[House Report 109-680]
[From the U.S. Government Publishing Office]



109th Congress                                            Rept. 109-680
                        HOUSE OF REPRESENTATIVES
 2d Session                                                      Part 2

======================================================================
 
               ELECTRONIC SURVEILLANCE MODERNIZATION ACT

                                _______
                                

               September 25, 2006.--Ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                    DISSENTING AND ADDITIONAL VIEWS

                        [To accompany H.R. 5825]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 5825) to update the Foreign Intelligence Surveillance Act 
of 1978, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Electronic Surveillance Modernization 
Act''.

SEC. 2. FINDING.

  Congress finds that article I, section 8, clause 18 of the 
Constitution, known as the ``necessary and proper clause'', grants 
Congress clear authority to regulate the President's inherent power to 
gather foreign intelligence.

SEC. 3. FISA DEFINITIONS.

  (a) Agent of a Foreign Power.--Subsection (b)(1) of section 101 of 
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) is 
amended--
          (1) in subparagraph (B), by striking ``; or'' and inserting 
        ``;''; and
          (2) by adding at the end the following:
                  ``(D) is reasonably expected to possess, control, 
                transmit, or receive foreign intelligence information 
                while such person is in the United States, provided 
                that the official making the certification required by 
                section 104(a)(7) deems such foreign intelligence 
                information to be significant; or''.
  (b) Electronic Surveillance.--Subsection (f) of such section is 
amended to read as follows:
  ``(f) `Electronic surveillance' means--
          ``(1) the installation or use of an electronic, mechanical, 
        or other surveillance device for acquiring information by 
        intentionally directing surveillance at a particular known 
        person who is reasonably believed to be in the United States 
        under circumstances in which that person has a reasonable 
        expectation of privacy and a warrant would be required for law 
        enforcement purposes; or
          ``(2) the intentional acquisition of the contents of any 
        communication under circumstances in which a person has a 
        reasonable expectation of privacy and a warrant would be 
        required for law enforcement purposes, if both the sender and 
        all intended recipients are reasonably believed to be located 
        within the United States.''.
  (c) Contents.--Subsection (n) of such section is amended to read as 
follows:
  ``(n) `Contents', when used with respect to a communication, includes 
any information concerning the substance, purport, or meaning of that 
communication.''.

SEC. 4. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE AND OTHER 
                    ACQUISITIONS FOR FOREIGN INTELLIGENCE PURPOSES.

  (a) In General.--The Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1801 et seq.) is further amended by striking section 102 and 
inserting the following:
 ``authorization for electronic surveillance for foreign intelligence 
                                purposes
  ``Sec. 102.  (a) In General.--Notwithstanding any other law, the 
President, acting through the Attorney General, may authorize 
electronic surveillance without a court order under this title to 
acquire foreign intelligence information for periods of up to one year 
if the Attorney General certifies in writing under oath that--
          ``(1) the electronic surveillance is directed at--
                  ``(A) the acquisition of the contents of 
                communications of foreign powers, as defined in 
                paragraph (1), (2), or (3) of section 101(a), or an 
                agent of a foreign power, as defined in subparagraph 
                (A) or (B) of section 101(b)(1); or
                  ``(B) the acquisition of technical intelligence, 
                other than the spoken communications of individuals, 
                from property or premises under the open and exclusive 
                control of a foreign power, as defined in paragraph 
                (1), (2), or (3) of section 101(a); and
          ``(2) the proposed minimization procedures with respect to 
        such surveillance meet the definition of minimization 
        procedures under section 101(h);
if the Attorney General reports such minimization procedures and any 
changes thereto to the Permanent Select Committee on Intelligence of 
the House of Representatives and the Select Committee on Intelligence 
of the Senate at least 30 days prior to the effective date of such 
minimization procedures, unless the Attorney General determines 
immediate action is required and notifies the committees immediately of 
such minimization procedures and the reason for their becoming 
effective immediately.
  ``(b) Minimization Procedures.--An electronic surveillance authorized 
by this subsection may be conducted only in accordance with the 
Attorney General's certification and the minimization procedures. The 
Attorney General shall assess compliance with such procedures and shall 
report such assessments to the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select Committee 
on Intelligence of the Senate under the provisions of section 108(a).
  ``(c) Submission of Certification.--The Attorney General shall 
immediately transmit under seal to the court established under section 
103(a) a copy of his certification. Such certification shall be 
maintained under security measures established by the Chief Justice 
with the concurrence of the Attorney General, in consultation with the 
Director of National Intelligence, and shall remain sealed unless--
          ``(1) an application for a court order with respect to the 
        surveillance is made under section 104; or
          ``(2) the certification is necessary to determine the 
        legality of the surveillance under section 106(f).
  ``authorization for acquisition of foreign intelligence information
  ``Sec. 102A.  (a) In General.--Notwithstanding any other law, the 
President, acting through the Attorney General may, for periods of up 
to one year, authorize the acquisition of foreign intelligence 
information concerning a person reasonably believed to be outside the 
United States if the Attorney General certifies in writing under oath 
that--
          ``(1) the acquisition does not constitute electronic 
        surveillance;
          ``(2) the acquisition involves obtaining the foreign 
        intelligence information from or with the assistance of a wire 
        or electronic communications service provider, custodian, or 
        other person (including any officer, employee, agent, or other 
        specified person of such service provider, custodian, or other 
        person) who has access to wire or electronic communications, 
        either as they are transmitted or while they are stored, or 
        equipment that is being or may be used to transmit or store 
        such communications;
          ``(3) a significant purpose of the acquisition is to obtain 
        foreign intelligence information; and
          ``(4) the proposed minimization procedures with respect to 
        such acquisition activity meet the definition of minimization 
        procedures under section 101(h).
  ``(b) Specific Place Not Required.--A certification under subsection 
(a) is not required to identify the specific facilities, places, 
premises, or property at which the acquisition of foreign intelligence 
information will be directed.
  ``(c) Submission of Certification.--The Attorney General shall 
immediately transmit under seal to the court established under section 
103(a) a copy of a certification made under subsection (a). Such 
certification shall be maintained under security measures established 
by the Chief Justice of the United States and the Attorney General, in 
consultation with the Director of National Intelligence, and shall 
remain sealed unless the certification is necessary to determine the 
legality of the acquisition under section 102B.
  ``(d) Minimization Procedures.--An acquisition under this section may 
be conducted only in accordance with the certification of the Attorney 
General and the minimization procedures adopted by the Attorney 
General. The Attorney General shall assess compliance with such 
procedures and shall report such assessments to the Permanent Select 
Committee on Intelligence of the House of Representatives and the 
Select Committee on Intelligence of the Senate under section 108(a).
``directives relating to electronic surveillance and other acquisitions 
                  of foreign intelligence information
  ``Sec. 102B.  (a) Directive.--With respect to an authorization of 
electronic surveillance under section 102 or an authorization of an 
acquisition under section 102A, the Attorney General may direct a 
person to--
          ``(1) immediately provide the Government with all 
        information, facilities, and assistance necessary to accomplish 
        the acquisition of foreign intelligence information in such a 
        manner as will protect the secrecy of the electronic 
        surveillance or acquisition and produce a minimum of 
        interference with the services that such person is providing to 
        the target; and
          ``(2) maintain under security procedures approved by the 
        Attorney General and the Director of National Intelligence any 
        records concerning the electronic surveillance or acquisition 
        or the aid furnished that such person wishes to maintain.
  ``(b) Compensation.--The Government shall compensate, at the 
prevailing rate, a person for providing information, facilities, or 
assistance pursuant to subsection (a).
  ``(c) Failure to Comply.--In the case of a failure to comply with a 
directive issued pursuant to subsection (a), the Attorney General may 
petition the court established under section 103(a) to compel 
compliance with the directive. The court shall issue an order requiring 
the person or entity to comply with the directive if it finds that the 
directive was issued in accordance with section 102(a) or 102A(a) and 
is otherwise lawful. Failure to obey an order of the court may be 
punished by the court as contempt of court. Any process under this 
section may be served in any judicial district in which the person or 
entity may be found.
  ``(d) Review of Petitions.--(1) In General.--(A) Challenge.--A person 
receiving a directive issued pursuant to subsection (a) may challenge 
the legality of that directive by filing a petition with the pool 
established under section 103(e)(1).
  ``(B) Assignment of Judge.--The presiding judge designated pursuant 
to section 103(b) shall assign a petition filed under subparagraph (A) 
to one of the judges serving in the pool established by section 
103(e)(1). Not later than 24 hours after the assignment of such 
petition, the assigned judge shall conduct an initial review of the 
directive. If the assigned judge determines that the petition is 
frivolous, the assigned judge shall deny the petition and affirm the 
directive or any part of the directive that is the subject of the 
petition. If the assigned judge determines the petition is not 
frivolous, the assigned judge shall, within 72 hours, consider the 
petition in accordance with the procedures established under section 
103(e)(2) and provide a written statement for the record of the reasons 
for any determination under this subsection.
  ``(2) Standard of Review.--A judge considering a petition to modify 
or set aside a directive may grant such petition only if the judge 
finds that such 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 affirm such directive, and order 
the recipient to comply with such directive.
  ``(3) Directives Not Modified.--Any directive not explicitly modified 
or set aside under this subsection shall remain in full effect.
  ``(e) Appeals.--The Government or a person receiving a directive 
reviewed pursuant to subsection (d) may file a petition with the court 
of review established under section 103(b) for review of the decision 
issued pursuant to subsection (d) not later than 7 days after the 
issuance of such decision. Such court of review shall have jurisdiction 
to consider such petitions and shall provide for the record a written 
statement of the reasons for its decision. On petition by the 
Government or any person receiving such directive for a writ of 
certiorari, the record shall be transmitted under seal to the Supreme 
Court, which shall have jurisdiction to review such decision.
  ``(f) Proceedings.--Judicial proceedings under this section shall be 
concluded as expeditiously as possible. The record of proceedings, 
including petitions filed, orders granted, and statements of reasons 
for decision, shall be maintained under security measures established 
by the Chief Justice of the United States, in consultation with the 
Attorney General and the Director of National Intelligence.
  ``(g) Sealed Petitions.--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.
  ``(h) Liability.--No cause of action shall lie in any court against 
any person for providing any information, facilities, or assistance in 
accordance with a directive under this section.
  ``(i) Use of Information.--Information acquired pursuant to a 
directive by the Attorney General under this section concerning any 
United States person may be used and disclosed by Federal officers and 
employees without the consent of the United States person only in 
accordance with the minimization procedures required by section 102(a) 
or 102A(a). No otherwise privileged communication obtained in 
accordance with, or in violation of, the provisions of this section 
shall lose its privileged character. No information from an electronic 
surveillance under section 102 or an acquisition pursuant to section 
102A may be used or disclosed by Federal officers or employees except 
for lawful purposes.
  ``(j) Use in Law Enforcement.--No information acquired pursuant to 
this section shall be disclosed for law enforcement purposes unless 
such disclosure is accompanied by a statement that such information, or 
any information derived from such information, may only be used in a 
criminal proceeding with the advance authorization of the Attorney 
General.
  ``(k) Disclosure in Trial.--If the Government intends to enter into 
evidence or otherwise use or disclose in any trial, hearing, or other 
proceeding in or before any court, department, officer, agency, 
regulatory body, or other authority of the United States, against an 
aggrieved person, any information obtained or derived from an 
electronic surveillance conducted under section 102 or an acquisition 
authorized pursuant to section 102A, the Government shall, prior to the 
trial, hearing, or other proceeding or at a reasonable time prior to an 
effort to disclose or use that information or submit it in evidence, 
notify the aggrieved person and the court or other authority in which 
the information is to be disclosed or used that the Government intends 
to disclose or use such information.
  ``(l) Disclosure in State Trials.--If a State or political 
subdivision of a State intends to enter into evidence or otherwise use 
or disclose in any trial, hearing, or other proceeding in or before any 
court, department, officer, agency, regulatory body, or other authority 
of a State or a political subdivision of a State, against an aggrieved 
person, any information obtained or derived from an electronic 
surveillance authorized pursuant to section 102 or an acquisition 
authorized pursuant to section 102A, the State or political subdivision 
of such State shall notify the aggrieved person, the court, or other 
authority in which the information is to be disclosed or used and the 
Attorney General that the State or political subdivision intends to 
disclose or use such information.
  ``(m) Motion to Exclude Evidence.--(1) In General.--Any person 
against whom evidence obtained or derived from an electronic 
surveillance authorized pursuant to section 102 or an acquisition 
authorized pursuant to section 102A is to be, or has been, used or 
disclosed in any trial, hearing, or other proceeding in or before any 
court, department, officer, agency, regulatory body, or other authority 
of the United States, a State, or a political subdivision thereof, may 
move to suppress the evidence obtained or derived from such electronic 
surveillance or such acquisition on the grounds that--
          ``(A) the information was unlawfully acquired; or
          ``(B) the electronic surveillance or acquisition was not 
        properly made in conformity with an authorization under section 
        102(a) or 102A(a).
  ``(2) Timing.--A person moving to suppress evidence under paragraph 
(1) shall make the motion to suppress the evidence before the trial, 
hearing, or other proceeding unless there was no opportunity to make 
such a motion or the person was not aware of the grounds of the motion.
  ``(n) Review of Motions.--If a court or other authority is notified 
pursuant to subsection (k) or (l), a motion is made pursuant to 
subsection (m), or a motion or request is made by an aggrieved person 
pursuant to any other statute or rule of the United States or any State 
before any court or other authority of the United States or any State--
          ``(1) to discover or obtain an Attorney General directive or 
        other materials relating to an electronic surveillance 
        authorized pursuant to section 102 or an acquisition authorized 
        pursuant to section 102A, or
          ``(2) to discover, obtain, or suppress evidence or 
        information obtained or derived from an electronic surveillance 
        authorized pursuant to section 102 or an acquisition authorized 
        pursuant to section 102A,
the United States district court or, where the motion is made before 
another authority, the United States district court in the same 
district as the authority, shall, notwithstanding any other law, if the 
Attorney General files an affidavit under oath that disclosure or an 
adversary hearing would harm the national security of the United 
States, review in camera and ex parte the application, order, and such 
other materials relating to such electronic surveillance or such 
acquisition as may be necessary to determine whether such electronic 
surveillance or such acquisition authorized under this section was 
lawfully authorized and conducted. In making this determination, the 
court may disclose to the aggrieved person, under appropriate security 
procedures and protective orders, portions of the directive or other 
materials relating to the acquisition only where such disclosure is 
necessary to make an accurate determination of the legality of the 
acquisition.
  ``(o) Determinations.--If, pursuant to subsection (n), a United 
States district court determines that the acquisition authorized under 
this section was not lawfully authorized or conducted, it shall, in 
accordance with the requirements of law, suppress the evidence which 
was unlawfully obtained or derived or otherwise grant the motion of the 
aggrieved person. If the court determines that such acquisition was 
lawfully authorized and conducted, it shall deny the motion of the 
aggrieved person except to the extent that due process requires 
discovery or disclosure.
  ``(p) Binding Orders.--Orders granting motions or requests under 
subsection (m), decisions under this section that an electronic 
surveillance or an acquisition was not lawfully authorized or 
conducted, and orders of the United States district court requiring 
review or granting disclosure of directives, orders, or other materials 
relating to such acquisition shall be final orders and binding upon all 
courts of the United States and the several States except a United 
States court of appeals and the Supreme Court.
  ``(q) Coordination.--(1) In General.--Federal officers who acquire 
foreign intelligence information may consult with Federal law 
enforcement officers or law enforcement personnel of a State or 
political subdivision of a State, including the chief executive officer 
of that State or political subdivision who has the authority to appoint 
or direct the chief law enforcement officer of that State or political 
subdivision, to coordinate efforts to investigate or protect against--
          ``(A) actual or potential attack or other grave hostile acts 
        of a foreign power or an agent of a foreign power;
          ``(B) sabotage, international terrorism, or the development 
        or proliferation of weapons of mass destruction by a foreign 
        power or an agent of a foreign power; or
          ``(C) clandestine intelligence activities by an intelligence 
        service or network of a foreign power or by an agent of a 
        foreign power.
  ``(2) Certification Required.--Coordination authorized under 
paragraph (1) shall not preclude the certification required by section 
102(a) or 102A(a).
  ``(r) Retention of Directives and Orders.--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.''.
  (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 by inserting after the item relating to section 102 
the following:

``102A. Authorization for acquisition of foreign intelligence 
information.
``102B. Directives relating to electronic surveillance and other 
acquisitions of foreign intelligence information.''.

SEC. 5. JURISDICTION OF FISA COURT.

  Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 
U.S.C. 1803) is amended by adding at the end the following new 
subsection:
  ``(g) Applications for a court order under this title are authorized 
if the President has, by written authorization, empowered the Attorney 
General to approve applications to the court having jurisdiction under 
this section, and a judge to whom an application is made may, 
notwithstanding any other law, grant an order, in conformity with 
section 105, approving electronic surveillance of a foreign power or an 
agent of a foreign power for the purpose of obtaining foreign 
intelligence information.''.

