[Congressional Record Volume 140, Number 27 (Friday, March 11, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: March 11, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                           AMENDMENT NO. 1489

 Mr. COHEN. Mr. President, yesterday I offered amendment No. 
1489. I ask that a detailed article by article analysis and legislative 
history of the amendment be printed in the Record.
  The material follows:

S. 1869, Counterintelligence Improvement Act of 1994 Section-by-Section 
                                Analysis


                               SECTION 1

       Section 1 contains the title of the Act, ``The 
     Counterintelligence Improvements Act of 1994.''


                               SECTION 2

       Section 2 adds a new title VIII to the National Security 
     Act of 1947 (50 U.S.C. 401 et seq.) to govern access to Top 
     Secret classified information.
       Section 801 establishes the requirements for eligibility to 
     access Top Secret information.
       Subsection (a) specifies that the President and Vice 
     President, Members of Congress, Justices of the Supreme Court 
     and judges of other federal courts established pursuant to 
     Article III of the Constitution are eligible, by virtue of 
     their elected and appointed positions, for access to 
     particularly sensitive classified information needed for the 
     performance of their governmental functions without regard to 
     other provisions of this title. This means that the 
     incumbents of such positions are not required to meet the 
     security requirements of other sections of the bill (e.g. 
     submit to background investigations or reinvestigations) 
     applicable to government employees.
       Subsection (b) provides that with respect to government 
     employees, access to Top Secret information shall be limited 
     to employees who have been granted access pursuant to this 
     title, who are citizens of the United States, who require 
     routine access to such information in the performance of 
     official governmental functions, and who have been determined 
     to be trustworthy based upon a background investigation and 
     other reinvestigations undertaken pursuant to section 802, 
     below, and have otherwise satisfied the requirements of that 
     section.
       Subsection (c) provides that the President may by 
     regulation permit access to Top Secret information by persons 
     other than those listed in subsections (a) and (b). The 
     Congress intends that such regulations cover access to Top 
     Secret information by government employees who are not 
     citizens of the United States or who do not require routine 
     access to such information for the performance of official 
     functions. It is also contemplated that there will be limited 
     circumstances where it will be in the best interest of the 
     United States to share such information with persons who are 
     not government employees (including contractors). Such 
     persons may, indeed, include foreign nationals in rare 
     circumstances. The Congress expects the President to make 
     appropriate allowances for such access in the regulations 
     required by section 802.
       Section 802 requires the President to issue, within 180 
     days of enactment of this title, regulations binding upon all 
     elements of the Executive branch. Such regulations are 
     required, at a minimum, to establish certain requirements 
     enumerated in this section.
       Subsection (A) sets forth the minimum requirements to be 
     met as a condition of access to Top Secret information, to 
     include the requirements for initial and periodic background 
     investigations, requirements to consent to the Government's 
     access to certain types of personal records, and requirements 
     to report certain types of information to the Government.
       Subsection (A)(1) provides that no employee of the United 
     States Government shall be given access to Top Secret 
     information unless such person has been the subject of a 
     background investigation and has provided consent to the 
     investigative agency responsible for conducting the 
     investigation permitting access to certain types of records 
     during the period of access and for five years thereafter. 
     Such records include financial records covered by the Right 
     to Financial Privacy Act of 1978; consumer credit reports 
     covered by the Consumer Credit Protection Act; and records 
     maintained by commercial entities within the United States 
     pertaining to travel by the subject outside the United 
     States. (Access by government investigative agencies to this 
     category of records does not appear to be restricted under 
     existing law, however, private commercial concerns may be 
     reluctant to provide such information without the consent of 
     the consumer.)
       The three provisos at the end of the subsection (A)(1) 
     place general limitations on the authority of the 
     investigating agency to request or disseminate such 
     information.
       Proviso (i) states that an authorized investigative agency 
     may not request information pursuant to this section for any 
     purpose other than making a security clearance determination. 
     Thus, this subsection does not provide authority to request 
     information concerning any person who is not being 
     contemplated for access to Top Secret information or who has 
     such access presently or within the last five years.
       Proviso (ii) states that where the individual concerned no 
     longer has access to Top Secret information, no information 
     may be requested by an authorized investigative agency unless 
     such agency has reasonable grounds to believe, based upon 
     specific and articulable facts available to it, that such 
     persons may pose a threat to the continued security of the 
     information to which he or she had previously had access. 
     This means that information could not be requested concerning 
     any person who had left government service, or who remained 
     in government service after access had been terminated, 
     unless the investigative agency had reasonable grounds to 
     believe such person may pose a security concern. The Congress 
     believes that where persons who no longer have access to 
     highly classified information are concerned, there should be 
     a specific basis to justify Government inquiries into their 
     personal records.
       Proviso (iii) prohibits any authorized investigative agency 
     which obtains information pursuant to this section from 
     disseminating it to any other department, agency, or entity 
     for any purpose other than making a security clearance 
     determination, or for a law enforcement or foreign 
     counterintelligence purpose. Inasmuch as such information may 
     be highly personal, its dissemination is justified only by 
     the most compelling needs.
       Subsection (A)(2) also requires persons being given access 
     to particularly sensitive classified information to agree, as 
     a condition of such access, to report, in accordance with 
     applicable regulations, any travel to foreign countries 
     during the period of access which has not been authorized as 
     part of the subject's official duties. The Congress 
     recognizes there will be cases, due to geographical location 
     of the U.S. employee concerned, where foreign travel for 
     personal reasons could be a routine, perhaps even daily, 
     occurrence. By providing that reports of such travel be made 
     in accordance with applicable regulations is intended to 
     provide flexibility to accommodate such situations.
       Subsection (A)(3) requires that persons being given access 
     to particularly sensitive classified information also report 
     to the Federal Bureau of Investigation or to appropriate 
     investigative authorities of the employing department, 
     agency, or entity, any unauthorized contacts with persons 
     known to be foreign nationals or persons representing 
     foreign nationals, where an effort to acquire U.S. 
     classified information is made or is apparent. For this 
     latter purpose, unauthorized contacts do not include 
     contacts made within the context of an authorized 
     diplomatic relationship. In other words, where the 
     employee is authorized to cultivate a diplomatic 
     relationship, and in the course of such relationship, a 
     foreign diplomat poses a question within the scope of such 
     relationship, the answer to which would require classified 
     information to be revealed, such an inquiry would not be 
     required to be reported to investigative agencies. If, on 
     the other hand, the foreign diplomat attempted to solicit 
     classified information outside the scope of an authorized 
     relationship, or attempted to recruit the U.S. diplomat to 
     collect information in the future, such approach would be 
     reportable under this section.
       The final paragraph of subsection (A) provides that a 
     failure by the subject to grant consent as required by this 
     subsection, or make the reports required by this subsection, 
     constitute ground for denial or termination of access to Top 
     Secret information. The Congress does not intend that such 
     failure will automatically result in such denial or 
     termination, but rather that the department, agency, or 
     entity concerned will evaluate all relevant information 
     related to such failure and determine whether such action is 
     appropriate.
       Subsection (B) deals with requirements for reinvestigations 
     of persons granted access to Top Secret information. 
     Subsection (B)(1) provides that such persons will be subject 
     to additional background investigations no less frequently 
     than every 5 years. Although any failure to satisfy this 
     requirement that is not solely attributable to the subject of 
     the investigation shall not result in a loss or denial of 
     access. The Congress recognizes that there may be practical 
     reasons why reinvestigations are not accomplished within the 
     five-year time frame. Where these are not solely attributable 
     to subject, they should not result in any unfavorable action 
     regarding his continued access. Subsection (B)(2) provides 
     that such persons are subject to investigation at any time to 
     ascertain whether they continue to meet the requirements for 
     access. Thus, should an authorized investigative agency 
     receive information at any time which may suggest such person 
     may no longer meet the security requirements for access, an 
     investigation may be undertaken.
       Subsection (C) requires that the regulations address the 
     matter of access to Top Secret information by persons other 
     than the officials lists in section 801(A) above, or 
     government employees eligible for access to such information 
     as provided in section 801(B). The subsection provides that 
     the President or other officials designated by the President 
     for this purpose, may authorize access to such information by 
     such persons only where such access is essential to protect 
     or further the national security interests of the United 
     States.
       Subsection (D) requires that the President designate a 
     single office within the Executive branch to monitor the 
     implementation and operation of this title within the 
     Executive branch, and provide an annual report to the 
     President and appropriate congressional committees describing 
     the operation of this title and recommending any needed 
     improvements.
       The bill requires that a copy of the implementing 
     regulations required by this section be provided to the two 
     intelligence committees 30 days prior to their effective 
     date.
       Section 803 provides authority for the President, or 
     officials designated by the President for this purpose, to 
     waive the provisions of this title and the regulations 
     implementing this title for individual cases involving U.S. 
     citizens or persons admitted to the United States for 
     permanent residence, when essential to protect or further the 
     national security interests of the United States, provided 
     all such waives are made a matter of record, reported to the 
     oversight office established pursuant to section 802, and are 
     available for review by the intelligence committees.
       The Congress recognizes there will be extraordinary 
     circumstances when the president (or other senior officials) 
     could be justified in waiving the investigative requirements 
     or the consent requirements for particular persons as a 
     condition of their receiving access to particularly sensitive 
     classified information. The Congress believes, however, that 
     such waiver authority ought to be limited to specific 
     individuals who are either citizens of the United States or 
     persons who are admitted to the United States for permanent 
     residence. Such waiver authority is not granted to permit the 
     exemption of entire classes of persons, or the employees of a 
     particular department or agency, or to provide access for 
     particular purposes (e.g., diplomatic exchanges). Should the 
     President wish to exempt classes of persons or entire 
     departments or agencies from the requirements of this 
     title, or provide for access by foreign nationals under 
     limited circumstances, such exemptions should be made in 
     the regulations issued pursuant to section 802, which are 
     reported to the intelligence committees, rather than made 
     subject to individual waives pursuant to section 803.
       Section 804 contains the definitions of terms used in this 
     title.
       Section (a) defines the term ``national security'' as 
     referring to the national defense and foreign relations of 
     the United States.
       Subsection (b) defines the term ``information classified in 
     the interest of national security'' or ``classified 
     information'' as meaning any information originated by or on 
     behalf of the United States Government, the unauthorized 
     disclosure of which would cause damage to the national 
     security, and which has been marked and is controlled 
     pursuant to Executive Order 12356, dated April 2, 1982, or 
     successor orders, or the Atomic Energy Act of 1954.
       Subsection (c) defines the term ``Top Secret information'' 
     as information classified in the interest of national 
     security, the unauthorized disclosure of which would cause 
     exceptionally grave damage to the national security.
       Subsection (d) defines the term ``employee'' for purposes 
     of this title as including any persons who receives a salary 
     or compensation of any kind from the United States 
     Government, is a contractor or unpaid consultant of the 
     United States Government, or otherwise acts for or on behalf 
     of the United States Government, but does not include the 
     President or Vice President, Members of Congress, Justices of 
     the Supreme Court or judges of federal courts established 
     pursuant to Article III of the Constitution.
       Subsection (e) defines the term ``authorized investigative 
     agency'' means an agency authorized by law or regulation to 
     conduct investigations of persons who are proposed for access 
     to Top Secret information to ascertain whether such persons 
     satisfy the criteria for obtaining and retaining a security 
     clearance. Such agencies would include the Federal Bureau of 
     Investigation, the Defense Investigative Service, and other 
     departments and agencies who are authorized to conduct such 
     investigations.
       Section 805 provides that this title shall take effect 180 
     days from its enactment. This period is necessary in order to 
     allow time for the President to issue the implementing 
     regulations required by section 802 prior to the effective 
     date of this title.


                               SECTION 3

       Section 3 of the bill adds a new title IX to the National 
     Security Act of 1947 (50 U.S.C. 401 et seq.) to provide 
     special requirements for the protection of cryptographic 
     information. Persons with access to such information 
     necessarily have the capability of inflicting grave damage 
     upon the national security by enabling unauthorized persons 
     to read or understand an unlimited number of U.S. 
     communications at all levels of classification. In view of 
     the peculiar sensitivity of such information, the Congress 
     believes that special security measures should be imposed on 
     persons who have access to this information.
       It is the intent of the Congress, however, that only those 
     Executive branch employees or contractors who have extensive 
     involvement with, or in-depth knowledge of, classified 
     cryptographic information need to be covered by the proposed 
     title. This would include persons who develop U.S. codes or 
     ciphers, persons who build or install devices or equipment 
     which contain such codes or ciphers, and persons who are 
     employed in locations where large volumes of classified 
     information are processed by such devices or equipment, such 
     as communications centers. It is not intended that persons 
     who have access to cryptographic devices or equipment 
     designed for personal use or office use should be covered by 
     this title.
       Section 901 establishes minimum uniform security 
     requirements for Executive branch employees who are granted 
     access to classified cryptographic information or routine, 
     recurring access to any space in which classified 
     cryptographic key is produced or processed, or is assigned 
     responsibilities as a custodian of classified cryptographic 
     key. The President may provide latitude in the regulations 
     implementing this title for departments and agencies to 
     impose additional, more stringent security measures upon such 
     persons where circumstances may warrant.
       Two basic requirements are imposed upon persons covered by 
     the title. Subsection (a)(1)(A) requires that they meet the 
     security requirements established by section 802 of the Act, 
     as persons with access to particularly sensitive information. 
     Thus, persons covered by this title would also be subject 
     to initial background investigations, reinvestigations not 
     less than every five years, and unscheduled investigations 
     as appropriate, to ensure they continue to meet the 
     standards for access to classified cryptographic 
     information, regardless of the level of security clearance 
     such persons may otherwise have. They would also be 
     required to provide their consent to the authorized 
     governmental investigative authorities having access to 
     the categories of records set forth in section 802.
       Subsection (a)(1)(B) requires that persons covered by this 
     title also be subject to periodic polygraph examinations 
     conducted by appropriate governmental authorities, limited in 
     scope to questions of a counterintelligence nature, during 
     the period of their access to classified cryptographic 
     information. This provision does not require such polygraph 
     examinations for all such persons, but it does make such 
     persons, regardless of the department or agency where they 
     may be employed, subject to such examinations on an 
     unscheduled basis while such access is maintained. In 
     accordance with the implementing regulations required by 
     section 902, it is anticipated that departments and agencies 
     with employees or contractors covered by this title would 
     establish or acquire a sufficient capability to conduct such 
     examinations to maintain a credible deterrent to persons with 
     access to such information.
       The Congress also reemphasizes that this section provides 
     for minimum standards. It is not the intent of the provision 
     to restrict the use of the polygraph at the Central 
     Intelligence Agency and National Security Agency, where 
     polygraph examinations are routinely required of all 
     employees and are not limited to questions of a 
     counterintelligence nature.
       Subsection 901(a)(2) provides that any refusal to submit to 
     a counterintelligence-scope polygraph examination shall 
     constitute grounds to remove such person from access to 
     classified cryptographic information. It is not intended, 
     however, that such person be subjected to any additional 
     personnel or administrative action, including any adverse 
     action on his or her security clearance, as a result of such 
     refusal.
       Moreover, subsection 901(a)(2) goes on to provide that no 
     person shall be removed from access to classified 
     cryptographic information or spaces based solely upon the 
     interpretation of the machine results of a polygraph 
     examination, which measure physiological responses, unless 
     the head of the department or agency concerned determines, 
     after further investigation, that the risk to the national 
     security under the circumstances is so potentially grave that 
     access cannot safely be permitted.
       The Congress recognizes that a polygraph examination in 
     essence measures certain physiological responses produced by 
     answers to questions posed to the subject. Such responses 
     might reflect deception on the part of the subject, but they 
     might also reflect other, wholly innocent stimuli, both 
     mental and physical. Indeed, while expert opinion varies in 
     terms of how often the interpretation of polygraph results 
     can be relied upon to show lying or deception, the Congress 
     is aware of no expert who contends that interpretation of 
     polygraph results provides an infallible indication of lying 
     or deception. Accordingly, the Congress believes that an 
     interpretation of polygraph results should not be the sole 
     basis for denial of access to classified cryptographic 
     information or spaces. It intends that where the results of 
     such examinations do indicate lying or deception to key 
     counterintelligence questions, that these discrepancies be 
     resolved, where possible, through interviews with the subject 
     and such further investigation as may be warranted. If such 
     further investigation does not provide an independent basis 
     for removal from access, such access should be granted or 
     maintained unless the head of the department or agency 
     concerned determines, in view of all the circumstances 
     involved and the potentially grave risk to the national 
     security, that access should not be permitted.
       Subsection 901(b) sets forth the definitions of the terms 
     used in this section.
       Subsection (b)(1) defines the term ``classified 
     cryptographic information'' as any information classified 
     pursuant to law or Executive order which concerns the details 
     of (A) the nature, preparation, or use of any code, cipher, 
     or cryptographic system of the United States; or (B) the 
     design, construction, use, maintenance, or repair of any 
     cryptographic equipment. The proviso to this definition 
     specifically excludes information concerning the use of 
     cryptographic systems or equipment required for personal or 
     office use.
       This term is thus intended to cover classified information 
     which reveals or contains detailed information concerning 
     U.S. codes and cryptographic equipment, to include 
     information concerning the nature and development of such 
     codes or equipment, and the design, construction, use, 
     maintenance or repair of such equipment. (``Cryptographic 
     equipment'' is defined in subsection (b)(4) as any device, 
     apparatus, or appliance used by the United States for 
     authenticating communications, or disguising or concealing 
     communications or their meaning.) The definition of 
     ``classified cryptographic information'' is not intended, 
     however, to cover persons who use cryptographic equipment 
     that has been developed for personal or office use, such 
     as a secure telephone, where such person is not also 
     exposed to detailed information concerning the design, 
     construction, use, maintenance or repair of such 
     equipment. The term is intended to cover individuals, 
     however, who require access to detailed information 
     concerning the use of encoding equipment for other than 
     personal or office use. For example, persons employed at 
     government communications centers which process large 
     volumes of classified information would be persons who 
     fall within this definition.
       Subsection b(2) defines the term ``custodian of classified 
     crytographic key'' as meaning positions that require access 
     to classified cryptologic key beyond that required to use or 
     operate cryptographic equipment for personal or office use, 
     future editions of such key, or such key used for multiple 
     cryptographic devices. The term ``classified cryptographic 
     key'', as defined in subsection (b)(3), refers to the 
     information, which may take several forms, needed to set up 
     and periodically change the operations of cryptographic 
     equipment or devices to enable them to communicate in a 
     secure manner.
       Similar to the definition of ``classified cryptographic 
     information,'' it is not the intent of the Congress to cover 
     by this definition persons who are custodians of, or 
     otherwise have access to, ``classified cryptographic key'' 
     for personal or office use. Thus, persons who have access to 
     such key in order to operate a secure telephone located in a 
     single office are not covered by this definition. On the 
     other hand, it is intended that persons who have access to 
     such key in order to operate multiple cryptographic devices 
     or who operate cryptographic devices which are used to 
     process large volumes of classified information originating 
     in multiple locations, such as government communications 
     centers, would be covered by this definition.
       Subsection (b)(5) defines the term ``employee'' to mean any 
     person who receives a salary or compensation of any kind from 
     a department or agency of the Executive branch, or is a 
     contractor or unpaid consultant of such department or agency.
       Subsection (b)(6) makes clear that the term ``head of a 
     department or agency'' refers to the highest official who 
     exercises supervisory control of the employee concerned, and 
     does not include any intermediate supervisory officials who 
     may otherwise qualify as heads of agencies within 
     departments. For example, the Secretary of Defense would 
     constitute the ``head of the department'' for all employees 
     of the Department of Defense, and not the secretary of a 
     military department or the director of a Defense agency.
       Subsection (b)(7) defines the phrase ``questions of a 
     counterintelligence nature'' as meaning questions specified 
     to the subject of a polygraph examination in advance limited 
     solely to ascertain whether such person is engaged in, or 
     planning, espionage against the United States or knows 
     persons who are so engaged. It is not intended that this 
     definition encompass any question relating to the life-style 
     of the subject, such as his or her sexual orientation, prior 
     or present use of drugs or alcohol, etc. The sole thrust of 
     such questions must be to ascertain whether the subject is 
     acting on behalf of a foreign government, is involved in 
     planning such activities, or knows others who are so engaged.
       Section 902 of the bill requires the President to issue 
     regulations to implement this title within 180 days of its 
     enactment, and to provide copies of such regulations to the 
     Select Committee on Intelligence of the Senate and the 
     Permanent Select Committee on Intelligence of the House of 
     Representatives.


