[Congressional Record Volume 152, Number 34 (Thursday, March 16, 2006)]
[Senate]
[Pages S2340-S2344]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 2453. A bill to establish procedures for the review of electronic 
surveillance programs; to the Committee on the Judiciary.
  Mr. SPECTER. Mr. President, I seek recognition today to introduce a 
bill to regulate electronic surveillance programs designed to gather 
intelligence for national security purposes.
  On Friday, December 16, 2005, the New York Times reported that in 
late 2001, President Bush signed a highly classified directive that 
authorized the National Security Agency to intercept communications 
between people inside the United States and terrorism suspects 
overseas. And so the debate began. Did the President have the authority 
to authorize this program? Did it violate the Foreign Intelligence 
Surveillance Act--or FISA? Had Congress independently granted the 
President this authority? Did he have these inherent powers under the 
Constitution? Lawyers and laymen throughout our country have debated 
the issue. The Senate Judiciary Committee initiated two hearings on the 
legality of the NSA program and, pursuant to our oversight function, 
brought in Attorney General Alberto Gonzales and seven leading scholars 
and experts to testify. After questioning General Gonzales for some 7 
hours, and the panel of scholars for hours more, we were still left 
troubled by two competing concerns.
  On the one hand, we are a Nation at war. On September 11 we suffered 
the worst attack on civilians in our country's history by an enemy like 
none we had faced before. The more we learn about this enemy, the more 
we learn about a cruel and brutal opponent who will stop at nothing to 
terrorize and harm our country. This is an enemy that knows no honor. 
It seeks to inflict ever-escalating violence on defenseless civilians. 
This is an enemy that knows no mercy. It beheads innocent aid workers 
and journalists and proudly broadcasts these murders for the world to 
see. This is an enemy that knows no bounds of decency. It recruits 
women and children to strap bombs to their bodies and blow themselves 
up, knowing that American soldiers are likely to come close to help 
them. This is an enemy that is patient. It infiltrates our borders and 
waits quietly for an opportunity to attack. Most frighteningly, this is 
an enemy that is capable. It roams the globe, organizing terrorist 
cells along its path. It has the ability to master and exploit modem 
technology and organize attacks on America from anywhere on the globe.

  On the other hand, we are a Nation that believes in the rule of law. 
We are a people that hold dear the rights and liberties enshrined in 
our Constitution. Although we recognize the threat we face, we are not 
willing to sacrifice our rights and live in a state of perpetual fear. 
Our enemy is the enemy of freedom, and we will not give that enemy the 
satisfaction of making us give up the very freedom we cherish.
  The question remains, what is a society like ours to do?
  I do not agree with those who contend that the current FISA law is 
just fine. When the FISA bill was enacted in 1978, we faced a very 
different enemy. That enemy did not attack on our soil; that enemy was 
organized into nation states that we could negotiate with; that enemy 
did not use terrorist tactics on our civilian population. And in 1978, 
we were grappling with very different technologies. We were worried 
about telephone and telegraphs, not e-mail, cell phones, handheld 
computers, and Internet chat rooms. Accordingly, the Congress passed a 
law in 1978 that required case-by-case warrants; warrants that 
identified individual persons and places; warrants a lot like those a 
prosecutor would seek in a routine criminal investigation. These case-
by-case warrants, however, simply may not be sufficient today, when we 
are in a time of war and we need to track an amorphous enemy that moves 
quickly and is often able to evade detection.
  At the same time, I do not agree with those who insist that we are 
facing an entirely new situation, and that the checks and balances our 
nation has long embraced are now outdated. I think these advocates are 
wrong when they insist that the best we can do is to give the Executive 
Branch a blank check and hope that it will do the right thing.
  I believe that there is a middle ground. I believe it is possible to 
provide the President with the flexibility and secrecy he needs to 
track terrorists, while providing for meaningful supervision outside of 
the Executive Branch. It may be surprising to some, but I think we can 
get some insight from, of all places, a Senate hearing.
  Let's step back and survey the situation. The country had recently 
discovered that the NSA had secretly worked with major communication 
companies for years. We learned that initially the program focused on 
certain foreign targets, but it grew to cover communications from U.S. 
citizens. Amid accusations that the President had violated the 
Constitution and Federal statute, a Senate Committee called the 
Attorney General to testify and address the ``serious legal and 
constitutional questions . . . raised by the program.''
  If this sounds familiar, it should. It is what took place in November 
1975, when the nation discovered a secret NSA program to monitor 
telegraph messages, and a special Senate Committee called Attorney 
General Edward Levi to testify.
  That hearing, like the hearing the Senate Judiciary Committee held 
last week, elicited discussions on the importance of preserving civil 
liberties and upholding the Bill of Rights, and the need to protect 
national security and preserve secrecy in foreign intelligence. That 
hearing also elicited a possible solution.
  During his testimony to the Church Committee on U.S. Intelligence 
Activities, Attorney General Levi suggested that one method for 
granting the President the needed flexibility, while maintaining 
supervision by the courts, was to give a special court the power to 
issue broader, program-wide warrants. Attorney General Levi reasoned 
that for programs ``designed to gather foreign-intelligence information 
essential to the security of the Nation,'' the court should have the 
power to approve