SEC. 6. 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) in paragraph (6), by striking ``detailed 
                description'' and inserting ``summary description'';
                  (B) in paragraph (7)--
                          (i) in the matter preceding subparagraph (A), 
                        by striking ``or officials designated'' and all 
                        that follows through ``consent of the Senate'' 
                        and inserting ``designated by the President to 
                        authorize electronic surveillance for foreign 
                        intelligence purposes'';
                          (ii) in subparagraph (C), by striking 
                        ``techniques;'' and inserting ``techniques; 
                        and'';
                          (iii) by striking subparagraph (D); and
                          (iv) by redesignating subparagraph (E) as 
                        subparagraph (D);
                  (C) in paragraph (8), by striking ``a statement of 
                the means'' and inserting ``a summary statement of the 
                means'';
                  (D) in paragraph (9)--
                          (i) by striking ``a statement'' and inserting 
                        ``a summary statement''; and
                          (ii) by striking ``application;'' and 
                        inserting ``application; and'';
                  (E) in paragraph (10), by striking ``thereafter; 
                and'' and inserting ``thereafter.''; and
                  (F) by striking paragraph (11).
          (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), by striking ``or the Director of National 
        Intelligence'' and inserting ``the Director of National 
        Intelligence, or the Director of the Central Intelligence 
        Agency''.

SEC. 7. 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 (c)(1)--
                  (A) in subparagraph (D), by striking 
                ``surveillance;'' and inserting ``surveillance; and'';
                  (B) in subparagraph (E), by striking ``approved; 
                and'' and inserting ``approved.''; and
                  (C) by striking subparagraph (F);
          (3) by striking subsection (d);
          (4) by redesignating subsections (e) through (i) as 
        subsections (d) through (h), respectively;
          (5) in subsection (d), as redesignated by paragraph (4), by 
        amending paragraph (2) to read as follows:
  ``(2) Extensions of an order issued under this title may be granted 
on the same basis as an original order upon an application for an 
extension and new findings made in the same manner as required for an 
original order and may be for a period not to exceed one year.''.
          (6) in subsection (e), as redesignated by paragraph (4), to 
        read as follows:
  ``(e) Notwithstanding any other provision of this title, an official 
appointed by the President with the advice and consent of the Senate 
that is designated by the President to authorize electronic 
surveillance may authorize the emergency employment of electronic 
surveillance if--
          ``(1) such official 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;
          ``(2) such official determines that the factual basis for 
        issuance of an order under this title to approve such 
        electronic surveillance exists;
          ``(3) such official informs the Attorney General of such 
        electronic surveillance;
          ``(4) the Attorney General or a designee of the Attorney 
        General informs a judge having jurisdiction under section 103 
        of such electronic surveillance as soon as practicable, but in 
        no case more than 7 days after the date on which such 
        electronic surveillance is authorized;
          ``(5) an application in accordance with this title is made to 
        such judge or another judge having jurisdiction under section 
        103 as soon as practicable, but not more than 7 days after such 
        electronic surveillance is authorized;
          ``(6) such official requires that the minimization procedures 
        required by this title for the issuance of a judicial order be 
        followed.
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 7 days from the time of authorization by such 
official, whichever is earliest. In the event that the application for 
approval submitted pursuant to paragraph (5) 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. A denial of the 
application made pursuant to paragraph (5) may be reviewed as provided 
in section 103.'';
          (7) in subsection (h), as redesignated by paragraph (4)--
                  (A) by striking ``a wire or'' and inserting ``an''; 
                and
                  (B) by striking ``physical search'' and inserting 
                ``physical search or in response to a certification by 
                the Attorney General or a designee of the Attorney 
                General seeking information, facilities, or technical 
                assistance from such person under section 102B''; and
          (8) by adding at the end the following new subsection:
  ``(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, the judge shall 
also authorize the installation and use of pen registers and trap and 
trace devices to acquire dialing, routing, addressing, and signaling 
information related to such communications and such dialing, routing, 
addressing, and signaling information shall not be subject to 
minimization procedures.''.

SEC. 8. USE OF INFORMATION.

  Section 106(i) of the Foreign Intelligence Surveillance Act of 1978 
(50 U.S.C. 1806(i)) is amended--
          (1) by striking ``radio communication'' and inserting 
        ``communication''; and
          (2) by striking ``contents indicates'' and inserting 
        ``contents contain significant foreign intelligence information 
        or indicate''.

SEC. 9. CONGRESSIONAL OVERSIGHT.

  (a) Electronic Surveillance Under FISA.--Section 108 of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1808) is amended--
          (1) in subsection (a)(1), by inserting ``each member of'' 
        before ``the House Permanent Select Committee on 
        Intelligence''; and
          (2) in subsection (a)(2)--
                  (A) in subparagraph (B), by striking ``and'' at the 
                end;
                  (B) in subparagraph (C), by striking the period and 
                inserting ``; and''; and
                  (C) by adding at the end the following new 
                subparagraph:
                  ``(D) the authority under which the electronic 
                surveillance is conducted.''; and
          (3) in subsection (a), by adding at the end the following new 
        paragraph:
          ``(3) Each report submitted under this subsection shall 
        include reports on electronic surveillance conducted without a 
        court order.''.
  (b) Intelligence Activities.--Section 501 of the National Security 
Act of 1947 (50 U.S.C. 413) is amended--
          (1) in subsection (a)(1), by inserting ``each member of'' 
        before ``the congressional intelligence committees''; and
          (2) in subsection (b), by inserting ``each member of'' before 
        ``the congressional intelligence committees''.

SEC. 10. INTERNATIONAL MOVEMENT OF TARGETS.

  (a) Electronic Surveillance.--Section 105(d) of the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)), as 
redesignated by section 7(4), is amended by adding at the end the 
following new paragraph:
  ``(4) An order issued under this section shall remain in force during 
the authorized period of surveillance notwithstanding the absence of 
the target from the United States, unless the Government files a motion 
to extinguish the order and the court grants the motion.''.
  (b) Physical Search.--Section 304(d) of the Foreign Intelligence 
Surveillance Act of 1978 (50 U.S.C. 1824(d)) is amended by adding at 
the end the following new paragraph:
  ``(4) An order issued under this section shall remain in force during 
the authorized period of surveillance notwithstanding the absence of 
the target from the United States, unless the Government files a motion 
to extinguish the order and the court grants the motion.''.

SEC. 11. COMPLIANCE WITH COURT ORDERS AND ANTITERRORISM PROGRAMS.

  (a) In General.--Notwithstanding any other provision of law, and in 
addition to the immunities, privileges, and defenses provided by any 
other provision of law, no action shall lie or be maintained in any 
court, and no penalty, sanction, or other form of remedy or relief 
shall be imposed by any court or any other body, against any person for 
an activity arising from or relating to any alleged intelligence 
program involving electronic surveillance that the Attorney General or 
a designee of the Attorney General certifies, in a manner consistent 
with the protection of State secrets, is, was, or would be intended to 
protect the United States from a terrorist attack. This section shall 
apply to all actions or proceedings pending on or after the effective 
date of this Act.
  (b) Jurisdiction.--Any action or claim described in subsection (a) 
that is brought in a State court shall be deemed to arise under the 
Constitution and laws of the United States and shall be removable 
pursuant to section 1441 of title 28, United States Code.
  (c) Definitions.--In this section:
          (1) The term ``electronic surveillance'' has the meaning 
        given the term in section 101(f) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801(f)) on the day before 
        the date of the enactment of this Act.
          (2) The term ``person'' has the meaning given the term in 
        section 2510(6) of title 18, United States Code.

SEC. 12. REPORT ON MINIMIZATION PROCEDURES.

  (a) Report.--Not later than two years after the date of the enactment 
of this Act, and annually thereafter until December 31, 2009, the 
Director of the National Security Agency, in consultation with the 
Director of National Intelligence and the Attorney General, shall 
submit to the Permanent Select Committee on Intelligence of the House 
of Representatives and the Select Committee on Intelligence of the 
Senate a report on the effectiveness and use of minimization procedures 
applied to information concerning United States persons acquired by 
means that were considered electronic surveillance as that term was 
defined by section 101(f) of the Foreign Intelligence Surveillance Act 
of 1978 (50 U.S.C. 1801(f)) on the day before the date of the enactment 
of this Act but no longer constitutes electronic surveillance as of the 
effective date of this Act.
  (b) Requirements.--A report submitted under subsection (a) shall 
include--
          (1) a description of the implementation, during the course of 
        communications intelligence activities conducted by the 
        National Security Agency, of procedures established to minimize 
        the acquisition, retention, and dissemination of nonpublicly 
        available information concerning United States persons;
          (2) the number of significant violations, if any, of such 
        minimization procedures during the 18 months following the 
        effective date of this Act; and
          (3) summary descriptions of such violations.
  (c) Retention of Information.--Information concerning United States 
persons shall not be retained solely for the purpose of complying with 
the reporting requirements of this section.
  (d) Minimization Procedures Defined.--In this section, the term 
``minimization procedures'' has the meaning given the term in section 
101(h) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
1801(h)).

SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS.

  The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
seq.) is further amended--
          (1) in section 101(h)(4), by striking ``approved pursuant to 
        section 102(a),'' and inserting ``authorized pursuant to 
        section 102 or any acquisition authorized pursuant to section 
        102A'';
          (2) in section 105(a)(4), as redesignated by section 
        7(1)(B)--
                  (A) by striking ``104(a)(7)(E)'' and inserting 
                ``104(a)(6)(D)''; and
                  (B) by striking ``104(d)'' and inserting ``104(c)'';
          (3) in section 106--
                  (A) in subsection (j) in the matter preceding 
                paragraph (1), by striking ``105(e)'' and inserting 
                ``105(d)''; and
                  (B) in subsection (k)(2), by striking 
                ``104(a)(7)(B)'' and inserting ``104(a)(6)(B)''; and
          (4) in section 108(a)(2)(C), by striking ``105(f)'' and 
        inserting ``105(e)''.

                          Purpose and Summary

    Representative Heather Wilson, Judiciary Committee Chairman 
Sensenbrenner, and Select Committee on Intelligence Chairman 
Hoekstra introduced H.R. 5825, the ``Electronic Surveillance 
Modernization Act,'' on July 18, 2006. This bill would 
strengthen oversight of the executive branch and enhance 
accountability, clarify the scope and applicability of FISA 
(Foreign Intelligence Surveillance Act) warrants; and update 
the 1978 Foreign Intelligence Surveillance Act to reflect 
modern changes in technology and communication.

                Background and Need for the Legislation

    H.R. 5825 pertains to the manner in which the Federal 
government collects oral, wire and electronic communications 
for foreign intelligence purposes. Congress enacted the first 
Federal wiretap statute during World War I.\1\ The authority 
and limits of government surveillance have been the focus of 
extensive judicial consideration. By the time the United States 
Supreme Court ruled on the issue in Olmstead v. United 
States,\2\ over 40 States had banned wiretapping. In the 
Olmstead case, the Court found that a wiretap of a Seattle 
bootlegger did not violate the Fourth Amendment because there 
was not ``an official search and seizure of his person, or such 
a seizure of his papers or his tangible material effects, or an 
actual physical invasion of his house or curtilage for the 
purposes of making a seizure.'' \3\ Subsequent decisions eroded 
the Olmstead holding, however.
---------------------------------------------------------------------------
    \1\ Charles Doyle, and Gina Stevens, Congressional Research 
Service, Library of Congress, Privacy: An Overview of Federal Statutes 
Governing Wiretapping and Electronic Eavesdropping, at 2 (2001).
    \2\ 277 U.S. 438 (1928).
    \3\ Id. at 466.
---------------------------------------------------------------------------
    Today, United States courts tend to use a two-prong 
expectation of privacy analysis to determine whether the Fourth 
Amendment has been violated.\4\ Justice Harlan's concurrence in 
Silverman v. United States,\5\ highlights the analysis stating 
``. . . there is a twofold requirement, first that a person 
have exhibited an actual (subjective) expectation of privacy 
and, second, that the expectation be one that society is 
prepared to recognize as reasonable.''
---------------------------------------------------------------------------
    \4\ Charles Doyle, and Gina Stevens, Congressional Research 
Service, Library of Congress, Privacy: An Overview of Federal Statutes 
Governing Wiretapping and Electronic Eavesdropping, at 5 n.15 (2001).
    \5\ 389 U.S. 347, 361 (1967).
---------------------------------------------------------------------------
    In order to safeguard Fourth Amendment protections, 
Congress has created procedures to allow limited law 
enforcement access to private communications and communication 
records. Specifically, Congress enacted Title III of the 
Omnibus Crime Control and Safe Streets Act of 1968,\6\ that 
outlines what is and is not permissible with regard to 
wiretapping and electronic eavesdropping.\7\ Title III of the 
Crime Control Act, authorizes the use of electronic 
surveillance for crimes specified in 18 U.S.C. 2516.
---------------------------------------------------------------------------
    \6\ 87 Stat. 197, 18 U.S.C. 2510-2520 (1970 ed.) (Title III of the 
Crime Control Act).
    \7\ Charles Doyle, and Gina Stevens, Congressional Research 
Service, Library of Congress, Privacy: An Overview of Federal Statutes 
Governing Wiretapping and Electronic Eavesdropping, at 6 (2001).
---------------------------------------------------------------------------
    While Congress did not cover national security cases in the 
Crime Control Act, it did include a disclaimer that the wiretap 
laws did not affect the President's constitutional duty to 
protect National Security. In 1972, the U.S. Supreme Court 
rejected the claim that this disclaimer applied to domestic 
security case.\8\ The Court specifically invited Congress to 
establish similar standards for domestic intelligence that were 
established for criminal investigations.\9\
---------------------------------------------------------------------------
    \8\ United States v. United States District Court, 407 U.S. 297 
(1972).
    \9\ ``Moreover, we do not hold that the same type of standards and 
procedures prescribed by Title III are necessarily applicable to this 
case. We recognize that domestic security surveillance may involve 
different policy and practical considerations from the surveillance of 
`ordinary crime'. The gathering of security intelligence is often long 
range and involves the interrelation of various sources and types of 
information. The exact targets of such surveillance may be more 
difficult to identify than in surveillance operations against many 
types of crime specified in Title III. Often, too, the emphasis of 
domestic intelligence gathering is on the prevention of unlawful 
activity or the enhancement of the Government's preparedness for some 
possible future crisis or emergency. Thus, the focus of domestic 
surveillance may be less precise than that directed against more 
conventional types of crime.
    Given these potential distinctions between Title III criminal 
surveillances and those involving the domestic security, Congress may 
wish to consider protective standards for the latter which differ from 
those already prescribed for specified crimes in Title III. Different 
standards may be compatible with the Fourth Amendment [407 U.S. 297, 
323] if they are reasonable both in relation to the legitimate need of 
Government for intelligence information and the protected rights of our 
citizens. For the warrant application may vary according to the 
governmental interest to be enforced and the nature of citizen rights 
deserving protection. As the Court said in Camara v. Municipal Court, 
387 U.S. 523, 534-535 (1967):
    ``In cases in which the Fourth Amendment requires that a warrant to 
search be obtained, `probable cause' is the standard by which a 
particular decision to search is tested against the constitutional 
mandate of reasonableness. . . . In determining whether a particular 
inspection is reasonable--and thus in determining whether there is 
probable cause to issue a warrant for that inspection--the need for the 
inspection must be weighed in terms of these reasonable goals of code 
enforcement.''
    It may be that Congress, for example, would judge that the 
application and affidavit showing probable cause need not follow the 
exact requirements of 2518 but should allege other circumstances more 
appropriate to domestic security cases; that the request for prior 
court authorization could, in sensitive cases, be made to any member of 
a specially designated court (e.g., the District Court for the District 
of Columbia or the Court of Appeals for the District of Columbia 
Circuit); and that the time and reporting requirements need not be so 
strict as those in 2518. Id. at 322.
---------------------------------------------------------------------------
    Congress enacted the Foreign Intelligence Surveillance Act 
of 1978 (FISA),\10\ to prescribe procedures for foreign 
intelligence collected domestically. FISA authorized the 
Federal government to collect intelligence within the United 
States on foreign powers and agents of foreign powers. It 
established a special court to review and authorize or deny 
wiretapping and other forms of electronic eavesdropping for 
purposes of foreign intelligence gathering in domestic 
surveillance cases. FISA was enacted by Congress to secure the 
integrity of the Fourth Amendment while protecting the national 
security interest of the United States by providing a mechanism 
for the domestic collection of foreign intelligence 
information.
---------------------------------------------------------------------------
    \10\ 92 Stat. 1783, 50 U.S.C. 1801 et seq.
---------------------------------------------------------------------------
    Changes in technology have caused an unintentional shift in 
the focus and reach of FISA. When FISA was enacted, domestic 
communications were ordinarily transmitted differently than 
international communications. Domestic communications were 
transmitted via ``wire'' while international communications 
were transmitted via ``radio.'' Over time, however, wire became 
the preferred method of transmitting international 
communications, blurring the technology-centered distinction 
between international and domestic communications.
    As General Hayden testified before the Senate on July 26, 
2006, the:

. . . NSA intercepts communications and it does so for only one 
purpose: to protect the lives, the liberties and the well being 
of the citizens of the United States from those who would do us 
harm. By the late 1990s, that job was becoming very difficult. 
The explosion of modern communications in terms of its volume, 
variety and velocity threatened to overwhelm the Agency. The 
September 11th attacks exposed an even more critical fault 
line. The laws of the United States do (and should) distinguish 
between the information space that is America and the rest of 
the planet.
    But modern telecommunications do not so cleanly respect 
that geographic distinction. We exist on a unitary, integrated, 
global telecommunications grid in which geography is an 
increasingly irrelevant factor. What does ``place'' mean when 
one is traversing the World Wide Web? There are no area codes 
on the Internet.
    And if modern telecommunications muted the distinctions of 
geography, our enemy seemed to want to end the distinction 
altogether. After all, he killed 3000 of our countrymen from 
within the homeland.
    In terms of both technology and the character of our enemy, 
``in'' America and ``of'' America no longer were synonymous.
    I testified about this challenge in open session to the 
House Intelligence Committee in April of the year 2000. At the 
time I created some looks of disbeliefwhen I said that if Usama 
bin Ladin crossed the bridge from Niagara Falls, Ontario to Niagara 
Falls, New York, there were provisions of U.S. law that would kick in, 
offer him some protections and affect how NSA could now cover him. At 
the time I was just using this as a stark hypothetical. Seventeen 
months later this was about life and death.
    The legal regime under which NSA was operating--the Foreign 
Intelligence Surveillance Act--had been crafted to protect 
American liberty and American security.
    But the revolution in telecommunications technology has 
extended the actual impact of the FISA regime far beyond what 
Congress could ever have anticipated in 1978. And I don't think 
that anyone could make the claim that the FISA statute was 
optimized to deal with a 9/11 or to deal with a lethal enemy 
who likely already had combatants inside the United States.
    Because of the wording of the statute, the government looks 
to four factors in assessing whether or not a court order was 
required before NSA can lawfully intercept a communication: who 
was the target, where was the target, how did we intercept the 
communication, and where did we intercept the communication.
    The [Specter] bill before the committee today effectively 
re-examines the relevance of each of these factors and the 
criteria we want to use with each.
    Who is the target?
    The FISA regime from 1978 onward focused on specific court 
orders, against individual targets, individually justified and 
individually documented. This was well suited to stable, 
foreign entities on which we wanted to focus for extended 
period of time for foreign intelligence purposes. It is less 
well suited to provide the agility to detect and prevent 
attacks against the homeland.
    In short, its careful, individualized processes exacted 
little cost when the goal was long term and exhaustive 
intelligence coverage against a known and recognizable agent of 
a foreign power. The costs were different when the objective 
was to detect and prevent attacks, when we are in hot pursuit 
of communications entering or leaving the United States 
involving someone associated with al Qa'ida.

