[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3874 Placed on Calendar Senate (PCS)]







                                                       Calendar No. 597
109th CONGRESS
  2d Session
                                S. 3874

  To provide in statute for the conduct of electronic surveillance of 
   suspected terrorists for the purposes of protecting the American 
   people, the Nation, and its interests from terrorist attack while 
    ensuring that the civil liberties of United States citizens are 
                  safeguarded, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

            September 7 (legislative day, September 6), 2006

Mr. DeWine introduced the following bill; which was read the first time

                           September 8, 2006

             Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
  To provide in statute for the conduct of electronic surveillance of 
   suspected terrorists for the purposes of protecting the American 
   people, the Nation, and its interests from terrorist attack while 
    ensuring that the civil liberties of United States citizens are 
                  safeguarded, 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 ``Terrorist Surveillance Act of 
2006''.

SEC. 2. TERRORIST SURVEILLANCE PROGRAM.

    (a) In General.--Notwithstanding any provision of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), chapter 
119 of title 18, United States Code, or any other provision of law 
related to the interception or collection of communications, the 
President, through the Attorney General, may authorize a program of 
electronic surveillance without a court order for periods of up to 45 
days if--
            (1) the President determines that the surveillance is 
        necessary to protect the United States, its citizens, or its 
        interests, whether inside the United States or outside the 
        United States;
            (2) there is probable cause to believe that one party 
        subject to the surveillance is an agent or member of a group or 
        organization, affiliated with a group or organization, or 
        working in support of a group or organization on the list 
        established under section 3;
            (3) the surveillance is initiated and conducted in a manner 
        reasonably designed to acquire only communications to or from 
        the United States where--
                    (A) at least one party to such communications is 
                reasonably believed to be physically located outside 
                the United States; or
                    (B) such communications appear to originate or 
                terminate outside the United States;
            (4) there is not a substantial likelihood that the 
        surveillance will acquire the substance of any communication 
        where every party to such communication is physically located 
        within the United States;
            (5) a significant purpose of the surveillance is to obtain 
        foreign intelligence information; and
            (6) minimization procedures are in place with respect to 
        the surveillance which meet the standards for minimization 
        procedures under section 101(h) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801(h)).
    (b) Scope.--
            (1) Basis.--Electronic surveillance carried out pursuant to 
        the authority in subsection (a) shall not be conducted solely 
        on the basis of activities protected by the first amendment to 
        the Constitution of the United States.
            (2) Targeting decisions.--The President may rely on 
        intelligence community professionals to make targeting 
        decisions during the course of electronic surveillance carried 
        out pursuant to the authority in subsection (a) based on all 
        lawfully collected information available to such professionals 
        at the time of such decisions.
    (c) Designation of Program.--Electronic surveillance carried out 
pursuant to the authority in subsection (a) shall be known as the 
``Terrorist Surveillance Program''.
    (d) Minimization Procedures.--
            (1) Initial procedures.--The Attorney General shall 
        establish the minimization procedures required by subsection 
        (a)(6) not later than 30 days after the date of the enactment 
        of this Act.
            (2) Updates.--The Attorney General shall update the 
        minimization procedures under this subsection at such times as 
        the Attorney General considers appropriate, but not less often 
        than annually.
    (e) Support of Surveillance.--With respect to any electronic 
surveillance authorized by subsection (a), the Attorney General may 
direct a specified provider of communication services or common carrier 
to--
            (1) furnish all information, facilities, or technical 
        assistance necessary to accomplish the surveillance in such a 
        manner as will protect its secrecy and produce a minimum of 
        interference with the services that such carrier is providing 
        its customers; and
            (2) maintain under security procedures approved by the 
        Attorney General and the Director of National Intelligence any 
        records concerning the surveillance or assistance furnished 
        that such carrier determines to retain.
    (f) Use of Information.--
            (1) Disclosure of information on united states persons.--
        Information acquired from electronic surveillance conducted 
        pursuant to this section concerning any United States person 
        may be used or disclosed by Federal officers or employees 
        without the consent of the United States person only in 
        accordance with the minimization procedures required by 
        subsection (a)(6).
            (2) Uses of information.--No information acquired from 
        electronic surveillance conducted pursuant to this section may 
        be used or disclosed by Federal officers or employees except 
        for lawful purposes, including the provision of a factual 
        predicate for an order for electronic surveillance under 
        section 104 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1804), dissemination to appropriate authorities 
        consistent with the minimization procedures required by 
        subsection (a)(6), and use as evidence in a criminal proceeding 
        consistent with section 106 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1806).

