[Congressional Record Volume 154, Number 10 (Wednesday, January 23, 2008)]
[Senate]
[Pages S179-S194]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FISA AMENDMENTS ACT OF 2007
Mr. REID. Madam President, I call for the regular order.
The PRESIDING OFFICER. The clerk will report the pending business by
title.
The assistant legislative clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
The Senate proceeded to consider the bill, which had been reported
from the Select Committee on Intelligence and the Committee on the
Judiciary, with an amendment to strike all after the enacting clause
and insert in lieu thereof the following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of
2007'' or the ``FISA Amendments Act of 2007''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Targeting the communications of certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of certain communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Review of previous actions.
Sec. 111. Technical and conforming amendments.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. TARGETING THE COMMUNICATIONS OF CERTAIN PERSONS
OUTSIDE THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``SEC. 701. DEFINITIONS.
``In this title:
``(1) In general.--The terms `agent of a foreign power',
`Attorney General', `contents', `electronic surveillance',
`foreign intelligence information', `foreign power',
`minimization procedures', `person', `United States', and
`United States person' shall have the meanings given such
terms in section 101.
``(2) Additional definitions.--
``(A) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(i) the Select Committee on Intelligence of the Senate;
and
``(ii) the Permanent Select Committee on Intelligence of
the House of Representatives.
``(B) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(C) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence
Surveillance Court of Review' and `Court of Review' mean the
court established by section 103(b).
``(D) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(i) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(ii) a provider of electronic communications service, as
that term is defined in section 2510 of title 18, United
States Code;
``(iii) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(iv) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored; or
``(v) an officer, employee, or agent of an entity described
in clause (i), (ii), (iii), or (iv).
``(E) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``SEC. 702. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES.
``(a) Authorization.--Notwithstanding any other provision
of law, including title I, the Attorney General and the
Director of National Intelligence may authorize jointly, for
periods of up to 1 year, the targeting of persons reasonably
believed to be located outside the United States to acquire
foreign intelligence information.
``(b) Limitations.--An acquisition authorized under
subsection (a)--
``(1) may not intentionally target any person known at the
time of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably
believed to be outside the United States if a significant
purpose of such acquisition is to acquire the communications
of a specific person reasonably believed to be located in
[[Page S180]]
the United States, except in accordance with title I; and
``(3) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) United States Persons Located Outside the United
States.--
``(1) Acquisition inside the united states of united states
persons outside the united states.--An acquisition authorized
under subsection (a) that constitutes electronic surveillance
and occurs inside the United States may not intentionally
target a United States person reasonably believed to be
outside the United States, except in accordance with the
procedures under title I.
``(2) Acquisition outside the united states of united
states persons outside the united states.--
``(A) In general.--An acquisition by an electronic,
mechanical, or other surveillance device outside the United
States may not intentionally target a United States person
reasonably believed to be outside the United States to
acquire the contents of a wire or radio communication sent by
or intended to be received by that United States person under
circumstances in which a person has reasonable expectation of
privacy and a warrant would be required for law enforcement
purposes if the technique were used inside the United States
unless--
``(i) the Foreign Intelligence Surveillance Court has
entered an order approving electronic surveillance of that
United States person under section 105, or in the case of an
emergency situation, electronic surveillance against the
target is being conducted in a manner consistent with title
I; or
``(ii)(I) the Foreign Intelligence Surveillance Court has
entered a order under subparagraph (B) that there is probable
cause to believe that the United States person is a foreign
power or an agent of a foreign power;
``(II) the Attorney General has established minimization
procedures for that acquisition that meet the definition of
minimization procedures under section 101(h); and
``(III) the dissemination provisions of the minimization
procedures described in subclause (II) have been approved
under subparagraph (C).
``(B) Probable cause determination; review.--
``(i) In general.--The Attorney General may submit to the
Foreign Intelligence Surveillance Court the determination of
the Attorney General, together with any supporting
affidavits, that a United States person who is outside the
United States is a foreign power or an agent of a foreign
power.
``(ii) Review.--The Court shall review, any probable cause
determination submitted by the Attorney General under this
subparagraph. The review under this clause shall be limited
to whether, on the basis of the facts submitted by the
Attorney General, there is probable cause to believe that the
United States person who is outside the United States is a
foreign power or an agent of a foreign power.
``(iii) Order.--If the Court, after conducting a review
under clause (ii), determines that there is probable cause to
believe that the United States person is a foreign power or
an agent of a foreign power, the court shall issue an order
approving the acquisition. An order under this clause shall
be effective for 90 days, and may be renewed for additional
90-day periods.
``(iv) No probable cause.--If the Court, after conducting a
review under clause (ii), determines that there is not
probable cause to believe that a United States person is a
foreign power or an agent of a foreign power, it shall enter
an order so stating and provide a written statement for the
record of the reasons for such determination. The Government
may appeal an order under this clause to the Foreign
Intelligence Surveillance Court of Review.
``(C) Review of minimization procedures.--
``(i) In general.--The Foreign Intelligence Surveillance
Court shall review the minimization procedures applicable to
dissemination of information obtained through an acquisition
authorized under subparagraph (A) to assess whether such
procedures meet the definition of minimization procedures
under section 101(h) with respect to dissemination.
``(ii) Review.--The Court shall issue an order approving
the procedures applicable to dissemination as submitted or as
modified to comply with section 101(h).
``(iii) Procedures do not meet definition.--If the Court
determines that the procedures applicable to dissemination of
information obtained through an acquisition authorized under
subparagraph (A) do not meet the definition of minimization
procedures under section 101(h) with respect to
dissemination, it shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause to the Foreign Intelligence Surveillance Court of
Review.
``(D) Emergency procedures.--
``(i) In general.--Notwithstanding any other provision of
this paragraph, the Attorney General may authorize the
emergency employment of an acquisition under subparagraph (A)
if the Attorney General--
``(I) reasonably determines that--
``(aa) an emergency situation exists with respect to the
employment of an acquisition under subparagraph (A) before a
determination of probable cause can with due diligence be
obtained; and
``(bb) the factual basis for issuance of a determination
under subparagraph (B) to approve such an acquisition exists;
``(II) informs a judge of the Foreign Intelligence
Surveillance Court at the time of such authorization that the
decision has been made to employ an emergency acquisition;
``(III) submits a request in accordance with subparagraph
(B) to the judge notified under subclause (II) as soon as
practicable, but later than 72 hours after the Attorney
General authorizes such an acquisition; and
``(IV) requires that minimization procedures meeting the
definition of minimization procedures under section 101(h) be
followed.
``(ii) Termination.--In the absence of a judicial
determination finding probable cause to believe that the
United States person that is the subject of an emergency
employment of an acquisition under clause (i) is a foreign
power or an agent of a foreign power, the emergency
employment of an acquisition under clause (i) shall terminate
when the information sought is obtained, when the request for
a determination is denied, or after the expiration of 72
hours from the time of authorization by the Attorney General,
whichever is earliest.
``(iii) Use of information.--If the Court determines that
there is not probable cause to believe that a United States
is a foreign power or an agent of a foreign power in response
to a request for a determination under clause (i)(III), or in
any other case where the emergency employment of an
acquisition under this subparagraph is terminated and no
determination finding probable cause is issued, no
information obtained or evidence derived from such
acquisition shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such acquisition shall subsequently be used or
disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(3) Procedures.--
``(A) Submittal to foreign intelligence surveillance
court.--Not later than 30 days after the date of the
enactment of the FISA Amendments Act of 2007, the Attorney
General shall submit to the Foreign Intelligence Surveillance
Court the procedures to be used in determining whether a
target reasonably believed to be outside the United States is
a United States person.
``(B) Review by foreign intelligence surveillance court.--
The Foreign Intelligence Surveillance Court shall review, the
procedures submitted under subparagraph (A), and shall
approve those procedures if they are reasonably designed to
determine whether a target reasonably believed to be outside
the United States is a United States person. If the Court
concludes otherwise, the Court shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal
such an order to the Foreign Intelligence Surveillance Court
of Review.
``(C) Use in targeting.--Any targeting of persons
reasonably believed to be located outside the United States
shall use the procedures approved by the Foreign Intelligence
Surveillance Court under subparagraph (B). Any new or amended
procedures may be used with respect to the targeting of
persons reasonably believed to be located outside the United
States upon approval of the new or amended procedures by the
Court, which shall review such procedures under paragraph
(B).
``(4) Transition procedures concerning the targeting of
united states persons overseas.--Any authorization in effect
on the date of enactment of the FISA Amendments Act of 2007
under section 2.5 of Executive Order 12333 to intentionally
target a United States person reasonably believed to be
located outside the United States, to acquire the contents of
a wire or radio communication sent by or intended to be
received by that United States person, shall remain in
effect, and shall constitute a sufficient basis for
conducting such an acquisition of a United States person
located outside the United States, until that authorization
expires or 90 days after the date of enactment of the FISA
Amendments Act of 2007, whichever is earlier.
``(d) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (g);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (e) and (f).
``(e) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States, and that an application is
filed under title I, if otherwise required, when a
significant purpose of an acquisition authorized under
subsection (a) is to acquire the communications of a specific
person reasonably believed to be located in the United
States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(f) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt, consistent with the requirements of section
101(h), minimization procedures for acquisitions authorized
under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (i).