           *         *         *         *         *

    Where is the target?
    As I said earlier, geography is becoming less relevant. In 
the age of the Internet and a global communications grid that 
routes communications by the cheapest available bandwidth 
available each nanosecond, should our statutes presume that all 
communications that touch America should be equally protected?

           *         *         *         *         *

    How did we intercept the communication?
    For reasons that seemed sound at the time, current statute 
makes a distinction between collection ``on a wire'' and 
collection out of the air. When the law was passed, almost all 
local calls were on a wire and almost all long haul 
communications were in the air. In an age of cell phones and 
fiber optic cables, that has been reversed . . . with powerful 
and unintended consequences for how NSA can lawfully acquire a 
signal. Legislators in 1978 should not have been expected to 
predict the future of global telecommunications. Neither should 
you. The statute should be technology neutral.
    Where we intercept the communication?
    A single communication can transit the world even if the 
communicants are only a few miles apart. And in that transit 
NSA may have multiple opportunities to intercept it as it moves 
and changes medium. As long as a communication is otherwise 
lawfully targeted, we should be indifferent to where the 
intercept is achieved. Signals intelligence is a difficult art 
and science, especially in today's telecommunication universe. 
Intercept of a particular communication--one that would help 
protect the homeland, for example--is always probabilistic, not 
deterministic. No coverage is guaranteed. We need to be able to 
use all the technological tools we have.
    In that light, there are no communications more important 
to the safety of the Homeland than those affiliated with al 
Qa'ida with one end in the United States. And so why should our 
laws make it more difficult to target the al Qa'ida 
communications that are most important to us--those entering or 
leaving the United States!\11\
---------------------------------------------------------------------------
    \11\ FISA for the 21st Century: Hearing Before the S. Comm. on the 
Judiciary, 109th Cong. (2006).
---------------------------------------------------------------------------
    As we learned from the 9/11 attacks, the enemy will exploit 
any vulnerability in our antiterrorism efforts with 
catastrophic consequences. Congress must ensure that the law 
enforcement and the intelligence communities are given the 
necessary tools and resources to detect and deter credible 
threats to our national security before they materialize. 
Congress has enhanced the tools law enforcement and 
intelligence officers need to fight and win the war against 
terrorism by passing the USA PATRIOT Act, the Homeland Security 
Act and the Intelligence Reform Act. However, the threat has 
not receded, nor has the need to update current law to ensure 
that FISA continues to serve the goals for which it was 
established.
    Congressional hearings demonstrate that FISA must be 
streamlined and technology-neutral. Furthermore, testimony 
highlighted the need for Congress to return FISA's focus to 
protecting Fourth Amendment rights. The General Counsel for the 
National Security Agency pointed out that ``the legislative 
history of the 1978 statute states: `[t]he history and law 
relating to electronic surveillance for `national security' 
purposes have revolved around the competing demands of the 
President's constitutional powers to gather intelligence deemed 
necessary for the security of the nation and the requirements 
of the Fourth Amendment.' \12\ With that balance in mind, H.R. 
5825, the ``Electronic Surveillance Modernization Act,'' works 
to accomplish these goals.
---------------------------------------------------------------------------
    \12\ H. Rpt. 95-1283 at p. 15, 95th Congress, 2d Session, June 8, 
1978.
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary Subcommittee on Crime, 
Terrorism, and Homeland Security held two hearings on H.R. 5825 
on the 6th and 12th of September 2006.

                        Committee Consideration

    On September 20, 2006, the Committee met in open session 
and ordered favorably reported the bill, H.R. 5825, with an 
amendment, by rollcall vote with 20 ayes and 16 nays, a quorum 
being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 5825:

                     ROLLCALL NO. 5--DATE: 9-20-06

    SUBJECT: Nadler motion to adjourn, which was not agreed to 
by a rollcall vote of 14 ayes to 17 nays.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................
MR. COBLE...................................                 X
MR. SMITH...................................                 X
MR. GALLEGLY................................
MR. GOODLATTE...............................
MR. CHABOT..................................                 X
MR. LUNGREN.................................                 X
MR. JENKINS.................................                 X
MR. CANNON..................................                 X
MR. BACHUS..................................                 X
MR. INGLIS..................................                 X
MR. HOSTETTLER..............................
MR. GREEN...................................                 X
MR. KELLER..................................
MR. ISSA....................................
MR. FLAKE...................................                 X
MR. PENCE...................................                 X
MR. FORBES..................................                 X
MR. KING....................................                 X
MR. FEENEY..................................                 X
MR. FRANKS..................................                 X
MR. GOHMERT.................................                 X
 
MR. CONYERS.................................        X
MR. BERMAN..................................        X
MR. BOUCHER.................................
MR. NADLER..................................        X
MR. SCOTT...................................        X
MR. WATT....................................        X
MS. LOFGREN.................................        X
MS. JACKSON LEE.............................
MS. WATERS..................................        X
MR. MEEHAN..................................        X
MR. DELAHUNT................................
MR. WEXLER..................................        X
MR. WEINER..................................        X
MR. SCHIFF..................................        X
MS. SANCHEZ.................................        X
MR. VAN HOLLEN..............................        X
MRS. WASSERMAN SCHULTZ......................        X
MR. SENSENBRENNER, CHAIRMAN.................                 X
                                             ---------------------------
 
    TOTAL...................................       14       17
------------------------------------------------------------------------

                     ROLLCALL NO. 6--DATE: 9-20-06

    SUBJECT: Roll to record presence of Members to consider 
amendments to H.R. 5825--there were 16 Members present.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
MR. HYDE.........................
MR. COBLE........................                                     X
MR. SMITH........................                                     X
MR. GALLEGLY.....................
MR. GOODLATTE....................
MR. CHABOT.......................                                     X
MR. LUNGREN......................                                     X
MR. JENKINS......................                                     X
MR. CANNON.......................                                     X
MR. BACHUS.......................                                     X
MR. INGLIS.......................                                     X
MR. HOSTETTLER...................
MR. GREEN........................                                     X
MR. KELLER.......................
MR. ISSA.........................
MR. FLAKE........................                                     X
MR. PENCE........................                                     X
MR. FORBES.......................                                     X
MR. KING.........................                                     X
MR. FEENEY.......................                                     X
MR. FRANKS.......................                                     X
MR. GOHMERT......................
 
MR. CONYERS......................
MR. BERMAN.......................
MR. BOUCHER......................
MR. NADLER.......................
MR. SCOTT........................
MR. WATT.........................
MS. LOFGREN......................
MS. JACKSON LEE..................
MS. WATERS.......................
MR. MEEHAN.......................
MR. DELAHUNT.....................
MR. WEXLER.......................
MR. WEINER.......................
MR. SCHIFF.......................
MS. SANCHEZ......................
MR. VAN HOLLEN...................
MRS. WASSERMAN SCHULTZ...........
 
MR. SENSENBRENNER, CHAIRMAN......                       X
                                  --------------------------------------
    TOTAL........................                                    16
------------------------------------------------------------------------

                      ROLLCALL NO. 7--DATE 9-20-06

    SUBJECT: Mr. Lungren amendment to H.R. 5825, which was 
agreed to by a rollcall vote of 17 ayes to 2 nays. The 
amendment modifies section 2 to narrow the new definition in 
H.R. 5825 of an ``Agent of a Foreign Power'' that covers non-
U.S. persons who possess or receive foreign intelligence 
information to covering only situations in which the relevant 
foreign intelligence information is deemed significant. This 
amendment would also amend the bill's modified definition of 
``electronic surveillance.'' The amendment also amends section 
3 of the bill that modified section 102(a) certification 
process of FISA to ensure that it remains focused on foreign 
power or agents of those foreign powers. Furthermore, the 
amendment modifies section 5 and 6 that streamline the FISA 
process to ensure that the court receives the information 
necessary. The amendment expands section 5, FISA's emergency 
authorization provision, to allow an emergency surveillance 
from 5 days prior to court approval up to 7 days.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................        X
MR. COBLE...................................        X
MR. SMITH...................................        X
MR. GALLEGLY................................        X
MR. GOODLATTE...............................        X
MR. CHABOT..................................        X
MR. LUNGREN.................................        X
MR. JENKINS.................................        X
MR. CANNON..................................        X
MR. BACHUS..................................        X
MR. INGLIS..................................                 X
MR. HOSTETTLER..............................        X
MR. GREEN...................................        X
MR. KELLER..................................        X
MR. ISSA....................................        X
MR. FLAKE...................................                 X
MR. PENCE...................................        X
MR. FORBES..................................        X
MR. KING....................................        X
MR. FEENEY..................................        X
MR. FRANKS..................................        X
MR. GOHMERT.................................        X
 
MR. CONYERS.................................
MR. BERMAN..................................
MR. BOUCHER.................................
MR. NADLER..................................
MR. SCOTT...................................
MR. WATT....................................
MR. LOFGREN.................................
MS. JACKSON LEE.............................
MR. WATERS..................................
MR. MEEHAN..................................
MR. DELAHUNT................................
MR. WEXLER..................................
MR. WEINER..................................
MR. SCHIFF..................................
MR. SANCHEZ.................................
MR. VAN HOLLEN..............................
MRS. WASSERMAN SCHULTZ......................
 
MR. SENSENBRENNER, CHAIRMAN.................        X
                                             ---------------------------
    TOTAL...................................       17        2
------------------------------------------------------------------------

                     ROLLCALL NO. 8--DATE: 9-20-06

    SUBJECT: Mr. Schiff and Mr. Flake offered an amendment in 
the nature of a substitute to H.R. 5825, which was not agreed 
to by a rollcall vote of 18 ayes to 20 nays. This amendment 
would have deemed the Foreign Intelligence Surveillance Act the 
sole authorization for electronic surveillance to gather 
foreign intelligence information; prohibited future 
congressional action to amend this restriction; required the 
President to report to the Judiciary and Intelligence 
Committees on the Terrorist Surveillance Program; expanded the 
judges who the Chief Justice could designate as having 
jurisdiction to hear Foreign Intelligence Surveillance cases; 
has language to streamline FISA; expanded the period for 
applications for orders for emergency electronic surveillance; 
and changed the Wartime exception that currently allows 
warrantless surveillance to times when Congress declares war or 
provides an authorization that contains a specific 
authorization for electronic surveillance, among other things.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................                 X
MR. COBLE...................................                 X
MR. SMITH...................................                 X
MR. GALLEGLY................................                 X
MR. GOODLATTE...............................                 X
MR. CHABOT..................................                 X
MR. LUNGREN.................................                 X
MR. JENKINS.................................                 X
MR. CANNON..................................                 X
MR. BACHUS..................................                 X
MR. INGLIS..................................        X
MR. HOSTETTLER..............................                 X
MR. GREEN...................................                 X
MR. KELLER..................................
MR. ISSA....................................                 X
MR. FLAKE...................................        X
MR. PENCE...................................                 X
MR. FORBES..................................                 X
MR. KING....................................                 X
MR. FEENEY..................................                 X
MR. FRANKS..................................                 X
MR. GOHMERT.................................                 X
 
MR. CONYERS.................................        X
MR. BERMAN..................................        X
MR. BOUCHER.................................        X
MR. NADLER..................................        X
MR. SCOTT...................................        X
MR. WATT....................................        X
MS. LOFGREN.................................        X
MS. JACKSON LEE.............................
MS. WATERS..................................        X
MR. MEEHAN..................................        X
MR. DELAHUNT................................        X
MR. WEXLER..................................        X
MR. WEINER..................................        X
MR. SCHIFF..................................        X
MS. SANCHEZ.................................        X
MR. VAN HOLLEN..............................        X
MRS. WASSERMAN SCHULTZ......................
 
MR. SENSENBRENNER, CHAIRMAN.................                 X
                                             ---------------------------
    TOTAL...................................       18       20
------------------------------------------------------------------------

                     ROLLCALL NO. 13--DATE: 9-20-06

    SUBJECT: Mr. Cannon offered an amendment to H.R. 5825, 
which was agreed to by a rollcall vote of 22 ayes to 16 nays. 
This amendment would limit the civil and criminal liability of 
telecommunications carriers for any activity arising from, or 
relating to, any alleged intelligence program involving 
electronic surveillance that the government has certified is, 
was, or would be intended to protect the United States from a 
terrorist attack. The amendment applies to all pending and 
future cases, and allows all such cases to be removed to 
Federal court. The amendment also applies the old definition of 
``electronic surveillance'' contained in FISA prior to 
enactment of the Act.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................        X
MR. COBLE...................................        X
MR. SMITH...................................        X
MR. GALLEGLY................................        X
MR. GOODLATTE...............................        X
MR. CHABOT..................................        X
MR. LUNGREN.................................        X
MR. JENKINS.................................        X
MR. CANNON..................................        X
MR. BACHUS..................................        X
MR. INGLIS..................................        X
MR. HOSTETTLER..............................        X
MR. GREEN...................................        X
MR. KELLER..................................
MR. ISSA....................................        X
MR. FLAKE...................................        X
MR. PENCE...................................        X
MR. FORBES..................................        X
MR. KING....................................        X
MR. FEENEY..................................        X
MR. FRANKS..................................        X
MR. GOHMERT.................................        X
 
MR. CONYERS.................................                 X
MR. BERMAN..................................                 X
MR. BOUCHER.................................
MR. NADLER..................................                 X
MR. SCOTT...................................                 X
MR. WATT....................................                 X
MS. LOFGREN.................................                 X
MS. JACKSON LEE.............................                 X
MS. WATERS..................................                 X
MR. MEEHAN..................................                 X
MR. DELAHUNT................................                 X
MR. WEXLER..................................                 X
MR. WEINBER.................................                 X
MR. SCHIFF..................................                 X
MS. SANCHEZ.................................                 X
MR. VAN HOLLEN..............................                 X
MRS. WASSERMAN SCHULTZ......................                 X
 
MR. SENSENBRENNER, CHAIRMAN.................        X
                                             ---------------------------
    TOTAL...................................       22       16
------------------------------------------------------------------------

                            ROLLCALL NO. 14

    SUBJECT: Mr. Nadler offered an amendment to H.R. 5825, 
which was not agreed to by a rollcall vote of 14 ayes to 22 
nays. This amendment would have allowed any person to seek 
injunctive relief to stop an intelligence program involving 
electronic surveillance.