                               SECTION 4

       Section 4 of the bill would amend section 1104 of the Right 
     to Financial Privacy Act of 1978 by adding a new subsection 
     (d) to this section. The purpose of the amendment is to 
     permit a person who is being considered for access to Top 
     Secret information, as that term is defined in section 2 of 
     the bill, to provide his or her consent to authorized 
     investigative agencies of the U.S. Government obtaining 
     access to his or her financial records, as defined by the 
     Right to Financial Privacy Act, as a condition of receiving 
     and maintaining access to such information.
       This provision is required because subsection 1104(a) 
     limits the period a person may provide consent to a 
     Government authority having access to his or her financial 
     records to ninety days.
       This section is also necessary to supplement and provide 
     legal effect to subsection 803 [as added by section 2 of the 
     bill] which requires that all persons who are granted access 
     to Top Secret information provide their consent for 
     authorized investigative agencies to be able to obtain access 
     to their financial records pursuant to the Right to Financial 
     Privacy Act of 1978.
       The new subsection (d)(1) provides that notwithstanding the 
     provisions of subsection 1104(a) (which limits the period a 
     person may consent to access by government authority to his 
     or her financial records to 90 days), a ``customer'', as 
     defined in section 1101(5) of the Right to Financial Privacy 
     Act of 1978, who is the subject of a personnel security 
     investigation conducted by an authorized investigative agency 
     of the U.S. Government as a condition of being granted access 
     or maintaining access to Top Secret information, as defined 
     by section 803(b) of the National Security Act of 1947, may 
     authorize nonrevocable disclosure of all financial records 
     maintained by financial institutions for the period of the 
     customer's access to such information and for up to five 
     years after such access to such information has been 
     terminated, by such investigative agency, for an authorized 
     security purpose.
       Subsection (d)(2) provides that the consent given under 
     subsection (1) must be contained in a signed and dated 
     statement which identifies the financial records which are 
     authorized to be disclosed. Such statement may also authorize 
     the disclosure of financial records of accounts opened during 
     the period covered by the consent agreement which are not 
     identifiable at the time the account is opened. It is 
     anticipated that such accounts would be covered by a general 
     statement, identifying by category the types of accounts for 
     which access is authorized, e.g. bank accounts, credit card 
     accounts, etc. At the time of periodic reinvestigations of 
     the subject, the investigating agency authorized to conduct 
     the investigation concerned may request the subject to 
     identify any accounts which had been opened since the date 
     the consent agreement was signed as part of the investigative 
     process.
       In addition, subsection (d)(2) requires the investigating 
     agency concerned to provide a copy of the consent agreement 
     to any financial institution from which disclosure is sought, 
     together with the certification required pursuant to section 
     1103((b) of the Right to Financial Privacy Act of 1978, that 
     the Government authority concerned has complied with the 
     applicable provisions of the Act. In the circumstances 
     contemplated, such certification would encompass the 
     following elements: (1) that the customer of the financial 
     institution is the subject of a background investigation 
     required by law for access to Top Secret information pursuant 
     to this title; (2) that the Government authority concerned is 
     the authorized investigating agency responsible for such 
     investigation; (3) that the request is being made during the 
     period in which the customer has authorized access pursuant 
     to the consent agreement provided the financial institution; 
     and (4) that, if the accounts were not specifically 
     identified by the consent agreement, that the financial 
     records being sought are, in fact, records covered by such 
     consent agreement.
       Subsection (d)(3) makes clear that the right of the 
     customer, established pursuant to subsection 1104(c) of this 
     section, pertains to any disclosures made pursuant to 
     subsection (d). This means that the right of the customer to 
     obtain a copy of the record required to be made by the 
     financial institution of any disclosure to a Government 
     authority, (unless the Government authority has obtained a 
     court order pursuant to section 1109 of Act), is preserved in 
     the circumstances contemplated by subsection (d).
       Subsection (d)(4) requires an annual report to the two 
     intelligence committees by the office established pursuant to 
     section 802(D) of the National Security Act of 1947 [as added 
     by section 2 of the bill] to monitor the implementation of 
     these policies, which fully informs the committees concerning 
     all requests for financial records made pursuant to this 
     section. It is contemplated that such reports shall, at a 
     minimum, identify the investigative agencies making such 
     requests, provide the number of requests each such agency has 
     made during the reporting period, and describe by appropriate 
     category the uses made of such information.


                               SECTION 5

       Section 5 amends chapter 37 of title 18, United States 
     Code, to add a new section, creating a new criminal offense 
     for the possession of espionage devices where the intent to 
     use such devices to violate the espionage statutes can be 
     shown.
       It is the intent of Congress to permit the Government to 
     prosecute the mere possession of espionage devices where 
     intent to commit espionage can be shown, without having to 
     prove that information relating to the national defense 
     had, in fact, been transmitted to a foreign government, 
     and without having to prove a conspiracy to commit 
     espionage involving a second person and an overt act in 
     furtherance of the conspiracy by either of the two 
     parties, as required by existing law.
       Subsection (a) adds a new section 799a at the end of 
     chapter 37 of title 18, United States Code, which provides 
     that any person who knowingly maintains possession of any 
     electronic, mechanical, or other device or equipment, the 
     design and capability of which renders it primarily useful 
     for the purpose of surreptitiously collecting or 
     communicating information, with the intent to utilize such 
     device or equipment to undertake actions which would violate 
     sections 793, 794, 794a [as added by section 6, below] or 798 
     of title 18, or section 783(b) of title 50, United States 
     Code, shall be fined not more than $10,000 or imprisoned not 
     more than 5 years, or both.


                               SECTION 6

       Section 6 also amends chapter 37 of title 18, United States 
     Code, to create a new criminal offense for any person who 
     knowingly sells or transfers for any valuable consideration 
     to a person whom he knows or has reason to believe to be an 
     agent or representative of a foreign government, any 
     classified document or material that such person knows to be 
     marked or designated as ``Top Secret,'' or which such person 
     knows to have had such marking or designation removed. 
     Subsection (b) also provides that in any prosecution under 
     this section, whether or not the document or material has 
     been properly marked or designated pursuant to applicable law 
     or Executive order is not an element of the offense. This 
     subsection specifically provides, however, that it shall be a 
     defense to any prosecution under this section that the 
     information or document in question had been officially 
     released to the public by an authorized representative of the 
     United States Government prior to the sale or transfer in 
     question.


                               SECTION 7

       Section 7 amends title 93 of title 18, United States Code, 
     relating to the responsibilities of public officers and 
     employees, to provide that any officer or employee of the 
     United States, or person acting for or on behalf of the 
     United States, who becomes possessed of ``Top Secret'' 
     documents or materials, who knowingly removes such documents 
     or materials without authority and retains them at an 
     unauthorized location, shall be fined not more than $1,000, 
     or imprisoned for not more than one year, or both.


                               SECTION 8

       Section 8 amends chapter 211 of title 18 of the United 
     States Code by adding a new section 3239 to establish 
     jurisdiction in certain U.S. federal courts to try cases 
     involving violations of the espionage laws where the alleged 
     misconduct takes place outside the United States.
       Specifically, the U.S. District Court for the District of 
     Columbia and the U.S. District Court for the Eastern District 
     of Virginia are granted jurisdiction over any offense 
     involving a violation of the U.S. statutes enumerated in the 
     section which were begun or committed upon the high seas or 
     elsewhere out of the jurisdiction of any particular state or 
     district.


                               SECTION 9

       Section 9 amends section 3681 of title 18, United States 
     Code, to provide for expansion of the forfeiture provision to 
     certain espionage offenses that are not enumerated in the 
     existing law. These include violations of 18 U.S.C. 793 
     (gathering defense information with the intent to damage the 
     United States); 18 U.S.C. 798 (disclosure of communications 
     intelligence); 50 U.S.C. 783(b) (communication of classified 
     information by a government employee to a foreign 
     government); and the new criminal offenses which are created 
     by this Act (18 U.S.C. 799a possession of espionage devices, 
     added by section 5, and 18 U.S.C. 794a the sale or transfer 
     of ``Top Secret'' documents added by section 6).
       The amendment to section 3681 also covers crimes of 
     espionage that may be prosecuted under the Uniform Code of 
     Military Justice, (Chapter 47 of Title 10, United States 
     Code) or convictions in foreign courts which, if they 
     occurred in the United States, would constitute offenses 
     under the provisions of the United States Code enumerated 
     above.


                               SECTION 10

       Section 10 amends 5 U.S.C. 8312 to provide that an 
     individual may be denied an annuity or retired pay by the 
     United States, to which he or she may otherwise have been 
     entitled, if he or she is convicted in a foreign country of 
     offenses involving espionage against the United States for 
     which such annuity or retired pay could have been denied 
     had such offenses occurred within the United States.
       A new subsection (d) is added to section 8312 which 
     provides that for purposes of section 8312 an offense is 
     established if the Attorney General certifies to the agency 
     employing or formerly employing the person concerned that--
       (1) the individual has been convicted by an impartial court 
     of appropriate jurisdiction within a foreign country in 
     circumstances that would violate the provisions of law 
     enumerated in subsections (b) and (c) of section 8312, had 
     such conduct occurred within the United States, and that such 
     conviction was not being appealed or that final action had 
     been taken on such appeal within the foreign country 
     concerned;
       (2) that such conviction was obtained in accordance with 
     procedures that afforded the defendant due process rights 
     comparable to those provided by the U.S. Constitution, and 
     such conviction was based upon evidence that would have been 
     admissible in U.S. courts; and
       (3) that such conviction occurred after the effective date 
     of subsection (d).
       The proviso to subsection (d) also provides that any such 
     certification made by the Attorney General is subject to 
     review by the United States Court of Claims based upon the 
     application of the person concerned, or his or her attorney, 
     alleging that the conditions certified by the Attorney 
     General have not been satisfied in this particular case. If 
     the court determines, after appropriate review, that the 
     conditions established by the statute have not been met, it 
     shall order the annuity or retirement benefit restored and 
     shall order any payments which may have been withheld or 
     denied to be paid.


                               SECTION 11

       Section 11 would amend the Consumer Credit Protection Act 
     by inserting ``(a)'' before the existing paragraph of section 
     608 (15 U.S.C. 1681f.) and by adding four new subsections.
       Subsection (b) would provide that, notwithstanding the 
     provisions of section 604 of the Act of this Title, a 
     consumer reporting agency shall furnish a consumer report to 
     the FBI when presented with a request for a consumer report 
     made pursuant to this subsection by the FBI provided that the 
     FBI Director, or the Director's designee, certifies in 
     writing to the consumer reporting agency that such records 
     are sought in connection with an authorized foreign 
     counterintelligence investigation and that there are specific 
     and articulable facts giving reason to believe the person to 
     whom the requested consumer report relates is an agent of a 
     foreign power as defined in section 101 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
       It is the intent of Congress that, if the Director 
     delegates his function under subsections (b) and (c) to a 
     designee, he will delegate it no further down the FBI chain 
     of command than the level of Deputy Assistant Director. The 
     Congress also recognizes that the Director may delegate to 
     the head or acting head of an FBI field office the authority 
     to make the required certification in exigent circumstances 
     where time is of the essence, provided that the Director is 
     notified as soon as possible for the circumstances involved.
       The Congress also accepts the FBI's assurance that it will 
     not under any circumstances rely upon the substantive 
     financial information from consumer reports obtained under 
     this section without verifying such information with the 
     institution concerned. As reflected in other provisions of 
     the Consumer Credit Protection Act, Congress has long been 
     concerned that credit reports may be inaccurate. The FBI has 
     advised that to rely solely upon such information as the 
     basis for further investigative inquiry without verifying its 
     accuracy would constitute poor investigative practice. The 
     Congress recognizes it could lead to unjustified intrusions 
     upon the privacy of innocent Americans. The best evidence 
     would be contained in the records of the financial 
     institutions located through the use of consumer credit 
     reports. The Congress expects that in its internal 
     regulations implementing this provision the FBI will permit 
     use of unverified credit bureau ratings or financial 
     information only to locate actual financial transaction 
     records on record with financial or commercial entities.
       Subsection (c) would provide that, notwithstanding the 
     provisions of section 604 of the Act, a consumer reporting 
     agency shall furnish identifying information respecting any 
     consumer, limited to name, address, former addresses, places 
     of employment, or former places of employment, to a 
     representative of the FBI when presented with a written 
     request signed by the FBI Director, or the Director's 
     designee, stating that the information is necessary to the 
     conduct of an authorized foreign counterintelligence 
     investigation.''
       Under current law (50 U.S.C. 1681f.) the FBI may obtain 
     such identifying information upon request, but there is no 
     requirement that a consumer reporting agency comply with the 
     FBI's request and no limitation on disclosure of the request 
     to the consumer. It is the intent of the Congress that any 
     FBI request for information under this provision must meet 
     the standards of applicable Attorney General's guidelines for 
     obtaining identifying information. In addition, there should 
     be reason to believe that the person has been in 
     communication with a foreign power or an agent of a foreign 
     power. The Congress understands and expects that the FBI 
     would continue to request identifying information under the 
     provision of existing law, but in such case the consumer 
     reporting agency would not be compelled to comply with the 
     FBI's request and would be permitted to disclose the request 
     to the consumer. The Congress intends that the FBI should 
     continue to compensate consumer credit reporting companies 
     only for providing identifying information voluntarily as 
     under existing law.
       Subsection (d) would provide that no consumer reporting 
     agency, or officer, employee, or agent of such institution, 
     shall disclose to any person that the FBI has sought or 
     obtained a consumer report or identifying information 
     respecting any consumer under this section. Congress has 
     enacted similar provisions to protect the security of foreign 
     counterintelligence investigations in the Right to Financial 
     Privacy Act and the Electronic Communications Privacy Act. 
     The purpose is to prevent premature disclosure of a pending 
     investigation and to enable the FBI, rather than the consumer 
     reporting agency, to make whatever disclosures of the FBI's 
     inquiries may be appropriate under existing Attorney General 
     Guidelines. The language is not intended to preclude 
     appropriate disclosure related to requests by relevant 
     Congressional oversight committees.
       Finally, subsection (e) would require that on an annual 
     basis the FBI Director shall fully inform the House and 
     Senate Intelligence Committees concerning the FBI's exercise 
     of its authority under these provisions. As part of this 
     report, the Congress intends that the FBI should inform the 
     House or Senate Intelligence Committee of the facts and 
     circumstances that are the basis for obtaining information 
     concerning any domestic or group substantially composed of 
     United States persons. It is not intended, however, that the 
     report identify particular individuals whose consumer credit 
     records were obtained pursuant to this section.


                               SECTION 12

       Section 12 amends Chapter 204 of title 18, United States 
     Code, to provide the Attorney General with discretionary 
     authority to pay rewards for information leading to the 
     arrest or conviction of espionage against the United States 
     or leading to the prevention or frustration of such acts.
       Subsection (a) renumbers the existing provisions of section 
     3071, which provides discretionary authority for the Attorney 
     General to pay rewards for information leading to the arrest 
     or conviction of persons for acts of terrorism against the 
     United States, as subsection (a) of subsection 3071, and adds 
     a new subsection (b) to this section.
       The new subsection (b) provides that, with respect to acts 
     of espionage involving or directed at United States 
     information classified in the interests of national security, 
     the Attorney General may reward any individual who furnishes 
     information in either of three categories: (1) information 
     leading to the arrest or conviction in any country of an 
     individual or individuals for commission of an act of 
     espionage against the United States; (2) information leading 
     to the arrest or conviction of individuals in similar 
     circumstances for conspiring to commit an act of espionage 
     against the United States; and (3) information leading to the 
     prevention or frustration of an act of espionage against the 
     United States.
       Subsection (b) of section 12 changes the maximum amount the 
     Attorney General can pay as a reward for information provided 
     under section 3071 from $500,000 to $1 million.
       Subsection (c) amends the list of definitions in 18 U.S.C. 
     3077 to add definitions for two terms used in the amendments 
     to section 3071. The term ``act of espionage'' is defined as 
     an activity that is a violation of section 794, 794a [as 
     added by section 6 of this Act], 798, or 799a [as added by 
     section 5 of this Act] of title 18, or section 783 of title 
     50, United States Code. The term ``United States information 
     classified in the interest of national security'' is defined 
     as information owned or possessed by the United States 
     Government concerning the national defense and foreign 
     relations of the United States that has been determined 
     pursuant to law or Executive order to require protection 
     against unauthorized disclosure and that has been so 
     designated.


                               section 13

       Sec. 13. To provide a court order process for physical 
     searches undertaken for foreign intelligence purposes.
       Sec. 13 amends the Foreign Intelligence Surveillance Act of 
     1978 to add a new Title IV establishing statutory procedures 
     for the approval and conduct of physical searches within the 
     United States for foreign intelligence purposes. To the 
     extent that the provisions of this title are the same as the 
     provisions for electronic surveillance under FISA, the 
     following section-by-section analysis restates in full the 
     applicable FISA legislative history.