``(g) Certification.--
[[Page S181]]
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States and that such procedures have been
approved by, or will promptly be submitted for approval by,
the Foreign Intelligence Surveillance Court pursuant to
subsection (i);
``(ii) the procedures referred to in clause (i) are
consistent with the requirements of the fourth amendment to
the Constitution of the United States and do not permit the
intentional targeting of any person who is known at the time
of acquisition to be located in the United States;
``(iii) the procedures referred to in clause (i) require
that an application is filed under title I, if otherwise
required, when a significant purpose of an acquisition
authorized under subsection (a) is to acquire the
communications of a specific person reasonably believed to be
located in the United States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h); and
``(II) have been approved by, or will promptly be submitted
for approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (i);
``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition is limited to communications to
which at least 1 party is a specific individual target who is
reasonably believed to be located outside of the United
States, and a significant purpose of the acquisition of the
communications of any target is to obtain foreign
intelligence information; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall immediately affirm such directive, and order the
recipient to comply with the directive. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(D) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
shall issue an order requiring the electronic communication
service provider to comply with the directive if the judge
finds that the directive was issued in accordance with
paragraph (1), meets the requirements of this section, and is
otherwise lawful. The judge shall provide a written statement
for the record of the reasons for a determination under this
paragraph.
``(D) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of the decision issued pursuant to
paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review shall have jurisdiction
to consider such a petition and shall provide a written
statement for the record of the reasons for a decision under
this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(i) Judicial Review.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (d) or targeting and minimization procedures
adopted pursuant to subsections (e) and (f).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (g) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (e) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States, and are reasonably designed to
ensure that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a specific person reasonably believed to be
located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (f) to assess
whether such procedures meet the definition of minimization
procedures under section 101(h).
``(5) Orders.--
``(A) Approval.--If the Court finds that a certification
required by subsection (g) contains all of the required
elements and that the targeting and minimization procedures
required by subsections (e) and (f) are consistent with the
requirements of those subsections and with the fourth
amendment to the Constitution of the United States, the Court
shall enter an order approving the continued use of the
procedures for the acquisition authorized under subsection
(a).
``(B) Correction of deficiencies.--
``(i) In general.--If the Court finds that a certification
required by subsection (g) does not contain all of the
required elements, or that the procedures required by
subsections (e) and (f) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the Court's order--
``(I) correct any deficiency identified by the Court's
order not later than 30 days after the date the Court issues
the order; or
``(II) cease the acquisition authorized under subsection
(a).
[[Page S182]]
``(ii) Limitation on use of information.--
``(I) In general.--Except as provided in subclause (II), no
information obtained or evidence derived from an acquisition
under clause (i)(I) shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(II) Exception.--If the Government corrects any
deficiency identified by the Court's order under clause (i),
the Court may permit the use or disclosure of information
acquired before the date of the correction pursuant to such
minimization procedures as the Court shall establish for
purposes of this clause.
``(C) Requirement for written statement.--In support of its
orders under this subsection, the Court shall provide,
simultaneously with the orders, for the record a written
statement of its reasons.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government may
appeal any order under this section to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such order. For any decision
affirming, reversing, or modifying an order of the Foreign
Intelligence Surveillance Court, the Court of Review shall
provide for the record a written statement of its reasons.
``(B) Stay pending appeal.--The Government may move for a
stay of any order of the Foreign Intelligence Surveillance
Court under paragraph (5)(B)(i) pending review by the Court
en banc or pending appeal to the Foreign Intelligence
Surveillance Court of Review.
``(C) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under subparagraph
(A). The record for such review shall be transmitted under
seal to the Supreme Court of the United States, which shall
have jurisdiction to review such decision.
``(7) Compliance review.--The Court may review and assess
compliance with the minimization procedures submitted to the
Court pursuant to subsections (c) and (f) by reviewing the
semiannual assessments submitted by the Attorney General and
the Director of National Intelligence pursuant to subsection
(l)(1) with respect to compliance with minimization
procedures. In conducting a review under this paragraph, the
Court may, to the extent necessary, require the Government to
provide additional information regarding the acquisition,
retention, or dissemination of information concerning United
States persons during the course of an acquisition authorized
under subsection (a).
``(8) Remedial authority.--The Foreign Intelligence
Surveillance Court shall have authority to fashion remedies
as necessary to enforce--
``(A) any order issued under this section; and
``(B) compliance with any such order.
``(j) Judicial Proceedings.--Judicial proceedings under
this section shall be conducted as expeditiously as possible.
``(k) Maintenance of Records.--
``(1) Standards.--A record of a proceeding under this
section, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures adopted by the Chief Justice of the United
States, in consultation with the Attorney General and the
Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--A directive made or an order
granted under this section shall be retained for a period of
not less than 10 years from the date on which such directive
or such order is made.
``(l) Oversight.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the targeting and
minimization procedures required by subsections (c), (e), and
(f) and shall submit each such assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) the congressional intelligence committees.
``(2) Agency assessment.--The Inspectors General of the
Department of Justice and of any element of the intelligence
community authorized to acquire foreign intelligence
information under subsection (a)--
``(A) are authorized to review the compliance of their
agency or element with the targeting and minimization
procedures required by subsections (c), (e), and (f);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United
States person identity and the number of United States person
identities subsequently disseminated by the element concerned
in response to requests for identities that were not referred
to by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that were
later determined to be located in the United States and the
number of persons located in the United States whose
communications were reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) the congressional intelligence committees.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of an element of
the intelligence community conducting an acquisition
authorized under subsection (a) shall direct the element to
conduct an annual review to determine whether there is reason
to believe that foreign intelligence information has been or
will be obtained from the acquisition. The annual review
shall provide, with respect to such acquisitions authorized
under subsection (a)--
``(i) an accounting of the number of disseminated
intelligence reports containing a reference to a United
States person identity;
``(ii) an accounting of the number of United States person
identities subsequently disseminated by that element in
response to requests for identities that were not referred to
by name or title in the original reporting; and
``(iii) the number of targets that were later determined to
be located in the United States and the number of persons
located in the United States whose communications were
reviewed.
``(B) Use of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall use each such review to evaluate the
adequacy of the minimization procedures utilized by such
element or the application of the minimization procedures to
a particular acquisition authorized under subsection (a).
``(C) Provision of review to foreign intelligence
surveillance court.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall provide such review to the Foreign
Intelligence Surveillance Court.
``(4) Reports to congress.--
``(A) Semiannual report.--Not less frequently than once
every 6 months, the Attorney General shall fully inform, in a
manner consistent with national security, the congressional
intelligence committees, the Committee on the Judiciary of
the Senate, and the Committee on the Judiciary of the House
of Representatives, concerning the implementation of this
Act.
``(B) Content.--Each report made under subparagraph (A)
shall include--
``(i) any certifications made under subsection (g) during
the reporting period;
``(ii) any directives issued under subsection (h) during
the reporting period;
``(iii) the judicial review during the reporting period of
any such certifications and targeting and minimization
procedures utilized with respect to such acquisition,
including a copy of any order or pleading in connection with
such review that contains a significant legal interpretation
of the provisions of this Act;
``(iv) any actions taken to challenge or enforce a
directive under paragraphs (4) or (5) of subsections (h);
``(v) any compliance reviews conducted by the Department of
Justice or the Office of the Director of National
Intelligence of acquisitions authorized under subsection (a);
``(vi) a description of any incidents of noncompliance with
a directive issued by the Attorney General and the Director
of National Intelligence under subsection (h), including--
``(I) incidents of noncompliance by an element of the
intelligence community with procedures adopted pursuant to
subsections (c), (e), and (f); and
``(II) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under subsection (h);
``(vii) any procedures implementing this section; and
``(viii) any annual review conducted pursuant to paragraph
(3).
``SEC. 703. USE OF INFORMATION ACQUIRED UNDER SECTION 702.
``Information acquired from an acquisition conducted under
section 702 shall be deemed to be information acquired from
an electronic surveillance pursuant to title I for purposes
of section 106, except for the purposes of subsection (j) of
such section.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``Sec. 701. Definitions.
``Sec. 702. Procedures for acquiring the communications of certain
persons outside the United States.
``Sec. 703. Use of information acquired under section 702.''.
(c) Sunset.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a)(2) and (b) shall cease to
have effect on December 31, 2011.
(2) Continuing applicability.--Section 702(h)(3) of the
Foreign Intelligence Surveillance Act of 1978 (as amended by
subsection (a)) shall remain in effect with respect to any
directive issued pursuant to section 702(h) of that Act (as
so amended) during the period such directive was in effect.
The use of information acquired by an acquisition conducted
under section 702 of that Act (as so amended) shall continue
to be governed by the provisions of section 703 of that Act
(as so amended).
[[Page S183]]
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND
INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED
``Sec. 112. (a) This Act shall be the exclusive means for
targeting United States persons for the purpose of acquiring
their communications or communications information for
foreign intelligence purposes, whether such persons are
inside the United States or outside the United States, except
in cases where specific statutory authorization exists to
obtain communications information without an order under this
Act.
``(b) Chapters 119 and 121 of title 18, United States Code,
and this Act shall be the exclusive means by which electronic
surveillance and the interception of domestic wire, oral, or
electronic communications may be conducted.
``(c) Subsections (a) and (b) shall apply unless specific
statutory authorization for electronic surveillance, other
than as an amendment to this Act, is enacted. Such specific
statutory authorization shall be the only exception to
subsection (a) and (b).''.
(b) Conforming Amendments.--
(1) In general.--Section 2511(2)(a) of title 18, United
States Code, is amended by adding at the end the following:
``(iii) A certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information shall
identify the specific provision of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) that
provides an exception from providing a court order, and shall
certify that the statutory requirements of such provision
have been met.''.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by adding after the item
relating to section 111, the following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.''.