------------------------------------------------------------------------
                                                Ayes     Nays    Present
------------------------------------------------------------------------
MR. HYDE....................................                 X
MR. COBLE...................................                 X
MR. SMITH...................................                 X
MR. GALLEGLY................................                 X
MR. GOODLATTE...............................                 X
MR. CHABOT..................................                 X
MR. LUNGREN.................................                 X
MR. JENKINS.................................                 X
MR. CANNON..................................                 X
MR. BACHUS..................................                 X
MR. INGLIS..................................                 X
MR. HOSTETTLER..............................                 X
MR. GREEN...................................                 X
MR. KELLER..................................
MR. ISSA....................................                 X
MR. FLAKE...................................                 X
MR. PENCE...................................                 X
MR. FORBES..................................                 X
MR. KING....................................                 X
MR. FEENEY..................................                 X
MR. FRANKS..................................                 X
MR. GOHMERT.................................                 X
 
MR. CONYERS.................................        X
MR. BERMAN..................................        X
MR. BOUCHER.................................
MR. NADLER..................................        X
MR. SCOTT...................................        X
MR. WATT....................................        X
MS. LOFGREN.................................        X
MS. JACKSON LEE.............................        X
MS. WATERS..................................        X
MR. MEEHAN..................................
MR. DELAHUNT................................
MR. WEXLER..................................        X
MR. WEINER..................................        X
MR. SCHIFF..................................        X
MS. SANCHEZ.................................        X
MR. VAN HOLLEN..............................        X
MRS. WASSERMAN SCHULTZ......................        X
 
MR. SENSENBRENNER, CHAIRMAN.................                 X
                                             ---------------------------
    TOTAL...................................       14       22
------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 5825, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

H.R. 5825--Electronic Surveillance Modernization Act

    Summary: H.R. 5825 would modify the rules and procedures 
the government must follow to use electronic surveillance 
programs in the investigation of international terrorism. The 
bill would amend the definition of electronic surveillance 
under the Foreign Intelligence Surveillance Act (FISA) to 
remove the current distinction between treatment of wire and 
radio communications, and to focus FISA protections on domestic 
communications. The bill also would expand the ability of the 
government to conduct electronic surveillance without a warrant 
in certain cases where the target of the surveillance is an 
agent of a foreign power.
    H.R. 5825 would authorize the President, under certain 
conditions, to acquire foreign intelligence information 
concerning a person believed to be outside of the United 
States. To this end, the bill would authorize the Attorney 
General to direct any person or organization with access to 
such information to provide the United States government with 
all assistance necessary to acquire such intelligence. The bill 
directs that such persons shall be compensated at the 
prevailing rate for such assistance.
    In addition, H.R. 5825 also bakes a number of changes that 
could reduce the volume of material required for a FISA 
application, including minimizing the detailed descriptions of 
both the nature of the foreign intelligence information sought 
and the intended method of collection.
    CBO has no basis for predicting how the volume or type of 
surveillance would be changed if H.R 5825 were enacted. 
Furthermore, information regarding surveillance techniques and 
their associated costs are classified. For these reasons, CBO 
cannot estimate the impact on the federal budget of 
implementing H.R. 5825.
    H.R. 5825 contains intergovernmental mandates, as defined 
in the Unfunded Mandates Reform Act (UMRA), but CBO estimates 
that costs to state and local governments would fall well below 
the annual threshold established in UMRA ($64 million in 2006, 
adjusted annually for inflation).
    The bill also contains private-sector mandates as defined 
in UMRA, but CBO has no basis for estimating the costs of those 
mandates or whether the costs would exceed the annual threshold 
established in UMRA ($128 million in 2006, adjusted annually 
for inflation).
    Estimated cost to the Federal Government: CBO cannot 
estimate the budgetary impact of implementing H.R. 5825 because 
we cannot predict how the volume or type of surveillance would 
change under this legislation. Moreover, information regarding 
surveillance technologies and their associated costs are 
classified.
    Any changes in federal spending under the bill would be 
subject to the appropriation of the necessary funds. Enacting 
H.R. 5825 would not affect direct spending or revenues.
    Estimated impact on state, local, and tribal governments: 
H.R. 5825 contains an intergovernmental mandate as defined in 
UMRA because it would exempt from liability individuals that 
comply with certain federal requests for information. That 
exemption would preempt some state and local liability laws. 
CBO estimates that such preemption would impose only minimal 
costs on those governments.
    The bill also contains a mandate because it would allow 
federal law enforcement officers to direct public institutions 
such as libraries to provide information. Because data about 
the number of public entities currently complying with similar 
requests and the costs of that compliance is classified, CBO 
cannot estimate the total costs state and local governments 
would incur to comply with this mandate. Based on information 
from a recent survey of public libraries, however, CBO 
estimates that the number of requests likely would be small and 
that the total costs to those entities would be well below the 
annual threshold established in UMRA ($64 million in 2006, 
adjusted annually for inflation).
    Estimated impact on the private sector: H.R. 5825 contains 
private-sector mandates as defined in UMRA by requiring certain 
entities to assist the government with electronic surveillance 
and providing liability protections for those entities. CBO has 
no basis for estimating the costs of the mandates or whether 
the costs would exceed the annual threshold established in UMRA 
for private-sector mandates ($128 million in 2006, adjusted 
annually for inflation).
    The bill would authorize the Attorney General, after 
obtaining the certification required under the bill, to direct 
a person to immediately provide the government with all 
information, facilities, and assistance necessary to conduct 
electronic surveillance and to acquire foreign intelligence. 
Under current law, the Attorney General may direct a ``common 
carrier'' to provide such assistance with electronic 
surveillance. This bill would expand the scope of entities that 
must comply with the government orders in such cases. Because 
CBO has no information about how often such entities would be 
directed to provide assistance or the costs associated with 
providing assistance, CBO has no basis for estimating the costs 
of this mandate. The bill also would authorize the government 
to compensate, at the prevailing rate, a person for providing 
such information, facilities or assistance.
    H.R. 5825 also would provide protection from a cause of 
action for any person providing information, facilities, or 
assistance as well as conducting physical searches in 
accordance with a directive from the Attorney General under the 
bill. Because the bill would eliminate existing rights to seek 
compensation for injury caused by certain acts, it would impose 
a private-sector mandate. The cost of the mandate would be the 
forgone net value of awards and settlements that could be 
received under current law. Because of the lack of information 
about both the value of awards in such cases and the number of 
claims that would be filed in the absence of this legislation, 
CBO cannot estimate the cost of this mandate.
    Estimate prepared by: Federal Costs: Jason Wheelock. Impact 
on State, Local, and Tribal Governments: Melissa Merrell. 
Impact on the Private Sector: Victoria Liu.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
5825 continues the effort by Congress to provide the 
Administration with reasonable tools and authorities to prevent 
terrorist attacks on our nation, while protecting Fourth 
Amendment rights. The bill makes FISA technology neutral and 
simplifies the process for obtaining a FISA court order.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article 1, section 8, and the Fourth 
Amendment of the Constitution.

                                Earmarks

    Pursuant to H. Res. 1000, adopted by the House on September 
14, 2006, the Committee states that this legislation contains 
no earmarks.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee.

Section 1. Short title

    This section sets forth the title of the bill as the 
``Electronic Surveillance Modernization Act.''

Section 2. Finding

    This section contains a finding about the balance between 
congressional and presidential authority.

Section 3. FISA definitions

    This section updates definitions in the Foreign 
Intelligence Surveillance Act in an effort to update the law 
and make it technology neutral. Section 3(a) amends the 
definition of ``Agent of a Foreign Power,'' and also the 
definition ``Electronic Surveillance.'' Section 50 U.S.C. 
1801(b) (the Foreign Intelligence Surveillance Act of 1978) 
provides the definitions used to determine the target of 
surveillance under FISA. This section of the bill amends the 
definition of ``Agent of a Foreign Power'' under section 50 
U.S.C. 1801(b)(1) by adding new subparagraph D. Section 
1801(b)(1) covers any person other than a United States person, 
who--
          (A) acts in the United States as an officer or 
        employee of a foreign power, or as a member of a 
        foreign power as defined in subsection (a)(4) of this 
        section;
          (B) acts for or on behalf of a foreign power which 
        engages in clandestine intelligence activities in the 
        United States contrary to the interests of the United 
        States, when the circumstances of such person's 
        presence in the United States indicate that such person 
        may engage in such activities in the United States, or 
        when such person knowingly aids or abets any person in 
        the conduct of such activities or knowingly conspires 
        with any person to engage in such activities; or
          (C) engages in international terrorism or activities 
        in preparation therefore.
    Section 3(a) of the bill would add new subparagraph D to 
the definition, which states ``Agent of a foreign power'' for 
any person other than a United States person, includes a person 
who ``is reasonably expected to possess, control, transmit or 
receive foreign intelligence information while in the United 
States, provided that the official making the certification 
required by section 104(a)(7) deems such foreign intelligence 
information to be significant;''. This new definition applies 
only to situations in which the relevant foreign intelligence 
information is deemed significant.
    Section 3(b) of the bill would update the term ``Electronic 
Surveillance'' to account for significant changes in technology 
since the 1978 passage of FISA. The Committee believes these 
changes will return FISA to its original purpose of protecting 
Fourth Amendment concerns by focusing on the fundamental 
question of whose communications are being targeted and not on 
the type of technology used or where communications are 
intercepted. The definition turns on targeting a particular 
known person (a) believed to be in the United States, (b) in 
circumstances in which that person has (i) a reasonable 
expectation of privacy and (ii) a warrant would be required for 
law enforcement purposes. The Committee strongly believes that 
the focus must be on the target to determine what applies and 
does not apply and whether fourth amendment privacy rights are 
implicated. A non-U.S. person, who is a terrorist in 
Afghanistan does not have the same privacy rights of a U.S. 
person and our surveillance laws should reflect this. 
Furthermore, the government should not be required to use 
different surveillance procedures based on whether a terrorist 
uses radio communications or wire communications to plot 
another attack on U.S. soil.
    Section 3(c) would make the definition of ``content'' for 
consistent with the definition used in the Federal criminal 
code.

Section 4. Authorization for electronic surveillance and other 
        acquisitions for foreign intelligence purposes

    Section 4 of the bill would amend the current section 
102(a) certification process to expand the circumstances under 
which the government may conduct electronic surveillance 
without court order of foreign powers or agents of foreign 
powers. The drafters of FISA were trying to carve out Foreign 
to Foreign communications, the testimony before the 
Subcommittee on Crime, Terrorism, and Homeland Security 
explained that technology changes have made it impossible to 
use this provision. This section updates the section to cover 
agents of a foreign power and make the language technology 
neutral.
    This section would also provide a new and streamlined 
Attorney General certification process permitting the Attorney 
General to direct electronic communications service providers 
to provide certain information, facilities, or technical 
assistance for a period of up to 1 year, provided that the 
provision of these resources does not constitute ``electronic 
surveillance.'' The new process the manner in which the 
information is to be obtained and creates a mechanism forthe 
FISA Court to review and enforce the directives as well as allowing for 
challenges to the process.
    This section of the bill would modernize the law by 
providing the AG with the ability to ``require'' rather than 
``direct'' common carriers to provide access to communications 
or equipment. Since the leaks of classified information to the 
press, some companies are concerned about assisting law 
enforcement in the war on terrorism without a legal document 
directing them to do so.

Section 5. Jurisdiction of the FISA court

    This section provides that applications for a court order 
under this title are authorized if the President has, by 
written authorization, empowered the Attorney General to 
approve applications to the court having jurisdiction under 
this section, and a judge to whom an application is made may, 
notwithstanding any other law, grant an order, in conformity 
with section 105, approving electronic surveillance of a 
foreign power or an agent of a foreign power for the purpose of 
obtaining foreign intelligence information.

Section 6. Applications for court orders

    This section of the bill amends section 104 of FISA (50 
U.S.C. 1804). Section 104 of FISA covers the process and 
circumstances by which an application for a court order 
authorizing electronic surveillance for foreign intelligence 
purposes may be sought. An application for such a court order 
must still be made by a Federal officer in writing on oath or 
affirmation to a FISC judge. The application must still be 
approved by the Attorney General based upon his finding that 
the criteria and requirements set forth in 50 U.S.C. Sec. 1801 
et seq. have been met. This section would reduce the volume of 
material required for a FISA application.

Section 7. Issuance of an order

    This section of the bill would amend section 105 of FISA 
(50 U.S.C. Sec. 1805) that covers the issuance of an order 
based on the application in section 104 of FISA (50 U.S.C. 
Sec. 1804). This section modifies the issuance of order section 
to be consistent with the changes in the application process. 
Current protections and minimization procedures will remain in 
place to protect unintended targets. This section also amends 
50 U.S.C. Sec. 1805(f) that covers emergency orders to extend 
the period before a judge must be notified of an emergency 
employment of electronic surveillance from not more than 72 
hours to not more than 158 hours (7 days).

Section 8. Use of information

    This section strike the term ``radio'' in effort to make 
the statute technology neutral. Additionally section 106(I) of 
FISA directs the destruction of unintentionally acquired 
information, unless the contents indicate a threat of death or 
serious bodily harm to any person. The bill would add to the 
exception contents that contain significant foreign 
intelligence information.

Section 9. Congressional oversight

    Section 9 would strengthen and expand congressional 
oversight by amending current law that requires the 
Administration to inform the Intelligence Committees to instead 
require the Administration to inform each Member of the House 
Permanent Select Committee on Intelligence and Senate Select 
Committee on Intelligence of electronic surveillance activities 
conducted under this Act.

Section 10. International movement of targets

    This section provides that an order issued under this 
section shall remain in force during the authorized period of 
surveillance notwithstanding the absence of the target from the 
United States, unless the Government files a motion to 
extinguish the order and the court grants the motion.

Section 11. Compliance with court orders and antiterrorism programs

    This section would limit the civil and criminal liability 
of telecommunications carriers for any activity arising from, 
or relating to, any alleged intelligence program involving 
electronic surveillance that the government has certified is, 
was, or would be intended to protect the United States from a 
terrorist attack. The amendment applies to all pending and 
future cases, and allows all such cases to be removed to 
Federal court. The amendment also applies the old definition of 
``electronic surveillance'' contained in FISA prior to 
enactment of the Act.

Section 12. Report on minimization procedures

    This section would require reporting to Congress that would 
permit Congress to conduct efficient and appropriate oversight 
of the implementation of FISA modernization at NSA. H.R. 5825 
would update the definition of ``electronic surveillance'' in 
FISA to help restore the statute to its intended focus on the 
surveillance of the domestic communications of persons in the 
United States and more generally on situations in which the 
constitutional interests are greatest. The bill would limit the 
circumstances under which it is necessary to obtain an order 
from the FISA Court, thereby help to focus FISA resources on 
the circumstances in which those resources are most important. 
This Amendment would provide for reporting to Congress--
allowing better congressional oversight--on the treatment of 
U.S. person information for several years and would help 
Congress see whether the changes have had the desired effects. 
Specifically, this section requires the NSA to provide a report 
to the intelligence committees on the effectiveness of the 
procedures applied to safeguard U.S. person information 
acquired by means that constituted ``electronic surveillance'' 
under the current FISA, but do not constitute ``electronic 
surveillance'' under the modernized FISA. The reports would 
require:
           A description of the ``minimization'' 
        procedures implemented by the NSA to protect this 
        information pertaining to U.S. Persons;
           The number of significant violations of 
        those procedures; and,
           Summary descriptions of those violations.

Section 13. Technical and conforming amendments

    This section makes technical corrections to the Foreign 
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

           *       *       *       *       *       *       *


             FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978


     AN ACT To authorize electronic surveillance to obtain foreign 
                       intelligence information.

  Be it enacted by the Senate and House of Representatives of 
the United States of America in Congress assembled, That this 
Act may be cited as the ``Foreign Intelligence Surveillance Act 
of 1978''.

                            TABLE OF CONTENTS

 TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN 
                          INTELLIGENCE PURPOSES

Sec. 101.  Definitions.
     * * * * * * *
102A. Authorization for acquisition of foreign intelligence information.
102B. Directives relating to electronic surveillance and other 
          acquisitions of foreign intelligence information.

           *       *       *       *       *       *       *


 TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN 
                         INTELLIGENCE PURPOSES

                              DEFINITIONS

  Sec. 101. As used in this title:
  (a) * * *
  (b) ``Agent of a foreign power'' means--
          (1) any person other than a United States person, 
        who--
                  (A) * * *
                  (B) acts for or on behalf of a foreign power 
                which engages in clandestine intelligence 
                activities in the United States contrary to the 
                interests of the United States, when the 
                circumstances of such person's presence in the 
                United States indicate that such person may 
                engage in such activities in the United States, 
                or when such person knowingly aids or abets any 
                person in the conduct of such activities or 
                knowingly conspires with any person to engage 
                in such activities; [or]

           *       *       *       *       *       *       *

                  (D) is reasonably expected to possess, 
                control, transmit, or receive foreign 
                intelligence information while such person is 
                in the United States, provided that the 
                official making the certification required by 
                section 104(a)(7) deems such foreign 
                intelligence information to be significant; or

           *       *       *       *       *       *       *

  [(f) ``Electronic surveillance'' means--
          [(1) the acquisition by an electronic, mechanical, or 
        other surveillance device of the contents of any wire 
        or radio communications sent by or intended to be 
        received by a particular, known United States person 
        who is in the United States, if the contents are 
        acquired by intentionally targeting that United States 
        person, under circumstances in which a person has a 
        reasonable expectation of privacy and a warrant would 
        be required for law enforcement purposes;
          [(2) the acquisition by an electronic, mechanical, or 
        other surveillance device of the contents of any wire 
        communication to or from a person in the United States, 
        without the consent of any party thereto, if such 
        acquisition occurs in the United States, but does not 
        include the acquisition of those communications of 
        computer trespassers that would be permissible under 
        section 2511(2)(i) of title 18, United States Code;
          [(3) the intentional acquisition by an electronic, 
        mechanical, or other surveillance device of the 
        contents of any radio communication, under 
        circumstances in which a person has a reasonable 
        expectation of privacy and a warrant would be required 
        for law enforcement purposes, and if both the sender 
        and all intended recipients are located within the 
        United States; or
          [(4) the installation or use of an electronic, 
        mechanical, or other surveillance device in the United 
        States for monitoring to acquire information, other 
        than from a wire or radio communication, under 
        circumstances in which a person has a reasonable 
        expectation of privacy and a warrant would be required 
        for law enforcement purposes.]
  (f) ``Electronic surveillance'' means--
          (1) the installation or use of an electronic, 
        mechanical, or other surveillance device for acquiring 
        information by intentionally directing surveillance at 
        a particular known person who is reasonably believed to 
        be in the United States under circumstances in which 
        that person has a reasonable expectation of privacy and 
        a warrant would be required for law enforcement 
        purposes; or
          (2) the intentional acquisition of the contents of 
        any communication under circumstances in which a person 
        has a reasonable expectation of privacy and a warrant 
        would be required for law enforcement purposes, if both 
        the sender and all intended recipients are reasonably 
        believed to be located within the United States.