[[Page S2341]]

a ``program of surveillance.'' He explained that the traditional 
warrant procedure works only when surveillance ``involves a particular 
target location or individual at a specific time.'' While this 
procedure was fine for routine, criminal investigations, the Nation 
needed a different solution for enemies that require ``virtually 
continuous surveillance, which by its nature does not have specifically 
predetermined targets.'' Attorney General Levi suggested that in 
approving a surveillance plan, the court should determine whether the 
program ``strikes a reasonable balance between the government's need 
for the information and the protection of individuals' rights.''
  Unfortunately, we did not follow Attorney General Levi's suggestion. 
It is not too late to do so, however. The National Security 
Surveillance Act of 2006 seeks to pick up where the Congress of 1978 
left off.
  I believe that the National Security Surveillance Act sets forth 
workable and effective procedures for the FISA Court to evaluate 
surveillance programs. Its procedures, in fact, are very similar to 
those Attorney General Levi advocated thirty years ago.
  First, in order to continue the NSA program, or any similar programs, 
the Attorney General must apply to the FISA court for permission to 
initiate a surveillance program and then seek re-authorization of that 
program every 45 days. The Attorney General must explain his legal 
basis for concluding that the surveillance program is constitutional. 
He must also provide a good deal of information to the court. He must: 
identify or describe the foreign country or terrorist group he seeks to 
monitor; provide enough facts to indicate one of the parties on the 
line is a member of that foreign country or terrorist group or has had 
communications with it; identify the steps he is taking to make sure 
that innocent Americans are not being swept into the surveillance 
program; determine that at least one of the parties is in the U. S.; 
estimate the number of communications to be monitored; and provide data 
so the FISA court can evaluate the program, including information on 
how long the program has existed and what type of intelligence it has 
uncovered.
  The Attorney General should feel no concern in sharing information 
about the program with the FISA court. The FISA court has proven that 
it is capable of maintaining the secrecy with which it has been charged 
and that it possesses the requisite expertise and discretion for 
adjudicating sensitive issues of national security.
  The FISA court must then determine whether approving the program is 
consistent with the U.S. Constitution. It must also balance the 
interests at stake and decide whether to approve the program. 
Specifically, the court must: determine whether probable cause exists 
to authorize the surveillance; evaluate whether historically the 
government has implemented the electronic surveillance program in 
accordance with its proposals; determine that at least one of the 
participants to the electronic communication is a member of the foreign 
country or terrorist group that the Attorney General has identified; 
consider the privacy costs of the program as measured by the number of 
communications subjected to the electronic surveillance program, the 
length of time the electronic surveillance program has been in 
existence, and the effectiveness of the minimization procedures; and 
consider the benefits of the program as measured by the intelligence 
information obtained or the number of plots uncovered or cells 
disrupted.
  The Attorney General must resubmit the program to the FISA court 
every 45 days. In the event the FISA court refuses to approve the 
electronic surveillance program, that does not end the matter. The 
Attorney General may modify the program and then submit a new 
application, until the FISA court concludes that the program satisfies 
the Constitution and the standards set forth in this bill. In the 
alternative, the Attorney General may conclude that implementing an 
amended program is inappropriate in light of the FISA court's concerns. 
The FISA court would itself be required to notify Congress of its 
decision with respect to the proffered program's constitutionality. 
Finally, the bill requires the Attorney General to submit information 
on the program's scope and effectiveness to the Chairman and Ranking 
Member of the Senate and House Intelligence Committees every 6 months.
  In the case at hand, the Attorney General would be required to 
justify the NSA surveillance program to the FISA court, which would, in 
turn, determine whether the program met all constitutional and legal 
requirements. The court would be required to consider, for example, 
whether members of Al Qaeda were appropriately targeted, whether proper 
minimization techniques were being followed, and whether the program 
satisfied the demands of the Fourth Amendment.
  There are those who will say that we should not act. That currently, 
things are fine. I would remind my colleagues that our enemies are not 
so content to sit still. A country that does not understand that our 
enemy has changed since the 1970s will come to regret it. And a 
Congress that pauses when it should act, denies its duty to adapt to 
the enemy we currently face. But, ultimately, the enemies of democracy 
win when civil liberties are lost. We must maintain our democracy and 
defeat our enemies.
  This legislation does both and I urge my colleagues to support it.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 2453

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Security 
     Surveillance Act of 2006''.