(c) Offense.--Section 109(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by
striking ``authorized by statute'' each place it appears in
such section and inserting ``authorized by this title or
chapter 119, 121, or 206 of title 18, United States Code''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Inclusion of Certain Orders in Semi-Annual Reports of
Attorney General.--Subsection (a)(5) of section 601 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1871) is amended by striking ``(not including orders)'' and
inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following new subsection:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings associated with such decision,
order, or opinion, not later than 45 days after such
decision, order, or opinion is issued; and
``(2) a copy of any such decision, order, or opinion, and
the pleadings associated with such decision, order, or
opinion, that was issued during the 5-year period ending on
the date of the enactment of the FISA Amendments Act of 2007
and not previously submitted in a report under subsection
(a).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if the Director of the Federal Bureau of Investigation is
unavailable--'';
(E) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(F) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3) of this subsection, by striking ``or the
Director of National Intelligence'' and inserting ``the
Director of National Intelligence, or the Director of the
Central Intelligence Agency''.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(6) by amending subsection (e), as redesignated by
paragraph (5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(A) determines that an emergency situation exists with
respect to the employment of electronic surveillance to
obtain foreign intelligence information before an order
authorizing such surveillance can with due diligence be
obtained;
``(B) determines that the factual basis for issuance of an
order under this title to approve such electronic
surveillance exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under section 103 at the time of
such authorization that the decision has been made to employ
emergency electronic surveillance; and
``(D) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not later than 168 hours after the Attorney
General authorizes such surveillance.
``(2) If the Attorney General authorizes the emergency
employment of electronic surveillance under paragraph (1),
the Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate
when the information sought is obtained, when the application
for the order is denied, or after the expiration of 168 hours
from the time of authorization by the Attorney General,
whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) In the event that such application for approval is
denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, upon the request of the applicant, the
judge shall also authorize the installation and use of pen
registers and trap and trace devices, and direct the
disclosure of the information set forth in section
402(d)(2).''.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by
striking ``radio communication'' and inserting
``communication''.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(E) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if the Director of the Federal Bureau of Investigation is
unavailable--''; and
(2) in subsection (d)(1)(A), by striking ``or the Director
of National Intelligence'' and inserting ``the Director of
National Intelligence, or the Director of the Central
Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
[[Page S184]]
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of a physical search if the Attorney General--
``(A) determines that an emergency situation exists with
respect to the employment of a physical search to obtain
foreign intelligence information before an order authorizing
such physical search can with due diligence be obtained;
``(B) determines that the factual basis for issuance of an
order under this title to approve such physical search
exists;
``(C) informs, either personally or through a designee, a
judge of the Foreign Intelligence Surveillance Court at the
time of such authorization that the decision has been made to
employ an emergency physical search; and
``(D) makes an application in accordance with this title to
a judge of the Foreign Intelligence Surveillance Court as
soon as practicable, but not more than 168 hours after the
Attorney General authorizes such physical search.
``(2) If the Attorney General authorizes the emergency
employment of a physical search under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
physical search, the physical search shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 168 hours from
the time of authorization by the Attorney General, whichever
is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5)(A) In the event that such application for approval is
denied, or in any other case where the physical search is
terminated and no order is issued approving the physical
search, no information obtained or evidence derived from such
physical search shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such physical search shall subsequently be used
or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(B) The Attorney General shall assess compliance with the
requirements of subparagraph (A).''.
(c) Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended--
(1) in section 304(a)(4), as redesignated by subsection (b)
of this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND
TRACE DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``168 hours''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``168 hours''.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges.--Subsection (a) of section 103
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803) is amended by inserting ``at least'' before
``seven of the United States judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978, as amended by
subsection (a) of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection may,
on its own initiative, or upon the request of the Government
in any proceeding or a party under section 501(f) or
paragraph (4) or (5) of section 702(h), hold a hearing or
rehearing, en banc, when ordered by a majority of the judges
that constitute such court upon a determination that--
``(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by
the court en banc. When exercising such authority, the court
en banc shall comply with any requirements of this Act on the
exercise of such authority.
``(C) For purposes of this paragraph, the court en banc
shall consist of all judges who constitute the court
established under this subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered
under any title of this Act, while the court established
under subsection (a) conducts a rehearing, while an appeal is
pending to the court established under subsection (b), or
while a petition of certiorari is pending in the Supreme
Court of the United States, or during the pendency of any
review by that court.
``(2) The authority described in paragraph (1) shall apply
to an order entered under any provision of this Act.''.
SEC. 110. REVIEW OF PREVIOUS ACTIONS.
(a) Definitions.--In this section--
(1) the term ``element of the intelligence community''
means an element of the intelligence community specified in
or designated under section 3(4) of the National Security Act
of 1947 (50 U.S.C. 401a(4)); and
(2) the term ``Terrorist Surveillance Program'' means the
intelligence program publicly confirmed by the President in a
radio address on December 17, 2005, and any previous,
subsequent or related, versions or elements of that program.
(b) Audit.--Not later than 180 days after the date of the
enactment of this Act, the Inspectors General of the
Department of Justice and relevant elements of the
intelligence community shall work in conjunction to complete
a comprehensive audit of the Terrorist Surveillance Program
and any closely related intelligence activities, which shall
include acquiring all documents relevant to such programs,
including memoranda concerning the legal authority of a
program, authorizations of a program, certifications to
telecommunications carriers, and court orders.
(c) Report.----
(1) In general.--Not later than 30 days after the
completion of the audit under subsection (b), the Inspectors
General shall submit to the Permanent Select Committee on
Intelligence and the Committee on the Judiciary of the House
of Representatives and the Select Committee on Intelligence
and the Committee on the Judiciary of the Senate a joint
report containing the results of that audit, including all
documents acquired pursuant to the conduct of that audit.
(2) Form.--The report under paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
(d) Expedited Security Clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by an
Inspector General or any appropriate staff of an Inspector
General for a security clearance necessary for the conduct of
the audit under subsection (b) is conducted as expeditiously
as possible.
(e) Additional Legal and Other Personnel for the Inspectors
General.--The Inspectors General of the Department of Justice
and of the relevant elements of the intelligence community
are authorized such additional legal and other personnel as
may be necessary to carry out the prompt and timely
preparation of the audit and report required under this
section. Personnel authorized by this subsection shall
perform such duties relating to the audit as the relevant
Inspector General shall direct. The personnel authorized by
this subsection are in addition to any other personnel
authorized by law.
SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702''; and
(2) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702''.
Modification of Committee Reported Substitute
Mr. REID. Madam President, I am authorized by the chairman of the
Judiciary Committee and, certainly, a majority of the Judiciary
Committee to modify the Judiciary substitute amendment, and I send that
modification to the desk.
The PRESIDING OFFICER. The amendment is so modified.
The modification is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of
2008'' or the ``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Targeting the communications of certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of certain communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
[[Page S185]]
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Review of previous actions.
Sec. 111. Technical and conforming amendments.
TITLE II--OTHER PROVISIONS
Sec. 201. Severability.
Sec. 202. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. TARGETING THE COMMUNICATIONS OF CERTAIN PERSONS
OUTSIDE THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``SEC. 701. DEFINITIONS.
``In this title:
``(1) In general.--The terms `agent of a foreign power',
`Attorney General', `electronic surveillance', `foreign
intelligence information', `foreign power', `minimization
procedures', `person', `United States', and `United States
person' shall have the meanings given such terms in section
101.
``(2) Additional definitions.--
``(A) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(i) the Select Committee on Intelligence of the Senate;
and
``(ii) the Permanent Select Committee on Intelligence of
the House of Representatives.
``(B) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(C) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence
Surveillance Court of Review' and `Court of Review' mean the
court established by section 103(b).
``(D) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(i) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(ii) a provider of electronic communications service, as
that term is defined in section 2510 of title 18, United
States Code;
``(iii) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(iv) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored; or
``(v) an officer, employee, or agent of an entity described
in clause (i), (ii), (iii), or (iv).
``(E) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``SEC. 702. PROCEDURES FOR ACQUIRING THE COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES.
``(a) Authorization.--Notwithstanding any other provision
of law, including title I, the Attorney General and the
Director of National Intelligence may authorize jointly, for
periods of up to 1 year, the targeting of persons reasonably
believed to be located outside the United States to acquire
foreign intelligence information.
``(b) Limitations.--An acquisition authorized under
subsection (a)--
``(1) may not intentionally target any person known at the
time of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably
believed to be outside the United States if a significant
purpose of such acquisition is to acquire the communications
of a particular, known person reasonably believed to be
located in the United States, except in accordance with title
I; and
``(3) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) United States Persons Located Outside the United
States.--
``(1) Acquisition inside the united states of united states
persons outside the united states.--An acquisition authorized
under subsection (a) that occurs inside the United States
and--
``(A) constitutes electronic surveillance; or
``(B) is an acquisition of stored electronic communications
or stored electronic data that otherwise requires a court
order under this Act,
may not intentionally target a United States person
reasonably believed to be outside the United States, except
in accordance with title I or III. For the purposes of an
acquisition under this subsection, the term `agent of a
foreign power' as used in those titles shall include a person
who is an officer of a foreign power or an employee of a
foreign power who is reasonably believed to have access to
foreign intelligence information.
``(2) Acquisition outside the united states of united
states persons outside the united states.--
``(A) Jurisdiction and scope.--
``(i) Jurisdiction.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order pursuant to
subparagraph (C).
``(ii) Scope.--No element of the intelligence community may
intentionally target, for the purpose of acquiring foreign
intelligence information, a United States person reasonably
believed to be located outside the United States under
circumstances in which the targeted United States person has
a reasonable expectation of privacy and a warrant would be
required if the acquisition were conducted inside the United
States for law enforcement purposes, unless a judge of the
Foreign Intelligence Surveillance Court has entered an order
or the Attorney General has authorized an emergency
acquisition pursuant to subparagraph (C) or (D) or any other
provision of this Act.