SEC. 3. TERRORIST SURVEILLANCE LIST.

    (a) In General.--The President shall establish and maintain for 
purposes of this Act a list of groups and organizations that are 
subject to electronic surveillance authorized under the Terrorist 
Surveillance Program. The list shall be known as the ``Terrorist 
Surveillance List''.
    (b) Requirements for Listing.--A group or organization may be 
placed on the list under this section only if the President determines 
that there is a reasonable likelihood that the group or organization, 
as the case may be--
            (1) has engaged in an act of international terrorism 
        against the United States, its citizens, or its interests, 
        whether inside the United States or outside the United States;
            (2) intends to engage in an act of international terrorism 
        against the United States, its citizens, or its interests, 
        whether inside the United States or outside the United States; 
        or
            (3) is engaged in activities in preparation for an actual 
        or potential act of international terrorism against the United 
        States, its citizens, or its interests, whether inside the 
        United States or outside the United States.
    (c) Updates.--The President shall update the list under this 
section at such times as the President considers appropriate, but not 
less often than annually, including determining whether a group or 
organization placed on the Terrorist Surveillance List should be 
removed from the list.

SEC. 4. PROGRAM REVIEW AND REAUTHORIZATION.

    (a) In General.--Not later than 45 days after the commencement of 
the Terrorist Surveillance Program and 45 days after the continuation 
of the Terrorist Surveillance Program pursuant to a determination under 
subsection (b), the Attorney General shall review the conduct of the 
program in order to determine the following:
            (1) Whether the surveillance under the program met the 
        requirements of section 2(a) during the period covered by the 
        review.
            (2) Whether to recommend the continuation of the program 
        for another 45 days.
    (b) Continuation of the Terrorist Surveillance Program.--
            (1) Determination on continuation.--Upon completion of the 
        review of the Terrorist Surveillance Program by the Attorney 
        General under subsection (a), the President shall determine the 
        following:
                    (A) Whether the Terrorist Surveillance Program 
                remains necessary to protect the United States, its 
                citizens, or interests, whether inside the United 
                States or outside the United States.
                    (B) Whether to continue the Terrorist Surveillance 
                Program.
            (2) Continuation.--If the President determines under 
        paragraph (1) to continue the Terrorist Surveillance Program, 
        the President, through the Attorney General, may continue the 
        program for an additional period of 45 days, subject to the 
        requirements of section 2(a).
            (3) Discontinuation.--If the President determines under 
        paragraph (1) to discontinue the Terrorist Surveillance 
        Program, the President shall discontinue the program in a 
        prompt manner.
            (4) Recommencement of program.--At any time after the 
        discontinuation of the Terrorist Surveillance Program under 
        paragraph (3), the President may recommence the program or any 
        other program of electronic surveillance under this Act if the 
        President determines that the requirements of section 2(a) are 
        met.
    (c) Certification.--Following completion of any review of a program 
of surveillance under this section, the Attorney General shall certify 
in writing and under oath, to the congressional intelligence 
committees, whether the program of surveillance, during the period 
covered by the review, met the requirements of section 2(a).
    (d) Review.--The Attorney General shall conduct review of the 
Terrorist Surveillance Program under this section pursuant to such 
procedures as the Attorney General shall establish for purposes of this 
section.

SEC. 5. REVIEW OF SURVEILLANCE OF INDIVIDUAL TARGETS.