     SEC. 2. FINDINGS.

       Congress finds the following:
       (1) After the terrorist attacks of September 11, 2001, 
     President Bush authorized the National Security Agency to 
     intercept communications between people inside the United 
     States, including American citizens, and terrorism suspects 
     overseas.
       (2) One of the lessons learned from September 11, 2001, is 
     that the enemies who seek to greatly harm and terrorize our 
     Nation utilize technologies and techniques that defy 
     conventional law enforcement practices.
       (3) The Commander in Chief requires the ability and means 
     to detect and track an enemy that can master and exploit 
     modern technology.
       (4) Although it is essential that the President have all 
     necessary means to protect us against our enemies, it is 
     equally essential that, in doing so, the President does not 
     compromise the very civil liberties that the President seeks 
     to safeguard. As Justice Hugo Black observed, ``The 
     President's power, if any, to issue [an] order must stem 
     either from an Act of Congress or from the Constitution 
     itself.''. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 
     579, 585 (1952) (opinion by Black, J.).
       (5) In 2004, Justice Sandra Day O'Connor explained in her 
     plurality opinion for the Supreme Court in Hamdi v. Rumsfeld: 
     ``We have long since made clear that a state of war is not a 
     blank check for the President when it comes to the rights of 
     the Nation's citizens. Youngstown Sheet & Tube, 343 U.S., at 
     587, 72 S.Ct. 863. Whatever power the United States 
     Constitution envisions for the Executive in its exchanges 
     with other nations or with enemy organizations in times of 
     conflict, it most assuredly envisions a role for all three 
     branches when individual liberties are at stake.''. Hamdi v. 
     Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted).
       (6) Similarly, as Justice Jackson famously observed in his 
     Youngstown concurrence: ``When the President acts pursuant to 
     an express or implied authorization of Congress, his 
     authority is at its maximum, for it includes all that he 
     possesses in his own right plus all that Congress can 
     delegate . . . . When the President acts in absence of either 
     a congressional grant or denial of authority, he can only 
     rely upon his own independent powers, but there is a zone of 
     twilight in which he and Congress may have concurrent 
     authority, or in which its distribution is uncertain. 
     Therefore, congressional inertia, indifference or quiescence 
     may sometimes, at least as a practical matter, enable, if not 
     invite, measures on independent presidential responsibility . 
     . . When the President takes measures incompatible with the 
     expressed or implied will of Congress, his power is at its 
     lowest ebb, for then he can rely only upon his own 
     constitutional powers minus any constitutional powers of 
     Congress over the matter. Courts can sustain exclusive 
     Presidential control in such a case only by disabling the 
     Congress from acting upon the subject.''. Youngstown Sheet 
     & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) 
     (Jackson, J., concurring).
       (7) The Constitution provides Congress with broad powers of 
     oversight over national security and foreign policy, under 
     article I, section 8 of the Constitution of the United 
     States, which confers on Congress numerous powers, including 
     the powers--
       (A) ``To declare War, grant Letters of Marque and Reprisal, 
     and make Rules concerning Captures on Land and Water'';

[[Page S2342]]