           *       *       *       *       *       *       *

  (h) ``Minimization procedures'', with respect to electronic 
surveillance, means--
          (1) * * *

           *       *       *       *       *       *       *

          (4) notwithstanding paragraphs (1), (2), and (3), 
        with respect to any electronic surveillance [approved 
        pursuant to section 102(a),] authorized pursuant to 
        section 102 or any acquisition authorized pursuant to 
        section 102A procedures that require that no contents 
        of any communication to which a United States person is 
        a party shall be disclosed, disseminated, or used for 
        any purpose or retained for longer than 72 hours unless 
        a court order under section 105 is obtained or unless 
        the Attorney General determines that the information 
        indicates a threat of death or serious bodily harm to 
        any person.

           *       *       *       *       *       *       *

  [(n) ``Contents'', when used with respect to a communication, 
includes any information concerning the identity of the parties 
to such communications or the existence, substance, purport, or 
meaning of that communication.]
  (n) ``Contents'', when used with respect to a communication, 
includes any information concerning the substance, purport, or 
meaning of that communication.

           *       *       *       *       *       *       *


  [AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE 
                                PURPOSES

      [Sec. 102. (a)(1) Notwithstanding any other law, the 
President, through the Attorney General, may authorize 
electronic surveillance without a court order under this title 
to acquire foreign intelligence information for periods of up 
to one year if the Attorney General certifies in writing under 
oath that--
          [(A) the electronic surveillance is solely directed 
        at--
                  [(i) the acquisition of the contents of 
                communications transmitted by means of 
                communications used exclusively between or 
                among foreign powers, as defined in section 
                101(a) (1), (2), or (3); or
                  [(ii) the acquisition of technical 
                intelligence, other than the spoken 
                communications of individuals, from property or 
                premises under the open and exclusive control 
                of a foreign power, as defined in section 
                101(a) (1), (2), or (3);
          [(B) there is no substantial likelihood that the 
        surveillance will acquire the contents of any 
        communications to which a United States person is a 
        party; and
          [(C) the proposed minimization procedures with 
        respect to such surveillance meet the definition of 
        minimization procedures under section 101(h); and
if the Attorney General reports such minimization procedures 
and any changes thereto to the House Permanent Select Committee 
on Intelligence and the Senate Select Committee on Intelligence 
at least thirty days prior to their effective date, unless the 
Attorney General determines immediate action is required and 
notifies the committees immediately of such minimization 
procedures and the reason for their becoming effective 
immediately.
  [(2) An electronic surveillance authorized by this subsection 
may be conducted only in accordance with the Attorney General's 
certification and the minimization procedures adopted by him. 
The Attorney General shall assess compliance with such 
procedures and shall report such assessments to the House 
Permanent Select Committee on Intelligence and the Senate 
Select Committee on Intelligence under the provisions of 
section 108(a).
  [(3) The Attorney General shall immediately transmit under 
seal to the court established under section 103(a) a copy of 
his certification. Such certification shall be maintained under 
security measures established by the Chief Justice with the 
concurrence of the Attorney General, in consultation with the 
Director of National Intelligence, and shall remain sealed 
unless--
          [(A) an application for a court order with respect to 
        the surveillance is made under sections 101(h)(4) and 
        104; or
          [(B) the certification is necessary to determine the 
        legality of the surveillance under section 106(f).
  [(4) With respect to electronic surveillance authorized by 
this subsection, the Attorney General may direct a specified 
communication common carrier to--
          [(A) furnish all information, facilities, or 
        technical assistance necessary to accomplish the 
        electronic surveillance in such a manner as will 
        protect its secrecy and produce a minimum of 
        interference with the services that such carrier is 
        providing its customers; and
          [(B) maintain under security procedures approved by 
        the Attorney General and the Director of National 
        Intelligence any records concerning the surveillance or 
        the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such 
carrier for furnishing such aid.
  [(b) Applications for a court order under this title are 
authorized if the President has, by written authorization, 
empowered the Attorney General to approve applications to the 
court having jurisdiction under section 103, and a judge to 
whom an application is made may, notwithstanding any other law, 
grant an order, in conformity with section 105, approving 
electronic surveillance of a foreign power or an agent of a 
foreign power for the purpose of obtaining foreign intelligence 
information, except that the court shall not have jurisdiction 
to grant any order approving electronic surveillance directed 
solely as described in paragraph (1)(A) of subsection (a) 
unless such surveillance may involve the acquisition of 
communications of any United States person.]

  AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE 
                                PURPOSES

  Sec. 102.  (a) In General.--Notwithstanding any other law, 
the President, acting through the Attorney General, may 
authorize electronic surveillance without a court order under 
this title to acquire foreign intelligence information for 
periods of up to one year if the Attorney General certifies in 
writing under oath that--
          (1) the electronic surveillance is directed at--
                  (A) the acquisition of the contents of 
                communications of foreign powers, as defined in 
                paragraph (1), (2), or (3) of section 101(a), 
                or an agent of a foreign power, as defined in 
                subparagraph (A) or (B) of section 101(b)(1); 
                or
                  (B) the acquisition of technical 
                intelligence, other than the spoken 
                communications of individuals, from property or 
                premises under the open and exclusive control 
                of a foreign power, as defined in paragraph 
                (1), (2), or (3) of section 101(a); and
          (2) the proposed minimization procedures with respect 
        to such surveillance meet the definition of 
        minimization procedures under section 101(h);
if the Attorney General reports such minimization procedures 
and any changes thereto to the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select 
Committee on Intelligence of the Senate at least 30 days prior 
to the effective date of such minimization procedures, unless 
the Attorney General determines immediate action is required 
and notifies the committees immediately of such minimization 
procedures and the reason for their becoming effective 
immediately.
  (b) Minimization Procedures.--An electronic surveillance 
authorized by this subsection may be conducted only in 
accordance with the Attorney General's certification and the 
minimization procedures. The Attorney General shall assess 
compliance with such procedures and shall report such 
assessments to the Permanent Select Committee on Intelligence 
of the House of Representatives and the Select Committee on 
Intelligence of the Senate under the provisions of section 
108(a).
  (c) Submission of Certification.--The Attorney General shall 
immediately transmit under seal to the court established under 
section 103(a) a copy of his certification. Such certification 
shall be maintained under security measures established by the 
Chief Justice with the concurrence of the Attorney General, in 
consultation with the Director of National Intelligence, and 
shall remain sealed unless--
  (1) an application for a court order with respect to the 
surveillance is made under section 104; or
  (2) the certification is necessary to determine the legality 
of the surveillance under section 106(f).

   AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION

  Sec. 102A.  (a) In General.--Notwithstanding any other law, 
the President, acting through the Attorney General may, for 
periods of up to one year, authorize the acquisition of foreign 
intelligence information concerning a person reasonably 
believed to be outside the United States if the Attorney 
General certifies in writing under oath that--
          (1) the acquisition does not constitute electronic 
        surveillance;
          (2) the acquisition involves obtaining the foreign 
        intelligence information from or with the assistance of 
        a wire or electronic communications service provider, 
        custodian, or other person (including any officer, 
        employee, agent, or other specified person of such 
        service provider, custodian, or other person) who has 
        access to wire or electronic communications, either as 
        they are transmitted or while they are stored, or 
        equipment that is being or may be used to transmit or 
        store such communications;
          (3) a significant purpose of the acquisition is to 
        obtain foreign intelligence information; and
          (4) the proposed minimization procedures with respect 
        to such acquisition activity meet the definition of 
        minimization procedures under section 101(h).
  (b) Specific Place Not Required.--A certification under 
subsection (a) is not required to identify the specific 
facilities, places, premises, or property at which the 
acquisition of foreign intelligence information will be 
directed.
  (c) Submission of Certification.--The Attorney General shall 
immediately transmit under seal to the court established under 
section 103(a) a copy of a certification made under subsection 
(a). Such certification shall be maintained under security 
measures established by the Chief Justice of the United States 
and the Attorney General, in consultation with the Director of 
National Intelligence, and shall remain sealed unless the 
certification is necessary to determine the legality of the 
acquisition under section 102B.
  (d) Minimization Procedures.--An acquisition under this 
section may be conducted only in accordance with the 
certification of the Attorney General and the minimization 
procedures adopted by the Attorney General. The Attorney 
General shall assess compliance with such procedures and shall 
report such assessments to the Permanent Select Committee on 
Intelligence of the House of Representatives and the Select 
Committee on Intelligence of the Senate under section 108(a).

 DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS 
                  OF FOREIGN INTELLIGENCE INFORMATION

  Sec. 102B.  (a) Directive.--With respect to an authorization 
of electronic surveillance under section 102 or an 
authorization of an acquisition under section 102A, the 
Attorney General may direct a person to--
          (1) immediately provide the Government with all 
        information, facilities, and assistance necessary to 
        accomplish the acquisition of foreign intelligence 
        information in such a manner as will protect the 
        secrecy of the electronic surveillance or acquisition 
        and produce a minimum of interference with the services 
        that such person is providing to the target; and
          (2) maintain under security procedures approved by 
        the Attorney General and the Director of National 
        Intelligence any records concerning the electronic 
        surveillance or acquisition or the aid furnished that 
        such person wishes to maintain.
  (b) Compensation.--The Government shall compensate, at the 
prevailing rate, a person for providing information, 
facilities, or assistance pursuant to subsection (a).
  (c) Failure to Comply.--In the case of a failure to comply 
with a directive issued pursuant to subsection (a), the 
Attorney General may petition the court established under 
section 103(a) to compel compliance with the directive. The 
court shall issue an order requiring the person or entity to 
comply with the directive if it finds that the directive was 
issued in accordance with section 102(a) or 102A(a) and is 
otherwise lawful. Failure to obey an order of the court may be 
punished by the court as contempt of court. Any process under 
this section may be served in any judicial district in which 
the person or entity may be found.
  (d) Review of Petitions.--(1) In General.--(A) Challenge.--A 
person receiving a directive issued pursuant to subsection (a) 
may challenge the legality of that directive by filing a 
petition with the pool established under section 103(e)(1).
  (B) Assignment of Judge.--The presiding judge designated 
pursuant to section 103(b) shall assign a petition filed under 
subparagraph (A) to one of the judges serving in the pool 
established by section 103(e)(1). Not later than 24 hours after 
the assignment of such petition, the assigned judge shall 
conduct an initial review of the directive. If the assigned 
judge determines that the petition is frivolous, the assigned 
judge shall deny the petition and affirm the directive or any 
part of the directive that is the subject of the petition. If 
the assigned judge determines the petition is not frivolous, 
the assigned judge shall, within 72 hours, consider the 
petition in accordance with the procedures established under 
section 103(e)(2) and provide a written statement for the 
record of the reasons for any determination under this 
subsection.
  (2) Standard of Review.--A judge considering a petition to 
modify or set aside a directive may grant such petition only if 
the judge finds that such 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 affirm such directive, and order the recipient to comply 
with such directive.
  (3) Directives Not Modified.--Any directive not explicitly 
modified or set aside under this subsection shall remain in 
full effect.
  (e) Appeals.--The Government or a person receiving a 
directive reviewed pursuant to subsection (d) may file a 
petition with the court of review established under section 
103(b) for review of the decision issued pursuant to subsection 
(d) not later than 7 days after the issuance of such decision. 
Such court of review shall have jurisdiction to consider such 
petitions and shall provide for the record a written statement 
of the reasons for its decision. On petition by the Government 
or any person receiving such directive for a writ of 
certiorari, the record shall be transmitted under seal to the 
Supreme Court, which shall have jurisdiction to review such 
decision.
  (f) Proceedings.--Judicial proceedings under this section 
shall be concluded as expeditiously as possible. The record of 
proceedings, including petitions filed, orders granted, and 
statements of reasons for decision, shall be maintained under 
security measures established by the Chief Justice of the 
United States, in consultation with the Attorney General and 
the Director of National Intelligence.
  (g) Sealed Petitions.--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.
  (h) Liability.--No cause of action shall lie in any court 
against any person for providing any information, facilities, 
or assistance in accordance with a directive under this 
section.
  (i) Use of Information.--Information acquired pursuant to a 
directive by the Attorney General under this section concerning 
any United States person may be used and disclosed by Federal 
officers and employees without the consent of the United States 
person only in accordance with the minimization procedures 
required by section 102(a) or 102A(a). No otherwise privileged 
communication obtained in accordance with, or in violation of, 
the provisions of this section shall lose its privileged 
character. No information from an electronic surveillance under 
section 102 or an acquisition pursuant to section 102A may be 
used or disclosed by Federal officers or employees except for 
lawful purposes.
  (j) Use in Law Enforcement.--No information acquired pursuant 
to this section shall be disclosed for law enforcement purposes 
unless such disclosure is accompanied by a statement that such 
information, or any information derived from such information, 
may only be used in a criminal proceeding with the advance 
authorization of the Attorney General.
  (k) Disclosure in Trial.--If the Government intends to enter 
into evidence or otherwise use or disclose in any trial, 
hearing, or other proceeding in or before any court, 
department, officer, agency, regulatory body, or other 
authority of the United States, against an aggrieved person, 
any information obtained or derived from an electronic 
surveillance conducted under section 102 or an acquisition 
authorized pursuant to section 102A, the Government shall, 
prior to the trial, hearing, or other proceeding or at a 
reasonable time prior to an effort to disclose or use that 
information or submit it in evidence, notify the aggrieved 
person and the court or other authority in which the 
information is to be disclosed or used that the Government 
intends to disclose or use such information.
  (l) Disclosure in State Trials.--If a State or political 
subdivision of a State intends to enter into evidence or 
otherwise use or disclose in any trial, hearing, or other 
proceeding in or before any court, department, officer, agency, 
regulatory body, or other authority of a State or a political 
subdivision of a State, against an aggrieved person, any 
information obtained or derived from an electronic surveillance 
authorized pursuant to section 102 or an acquisition authorized 
pursuant to section 102A, the State or political subdivision of 
such State shall notify the aggrieved person, the court, or 
other authority in which the information is to be disclosed or 
used and the Attorney General that the State or political 
subdivision intends to disclose or use such information.
  (m) Motion to Exclude Evidence.--(1) In General.--Any person 
against whom evidence obtained or derived from an electronic 
surveillance authorized pursuant to section 102 or an 
acquisition authorized pursuant to section 102A is to be, or 
has been, used or disclosed in any trial, hearing, or other 
proceeding in or before any court, department, officer, agency, 
regulatory body, or other authority of the United States, a 
State, or a political subdivision thereof, may move to suppress 
the evidence obtained or derived from such electronic 
surveillance or such acquisition on the grounds that--
          (A) the information was unlawfully acquired; or
          (B) the electronic surveillance or acquisition was 
        not properly made in conformity with an authorization 
        under section 102(a) or 102A(a).
  (2) Timing.--A person moving to suppress evidence under 
paragraph (1) shall make the motion to suppress the evidence 
before the trial, hearing, or other proceeding unless there was 
no opportunity to make such a motion or the person was not 
aware of the grounds of the motion.
  (n) Review of Motions.--If a court or other authority is 
notified pursuant to subsection (k) or (l), a motion is made 
pursuant to subsection (m), or a motion or request is made by 
an aggrieved person pursuant to any other statute or rule of 
the United States or any State before any court or other 
authority of the United States or any State--
          (1) to discover or obtain an Attorney General 
        directive or other materials relating to an electronic 
        surveillance authorized pursuant to section 102 or an 
        acquisition authorized pursuant to section 102A, or
          (2) to discover, obtain, or suppress evidence or 
        information obtained or derived from an electronic 
        surveillance authorized pursuant to section 102 or an 
        acquisition authorized pursuant to section 102A,
the United States district court or, where the motion is made 
before another authority, the United States district court in 
the same district as the authority, shall, notwithstanding any 
other law, if the Attorney General files an affidavit under 
oath that disclosure or an adversary hearing would harm the 
national security of the United States, review in camera and ex 
parte the application, order, and such other materials relating 
to such electronic surveillance or such acquisition as may be 
necessary to determine whether such electronic surveillance or 
such acquisition authorized under this section was lawfully 
authorized and conducted. In making this determination, the 
court may disclose to the aggrieved person, under appropriate 
security procedures and protective orders, portions of the 
directive or other materials relating to the acquisition only 
where such disclosure is necessary to make an accurate 
determination of the legality of the acquisition.
  (o) Determinations.--If, pursuant to subsection (n), a United 
States district court determines that the acquisition 
authorized under this section was not lawfully authorized or 
conducted, it shall, in accordance with the requirements of 
law, suppress the evidence which was unlawfully obtained or 
derived or otherwise grant the motion of the aggrieved person. 
If the court determines that such acquisition was lawfully 
authorized and conducted, it shall deny the motion of the 
aggrieved person except to the extent that due process requires 
discovery or disclosure.
  (p) Binding Orders.--Orders granting motions or requests 
under subsection (m), decisions under this section that an 
electronic surveillance or an acquisition was not lawfully 
authorized or conducted, and orders of the United States 
district court requiring review or granting disclosure of 
directives, orders, or other materials relating to such 
acquisition shall be final orders and binding upon all courts 
of the United States and the several States except a United 
States court of appeals and the Supreme Court.
  (q) Coordination.--(1) In General.--Federal officers who 
acquire foreign intelligence information may consult with 
Federal law enforcement officers or law enforcement personnel 
of a State or political subdivision of a State, including the 
chief executive officer of that State or political subdivision 
who has the authority to appoint or direct the chief law 
enforcement officer of that State or political subdivision, to 
coordinate efforts to investigate or protect against--
          (A) actual or potential attack or other grave hostile 
        acts of a foreign power or an agent of a foreign power;
          (B) sabotage, international terrorism, or the 
        development or proliferation of weapons of mass 
        destruction by a foreign power or an agent of a foreign 
        power; or
          (C) clandestine intelligence activities by an 
        intelligence service or network of a foreign power or 
        by an agent of a foreign power.
  (2) Certification Required.--Coordination authorized under 
paragraph (1) shall not preclude the certification required by 
section 102(a) or 102A(a).
  (r) Retention of Directives and Orders.--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.