  authorization of physical searches for foreign intelligence purposes

       Section 401(a) authorizes submission of applications to the 
     Foreign Intelligence Surveillance Court for an order 
     approving a physical search in the United States, for the 
     purpose of collecting foreign intelligence information, of 
     the property, information or material of a foreign power as 
     defined in section 101(a) (1), (2), and (3) of the Foreign 
     Intelligence Surveillance Act (FISA), or the premises, 
     property, information or material of an agent of a foreign 
     power or a foreign power as defined in section 101(a) (4), 
     (5), and (6) of FISA. Applications may be submitted only if 
     the President has, by prior written authorization, empowered 
     the Attorney General to approve the submission. This section 
     does not require the President to authorize each specific 
     application. He may authorize the Attorney General generally 
     to seek applications under this title or upon such terms and 
     conditions as the President wishes, so long as the terms and 
     conditions are consistent with this title.
       The reference to Presidential authorization does not mean 
     that the President has independent, or ``inherent,'' 
     authority to authorize physical search in the United States 
     for the purpose of collecting foreign intelligence in any way 
     contrary to the provisions of this title. As stated in 
     section 406(a), the procedures of this bill are the exclusive 
     means by which physical search, as defined in section 409(b), 
     may be conducted in the United States for the purpose of 
     collecting foreign intelligence.
       Subsection (a) also authorizes a judge to whom an 
     application is made to grant an order for physical search in 
     the United States, for the purpose of collecting foreign 
     intelligence information, of the specified premises, 
     property, information or material, ``notwithstanding any 
     other law.'' The ``notwithstanding any other law'' language 
     is intended to make clear that, notwithstanding the Vienna 
     Convention on Diplomatic Relations, the activities authorized 
     by this bill may be conducted. The ``notwithstanding any 
     other law'' wording also deals with the contention that 28 
     U.S.C. 1251, which grants the Supreme Court exclusive 
     original jurisdiction over all actions against ambassadors of 
     foreign states, would prevent a lower court from approving a 
     physical search directed at a foreign ambassador.
       It is noted, however, that the applications and orders 
     authorized by this subsection do not apply to physical search 
     of the premises of an ``official'' foreign power, as defined 
     in section 101(a) (1), (2), or (3) of FISA. The Congress has 
     determined that the balance between security and civil 
     liberties does not require prior judicial involvement in 
     physical search of premises of this category of targets. The 
     physical search of premises of an ``official'' foreign power 
     without a court order may be conducted only pursuant to 
     regulations issued by the Attorney General, as provided in 
     section 406(b). The physical search of premises of an 
     ``official'' foreign power without a court order may include 
     the search of property, information, or material that is 
     located on those premises and is owned, used, or possessed 
     by, or in transit from, that foreign power. However, the 
     Congress does not intend that searches of premises of 
     ``official'' foreign powers without court orders include 
     searches of property ``in transit to'' such a foreign power 
     that may be located on those premises, but has not yet come 
     into full possession or use by that foreign power. For 
     example, sealed packages delivered to an ``official'' foreign 
     power from a person other than an officer or employee of that 
     foreign power may not be searched without a court order, even 
     if they are located on the premises of an ``official'' 
     foreign power. In that circumstance, the court order is 
     required because of the privacy interest of the person who is 
     transmitting the package which has not yet been opened by the 
     intended recipient.
       Section 401(b) provides that the Foreign Intelligence 
     Surveillance Court, as defined in section 409(e), shall have 
     jurisdiction to hear applications for and grant orders 
     approving physical search for the purpose of obtaining 
     foreign intelligence anywhere within the United States under 
     the procedures set forth in this Act. No judge shall hear the 
     same application which has been denied previously by another 
     judge. Subsection (b) also provides that, if any judge denies 
     an application for an order authorizing a physical search 
     under this Act, such judge shall provide immediately for the 
     record a written statement of each reason for his decision. 
     On motion of the United States, the record shall be 
     transmitted, under seal, to the Court of Review, as 
     defined in section 409(f). As under FISA, this provision 
     is intended to make clear that if the Government desires 
     to pursue an application after a denial, it must seek 
     review in the special court of review; it cannot apply to 
     another judge of the Foreign Intelligence Surveillance 
     Court. Obviously, where one judge has asked for additional 
     information before approving an application, and that 
     judge is unavailable when the Government comes forward 
     with such additional information, the Government may seek 
     approval from another judge. It would, however, have to 
     inform the second judge about the first application.
       The Congress intends that, as under FISA, the judges of the 
     Foreign Intelligence Surveillance Court should have an 
     opportunity to examine, when appropriate, the applications, 
     orders, and statements of reasons for decisions in other 
     cases.
       Subsection (c) provides that the Court of Review shall have 
     jurisdiction to review the denial of any application made 
     under this title. If such court determines that the 
     application was properly denied, the Court shall immediately 
     provide for the record a written statement of each reason for 
     its decision and, on petition of the United States for a writ 
     of certiorari, the record shall be transmitted under seal to 
     the Supreme Court, which shall have jurisdiction to review 
     such decision.
       Subsection (d) provides that judicial proceedings under 
     this title shall be concluded as expeditiously as possible. 
     The record of proceedings under this title, including 
     applications made and orders granted, shall be maintained 
     under security measures established by the Chief Justice of 
     the United States in consultation with the Attorney General 
     and the Director of Central Intelligence. The Congress 
     intends that such measures shall be the same as those 
     established pursuant to FISA and thus shall include such 
     document, physical, personnel, or communications security 
     measures as are necessary to protect information concerning 
     proceedings under this title from unauthorized disclosure. As 
     under FISA, such measures may also include the use of secure 
     premises provided by the executive branch to hear an 
     application and the employment of executive branch personnel 
     to provide clerical and administrative assistance.
       Application for an order
       Section 402(a) specifies what information must be included 
     in the application for a court order. Applications must be 
     made by a Federal officer in writing under oath or 
     affirmation. If the officer making the application is unable 
     to verify the accuracy of the information or representations 
     upon which the application is based, the application should 
     include affidavits by other officers who are able to provide 
     such personal verification. Thus, for example, if the 
     applicant was an attorney in the Department of Justice who 
     had not personally gathered the information contained in the 
     application, it would be necessary that the application also 
     contain an affidavit by an officer personally attesting to 
     the status and reliability of any informants or other covert 
     sources of information. By this means the source of all 
     information contained in the application and its accuracy 
     will have been sworn to by a named official of the U.S. 
     Government and a chain of responsibility established for 
     judicial review.
       Each application must be approved by the Attorney General, 
     who may grant such approval if he finds that the appropriate 
     procedures have been followed. The Attorney General's written 
     approval must indicate his belief that the facts and 
     circumstances relied upon for the application would justify a 
     judicial finding of probable cause to believe that the target 
     is a foreign power or an agent of a foreign power, that the 
     premises or property to be searched contains foreign 
     intelligence information, and that the premises or property 
     to be searched is owned, used, possessed by, or is in transit 
     to or from a foreign power or an agent of a foreign power as 
     well as his belief that all other statutory criteria have 
     been met.
       Paragraph (1) of subsection (a) requires that the 
     application include the identity, if know, or a description 
     of the target of the search. If the Government knows the 
     identity of the target of the search, it is required to 
     identify him. The target may be an individual or an entity.
       The word ``target'' is nowhere defined in this title, 
     although it is a key term because the standards to be applied 
     differ depending on whom or what is targeted. The Congress 
     intends that the target of a physical search is the 
     individual or entity about whom or from whom information is 
     sought. In most cases this would be the individual or entity 
     who owns, uses, or possesses the premises or property to be 
     searched. In some cases, however, it would be the individual 
     or entity to or from whom property is in transit. See 
     section 402(a)(4)(C).
       Generally, under this title, targeting foreign powers may 
     be accomplished on a less strict basis than targeting of 
     agents of foreign powers. An individual, of course, cannot be 
     a foreign power, only an agent of a foreign power. Therefore, 
     if the search is to be directed at an individual about whom 
     information is sought, that individual is the target and must 
     be shown to be an ``agent of a foreign power.'' Where two or 
     three individuals are associated with one another, it might 
     be argued that they are an ``association'' or an ``entity,'' 
     which, if the proper showing is made, could be considered a 
     ``foreign power.'' (This would especially be true if the 
     individuals engaged in ``international terrorism'' and 
     thereby might be a group engaged in international terrorism 
     which is a defined ``foreign power.'') This does not mean, 
     however, that property of each of these individuals can then 
     be individually searched merely upon a showing that together 
     they are a ``foreign power.'' Rather, to search the property 
     of each individual would require a showing that each was an 
     ``agent of a foreign power,'' with its higher standard.
       Often, however, associations or entities will act in a 
     ``corporate'' capacity, as distinguished from the acts of an 
     individual in the association or entity. For example, 
     corporations own or lease property, enter into contracts, and 
     otherwise act as an entity distinct from the individuals 
     therein. The fact that an individual officer or employee, 
     acting in his official capacity, may sign the deed, lease, or 
     contract on behalf of the corporation does not vitiate the 
     fact that it is the corporation rather than the individual 
     who is acting. Thus, it is possible to target a ``foreign 
     power'' in such circumstances. In addition, it will be 
     possible under this title to target a ``foreign power'' in 
     certain rare cases, where the facility targeted, while owned, 
     used, or possessed by the entity, is in fact dedicated to the 
     use of one particular member of the entity, for instance, 
     where each officer is assigned his own office. However, in 
     order to justify the target as a ``foreign power'' rather 
     than as an ``agent of a foreign power,'' the information 
     sought must be concerning the entity, not the individual.
       The judge in considering the application, wherever the 
     Government claims the target is a ``foreign power,'' and 
     especially where U.S. persons are officers or employees of 
     the ``foreign power,'' must scrutinize the description of the 
     information sought, and the property or premises to be 
     searched, see section 402(a)(3), infra, to determine whether 
     the target is really the ``foreign power'' rather than an 
     ``agent of a foreign power.'' The judge must also closely 
     scrutinize the minimization procedures to assure that where 
     the target is a ``foreign power,'' the individual U.S. 
     persons who may be members or employees of the power are 
     properly protected.
       Paragraph (2) requires that the application contain 
     evidence of the authority to make this application. This 
     would consist of the Presidential authorization to the 
     Attorney General and the Attorney General's approval of the 
     particular application.
       Paragraph (3) requires that the application identify the 
     Federal officer making the application; that is, the name of 
     the person who actually presents the application to the 
     judge. In addition, paragraph (3) requires that the 
     application contain a detailed description of the premises or 
     property to be searched and of the information, material, or 
     property to be seized, reproduced, or altered. The 
     description should be as specific as possible and should 
     detail what type of premises or property are likely to be 
     searched and what types of information, material, or property 
     are likely to be seized, reproduced, or altered. Such 
     specifics are necessary if the judge is meaningfully to 
     assess the sufficiency and appropriateness of the 
     minimization procedures.
       Paragraph (4) requires a statement of the facts and 
     circumstances justifying the applicant's belief that the 
     target of the physical search is a foreign power or an agent 
     of a foreign power, that the premises or property to be 
     searched contains foreign intelligence information, and that 
     the premises or property to be searched is owned, used, 
     processed by, or is transit to or from a foreign power or an 
     agent of a foreign power.
       Paragraph (5) requires a statement of the proposed 
     minimization procedures.
       The statement of procedures required under this paragraph 
     should be full and complete and normally subject to close 
     judicial review. It is the intention of the Congress that 
     minimization procedures be as uniform as possible for similar 
     physical searches. The application of uniform procedures to 
     identical searches will result in a more consistent 
     implementation of the procedures, will result in improved 
     capability to assure compliance with the procedures, and 
     ultimately means a higher level of protection for the rights 
     of U.S. persons.
       Paragraph (6) requires the application to contain a 
     statement of the manner in which the physical search is to be 
     conducted. The statement should be as detailed and 
     specific as possible in light of the need for the judge in 
     his order to specify the manner in which the physical 
     search is to be conducted. For instance, where physical 
     entry will be required, the application should so state 
     indicating generally the circumstances involved.
       Paragraph (7) requires a statement of the facts concerning 
     all previous applications that have been made to any judge 
     under this title involving any of the persons, premises, or 
     property specified in the application, and the action taken 
     on each previous application.
       Paragraph (8) requires a statement of the facts concerning 
     any search that did not require a warrant due to exigent 
     circumstances, as described in section 406(b), which involves 
     any of the persons, premises, or property specified in the 
     application. Pursuant to section 406(b), the court will 
     already have received a full report from the Attorney General 
     on any such search, including a description of the exigent 
     circumstances.
       Paragraph (9) requires that the application contain a 
     statement that the purpose of the physical search is to 
     obtain foreign intelligence information. This statement 
     should be sufficiently detailed so as to state clearly what 
     sorts of information the Government seeks. A simple 
     designation of which subdefinition of ``foreign intelligence 
     information'' is involved will not suffice. There must be an 
     explanation of the determination approved by the Attorney 
     General that the information sought is in fact foreign 
     intelligence information. The requirement that this judgment 
     be explained is to ensure that cases are considered carefully 
     and to avoid statements that consist largely of boilerplate 
     language. The Congress does not intend that the explanations 
     be vague generalizations or standardized assertions. The 
     applicant must similarly explain that the purpose of the 
     physical search is to obtain the described foreign 
     intelligence information. This requirement is designed to 
     prevent physical searches of one target when the true purpose 
     of the search is to gather information about another 
     individual for other than foreign intelligence purposes. It 
     is also designed to make explicit that the sole purpose of 
     such physical search is to secure ``foreign intelligence 
     information,'' as defined, and not to obtain some other type 
     of information. The applicant must similarly explain why the 
     information cannot be obtained through less intrusive 
     techniques, see section 403(a)(1)(C). This requirement is 
     particularly important in those cases when U.S. citizens or 
     resident aliens are the target of the physical search.
       Section 402(b) provides that the judge may require the 
     applicant to furnish such other information as may be 
     necessary to make the determinations required by section 403. 
     Such additional proffers would, of course, be made part of 
     the record and would be subject to the security safeguards 
     applied to the application and order.


                          issuance of an order

       Section 403(a) specifies the findings the judge must make 
     before he grants an order approving physical search under 
     this title. While the issuance of an order is mandatory if 
     the judge finds that all the requirements of this section are 
     met, the judge has the discretionary power to modify the 
     order sought, such as with regard to the period of 
     authorization or the minimization procedures to be followed. 
     Modifications in the minimization procedures should take into 
     account the impact of inconsistent procedures on successful 
     implementation.
       Paragraph (1) of this subsection requires the judge to find 
     that the President has authorized the Attorney General to 
     approve such applications.
       Paragraph (2) requires the judge to find that the 
     application has been made by a Federal officer and that the 
     Attorney General has approved the application being 
     submitted.
       Paragraph (3) requires a finding that there is ``probable 
     cause'' to believe that the target of the physical search is 
     a foreign power or an agent of a foreign power, that the 
     premises or property to be searched are owned, used, 
     possessed by, or is in transit to or from a foreign power or 
     an agent of a foreign power, and that physical search of such 
     premises or property can reasonably be expected to yield 
     foreign intelligence information which cannot reasonably be 
     obtained by normal investigative means.
       In determining whether ``probable cause'' exist under this 
     section, the court should keep in mind that this standard is 
     not the ordinary ``probable cause'' that a crime is being 
     committed, applicable to searches and seizures for law 
     enforcement purposes. Where a U.S. person is believed to be 
     an ``agent of a foreign power,'' for example, there must be 
     ``probable cause'' to believe that he is engaged in certain 
     activities, but the criminality of these activities need not 
     always be demonstrated to the same degree. The key words--
     ``involve or may involve''--indicate that the ordinary 
     criminal probable cause standard does not apply with 
     respect to the showing of criminality. For example, the 
     activity identified by the Government may not yet involve 
     the criminality, but if a reasonable person would believe 
     that such activity is likely to lead to illegal 
     activities, this would suffice. It is not intended that 
     the Government show probable cause as to each and every 
     element of the crime likely to be committed.
       The determination by the court as to probable cause whether 
     the person is engaging in certain activities or, for example, 
     whether an entity is directed and controlled by a foreign 
     government or governments, should include consideration of 
     the same aspects of the reliability of the Government's 
     information as is made in the ordinary criminal context--for 
     example, the reliability of any informant, the circumstances 
     of the informant's knowledge, the age of the information 
     relied upon. On the other hand, all of the same strictures 
     with respect to these matters which have developed in the 
     criminal context may not be appropriate in the foreign 
     intelligence context. That is, in the criminal context 
     certain ``rules'' have developed or may develop for judging 
     reliability of information. See, for example, SPINELLI v. 
     UNITED STATES, 393 U.S. 410 (1969). It is not the intention 
     of Congress that these ``rules'' necessarily be applied to 
     consideration of probable cause under this title. Rather it 
     is the intent of Congress that in judging the reliability of 
     the information presented by the Government, the court look 
     to the totality of the information and consider its 
     reliability on a case-by-case basis.
       In addition, in order to find ``probable cause'' to believe 
     the subject of the surveillance is an ``agent of a foreign 
     power, as defined in section 101(b) of FISA, the judge must, 
     of course, find that each and every element of that status 
     exists. For example, if a U.S. citizen or resident alien is 
     alleged to be acting on behalf of a foreign entity, the judge 
     must first find probable cause to believe that the entity is 
     a ``foreign power'' as defined in section 101(a) of FISA. 
     There must also be probable cause to believe the person is 
     acting for or on behalf of that foreign power and probable 
     cause to believe that the efforts undertaken by the person on 
     behalf of the foreign power constitute sabotage, 
     international terrorism, or clandestine intelligence 
     activities.
       Similar findings of probable cause are required for each 
     element necessary to establish that a U.S. citizen is 
     conspiring with or aiding and abetting someone engaged in 
     sabotage, international terrorism, or clandestine 
     intelligence activities.
       The proviso in paragraph (3)(A) states that no U.S. person 
     may be considered a foreign power or an agent of a foreign 
     power solely upon the basis of activities protected by the 
     first amendment to the Constitution of the United States. 
     This provision is intended to reinforce the intent of the 
     Congress that lawful political activities should never be the 
     sole basis for a finding of probable cause to believe that a 
     U.S. person is a foreign power or an agent of a foreign 
     power. For example, the advocacy of violence falling short of 
     incitement is protected by the first amendment, under the 
     Supreme Court's decision in BRANDENBURG v. OHIO, 395 U.S. 444 
     (1969). Therefore, the pure advocacy of the commission of 
     terrorist acts would not, in and of itself, be sufficient to 
     establish probable cause that an individual or group is 
     preparing for the commission of such acts. However, one 
     cannot cloak himself in first amendment immunity by advocacy 
     where he is engaged in clandestine intelligence activities, 
     terrorism, or sabotage.
       Paragraph (3) (B) and (C) require the judge to find 
     probable cause to believe that the premises or property to be 
     searched are owned, used, possessed, by or in transit to or 
     from a foreign power or an agent of a foreign power and that 
     physical search of such premises or property can reasonably 
     be expected to yield foreign intelligence information which 
     cannot reasonably be obtained by normal investigative means.
       Paragraph (4) requires the judge to find that the 
     procedures described in the application to minimize the 
     acquisition and retention, and prohibit dissemination, of 
     certain information relating to U.S. persons fit the 
     definition of minimization procedures in this title. The 
     Congress contemplates that the court would give these 
     procedures most careful consideration. If it is not of the 
     opinion that they will be effective, the procedures should be 
     modified.
       Paragraph (5) requires that the judge find that the 
     application contains the statements required by section 402. 
     If the statements do not conform to the requirements of 
     section 402, they can and must be rejected by the court.
       Subsection (b) specifies what the order approving the 
     physical search must contain. Paragraph (1) requires that it 
     must specify the Federal officer or officers authorized to 
     conduct the physical search and the identity, if known, or a 
     description of the target of the physical search. It must 
     also specify the premises or property to be searched and the 
     information, material or property to be seized, altered, or 
     reproduced, as well as the type of foreign intelligence 
     information sought to be acquired. The order must include 
     a statement of the manner in which the search is to be 
     conducted and, whenever more than one physical search is 
     authorized under the order, the authorized scope of each 
     search and what minimization procedures shall apply to the 
     information acquired by each search. These requirements 
     are designed in light of the Fourth Amendment's 
     requirements that warrants describe with particularity and 
     specificity the person, place, and objects to be searched 
     and seized.
       Paragraph (2) of subsection (b) details what the court 
     directs in the order. The order shall direct that 
     minimization procedures will be followed. The order may also 
     direct that a landlord, custodian, or other specified person 
     furnish information, facilities or assistance necessary to 
     accomplish the search successfully and in secrecy and with a 
     minimum of interference to the services provided by such 
     person to the target of the search. If this is done, the 
     court shall direct that the person rendering the assistance 
     maintain under security procedures approved by the Attorney 
     General and the Director of Central Intelligence any records 
     concerning the search or the aid furnished that such person 
     wishes to retain. The order presented to the person rendering 
     assistance need not be the entire order approved by the judge 
     under this title. Rather only that portion of the order 
     described in section 403(b)(2) (B)-(C), signed by the judge 
     need be given to the specified person. This portion of the 
     order should specify the person directed to give assistance, 
     the nature of the assistance required, and the period of time 
     during which such assistance is authorized.
       Paragraph (2)(C) requires that the order direct that the 
     physical search be undertaken within 30 days of the date of 
     the order, or, if the physical search is of the property, 
     information or material of a foreign power as defined in 
     section 101(a) (1), (2), or (3) of FISA, that such search be 
     undertaken within one year of the order. The comparable 
     periods in FISA are 90 days for most targets and one year for 
     ``official'' foreign powers.
       Paragraph (2)(D) requires that the order direct that the 
     federal officer conducting the physical search promptly 
     report to the court the circumstances and results of the 
     physical search. This report may be made to a judge other 
     than the judge who granted the order approving the search.
       Subsection 403(c) provides that at any time after a 
     physical search has been carried out, the judge to whom the 
     return has been made may assess compliance with the 
     minimization procedures by reviewing the circumstances under 
     which information concerning United States persons was 
     acquired, retained, or disseminated. This provision is not 
     intended to require that the judge assess such compliance, 
     nor is it intended to limit such assessments to any 
     particular intervals. However, it is useful to spell out the 
     judge's authority explicitly so that there will be no doubt 
     when a judge may review the manner in which information about 
     U.S. persons is being handled.
       Subsection 403(d) provides that applications made and 
     orders granted under this title shall be retained for a 
     period of at least ten years from the date of the 
     application. This is identical to the FISA requirements, and 
     the purpose is to assure accountability.
       Subsection 403 (e) and (f) establish a special notice 
     procedure for those rare cases where a physical search of the 
     residence of a United States person is conducted under this 
     title. This provision reflects the court opinions which 
     describe the search of the home as being at the ``core'' of 
     the fourth amendment. In PAYTON v. NEW YORK, 445 U.S. 573 
     (1980), the Supreme Court declared:
       ``The Fourth Amendment protects the individual's privacy in 
     a variety of settings. In none is the zone of privacy more 
     clearly defined than when bounded by the unambiguous physical 
     dimensions of an individual's home--a zone that finds its 
     roots in clear and specific constitutional terms: `The right 
     of the people to be secure in their . . . houses . . . shall 
     not be violated.' That language unequivocally establishes the 
     proposition that `[a]t the very core [of the Fourth 
     Amendment] stands the right of a man to retreat into his own 
     home and there be free from unreasonable governmental 
     intrusion.''' Id. at 589-90 (quoting SILVERMAN v. UNITED 
     STATES, 365 U.S. 505, 511 (1961)).
       Special protection for homes is also consistent with other 
     legislation which imposes criminal penalties for searches of 
     private dwellings. (See 18 U.S.C. 2236).
       Subsection (e) provides that not more than 60 days after a 
     physical search of the residence of a United States person 
     authorized by this title, or such a search in the ``exigent 
     circumstances'' described in section 406(b), has been 
     conducted, the Attorney General shall provide the United 
     States person with an inventory which shall include (1) the 
     existence or not of a court order authorizing the physical 
     search and the date of the order; (2) the date of the 
     physical search and an identification of the premises or 
     property searched; and
       (3) a list of any information, material, or property 
     seized, altered, or reproduced. Subsection (f) provides that 
     on an ex parte showing of good cause by the Attorney General 
     to a judge of the Foreign Intelligence Surveillance Court the 
     provision of the inventory required by subsection (e) may be 
     postponed for a period not to exceed 90 days. At the end of 
     such period the provision of the inventory may, upon a 
     similar showing, be postponed indefinitely. The denial of a 
     request for such postponement may be reviewed as provided in 
     section 401.
       The Congress anticipates that searches of the residence of 
     U.S. persons under this title will be infrequent. The ``good 
     cause'' which may be grounds for postponement of notice is 
     intended to include national security and practical 
     considerations. Notice may harm national security by, for 
     example, exposing an important ongoing espionage or 
     international terrorism investigation. An illustration of 
     practical grounds for postponement of notice would be a 
     situation where the target was a permanent resident alien who 
     returned after the search to his country of origin. It should 
     be noted than the procedures for use of information under 
     section 404, below, also require notice to any target against 
     whom information acquired by a physical search under this 
     title is to be used in legal proceedings.