       (B) ``To raise and support Armies'';
       (C) ``To provide and maintain a Navy'';
       (D) ``To make Rules for the Government and Regulation of 
     the land and naval Forces'';
       (E) ``To provide for calling forth the Militia to execute 
     the Laws of the Union, suppress Insurrections and repel 
     Invasions''; and
       (F) ``To provide for organizing, arming, and disciplining 
     the Militia, and for governing such Part of them as may be 
     employed in the Service of the United States''.
       (8) It is in our Nation's best interest for Congress to use 
     its oversight power to establish a system to ensure that 
     electronic surveillance programs do not infringe on the 
     constitutional rights of Americans, while at the same time 
     making sure that the President has all the powers and means 
     necessary to detect and track our enemies.
       (9) While Attorney General Alberto Gonzales explained that 
     the executive branch reviews the electronic surveillance 
     program of the National Security Agency every 45 days to 
     ensure that the program is not overly broad, it is the belief 
     of Congress that approval and supervision of electronic 
     surveillance programs should be conducted outside of the 
     executive branch, by the Article III court established under 
     section 103 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1803). It is also the belief of Congress that 
     it is appropriate for an Article III court to pass upon the 
     constitutionality of electronic surveillance programs that 
     may implicate the rights of Americans.
       (10) The Foreign Intelligence Surveillance Court is the 
     proper court to approve and supervise classified electronic 
     surveillance programs because it is adept at maintaining the 
     secrecy with which it was charged and it possesses the 
     requisite expertise and discretion for adjudicating sensitive 
     issues of national security.
       (11) In 1975, then-Attorney General Edward Levi, a strong 
     defender of executive authority, testified that in times of 
     conflict, the President needs the power to conduct long-range 
     electronic surveillance and that a foreign intelligence 
     surveillance court should be empowered to issue special 
     warrants in these circumstances.
       (12) This Act clarifies and definitively establishes that 
     the Foreign Intelligence Surveillance Court has the authority 
     to review electronic surveillance programs and pass upon 
     their constitutionality. Such authority is consistent with 
     well-established, longstanding practices.
       (13) The Foreign Intelligence Surveillance Court already 
     has broad authority to approve surveillance of members of 
     international conspiracies, in addition to granting warrants 
     for surveillance of a particular individual under sections 
     104, 105, and 402 of the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1804, 1805, and 1842).
       (14) Prosecutors have significant flexibility in 
     investigating domestic conspiracy cases. Courts have held 
     that flexible warrants comply with the fourth amendment to 
     the Constitution of the United States when they relate to 
     complex, far reaching, and multi-faceted criminal enterprises 
     like drug conspiracies and money laundering rings. The courts 
     recognize that applications for search warrants must be 
     judged in a common sense and realistic fashion, and the 
     courts permit broad warrant language where, due to the nature 
     and circumstances of the investigation and the criminal 
     organization, more precise descriptions are not feasible.
       (15) Federal agents investigating international terrorism 
     by foreign enemies are entitled to tools at least as broad as 
     those used by Federal agents investigating domestic crimes by 
     United States citizens. The Supreme Court, in the ``Keith 
     Case'', United States v. United States District Court for the 
     Eastern District of Michigan, 407 U.S. 297 (1972), recognized 
     that the standards and procedures used to fight ordinary 
     crime may not be applicable to cases involving national 
     security. The Court recognized that national ``security 
     surveillance may involve different policy and practical 
     considerations from the surveillance of ordinary crime'' and 
     that courts should be more flexible in issuing warrants in 
     national security cases. United States v. United States 
     District Court for the Eastern District of Michigan, 407 U.S. 
     297, 322 (1972).
       (16) By authorizing the Foreign Intelligence Surveillance 
     Court to review electronic surveillance programs, Congress 
     preserves the ability of the Commander in Chief to use the 
     necessary means to guard our national security, while also 
     protecting the civil liberties and constitutional rights that 
     we cherish.

     SEC. 3. DEFINITIONS.

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

                  ``TITLE VII--ELECTRONIC SURVEILLANCE

     ``SEC. 701. DEFINITIONS.

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

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

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

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

       ``(a) In General.--The Foreign Intelligence Surveillance 
     Court shall have jurisdiction to issue an order under this 
     title, lasting not longer than 45 days, that authorizes an 
     electronic surveillance program to obtain foreign 
     intelligence information or to protect against international 
     terrorism or clandestine intelligence activities.
       ``(b) Reauthorization.--In order to continue an electronic 
     surveillance program after the time period described in 
     subsection (a), the Attorney General shall submit a new 
     application under section 703. There shall be no limit on the 
     number of times the Attorney General may seek approval of an 
     electronic surveillance program.
       ``(c) Modifications and Appeal in Event Application Is 
     Denied.--
       ``(1) In general.--In the event that the Foreign 
     Intelligence Surveillance Court refuses to approve an 
     application under subsection (a), the court shall state its 
     reasons in a written opinion.
       ``(2) Opinion.--The court shall submit a written opinion 
     described in paragraph (1) to the Attorney General and to 
     each member of the congressional intelligence committees (or 
     any subcommittee thereof designated for oversight of 
     electronic surveillance programs under this title).
       ``(3) Resubmission or appeal.--The Attorney General shall 
     be permitted to submit a new application under section 703 
     for the electronic surveillance program, reflecting 
     modifications to address the concerns set forth in the 
     written opinion of the Foreign Intelligence Surveillance 
     Court. There shall be no limit on the number of times the 
     Attorney General may seek approval of an electronic 
     surveillance program. Alternatively, the Attorney General 
     shall be permitted to appeal the decision of the Foreign 
     Intelligence Surveillance Court to the Foreign Intelligence 
     Surveillance Court of Review.
       ``(d) Communications Subject to This Title.--
       ``(1) In general.--The provisions of this title requiring 
     authorization by the Foreign Intelligence Surveillance Court 
     apply only to interception of the substance of electronic 
     communications sent by, received by, or intended to be 
     received by a person who is in the United States, where there 
     is a reasonable possibility that a participant in the 
     communication has a reasonable expectation of privacy.
       ``(2) Exclusion.--The provisions of this title requiring 
     authorization by the Foreign Intelligence Surveillance Court 
     do not apply