    (a) In General.--When conducting a 45-day review under section 4, 
the Attorney General shall also review the surveillance of individual 
targets within the United States under the program during the period 
covered by the review. During such review, the Attorney General shall 
determine the following:
            (1) Whether the known facts and circumstances relating to 
        any target within the United States--
                    (A) met the requirements of section 2(a) during the 
                period covered by the review; and
                    (B) satisfy the criteria for an application under 
                section 104 of the Foreign Intelligence Surveillance 
                Act of 1978 (50 U.S.C. 1804) for an order for 
                electronic surveillance of the target under section 105 
                of that Act (50 U.S.C. 1805).
            (2) Whether to terminate surveillance on the target.
            (3) Whether to continue surveillance under section 2(a).
    (b) Continued Surveillance Under FISA.--
            (1) In general.--
                    (A) Determination.--If, at any time (including 
                through a review of electronic surveillance under 
                section 4), the Attorney General determines that the 
                known facts and circumstances relating to any target 
                within the United States satisfy the criteria for an 
                application under section 104 of the Foreign 
                Intelligence Surveillance Act of 1978 for an order for 
                electronic surveillance of the target under section 105 
                of that Act, the Attorney General, at the direction of 
                the President, shall--
                            (i) discontinue the surveillance of the 
                        target under section 2(a); or
                            (ii) continue the surveillance of the 
                        target under section 2(a), subject to the 
                        requirements of subparagraph (B).
                    (B) Continuation of surveillance.--
                            (i) In general.--The Attorney General may 
                        continue surveillance of a target under section 
                        2(a) as specified in subparagraph (A)(ii) only 
                        if the Attorney General makes an application 
                        under section 104 of the Foreign Intelligence 
                        Surveillance Act of 1978 for an order for 
                        electronic surveillance of the target under 
                        section 105 of that Act as soon as practicable 
                        after the date on which the Attorney General 
                        makes the determination to continue 
                        surveillance of the target under subparagraph 
                        (A)(ii), but in no event later than seven days 
                        after the date of such determination.
                            (ii) Period.--The period during which the 
                        Attorney General may continue surveillance of a 
                        target under section 2(a) as specified in 
                        subparagraph (A)(ii) shall be limited to the 
                        period during which the application of the 
                        Attorney General under section 104 of the 
                        Foreign Intelligence Surveillance Act of 1978 
                        for an order for electronic surveillance of the 
                        target under section 105 of that Act is pending 
                        under that Act, including during any period in 
                        which appeal from the denial of the application 
                        is pending under the court of review or the 
                        Supreme Court under section 103(b) of that Act 
                        (50 U.S.C. 1803(b)).
    (c) Discontinuation of Surveillance.--If the Attorney General 
determines through a review of electronic surveillance under this 
section that the known facts and circumstances relating to any target 
within the United States do not meet the requirements of section 2(a) 
and do not satisfy the criteria for an application under section 104 of 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for 
an order for electronic surveillance of the target under section 105 of 
that Act (50 U.S.C. 1805), the Attorney General shall discontinue the 
surveillance of the target under section 2(a).
    (d) Continued Surveillance Under Section 2(a).--
            (1) Presumption.--In reviewing the electronic surveillance 
        of a target in the United States under this section, the 
        Attorney General shall presume that electronic surveillance of 
        a target shall be conducted under the Foreign Intelligence 
        Surveillance Act of 1978 or be terminated.
            (2) Rebuttal of presumption.--The presumption under 
        paragraph (1) with respect to a target can be rebutted, and the 
        Attorney General may continue the surveillance of a target 
        under section 2(a), if--
                    (A) the Attorney General determines, based on the 
                known facts and circumstances relating to such target, 
                that--
                            (i) the surveillance of the target during 
                        the previous 45-day period satisfied the 
                        requirements of section 2(a); and
                            (ii) there is a good faith belief that 
                        continued surveillance will result in the 
                        acquisition of foreign intelligence 
                        information; and
                    (B) the President determines that continued 
                surveillance of the target is necessary to protect the 
                United States, its citizens, or interests, whether 
                inside the United States or outside the United States.
    (e) Certification.--If the Attorney General decides to continue 
surveillance of a target under section 2(a), not later than 72 hours 
after the Attorney General conducts the applicable review under 
subsection (a), the Attorney General shall certify in writing and under 
oath to the terrorist surveillance subcommittees that--
            (1) the surveillance of the target during the previous 45-
        day period satisfied the requirements of section 2(a);
            (2) the known facts and circumstances relating to the 
        target do not satisfy the criteria for an application under 
        section 104 of the Foreign Intelligence Surveillance Act of 
        1978 for an order for electronic surveillance of the target 
        under section 105 of that Act;
            (3) the President has determined that continued 
        surveillance of the target without a court order is necessary 
        to protect the United States, its citizens, or interests; and
            (4) continued surveillance is being undertaken in a good 
        faith belief that it will result in the acquisition of foreign 
        intelligence information.
    (f) Submitting Certification to FISA Court.--Section 104(a) of the 
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804(a)) is 
amended--
            (1) in paragraph (10), by striking ``and'' at the end;
            (2) in paragraph (11), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(12) if applicable, each certification under section 5(e) 
        of the Terrorist Surveillance Act of 2006 relating to the 
        continued surveillance of the target of the electronic 
        surveillance that is the subject of the application.''.

SEC. 6. REGULAR AND ONGOING OVERSIGHT BY CONGRESS.