                           Use of information

       Section 404 places additional constraints on Government use 
     of information obtained from physical search under this title 
     and establishes detailed procedures under which information 
     may be received in evidence, suppressed, or discovered. With 
     respect to the use of information in legal proceedings, 
     notice should be given to the aggrieved person as soon as 
     possible, so as to allow for the disposition of any motions 
     concerning evidence derived from physical search. In 
     addition, the Attorney General should at all times be able to 
     assess whether and to what extent the use of information made 
     available by the Government to a State or local authority 
     will be used.
       Subsection (a) requires that information concerning U.S. 
     persons acquired from physical search pursuant to this title 
     may be used and disclosed by Federal officers and employees, 
     without the consent of the U.S. person, only in accordance 
     with the minimization procedures defined in section 409(c). 
     This provision ensures that the use of such information is 
     carefully restricted to actual foreign intelligence or law 
     enforcement purposes. No information (whether or not it 
     concerns a U.S. person) acquired from a physical search 
     pursuant to this title may be used or disclosed except for 
     lawful purposes. This is to ensure that information 
     concerning foreign visitors and other non-U.S. persons, the 
     use of which is not restricted to foreign intelligence or law 
     enforcement purposes, is not used for illegal purposes.
       There is no specific restriction in this title regarding to 
     whom Federal officers may disclose information concerning 
     U.S. persons acquired pursuant to this title although 
     specific minimization procedures might require specific 
     restrictions in particular cases. First, the Congress 
     believes that dissemination should be permitted to State and 
     local law enforcement officials. If Federal agents conducting 
     a physical search authorized under this title were to acquire 
     information relating to a violation of State criminal law, 
     such as homicide, the agents could hardly be expected to 
     conceal such information from the appropriate local 
     officials. There will be an appropriate weighing of criminal 
     law enforcement needs against possible harm to national 
     security from the disclosure. Second, the Congress can 
     conceive of situations where disclosure should be made 
     outside of Government channels. For example, Federal agents 
     may learn of a terrorist plot to kidnap a business executive. 
     Certainly in such cases they should be permitted to disclose 
     such information to the executive and his company in order to 
     provide for the executive's security.
       Finally, the Congress believes that foreign intelligence 
     information relating to crimes, espionage activities, or the 
     acts and intentions of foreign powers may, in some 
     circumstances, be appropriately disseminated to cooperating 
     intelligence services of other nations. So long as all the 
     procedures of this title are followed by the Federal 
     officers, including minimization and the limitations on 
     dissemination, this cooperative relationship should not be 
     terminated by a blanket prohibition on dissemination to 
     foreign intelligence services. The Congress wishes to stress, 
     however, that any such dissemination be reviewed carefully to 
     ensure that there is a sufficient reason why disclosure of 
     information to foreign intelligence services is in the 
     interests of the United States.
       Disclosure, in compelling circumstances, to local officials 
     for the purpose of enforcing the criminal law, to the targets 
     of clandestine intelligence activity or planned violence, and 
     to foreign intelligence services under the circumstances 
     described above are generally the only exceptions to the rule 
     that dissemination should be limited to Federal officials.
       Subsection (b) requires that any disclosure of information 
     for law enforcement purposes must be accompanied by a 
     statement that such evidence, or any information derived 
     therefrom, may be used in a criminal proceeding only with the 
     advance authorization of the Attorney General. This provision 
     is designed to eliminate circumstances in which a local 
     prosecutor has no knowledge that evidence was obtained 
     through a foreign intelligence search. In granting approval 
     of the use of evidence the Attorney General would alert the 
     prosecutor to the search and he, in turn, could alert the 
     court in accordance with subsection (c) or (d).
       Subsections (c) through (i) set forth the procedures under 
     which information acquired by means of physical search under 
     this title may be received in evidence or otherwise used or 
     disclosed in any trial, hearing or other Federal or State 
     proceeding. Although the primary purpose of physical search 
     conducted pursuant to this title is not likely to be the 
     gathering of criminal evidence, it is contemplated that such 
     evidence will be acquired and these subsections establish the 
     procedural mechanisms by which such information may be used 
     in formal proceedings. Notice should be given to the 
     aggrieved person as soon as possible, so as to allow for the 
     disposition of any motions concerning evidence derived from 
     physical search under this title.
       At the outset the Congress recognizes that nothing in these 
     subsections abrogates the rights afforded a criminal 
     defendant under BRADY v. MARYLAND, 373 U.S. 83 (1963), and 
     the Jencks Act, 18 United States Code, Section 3500 ET SEQ. 
     These legal principles inhere in any such proceedings and are 
     wholly consistent with the procedures detailed here. 
     Furthermore, nothing contained in this section is intended to 
     alter the traditional principle that the Government cannot 
     use material at trial against a criminal defendant, and then 
     withhold from him such material at trial. UNITED STATES v. 
     ANDOLSCHEK, 142 F. 2d 503 (2nd. Cir. 1944).
       Subsection (c) states that whenever the United States 
     intends to enter into evidence or otherwise use or disclose 
     in any trial, hearing, or other proceeding before any court, 
     department, officer, agency, regulatory body, or other 
     authority of the United States, against an aggrieved person, 
     any information obtained or derived from a physical search of 
     the premises or property of that aggrieved person pursuant to 
     the authority of this title, the United States shall, prior 
     to the trial, hearing, or other proceeding or at a reasonable 
     time prior to an effort to so disclose or so use that 
     information or submit it in evidence, notify the aggrieved 
     person and the court or other authority in which the 
     information is to be disclosed or used that the United States 
     intends to so disclose or so use such information. This 
     provision applies to information acquired from a physical 
     search under this title or any fruits thereof.
       Subsection (d) places the same requirements upon the States 
     and their political subdivisions, and also requires notice to 
     the Attorney General. The Attorney General should at all 
     times be able to assess whether and to what extent the use of 
     information made available by the Government to a State or 
     local authority may be used.
       Subsection (e) provides a separate statutory vehicle by 
     which an aggrieved person against whom evidence derived or 
     obtained from a physical search under this title is to be or 
     has been introduced or otherwise used or disclosed in any 
     trial, hearing or proceeding may move to suppress the 
     information acquired by physical search or evidence derived 
     therefrom. The grounds for such motion would be that (1) the 
     information was unlawfully acquired, or (2) the search was 
     not made in conformity with the order of authorization or 
     approval. A motion under this subsection must be made before 
     the trial, hearing, or proceeding unless there was no 
     opportunity to make such a motion or the movant was not aware 
     of the grounds for the motion. It should be noted that the 
     term ``aggrieved person,'' as defined in section 409(d) does 
     not include those who are mentioned in documents obtained or 
     copied in a physical search.
       Subsection (f) states in detail the procedure the court 
     shall follow when it receives a notification under subsection 
     (c) or (d) or a suppression motion is fined under subsection 
     (e). This procedure applies, for example, whenever an 
     individual makes a motion pursuant to subsection (d) or any 
     other statute or rule of the United States to discover, 
     obtain or suppress evidence or information obtained or 
     derived from physical search conducted pursuant to this title 
     (for example, Rule 12 of the Federal Rules of Criminal 
     Procedure). Although a number of different procedures might 
     be used to attack the legality of the search, it is this 
     procedure ``notwithstanding any other law'' that must be used 
     to resolve the question. The procedures set out in subsection 
     (f) apply whatever the underlying rule or statute referred to 
     in the motion. This is necessary to prevent the carefully 
     drawn procedures in subsection (f) from being bypassed by the 
     inventive litigant using a new statute, rule or judicial 
     construction.
       The special procedures in subsection (f) cannot be invoked 
     until they are triggered by a Government affidavit that 
     disclosure of an adversary hearing would harm the national 
     security of the United States. If no such assertion is made, 
     it is envisioned that mandatory disclosure of the application 
     and order, and discretionary disclosure of other surveillance 
     materials, would be available to the defendant. When the 
     procedure is so triggered, however, the Government must make 
     available to the court a copy of the court order and 
     accompanying application upon which the physical search was 
     based.
       The court must then conduct an ex parte, in camera 
     inspection of these materials as well as any other documents 
     relating to the search which the Government may be ordered to 
     provide, to determine whether the physical search of the 
     aggrieved person was lawfully authorized and conducted. The 
     subsection further provides that in making such a 
     determination, the court may order disclosed to the aggrieved 
     person, under appropriate security procedures and protective 
     orders, portions of the application, order, or other 
     materials relating to the physical search only where such 
     disclosure is necessary to make an accurate determination of 
     the legality of the physical search.
       The procedures set forth in subsection (f) are intended to 
     strike a reasonable balance between an entirely in camera 
     proceeding which might adversely affect the defendant's 
     ability to defend himself, and mandatory disclosure, which 
     might occasionally result in the revelation of sensitive 
     foreign intelligence information. The decision whether it is 
     necessary to order disclosure to a person is for the Court to 
     make after reviewing the underlying documentation and 
     determining its volume, scope, and complexity. Note the 
     discussion of these matters in UNITED STATES v. BUTENKO, 
     SUPRA. There, the Court of Appeals, faced with the difficult 
     problem of determining what standard to follow in balancing 
     national security interests with the right to a fair trial, 
     stated with respect to electronic surveillance:
       ``The distinguished district court judge reviewed in camera 
     the records of the wiretaps at issue here before holding the 
     surveillance to be legal. . . . Since the question 
     confronting the district court as to the second set of 
     interceptions was the legality of the taps, not the existence 
     of tainted evidence, it was within his discretion to grant or 
     to deny Ivanov's request for disclosure and a hearing. The 
     exercise of this discretion is to be guided by an evaluation 
     of the complexity of the factors to be considered by the 
     court and by the likelihood that adversary presentation would 
     substantially promote a more accurate decision.'' (494 F. 2d 
     at 607.)
       Thus, in some cases, the Court will likely be able to 
     determine the legality of the search without any disclosure 
     to the defendant. In other cases, however, the question may 
     be more complex because of, for example, indications of 
     possible misrepresentation of fact, vague identification of 
     the persons to be targeted or search records which include a 
     significant amount of non-foreign intelligence information, 
     calling into question compliance with the minimization 
     standards contained in the order. In such cases, it is 
     contemplated that the court will likely decide to order 
     disclosure to the defendant, in whole or in part, since such 
     disclosure ``is necessary to make an accurate determination 
     of the legality of the physical search.''
       Cases may arise, of course, where the Court believes that 
     disclosure is necessary to make an accurate determination of 
     legality, but the Government argues that to do so, even given 
     the Court's broad discretionary power to excise certain 
     sensitive portions, would damage the national security. In 
     such situations the Government must choose--either disclose 
     the material or forgo the use of the search-based evidence. 
     Indeed, if the Government objects to the disclosure, thus 
     preventing a proper adjudication of legality, the prosecution 
     would probably have to be dismissed.
       Subsection (g) states that if the United States district 
     court pursuant to subsection (f) determines that the physical 
     search was not lawfully authorized or conducted, it shall, in 
     accordance with the requirements of law, suppress the 
     evidence which was unlawfully obtained or derived from the 
     physical search of the aggrieved person or otherwise grant 
     the motion of the aggrieved person. If the court determines 
     that the physical search was lawfully authorized and 
     conducted, it shall deny the motion of the aggrieved 
     person except to the extent that due process requires 
     discovery or disclosure.
       The general phrase ``in accordance with the requirements of 
     law'' has been chosen to deal with the problem of what 
     procedures are to be followed in those cases where the trial 
     court determines that the surveillance was unlawfully 
     authorized or conducted. The evidence obtained would not, of 
     course, be admissible during the trial. But beyond this, in 
     the case of an illegal surveillance, the Government is 
     constitutionally mandated to surrender to the defendant all 
     the records of the surveillance in its possession in order 
     for the defendant to make an intelligent motion on the 
     question of taint. The Supreme Court in ALDERMAN v. UNITED 
     STATES, 394 U.S. 165 (1968) held that, once a defendant 
     claiming evidence against him was the fruit of 
     unconstitutional electronic surveillance has established the 
     illegality of such surveillance (and his ``standing'' to 
     object), he must be given confidential materials in the 
     Government's files to assist him in establishing the 
     existence of ``taint.'' The Court rejected the Government's 
     contention that the trial court could be permitted to screen 
     the files in camera and give the defendant only material 
     which was ``arguably relevant'' to his claim, saying such 
     screening would be sufficiently subject to error to interfere 
     with the effectiveness of adversary litigation of the 
     question of ``taint.'' The Supreme Court refused to 
     reconsider the ALDERMAN rule and, in fact reasserted its 
     validity in its KEITH decision. (UNITED STATES v. ALDERMAN, 
     supra, at 393.)
       When the court determines that the surveillance was 
     lawfully authorized and conducted, it would, of course, deny 
     any motion to suppress. In addition, once a judicial 
     determination is made that the surveillance was lawful, a 
     motion for discovery of evidence must be denied unless 
     disclosure or discovery is required by due process.
       Subsection (h) states that orders granting motions or 
     requests under subsection (g), decisions under this section 
     that a physical search was not lawfully authorized or 
     conducted, and orders of the United States district court 
     requiring review or granting disclosure of applications, 
     orders or other materials relating to the physical search 
     shall be final orders and binding upon all courts of the 
     United States and the several States except a United States 
     court of appeals and the Supreme Court. It is intended that 
     all orders regarding legality and disclosure shall be final 
     and binding only where the rulings are against the 
     Government.
       Subsection (i) states that the provisions of this section 
     regarding the use or disclosure of information obtained or 
     derived from a search shall apply to information obtained or 
     derived from a search conducted without a court order to 
     obtain foreign intelligence information which is not a 
     physical search as defined in this title solely because the 
     existence of exigent circumstances would not require a 
     warrant for law enforcement purposes. As discussed with 
     respect to section 406(b), below, a search may be conducted 
     without a court order to obtain foreign intelligence 
     information in exigent circumstances. This subsection makes 
     clear that the use or disclosure of information obtained or 
     derived from such a search must be governed by the provisions 
     of this section.


                               OVERSIGHT

       Section 405(a) provides that on a semiannual basis the 
     Attorney General shall fully inform the House Permanent 
     Select Committee on Intelligence and the Senate Select 
     Committee on Intelligence concerning all physical searches 
     conducted pursuant to this title, and all other searches, 
     except those reported under section 108 of FISA relating to 
     electronic surveillance, conducted in the United States for 
     foreign intelligence purposes. The reference to ``all other 
     searches'' is intended to include those searches which would 
     require a judicial warrant for law enforcement purposes 
     absent exigent circumstances. Also included are any other 
     searches which may not fall within the definitions of 
     ``physical search'' and ``electronic surveillance'' under 
     this Act, but which may be conducted in the United States to 
     collect foreign intelligence information.
       In addition, on an annual basis the Attorney General shall 
     provide to those committees a report setting forth with 
     respect to the preceding calendar year (a) the total number 
     of applications made for orders approving physical searches 
     under this title; and (b) the total number of such orders 
     either granted, modified, or denied. The comparable provision 
     of FISA requires a public report to the Administrative Office 
     of the United States Courts. The reports concerning physical 
     searches are to be submitted to the committees, and may be 
     classified, because the Justice Department has advised that 
     the numbers may be so few as to reveal sensitive information 
     concerning U.S. foreign counterintelligence activities.
       Subsection (b) of section 405 provides that whenever a 
     search is conducted without a court order to obtain foreign 
     intelligence information which is not a physical search as 
     defined in this title solely because the existence of exigent 
     circumstances would not require a warrant for law enforcement 
     purposes, a full report of such search, including a 
     description of the exigent circumstances, shall be maintained 
     by the Attorney General. Each such report shall be 
     transmitted to the Foreign Intelligence Surveillance Court 
     promptly after the search is conducted.
       The term ``exigent circumstances'' means circumstances in 
     which it is impossible, for practical reasons, to apply for a 
     court order authorizing the search before the opportunity to 
     conduct the search would be lost due to the delay. As 
     discussed below with respect to section 406(b), such searches 
     may be conducted only pursuant to regulations issued by the 
     Attorney General and reported to the intelligence committees. 
     The exigent circumstances that may justify a search without a 
     court order must relate solely to the time required to apply 
     for a court order. Whenever the circumstances allow time to 
     apply for a court order, such an order must be obtained. If a 
     search is approved without a court order due to exigent 
     circumstances and then is postponed, the process of 
     application for a court order must being at once and every 
     reasonable effort must be made to apply for an order. If the 
     opportunity for the search reappears before the application 
     is submitted, the search may be conducted only if that 
     opportunity is so limited in duration and so unlikely to 
     recur that further delay to obtain the court order would 
     preclude the search.
       An example is the search of a package entrusted to a 
     courier in an espionage network. The courier may receive the 
     package without warning and be instructed to deliver it with 
     a tight deadline. If the courier is a U.S. intelligence 
     source, the package may be accessible to Federal officers for 
     a brief time, and Federal officers may have no advance 
     knowledge that the courier will receive the package. If all 
     the conditions that would justify a court order are met, the 
     search may be approved. If the courier is unable to make the 
     package available at the expected time and the search is 
     postponed with the possibility of a later opportunity, the 
     process of application for an order must begin as soon as 
     possible so that every reasonable effort is made to obtain a 
     court order prior to the next opportunity for a search. If 
     more than one search is contemplated, the application process 
     should also begin as soon as possible and every reasonable 
     effort must be made to obtain a court order prior to the next 
     search or searches.


                  AUTHORITY FOR INTELLIGENCE SEARCHES

       Section 406(a) provides that the procedures contained in 
     this title shall be the exclusive means by which a physical 
     search, as defined in this title, may be conducted in the 
     United States for foreign intelligence purposes, and an order 
     issued under this title authorizing a physical search shall 
     constitute a search warrant authorized by law for purposes of 
     any law.
       The intent of the ``exclusive means'' provision is the same 
     as the comparable FISA provision, as reflected in the 
     statement of managers accompanying the Conference Report on 
     FISA. The establishment by this title of exclusive means by 
     which the President may conduct physical searches within the 
     United States to collect foreign intelligence information 
     does not foreclose a different decision by the Supreme Court. 
     The intent is to apply the standard set forth in Justice 
     Jackson's concurring opinion in the Steel Seizure Case: 
     ``When a President takes measures incompatible with the 
     express or implied will of Congress, his power is at the 
     lowest ebb, for then he can rely only upon his own 
     Constitutional power minus any Constitutional power of 
     Congress over the matter.'' YOUNGSTOWN SHEET & TUBE CO. v. 
     SAWYER, 343 U.S. 579, 673 (1952).
       Subsection (a) of section 406 also provides that an order 
     issued under this title authorizing a physical search shall 
     constitute a search warrant authorized by law for purposes of 
     any other law. For example, a federal statute makes it a 
     crime for a federal law enforcement officer to search a 
     private dwelling without a judicial warrant, except incident 
     to an arrest or with the consent of the occupant. 18 United 
     States Code, Section 2236. While a Justice Department opinion 
     has concluded that this statute does not bar ``properly 
     authorized warrantless physical searches for national 
     security purposes,'' the opinion states that ``the issue is 
     not free from doubt.'' See S. Rept. 98-660, p. 18. This 
     provision resolves that issue by making clear that a court 
     order under this title meets the statutory warrant 
     requirement for dwelling searches. Similar federal statutes 
     prohibit the opening of mail in United States postal channels 
     without a judicial warrant. See 18 United States Code, 
     Sections 1701-1702, 1703(b) and 39 United States Code, 
     Section 3623(d). This title is not intended to modify or 
     supersede those federal statutes which authorize FBI access 
     without a warrant to financial or telephone records or 
     similar information in foreign counterintelligence 
     investigations.
       Subsection (b) of section 406 provides that searches 
     conducted in the United States to collect foreign 
     intelligence information, other than physical searches as 
     defined in this title and electronic surveillance as defined 
     in FISA, and physical searches conducted in the United States 
     without a court order to collect foreign intelligence 
     information, may be conducted only pursuant to regulations 
     issued by the Attorney General. This provision is intended to 
     apply primarily to two types of activity--first, searches 
     conducted in exigent circumstances without a warrant which, 
     absent exigent circumstances, would require a warrant for law 
     enforcement purposes; and second, physical searches of the 
     premises of ``official'' foreign powers which do not come 
     within the jurisdiction of the Court under section 401(a) of 
     this title. This provision also would apply to any other 
     searches which may not fall within the definitions of 
     ``physical search'' and ``electronic surveillance'' in this 
     Act, but which may be conducted in the United States to 
     collect foreign intelligence information.
       The regulations issued by the Attorney General for these 
     activities, and any changes to those regulations, are to be 
     provided to the intelligence committees at least 14 days 
     prior to taking effect. Any regulations issued by the 
     Attorney General regarding such activities which were in 
     effect as of January 1, 1994, shall be deemed to be 
     regulations required by this subsection.


                               penalties

       Section 407(a)(1) makes it a criminal offense for officers 
     or employees of the United States to intentionally engage in 
     physical search within the United States under color of law 
     for the purpose of obtaining foreign intelligence information 
     except as authorized by statute. Section 407(a)(2) makes it a 
     criminal offense for officers or employees of the United 
     States to intentionally disclose or use information obtained 
     under color of law by physical search, knowing or having 
     reason to know that the information was obtained through 
     physical search not authorized by statute and conducted in 
     the United States for the purpose of obtaining foreign 
     intelligence information. Section 407(b) provides an 
     affirmative defense to a law enforcement or investigative 
     officer who engages in such an activity for law enforcement 
     purposes in the course of this official duties, and the 
     physical search was authorized by and conducted pursuant to a 
     search warrant or court order of a court of competent 
     jurisdiction. The penalty is a fine of not more than $10,000 
     or imprisonment for not more than five years, or both. 
     Section 407(d) makes clear that there is Federal jurisdiction 
     over an offense under this section of the person committing 
     the offense was an officer or employee of the United States 
     when the offense was committed.
       One of the important purposes of this title is to afford 
     security to intelligence personnel so that if they act in 
     accordance with the statute, they will be insulated from 
     liability; it is not to afford them immunity when they 
     intentionally violate the law. The word ``intentionally'' was 
     carefully chosen. It is intended to reflect the most strict 
     standard for criminal culpability. The Government would have 
     to prove beyond a reasonable doubt both that the conduct 
     engaged in was in fact a violation, and that it was engaged 
     in with a conscious objective or desire to commit a 
     violation.


                            civil liability

       Section 408 imposes civil liability for violations of 
     section 407, and authorizes an ``aggrieved person,'' as 
     defined in section 409(d), to recover actual damages, 
     punitive damages, and reasonable attorney's fees and other 
     investigative and litigation costs reasonably incurred. Since 
     the civil cause of action only arises in connection with a 
     violation of the criminal provision, the statutory defense 
     does not have to be restated. Although included in the 
     definition of ``aggrieved person,'' foreign powers and non-
     U.S. persons who act in the United States as officers or 
     employees of foreign powers or as members of international 
     terrorist groups would be prohibited from bringing actions 
     under section 407. Other foreign visitors, including those 
     covered by section 101(b)(1)(B) of the definition of ``agent 
     of a foreign power,'' would have a cause of action under this 
     provision. Those barred from the civil remedy will be 
     primarily those persons who are themselves immune from 
     criminal or civil liability because of their diplomatic 
     status.


                              definitions

       Section 409(a) provides that the terms ``foreign power,'' 
     ``agent of a foreign power,'' ``international terrorism,'' 
     ``sabotage,'' ``foreign intelligence information,'' 
     ``Attorney General,'' ``United States person,'' ``United 
     States,'' ``person,'' and ``State'' shall have the same 
     meaning as in Section 101 of the Foreign Intelligence 
     Surveillance Act of 1978 (FISA). The legislative history of 
     these FISA definitions is applied to physical search below. 
     Because many of the substantive aspects of this title derive 
     from the FISA definitions of particular terms, this 
     subsection is critical to understanding this title as a 
     whole.