[[Page S2343]]

     to information identifying the sender, origin, or recipient 
     of the electronic communication or the date or time of its 
     transmission that is obtained without review of the substance 
     of the electronic communication.
       ``(e) Existing Programs Subject to This Title.--
       ``(1) In general.--The Attorney General shall submit an 
     application to the Foreign Intelligence Surveillance Court 
     for any electronic surveillance program to obtain foreign 
     intelligence information or to protect against international 
     terrorism or clandestine intelligence activities.
       ``(2) Existing programs.--Not later than 45 days after the 
     date of enactment of this title, the Attorney General shall 
     submit an application under this title for approval of the 
     electronic surveillance program sometimes referred to as the 
     `Terrorist Surveillance Program' and discussed by the 
     Attorney General before the Committee on the Judiciary of the 
     United States Senate on February 6, 2006. Not later than 120 
     days after the date of enactment of this title, the Attorney 
     General shall submit applications under this title for 
     approval of any other electronic surveillance program in 
     existence on the date of enactment of this title that has not 
     been submitted to the Foreign Intelligence Surveillance 
     Court.''.

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

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

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

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

     SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

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

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

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

     SEC. 7. CONGRESSIONAL OVERSIGHT.

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

     ``SEC. 705. CONGRESSIONAL OVERSIGHT.

       ``(a) In Genera1.--The President shall submit to each 
     member of the congressional , intelligence committees (or any 
     subcommittee thereof designated for oversight of electronic 
     surveillance programs under this title) a report on the 
     management and operational details of the electronic 
     surveillance program generally and on any specific 
     surveillance conducted under the electronic surveillance 
     program whenever requested by either of the committees, or 
     any such subcommittee, as applicable.
       ``(b) Semi-Annual Reports.--
       ``(1) In general.--In addition to any reports required 
     under subsection (a), the President shall, not later than 6 
     months after the date of enactment of this Act and every 6 
     months thereafter, fully inform each member of the 
     congressional intelligence committees (or any subcommittee 
     thereof designated for oversight of electronic surveillance 
     programs under this title) on all electronic surveillance 
     conducted under the electronic surveillance program.
       ``(2) Contents.--Each report under paragraph (1) shall 
     include the following:
       ``(A) A complete discussion of the management, operational 
     details, effectiveness, and necessity of the electronic 
     surveillance program generally, and of the management, 
     operational details, effectiveness, and necessity of all 
     electronic surveillance conducted under the program, during 
     the 6-month period ending on the date of such report.
       ``(B) The total number of targets of electronic 
     surveillance commenced or continued under the electronic 
     surveillance program.
       ``(C) The total number of United States persons targeted 
     for electronic surveillance under the electronic surveillance 
     program.
       ``(D) The total number of targets of electronic 
     surveillance under the electronic surveillance program for 
     which an application

[[Page S2344]]

     was submitted under section 104 for an order under section 
     105 approving electronic surveillance, and, of such 
     applications, the total number either granted, modified, or 
     denied.
       ``(E) Any other information specified, in writing, to be 
     included in such report by the congressional intelligence 
     committees or any subcommittees thereof designated for 
     oversight of the electronic surveillance program.
       ``(F) A description of the nature of the information sought 
     under the electronic surveillance program, the types of 
     communications subjected to such program, and whether the 
     information sought under such program could be reasonably 
     obtained by less intrusive investigative techniques in a 
     timely and effective manner.
       ``(c) Form of Reports.--Any report or information submitted 
     under this section shall be submitted in classified form.''.

     SEC. 8. EMERGENCY AUTHORIZATION.

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

     ``SEC. 706. EMERGENCY AUTHORIZATION.

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

     SEC. 9. CONFORMING AMENDMENT.

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

                  ``TITLE VII--ELECTRONIC SURVEILLANCE

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

                      ``TITLE VIII--EFFECTIVE DATE

``Sec. 801. Effective date.''.
                                 ______