                         DESIGNATION OF JUDGES

      Sec. 103. (a) * * *

           *       *       *       *       *       *       *

  (g) Applications for a court order under this title are 
authorized if the President has, by written authorization, 
empowered the Attorney General to approve applications to the 
court having jurisdiction under this section, and a judge to 
whom an application is made may, notwithstanding any other law, 
grant an order, in conformity with section 105, approving 
electronic surveillance of a foreign power or an agent of a 
foreign power for the purpose of obtaining foreign intelligence 
information.

                        APPLICATION FOR AN ORDER

      Sec. 104. (a) Each application for an order approving 
electronic surveillance under this title shall be made by a 
Federal officer in writing upon oath or affirmation to a judge 
having jurisdiction under section 103. Each application shall 
require the approval of the Attorney General based upon his 
finding that it satisfies the criteria and requirements of such 
application as set forth in this title. It shall include--
          (1) * * *

           *       *       *       *       *       *       *

          (6) a [detailed description] summary description of 
        the nature of the information sought and the type of 
        communications or activities to be subjected to the 
        surveillance;
          (7) 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 with the advice 
        and consent of the Senate] designated by the President 
        to authorize electronic surveillance for foreign 
        intelligence purposes--
                  (A) * * *

           *       *       *       *       *       *       *

                  (C) that such information cannot reasonably 
                be obtained by normal investigative techniques; 
                and
                  [(D) that designates the type of foreign 
                intelligence information being sought according 
                to the categories described in section 101(e); 
                and]
                  [(E)] (D) including a statement of the basis 
                for the certification that--
                          (i) * * *

           *       *       *       *       *       *       *

          (8) [a statement of the means] a summary statement of 
        the means by which the surveillance will be effected 
        and a statement whether physical entry is required to 
        effect the surveillance;
          (9) [a statement] a summary statement of the facts 
        concerning all previous applications that have been 
        made to any judge under this title involving any of the 
        persons, facilities, or places specified in the 
        application, and the action taken on each previous 
        application; and
          (10) a statement of the period of time for which the 
        electronic surveillance is required to be maintained, 
        and if the nature of the intelligence gathering is such 
        that the approval of the use of electronic surveillance 
        under this title should not automatically terminate 
        when the described type of information has first been 
        obtained, a description of facts supporting the belief 
        that additional information of the same type will be 
        obtained thereafter[; and].
          [(11) whenever more than one electronic, mechanical 
        or other surveillance device is to be used with respect 
        to a particular proposed electronic surveillance, the 
        coverage of the devices involved and what minimization 
        procedures apply to information acquired by each 
        device.]
  [(b) Whenever the target of the electronic surveillance is a 
foreign power, as defined in section 101(a) (1), (2), or (3), 
and each of the facilities or places at which the surveillance 
is directed is owned, leased, or exclusively used by that 
foreign power, the application need not contain the information 
required by paragraphs (6), (7)(E), (8), and (11) of subsection 
(a), but shall state whether physical entry is required to 
effect the surveillance and shall contain such information 
about the surveillance techniques and communications or other 
information concerning United States persons likely to be 
obtained as may be necessary to assess the proposed 
minimization procedures.]
  [(c)] (b) The Attorney General may require any other 
affidavit or certification from any other officer in connection 
with the application.
  [(d)] (c) The judge may require the applicant to furnish such 
other information as may be necessary to make the 
determinations required by section 105.
  [(e)] (d)(1)(A) Upon written request of the Director of the 
Federal Bureau of Investigation, the Secretary of Defense, the 
Secretary of State, [or the Director of National Intelligence] 
the Director of National Intelligence, or the Director of the 
Central Intelligence Agency, the Attorney General shall 
personally review under subsection (a) an application under 
that subsection for a target described in section 101(b)(2).

           *       *       *       *       *       *       *


                          ISSUANCE OF AN ORDER

      Sec. 105. (a) Upon an application made pursuant to 
section 104, the judge shall enter an ex parte order as 
requested or as modified approving the electronic surveillance 
if he finds that--
          [(1) the President has authorized the Attorney 
        General to approve applications for electronic 
        surveillance for foreign intelligence information;]
          [(2)] (1) the application has been made by a Federal 
        officer and approved by the Attorney General;
          [(3)] (2) on the basis of the facts submitted by the 
        applicant there is probable cause to believe that--
                  (A) * * *

           *       *       *       *       *       *       *

          [(4)] (3) the proposed minimization procedures meet 
        the definition of minimization procedures under section 
        101(h); and
          [(5)] (4) the application which has been filed 
        contains all statements and certifications required by 
        section 104 and, if the target is a United States 
        person, the certification or certifications are not 
        clearly erroneous on the basis of the statement made 
        under section [104(a)(7)(E)] 104(a)(6)(D) and any other 
        information furnished under section [104(d)] 104(c).

           *       *       *       *       *       *       *

  (c)(1) specifications.--An order approving an electronic 
surveillance under this section shall specify--
                  (A) * * *

           *       *       *       *       *       *       *

                  (D) the means by which the electronic 
                surveillance will be effected and whether 
                physical entry will be used to effect the 
                surveillance; and
                  (E) the period of time during which the 
                electronic surveillance is approved[; and].
                  [(F) whenever more than one electronic, 
                mechanical, or other surveillance device is to 
                be used under the order, the authorized 
                coverage of the devices involved and what 
                minimization procedures shall apply to 
                information subject to acquisition by each 
                device.]

           *       *       *       *       *       *       *

  [(d) Whenever the target of the electronic surveillance is a 
foreign power, as defined in section 101(a) (1), (2), or (3), 
and each of the facilities or places at which the surveillance 
is directed is owned, leased, or exclusively used by that 
foreign power, the order used need not contain the information 
required by subparagraphs (C), (D), and (F) of subsection 
(c)(1), but shall generally describe the information sought, 
the communications or activities to be subjected to the 
surveillance, and the type of electronic surveillance involved, 
including whether physical entry is required.]
  [(e)] (d)(1) An order issued under this section may approve 
an electronic surveillance for the period necessary to achieve 
its purpose, or for ninety days, whichever is less, except that 
(A) an order under this section shall approve an electronic 
surveillance targeted against a foreign power, as defined in 
section 101(a), (1), (2), or (3), for the period specified in 
the application or for one year, whichever is less, and (B) an 
order under this Act for a surveillance targeted against an 
agent of a foreign power who is not a United States person may 
be for the period specified in the application or for 120 days, 
whichever is less.
  [(2) Extensions of an order issued under this title may be 
granted on the same basis as an original order upon an 
application for an extension and new findings made in the same 
manner as required for an original order, except that (A) an 
extension of an order under this Act for a surveillance 
targeted against a foreign power, a defined in section 101(a) 
(5) or (6), or against a foreign power as defined in section 
101(a)(4) that is not a United States person, may be for a 
period not to exceed one year if the judge finds probable cause 
to believe that no communication of any individual United 
States person will be acquired during the period, and (B) an 
extension of an order under this Act for a surveillance 
targeted against an agent of a foreign power who is not a 
United States person may be for a period not to exceed 1 year.]
  (2) Extensions of an order issued under this title may be 
granted on the same basis as an original order upon an 
application for an extension and new findings made in the same 
manner as required for an original order and may be for a 
period not to exceed one year.

           *       *       *       *       *       *       *

  (4) An order issued under this section shall remain in force 
during the authorized period of surveillance notwithstanding 
the absence of the target from the United States, unless the 
Government files a motion to extinguish the order and the court 
grants the motion.
  [(f) Notwithstanding any other provision of this title, when 
the Attorney General reasonably determines that--
          [(1) 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; and
          [(2) the factual basis for issuance of an order under 
        this title to approve such surveillance exists;
he may authorize the emergency employment of electronic 
surveillance if a judge having jurisdiction under section 103 
is informed by the Attorney General or his designee at the time 
of such authorization that the decision has been made to employ 
emergency electronic surveillance and if an application in 
accordance with this title is made to that judge as soon as 
practicable, but not more than 72 hours after the Attorney 
General authorizes such surveillance. If the Attorney General 
authorizes such emergency employment of electronic 
surveillance, he shall require that the minimization procedures 
required by this title for the issuance of a judicial order be 
followed. 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 72 hours from 
the time of authorization by the Attorney General, whichever is 
earliest. 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. A denial of the 
application made under this subsection may be reviewed as 
provided in section 103.]
  (e) Notwithstanding any other provision of this title, an 
official appointed by the President with the advice and consent 
of the Senate that is designated by the President to authorize 
electronic surveillance may authorize the emergency employment 
of electronic surveillance if--
          (1) such official 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;
          (2) such official determines that the factual basis 
        for issuance of an order under this title to approve 
        such electronic surveillance exists;
          (3) such official informs the Attorney General of 
        such electronic surveillance;
          (4) the Attorney General or a designee of the 
        Attorney General informs a judge having jurisdiction 
        under section 103 of such electronic surveillance as 
        soon as practicable, but in no case more than 7 days 
        after the date on which such electronic surveillance is 
        authorized;
          (5) an application in accordance with this title is 
        made to such judge or another judge having jurisdiction 
        under section 103 as soon as practicable, but not more 
        than 7 days after such electronic surveillance is 
        authorized;
          (6) such official requires that the minimization 
        procedures required by this title for the issuance of a 
        judicial order be followed.
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 7 days from the 
time of authorization by such official, whichever is earliest. 
In the event that the application for approval submitted 
pursuant to paragraph (5) 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. A denial of the application made pursuant to 
paragraph (5) may be reviewed as provided in section 103.
  [(g)] (f) Notwithstanding any other provision of this title, 
officers, employees, or agents of the United States are 
authorized in the normal course of their official duties to 
conduct electronic surveillance not targeted against the 
communications of any particular person or persons, under 
procedures approved by the Attorney General, solely to--
          (1) * * *

           *       *       *       *       *       *       *

  [(h)] (g) Certifications made by the Attorney General 
pursuant to section 102(a) and applications made and orders 
granted under this title shall be retained for a period of at 
least ten years from the date of the certification or 
application.
  [(i)] (h) No cause of action shall lie in any court against 
any provider of [a wire or] an electronic communication 
service, landlord, custodian, or other person (including any 
officer, employee, agent, or other specified person thereof) 
that furnishes any information, facilities, or technical 
assistance in accordance with a court order or request for 
emergency assistance under this Act for electronic surveillance 
or [physical search] physical search or in response to a 
certification by the Attorney General or a designee of the 
Attorney General seeking information, facilities, or technical 
assistance from such person under section 102B.
  (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, 
the judge shall also authorize the installation and use of pen 
registers and trap and trace devices to acquire dialing, 
routing, addressing, and signaling information related to such 
communications and such dialing, routing, addressing, and 
signaling information shall not be subject to minimization 
procedures.

                           USE OF INFORMATION

      Sec. 106. (a) * * *

           *       *       *       *       *       *       *

  (i) In circumstances involving the unintentional acquisition 
by an electronic, mechanical, or other surveillance device of 
the contents of any [radio] communication, under circumstances 
in which a person has a reasonable expectation of privacy and a 
warrant would be required for law enforcement purposes, and if 
both the sender and all intended recipients are located within 
the United States, such contents shall be destroyed upon 
recognition, unless the Attorney General determines that the 
[contents indicates] contents contain significant foreign 
intelligence information or indicate a threat of death or 
serious bodily harm to any person.
  (j) If an emergency employment of electronic surveillance is 
authorized under section [105(e)] 105(d) and a subsequent order 
approving the surveillance is not obtained, the judge shall 
cause to be served on any United States person named in the 
application and on such other United States persons subject to 
electronic surveillance as the judge may determine in his 
discretion it is in the interest of justice to serve, notice 
of--
          (1) * * *

           *       *       *       *       *       *       *

  (k)(1) * * *
  (2) Coordination authorized under paragraph (1) shall not 
preclude the certification required by section [104(a)(7)(B)] 
104(a)(6)(B) or the entry of an order under section 105.

           *       *       *       *       *       *       *


                        CONGRESSIONAL OVERSIGHT

      Sec. 108. (a)(1) On a semiannual basis the Attorney 
General shall fully inform each member of the House Permanent 
Select Committee on Intelligence and the Senate Select 
Committee on Intelligence, and the Committee on the Judiciary 
of the Senate, concerning all electronic surveillance under 
this title. Nothing in this title shall be deemed to limit the 
authority and responsibility of the appropriate committees of 
each House of Congress to obtain such information as they may 
need to carry out their respective functions and duties.
          (2) Each report under the first sentence of paragraph 
        (1) shall include a description of--
                  (A) * * *
                  (B) each criminal case in which information 
                acquired under this Act has been authorized for 
                use at trial during the period covered by such 
                report; [and]
                  (C) the total number of emergency employments 
                of electronic surveillance under section 
                [105(f)] 105(e) and the total number of 
                subsequent orders approving or denying such 
                electronic surveillance[.]; and
                  (D) the authority under which the electronic 
                surveillance is conducted.
          (3) Each report submitted under this subsection shall 
        include reports on electronic surveillance conducted 
        without a court order.

           *       *       *       *       *       *       *


   TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN 
INTELLIGENCE PURPOSES

           *       *       *       *       *       *       *


                          ISSUANCE OF AN ORDER

  Sec. 304. (a) * * *

           *       *       *       *       *       *       *

  (d)(1) * * *

           *       *       *       *       *       *       *

  (4) An order issued under this section shall remain in force 
during the authorized period of surveillance notwithstanding 
the absence of the target from the United States, unless the 
Government files a motion to extinguish the order and the court 
grants the motion.

           *       *       *       *       *       *       *

                              ----------                              


            SECTION 501 OF THE NATIONAL SECURITY ACT OF 1947

               GENERAL CONGRESSIONAL OVERSIGHT PROVISIONS

  Sec. 501. (a)(1) The President shall ensure that each member 
of the congressional intelligence committees are kept fully and 
currently informed of the intelligence activities of the United 
States, including any significant anticipated intelligence 
activity as required by this title.

           *       *       *       *       *       *       *

  (b) The President shall ensure that any illegal intelligence 
activity is reported promptly to each member of the 
congressional intelligence committees, as well as any 
corrective action that has been taken or is planned in 
connection with such illegal activity.