                             foreign power

       The definition of ``foreign power'' in section 101(a) of 
     FISA reads as follows:
       (a) ``Foreign power'' means--
       (1) a foreign government or any component thereof, whether 
     or not recognized by the United States;
       (2) a faction of a foreign nation or nations, not 
     substantially composed of United States persons;
       (3) an entity that is openly acknowledged by a foreign 
     government or governments to be directed and controlled by 
     such foreign government or governments;
       (4) a group engaged in international terrorism or 
     activities in preparation therefor;
       (5) a foreign-based political organization, not 
     substantially composed of United States persons; or
       (6) an entity that is directed and controlled by a foreign 
     government or governments.
       ``Foreign power'' is defined in section 101(a) of FISA in 
     six separate ways. These definitions are crucial because 
     physical searches may only be targeted against foreign powers 
     or agents of foreign powers.
       It is expected that certain of the defined ``foreign 
     powers'' will be found in the United States and targeted 
     directly; others are not likely to be found in the United 
     States but are included in the definition more to enable 
     certain persons who are their agents, and who may be in the 
     United States, to be targeted as ``agents of a foreign 
     power,'' as defined. As will appear below, the six categories 
     may well overlap, and an entity may well be found to a 
     ``foreign power'' under more than one category. This is not 
     improper. These categories are intended to be all-
     encompassing, and clear lines cannot always be drawn between 
     different descriptions of the types of entities which justify 
     targeting physical search. The six categories are:
       (1) ``A foreign government or any component thereof, 
     whether or not recognized by the United States.'' This 
     category would include foreign embassies and consulates and 
     similar ``official'' foreign government establishments that 
     are located in the United States.
       (2) ``A faction of a foreign nation or nations, not 
     substantially composed of United States persons.'' This 
     category is intended to include factions of a foreign nation 
     or nations which are in a contest for power over, or control 
     of the territory of, a foreign nation or nations. An example 
     of such a faction might be the PLO, the Eritrean Liberation 
     Front, or similar organizations. Specifically excluded from 
     this category is any faction of a foreign nation or nations 
     which is substantially composed of permanent resident aliens 
     or citizens of the United States. The word ``substantially'' 
     means a significant proportion, but it may be less than a 
     majority.
       (3) ``An entity, which is openly acknowledged by a foreign 
     government or governments to be directed and controlled by 
     such foreign government or governments.'' This category is 
     specifically delineated in order to treat entities of this 
     type in the same manner as the government they serve by 
     including them within those ``official'' foreign powers whose 
     premises may be subject to a physical search without a court 
     order. Only entities ``openly acknowledged'' by a foreign 
     government to be both directed and controlled by it are 
     subject to this provision.
       Those entities which are clearly arms of a government or 
     governments meet this definition. This category would 
     include, for example, a legitimate commercial establishment 
     which is directed and controlled by a foreign government. 
     Such a legitimate commercial establishment might be a foreign 
     government's airline, even though it was incorporated in the 
     United States. Also included in this definition would be 
     international organizations of states such as the 
     Organization of Petroleum Exporting Countries or the 
     Organization for African Unity. Where such organizations are 
     involved, it is not necessary to show that one or two 
     countries control the organization. Rather, it is sufficient 
     to show that the organization is made up of governmental 
     entities which collectively direct and control the 
     organization.
       It is recognized that this type of foreign power includes 
     corporations or organizations present in the United States 
     which may have many United States citizens as employees or 
     even officers. Nevertheless, this fact does not detract from 
     the fact that the organization acts as an arm of a foreign 
     government or governments and as such may engage in 
     activities directly affecting our national interests or 
     security. In such circumstances a physical search targeted 
     against such an entity should focus on the premises, 
     property, information, or material of the organization, 
     not of its employees or members who are United States 
     citizens. A search of the premises, property, information, 
     or material of an individual employee could be justified 
     only by obtaining a separate court order for the 
     individual target.
       A law firm, public relations firm, or other legitimate 
     concern that merely represents a foreign government or its 
     interests does not mean it is an entity in this category. The 
     question whether a group, commercial enterprise, or 
     organization comes within the scope of this definition is one 
     for the court to answer on the basis of a probable cause 
     standard.
       (4) ``A group engaged in international terrorism or 
     activities in preparation therefor.'' The term 
     ``international terrorism'' is a defined term, see below, and 
     includes within it a criminal standard. A group under this 
     category must be engaged in ``international terrorism,'' as 
     defined, or be in preparation therefor. Such groups would 
     include Black September, the Red Army Faction, the Red 
     Brigades, and the Japanese Red Army. It would not include 
     groups engaged in terrorism of a purely domestic nature. The 
     citizenship of the terrorist group or its members while 
     relevant to the determination of whether it is a ``foreign 
     power,'' is not determinative. It is not required that the 
     group be ``foreign-based,'' because in the world of 
     international terrorism a group often does not have a 
     particular ``base,'' or if it does, it may be impossible to 
     determine. Perhaps more importantly, where its base is 
     located is often irrelevant to the foreign intelligence 
     interest or concern with respect to the group. There have 
     been domestically based international terrorist groups, which 
     have engaged in acts overseas which have resulted in deaths. 
     The group must be engaged in criminal terrorist activities, 
     which are international in scope or manner of execution. See 
     the discussion of ``international terrorism,'' below.
       Generally, such groups will not be targeted in the United 
     States as ``foreign powers,'' if only because such a group is 
     not likely to maintain an official presence here. Rather, 
     members of the group may be in the United States either 
     singly or in bunches, and they will be targeted as ``agents 
     of a foreign power,'' to wit, agents of a group engaged in 
     international terrorism.
       (5) ``A foreign-based political organization, not 
     substantially composed of United States persons.'' This 
     category would include foreign political parties. In some 
     countries, both totalitarian and parliamentary, ruling 
     parties effectively control the government. Thus, information 
     concerning the activities and intentions of these parties can 
     directly relate to the activities and intentions of their 
     government. Moreover, the intentions and positions of 
     minority parties can also be of great importance to this 
     nation, because, although minorities, they may affect the 
     course of their government or they may come to power, in 
     which case it would be important to have prior knowledge of 
     their positions and intentions. Finally, this category is not 
     limited to political parties; their are other foreign 
     political organizations which exercise or have potential 
     political power in a foreign country or internationally. 
     Because it can be important to this nation to have 
     intelligence concerning any organization which exercises or 
     has potential political power in a foreign country or 
     internationally targeting such organizations can be proper. 
     On the other hand, where a political organization is 
     domestically based or is substantially composed of U.S. 
     persons and does not otherwise fall within the other 
     definitions of ``foreign power'' or ``agent of a foreign 
     power,'' the gathering of political information concerning 
     that organization by physical search--even though desired or 
     even important to this Government--is improper and raises 
     grave First Amendment questions. This definition clearly does 
     not include organizations comprised of Americans of Greek, 
     Irish, Jewish, Chinese, or other extractions who have joined 
     together out of interest or concern for the country of their 
     ethnic origin.
       (6) An entity, which is directed and controlled by a 
     foreign government or ``governments.'' This category is 
     similar to category (3) above, except that the entity need 
     not be openly acknowledged to be directed and controlled by a 
     foreign government or governments. Such an entity must be 
     acting as an arm of the government with respect to activities 
     that are of foreign intelligence or counterintelligence 
     significance. An example would be an entity which appears to 
     be a legitimate commercial establishment, but which is being 
     utilized by a foreign government as a cover for espionage 
     activities. The concerns set forth with respect to openly 
     controlled entities apply to this category as well. There is 
     the added danger that targeting of a covertly controlled 
     entity, substantially composed of U.S. persons, would 
     potentially offer a means for evading the requirements for 
     targeting of individual U.S. persons. Therefore, it is 
     important to emphasize that the judge must find probable 
     cause the entity is both ``directed'' and ``controlled'' by a 
     foreign government or governments. Merely following the 
     directions of a foreign government which wants a group to 
     lobby or speak out publicly on behalf of the government's 
     interests, is not in itself sufficient to place the group 
     in this category. While direction and control are separate 
     elements to be established, the same evidence can 
     demonstrate both.
       Again, a law firm, public relations firm, etc. that merely 
     represents a foreign government or its interests does not 
     mean it is an entity in this category. The entity which sees 
     its own interests as parallel to those of a foreign 
     government and acts accordingly is not by this directed and 
     controlled by that government. It is only when the foreign 
     government or its agents influence the entity to the extent 
     that the entity yields its independent judgments that an 
     entity become directed and controlled by a foreign 
     government. In particular cases, obviously, it may be 
     difficult to discern the actual direction and control, and, 
     of course, circumstantial evidence may suffice in 
     establishing probable cause, but no entity which purports to 
     be a U.S. person should be considered directed and controlled 
     by a foreign government solely on the basis that its 
     activities are consistent with the desires of a foreign 
     government.


                      ``agent of a foreign power''

       The term ``agent of a foreign power'' is defined in section 
     101(b) of FISA as follows:
       (b) ``Agent of a foreign power'' means--
       (1) any person other than a United States person, who--
       (A) acts in the United States as an officer or employee of 
     a foreign power, or as a member of a foreign power as defined 
     in subsection (a)(4);
       (B) acts for or on behalf of a foreign power which engages 
     in clandestine intelligence activities in the United States 
     contrary to the interests of the United States, when the 
     circumstances of such person's presence in the United States 
     indicate that such person may engage in such activities, or 
     when such person knowingly aids or abets any person in the 
     conduct of such activities or knowingly conspires with any 
     person to engage in such activities; or
       (2) any person who--
       (A) knowingly engages in clandestine intelligence gathering 
     activities for or on behalf of a foreign power, which 
     activities involve or may involve a violation of the criminal 
     statutes of the United States;
       (B) pursuant to the direction of an intelligence service or 
     network of a foreign power, knowingly engages in any other 
     clandestine intelligence activities for or on behalf of such 
     foreign power, which activities involve or are about to 
     involve a violation of the criminal statutes of the United 
     States;
       (C) knowingly engages in sabotage or international 
     terrorism, or activities that are in preparation therefor, 
     for or on behalf of a foreign power; or
       (D) knowingly aids or abets any person in the conduct of 
     activities described in subparagraph (A), (B), or (C) or 
     knowingly conspires with any person to engage in activities 
     described in subparagraph (A), (B), or (C).
       (1) Non-Resident Aliens in the United States.--There are 
     two separate categories of the definition of ``agent of a 
     foreign power'' in section 101(b) of FISA. The first cannot 
     be applied to United States citizens and permanent resident 
     aliens; it is, therefore, limited to aliens in the United 
     States who are tourists, visiting businessmen, exchange 
     visitors, foreign seamen, diplomatic and consular personnel, 
     illegal aliens, etc.
       Most of the persons in this category are protected by the 
     fourth amendment when they are in the United States. By 
     requiring a judicial warrant on the basis of statutory 
     criteria, such persons' fourth amendment protections would be 
     increased from their status under current operating 
     procedures of the executive branch. On the other hand, the 
     protections afforded such persons are not as great as those 
     afforded United States persons. The standard for targeting 
     nonresident aliens does not have a criminal standard; and 
     there is no requirement to minimize the acquisition, 
     retention, and dissemination of information with respect to 
     such persons. The Congress is convinced that the protections 
     afforded nonresident aliens in this title fully satisfy the 
     Constitution.
       The basic test under the fourth amendment is that a search 
     be reasonable. Reasonableness itself is determined by 
     weighing the Government's legitimate need for the information 
     sought against the invasion of privacy the search entails.
       The findings of probable cause required to be made by the 
     judge as to nonresident aliens directly relate to the 
     likelihood of obtaining foreign intelligence from physical 
     search of their premises, property, information, or material. 
     Such information must by definition directly and 
     substantially relate to important foreign policy or national 
     security concerns, and the Attorney General must find that 
     the purpose of the search is to obtain such information.
       As to the ``equal protection'' question, the Congress notes 
     that the Supreme Court has held that where there are 
     compelling considerations of national security, alienage 
     distinctions are constitutional. See e.g., HAMPTON v. MOW SUN 
     WONG, 426 U.S. 88, 116 (1976). Those distinctions must, 
     however, be reasonable in light of the demonstrated need and 
     not be overly broad. With respect to those non-resident 
     aliens who fit within the two categories of agents of foreign 
     powers in section 101(b)(1) of FISA, that need was 
     demonstrated during the congressional consideration of FISA. 
     It should be noted that, in light of the particular 
     requirements for physical search as compared to electronic 
     surveillance, there are fewer procedural differences between 
     U.S. persons and non-resident aliens under this title than 
     under FISA.
       Subsection (b)(1)(A) includes in its definition of ``agent 
     of a foreign power" those persons, who are not U.S. persons, 
     who act in the United States as officers or employees of a 
     foreign power, or as members of a foreign power as defined in 
     subsection (a)(4), i.e., groups engaged in international 
     terrorist activities or activities in preparation therefor.
       Non-resident aliens who act in the United States as 
     officers or employees of a foreign power are likely sources 
     of foreign intelligence or counterintelligence information. 
     The definition excludes persons who serve as officers or 
     employers of a foreign power in their home country, but do 
     not act in that capacity in the United States. The reference 
     to employees of a foreign power is meant to include those 
     persons who have a normal employee-employer relationship. It 
     is not intended to encompass such foreign visitors as 
     professors, lecturers, exchange students, performer or 
     athletes, even if they are receiving remuneration or expenses 
     from their home government in such capacity.
       Groups engaged in international terrorism would not likely 
     have ``officers'' or ``employees.'' A member of an 
     international terrorist group will most likely not identify 
     himself as such upon entering the United States, as would an 
     officer or employee of a foreign power. In the latter 
     instance, a copy of the person's visa application will 
     usually suffice to show that he is acting in the United 
     States as an officer or employee of a foreign power. However, 
     in the case of a member of an international terrorist group, 
     the government will most likely have to rely on more 
     circumstantial evidence, such as concealment of one's true 
     identity or affiliation with the group, or other facts and 
     circumstances indicating that such person is in the United 
     States for the purpose of furthering terrorist activities. 
     The term ``member'' means an active, knowing member of the 
     group or organization which is engaged in international 
     terrorism or activities in preparation therefor. It does not 
     include mere sympathizers, fellow-travelers, or persons who 
     may have merely attended members of the group. On the other 
     hand, if a person has received terrorist training from such a 
     group, this would be substantial evidence that he was a 
     member of the group.
       Subsection (b)(1)(B) defines an ``agent of a foreign 
     power'' as a person who is not a U.S. person and who acts for 
     or on behalf of a foreign power which engages in clandestine 
     intelligence activities in the United States contrary to the 
     interests of the United States, when the circumstances of 
     such person's presence in the United States indicate that 
     such person may engage in such activities in the United 
     States, or when such person knowingly aids or abets any 
     person in the conduct of such activities or knowingly 
     conspires with any person to engage in such activities.
       This provision reflects two concerns. The first is the 
     counterintelligence interest in certain foreign visitors as 
     to whom it could be shown with a high degree of probability 
     that they would engage in clandestine intelligence 
     activities, but before sufficient information can be 
     established showing that they are so engaged. As a practical 
     matter, less intrusive techniques may not enable the 
     Government to obtain sufficient information about persons 
     visiting the United States for only a limited time and who do 
     not have a history of activities in the United States to show 
     that they are indeed engaged in clandestine intelligence 
     activities. A second concern, however, is that this non-
     criminal standard should not be used as a basis for targeting 
     foreign visitors from any nation, but should be limited to 
     foreign visitors acting on behalf of certain foreign powers 
     as to which it could be shown systematically engaged in 
     clandestine intelligence activities threatening the security 
     of the United States.
       In light of these two legitimate concerns, this provision 
     does not require a showing that the individual foreign 
     visitors is himself currently engaged in clandestine 
     intelligence activities, but rather that the circumstances of 
     his presence here indicate that he may engage in such 
     activities which are contrary to this nation's interests. In 
     addition, it must be shown that he is acting for or on behalf 
     of a foreign power which engages in clandestine 
     intelligence activities in the United States which are 
     contrary to the interests of the United States. It is 
     intended that the Government show that the foreign power 
     has demonstrated some pattern or practice of engaging in 
     clandestine intelligence activities in the United States 
     contrary to the interests of the United States.
       The phrase, ``acts for or on behalf of a foreign power,'' 
     is here intended to require the Government to show a nexus 
     between the individual and the foreign power that suggests 
     that the person is likely to do the bidding of a foreign 
     power. For example, visitors from totalitarian countries 
     present in the United States under the auspices, sponsorship, 
     or direction of their government would satisfy this standard.
       The term ``interests'' refers to important concerns or 
     long-term goals of the United States, including interests 
     embodied in law. It might be said that any country which 
     engages in clandestine intelligence activities in the U.S. 
     ipso facto acts contrary to this Nation's interests. This is 
     clearly not intended here.
       Once the requisite facts with regard to the foreign power 
     are established, the question is whether the circumstances of 
     the person's presence in the United States indicate that the 
     person may engage in clandestine intelligence activities for 
     that foreign power contrary to the interests of the United 
     States. The answer to this question will vary according to 
     what is known about the intelligence operations of the 
     particular foreign power. Among the factors that might be 
     taken into account are whether the foreign visitor engages in 
     activities with respect to which there is evidence that other 
     visitors who engage in similar activities are officers, 
     agents, or acting on behalf of the intelligence service of 
     that foreign power. If the Government can show from 
     experience that a particular foreign power uses a certain 
     class of visitors to this country for carrying out secret 
     intelligence assignments, this too would indicate that a 
     visitor in this class may engage in clandestine intelligence 
     activities.
       The standard ``may engage in such activities'' means that a 
     physical search can be conducted to anticipate clandestine 
     intelligence activities by such persons, rather than waiting 
     until after they have taken place. The additional standards 
     for aiding or abetting, and conspiracy, require probable 
     cause that the foreign visitor is knowingly assisting persons 
     who are already engaged in clandestine intelligence 
     activities. The ``knowingly'' requirements are the same as in 
     the aiding or abetting and conspiracy standards for U.S. 
     persons, discussed regarding subsection (b)(2)(A) and (B) 
     below.
       This provision does not treat nationals of certain 
     countries differently from others solely on the basis of 
     their nationality. Instead, targeting of the nationals of 
     other countries depends on the activities of the governments 
     of those countries and whether the individual is acting on 
     behalf of the foreign government. There must also be probable 
     cause to believe that the physical search of the premises or 
     property of the individual can reasonably be expected to 
     yield foreign intelligence information which cannot 
     reasonably be obtained by normal investigative means.
       The term ``clandestine intelligence activities'' is 
     intended to have the same meaning as in subsection (b)(2)(A) 
     and (B), discussed below.
       (2) ``Any Person''--The second part of the FISA definition 
     of ``agent of a foreign power'' requires that whenever a 
     United States person is to be the target of a physical search 
     there must be a showing that his activities at least may 
     involve a violation of law. As a matter of principle, no 
     United States citizen in the United States should be targeted 
     for a physical search by his government absent some showing 
     that he at least may violate the laws of our society. A 
     citizen in the United States should be able to know that his 
     government cannot invade his privacy with the most intrusive 
     techniques if he conducts himself lawfully.
       On the other hand, the physical searches under this title 
     are not primarily for the purpose of gathering evidence of a 
     crime. They are to obtain foreign intelligence information, 
     which when it concerns United States persons must be 
     necessary to important national concerns. Combating espionage 
     and covert actions of other nations in this country is an 
     extremely important national concern. Prosecution is one way, 
     but only one way and not always the best way, to combat such 
     activities. ``Doubling'' an agent or feeding him false or 
     useless information are other ways. Monitoring him to 
     discover other spies, their tradecraft and equipment can be 
     vitally useful. Prosecution, while disabling one known agent, 
     may only mean that the foreign power replaces him with one 
     whom it may take years to find or who may never be found.