    (a) Senate Terrorist Surveillance Subcommittee.--The Select 
Committee on Intelligence of the Senate shall designate the creation of 
a Subcommittee, in accordance with the Rules of the Senate, with the 
exclusive jurisdiction to oversee and monitor all matters relating to 
surveillance conducted by the President under the Terrorist 
Surveillance Program. The Subcommittee shall be authorized to employ 
staff members, as needed, with the technical and subject matter 
expertise necessary to assist the Subcommittee in conducting regular, 
ongoing oversight of any surveillance conducted by the President under 
the Terrorist Surveillance Program. The staff members shall work 
exclusively for, and report exclusively to, the Subcommittee.
    (b) House Terrorist Surveillance Subcommittee.--The Permanent 
Select Committee on Intelligence of the House of Representatives shall 
designate the creation of a Subcommittee, in accordance with the Rules 
of the House of Representatives, with the exclusive jurisdiction to 
oversee and monitor all matters relating to surveillance conducted by 
the President under the Terrorist Surveillance Program. The 
Subcommittee shall be authorized to employ staff members, as needed, 
with the technical and subject matter expertise necessary to assist the 
Subcommittee in conducting regular, ongoing oversight of any 
surveillance conducted by the President under the Terrorist 
Surveillance Program. The staff members shall work exclusively for, and 
report exclusively to, the Subcommittee.
    (c) Submittals to Full Intelligence Committees.--
            (1) Terrorist surveillance list.--
                    (A) In general.--Not later than 60 days after the 
                date of the enactment of this Act, and annually 
                thereafter, the President shall submit to the 
                congressional leadership and the congressional 
                intelligence committees a current version of the list 
                established under section 3.
                    (B) Updates.--Not later than 72 hours after any 
                update or modification of the list established under 
                section 3, the President shall submit to the 
                congressional intelligence committees a current version 
                of the list, showing such update or modification.
            (2) Review procedures.--
                    (A) In general.--The Attorney General shall submit 
                to the congressional intelligence committees the review 
                procedures established under section 4(d).
                    (B) Updates.--Not later than 72 hours after any 
                update or modification of the review procedures 
                established under section 4(d), the Attorney General 
                shall submit to the congressional intelligence 
                committees a current version of the procedures, showing 
                such update or modification.
            (3) Notice of surveillance.--Not later than 72 hours after 
        the commencement of a program of electronic surveillance under 
        section 2(a) or the continuation, discontinuation, or 
        recommencement of a program of electronic surveillance under 
        section 2(a), the President shall provide notice of such action 
        to the congressional intelligence committees.
            (4) Minimization procedures.--
                    (A) In general.--The Attorney General shall submit 
                to the congressional intelligence committees the 
                minimization procedures established under section 2(d).
                    (B) Updates.--Not later than 72 hours after any 
                update to or modification of the minimization 
                procedures established under section 2(d), the Attorney 
                General shall submit to the congressional intelligence 
                committees the updated or modified version of the 
                minimization procedures.
            (5) Form of submittals.--Any matter submitted under this 
        subsection shall be submitted in classified form.
    (d) Submittals to Subcommittees.--
            (1) In general.--The President shall submit to the 
        terrorist surveillance subcommittees a report on the management 
        and operational details of the Terrorist Surveillance Program 
        generally and on any specific surveillance conducted under the 
        Terrorist Surveillance Program whenever requested by either of 
        the terrorist surveillance subcommittees.
            (2) Semi-annual reports.--
                    (A) In general.--In addition to any reports 
                required under paragraph (1), the President shall, not 
                later than 6 months after the date of the enactment of 
                this Act and every 6 months thereafter, fully inform 
                the terrorist surveillance subcommittees on all 
                electronic surveillance conducted under the Terrorist 
                Surveillance Program.
                    (B) Contents.--Each report under subparagraph (A) 
                shall include the following:
                            (i) A complete discussion of the 
                        management, operational details, effectiveness, 
                        and necessity of the Terrorist Surveillance 
                        Program generally, and of the management, 
                        operational details, effectiveness, and 
                        necessity of all electronic surveillance 
                        conducted under the program, during the six-
                        month period ending on the date of such report.
                            (ii) For any target located within the 
                        United States subject to surveillance under the 
                        Terrorist Surveillance Program for more than 45 
                        days--
                                    (I) an explanation why continued 
                                surveillance of the subject is 
                                necessary to protect the United States, 
                                its citizens, or interests; and
                                    (II) an explanation why the 
                                Attorney General has not sought an 
                                order for the approval of electronic 
                                surveillance of the subject under the 
                                Foreign Intelligence Surveillance Act 
                                of 1978 (50 U.S.C. 1801 et seq.).
                            (iii) The total number of targets of 
                        electronic surveillance within the United 
                        States during the preceding 6-month period 
                        either commenced or continued under the 
                        Terrorist Surveillance Program.
                            (iv) The total number of United States 
                        persons targeted for electronic surveillance 
                        during the preceding 6-month period under the 
                        Terrorist Surveillance Program.
                            (v) The total number of targets of 
                        electronic surveillance within the United 
                        States during the preceding 6-month period 
                        under the Terrorist Surveillance Program for 
                        which, an application was made under section 
                        104 of the Foreign Intelligence Surveillance 
                        Act of 1978 (50 U.S.C. 1804) for an order under 
                        section 105 of that Act (50 U.S.C. 1805) 
                        approving electronic surveillance under that 
                        Act, and, of such applications, the total 
                        number either granted, modified, or denied.
                            (vi) Any other information specified, in 
                        writing, to be included in such report by 
                        either of the terrorist surveillance 
                        subcommittees.
                            (vii) A description of the nature of the 
                        information sought under the Terrorist 
                        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.
            (3) Form of reports.--Any report or information submitted 
        under this subsection shall be submitted in classified form.
    (e) Annual Reports by Subcommittees.--The terrorist surveillance 
subcommittees shall prepare separate annual reports on the Terrorist 
Surveillance Program, including the program's effectiveness, its 
management, its operational details, and any other matters that the 
subcommittees consider appropriate. Each report shall be prepared in a 
classified form.