``(iii) Limitations.--
``(I) Moving or misidentified targets.--In the event that
the targeted United States person is reasonably believed to
be in the United States during the pendency of an order
issued pursuant to subparagraph (C), such acquisition shall
cease until authority is obtained pursuant to this Act or the
targeted United States person is again reasonably believed to
be located outside the United States during the pendency of
an order issued pursuant to subparagraph (C).
``(II) Applicability.--If the acquisition could be
authorized under paragraph (1), the procedures of paragraph
(1) shall apply, unless an order or emergency acquisition
authority has been obtained under a provision of this Act
other than under this paragraph.
``(B) Application.--Each application for an order under
this paragraph shall be made by a Federal officer in writing
upon oath or affirmation to a judge having jurisdiction under
subparagraph (A)(i). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application as set forth in this
paragraph and shall include--
``(i) the identity, if known, or a description of the
specific United States person who is the target of the
acquisition;
``(ii) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the target of the
acquisition is--
``(I) a United States person reasonably believed to be
located outside the United States; and
``(II) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(iii) a certification or certifications by the Assistant
to the President for National Security Affairs or an
executive branch official or officials designated by the
President from among those executive officers employed in the
area of national security or defense and appointed by the
President by and with the advice and consent of the Senate--
``(I) that the certifying official deems the information
sought to be foreign intelligence information;
``(II) that a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(III) that designates the type of foreign intelligence
information being sought according to the categories
described in section 101(e); and
``(IV) that includes a statement of the basis for the
certification that the information sought is the type of
foreign intelligence information designated;
``(iv) a statement of the proposed minimization procedures
consistent with the requirements of section 101(h) or section
301(4);
``(v) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(vi) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(C) Order.--
``(i) Findings.--If, upon an application made pursuant to
subparagraph (B), a judge having jurisdiction under
subparagraph (A)(i) finds that--
``(I) on the basis of the facts submitted by the applicant
there is probable cause to believe that the specified target
of the acquisition is--
``(aa) a person reasonably believed to be located outside
the United States; and
``(bb) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(II) the proposed minimization procedures, with respect
to their dissemination provisions, meet the definition of
minimization procedures under section 101(h) or section
301(4); and
``(III) the certification or certifications required by
subparagraph (B) are not clearly erroneous on the basis of
the statement made under subparagraph (B)(iii)(IV),
the Court shall issue an ex parte order so stating.
[[Page S186]]
``(ii) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under clause
(i)(I), a judge having jurisdiction under subparagraph (A)(i)
may consider past activities of the target, as well as facts
and circumstances relating to current or future activities of
the target. However, no United States person may be
considered a foreign power, agent of a foreign power, or
officer or employee of a foreign power solely upon the basis
of activities protected by the first amendment to the
Constitution of the United States.
``(iii) Review.--
``(I) Limitations on review.--Review by a judge having
jurisdiction under subparagraph (A)(i) shall be limited to
that required to make the findings described in clause (i).
The judge shall not have jurisdiction to review the means by
which an acquisition under this paragraph may be conducted.
``(II) Review of probable cause.--If the judge determines
that the facts submitted under subparagraph (B) are
insufficient to establish probable cause to issue an order
under this subparagraph, the judge shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal an
order under this subclause pursuant to subparagraph (E).
``(III) Review of minimization procedures.--If the judge
determines that the minimization procedures applicable to
dissemination of information obtained through an acquisition
under this subparagraph do not meet the definition of
minimization procedures under section 101(h) or section
301(4), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
subclause pursuant to subparagraph (E).
``(iv) Duration.--An order under this subparagraph shall be
effective for a period not to exceed 90 days and such order
may be renewed for additional 90-day periods upon submission
of renewal applications meeting the requirements of
subparagraph (B).
``(D) Emergency authorization.--
``(i) Authority for emergency authorization.--
Notwithstanding any other provision in this subsection, if
the Attorney General reasonably determines that--
``(I) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subparagraph (C) before an order
under that subsection may, with due diligence, be obtained;
and
``(II) the factual basis for issuance of an order under
this paragraph exists,
the Attorney General may authorize the emergency acquisition
if a judge having jurisdiction under subparagraph (A)(i) is
informed by the Attorney General or a designee of the
Attorney General at the time of such authorization that the
decision has been made to conduct such acquisition and if an
application in accordance with this paragraph is made to a
judge of the Foreign Intelligence Surveillance Court as soon
as practicable, but not more than 168 hours after the
Attorney General authorizes such acquisition.
``(ii) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by
this subparagraph be followed.
``(iii) Termination of emergency authorization.--In the
absence of an order under subparagraph (C), the acquisition
shall terminate when the information sought is obtained, if
the application for the order is denied, or after the
expiration of 168 hours from the time of authorization by the
Attorney General, whichever is earliest.
``(iv) Use of information.--In the event that such
application is denied, or in any other case where the
acquisition is terminated and no order is issued approving
the acquisition, no information obtained or evidence derived
from such acquisition, except under circumstances in which
the target of the acquisition is determined not to be a
United States person during the pendency of the 168-hour
emergency acquisition period, shall be received in evidence
or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(E) Appeal.--
``(i) Appeal to the court of review.--The Government may
file an appeal with the Foreign Intelligence Surveillance
Court of Review for review of an order issued pursuant to
subparagraph (C). The Court of Review shall have jurisdiction
to consider such appeal and shall provide a written statement
for the record of the reasons for a decision under this
subparagraph.
``(ii) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under clause (i). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(F) Joint applications and orders.--If an acquisition
targeting a United States person under paragraph (1) or this
paragraph is proposed to be conducted both inside and outside
the United States, a judge having jurisdiction under
subparagraph (A) and section 103(a) may issue simultaneously,
upon the request of the Government in a joint application
complying with the requirements of subparagraph (B) and
section 104 or 303, orders authorizing the proposed
acquisition under subparagraph (B) and section 105 or 304 as
applicable.
``(G) Concurrent authorization.--If an order authorizing
electronic surveillance or physical search has been obtained
under section 105 or 304 and that order is in effect, the
Attorney General may authorize, during the pendency of such
order and without an order under this paragraph, an
acquisition under this paragraph of foreign intelligence
information targeting that United States person while such
person is reasonably believed to be located outside the
United States. Prior to issuing such an authorization, the
Attorney General shall submit dissemination provisions of
minimization procedures for such an acquisition to a judge
having jurisdiction under subparagraph (A) for approval.
``(d) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (g);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (e) and (f).
``(e) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States, and that an application is
filed under title I, if otherwise required, when a
significant purpose of an acquisition authorized under
subsection (a) is to acquire the communications of a
particular, known person reasonably believed to be located in
the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(f) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt, consistent with the requirements of section
101(h), minimization procedures for acquisitions authorized
under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (i).
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States and that such procedures have been
approved by, or will promptly be submitted for approval by,
the Foreign Intelligence Surveillance Court pursuant to
subsection (i);
``(ii) the procedures referred to in clause (i) are
consistent with the requirements of the fourth amendment to
the Constitution of the United States and do not permit the
intentional targeting of any person who is known at the time
of acquisition to be located in the United States;
``(iii) the procedures referred to in clause (i) require
that an application is filed under title I, if otherwise
required, when a significant purpose of an acquisition
authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h); and
``(II) have been approved by, or will promptly be submitted
for approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (i);
``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition of the contents (as that term is
defined in section 2510(8) of title
[[Page S187]]
18, United States Code)) of any communication is limited to
communications to which any party is an individual target
(which shall not be limited to known or named individuals)
who is reasonably believed to be located outside of the
United States, and a significant purpose of the acquisition
of the communications of the target is to obtain foreign
intelligence information; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall immediately affirm such directive, and order the
recipient to comply with the directive. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(D) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
shall issue an order requiring the electronic communication
service provider to comply with the directive if the judge
finds that the directive was issued in accordance with
paragraph (1), meets the requirements of this section, and is
otherwise lawful. The judge shall provide a written statement
for the record of the reasons for a determination under this
paragraph.
``(D) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of the decision issued pursuant to
paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review shall have jurisdiction
to consider such a petition and shall provide a written
statement for the record of the reasons for a decision under
this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(i) Judicial Review.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (d) or targeting and minimization procedures
adopted pursuant to subsections (e) and (f).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (g) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (e) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States, and are reasonably designed to
ensure that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (f) to assess
whether such procedures meet the definition of minimization
procedures under section 101(h).
``(5) Orders.--
``(A) Approval.--If the Court finds that a certification
required by subsection (g) contains all of the required
elements and that the targeting and minimization procedures
required by subsections (e) and (f) are consistent with the
requirements of those subsections and with the fourth
amendment to the Constitution of the United States, the Court
shall enter an order approving the continued use of the
procedures for the acquisition authorized under subsection
(a).
``(B) Correction of deficiencies.--
``(i) In general.--If the Court finds that a certification
required by subsection (g) does not contain all of the
required elements, or that the procedures required by
subsections (e) and (f) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the Court's order--
``(I) correct any deficiency identified by the Court's
order not later than 30 days after the date the Court issues
the order; or
``(II) cease the acquisition authorized under subsection
(a).