                 (a) clandestine intelligence gathering

       Paragraph (2)(A) allows physical search of property of any 
     person who is knowingly engaged in clandestine intelligence 
     gathering activities, which activities involve or may involve 
     a violation of the criminal statutes of the United States.
       The first aspect of this definition is that the person is 
     engaging in such acts ``knowingly.'' This does not mean that 
     he must know, or that the Government must show that he knows, 
     that he may be violating a Federal criminal law. It does mean 
     that he must known that he is engaging in clandestine 
     intelligence gathering activities and that he knows that he 
     is doing so on behalf of a foreign power. It is often 
     difficult to prove what a person knows and what he does not 
     know. The Congress intends that circumstantial evidence 
     should be sufficient to show the requisite knowledge. If, for 
     example, a person is transmitting classified defense secrets 
     to the military attache of a foreign embassy, this should be 
     sufficient to show that he knows he is acting for or on 
     behalf of a foreign power. Similarly, if a person has 
     received training in or equipment for espionage, for example 
     a microdot camera or disguised radio device, this too should 
     be sufficient to show that he knows what he is doing. While 
     this, and the other provisions under paragraph (2), are not 
     intended to reach one who in fact is ignorant as to the 
     nature of what he is doing, the knowing requirement is not 
     intended to force the Government to disprove his ignorance 
     when a person engaged in such activities would reasonably 
     suspect that he was acting for or on behalf of a foreign 
     power.
       Next, the person must be ``engaged'' in the proscribed 
     activities. Unlike the standard for foreign visitors, the 
     fact that he ``may engage'' in these activities some time in 
     the future is not sufficient. For example, if evidence shows 
     that a person has recently engaged in the activities, this 
     would normally suffice to show probable cause that he is 
     ``engaged'' in such activities now.
       On the other hand, evidence that a person engaged in the 
     proscribed activities six months or longer ago might well, 
     depending on the circumstances and other evidence, be 
     sufficient to show probable cause that he is still engaged in 
     the activities. For instance, evidence that a U.S. person was 
     for years a spy for a power currently hostile to the United 
     States, but who has dropped out of sight for a few years, 
     would probably be sufficient to show ``probable cause'' that 
     he was, having now reappeared, continuing to engage in the 
     clandestine intelligence activities.
       Probably the most critical term in this provision is 
     ``clandestine intelligence gathering activities.'' It is 
     anticipated that most clandestine intelligence gathering 
     activities will constitute a violation of the various 
     criminal laws aimed at espionage, either directly or by 
     failure to register, see e.g., 18 U.S. Sections 792-799, 951; 
     42 U.S.C. Sections 2272-2278b; and 50 U.S.C. Section 855. The 
     term ``clandestine intelligence gathering activities'' is 
     intended to have the same meaning as the word espionage in 
     normal parlance, rather than as a legal term denoting a 
     particular offense. The term also includes those activities 
     directly supportive of espionage such as maintaining a 
     ``safehouse,'' servicing ``letter drops,'' running an 
     ``accommodation address,'' laundering funds, recruiting new 
     agents, infiltrating or exfiltrating agents under cover, 
     creating false documents for an agent's ``cover,'' or 
     utilizing a radio to receive or transmit instructions or 
     information by ``burst transmission.'' ``Clandestine 
     intelligence gathering activities'' are intended to be 
     activities which no reasonable person would engage in without 
     knowing that society would not condone it. As the words 
     indicate, the activities must be ``clandestine,'' that is, 
     efforts have been taken to conceal the activities.
       This does not necessarily mean that the information 
     gathered by the agent must itself be secret or nonpublic, 
     although that would usually be the case. It is possible that 
     a spy may be tasked to obtain information which is 
     technically available to the public, but which a foreign 
     power would not like it known that it was seeking. If a spy, 
     for instance, used false identification or a ruse to obtain 
     the information and then delivered the information by means 
     of a microdot hidden in a magazine left at a ``dead drop,'' 
     both the means by which he gathered and the means by which he 
     transmitted the information would be ``clandestine,'' even 
     though the information itself might not be secret. It can be 
     proper for the government to monitor such a person, even if 
     the information he is collecting at that moment is not 
     secret, because his activities identify him as a spy. On the 
     one hand, having done his job successfully he may be given a 
     new assignment to collect secret information. On the other 
     hand, by monitoring his contacts in this enterprise, the 
     Government can learn valuable information concerning the 
     tactics, capabilities, and personnel of the foreign 
     intelligence service.
       Obviously, gathering classified defense information, 
     information about intelligence sources and methods, and 
     classified diplomatic information qualifies as clandestine 
     intelligence gathering activities if it is done in a 
     clandestine manner. In addition, the Congress is aware 
     that foreign powers also target their intelligence 
     apparatus against American technology and trade secrets, 
     economic developments, political information, and even 
     personal information for purposes of blackmail or 
     coercion. The gathering of any such information may be 
     within the term ``clandestine intelligence gathering 
     activities.''
       As noted above, ``clandestine intelligence gathering 
     activities'' are intended to be conduct of the nature 
     associated with spies and espionage in its generic sense, but 
     the term is supposed to be flexible with respect to what is 
     being gathered because the intelligence priorities and 
     requirements differ between nations over time, and this title 
     is intended to allow physical search in counterintelligence 
     investigations of different foreign powers' intelligence 
     activities well into the future.
       It is possible, although unlikely, that certain groups of 
     Americans might indeed come close to using espionage 
     techniques for otherwise lawful purposes. Thus, the 
     provisions require as a separate element of proof that the 
     person be engaged in clandestine intelligence gathering 
     activities ``for or on behalf of a foreign power.'' This 
     means that the Government will have to show probable cause to 
     believe that the person is not only engaged in clandestine 
     intelligence gathering activities, but also that those 
     activities are for or on behalf of a foreign power. Thus, if 
     all that can be shown is that a person is stealing defense 
     secrets and using a ``dead drop'' to pass them on, the 
     Government will have to show more, that is, probable cause to 
     believe that he is doing this for a foreign power.
       Similarly, the fact that a person gathers information and 
     transmits it for a foreign power by itself does not satisfy 
     the standard of this definition. Americans for personal or 
     commercial reasons may legitimately gather information for 
     foreign powers, as indeed registered lobbyists often do, but 
     their activity, if legitimate, does not utilize the 
     tradecraft of espionage. (The Congress does not intend that 
     ``clandestine intelligence gathering activities'' must 
     necessarily include the use of espionage tradecraft, but its 
     use is significant.) Thus, there seems little likelihood that 
     a person would be engaged in clandestine intelligence 
     gathering activities for or on behalf of a foreign power and 
     not in fact be engaged in reprehensible conduct of 
     substantial concern to this Nation's security.
       As an added safeguard, however, the Government must also 
     show that there is probable cause to believe that the person 
     is engaged in activities that at least may violate the 
     Federal criminal law. As noted above, it is expected that 
     most persons under this definition would be likely to violate 
     laws directed against espionage. In addition, there are other 
     laws which might be violated, for example, 18 U.S.C. section 
     2514 which proscribes interstate transportation of stolen 
     property; and 50 U.S.C. section 2021-2032, the Export 
     Administration Act.
       The words ``may involve'' as used in this subparagraph are 
     not intended to encompass individuals whose activities 
     clearly do not violate Federal law. They are intended to 
     encompass individuals engaged in clandestine gathering 
     activities which may, as an integral part of those 
     activities, involve a violation of Federal law. They cover 
     the situation where the Government cannot establish probable 
     cause that the foreign agent's activities involve a specific 
     criminal act, but where there are sufficient specific and 
     articulable facts to indicate that a crime may be involved.
       This ``may involve'' standard is necessary in order to 
     permit the Government to investigate adequately in cases such 
     as those where Federal agents have witnessed ``meets'' or 
     ``drops'' between a foreign intelligence officer and a 
     citizen who might have access to highly classified or 
     similarly sensitive information; information is being passed, 
     but the Federal agents have been unable to determine 
     precisely what information is being transmitted. Such a lack 
     of knowledge would of course disable the Government from 
     establishing that a crime was involved or what specific crime 
     was being committed. Nevertheless, the circumstances might be 
     such as to indicate that the activity may involve a crime. 
     The crime involved might be one of several violations 
     depending, for example, upon the nature of the information 
     being gathered.
       In applying this standard, the judge is expected to take 
     all known relevant circumstances into account--for example, 
     who the person is, where he is employed, whether he has 
     access to classified or other sensitive information, the 
     nature of the clandestine meetings or other clandestine 
     activity, the method of transmission, and whether there are 
     any other likely innocent explanations for the behavior. It 
     is intended, moreover, that the circumstances must not merely 
     be suspicious, but must be of such a nature as to lead a 
     reasonable man to conclude that there is probable cause to 
     believe the activity may involve a Federal criminal 
     violation.
       The term ``may involve'' not only requires less information 
     regarding the crime involved, but also permits a physical 
     search at some point prior to the time when a crime sought to 
     be prevented, as for example, the transfer of classified 
     documents, actually occurs. There need not be a current or 
     imminent violation if there is probable cause that criminal 
     acts may be committed. However, upon an assertion by the 
     Government that an informant has claimed that someone has 
     been instructed by a foreign power to go into ``deep cover'' 
     for several years before actually commencing espionage 
     activities, such facts would not necessarily be encompassed 
     by the phrase ``may involve.'' A physical search cannot be 
     justified unless there is probable cause to believe that the 
     person is engaged in such activities, even though the 
     relationship of those activities to a specific violation of 
     law may be more uncertain or likely to occur in the future.
       It should be made perfectly clear that a physical search 
     would not be authorized under this, or any other definition 
     of agent of a foreign power, against an American reporter 
     merely because he gathers information for publication in a 
     newspaper, even if the information was classified by the 
     Government. Nor would it be authorized against a Government 
     employee or former employee who reveals secrets to a reporter 
     or in a book for the purpose of informing the American 
     people. The definition would not authorize searches of the 
     property of ethnic Americans who lawfully gather political 
     information and perhaps even lawfully share it with the 
     foreign government of their national origin. It obviously 
     would not apply to lawful activities to lobby, influence, or 
     inform Members of Congress or the administration to take 
     certain positions with respect to foreign or domestic 
     concerns. Nor would it apply to lawful gathering of 
     information preparatory to such lawful activities.
       In the case of an organization whose leaders are engaged in 
     clandestine intelligence gathering activities, such activity 
     cannot be attributed to every member of the group. There must 
     be probable cause that a particular member is himself engaged 
     in such activity before a search of his property may be 
     authorized under this subparagraph.
       In short, for a person to be an agent of a foreign power 
     under this definition he must be knowingly engaged in 
     clandestine intelligence gathering activities, like 
     espionage, for or on behalf of a foreign power, and those 
     activities must be such that they at least ``may involve'' a 
     violation of Federal criminal law.
       A particularly difficult problem may arise where a person 
     is ``turned'' or ``doubled;'' that is, having started as an 
     agent for a foreign power, he is persuaded instead to work 
     for this Government. The standard under this paragraph 
     requires that a person knowingly engage in activities for or 
     on behalf of a foreign power. If the person is in fact 
     working for this Government and not for the foreign power, 
     this standard is obviously not met and his property could not 
     be searched under this paragraph. Often, however, there may 
     be substantial doubt whether he is acting under this 
     Government's control or under the control of a foreign power. 
     It may well be unclear which side is deceiving which. The 
     Congress recognizes that the fact that a supposedly 
     ``doubled'' agent indeed does carry out his assignments and 
     instructions from this Government does not mean that he has 
     stopped carrying out his assignments and instructions from 
     the foreign power contrary to this Government's interest. It 
     is the intent of Congress that, until such time as the 
     ``doubled'' agent is trusted enough to seek his consent to a 
     search, his property may be subject to an unconsented search 
     on the basis of his acting for or on behalf of a foreign 
     power.


           (B) ``other clandestine intelligence activities''

       Paragraph (2)(B) defines agent of a foreign power as a 
     person who pursuant to the direction of an intelligence 
     service or network of a foreign power, knowingly engages in 
     any other clandestine intelligence activities for or on 
     behalf of such foreign power, which activities involve or are 
     about to involve a violation of the criminal statutes of the 
     United States.
       The term ``any other clandestine intelligence activities'' 
     is intended to refer to covert actions by intelligence 
     services of foreign powers. Not only do foreign powers engage 
     in spying in the United States to obtain information, they 
     also engage in activities which are intended to harm the 
     Nation's security by affecting the course of our Government, 
     the course of public opinion, or the activities of 
     individuals. Such activities may include political action 
     (recruiting, bribery or influencing of public officials to 
     act in favor of the foreign power), disguised propaganda 
     (including the planting of false or misleading articles or 
     stories), and harassment, intimidation, or even assassination 
     of individuals who oppose the foreign power. Such activity 
     can undermine our democratic institutions as well as 
     directly threaten the peace and safety of our citizens.
       On the other hand, there may often be a narrow line between 
     covert action and lawful activities undertaken by Americans 
     in the exercise of their first amendment rights. Because of 
     this, a stricter standard has been created--stricter than 
     that applicable to ``clandestine intelligence gathering 
     activities''--which must be satisfied before a person may be 
     targeted as an agent of a foreign power under this 
     definition.
       First, the person must be shown to be acting ``pursuant to 
     the direction of an intelligence service or network of a 
     foreign power.'' No such showing is required for any of the 
     other definitions of agent of a foreign power. Americans may 
     well communicate with non-intelligence personnel from the 
     government of a country about which they have an interest to 
     gain information or engage in efforts on behalf of that 
     country, but this is not covert action and it is not intended 
     to be covered by this definition.
       Second, the activities engaged in must presently involve or 
     be about to involve a violation of Federal criminal law. 
     Again, this is a higher standard than is found in the other 
     definitions, where the activities ``may'' involve a violation 
     of law. In this area where there is a close line between 
     protected First Amendment activity and the activity giving 
     rise to a search, it is most important that where a search 
     does occur the activity be such that it involves or is about 
     to involve a violation of a Federal criminal statute.
       There are a number of crimes that might be involved in 
     covert actions, for example, bribery of public officials, 
     campaign law violations, foreign agent registration 
     requirements, denial of civil rights, et cetera. It is 
     important to note, however, that the fact of a criminal 
     violation does not establish or even necessarily suggest, 
     that a person is engaged in ``any other clandestine 
     intelligence activity.'' Americans through ignorance or 
     inadvertence may well technically violate campaign law 
     requirements or foreign agent registration requirements, and 
     such violations do not even justify electronic surveillance 
     for law enforcement purposes, see 18 U.S.C. section 2516. 
     Under this definition it is necessary to show separately from 
     the criminal violation that the facts support a probable 
     cause to believe that the person is, pursuant to the 
     direction of an intelligence service or network of a foreign 
     power, knowingly engaged in any other clandestine 
     intelligence activities for or on behalf of such foreign 
     power.
       The intent of this provision is to enable search of the 
     property of those hard-core agents who are writing as to what 
     they are doing and who are intentionally carrying out the 
     bidding of a foreign power's intelligence service to engage 
     in covert action in the United States.


                       (c) sabotage or terrorism

       Paragraph (2)(C) allows physical search of the property of 
     any person, including a U.S. person, who knowingly engages in 
     sabotage or international terrorism, or activities which are 
     in preparation therefor, for or on behalf of a foreign power. 
     The terms ``sabotage'' and ``international terrorism'' are 
     defined separately and require a showing of criminal 
     activity. Again, in no event is mere sympathy for, identity 
     of interest with, or vocal support for the goals of a foreign 
     group, even a foreign-based terrorist group, sufficient to 
     justify surveillance under this subparagraph.
       [The ``preparation'' standard does not mean preparation for 
     a specific violent act, but for activities that involve 
     violent acts. It may reasonably be interpreted to cover 
     providing the personnel, training, funding or other means for 
     the commission of acts of international terrorism. It also 
     permits physical search at some point before the dangers 
     sought to be prevented actually occur.]
       The term ``activities which are in preparation'' for 
     sabotage or international terrorism is intended to encompass 
     activities supportive of acts of serious violence--for 
     example, purchase or surreptitious importation into the 
     United States of explosives, planning for assassinations or 
     financing or training for such activities. Of course, other 
     activities supportive of terrorist acts could in other 
     circumstances likewise satisfy this standard. The 
     circumstances must be such as would lead a reasonable man to 
     conclude that there is probable cause to believe the person 
     is knowingly engaged in activities which are in preparation 
     for sabotage or terrorism.
       The term ``preparation'' does not require evidence of 
     preparation for one specific terrorist act, because the 
     definition of ``international terrorism'' speaks of 
     ``activities that involve violent acts'' and means a range of 
     acts, not just a single act. Here, the term, ``preparation'' 
     acquires its meaning in the context of the special definition 
     of ``international terrorism,'' which could reasonably be 
     interpreted to cover, for example, providing the personnel, 
     training, funding, or other means for the commission of acts 
     of terrorism, rather than one particular bombing. The 
     ``preparation'' provision permits physical search at some 
     point before the danger sought to be prevented--for 
     example, a kidnaping, bombing, or hijacking--actually 
     occurs. This standard is in no way intended to dilute the 
     requirement of knowledge, or the requisite connection with 
     a ``foreign power'' as defined in FISA.
       It is clearly not the intent to permit physical search 
     solely on the basis of information that someone might commit 
     acts of international terrorism or sabotage in the distant 
     future. There must be a showing that the person is currently 
     engaged in activities which are in preparation for the 
     commission of such acts.
       The ``preparation'' standard would allow physical search 
     where the Government cannot establish probable cause that an 
     individual has already knowingly engaged in sabotage or 
     terrorism, but where there are specific and articulable facts 
     to indicate that the individual's activities are in 
     preparation for sabotage or international terrorism. The 
     judge is expected to take all the known circumstances into 
     account. The circumstances must be such as would lead a 
     reasonable man to conclude that there is probable cause to 
     believe the person is knowingly engaged in activities which 
     are in preparation for sabotage or terrorism.
       It should be noted that the ``preparation'' standard only 
     need apply where there is insufficient evidence to show that 
     the person is in fact a terrorist. Where the Government can 
     show that the person is a known international terrorist, like 
     the notorious ``Carlos,'' or that the person has been 
     engaging in international terrorism for or on behalf of a 
     group engaged in international terrorism, there is no need to 
     show that the person is in the act of preparing for further 
     terrorist acts. One might wonder why the Government would not 
     immediately arrest such persons. In some cases they may not 
     have violated U.S. law, even though they may have murdered 
     hundreds of persons abroad. In other cases it may be more 
     fruitful in terms of combating international terrorism to 
     monitor the activities of such persons in the United States 
     to identify otherwise unknown terrorists here, their 
     international support structure, and the location of their 
     weapons or explosives. If a person who has engaged in 
     international terrorism visits the United States or resides 
     in the United States, the Government would be able to conduct 
     a search to determine his activities, whether or not there is 
     evidence to show he is presently planning some particular 
     violent act.
       Finally, any person targeted for search under this 
     paragraph must be shown to have a knowing connection with the 
     ``foreign power'' for whom he is working. In the case of 
     international terrorism, it is anticipated that in most cases 
     this connection will be shown to exist with a group engaged 
     in international terrorism. The case may arise where a U.S. 
     person is acting for or on behalf of such a group that is 
     substantially composed of U.S. persons. In such a case, the 
     judge must examine the circumstances carefully to determine 
     whether the organization is ``a group engaged in 
     international terrorism,'' as defined, and not a purely 
     domestic group engaged in domestic terrorism.


                  (d) aiding, abetting and conspiracy

       Paragraph 2(D) allows physical search of the property of 
     any person, including a U.S. person, who knowingly aids or 
     abets any person in the conduct of activities described in 
     subparagraphs (2)(A)-(C) above, or knowingly conspires with 
     any person to engage in such activities. The knowledge 
     requirement is applicable to both the status of the person 
     being aided by the proposed target of the search and the 
     nature of the activity being promoted. This standard requires 
     the Government to establish probable cause that the 
     prospective target knows both that the person with whom he is 
     conspiring or whom he is aiding or abetting is engaged in the 
     described activities as an agent of a foreign power and that 
     his own conduct is assisting or furthering such activities. 
     The innocent dupe who unwittingly aids a foreign intelligence 
     officer cannot be targeted under this provision. In the case 
     of a person alleged to be knowingly aiding or abetting those 
     engaged in international terrorism on behalf of a foreign 
     power, such a person might be assisting a group engaged in 
     both lawful political activity and unlawful terrorist acts. 
     In such a case, it would be necessary to establish probable 
     cause that the individual was aware of the terrorist 
     activities undertaken by the group and was knowingly 
     furthering them, and not merely that he was aware of and 
     furthering the group's lawful activity.
       An illustration of the ``knowing'' requirement is provided 
     by the case of Dr. Martin Luther King, Jr. Dr. King was 
     subjected to electronic surveillance on ``national security 
     grounds'' when he continued to associate with two advisors 
     whom the Government had apprised him were suspected of 
     being American Communist Party members and by implication, 
     agents of a foreign power. Dr. King's mere continued 
     association and consultation with those advisers, despite 
     the Government's warnings, would clearly not have been a 
     sufficient basis under this title to target Dr. King's 
     property for physical search.
       Indeed, even if there had been probable cause to believe 
     that the advisers alleged to be Communists were engaged in 
     criminal clandestine intelligence activity for a foreign 
     power within the meaning of this section, and even if there 
     were probable cause to believe Dr. King was aware they were 
     acting for a foreign power, it would also have been necessary 
     under this title to establish probable cause that Dr. King 
     was knowingly engaged in furthering his advisers' criminal 
     clandestine intelligence activities. Absent one or more of 
     these required showings, Dr. King could not have been found 
     to be one who knowingly aids or abets a foreign agent.
       As was noted above, however, the ``knowing'' requirement 
     can be satisfied by circumstantial evidence, and there is no 
     requirement for the Government to disprove lack of knowledge 
     where the circumstances were such that a reasonable man would 
     know what he was doing.


