEFINITIONS.

    ``As used in this title--
            ``(1) the terms `agent of a foreign power', `Attorney 
        General', `foreign intelligence information', `foreign power', 
        `international terrorism', `minimization procedures', `person', 
        `United States', and `United States person' have the same 
        meaning as in section 101;
            ``(2) the term `congressional intelligence committees' 
        means the Select Committee on Intelligence of the Senate and 
        the Permanent Select Committee on Intelligence of the House of 
        Representatives;
            ``(3) the term `electronic communication' means any 
        transfer of signs, signals, writing, images, sounds, data, or 
        intelligence of any nature transmitted in whole or in part by a 
        wire, radio, electromagnetic, photoelectronic or photooptical 
        system, cable, or other like connection furnished or operated 
        by any person engaged as a common carrier in providing or 
        operating such facilities for the transmission of 
        communications;
            ``(4) the term `electronic surveillance' means the 
        acquisition by an electronic, mechanical, or other surveillance 
        device of the substance of any electronic communication sent 
        by, received by, or intended to be received by a person who is 
        in the United States, where there is a reasonable possibility 
        that the surveillance will intercept communication in which a 
        person in the United States participating in the communication 
        has a reasonable expectation of privacy;
            ``(5) the term `electronic surveillance program' means a 
        program to engage in electronic surveillance--
                    ``(A) to gather foreign intelligence information or 
                to protect against international terrorism or 
                clandestine intelligence activities by obtaining the 
                substance of or information regarding electronic 
                communications sent by, received by, or intended to be 
                received by a foreign power, an agent or agents of a 
                foreign power, or a person or persons who have had 
                communication with a foreign power seeking to commit an 
                act of international terrorism or clandestine 
                intelligence activities against the United States;
                    ``(B) where it is not feasible to name every person 
                or address every location to be subjected to electronic 
                surveillance; and
                    ``(C) where effective gathering of foreign 
                intelligence information requires an extended period of 
                electronic surveillance;
            ``(6) the term `Foreign Intelligence Surveillance Court' 
        means the court, sitting en banc, established under section 
        103(a);
            ``(7) the term `Foreign Intelligence Surveillance Court of 
        review' means the court established under section 103(b);
            ``(8) the term `intercept' means the acquisition of the 
        substance of any electronic communication by a person through 
        the use of any electronic, mechanical, or other device; and
            ``(9) the term `substance' means any information concerning 
        the words, purport, or meaning of a communication, and does not 
        include information identifying the sender, origin, or 
        recipient of the communication or the date or time of its 
        transmission.''.

SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO REVIEW 
              ELECTRONIC SURVEILLANCE PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 3, is amended by adding at the end the following:

``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO 
              REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.

    ``(a) In General.--The Foreign Intelligence Surveillance Court 
shall have jurisdiction to issue an order under this title, lasting not 
longer than 45 days, that authorizes an electronic surveillance program 
to obtain foreign intelligence information or to protect against 
international terrorism or clandestine intelligence activities.
    ``(b) Reauthorization.--In order to continue an electronic 
surveillance program after the time period described in subsection (a), 
the Attorney General shall submit a new application under section 703. 
There shall be no limit on the number of times the Attorney General may 
seek approval of an electronic surveillance program.
    ``(c) Modifications and Appeal in Event Application Is Denied.--
            ``(1) In general.--In the event that the Foreign 
        Intelligence Surveillance Court refuses to approve an 
        application under subsection (a), the court shall state its 
        reasons in a written opinion.
            ``(2) Opinion.--The court shall submit a written opinion 
        described in paragraph (1) to the Attorney General and to each 
        member of the congressional intelligence committees (or any 
        subcommittee thereof designated for oversight of electronic 
        surveillance programs under this title).
            ``(3) Resubmission or appeal.--The Attorney General shall 
        be permitted to submit a new application under section 703 for 
        the electronic surveillance program, reflecting modifications 
        to address the concerns set forth in the written opinion of the 
        Foreign Intelligence Surveillance Court. There shall be no 
        limit on the number of times the Attorney General may seek 
        approval of an electronic surveillance program. Alternatively, 
        the Attorney General shall be permitted to appeal the decision 
        of the Foreign Intelligence Surveillance Court to the Foreign 
        Intelligence Surveillance Court of Review.
    ``(d) Communications Subject to This Title.--
            ``(1) In general.--The provisions of this title requiring 
        authorization by the Foreign Intelligence Surveillance Court 
        apply only to interception of the substance of electronic 
        communications sent by, received by, or intended to be received 
        by a person who is in the United States, where there is a 
        reasonable possibility that a participant in the communication 
        has a reasonable expectation of privacy.
            ``(2) Exclusion.--The provisions of this title requiring 
        authorization by the Foreign Intelligence Surveillance Court do 
        not apply to information identifying the sender, origin, or 
        recipient of the electronic communication or the date or time 
        of its transmission that is obtained without review of the 
        substance of the electronic communication.
    ``(e) Existing Programs Subject to This Title.--
            ``(1) In general.--The Attorney General shall submit an 
        application to the Foreign Intelligence Surveillance Court for 
        any electronic surveillance program to obtain foreign 
        intelligence information or to protect against international 
        terrorism or clandestine intelligence activities.
            ``(2) Existing programs.--Not later than 45 days after the 
        date of enactment of this title, the Attorney General shall 
        submit an application under this title for approval of the 
        electronic surveillance program sometimes referred to as the 
        `Terrorist Surveillance Program' and discussed by the Attorney 
        General before the Committee on the Judiciary of the United 
        States Senate on February 6, 2006. Not later than 120 days 
        after the date of enactment of this title, the Attorney General 
        shall submit applications under this title for approval of any 
        other electronic surveillance program in existence on the date 
        of enactment of this title that has not been submitted to the 
        Foreign Intelligence Surveillance Court.''.

SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 4, is amended by adding at the end the following:

``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE 
              PROGRAMS.

    ``(a) In General.--Each application for approval of an electronic 
surveillance program under this title shall--
            ``(1) be made by the Attorney General;
            ``(2) include a statement of the authority conferred on the 
        Attorney General by the President of the United States;
            ``(3) include a statement setting forth the legal basis for 
        the conclusion by the Attorney General that the electronic 
        surveillance program is consistent with the requirements of the 
        Constitution of the United States;
            ``(4) certify that the information sought cannot reasonably 
        be obtained by conventional investigative techniques or through 
        an application under section 104;
            ``(5) include the name, if known, identity, or description 
        of the foreign power or agent of a foreign power seeking to 
        commit an act of international terrorism or clandestine 
        intelligence activities against the United States that the 
        electronic surveillance program seeks to monitor or detect;
            ``(6) include a statement of the means and operational 
        procedures by which the surveillance will be executed and 
        effected;
            ``(7) include a statement of the facts and circumstances 
        relied upon by the Attorney General to justify the belief that 
        at least 1 of the participants in the communications to be 
        intercepted by the electronic surveillance program will be the 
        foreign power or agent of a foreign power that is specified 
        under paragraph (5), or a person who has had communication with 
        the foreign power or agent of a foreign power that is specified 
        under paragraph (5), and is seeking to commit an act of 
        international terrorism or clandestine intelligence activities 
        against the United States;
            ``(8) include a statement of the proposed minimization 
        procedures;
            ``(9) include a detailed description of the nature of the 
        information sought and the type of communication to be 
        intercepted by the electronic surveillance program;
            ``(10) include an estimate of the number of communications 
        to be intercepted by the electronic surveillance program during 
        the requested authorization period;
            ``(11) specify the date that the electronic surveillance 
        program that is the subject of the application was initiated, 
        if it was initiated before submission of the application;
            ``(12) certify that any electronic surveillance of a person 
        in the United States under this title shall cease 45 days after 
        the date of the authorization, unless the Government has 
        obtained judicial authorization for continued surveillance of 
        the person in the United States under section 104 or another 
        Federal statute;
            ``(13) include a statement of the facts concerning all 
        previous applications that have been made to the Foreign 
        Intelligence Surveillance Court under this title involving the 
        electronic surveillance program in the application, including 
        the minimization procedures and the means and operational 
        procedures proposed, and the Foreign Intelligence Surveillance 
        Court's decision on each previous application; and
            ``(14) include a statement of the facts concerning the 
        implementation of the electronic surveillance program described 
        in the application, including, for any period of operation of 
        the program authorized at least 45 days prior to the date of 
        submission of the application--
                    ``(A) the minimization procedures implemented;
                    ``(B) the means and operational procedures by which 
                the surveillance was executed and effected;
                    ``(C) the number of communications subjected to the 
                electronic surveillance program;
                    ``(D) the identity, if known, or a description of 
                any United States person whose communications sent or 
                received in the United States were intercepted by the 
                electronic surveillance program; and
                    ``(E) a description of the foreign intelligence 
                information obtained through the electronic 
                surveillance program.
    ``(b) Additional Information.--The Foreign Intelligence 
Surveillance Court may require the Attorney General to furnish such 
other information as may be necessary to make a determination under 
section 704.''.

SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 5, is amended by adding at the end the following:

``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

    ``(a) Necessary Findings.--Upon receipt of an application under 
section 703, the Foreign Intelligence Surveillance Court shall enter an 
ex parte order as requested, or as modified, approving the electronic 
surveillance program if it finds that--
            ``(1) the President has authorized the Attorney General to 
        make the application for electronic surveillance for foreign 
        intelligence information;
            ``(2) approval of the electronic surveillance program in 
        the application is consistent with the duty of the Foreign 
        Intelligence Surveillance Court to uphold the Constitution of 
        the United States;
            ``(3) there is probable cause to believe that the 
        electronic surveillance program will intercept communications 
        of the foreign power or agent of a foreign power specified in 
        the application, or a person who has had communication with the 
        foreign power or agent of a foreign power that is specified in 
        the application and is seeking to commit an act of 
        international terrorism or clandestine intelligence activities 
        against the United States;
            ``(4) the proposed minimization procedures meet the 
        definition of minimization procedures under section 101(h);
            ``(5) the application contains all statements and 
        certifications required by section 703; and
            ``(6) an evaluation of the implementation of the electronic 
        surveillance program, as described in subsection (b), supports 
        approval of the application.
    ``(b) Evaluation of the Implementation of the Electronic 
Surveillance Program.--In determining whether the implementation of the 
electronic surveillance program supports approval of the application 
for purposes of subsection (a)(6), the Foreign Intelligence 
Surveillance Court shall consider the performance of the electronic 
surveillance program for at least 3 previously authorized periods, to 
the extent such information is available, and shall--
            ``(1) evaluate whether the electronic surveillance program 
        has been implemented in accordance with the proposal by the 
        Federal Government by comparing--
                    ``(A) the minimization procedures proposed with the 
                minimization procedures implemented;
                    ``(B) the nature of the information sought with the 
                nature of the information obtained; and
                    ``(C) the means and operational procedures proposed 
                with the means and operational procedures implemented;
            ``(2) consider the number of communications intercepted by 
        the electronic surveillance program and the length of time the 
        electronic surveillance program has been in existence; and
            ``(3) consider the effectiveness of the electronic 
        surveillance program, as reflected by the foreign intelligence 
        information obtained.''.

SEC. 7. CONGRESSIONAL OVERSIGHT.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 6, is amended by adding at the end the following:

``SEC. 705. CONGRESSIONAL OVERSIGHT.

    ``(a) In General.--The President shall submit to each member of the 
congressional intelligence committees (or any subcommittee thereof 
designated for oversight of electronic surveillance programs under this 
title) a report on the management and operational details of the 
electronic surveillance program generally and on any specific, 
surveillance conducted under the electronic surveillance program 
whenever requested by either of the committees, or any such 
subcommittee, as applicable.
    ``(b) Semi-Annual Reports.--
            ``(1) In general.--In addition to any reports required 
        under subsection (a), the President shall, not later than 6 
        months after the date of enactment of this Act and every 6 
        months thereafter, fully inform each member of the 
        congressional intelligence committees (or any subcommittee 
        thereof designated for oversight of electronic surveillance 
        programs under this title) on all electronic surveillance 
        conducted under the electronic surveillance program.
            ``(2) Contents.--Each report under paragraph (1) shall 
        include the following:
                    ``(A) A complete discussion of the management, 
                operational details, effectiveness, and necessity of 
                the electronic surveillance program generally, and of 
                the management, operational details, effectiveness, and 
                necessity of all electronic surveillance conducted 
                under the program, during the 6-month period ending on 
                the date of such report.
                    ``(B) The total number of targets of electronic 
                surveillance commenced or continued under the 
                electronic surveillance program.
                    ``(C) The total number of United States persons 
                targeted for electronic surveillance under the 
                electronic surveillance program.
                    ``(D) The total number of targets of electronic 
                surveillance under the electronic surveillance program 
                for which an application was submitted under section 
                104 for an order under section 105 approving electronic 
                surveillance, and, of such applications, the total 
                number either granted, modified, or denied.
                    ``(E) Any other information specified, in writing, 
                to be included in such report by the congressional 
                intelligence committees or any subcommittees thereof 
                designated for oversight of the electronic surveillance 
                program.
                    ``(F) A description of the nature of the 
                information sought under the electronic surveillance 
                program, the types of communications subjected to such 
                program, and whether the information sought under such 
                program could be reasonably obtained by less intrusive 
                investigative techniques in a timely and effective 
                manner.
    ``(c) Form of Reports.--Any report or information submitted under 
this section shall be submitted in classified form.''.

SEC. 8. EMERGENCY AUTHORIZATION.

    Title VII of the Foreign Intelligence Surveillance Act of 1978, as 
amended by section 6, is amended by adding at the end the following:

``SEC. 706. EMERGENCY AUTHORIZATION.

    ``Notwithstanding any other provision of law, the President, 
through the Attorney General, may authorize electronic surveillance 
without a court order under this title to, acquire foreign intelligence 
information for a period not to exceed 45 days following a declaration 
of war by Congress.''.

SEC. 9. CONFORMING AMENDMENT.

    The table of contents for the Foreign Intelligence Surveillance Act 
of 1978 is amended by striking the items related to title VII and 
section 701 and inserting the following:

                  ``TITLE VII--ELECTRONIC SURVEILLANCE

``Sec. 701. Definitions.
``Sec. 702. Foreign Intelligence Surveillance Court jurisdiction to 
                            review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance 
                            programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.
``Sec. 706. Emergency Authorization.
                      ``TITLE VIII--EFFECTIVE DATE

``Sec. 801. Effective date.''.
                                 <all>