``(ii) Limitation on use of information.--
``(I) In general.--Except as provided in subclause (II), no
information obtained or evidence derived from an acquisition
under clause (i)(I) concerning any United States person shall
be received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in or before any court, grand
jury, department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from
such acquisition shall subsequently be used or disclosed in
any other manner by Federal officers or employees without the
consent of such person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(II) Exception.--If the Government corrects any
deficiency identified by the Court's order under clause (i),
the Court may permit the use or disclosure of information
acquired before the date of the correction pursuant to such
minimization procedures as the Court shall establish for
purposes of this clause.
``(C) Requirement for written statement.--In support of its
orders under this subsection, the Court shall provide,
simultaneously with the orders, for the record a written
statement of its reasons.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government may
appeal any order under this section to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such order. For any decision
affirming, reversing, or modifying
[[Page S188]]
an order of the Foreign Intelligence Surveillance Court, the
Court of Review shall provide for the record a written
statement of its reasons.
``(B) Continuation of acquisition pending rehearing or
appeal.--Any acquisition affected by an order under paragraph
(5)(B) may continue--
``(i) during the pendency of any rehearing of the order by
the Court en banc; or
``(ii) if the Government appeals an order under this
section, until the Court of Review enters an order under
subparagraph (C).
``(C) Implementation pending appeal.--Not later than 30
days after the date on which an appeal of an order under
paragraph (5)(B) directing the correction of a deficiency is
filed, the Court of Review shall determine, and enter a
corresponding order regarding, whether all or any part of the
correction order, as issued or modified, shall be implemented
during the pendency of the appeal.
``(D) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under subparagraph
(A). The record for such review shall be transmitted under
seal to the Supreme Court of the United States, which shall
have jurisdiction to review such decision.
``(7) Compliance reviews.--During the period that
minimization procedures approved under paragraph (5)(A) are
in effect, the Court may review and assess compliance with
such procedures by reviewing the semiannual assessments
submitted by the Attorney General and the Director of
National Intelligence pursuant to subsection (l)(1) with
respect to compliance with such procedures. In conducting a
review under this paragraph, the Court may, to the extent
necessary, require the Government to provide additional
information regarding the acquisition, retention, or
dissemination of information concerning United States persons
during the course of an acquisition authorized under
subsection (a). The Court may fashion remedies it determines
necessary to enforce compliance.
``(j) Judicial Proceedings.--Judicial proceedings under
this section shall be conducted as expeditiously as possible.
``(k) Maintenance of Records.--
``(1) Standards.--A record of a proceeding under this
section, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures adopted by the Chief Justice of the United
States, in consultation with the Attorney General and the
Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--A directive made or an order
granted under this section shall be retained for a period of
not less than 10 years from the date on which such directive
or such order is made.
``(l) Oversight.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the targeting and
minimization procedures required by subsections (c), (e), and
(f) and shall submit each such assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) the congressional intelligence committees.
``(2) Agency assessment.--The Inspectors General of the
Department of Justice and of any element of the intelligence
community authorized to acquire foreign intelligence
information under subsection (a)--
``(A) are authorized to review the compliance of their
agency or element with the targeting and minimization
procedures required by subsections (c), (e), and (f);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United
States person identity and the number of United States person
identities subsequently disseminated by the element concerned
in response to requests for identities that were not referred
to by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that were
later determined to be located in the United States and an
estimate of the number of persons reasonably believed to be
located in the United States whose communications were
reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) the congressional intelligence committees.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of an element of
the intelligence community conducting an acquisition
authorized under subsection (a) shall direct the element to
conduct an annual review to determine whether there is reason
to believe that foreign intelligence information has been or
will be obtained from the acquisition. The annual review
shall provide, with respect to such acquisitions authorized
under subsection (a)--
``(i) an accounting of the number of disseminated
intelligence reports containing a reference to a United
States person identity;
``(ii) an accounting of the number of United States person
identities subsequently disseminated by that element in
response to requests for identities that were not referred to
by name or title in the original reporting; and
``(iii) the number of targets that were later determined to
be located in the United States and an estimate of the number
of persons reasonably believed to be located in the United
States whose communications were reviewed.
``(B) Use of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall use each such review to evaluate the
adequacy of the minimization procedures utilized by such
element or the application of the minimization procedures to
a particular acquisition authorized under subsection (a).
``(C) Provision of review to foreign intelligence
surveillance court.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall provide such review to the Foreign
Intelligence Surveillance Court.
``(4) Reports to congress.--
``(A) Semiannual report.--Not less frequently than once
every 6 months, the Attorney General shall fully inform, in a
manner consistent with national security, the congressional
intelligence committees, the Committee on the Judiciary of
the Senate, and the Committee on the Judiciary of the House
of Representatives, concerning the implementation of this
Act.
``(B) Content.--Each report made under subparagraph (A)
shall include--
``(i) any certifications made under subsection (g) during
the reporting period;
``(ii) any directives issued under subsection (h) during
the reporting period;
``(iii) the judicial review during the reporting period of
any such certifications and targeting and minimization
procedures utilized with respect to such acquisition,
including a copy of any order or pleading in connection with
such review that contains a significant legal interpretation
of the provisions of this Act;
``(iv) any actions taken to challenge or enforce a
directive under paragraphs (4) or (5) of subsections (h);
``(v) any compliance reviews conducted by the Department of
Justice or the Office of the Director of National
Intelligence of acquisitions authorized under subsection (a);
``(vi) a description of any incidents of noncompliance with
a directive issued by the Attorney General and the Director
of National Intelligence under subsection (h), including--
``(I) incidents of noncompliance by an element of the
intelligence community with procedures adopted pursuant to
subsections (c), (e), and (f); and
``(II) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under subsection (h);
``(vii) any procedures implementing this section; and
``(viii) any annual review conducted pursuant to paragraph
(3).
``SEC. 703. USE OF INFORMATION ACQUIRED UNDER SECTION 702.
``Information acquired from an acquisition conducted under
section 702 shall be deemed to be information acquired from
an electronic surveillance pursuant to title I for purposes
of section 106, except for the purposes of subsection (j) of
such section.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES FOR TARGETING COMMUNICATIONS OF
CERTAIN PERSONS OUTSIDE THE UNITED STATES
``Sec. 701. Definitions.
``Sec. 702. Procedures for acquiring the communications of certain
persons outside the United States.
``Sec. 703. Use of information acquired under section 702.''.
(c) Sunset.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a)(2) and (b) shall cease to
have effect on December 31, 2011.
(2) Continuing applicability.--Section 702(h)(3) of the
Foreign Intelligence Surveillance Act of 1978 (as amended by
subsection (a)) shall remain in effect with respect to any
directive issued pursuant to section 702(h) of that Act (as
so amended) during the period such directive was in effect.
The use of information acquired by an acquisition conducted
under section 702 of that Act (as so amended) shall continue
to be governed by the provisions of section 703 of that Act
(as so amended).
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
[[Page S189]]
``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND
INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED
``Sec. 112. (a) Except as provided in subsection (b), the
procedures of chapters 119, 121 and 206 of title 18, United
States Code, and this Act shall be the exclusive means by
which electronic surveillance and the interception of
domestic wire, oral, or electronic communications may be
conducted.
``(b) Only an express statutory authorization for
electronic surveillance or the interception of domestic,
wire, oral, or electronic communications, other than as an
amendment to this Act or chapters 119, 121, or 206 of title
18, United States Code, shall constitute an additional
exclusive means for the purpose of subsection (a).''.
(b) Offense.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
(1) in subsection (a), by striking ``authorized by
statute'' each place it appears in such section and inserting
``authorized by this Act, chapter 119, 121, or 206 of title
18, United States Code, or any express statutory
authorization that is an additional exclusive means for
conducting electronic surveillance under section 112.''; and
(2) by adding at the end the following:
``(e) Definition.--For the purpose of this section, the
term `electronic surveillance' means electronic surveillance
as defined in section 101(f) of this Act.''.
(c) Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2)(a) of
title 18, United States Code, is amended by adding at the end
the following:
``(iii) If a certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the specific statutory provision, and shall certify
that the statutory requirements have been met.''.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by adding after the item
relating to section 111, the following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Inclusion of Certain Orders in Semi-Annual Reports of
Attorney General.--Subsection (a)(5) of section 601 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1871) is amended by striking ``(not including orders)'' and
inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following new subsection:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings associated with such decision,
order, or opinion, not later than 45 days after such
decision, order, or opinion is issued; and
``(2) a copy of any such decision, order, or opinion, and
the pleadings associated with such decision, order, or
opinion, that was issued during the 5-year period ending on
the date of the enactment of the FISA Amendments Act of 2008
and not previously submitted in a report under subsection
(a).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if the Director of the Federal Bureau of Investigation is
unavailable--'';
(E) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(F) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3) of this subsection, by striking ``or the
Director of National Intelligence'' and inserting ``the
Director of National Intelligence, or the Director of the
Central Intelligence Agency''.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(6) by amending subsection (e), as redesignated by
paragraph (5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(A) determines that an emergency situation exists with
respect to the employment of electronic surveillance to
obtain foreign intelligence information before an order
authorizing such surveillance can with due diligence be
obtained;
``(B) determines that the factual basis for issuance of an
order under this title to approve such electronic
surveillance exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under section 103 at the time of
such authorization that the decision has been made to employ
emergency electronic surveillance; and
``(D) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not later than 168 hours after the Attorney
General authorizes such surveillance.