                        International terrorism

       The term ``international terrorism'' is defined in section 
     101(c) of FISA as follows:
       (c) ``International terrorism'' means activities that--
       (1) involve violent acts or acts dangerous to human life 
     that are a violation of the criminal laws of the United 
     States or of any State, or that would be a criminal violation 
     if committed within the jurisdiction of the United States or 
     any State;
       (2) appear to be intended--
       (A) to intimidate or coerce a civilian population;
       (B) to influence the policy of a government by intimidation 
     or coercion; or
       (C) to affect the conduct of a government by assassination 
     or kidnaping; and
       (3) occur totally outside the United States, or transcend 
     national boundaries in terms of the means by which they are 
     accomplished, the persons they appear intended to coerce or 
     intimidate, or the location in which their perpetrators 
     operate or seek asylum.
       Subsection 101(c) of FISA defines the term ``international 
     terrorism'' by requiring three separate aspects of activities 
     to be shown. The first aspect describes the nature of the 
     acts involved in the activity: the activities must involve 
     ``violent acts or acts dangerous to human life'' which are a 
     violation of either State or Federal law, or which, if 
     committed in the United States, would violate either State or 
     Federal law. The violent acts covered by the definition mean 
     both violence to persons and grave or serious violence to 
     property.
       The Congress intends that the property of terrorists and 
     saboteurs acting for foreign powers should be subject to 
     search under this title when they are in the United States, 
     even if the target of their violent acts has been within a 
     foreign country and therefore outside actual Federal or State 
     jurisdiction. This departure from a strict criminal standard 
     is justified by the international responsibility of 
     governments to prevent their territory from being used as a 
     base for launching terrorist attacks against other countries 
     as well as to aid in the apprehension of those who commit 
     such crimes of violence. We demand that other countries live 
     up to this responsibility and it is important that in our 
     legislation we demonstrate a will to do so ourselves.
       The second aspect of this definition relates to the purpose 
     to which the activities are directed. The purpose of the 
     terrorist activities must be either intimidation of the 
     civilian population, the intimidation of national leaders in 
     order to force a significant change in government policy, or 
     the affecting of government conduct by assassination or 
     kidnaping. Examples of activities which in and of themselves 
     would meet these requirements would be: the detonation of 
     bombs in a metropolitan area, the kidnaping of a high-ranking 
     government official, the hijacking of an airplane in a 
     deliberate and articulated effort to force the government to 
     release a certain class of prisoners or to suspend aid to a 
     particular country, the deliberate assassination of persons 
     to strike fear into others to deter them from exercising 
     their rights or the destruction of vital governmental 
     facilities. Of course other violent acts might also satisfy 
     these requirements if the requisite purpose is demonstrated.
       The third aspect of this definition relates to the 
     requirement that the activities be international or foreign 
     in scope. The terrorist activities must occur totally outside 
     the United States or otherwise be international in character. 
     Thus, if a member of the Baader-Meinhof Group or the Japanese 
     Red Army, who has engaged in terrorist acts abroad, comes to 
     the United States, he or she may be immediately placed 
     under surveillance. If the activities have not occurred 
     totally outside the United States, then it must be shown 
     that the activities transcend national boundaries in terms 
     of the means by which they are accomplished, the persons 
     they appear intended to coerce or intimidate, or the 
     locate in which their perpetrators operate or seek asylum. 
     Remembering that this is a definition of ``international 
     terrorism,'' there must be a substantial international 
     character with respect to these considerations. The fact 
     that an airplane is hijacked while flying over Canada 
     between Alaska and Chicago does not itself make the 
     activity international terrorism. A domestic terrorist 
     group which explodes a bomb in the international arrivals 
     area of a U.S. airport, does not by this alone become 
     engaged in international terrorism. However, if a domestic 
     group kidnaps foreign officials in the United States or 
     abroad to affect the conduct of that foreign government 
     this would be international terrorism. Finally, if a 
     domestic terrorist group receives direction or substantial 
     support from a foreign government or a foreign terrorist 
     group, its terrorist activities made possible by that 
     support or conducted in response to that direction could 
     be international terrorism. It is important, however, to 
     recognize that this substantial support or direction must 
     already have been established before a search could be 
     authorized. This definition does not allow search of the 
     property of Americans merely to determine if they are 
     receiving foreign support or direction. Moreover, support 
     is not intended to include moral or vocal support. It must 
     be material, technical, training, or other substantive 
     support, and the support must be of the activities 
     involving terrorist acts, not just general support to a 
     group which may engage in both terrorist activities as 
     well as other lawful activities. Direction means direction 
     and does not mean suggestions.
        Activities parallel to or consistent with the desires of a 
     foreign power do not by themselves satisfy the requirement 
     that the foreign power is directing the group. Finally, the 
     fact that particular members of a domestic group engage in 
     international terrorism does not mean that all members of 
     that group are similarly engaged.


                                Sabotage

       The term ``sabotage'' is defined in section 101(d) of FISA 
     as follows:
       (d) ``Sabotage'' means activities that involve a violation 
     of chapter 105 of title 18, United States Code, or that would 
     involve such a violation if committed against the United 
     States.
        Subsection (d) defines sabotage as activities which 
     involve crimes under chapter 105 of title 18, United States 
     Code, if conducted against the United States. By its terms, 
     chapter 105 makes criminal only acts of sabotage against U.S. 
     Government facilities. The definition of sabotage in this 
     title is expanded to include similar acts when committed 
     against a State or another nation's facilities and materials 
     relating to defense. Thus, sabotage directed against state 
     and local police facilities and equipment, or against the 
     defense facilities of foreign nations, would constitute 
     sabotage under this definition. Of course, a physical search 
     under this title could be undertaken only if such sabotage 
     was knowingly conducted for or on behalf of a ``foreign 
     power'' as defined and the information sought constituted 
     foreign intelligence information as defined. Where persons 
     have knowingly engaged in sabotage of State or foreign 
     facilities for or on behalf of a foreign power, the property 
     of such persons should be subject to physical search in this 
     country for foreign intelligence purposes even in the absence 
     of probable cause to believe that they will engage in 
     sabotage against Federal facilities.


                    Foreign intelligence information

       The primary thrust of this bill is to protect Americans 
     both from improper activities by our intelligence agencies as 
     well as from hostile acts by foreign powers and their agents. 
     Any information which relates to these general security and 
     foreign relations concerns can help protect Americans and 
     their interests from hostile activities of foreign powers. 
     Where this information does not concern U.S. persons, the 
     countervailing privacy considerations militating against 
     seeking such information through physical search are 
     outweighed by the need for the information. Therefore, the 
     definition of foreign intelligence information includes any 
     information relating to these broad security or foreign 
     relations concerns, so long as the information does not 
     concern U.S. persons. Where U.S. persons are involved, the 
     definition is much stricter; it requires that the information 
     be ``necessary'' to these security or foreign relations 
     concerns.
       Where the term ``necessary'' is used, the Congress intends 
     to require more than a showing that the information would be 
     useful or convenient. The Congress intends to require a 
     showing that the information is both important and required. 
     The use of this standard is intended to mandate that a 
     significant need be demonstrated by those seeking the search. 
     For example, it is often contended that a counterintelligence 
     officer or intelligence analyst, if not the policymaker 
     himself, must have every possible bit of information about a 
     subject because it might provide an important piece of the 
     larger picture. In that sense, any information related to the 
     specified purposes might be called ``necessary'' but such a 
     reading is clearly not intended.
       Subparagraph (e)(1)(A) of the FISA definition defines 
     foreign intelligence information as information which relates 
     to, and if concerning a U.S. person, is necessary to, the 
     ability of the United States to protect against actual or 
     potential attack or other grave hostile acts of foreign power 
     or its agents. This category is intended to encompass 
     information which relates to foreign military capabilities 
     and intentions, as well as acts of force or aggression which 
     would have serious adverse consequences to the national 
     security of the United States. The term ``hostile acts'' must 
     be read in the context of the subparagraph which is keyed to 
     actual or potential attack. Thus, only grave types of hostile 
     acts would be envisioned as falling within this provision.
       Subparagraph (e)(1)(B) of the FISA definition includes 
     information which relates to, and if concerning a U.S. 
     person, is necessary to, the ability of the United States to 
     protect itself against sabotage or terrorism by a foreign 
     power or foreign target. It is anticipated that the type of 
     information described in this subparagraph will be the type 
     sought when a physical search is targeted against the type of 
     foreign power defined in section 101(a)(4) of FISA, or 
     against the type of foreign agent defined in section 
     101(b)(2)(C) of FISA.
       Subparagraph (e)(1)(C) of the FISA definition includes 
     information which relates to, and if concerning a U.S. 
     person, is necessary to, the ability of the United States to 
     protect against the clandestine intelligence activities by an 
     intelligence service or network of a foreign power or by a 
     foreign agent. This subparagraph encompasses classic 
     counterintelligence information.
       This subsection is not intended to encompass information 
     sought about political activity by U.S. citizens allegedly 
     necessary to determine the nature and extent of any possible 
     involvement in those activities by the intelligence services 
     of foreign powers. Such a dragnet approach to 
     counterintelligence has been the basis for improper 
     investigations of citizens prior to the enactment of FISA and 
     is not intended to be a permissible avenue of ``foreign 
     intelligence'' collection under this subparagraph. Nor does 
     this subparagraph include efforts to prevent ``newsleaks'' or 
     to prevent publication of such leaked information in the 
     American press, unless there is reason to believe that such 
     leaking or publication is itself being done by an agent of a 
     foreign intelligence service to harm the national security.
       Information about a U.S. person's private affairs is not 
     intended to be included in the meaning of ``foreign 
     intelligence information'' unless it may relate to his 
     activities on behalf of a foreign power. For example, the 
     Government should not seek purely personal information about 
     a U.S. citizen or permanent resident alien, who is a 
     suspected spy, merely to learn something that would be 
     ``compromising.'' This restriction might not be applicable to 
     agents of foreign powers as defined in section 101(b)(1) of 
     FISA, because compromising information about their private 
     lives may itself be foreign intelligence information.
       It should be noted that under paragraph (e)(1) of the FISA 
     definition there is no requirement that the attack, grave 
     hostile act, sabotage, terrorism, or clandestine intelligence 
     activities be directed against the United States in order for 
     information to constitute ``foreign intelligence 
     information,'' as defined. Obviously, armed attacks and 
     similar grave hostile acts against any nation in this 
     interdependent world more often than not directly affect the 
     security and foreign relations of all countries. War in the 
     Mid East or in the Horn of Africa, for example, inevitably 
     involves this nation's security and foreign relations. 
     Sabotage and international terrorism also, even if confined 
     to one foreign country, may indeed affect the interests and 
     security of the United States. The kidnaping of a high 
     official of an allied nation can affect the course of 
     government and security of that nation, thereby affecting 
     this nation's security and foreign relations. Finally, 
     clandestine intelligence activities of one nation directed 
     against another can easily affect this nation. This occurred 
     in West Germany where Soviet spies in the German Defense 
     Ministry compromised NATO secrets, which included American 
     secrets. It can also occur when other nations engage in 
     clandestine intelligence activities against one another in 
     the United States.
       Finally, the term ``foreign intelligence information,'' 
     especially as defined in subparagraphs (e)(1)(B) and 
     (e)(1)(C) of FISA, can include evidence of certain crimes 
     relating to sabotage, international terrorism, or clandestine 
     intelligence activities. With respect to information 
     concerning U.S. persons, foreign intelligence information 
     includes information necessary to protect against clandestine 
     intelligence activities of foreign powers or their agents. 
     Information about a spy's espionage activities obviously is 
     within this definition, and it is most likely at the same 
     time evidence of criminal activities. How this information 
     may be used ``to protect'' against clandestine intelligence 
     activities is not prescribed by the definition of foreign 
     intelligence information, although, of course, how it is used 
     may be affected by minimization procedures, see section 
     410(c) of this title, infra. And no information acquired 
     pursuant to this title could be used for other than lawful 
     purposes, see section 404(a) of this title. Obviously, use of 
     ``foreign intelligence information'' as evidence in a 
     criminal trial is one way the Government can lawfully protect 
     against clandestine intelligence activities, sabotage, and 
     international terrorism. This title, explicitly recognizes 
     that information which is evidence of crimes involving 
     clandestine intelligence activities, sabotage, and 
     international terrorism can be sought, retained, and used 
     pursuant to this title.
       Paragraph (e)(2) of the FISA definition includes 
     information which relates to, and if concerning a U.S. 
     person, is necessary to, (A) the national defense or the 
     security of the Nation or (B) the conduct of the foreign 
     affairs of the United States. This also requires that the 
     information sought involve information with respect to 
     foreign powers or territories, and would therefore not 
     include information about the views or planned statements or 
     activities of Members of Congress, executive branch 
     officials, or private citizens concerning the foreign affairs 
     or national defense of the United States. The information 
     must pertain to a foreign power or foreign territory; and 
     thus it cannot simply be information about a citizen of a 
     foreign country who is visiting the United States unless the 
     information would contribute to meeting intelligence 
     requirements with respect to a foreign power or territory. 
     With these limitations, the Congress believes that the 
     adoption of a ``relates to'' standard would not authorize 
     improper treatment. In this regard, the Congress fully 
     intends that the vigorous exercise of its oversight authority 
     will provide another valuable check.


                            Attorney General

       Subsection 101(g) of FISA defines ``Attorney General'' to 
     mean the Attorney General of the United States (or Acting 
     Attorney General) or the Deputy Attorney General. The Deputy 
     Attorney General is appropriate because, as the second-
     ranking official in the Justice Department, he would most 
     often be the Acting Attorney General in the Attorney 
     General's absence.


                          United States person

       The definition of ``United States person'' in section 
     101(i) of FISA reads as follows:
       (i) ``United States person'' means a citizen of the United 
     States, an alien lawfully admitted for permanent residence 
     (as defined in section 101(a)(20) of the Immigration and 
     Nationality Act), an unincorporated association a substantial 
     number of members of which are citizens of the United States 
     or aliens lawfully admitted for permanent residence, or a 
     corporation which is incorporated in the United States, but 
     does not include a corporation or an association which is a 
     foreign power, as defined in subsection (a)(1), (2), or (3).
       This title is designed to afford primary protection to 
     ``United States persons.'' Thus, minimization is only 
     required with respect to information concerning U.S. persons; 
     the definition of ``foreign intelligence information'' is 
     much broader where non-U.S. persons are involved; and the 
     definition of ``agent of a foreign power'' is broader for 
     non-U.S. persons. Associations or corporations which would 
     otherwise be United States persons are excluded from the 
     definition if they are also within the first three 
     subdefinitions of ``foreign power,'' see section 101(a)(1)-
     (3) of FISA, no matter what their membership or place of 
     incorporation.
       The definition treats as ``United States persons'' groups 
     allegedly engaged in international terrorism, see section 
     101(a)(4) of FISA, and entities allegedly covertly controlled 
     and directed by a foreign government or governments, see 
     section 101(a)(6) of FISA, if they are substantially composed 
     of U.S. citizens or permanent resident aliens or incorporated 
     in the United States, and foreign-based political 
     organizations if they are incorporated in the United States. 
     This does NOT in any way prohibit searches targeted against 
     such associations or corporations if they meet the definition 
     of ``foreign power.'' Where the definition of ``foreign 
     intelligence information'' applies to information 
     concerning such entities, the information must be 
     ``necessary'' to the national security or foreign 
     relations concerns. This is critical where the target of a 
     search is ``an entity directed and controlled by a foreign 
     government or governments,'' see section 101(a)(6) of 
     FISA. Such an entity may be entirely composed of U.S. 
     citizens; it may also be engaged in totally lawful and 
     proper activities. There may be a legitimate need for a 
     search targeted at such an entity where it is directed and 
     controlled by a foreign government or governments, but 
     this non-criminal standard can only be supported so long 
     as such entities, which are either incorporated in the 
     United States or substantially composed of U.S. citizens 
     or permanent resident aliens, are treated as United States 
     persons. The added scrutiny that results from a 
     determination that the information is ``necessary'' is the 
     minimum which can justify such a broad targeting standard 
     with respect to an entity composed of Americans or 
     incorporated in the United States.
       In addition, information concerning entities which are 
     incorporated in the U.S. or which are substantially composed 
     of Americans is subject to minimization even if the entities 
     also might be foreign powers, as defined in section 
     101(a)(4)-(6) FISA. Where a judge has approved the targeting 
     of such an entity and the information sought is necessary, it 
     is not expected that much minimization would be required as 
     to the entity. For instance, if a group of Americans is a 
     group engaged in international terrorism, it is expected that 
     almost all information about the group would be ``necessary'' 
     to the United States to protect against international 
     terrorism. However, a domestic political group might be found 
     by a judge to be covertly directed and controlled by a 
     foreign government, and information concerning that direction 
     and control might be found necessary to protect the United 
     States against clandestine intelligence activities. But that 
     entity might also engage in legitimate political activities 
     not relating to the foreign government's direction and 
     control. In such a circumstance, minimization is both 
     appropriate and important.
       The special protections afforded U.S. persons are not 
     appropriate where an association or corporation is a 
     ``foreign power'' as defined in section 101(a)(1)-(3) of 
     FISA. The entities covered by these subdefinitions are not 
     subject to much doubt. They are all ``official'' foreign 
     powers more likely than not flying a foreign flag outside 
     their door. Thus, there is little opportunity for error or 
     abuse by intelligence agencies.
       The term ``unincorporated association'' in the definition 
     of ``United States person'' is meant to include any group, 
     entity, or organization which is not incorporated under the 
     laws of the United States or of any State. The term 
     ``members'' here, as opposed to its use in section 
     101(b)(1)(A) of FISA, is not intended, of course, to be 
     limited to formal, card-carrying members. For instance, an 
     unincorporated commercial establishment's employees would be 
     members under this definition. The Congress intends the 
     reference to ``a substantial number of members'' to be 
     equivalent to the term ``substantially composed of'' used in 
     parts (2) and (5) of the FISA definition of ``foreign 
     power.'' In both contexts the words ``substantial'' or 
     ``substantially" require that there be a significant 
     proportion, but less than a majority. The judge is expected 
     to take all the known circumstances into account in 
     determining whether an association is a ``United States 
     person.''


                             United States

       The term ``United States'' is a defined as follows in 
     section 101(j) of FISA:
       (j) ``United States,'' when used in a geographic sense, 
     means all areas under the territorial sovereignty of the 
     United States and the Trust Territory of the Pacific Islands.
       As defined, the United States includes all areas under the 
     territorial sovereignty of the United States whether 
     incorporated or not, e.g., Puerto Rico, Guam, the Virgin 
     Islands, and American Samoa. The Trust Territory of the 
     Pacific Islands is not, at this time, under the territorial 
     sovereignty of the United States. It is, however, included in 
     the term ``United States'' for the purposes of this title, so 
     long as it is under the trusteeship of the United States. At 
     such time as all or part of the Trust Territory enters into 
     as Commonwealth relationship with the United States, it is 
     intended that any such part be considered under the 
     territorial sovereignty of the United States. If the 
     trusteeship is ended with parts or all of those islands 
     becoming independent, this title would not apply to those 
     parts.
       The term ``territorial sovereignty'' in the definition does 
     not include U.S. embassies, consulates, military or other 
     U.S. flag vessels outside the United States, etc.; it does 
     include land in the United States occupied by foreign 
     embassies, consulates, missions, etc. Despite the fact that 
     foreign missions are sometimes referred to as being 
     ``extraterritorial,'' all national maintain territorial 
     sovereignty over foreign missions and may expel, as 
     persona non grata, persons therein and condemn the 
     property by right of eminent domain. Military bases and 
     areas under military occupation abroad (e.g., the United 
     States sector in West Berlin) are not under the 
     territorial sovereignty of the United States.
       In this title terms such as ``foreign-based'' and ``foreign 
     territory'' refer to places outside the ``United States,'' as 
     defined here.


                                 Person

       The term person is defined in section 101(m) of FISA to 
     mean any individual, including any officer or employee of the 
     Federal Government, or any group, entity, association 
     corporation, or foreign power. ``Person'' is defined in the 
     broadest sense possible. It is intended to make explicit that 
     entities can be persons, where the term ``person'' is used. 
     For example, while it is expected that most entities would be 
     targeted under the ``foreign power'' standard (which cannot 
     be applied to individuals), it is possible that entities 
     could be targeted under certain of the ``agent of a foreign 
     power'' standards, see section 101(b)(2)(A)-(D) of FISA. 
     Where it is intended that only natural persons are referred 
     to, the term ``individual'' U.S. person or ``individual" 
     person is used.


                                 State

       The term ``State'' is defined in section 101(o) of FISA to 
     mean any State of the United States, the District of 
     Columbia, the Commonwealth of Puerto Rico, the Trust 
     Territory of the Pacific Islands, and any territory or 
     possession of the United States.


                            Physical search

       Section 409(b) of this title defines ``physical search'' to 
     mean any physical intrusion into premises or property 
     (including examination of the interior of property by 
     technical means) or any seizure, reproduction or alteration 
     of information, material or property, under circumstances in 
     which a person has a reasonable expectation of privacy and a 
     warrant would be required for law enforcement purposes, but 
     does not include ``electronic surveillance'' as defined in 
     subsection 101(f) of FISA. The definition expressly includes 
     ``altering'' property so as to ensure that the court is 
     informed and approves of any planned physical alteration of 
     property incidental to a search, e.g., the replacement of a 
     lock so as to conceal the fact of the search.
       This definition is meant to be broadly inclusive, because 
     the effect of including a particular means of search is not 
     to prohibit it but to subject it to the statutory procedures. 
     It is not means, however, to require a court order in any 
     case where a search warrant would not be required in an 
     ordinary criminal context. The provision that ``a warrant 
     would be required for law enforcement purposes'' does not 
     mean that a court must previously have required a warrant for 
     the particular type of search carried out under this title. 
     The techniques involved may not have come before a court for 
     determination as to whether a warrant is required. 
     Nevertheless, the search activity is intended to be covered 
     if a warrant would be required for law enforcement purposes, 
     as determined on the basis of an assessment of the similarity 
     with other activities which the courts have ruled upon, and 
     the reasonableness of the expectation of privacy that a U.S. 
     person would have with respect to such activity.
       In response to questions during the deliberations on FISA, 
     the Department of Justice opined that foreign governments--
     and in some circumstances their diplomatic agents have no 
     fourth amendment rights under the Constitution. By latter of 
     April 19, 1978, from John Harmon, Assistant Attorney General, 
     Office of Legal Counsel, to Chairman Boland of the House 
     Intelligence Committee, the Department of Justice opined that 
     foreign states and their official agents, to the extent that 
     they are not subject to our laws, are not protected by the 
     fourth amendment. Whether the Department of Justice is 
     correct in its opinion, on an issue which has never been 
     addressed by any court, the coverage of the definition of 
     ``physical search'' is not intended--by the use of the words 
     ``a warrant would be required for law enforcement 
     purposes''--to exclude searches merely because they are 
     targeted against an entity or person not entitled to 
     protection under the fourth amendment. Rather, the phrase is 
     intended to exclude only those search activities which would 
     not require a warrant even if a U.S. person were the target. 
     The Congress expects that, if an agency wishes to use a new 
     technique in the United States affecting private information, 
     material or property without consent, it will seek a ruling 
     from the Attorney General as to whether the technique 
     requires a court order. The intelligence committees should be 
     advised of such rulings.
       Law enforcement officials may, if they wish, continue to 
     obtain an ordinary search warrant if the facts and 
     circumstances justify it.