SEC. 7. SUNSET.

    This Act and the amendments made by this Act are repealed effective 
on the date that is 5 years after the date of enactment of this Act.

SEC. 8. CRIMINAL PENALTIES FOR UNAUTHORIZED DISCLOSURE OF INFORMATION 
              ON SURVEILLANCE PROGRAMS.

    (a) Establishment of Offense.--Chapter 37 of title 18, United 
States Code, is amended by inserting after section 798A the following 
new section:
``Sec. 798B. Unauthorized disclosure of information on surveillance 
              programs
    ``(a) In General.--Any covered person who intentionally discloses 
information identifying or describing, whether in whole or in part, 
electronic surveillance authorized by section 2 of the Terrorist 
Surveillance Act of 2006, or any other information relating to the 
Terrorist Surveillance Program under that Act or any program of 
surveillance under the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) to any individual not authorized to receive 
such information shall be fined not more than $1,000,000, imprisoned 
not more than 15 years, or both.
    ``(b) Definition.--In this section, the term `covered person' means 
any person authorized to receive information under the Terrorist 
Surveillance Act of 2006, or the Foreign Intelligence Surveillance Act 
of 1978.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter is amended by inserting after the item relating to section 
798A the following new item:

``798B. Unauthorized disclosure of information on surveillance 
                            programs.''.

SEC. 9. DEFINITIONS.

    In this Act--
            (1) the term ``congressional intelligence committees'' 
        means--
                    (A) each member of the Select Committee on 
                Intelligence of the Senate; and
                    (B) each member of the Permanent Select Committee 
                on Intelligence of the House of Representatives;
            (2) the term ``congressional leadership'' means--
                    (A) the Speaker of the House of Representatives and 
                the Minority Leader of the House of Representatives; 
                and
                    (B) the Majority Leader and Minority Leader of the 
                Senate;
            (3) the terms ``international terrorism'', ``electronic 
        surveillance'', ``foreign intelligence information'', and 
        ``United States person'' have the meaning given such terms in 
        section 101 of the Foreign Intelligence Surveillance Act of 
        1978 (50 U.S.C. 1801); and
            (4) the term ``terrorist surveillance subcommittees'' means 
        the subcommittees of the Select Committee on Intelligence of 
        the Senate and the Permanent Select Committee on Intelligence 
        of the House of Representatives created under section 6(a) and 
        (b).
                                                       Calendar No. 597

109th CONGRESS

  2d Session

                                S. 3874

_______________________________________________________________________

                                 A BILL

  To provide in statute for the conduct of electronic surveillance of 
   suspected terrorists for the purposes of protecting the American 
   people, the Nation, and its interests from terrorist attack while 
    ensuring that the civil liberties of United States citizens are 
                  safeguarded, and for other purposes.

_______________________________________________________________________

                           September 8, 2006

            Read the second time and placed on the calendar