``(2) If the Attorney General authorizes the emergency
employment of electronic surveillance under paragraph (1),
the Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate
when the information sought is obtained, when the application
for the order is denied, or after the expiration of 168 hours
from the time of authorization by the Attorney General,
whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) In the event that such application for approval is
denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, upon the request of the applicant, the
judge shall also authorize the installation and use of pen
registers and trap and trace devices, and direct the
disclosure of the information set forth in section
402(d)(2).''.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by
striking ``radio communication'' and inserting
``communication''.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(E) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if the Director
[[Page S190]]
of the Federal Bureau of Investigation is unavailable--'';
and
(2) in subsection (d)(1)(A), by striking ``or the Director
of National Intelligence'' and inserting ``the Director of
National Intelligence, or the Director of the Central
Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of a physical search if the Attorney General--
``(A) determines that an emergency situation exists with
respect to the employment of a physical search to obtain
foreign intelligence information before an order authorizing
such physical search can with due diligence be obtained;
``(B) determines that the factual basis for issuance of an
order under this title to approve such physical search
exists;
``(C) informs, either personally or through a designee, a
judge of the Foreign Intelligence Surveillance Court at the
time of such authorization that the decision has been made to
employ an emergency physical search; and
``(D) makes an application in accordance with this title to
a judge of the Foreign Intelligence Surveillance Court as
soon as practicable, but not more than 168 hours after the
Attorney General authorizes such physical search.
``(2) If the Attorney General authorizes the emergency
employment of a physical search under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
physical search, the physical search shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 168 hours from
the time of authorization by the Attorney General, whichever
is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5)(A) In the event that such application for approval is
denied, or in any other case where the physical search is
terminated and no order is issued approving the physical
search, no information obtained or evidence derived from such
physical search shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such physical search shall subsequently be used
or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(B) The Attorney General shall assess compliance with the
requirements of subparagraph (A).''.
(c) Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended--
(1) in section 304(a)(4), as redesignated by subsection (b)
of this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND
TRACE DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``168 hours''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``168 hours''.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges.--Subsection (a) of section 103
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803) is amended by inserting ``at least'' before
``seven of the United States judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978, as amended by
subsection (a) of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection may,
on its own initiative, or upon the request of the Government
in any proceeding or a party under section 501(f) or
paragraph (4) or (5) of section 702(h), hold a hearing or
rehearing, en banc, when ordered by a majority of the judges
that constitute such court upon a determination that--
``(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by
the court en banc. When exercising such authority, the court
en banc shall comply with any requirements of this Act on the
exercise of such authority.
``(C) For purposes of this paragraph, the court en banc
shall consist of all judges who constitute the court
established under this subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered
under any title of this Act, while the court established
under subsection (a) conducts a rehearing, while an appeal is
pending to the court established under subsection (b), or
while a petition of certiorari is pending in the Supreme
Court of the United States, or during the pendency of any
review by that court.
``(2) The authority described in paragraph (1) shall apply
to an order entered under any provision of this Act.''.
SEC. 110. REVIEW OF PREVIOUS ACTIONS.
(a) Definitions.--In this section:
(1) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(A) the Select Committee on Intelligence and the Committee
on the Judiciary of the Senate; and
(B) the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(2) Terrorist surveillance program and program.--The terms
``Terrorist Surveillance Program'' and ``Program'' mean the
intelligence activity involving communications that was
authorized by the President during the period beginning on
September 11, 2001, and ending on January 17, 2007.
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the
Office of the Director of National Intelligence, the
Department of Justice, the National Security Agency, and any
other element of the intelligence community that participated
in the Terrorist Surveillance Program shall work in
conjunction to complete a comprehensive review of, with
respect to the oversight authority and responsibility of each
such Inspector General--
(A) all of the facts necessary to describe the
establishment, implementation, product, and use of the
product of the Program;
(B) the procedures and substance of, and access to, the
legal reviews of the Program;
(C) communications with, and participation of, individuals
and entities in the private sector related to the Program;
(D) interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program;
and
(E) any other matters identified by such an Inspector
General that would enable that Inspector General to report a
complete description of the Program, with respect to such
element.
(2) Cooperation.--Each Inspector General required to
conduct a review under paragraph (1) shall--
(A) work in conjunction, to the extent possible, with any
other Inspector General required to conduct such a review;
and
(B) utilize to the extent practicable, and not
unnecessarily duplicate or delay, such reviews or audits that
have been completed or are being undertaken by such an
Inspector General or by any other office of the Executive
Branch related to the Program.
(c) Reports.--
(1) Preliminary reports.--Not later than 60 days after the
date of the enactment of this Act, the Inspectors General of
the Office of the Director of National Intelligence and the
Department of Justice, in conjunction with any other
Inspector General required to conduct a review under
subsection (b)(1), shall submit to the appropriate committees
of Congress an interim report that describes the planned
scope of such review.
(2) Final report.--Not later than 1 year after the date of
the enactment of this Act, the Inspectors General required to
conduct such a review shall submit to the appropriate
committees of Congress, to the extent practicable, a
comprehensive report on such reviews that includes any
recommendations of such Inspectors General within the
oversight authority and responsibility of such Inspector
General with respect to the reviews.
(3) Form.--A report submitted under this subsection shall
be submitted in unclassified form, but may include a
classified annex. The unclassified report shall not disclose
the name or identity of any individual or entity
[[Page S191]]
of the private sector that participated in the Program or
with whom there was communication about the Program.
(d) Resources.--
(1) Expedited security clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by an
Inspector General or any appropriate staff of an Inspector
General for a security clearance necessary for the conduct of
the review under subsection (b)(1) is carried out as
expeditiously as possible.
(2) Additional legal and other personnel for the inspectors
general.--An Inspector General required to conduct a review
under subsection (b)(1) and submit a report under subsection
(c) is authorized to hire such additional legal or other
personnel as may be necessary to carry out such review and
prepare such report in a prompt and timely manner. Personnel
authorized to be hired under this paragraph--
(A) shall perform such duties relating to such a review as
the relevant Inspector General shall direct; and
(B) are in addition to any other personnel authorized by
law.
SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702''; and
(2) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702''.
TITLE II--OTHER PROVISIONS
SEC. 201. SEVERABILITY.
If any provision of this Act, any amendment made by this
Act, or the application thereof to any person or
circumstances is held invalid, the validity of the remainder
of the Act, any such amendments, and of the application of
such provisions to other persons and circumstances shall not
be affected thereby.
SEC. 202. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.
(a) In General.--Except as provided in subsection (c), the
amendments made by this Act shall take effect on the date of
the enactment of this Act.
(b) Repeal.--
(1) In general.--Except as provided in subsection (c),
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by striking the items
relating to sections 105A, 105B, and 105C.
(c) Transitions Procedures.--
(1) Protection from liability.--Notwithstanding subsection
(b)(1), subsection (l) of section 105B of the Foreign
Intelligence Surveillance Act of 1978 shall remain in effect
with respect to any directives issued pursuant to such
section 105B for information, facilities, or assistance
provided during the period such directive was or is in
effect.
(2) Orders in effect.--
(A) Orders in effect on date of enactment.--Notwithstanding
any other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978--
(i) any order in effect on the date of enactment of this
Act issued pursuant to the Foreign Intelligence Surveillance
Act of 1978 or section 6(b) of the Protect America Act of
2007 (Public Law 110-55; 121 Stat. 556) shall remain in
effect until the date of expiration of such order; and
(ii) at the request of the applicant, the court established
under section 103(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803(a)) shall reauthorize such order
if the facts and circumstances continue to justify issuance
of such order under the provisions of such Act, as in effect
on the day before the date of the enactment of the Protect
America Act of 2007, except as amended by sections 102, 103,
104, 105, 106, 107, 108, and 109 of this Act.
(B) Orders in effect on december 31, 2011.--Any order
issued under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101 of this
Act, in effect on December 31, 2011, shall continue in effect
until the date of the expiration of such order. Any such
order shall be governed by the applicable provisions of the
Foreign Intelligence Surveillance Act of 1978, as so amended.
(3) Authorizations and directives in effect.--
(A) Authorizations and directives in effect on date of
enactment.--Notwithstanding any other provision of this Act
or of the Foreign Intelligence Surveillance Act of 1978, any
authorization or directive in effect on the date of the
enactment of this Act issued pursuant to the Protect America
Act of 2007, or any amendment made by that Act, shall remain
in effect until the date of expiration of such authorization
or directive. Any such authorization or directive shall be
governed by the applicable provisions of the Protect America
Act of 2007 (121 Stat. 552), and the amendment made by that
Act, and, except as provided in paragraph (4) of this
subsection, any acquisition pursuant to such authorization or
directive shall be deemed not to constitute electronic
surveillance (as that term is defined in section 101(f) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(f)), as construed in accordance with section 105A of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805a)).
(B) Authorizations and directives in effect on december 31,
2011.--Any authorization or directive issued under title VII
of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 101 of this Act, in effect on December 31,
2011, shall continue in effect until the date of the
expiration of such authorization or directive. Any such
authorization or directive shall be governed by the
applicable provisions of the Foreign Intelligence
Surveillance Act of 1978, as so amended.
(4) Use of information acquired under protect america
act.--Information acquired from an acquisition conducted
under the Protect America Act of 2007, and the amendments
made by that Act, shall be deemed to be information acquired
from an electronic surveillance pursuant to title I of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) for purposes of section 106 of that Act (50 U.S.C.
1806), except for purposes of subsection (j) of such section.
(5) New orders.--Notwithstanding any other provision of
this Act or of the Foreign Intelligence Surveillance Act of
1978--
(A) the government may file an application for an order
under the Foreign Intelligence Surveillance Act of 1978, as
in effect on the day before the date of the enactment of the
Protect America Act of 2007, except as amended by sections
102, 103, 104, 105, 106, 107, 108, and 109 of this Act; and
(B) the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall enter an
order granting such an application if the application meets
the requirements of such Act, as in effect on the day before
the date of the enactment of the Protect America Act of 2007,
except as amended by sections 102, 103, 104, 105, 106, 107,
108, and 109 of this Act.