                        Minimization procedures

       The minimization procedures of this title provide vital 
     safeguards because they regulate the acquisition, retention, 
     and dissemination of information about U.S. persons, 
     including persons who are not the authorized targets of a 
     physical search. For example, a document written by an 
     entirely innocent American may be seized in a search targeted 
     for someone else. Or an American may be the sender or 
     recipient of property that is searched because it is in 
     transit to or from an agent of a foreign power or a foreign 
     power. The procedures also protect Americans who are referred 
     to in documents or other information seized or reproduced in 
     a physical search.
       Section 409(C) of this title defines ``minimization 
     procedures,'' with respect to physical search, in three 
     paragraphs that are similar to the definitions of this term 
     in section 101(h) of FISA.
       Paragraph (c)(1) defines ``minimization procedures'' as 
     specific procedures, which shall be adopted by the Attorney 
     General, that are reasonably designed in light of the 
     purposes and techniques of the particular physical search, to 
     minimize the acquisition and retention, and prohibit the 
     dissemination, of nonpublicly available information 
     concerning unconsenting United States persons consistent with 
     the need of the United States to obtain, produce, and 
     disseminate foreign intelligence information.
       The definition begins by stating that the minimization 
     procedures must be specific procedures. This is intended to 
     demonstrate that the definition is not itself a statement of 
     the minimization procedures but rather a general statement of 
     principle which will be given content by the specific 
     procedures which will govern the actual searches. It is also 
     intended to suggest that the actual procedures be as specific 
     as practicable in light of the search technique and its 
     purposes.
       The definition that states that the procedures must be 
     ``reasonably designed in light of the purposes and technique 
     of the particular physical search.'' It is recognized that 
     minimization procedures may have to differ depending on the 
     search technique. For instance, minimization with respect to 
     searches of packages entrusted to couriers would not be 
     comparable to searches involving entry of residential 
     premises.
       The definition of minimization speaks in terms of 
     minimizing acquisition and retention and prohibiting 
     dissemination.
       The Congress recognizes that in some cases it may not be 
     possible or reasonable to avoid acquiring irrelevant 
     information in a physical search. It is recognized that given 
     the nature of intelligence gathering minimizing acquisition 
     should not be as strict as for law enforcement searches. By 
     minimizing retention the Congress intends that information 
     acquired, which is not necessary for obtaining, producing, or 
     disseminating foreign intelligence information, be destroyed 
     where feasible and appropriate, as with copies of 
     photographed or reproduced documents. In certain cases 
     destruction might take place almost immediately, while in 
     other cases the information might be retained for a reason in 
     order to determine whether it did indeed relate to one of the 
     approved purposes. Procedures governing minimization--
     particularly how long information should be retained and how 
     it should be destroyed once it is deemed irrelevant--are 
     normally approved by the court and subject to judicial 
     supervision.
       The Congress recognizes that it may not be feasible to cut 
     and paste documents or other materials where some information 
     is relevant and some is not. Therefore, minimizing retention 
     can also include other measures designed to limit retention 
     of such irrelevant material to an essentially non-usable 
     form.
       The standard for dissemination is higher than for 
     acquisition and retention, but the prohibition on 
     dissemination should be designed to be consistent with the 
     need of the United States to obtain, produce, and disseminate 
     until that determination was made (or would only be 
     disseminated to those who could determine its usefulness). 
     Even with respect to information needed for an approved 
     purpose, dissemination should be restricted to those 
     officials with a need for such information. And, again, the 
     judge, in approving the minimization procedures, could 
     require specific restrictions on the retrieval of such 
     information.
       There are a number of means and techniques which the 
     minimization procedures may require to achieve the purpose 
     set out in the definition. These may include, where 
     appropriate, but are not limited to:
       (A) destruction of unnecessary information acquired;
       (B) provision with respect to what may be filed and on 
     what basis, what may be retrieved and on what basis, and 
     what may be disseminated, to whom and on what basis;
       (C) provision for the deletion of the identity of United 
     States persons where not necessary to assess the importance 
     or understand the information;
       (D) provision relating to the proper authority in 
     particular cases to approve the retention or dissemination of 
     the identity of United States persons;
       (E) provision relating to internal review of the 
     minimization process; and
       (F) provision relating to adequate accounting information 
     concerning United States person used or disseminated.
       Minimization, however, is not required with respect to all 
     information which may be acquired by physical search. First, 
     publicly available information need not be minimized. By 
     publicly available, the Congress means information which in 
     fact is generally available to the public. Such information 
     can include generally published information or information in 
     the public record which is generally available to the public, 
     e.g., statements of incorporation on file in state offices. 
     Also included would be trade names such as a Xerox copier, a 
     Boeing 747, etc. Second, where a person has consented to 
     waive minimization with respect to the acquisition, 
     retention, or dissemination of information about him through 
     physical search, no minimization is required. The Congress 
     intends that this consent be explicit and informed. A general 
     authorization to obtain information about him, such as may be 
     made by a person seeking Government employment, is not 
     sufficient. As here used, consent to waive minimization must 
     be specific with respect to the acquisition, retention, and 
     dissemination of information concerning the person acquired 
     by physical search. There is not, however, any requirement 
     that the person know the time, manner, purpose, or target of 
     any particular search. It is expected that this allowance 
     will be used rarely and then with respect to high ranking 
     Government officials. Obviously, a refusal to consent should 
     not in any sense be held against a person.
       Finally, only information concerning a United States person 
     need be minimized. This includes both documents written by a 
     United States person as well as documents which he has not 
     prepared but which mention him. The Supreme Court has held 
     that persons have no constitutionally protected right of 
     privacy with respect to what others say about them. See 
     ALDERMAN v. UNITED STATES, 394 U.S. 195 (1968). Nevertheless, 
     the Executive Branch in its own procedures has demonstrated 
     that it can minimize retention and prohibit dissemination of 
     such information consistent with legitimate foreign 
     intelligence needs. Recognizing the less substantial privacy 
     interest in such information, however, the ``reasonably 
     designed'' procedures may take account of the differences 
     between information in which persons have a constitutionally 
     protected interest and that in which they do not. Therefore, 
     more flexibility in the procedures may be afforded with 
     respect to information concerning U.S. persons obtained from 
     documents written by others. Of course, information 
     concerning U.S. persons may come in other circumstances where 
     their privacy is invaded; in such situations the person whose 
     property is searched has had his privacy interests invaded 
     and minimization procedures are required.
       Because minimization is only required with respect to 
     information concerning U.S. persons, where materials seized 
     or reproduced are encoded or otherwise not processed, so that 
     the contents are unknown, there is no requirement to minimize 
     the acquisition and retention, or to prohibit the 
     dissemination, of such materials until their contents are 
     known. Nevertheless, the minimization procedures can be 
     structured to apply to other agencies of Government, so that 
     if any agency different from the searching agency decodes or 
     processes the materials, it could be required to minimize the 
     retention and dissemination of information therein concerning 
     U.S. persons.
       It is recognized that writers of documents are unlikely to 
     state that they are or are not U.S. persons. Intelligence 
     officers and analysts therefore must use their judgment as to 
     when the procedures apply. While not suggesting that the 
     procedures require the following, as a general rule, persons 
     in the United States might be presumed to be U.S. persons 
     unless there is some reason to believe otherwise. The 
     Congress does not intend or expect, however, that 
     intelligence officers will destroy possibly meaningful 
     information merely because there is a question whether a 
     person is a U.S. person.
       The definition states that minimization procedures must 
     minimize acquisition and retention, and prohibit 
     dissemination, of information subject to minimization 
     ``consistent with the need of the United States to obtain 
     produce, and disseminate foreign intelligence 
     information.''
       ``Foreign intelligence information'' is, of course, a 
     defined term, with respect to U.S. persons, it must be 
     ``necessary'' to the listed security and foreign relations 
     purposes. However, the definition of ``minimization 
     procedures'' does not state that only ``foreign intelligence 
     information'' can be acquired, retained, or disseminated. The 
     Congress recognizes full well that bits and pieces of 
     information, which taken together could not possibly be 
     considered ``necessary,'' may together or over time take on 
     significance and become ``necessary.'' Nothing in this 
     definition is intended to forbid the retention or even 
     limited dissemination of such bits and pieces before their 
     full significance becomes apparent.
       An example would be where the Government conducts a 
     surreptitious entry to photograph papers and effects of a 
     known spy, who is a U.S. person. It is ``necessary'' to 
     identify anyone working with him in his network, feeding him 
     his information, or to whom he reports. Therefore, it is 
     necessary to acquire, retain and disseminate information 
     concerning all his contacts and acquaintances and movements. 
     Among his contacts and acquaintances, however, there are 
     likely to be a large number of innocent persons. Yet, 
     information concerning these persons must be retained at 
     least until it is determined that they are not involved in 
     the clandestine intelligence activities and may have to be 
     disseminated in order to determine their innocence. Where 
     after a reasonable period of time, which may in fact be an 
     extended period of time, there is no reason to believe such 
     persons are involved in the clandestine intelligence 
     activities, there should be some effort, for example, either 
     to destroy the information concerning such persons, or seal 
     the file so that it is not normally available, or to make the 
     file not retrievable by the name of the innocent person. It 
     is recognized that the failure to gather further 
     incriminating information concerning the contacts or 
     acquaintances of the spy does not necessarily mean they are 
     in fact innocent--instead, they may merely be very 
     sophisticated and well-versed in their espionage tradecraft. 
     Therefore, for an extended period it may be necessary to have 
     information concerning such acquaintances, for an 
     investigation of another spy may indicate the same 
     acquaintance, which may justify more intensive scrutiny of 
     him, which then may result in breaking his cover. (It bears 
     repeating that physical search could not be targeted against 
     such acquaintances until it could be shown that they were in 
     fact agents of foreign powers, as defined.)
       It is disconcerting to some that mere association with an 
     alleged spy may be enough to cast suspicion on a person such 
     that his innocence must be established. It seems 
     contradictory to one of our basic tenets that a person is 
     presumed innocent in the eyes of the law until proven guilty. 
     However, in intelligence as in law enforcement, leads must be 
     followed. Especially in counterintelligence cases where often 
     trained professional foreign intelligence personnel are 
     involved, a lead which initially ends in a ``dry hole'' can 
     hardly be considered a dead issue, although it may be 
     temporarily shelved to divert limited resources to other 
     leads. Therefore, this Congress intends that a significant 
     degree of latitude be given in counterintelligence and 
     counterterrorism cases with respect to the retention of 
     information and the dissemination of information between and 
     among counterintelligence components of the Government.
       On the other hand, given this degree of latitude the 
     Congress believes it imperative that with respect to 
     information concerning U.S. persons which is retained as 
     necessary for counterintelligence or counterterrorism 
     purposes, rigorous and strict controls be placed on the 
     retrieval of such identifiable information and its 
     dissemination or use for purposes other than 
     counterintelligence of counterterrorism.
       In this regard, it is important to note two points 
     governing dissemination. First, the procedures should 
     recognize that use within an agency may be subject to 
     minimization. Many agencies have widely disparate functions 
     themselves, or are subordinate elements of departments which 
     have functions totally unrelated to intelligence. It is the 
     intent of the commit that use within an agency is potentially 
     subject to minimization. While restrictions on use within an 
     agency need not necessarily be the same as the restrictions 
     on interagency dissemination, it is clear that some controls 
     on interagency use are appropriate.
       Second, some might consider that any derogatory information 
     concerning a person holding a security clearance or 
     concerning a person who in the future might be considered for 
     a security clearance would be information disseminable as 
     being for ``counterintelligence'' purposes. This is not 
     intended. The latitude the Congress intends to afford 
     counterintelligence components with respect to retention and 
     dissemination between them of information for 
     counterintelligence and counterterrorism purposes is not 
     designed or intended to allow the same latitude for general 
     personnel security purposes.
       Where the purpose of a search is not counterintelligence or 
     counterterrorism, there is not the same compelling need for 
     latitude in the retention of information concerning U.S. 
     persons.
        One of the results of minimizing retention and 
     dissemination under this title is that some information will 
     be destroyed, retained in a non-identifiable manner, or 
     sealed in a manner to prevent dissemination. Although there 
     may be cases in which information acquired from a physical 
     search for foreign intelligence purposes will be used as 
     evidence of a crime, these cases are expected to be 
     relatively few in number, unlike searches in criminal 
     investigations the very purpose of which is to obtain 
     evidence of criminal activity. In light of the relatively few 
     cases in which information acquired under this title may be 
     used as evidence, the better practice is to allow the 
     destruction of information that is not foreign intelligence 
     information or evidence of criminal activity. This course 
     will safeguard the privacy of individuals more effectively, 
     insuring that irrelevant information will not be filed. The 
     Congress believes that existing criminal statutes relating to 
     obstruction of justice will deter any efforts to tamper with 
     evidence acquired under this chapter. Such destruction should 
     occur, of course, only pursuant to the minimization 
     procedures.
       Destruction insures that the information cannot be used to 
     ``taint'' a civil or criminal proceeding; accordingly, there 
     is no requirement to index information which is destroyed or 
     otherwise not used or disseminated.
       The definition of minimization procedures states that the 
     Attorney General shall adopt appropriate procedures. In most 
     cases, of course, these procedures will be reviewed and 
     approved, modified, or disapproved by the judge approving the 
     physical search. In those cases where no warrant is required, 
     no judge will review the procedures, and it is important that 
     it is the Attorney general, as the chief law enforcement 
     officer, who ultimately approves them. It is expected that 
     the procedures adopted by the Attorney general will have been 
     thoroughly coordinated with the affected agencies in the 
     executive branch.
       On the basis of the experience under FISA, the Congress 
     recognizes that administrative need for minimization 
     procedures to be as uniform as possible. This does not mean, 
     however, that judges should not fully scrutinize proposed 
     minimization procedures just because the same procedures have 
     been approved by another judge in another case. Not only 
     might the earlier judge have overlooked something, but also 
     it is critical to determine at least that factors militating 
     in favor of uniformity are not outweighed by other 
     considerations. For instance, the Congress expects that 
     minimization procedures for searches of the property 
     individuals would be more strict than those for searches of 
     the property of foreign powers. If the judge believes a 
     modification is called for, he should require it. If the 
     Government finds the change unacceptable, it may, of course, 
     appeal the decision to the special Court of Review.
       Paragraph (2) of the definition requires that all 
     minimization procedures contain a requirement that any 
     information which is not foreign intelligence information as 
     defined in section 101(e)(1) of FISA not be disseminated in a 
     manner which identifies an individual United States person, 
     without his consent, unless the identity is necessary to 
     understand such foreign intelligence information or assess 
     its importance. The purpose of this special dissemination 
     standard is to protect United States persons from 
     dissemination of information which identifies them in those 
     areas where the Government's need for their identity is least 
     established. The adjectival use of the name of a United 
     States person entity, such as the brand name of a product, is 
     not restricted by this provision because such information is 
     publicly available.
       Two exceptions are allowed to the prohibition on 
     dissemination in paragraph (2). The first allows 
     dissemination where a U.S. person's identity is ``necessary 
     to understand'' foreign intelligence information. The 
     person's identity must be needed to make the information 
     fully intelligible. If the information can be understood 
     without identifying the U.S. person, it should be 
     disseminated that way. However, sometimes it might be 
     difficult or impossible to make sense out of the information 
     without a U.S. person's identity. The second exception allows 
     dissemination where a U.S. person's identity is necessary to 
     ``assess [the] importance'' of foreign intelligence 
     information. The word ``importance'' means important in terms 
     of the interests set out in the definition of foreign 
     intelligence information. ``Necessary'' does not mean that 
     the identity must be essential to understand the information 
     or assess its importance. The word necessary requires that a 
     knowledgeable intelligence analyst make a determination that 
     the identity will contribute in a meaningful way to the 
     ability of the recipient of the information to understand 
     the information or assess its importance.
       Paragraph (3) of the definition allows retention and 
     dissemination information which is evidence of a crime which 
     has been, or is being, or is about to be committed and that 
     is to be retained or disseminated for law enforcement 
     purposes. As noted above, see section 101(e) of FISA, 
     evidence of certain crimes like espionage would itself 
     constitute ``foreign intelligence information,'' as defined, 
     because it is necessary to protect against clandestine 
     intelligence activities by foreign powers or their agents. 
     Similarly, much information concerning international 
     terrorism would likewise constitute evidence of crimes and 
     also be ``foreign intelligence information,'' as defined. 
     This paragraph does not relate to information, even though it 
     constitutes evidence of a crime, which is also needed by the 
     United States in order to obtain, produce or disseminate 
     foreign intelligence information. Rather, this paragraph 
     applies to evidence of crimes which otherwise would have to 
     be minimized because it was not needed to obtain, produce, or 
     disseminate foreign intelligence information. For example, in 
     the course of a search evidence of a serious crime totally 
     unrelated to intelligence matters might be incidentally 
     acquired. Such evidence should not be required to be 
     destroyed. Where the information is not foreign intelligence 
     information, however, retention and dissemination of such 
     evidence is allowed only for law enforcement purposes. Such 
     purposes include arrest, prosecution, and other law 
     enforcement measures taken for the purpose of preventing the 
     crime. Thus, this paragraph is not a loophole by which the 
     Government can generally keep and disseminate derogatory 
     information about individuals which may be a technical 
     violation of law, where there is no intent actually to 
     enforce the criminal law. On the other hand, where the 
     evidence also constitutes ``foreign intelligence 
     information,'' as defined, this paragraph does not apply, and 
     the information may be disseminated and used for purposes 
     other than enforcing the criminal law.


                            Aggrieved person

       Section 409(d) of this title defines ``aggrieved person'' 
     to mean a person whose premises, property, information, or 
     material is the target of physical search or any other person 
     whose premises, property, information, or material was 
     subject to physical search. As defined, the term is intended 
     to be coextensive, but no broader than, those persons who 
     have standing to raise claims under the Fourth Amendment with 
     respect to physical search.


                Foreign Intelligence Surveillance Court

       Section 409(e) of this title defines ``Foreign Intelligence 
     Surveillance Court'' to mean the court established by section 
     103(a) of FISA, which provides that the Chief Justice of the 
     United States shall publicly designate seven district court 
     judges from seven of the United States judicial circuits who 
     shall constitute a court which shall have jurisdiction to 
     hear applications for and grant orders approving electronic 
     surveillance anywhere within the United States under the 
     procedures set forth in this Act. Pursuant to section 103(d) 
     of FISA, each judge designated under this section shall so 
     serve for a maximum of seven years and shall not be eligible 
     for redesignation, except that the first judges designated 
     under subsection (a) were to be designated for terms of from 
     one to seven years so that one term expired each year. As a 
     result, there has been a regular annual rotation of at least 
     one new judge onto the Foreign Intelligence Surveillance 
     Court since 1979.
       The legislative history of FISA established the intent of 
     Congress that the court shall sit continuously in the 
     District of Columbia, that the designated judges shall serve 
     by rotation determined by the Chief Justice, that they may be 
     assigned to other judicial duties in the District of Columbia 
     which are not inconsistent with their duties under this Act, 
     and that more than one judge shall be available at all times 
     to perform the duties required by this Act. The Chief Justice 
     is expected to consult with the chief of judges of the 
     judicial circuits in making designations of judges under 
     section 103 of FISA.
       The FISA legislative history also stated that staffing of 
     the court with at least one judge from each circuit would 
     provide geographical diversity, and bringing the chief judges 
     into the selection process would promote ideological balance. 
     Requiring the special court to sit continuously in the 
     District of Columbia would facilitate necessary security 
     procedures and, by ensuring that at least one judge is always 
     available, would ensure speedy access to it by the Attorney 
     General when timeliness is essential for intelligence 
     purposes. It was anticipated that only one or two judges 
     would be in Washington, on a rotating basis, at any given 
     time. Such a procedure would minimize judge shopping and 
     would make it unlikely that an application for an order for 
     the same target would be heard by the same judge who granted 
     the earlier order for that target.


                            Court of Review

       Section 409(f) defines ``Court of Review'' to mean the 
     court established by section 103(b) of FISA, which provides 
     that the Chief Justice shall publicly designate three judges, 
     one of whom shall be publicly designated as the presiding 
     judge, from the United States district courts or courts of 
     appeals who together shall comprise a court of review which 
     shall have jurisdiction to review the denial of any 
     application made under this Act. Pursuant to section 103(d) 
     of FISA, judges designated under subsection (b) shall so 
     serve for a maximum of seven years and shall not be eligible 
     for redesignation. The judges first designated under 
     subsection (b) were to be designated for terms of three, 
     five, and seven years.
       The FISA legislative history stated that the Chief Justice 
     is expected to consult with the chief judges of the judicial 
     circuits in making these designations. There is no 
     requirement that the special court of review sit continuously 
     as it is anticipated that the exercise of its functions will 
     be rare.


                             EFFECTIVE DATE

       Section 410 of this title states that the provisions of 
     this title shall become effective 90 days after the date of 
     enactment of this title, except that any physical search 
     approved by the Attorney General to gather foreign 
     intelligence information shall not be deemed unlawful for 
     failure to follow the procedures of this title, if that 
     search is conducted within 180 days following the date of 
     enactment of this title pursuant to regulations issued by the 
     Attorney general, which are in the possession of the Select 
     Committee on Intelligence of the Senate and the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives prior to the date of enactment.
       This provision allows some flexibility in the timing of 
     implementation of the statutory physical search procedures. 
     The Congress intends that the Attorney General shall begin 
     making applications for orders under this title and the court 
     may grant such orders as soon as practicable after the 
     effective date of this title. Prior to the first application, 
     U.S. intelligence officers may conduct physical searches 
     under the Executive branch procedures previously in effect. 
     The Congress intends that after the Attorney General makes 
     the first application to the court under this title, no 
     subsequent physical search which requires a court order under 
     this title shall be approved by the Attorney General without 
     a court order. Searches approved by the Attorney General 
     prior to that date, but not yet conducted, may be carried out 
     so long as they occur within 180 days of enactment.

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