(6) Extant authorizations.--At the request of the
applicant, the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall
extinguish any extant authorization to conduct electronic
surveillance or physical search entered pursuant to such Act.
(7) Applicable provisions.--Any surveillance conducted
pursuant to an order entered pursuant to this subsection
shall be subject to the provisions of the Foreign
Intelligence Surveillance Act of 1978, as in effect on the
day before the date of the enactment of the Protect America
Act of 2007, except as amended by sections 102, 103, 104,
105, 106, 107, 108, and 109 of this Act.
Mr. REID. Madam President, we have conferred with our colleagues on
the other side of the aisle. Senator Bond is aware of this new
amendment. He has not had time to study the amendment. He has been busy
all day, as have all my Republican colleagues at their retreat. But he
will have time to work on this tonight. His staff is working on it. We
hope tomorrow to have a couple hours of debate, and then it is my
understanding there could be and likely will be a motion to table this
amendment.
I want to make sure Senators have adequate time to debate this
amendment tomorrow. This is, if not the key amendment, one of the key
amendments to this legislation, and we want to make sure everyone has
adequate time. We are going to come in early in the morning and start
this matter as quickly as we can. So I am not going to ask consent
tonight as to how much time will be spent on it, but this will be the
matter we take up tomorrow.
I have spoken to Senator Whitehouse, who is a member not only of the
Judiciary Committee but also the Intelligence Committee. He has a very
important amendment he wishes to offer. It is a bipartisan amendment he
has worked on for a significant period of time, and we look forward to
this amendment.
Hopefully, we can work our way through some of these contentious
amendments tomorrow. It is something we need to do, and we are going to
work as hard as we can. There are strong feelings on each side.
Everyone has worked in good faith. I especially appreciate the
cooperation of Senator Leahy and Senator Rockefeller. They have not
agreed on everything, but they have agreed on a lot, and they have
worked in a very professional manner in working our way to the point
where we now are.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Madam President, there will be no more votes tonight. We
have a number of Senators who wish to speak. We understand Senator Bond
will be here, Senator Rockefeller will be here, Senator Dodd will be
here. That is good. They are going to be
[[Page S192]]
speaking about the legislation that is now before this body.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CARDIN. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARDIN. Madam President, I take this time to speak in favor of
the Leahy substitute amendment to the FISA legislation. I start by
thanking Senator Rockefeller and Senator Bond, Senator Leahy and
Senator Specter for their extraordinary work on this most difficult
subject. This is not an easy subject. We are dealing with a technology
that has changed and the need of our country to get information through
our intelligence community, which is important for our national
security, and protecting the constitutional and civil rights of the
people of our Nation.
The Leahy substitute is a bill that was carefully worked and drafted
within the Judiciary Committee. The Intelligence Committee came up with
their legislation. We passed it rather quickly before the recess. The
Judiciary Committee spent a lot of time looking at the substance of how
we could make sure we got the language right, to make sure the
intelligence community has the information they need, and that we do
protect the rights of the people of our own country. The Leahy
substitute does that, with the right balance.
I start by saying that I have been to NSA on many occasions. It is
located in the State of Maryland. The dedicated men and women who work
there work very hard to protect the interests of our Nation. They do it
with a great deal of dedication and sensitivity to the type of
information they obtain and how important it is to our country, but it
must be done in the right way. The need for the FISA legislation is so
we can continue to get information from non-Americans that is important
for our national security. Much of this information is obtained from
what we call foreign to foreign, where we have communications between
an American and a non-American in a country outside of the United
States, but because of technology it falls within the definition of the
FISA statute. We need to clarify that in a way that will allow the
intelligence community to get that information foreign to foreign,
information that is important for the security of our country. The
Leahy substitute recognizes the change in technology and the need for
this information but does it in a way that protects the constitutional
rights of the citizens of our own country and the civil rights of
Americans.
Where an American is a target, that person should have certain
rights. The Leahy substitute protects Americans who are targets of
intelligence gathering when they are outside of the United States. When
they are inside the United States, there has never been a question that
you need to get certain warrants and certain information. Well, this
legislation also makes it clear that where an American is a target
outside of the United States, that individual will have proper
protection. But the legislation goes further and says that in the
course of obtaining information, you may get incidental information
about an American who was not the target of the investigation, but the
American comes up in the communication that has been gathered. We have
certain minimization rules to protect the rights of Americans who are
incidental to the information being gathered by the intelligence
community. The Leahy substitute protects Americans through
strengthening the minimization rules.
The Leahy substitute protects the process by involving the courts.
The FISA courts are involved in making sure that the right procedures
are used in gathering information so that Americans are protected.
The Leahy substitute contains a provision offered by Senator
Feinstein to make it clear that the gathering of information under the
FISA statute is the exclusive way in which the intelligence community
can get information of foreign-to-foreign communications or
communications that involve telecommunications centers located in the
United States, but that the FISA statute is the exclusive way to
proceed so there will not be confusion in the future as to whether
there are extraordinary authorities you can use warrantless types of
intercepts without having congressional approval. It is the right
balance, as I have indicated before, and I urge my colleagues to
support the Judiciary Committee's substitute offered by Senator Leahy.
It even goes further than that. The Leahy substitute does not contain
the retroactive immunity. The Intelligence Committee bill contains
retroactive immunity for telecommunications companies. Now, my major
problem with that is it will take away the appropriate jurisdiction of
our courts to act as a check and balance on potential abuses of our
rights of privacy. I must tell my colleagues--and I said this in the
Judiciary Committee and I have said it on the floor--that
telecommunications companies operating in good faith are entitled to
help, entitled to relief. They have serious problems in defending their
rights because of the confidential nature of the information they are
dealing with, but there are ways to deal with that without compromising
the independence of the judicial branch of Government, without
compromising in the future the ability of our courts to make sure we
protect the rights of our citizens.
If we adopt the Leahy substitute, there are going to be other
amendments that will be offered that will deal in a responsible way
with the concerns of the telecommunications companies. Senator Specter
has an amendment that says: Look, if the telecommunications companies
are operating in good faith, if they are innocent in all this where
they can't defend themselves, then let's let the Government be
substituted for the telecommunications company. That protects their
interests, without compromising the ability of our courts to make sure
that all of our rights have been protected. I think that is a better
course than what the Intelligence Committee did. There will be an
amendment offered by Senator Feinstein which I am a cosponsor of that
says, look, we should at least have the courts--the courts--make a
judgment as to whether the telecommunications companies operated in
good faith under law. That decision shouldn't be made by the executive
branch that asked them for the information. That makes common sense to
me and offers us at least some protection to make sure we are moving
with court supervision. So the Leahy substitute offers us the advantage
of eliminating the retroactive immunity which is extremely
controversial, and allows us to consider that in its own right, which I
am certain we will have a chance to do by the amendments that have been
noted.
In addition, the Leahy substitute contains an amendment I offered in
the Judiciary Committee that changes the sunset provisions, the
termination of these provisions, from a 6-year sunset to a 4-year
sunset. Why is that important? First, it is interesting to point out
that the members of the Intelligence Committee and the members of the
Judiciary Committee, in fact all of the Members of this body, have said
we have gotten a lot of cooperation from the intelligence community,
from the administration in carrying out our responsibility as the
legislative branch of Government to oversee what the executive branch
is doing in this area. There has been tremendous cooperation. Why?
Because they know we have to pass a statute to continue this authority.
We have gotten access to information that at least initially the
administration indicated we would not have access to. Well, we got
access to it--some of us did. I am sorry more were not offered the
opportunity to take a look at the confidential communications--the
classified communications. That type of cooperation is helpful when you
have the requirement that Congress has to act.
Four years is preferable to six because it will mean the next
administration that will take office in January of next year will have
to deal with this issue. If we continue a 6-year sunset, there will be
no need for the next two Congresses and the administration ever to have
to deal with this authority and to take a look at it to see whether it
is operating properly, to see whether technology changes have caused it
to need to change the way the law is
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drafted. But a 4-year sunset will mean we will have plenty of time for
the agency with predictability to establish its practices for gathering
intelligence information about foreign subjects, but we will also have
an opportunity to review during the next administration whether these
provisions need to be modified, whether there is a different way, a
more effective way that we can get this information protecting the
rights of the people of this Nation.
For all of those reasons, I urge this body to approve the substitute
that is being offered by Senator Leahy. It is the product of the
Judiciary Committee. I believe it is a better way for us to collect the
information. It gives us the chance to take a look at the immunity
issue fresh and to make sure we don't compromise in the future the
proper roles of our courts in protecting the privacy of the citizens of
our own country. It provides for a much stronger oversight by the
legislative branch of Government, and I urge my colleagues to support
that amendment.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
The Economy
Mr. BROWN. Madam President, I appreciate the comments of my colleague
from Maryland and his insight. The economic house in our country is not
in order. The United States may be entering its first recession since
2001--since the beginning of the Bush Presidency. It is pretty clear in
my State of Ohio, from places I visited in January, from Kenton to
Celina to Cincinnati to Lancaster, to places all over my State, that
people are suffering. Food banks are at their most perilous time in at
least 20 years.
In Logan, OH, a small community halfway between Columbus and the
center of the State and the Ohio River and the town of Athens, halfway
between Hocking County and Logan, OH, is the United Methodist Food
Pantry. At 3:30 in the morning on a cold December day just about a
month ago, people began to line up to go to this food bank, and by 8
o'clock, when the doors opened, cars were all the way up and down the
road. This is a small county. By 1 o'clock in the afternoon, 2,000
people--7 percent of the people in this rural Appalachian county,
Hocking County, Logan, OH--had come to this food bank; 2,000 people, 7
percent of the people who live in this county, many having driven 20 or
30 minutes to get there.
Middle-class families in Ohio and throughout our Nation face higher
costs for energy and health care and education, amidst stagnant wages
and falling home prices. In Lebanon, OH, in Warren County, the United
Way director told me 90 percent of people going to food banks to pick
up food are employed.
The mayor of Denver told a group of us today--Senator Stabenow and
others--that 40 percent of homeless people in greater Denver are
employed, they have jobs, but not making enough because of foreclosures
or cost of food or transportation, simply not making--making low wages,
not making enough to make a go of it.
Our Nation is bleeding jobs. The middle class is shrinking. People
are hurting. When it comes to responding to these realities, we have
several choices. We can try to buy time, as many of the Republican
candidates for President are saying, and leave it at that. The economy
is cyclical; it will get better; let's ride it out. No government
involvement at all. That is one option.
The second option is we can enact a short-term economic stimulus
package where we put money in the pockets of middle-class taxpayers,
whether they are paying income tax or Social Security tax, put money in
the pockets of middle-class taxpayers, extend unemployment
compensation, offer aid for food stamps and food banks, and also offer
aid to LIHEAP for seniors who are particularly victimized by this
recession.
The third option is we can learn from our mistakes. We certainly need
to do the short-term economic stimulus package. That is very important,
but that is not enough. We can learn from our mistakes. We can confront
the underlying causes of our Nation's economic stability. I want to
focus on one of those causes. It is a refusal to acknowledge that U.S.
trade policies must evolve as the global marketplace does.
When I first ran for Congress in 1992--the same year as the Presiding
Officer was elected from her State of Washington--our trade deficit was
$38 billion. Our trade deficit figures for 2007 are estimated at nearly
$800 billion, and that is before we count the December numbers. So we
know our trade deficit went from $38 billion to, a decade and a half
later, nearly $800 billion.
President George Herbert Walker Bush has said that $1 billion in
trade deficit or surplus translates into 13,000 jobs. So if you sell a
billion dollars more out of the country than you import, that is a net
increase of 13,000 jobs. If you export $1 billion less than you export,
then that is costing 13,000 jobs. Do the math. We went from a $38
billion trade deficit to an $800 billion trade deficit.
The fact is, these job-killing trade agreements are hemorrhaging jobs
out of our country and our manufacturing communities, from small towns
such as Tippin, OH, to cities as large as Cleveland, OH, from places
like Chillicothe, to places like Columbus. The U.S. trade deficit with
China, which has continued to spiral upward, hit $238 billion through
November of 2007. In 1992, the year I ran for Congress, our trade
deficit with China was slightly over $10 billion. It hit over $238
billion, and that is just through November 2007. As President Bush the
first said, $1 billion in trade deficit costs 13,000 jobs. Do the math.
Just with China alone, this is the highest annual imbalance ever
recorded with a single country, with any bilateral relationship in
world history. The trade deficit we have with China now accounts for 33
percent of the U.S. total trade deficit in goods.
Since 1982, our Nation has accumulated trade deficits of $4.3
trillion. That is money that must be eventually repaid. When you look
at $4.3 trillion, think of the first President Bush's formula: a
billion-dollar trade deficit costs 13,000 jobs.
Today, Americans are losing jobs for reasons, frankly, that have
nothing to do with this recession. They have much to do with our
country's narrow, myopic, tunnel-vision trade policies. When we craft
trade deals that favor gains for multinational corporations over
evenhanded competition for both trading partners, why should we be
surprised when U.S. companies are crippled or they move out of the
country? In Tippin, OH, where I visited a week and a half ago, workers
are losing their pensions, health care, or the company has come in and
raided these communities and put people out of work, so there are less
dollars for schools, less dollars for police protection, for fire
protection, and fewer dollars for the local hardware store, fewer
dollars for the local restaurants, all of that.
That is why we need to enforce trade rules meant to prevent
anticompetitive practices by countries such as China. We should not be
surprised when our manufacturing sector--which is not only crucial to
our economy but to national security--falters because of these
anticompetitive practices. It is not in our Nation's best interest to
rely on other nations for our defense infrastructure, our
transportation infrastructure, our industrial infrastructure.
The tragedy is, we in this country do the best research and
development in the world. We do the research and development and so
often companies take that research and development and make the
products in other countries. Then we continue to do research and
development, and they continue to take the production of these items
and goods and this research and these high-tech products out of our
country. The research and development certainly creates jobs, good,
high-paying jobs, many in the State of the Presiding Officer and many
in mine.
The fact is, we cannot continue to run an economy when we do the
research and development in this country and then we farm out the
production of those goods that are developed to other countries, to
exploit low-wage labor, to exploit weak environmental laws, to exploit
worker safety laws, to exploit the consumer products safety net. Look
at the toxic toys coming from China and the contaminated toothpaste and
dog food, and the unsafe tires coming from countries that don't have a
consumer products safety net and the food safety net we have.
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We clearly need a stronger manufacturing sector such as we have had
in our history. That sector cannot effectively compete against
companies subsidized by the Chinese Government, companies that pay
slave wages, that too often churn out dangerous toys that end up in our
children's bedrooms, and toxic, contaminated food that ends up too
often in our families breakfast rooms.
On a level, competitive playing field, U.S. companies thrive. When
the cards are stacked against them, they struggle, of course.
In 2007, prior to the onset of the 2008 recession, 217,000
manufacturing jobs across the country were lost. That was last year
before this recession seems to have deepened. Madam President, 217,000
jobs were lost in the manufacturing sector last year in places such as
Youngstown, Warren, Ravenna, and Lima, all over my State.
The United States now has fewer manufacturing jobs--get this--the
United States, now with 300 million people, has fewer manufacturing
jobs today than it did in 1950 when we had about 150 million people in
our country. Manufacturing jobs bring wealth to our communities. A job
that pays $15 an hour in Marion, OH, and pays $14 an hour in
Springfield, OH, brings wealth into the community that spends out into
other jobs and prosperity for other people in the community.
We have lost more than 3 million manufacturing jobs since President
Bush took office in 2001. Many of these jobs have been eliminated
because of imports from China or direct offshoring to countries such as
China.
Last week, NewPage, a paper manufacturing company based in
Miamisburg, OH, near Dayton, announced it was shutting down plants in
Wisconsin, Maine, and Chillicothe, OH. Heavily government-subsidized
Chinese paper producers account for nearly 50 percent of the world
market.
One country, because of subsidies and low wages, unenforced
environmental rules, and pretty much nonexistent protection for
workers, accounts for 50 percent of the world market. That is not free
trade, that is a racket.
China has done little to address the fundamental misalignment of its
currency, a practice that continues to take jobs and wealth from our
country, and they don't share it with their workers. If they didn't
have an oppressive, authoritarian government, it would be a different
story. They are taking wealth out of our country, and it means higher
profits for outsourcing companies, more money for the Chinese Communist
Party, for the People's Liberation Army, but not much for Chinese
workers.
When we allow China to manipulate currency, trade isn't free, it is
fixed. When we allow China to import dangerous products into our
country, we should not be surprised when Americans balk.
It took generations for our Nation to build a solid product safety
system. If we don't demand safe imports from China and our other
trading partner nations, our investment in U.S. product safety becomes
an exercise in futility. Think how it happens. U.S. companies shut down
an American toy manufacturer, for instance, and those U.S. companies,
after shutting down the manufacturing in the United States, move to
China. China is a country with low wages, unenforced environmental and
worker safety standards. The U.S. company goes to China because of weak
environmental and worker safety standards and low wages. Because they
don't enforce those rules, you know what is going to happen. Products
made in those countries will be made in bad conditions, and there is
likely to be toxic or dangerous toys, and more likely to be
contaminated food.
The U.S. companies in China then push their Chinese subcontractors to
cut costs because they want more profit. So they are pushing the
Chinese subcontractors to cut costs, and then those products that are
imported into the United States are even more dangerous. Then the
Consumer Products Safety Commission in this country--because of
President Bush's decisions, we have weakened the regulatory system, so
those products come in and there are not enough inspectors. The laws
are weakened, so the dangerous toys and contaminated food too often
ends up in our family rooms, bedrooms, and our kitchens.
Some free-trade proponents say workers and consumers should get over
it, get used to it; it is globalization and there is nothing you can do
about it. That is wrong.
Continuing this course will not only cost the middle class more jobs,
it will cost our economy its global leadership. It will foist so much
debt on our children and their children that basic economic security,
basic retirement security may be reserved for the fortunate few.
Certainly not the middle class. And as for the poor, just let them eat
cake.
The people in Ohio, in all corners, are swimming upstream against
deteriorating economic forces. One important reason for that is that
Federal policymakers continue to cling to the fantasy that markets run
themselves and police themselves, and as long as the rich are getting
richer, wealth will trickle down, jobs will be created, and everybody
is better off.
It is time to take the blinders off. To secure our economy for the
future, we need to write trade rules that crack down on anticompetitive
gaming. In our country, still the most powerful in the world, with the
most vigorous economy, we need to write trade rules that crack down on
anticompetitive gaming of the system. That is what they have done. We
need trade rules that prevent dangerous products from entering our
country. We need trade rules that acknowledge that destroying the
environment in any country, whether it is China or the United States,
is a threat to every country.
We need to take responsibility for the consequences of our inaction
when it comes to trade policy. We need to take responsibility for the
consequences of mistakes we have made in writing trade policy. We need
to change course, and we need to do it now.
I yield the floor.
(Mr. CASEY assumed the Chair.)
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