           *       *       *       *       *       *       *


                           Markup Transcript




                            BUSINESS MEETING

                     WEDNESDAY, SEPTEMBER 20, 2006

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:10 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (chairman of the committee) presiding.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 5825, the Electronic Surveillance Modernization 
Act, for purposes of--the committee will be in order. Pursuant 
to notice, I now call up the bill H.R. 5825, the Electronic 
Surveillance Modernization Act, for purposes of markup and move 
its favorable recommendation to the House.
    Can we have some order here please? Members, please take--
and staff will please take their conversations and press 
inquiries out into the hallway.
    The Chair moves the favorable recommendation to the House. 
Without objection, the bill will be considered as read and open 
for amendment at any point.
    [The bill, H.R. 5825, follows:]
      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


      
      

  


    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to explain the bill--once there's order. If there is 
not order, the Chair is going to start naming names. Thank you.
    Today, the committee considers H.R. 5825, the Electronic 
Surveillance Modernization Act, a bill introduced by 
Representative Heather Wilson, Chairman Hoekstra and myself. 
This legislation reflects Congress' ongoing efforts to provide 
the administration with reasonable tools and authorities to 
prevent terrorist attacks on our Nation.
    H.R. 5825 would return the focus of FISA to protecting 
those with the fourth amendment expectation of privacy. The 
bill makes FISA technology neutral and simplifies the process 
for getting a FISA court order.
    When FISA was enacted, domestic communications and 
international communications were transmitted in a 
predominantly different manner. Domestic communications were 
transmitted via wire, while international communications were 
transmitted via radio. In recent years, international 
communications are increasingly transmitted through undersea 
cables which were considered wire. This bill recognized that 
international communications should be treated the same whether 
transmitted by wire technology or radio technology. The bill 
would remove the current technology----
    Mr. Watt. Mr. Chairman, we are having trouble hearing you. 
I am sorry.
    Chairman Sensenbrenner. The gentleman from California is 
correct.
    Mr. Watt. California? Wherever. North Carolina, Mr. 
Chairman.
    Chairman Sensenbrenner. Well, I was stared at by the 
gentleman from California, but you are correct.
    Mr. Watt. They can't hear you in North Carolina or 
California, Mr. Chairman.
    Chairman Sensenbrenner. Well, I am more worried about North 
Carolina, because it is closer.
    The bill would remove the current technology distinction 
between the terms wire and radio communications and would use a 
technology neutral definition for electronic surveillance.
    It would also specifically require that when a person has a 
reasonable expectation of privacy, FISA applies.
    The bill also addresses the government's use of warrantless 
surveillance to monitor a suspected terrorist's international 
communications tape.
    On December 16 of last year, based on the leak of 
classified information, the New York Times published a story 
regarding the terrorist surveillance program operated by the 
NSA. The President subsequently acknowledged that he had 
authorized the program after 9/11 to intercept the 
international communications of those with known links to al 
Qaeda and related terrorist organizations.
    Notwithstanding the administration's position that this 
program is fully consistent with U.S. law and the Constitution, 
the President has called on Congress to provide specific 
authorization for this program and to make additional changes 
to U.S. laws governing electronic surveillance. The bill 
attempts to encompass such surveillance without infringing on 
the President's authority to protect national security.
    The Subcommittee on Crime, Terrorism and Homeland Security 
recently held two hearings on the bill and other legislation 
relating to the surveillance of electronic communications. At 
these hearings, there was broad consensus among witnesses and 
members that this bill could be improved, which is why we are 
considering it at this markup today.
    As I noted earlier, the legislation is a priority for the 
President and critical to our national efforts to detect and 
disrupt acts of terrorism before they occur on American soil.
    I would note this legislation is expected to come up for 
consideration on the House floor as early as next week. 
Therefore, it is imperative that the committee act on the bill 
today lest we risk foregoing our opportunity to improve it.
    I yield back the balance of my time and recognize the 
gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    This is a very important measure, and I state from the 
outset I strongly support intercepting each and every 
conversation involving al Qaeda and its supporters. I also 
support commonsense updates to the Foreign Intelligence 
Surveillance Act, FISA, in order to have our surveillance 
capabilities keep pace with modern technologies.
    The problem that confronts us in the measure before us is 
that it is, one, unconstitutional, two, deeply flawed, and of 
highly questionable timing to boot.
    First, let's talk about the flaws. The flaw is that it 
would radically rewrite FISA, gutting core provisions and 
safeguards and exposing millions of innocent Americans to 
warrantless surveillance. Among other things, the bill does 
nothing to impose limits on unchecked Presidential power to 
conduct warrantless surveillance, which has been the subject of 
much discussion here of late.
    Secondly, it extends FISA's surveillance to broad new 
categories of individuals, corporations and the United States 
having no connection to foreign governments or terrorist 
organizations. The Computer and Communications Industry 
Association wrote to the Committee on the Judiciary just 
yesterday that the mere possibility of widespread, secret, 
unchecked surveillance of the billions of messages that flow 
among our customers, especially U.S. citizens, will corrode the 
fundamental openness and freedom necessary to our communication 
networks.
    The next consideration is that it allows warrantless 
surveillance of innocent Americans in the United States and 
allows the government to maintain records and massive databases 
on such individuals in perpetuity. It grants broad new powers 
to conduct physical searches on all United States persons, as 
well as their relatives, landlords, business communication 
providers, without court approval.
    In addition, this measure grants expansive new authority to 
conduct warrantless surveillance and physical searches without 
warrant against any and all Americans after an undefined, armed 
or terrorist attack on any American person or property anywhere 
in the world for an indefinite duration.
    Now, with those--one, two, three, four, five, six--
criticisms of the problems of this legislation, I could stop 
right there. There are six reasons to turn this legislation 
back on the spot.
    But I believe the measure is further unconstitutional for 
it contravenes the fourth amendment requirement that 
individualized judicial warrants are required for our 
government to intercept communications of Americans. The need 
is particularly vital in the present case, as the individuals 
will never learn of the surveillance.
    Further, by eliminating the requirement that the government 
show that the warrant is reasonable and narrowly tailored, the 
bill flies in the face of the fourth amendment's particularity 
requirement.
    Finally, I must also question whether the committee even 
should be holding this markup at this time. The question of 
timing--9 months--almost 9 months after we first learned of the 
warrantless surveillance program, there has been no attempt to 
conduct an independent inquiry into its legality. Not only has 
the Congress failed to conduct any sort of investigation but 
the administration summarily rejected all requests for special 
counsels as well as reviews by the Department of Justice and 
the Department of Defense Inspectors General.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Conyers. I ask unanimous consent that my remaining 
statement go into the record.
    Chairman Sensenbrenner. Without objection, so ordered.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary


    Chairman Sensenbrenner. Without objection, all members may 
place opening statements in the record at this point.
    Are there amendments?
    The Chair has an amendment at the desk, which the Clerk 
will report.
    The Clerk. Mr. Chairman, I have two amendments from you.
    Chairman Sensenbrenner. This is the one that is 009 XML.
    The Clerk. Mr. Chairman, amendment to H.R. 5825 offered by 
Mr. Sensenbrenner.
    Strike sections 7 and 8, page 12, line 1 through page 16, 
line 21.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes.
    The amendment strikes sections 7 and 8 of the Wilson bill. 
Section 7 would amend the authorization term of during time of 
war and section 11 of FISA. Under the Wilson bill, the 
President through the Attorney General is authorized to collect 
essential surveillance without a court order to acquire foreign 
intelligence information for a period of not to exceed 60 days 
after an armed attack against the U.S.
    The current law allows for warrantless surveillance for 15 
days after a declaration of war by the Congress. Notification 
to each member of the two intelligence committees is required.
    According to the conference report on FISA, the conferees 
intended that this period would allow for time for 
consideration of any amendment to the Act that may be 
appropriate during a wartime emergency. It went on to say that 
the conferees expected such amendment would be reported with 
recommendations within 7 days and that each House would vote on 
the amendment within 7 days thereafter.
    The Wilson bill changed the trigger for declaration of war 
to an armed attack and extended the time for warrantless 
surveillance to 60 days. Section 11 was not intended to provide 
adequate time for the government to conduct warrantless 
surveillance in a time of war but rather for Congress to act 
expeditiously after such a declaration of war to amend the law.
    Furthermore, the new language is vague and does not allow 
the Intelligence Committee to work to prevent another attack if 
they have to wait for an armed attack.
    The amendment strikes section 7. Section 8 would govern 
electronic surveillance after a terrorist attack that would not 
be covered under FISA. The President, acting through the 
Attorney General, would have the authority to authorize 
electronic surveillance to acquire foreign intelligence 
information without a court order under specified 
circumstances.
    Under this authority, the President would have to submit 
notification to each member of the Intelligence Committees and 
of the FISA court. Notification must state that the U.S. has 
been the subject of a terrorist attack and must identify the 
terrorist organizations or affiliates of terrorist 
organizations believed to be responsible for the terrorist 
attacks.
    For someone to be the target of such surveillance there 
must be a reason to believe that such a person is communicating 
with a terrorist organization that is reasonably believed to be 
responsible for the attack. There must be reasonable cause to 
believe the information obtained from the electronic 
surveillance may be foreign intelligence information. This 
section of the bill would require recertification every 45 days 
and minimization procedures for electronic surveillance 
conducted under the section. The language again requires the 
government to wait until after attack.
    The mission of the government is to prevent another 
terrorist attack, and that is the very purpose of the terrorism 
surveillance programs. At the hearings held by the Subcommittee 
on Crime, members and witnesses expressed a concern that this 
trigger would not allow them to prevent an attack. These 
sections, I believe, should be stricken, while better language 
should be crafted.
    I yield back the balance of my time.
    The gentleman from Michigan.
    Mr. Conyers. Mr. Chairman, I find that striking section 7--
I rise in support of the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes, and more if he needs it.
    Mr. Conyers. I appreciate the amendment. Because, by 
eliminating these two sections, you have taken care of at least 
one, maybe two points of the criticism that I offered initially 
against the bill.
    So I support the amendment and return the balance of my 
time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the Chair. Those in favor will say aye; those 
opposed, no.
    The ayes appear to have it. The ayes have it. The amendment 
is agreed to.
    Are there further amendments?
    Mr. Lungren. Mr. Chairman.
    Chairman Sensenbrenner. Gentleman from California, Mr. 
Lungren.
    Mr. Lungren. Mr. Chairman, I have an amendment at the desk.
    Mr. Conyers. Point of procedure, Mr. Chairman. Don't we go 
to the other side?
    Chairman Sensenbrenner. Well, the gentleman from California 
is very pushy, so he has been recognized.
    The Clerk will report the amendment.
    The Clerk. Amendment to H.R. 5825 offered by Mr. Dan E. 
Lungren of California.
    Strike section 2, page 1, line 6, through page 3, line 20, 
and insert the following:
    Section 2. FISA definitions.
    Mr. Lungren.  Mr. Chairman, I ask unanimous consent that 
the amendment be considered----
    Chairman Sensenbrenner. Just wait till the amendment is 
distributed, because it is somewhat lengthy.
    The clerk will continue to report.
    The Clerk. Subsection (a). Agent of a Foreign Power. 
Subsection (b)(1) of section 101 of the Foreign Intelligence 
Surveillance Act of 1978, 50 U.S. Code----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman will be recognized 
for 5 minutes.
    Mr. Lungren.  Thank you very much, Mr. Chairman.
    I support the goals to update, streamline and make FISA 
technology neutral. At the same time, I am concerned that the 
bill's language needed to be amended to ensure that the 
safeguards built in FISA remain and that the original purpose 
of FISA is clarified.
    Section 2(a) of the bill would add a new category to the 
definition of a, quote, agent of a foreign power, end quote, to 
ensure that the definition captures non-U.S. persons who 
possess or receive foreign intelligence information. While I 
support amending this definition, my amendment would narrow the 
application of this provision to situations in which the 
relevant foreign intelligence information is deemed, quote, 
significant.
    Section 2(b) would amend FISA's definition of electronic 
surveillance in a manner that would return FISA to its original 
purpose by focusing on where and on whom the surveillance is 
being directed. The definition, as I would amend it, would turn 
on targeting on a particular known person, A, believed to be in 
the United States, B, in circumstances which that person has, 
(i), a reasonable expectation of privacy or, (ii), a warrant 
would be required for law enforcement purposes.
    The testimony that we heard at subcommittee from both the 
Department of Justice witness and the NSA witness suggested the 
need for what is essentially a technical amendment to the bill 
in order to clarify this definition by emphasizing that the key 
is, quote, intentionally directing the surveillance at a 
particular known person, end quote.
    I believe we need to focus on the target to determine what 
applies and does not apply and whether fourth amendment privacy 
rights are implicated. A non-U.S. person who is a terrorist in 
Afghanistan does not have the same privacy rights of U.S. 
person, and our surveillance laws should reflect that, and I 
believe my amendment does so.
    Section 3 of the bill would amend the current section 
102(a) certification process to expand the circumstances under 
which the government may conduct electronic surveillance 
without court order of foreign powers or agents of foreign 
powers. Currently, under 102(a)(1)(A), the only time the 
government could use this authority was when the means of 
communications are exclusively used by a foreign power or 
foreign power to a foreign power or controlled by the foreign 
power. In 1978, this technology was standard.
    When communications were controlled by a foreign power, 
there was no reason to go to a FISA court, because it was 
technical intelligence under the open and exclusive control of 
a foreign power or was a foreign power talking to another 
foreign power. Consequently, there was little chance that a 
U.S. person would be involved.
    Now communications are done differently, where the 
technology used to communicate could be a U.S.-controlled 
telecommunications company or a U.S. person or U.S. persons 
working at the embassy.
    The drafters of FISA were trying to carve out foreign to 
foreign communications. The testimony before the subcommittee 
explained that this technology has changed, making it 
impossible to use this provision. So H.R. 5825 expands this 
section to cover agents of a foreign power and makes the 
application of the law technology neutral.
    I share the sentiment embodied in the language. However, I 
believe it goes too far and that we should restrict the 
expansion of the current law to agents of foreign powers that 
are actually connected to foreign powers.
    Section 3 of the bill would also provide a new and 
streamlined Attorney General certification process, permitting 
the Attorney General to direct electronic communication service 
providers to provide certain information to facilities or 
technical assistance for period of up to 1 year, provided that 
the provision of these resources does not constitute electronic 
surveillance.
    I think if we are going to add such a process we need to 
restrict the manner in which the information is to be obtained 
and create a mechanism for the FISA court to review and enforce 
the directives as well as allowing for challenges to the 
process, and that is what my amendment would seek to do.
    Section 4 would significantly streamline the FISA 
application process, would eliminate requirements to provide 
certain categories of information currently necessary to a FISA 
application. I would hope that we all support this objective, 
but I would suggest that some of the application requirements 
that 5825 would eliminate, such as detailed statements 
concerning prior FISA applications involving the target, and 
the means by which surveillance will be affected, is too blunt 
of an instrument rather than eliminate the requirements of----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Lungren. Mr. Chairman, I ask unanimous consent for 3 
additional minutes
    Chairman Sensenbrenner. Without objection.
    Mr. Lungren. Rather than eliminate the requirement of this 
information, which is in the bill as introduced, my amendment 
would require general summary statements to be brought forward. 
Section 5 of the bill would require the maximum duration of 
FISA orders to be 1 year. There was no argument made at the 
subcommittee for this change. Furthermore, the other changes we 
have made to streamline the process render such a change 
unnecessary, and my amendment would strike this change in the 
law.
    Section 5 of H.R. 5825 would also amend FISA's emergency 
authorization provision by allowing surveillance to continue 
for 5 days prior to court approval. I agreed with the 
administration's testimony, and expanded duration for emergency 
application of 7 days, and also allow senior officials rather 
than the Attorney General solely to authorize such 
surveillance.
    Finally, section 10 of the bill would continue a FISA- 
ordered coverage on a target even after they left the United 
States unless the government filed a motion to extinguish the 
order and the court granted the motion, and that is section 10 
of this.
    So what I have attempted to do is to respond to a number of 
the concerns expressed by the minority side, shared by a number 
on the majority side, that the bill as originally introduced, 
while going in the right direction overall, probably went a 
little too far. And so what we have tried to do is narrow the 
focus, put it more towards the direction I think we all talked 
about in our discussions after the two hearings that we had.
    I think it still goes in the direction the administration 
wants. I believe it gives them what they need but I believe it 
maintains a number of the protections that we have in the past, 
on a bipartisan basis, put into the FISA law, and I would ask 
support for the amendment.
    Chairman Sensenbrenner. The time of the gentleman has 
expired. For what purpose does the gentleman seek recognition?
    Mr. Conyers. I rise to strike the requisite number of 
words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers. Mr. Chairman, I would like to ask the author 
of this amendment, Mr. Lungren, how many sections are changed 
within these 25 pages of amendment?
    How many places?
    Mr. Lungren. Section 2(a), 2(b), section 3.
    Mr. Conyers. Just the number. Sounds like it is about a 
dozen to me.
    Mr. Lungren. Six sections in the bill, in the underlying 
bill.
    Mr. Conyers. Has the gentleman from California had an 
opportunity to discuss this with other members of the Committee 
on the judiciary?
    Mr. Lungren. We have had discussions through staff with 
other members on the Judiciary, as I understand it. And also I 
might say that most of these were brought up to me during our 
hearings by members of the committee, including members of the 
minority. I was trying to respond to specific concerns raised 
where people articulated the position that they believed we 
needed to bring FISA up to date, we needed to make it 
technology neutral, but they thought that the language in the 
underlying bill went beyond what was necessary.
    Mr. Conyers. Well, what I would like to ask the gentleman, 
I thank him for his summary of what he was trying to do, which 
is something I think we would agree with, but I would like the 
gentleman to know that no one on my staff remembers being 
discussed--having any discussions about the provision, and it 
would seem to me that in the fullness of our cooperation that 
if the gentleman could withdraw this amendment--he counted six 
changes I think--it seemed to me that there were more sections 
cited in his presentation. We may be able to respond favorably 
to the objectives stated by the gentleman from California or, 
in the alternative, we might be able to form amendments that 
would make it more acceptable to us.
    But at this point it is impossible for this member to gain 
any appreciation of the significant changes that the gentleman 
has attempted. And so I would ask that this be withheld until 
we have had an opportunity to examine this with the care that 
is required. This did not come up during the hearings. There 
was no markup in the subcommittee. And we are confronted with 
what I think are huge changes, some of which may be favorable 
to the majority of the members of the subcommittee.
    Mr. Lungren. Would the gentleman yield? The only thing I 
can say in response is I am not, obviously, responsible for the 
timetable set as we are dealing with--in the ending weeks of a 
Congress. I attended and even chaired one of the hearings that 
we had on this, trying to make sure that everybody had ample 
opportunity to ask questions, made a conscientious effort to 
try and identify the areas of concerns of members on both 
sides, particularly on the minority side, and have tried to 
work with staff to develop this. I am under the time gun as 
well. And so I am worried if I withdraw this and don't bring it 
at this time, we may miss the opportunity for our committee to 
actually work it out.
    Mr. Conyers. Let me just ask the gentlemen, could we break 
this down into individual amendments that we can consider one 
at a time? Six different sections being modified, 25 pages I 
think is--this sounds like a ``trust me'' amendment if I have 
ever seen one.
    Mr. Lungren. You and I have always trusted one another.
    Mr. Conyers. I would love to trust you, but not in 25 
pages' worth.
    Mr. Schiff. Would the gentleman yield?
    Mr. Conyers. I ask for unanimous consent to proceed for an 
additional minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Schiff. I thank the gentleman for yielding. Mr. Flake 
and I have been working on a substitute amendment that we are 
prepared to offer today that addresses a lot of the concerns 
shared on both side of the aisle as well, and I could go 
through the provisions of that amendment and ask how it differs 
from what you are proposing, Mr. Lungren. I don't know if we 
are going to have the opportunity to go through all the details 
of your proposal, all the details of ours, and all the details 
of the base bill.
    This illustrates, I think, the difficulty in marking up a 
bill like this on such short order when we have just had the 
first classified hearing on these issues less than a week ago.
    In the substitute that Mr. Flake and I are offering, we 
provide that the authorization to use military force is not an 
exception to FISA. We provide that FISA is the exclusive means 
by which domestic electronic surveillance for foreign 
intelligence purposes can be conducted.
    Mr. Conyers. Mr. Speaker, I ask for 2 additional minutes.
    Chairman Sensenbrenner. Without objection.
    Mr. Conyers. I continue to yield to the gentleman.
    Mr. Schiff. I thank the gentleman. We require that the 
President submit to the Intelligence Committee and to the 
Judiciary Committee a classified report on the TSB program and 
any other program that is used for intelligence purposes that 
is outside of FISA.
    We also provide and authorize the Chief Justice of the 
Supreme Court to appoint additional FISA court judges.
    Mr. Conyers. Could I ask my friend to suspend, because I 
want to offer a motion to table so that your amendment can be 
brought--your substitute, without being prejudiced if this 
happens to go through.
    Mr. Schiff. I appreciate it. Whatever the procedural 
mechanism. I think the reason we are having such trouble here 
today is that, unlike the PATRIOT bill procedure where the 
judiciary--the Justice Department came to this committee with a 
proposal that we could analyze in detail, that we had weeks, 
particularly with the reauthorization to go over and study, the 
Justice Department hasn't come to this committee for a bill 
changing FISA. It has been 5 years since 9/11. The Justice 
Department hasn't come to us for a bill. But we have different 
member bills.
    Mr. Conyers. Mr. Chairman, I make a motion to table the 
Lungren amendment.
    Chairman Sensenbrenner. The Chair would observe that the 
motion is not timely made. Under House rule 16, clause 4, paren 
(e) paren (ii) the motion to table only lies before debate 
begins on an amendment or a motion. The question----
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The time of the gentleman from 
Michigan has expired. For what purposes does the gentleman from 
New York seek recognition?
    Mr. Nadler. In view of the fact that none of us have any 
idea what is in this bill, and we should consider it properly, 
I move we stand adjourned until tomorrow morning.
    Chairman Sensenbrenner. The question is on the motion to 
adjourn.
    Those in favor will say aye.
    Opposed, no.
    The noes appear to have it.
    Mr. Nadler. rollcall vote.
    Chairman Sensenbrenner. rollcall vote is ordered on the 
motion to adjourn.
    Those in favor of adjourning will, as your names are 
called, answer aye.
    Those opposed, no.
    The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    [No response.]
    The Clerk. Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    Mr. Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins.
    [No response.]
    The Clerk. Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis.
    Mr. Inglis. Pass.
    The Clerk. Mr. Inglis, pass.
    Mr. Hostettler.
    [No response.]
    The Clerk. Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    [No response.]
    The Clerk. Mr. Flake.
    Mr. Flake. Pass.
    The Clerk. Mr. Flake, pass.
    Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert.
    Mr. Gohmert. How am I recorded?
    The Clerk. Mr. Chairman, Mr. Gohmert has not yet voted.
    Mr. Gohmert. Then I vote no.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt.
    Mr. Watt. Mr. Watt, aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren.
    [No response.]
    The Clerk. Ms. Jackson Lee.
    [No response.]
    The Clerk. Ms. Waters.
    [No response.]
    The Clerk. Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    [No response.]
    The Clerk. Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no.
    Mr. Schiff.
    [No response.]
    The Clerk. Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye.
    Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote? The gentleman from South Carolina, Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Chairman Sensenbrenner. The gentleman from Arizona, Mr. 
Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Chairman Sensenbrenner. The gentleman from Tennessee, Mr. 
Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Chairman Sensenbrenner. The gentleman from Massachusetts, 
Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. Further members who wish to cast or 
their change vote? The Clerk will report.
    Mr. Watt. Mr. Chairman, might I inquire how I am listed?
    The Clerk. Mr. Watt is recorded as aye.
    Chairman Sensenbrenner. Gentlewoman from California, Ms. 
Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Chairman Sensenbrenner. The Clerk will report.
    The gentleman from Florida, Mr. Wexler.
    Mr. Wexler. Yes
    The Clerk. Mr. Wexler, aye.
    Chairman Sensenbrenner. The Clerk will report.
    The other gentlelady from California, Ms. Waters.
    Ms. Waters. Yes.
    The Clerk. Ms. Waters, aye.
    Mr. Weiner. Mr. Chairman, how am I recorded?
    Chairman Sensenbrenner. The gentleman from New York.
    The Clerk. Mr. Chairman, Mr. Weiner is recorded as no.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. The Clerk will report.
    The Clerk. Mr. Chairman, there are 14 ayes and 17 nays.
    Chairman Sensenbrenner. The motion to adjourn is not agreed 
to. The question is on agreeing to the amendment offered----
    Mr. Weiner. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York----
    Mr. Weiner. Make a point of order. A quorum is not present.
    Chairman Sensenbrenner. The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    [No response.]
    The Clerk. Mr. Smith.
    [No response.]
    The Clerk. Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    [No response.]
    The Clerk. Mr. Chabot.
    Mr. Chabot. Present.
    The Clerk. Mr. Chabot, present.
    Mr. Lungren.
    Mr. Lungren. Present.
    The Clerk. Mr. Lungren, present.
    Mr. Jenkins.
    [No response.]
    The Clerk. Mr. Cannon.
    [No response.]
    The Clerk. Mr. Bachus.
    Mr. Cannon. Present.
    The Clerk. Mr. Cannon present.
    Mr. Bachus.
    [No response.]
    The Clerk. Mr. Inglis.
    Mr. Inglis. Present.
    The Clerk. Mr. Inglis, present. Mr. Hostettler.
    [No response.]
    The Clerk. Mr. Green.
    Mr. Green. Present.
    The Clerk. Mr. Green, present.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    [No response.]
    The Clerk. Mr. Flake.
    Mr. Flake. Present.
    The Clerk. Mr. Flake, present.
    Mr. Pence.
    Mr. Pence. Present.
    The Clerk. Mr. Pence, present.
    Mr. Forbes.
    Mr. Forbes. Present.
    The Clerk. Mr. Forbes, present.
    Mr. King.
    Mr. King. Present.
    The Clerk. Mr. King, present.
    Mr. Feeney.
    Mr. Feeney. Present.
    The Clerk. Mr. Feeney, present.
    Mr. Franks.
    Mr. Franks. Present.
    The Clerk. Mr. Franks, present.
    Mr. Gohmert.
    [No response.]
    The Clerk. Mr. Conyers.
    [No response.]
    The Clerk. Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    [No response.]
    The Clerk. Mr. Scott.
    [No response.]
    The Clerk. Mr. Watt.
    [No response.]
    The Clerk. Ms. Lofgren.
    [No response.]
    The Clerk. Ms. Jackson Lee.
    [No response.]
    The Clerk. Ms. Waters.
    [No response.]
    The Clerk. Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    [No response.]
    The Clerk. Mr. Weiner.
    Mr. Feeney. Mr. Chairman, a point of order.
    Chairman Sensenbrenner. The Clerk will continue calling the 
roll.
    The Clerk. Mr. Schiff.
    [No response.]
    The Clerk. Ms. Sanchez.
    [No response.]
    The Clerk. Mr. Van Hollen.
    [No response.]
    The Clerk. Ms. Wasserman Schultz.
    [No response.]
    The Clerk. Mr. Chairman.
    Chairman Sensenbrenner. Present. 
    Members in the Chamber who wish to record their presence. 
The gentleman from Texas, Mr. Smith.
    Mr. Smith. I vote present.
    The Clerk. Present.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble.
    Mr. Coble. Present.
    The Clerk. Mr. Coble, present.
    Chairman Sensenbrenner. The gentleman from Alabama, Mr. 
Bachus.
    Mr. Bachus. Present.
    The Clerk. Mr. Bachus, present.
    Chairman Sensenbrenner. The gentleman from Tennessee, Mr. 
Jenkins.
    Mr. Jenkins. Present.
    The Clerk. Mr. Jenkins, present.
    Mr. Feeney. Mr. Chairman, a point of order with respect to 
the rollcall.
    Chairman Sensenbrenner. The gentleman will state his point 
of order.
    Mr. Feeney. The gentleman from New York was here to raise 
the absence of a quorum. Is his presence imputed as here for 
purposes of the quorum?
    Chairman Sensenbrenner. No.
    The Clerk will report.
    The Clerk. Mr. Chairman, there are 16 members present.
    Chairman Sensenbrenner. A working quorum is present. The 
question is on agreeing to the amendment offered by the 
gentleman from California, Mr. Lungren.
    Those in favor will say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it and the 
amendment is agreed to.
    Mr. Flake. I request a rollcall vote.
    Chairman Sensenbrenner. Rollcall is ordered. Those in favor 
of the Lungren amendment will, as your names are called, answer 
aye. Those opposed, no.
    And the Clerk will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye.
    Mr. Gallegly.
    [No response.]
    The Clerk. Mr. Goodlatte.
    [No response.]
    The Clerk. Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye.
    Mr. Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye.
    Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Mr. Inglis.
    [No response.]
    The Clerk. Mr. Hostettler.
    [No response.]
    The Clerk. Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    [No response.]
    The Clerk. Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King, aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye.
    Mr. Franks.
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye.
    Mr. Gohmert.
    [No response.]
    The Clerk. Mr. Conyers.
    [No response.]
    The Clerk. Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    [No response.]
    The Clerk. Mr. Scott.
    [No response.]
    The Clerk. Mr. Watt.
    [No response.]
    The Clerk. Ms. Lofgren.
    [No response.]
    The Clerk. Ms. Jackson Lee.
    [No response.]
    The Clerk. Ms. Waters.
    [No response.]
    The Clerk. Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    [No response.]
    The Clerk. Mr. Weiner.
    [No response.]
    The Clerk. Mr. Schiff.
    [No response.]
    The Clerk. Ms. Sanchez.
    [No response.]
    The Clerk. Mr. Van Hollen.
    [No response.]
    The Clerk. Ms. Wasserman Schultz.
    [No response.]
    The Clerk. Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their vote. The gentleman from South Carolina, Mr. 
Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Gohmert.
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes? The gentleman from California, Mr. Issa.
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. On the Lungren amendment, yes.
    Chairman Sensenbrenner. The other gentleman from 
California, Mr. Gallegly.
    Mr. Gallegly. Yes.
    The Clerk. Mr. Gallegly, aye.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their vote? If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 17 ayes and 2 nays.
    Chairman Sensenbrenner. The amendment is agreed to.
    Are there further amendments? If there are no further 
amendments----
    Mr. Flake. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Arizona seek recognition?
    Mr. Feeney. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. Who has an amendment at the desk? 
The Clerk will report the Feeney amendment.
    Mr. Feeney. The gentleman from Arizona sought recognition 
but I do have an amendment at the desk.
    Chairman Sensenbrenner. Does the gentleman from Arizona 
have an amendment?
    I was talking about the other gentleman from Arizona. You 
sought recognition. For what purpose?
    Mr. Flake. I will defer to the other gentleman from 
Arizona.
    Chairman Sensenbrenner. Let's go first to the Feeney 
amendment. The Clerk will report the Feeney amendment.
    The Clerk. Amendment to H.R. 5825 offered by Mr. Feeney of 
Florida.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and the gentleman from Florida is recognized 
for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Feeney. Thank you. This is an important bill to give 
the proper tools to our law enforcement and Intelligence 
Community to detect and prevent terrorism. However, there are 
some legitimate fourth amendment concerns, especially when you 
only have one branch of government, the executive, involved in 
reviewing its own policies without another branch being 
involved.
    What this amendment does is to provide for reporting to 
Congress on an annual basis so we can have better congressional 
oversight on the treatment of U.S. persons information for 
several years and would help Congress see whether the changes 
that we have made with this bill have had the desired effects. 
Specifically, the report on an annual basis would be to the 
U.S. Intelligence Committee and the United States House, the 
United States Senate. It would require a description of the 
minimization procedures implemented by the NSA to protect the 
information pertaining to U.S. persons, the number of 
significant violations of those procedures, and summary 
descriptions for each and every one of those violations.
    Mr. Chairman, I think this requirement would permit 
Congress to conduct efficient and effective oversight of this 
program and would commend it to my colleagues.
    Chairman Sensenbrenner. Does the gentleman yield back? The 
question is on agreeing to the Feeney amendment.
    Those in favor say aye.
    Opposed, no.
    The ayes appear to have it. The ayes have it and the 
amendment is agreed to.
    We now have how many votes? Three votes. Without objection, 
the committee stands recessed until immediately after the third 
vote. Members should please come back promptly and the 
committee stands in recess.
    [Recess.]
    Chairman Sensenbrenner. The committee will be in order. A 
working quorum is present.
    When the committee recessed for the votes, pending was a 
motion by the Chair to report the bill H.R. 5825 favorably. The 
bill was considered as read and open for amendment at any point 
and several amendments had been agreed to. Are there further 
amendments?
    Mr. Schiff. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California, Mr. Schiff, seek recognition?
    Mr. Schiff. I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment in the nature of a substitute to H.R. 
5825 offered by Mr. Schiff of California and Mr. Flake of 
Arizona: Strike all after the enacting clause and insert the 
following.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and the gentleman from California is 
recognized for 5 minutes.
    [The amendment follows:]
    
    
    Mr. Schiff. Mr. Chairman, Ranking Member, members of the 
committee, today I offer a bipartisan amendment----
    Chairman Sensenbrenner. The committee will be in order and 
the chatter in the room shall adjourn. The committee will not 
adjourn.
    The gentleman from California may continue.
    Mr. Schiff. Thank you, Mr. Chairman. Today I offer a 
bipartisan amendment with Representative Flake of Arizona to 
address the issue before us today. This amendment recognizes 
two important principles: first, that our government must have 
all the tools necessary and all the authority required to 
pursue al Qaeda and other terrorists who would seek to harm our 
country; and second, that we are a Nation of laws and that 
concern over administrative burden as we use all the tools 
available to fight terrorism should not supersede devotion to 
the Constitution and the expectation of privacy of each United 
States citizen.
    While the President possesses the inherent authority to 
engage in electronic surveillance of the enemy outside the 
country, Congress possesses the authority to regulate foreign 
intelligence surveillance within the United States. And in 
fact, Congress has spoken in this area through the Foreign 
Intelligence Surveillance Act.
    When Congress passed this statute it intended to provide 
the sole authority for such surveillance on American soil. Our 
amendment reinforces existing law, that the government must 
obtain a court order when U.S. persons are targeted or 
surveillance occurs in the United States.
    When Mr. Flake and I questioned the Attorney General when 
he testified before this committee in April, he would not rule 
out having the pure authority without going to court to tap the 
calls between two Americans on American soil.
    So what is the limiting principle if this program can 
change from day to day without the input of Congress? The only 
limiting principle is the good faith of the executive, which, 
when the executive shows that it is infallible, might be a 
sufficient limiting principle. But the executive is no more 
infallible than we are here in Congress, and so we have a role 
to play.
    The Schiff-Flake substitute responds to these issues that 
have been raised by officials at NSA and the Department of 
Justice over the last several months in testimony to Congress. 
First, addressing the point Mr. Deitz made in committee, we 
explicitly make clear that foreign-to-foreign communications 
are outside of FISA and don't require court order. If a 
communication to which a U.S. person is a party is 
inadvertently intercepted, minimization procedures approved by 
the Attorney General should be followed.
    Second, we extend the FISA emergency exception from 72 
hours to 168 hours, 7 days. This permits law enforcement to 
initiate surveillance in an emergency situation before going to 
the FISA court for a warrant.
    If the current 72 hours has been sufficient for the 5 years 
since 9/11, surely 7 days can be considered a significant 
improvement. This authority can also be used to thwart imminent 
attacks.
    Third, we expand the FISA wartime exception to provide 
that, in addition to a declaration of war by Congress, that the 
authorization to use military force can also trigger the FISA 
wartime exception for the purposes of allowing 15 days of 
warrantless surveillance if there is an explicit provision 
authorizing electronic surveillance under that FISA provision.
    Finally, our amendment streamlines the FISA application 
process, provides authorization to appoint additional FISA 
judges and additional personnel at DOJ, the FBI and NSA to 
ensure speed and agility in drafting and considering FISA order 
applications.
    Electronic surveillance of al Qaeda operatives and others 
seeking to harm our country must continue. It simply can and 
should comply with FISA, and I urge my colleagues to support 
this amendment.
    Let me go through very quickly the specific provisions. 
First, the authorization to use military force is not an 
exception to FISA. Second, we reiterate that FISA is the 
exclusive means by which domestic electronic surveillance for 
intelligence purposes can be conducted. Third, we require 
information to be provided to the Intelligence and Judiciary 
Committees, in classified form, on the TSP program or any other 
program involving electronic surveillance of U.S. persons in 
the United States for foreign intelligence that is outside of 
FISA.
    Fifth, we authorize the Chief Justice of the United States 
to appoint additional FISA court judges if necessary.
    Six, we streamline the FISA application process.
    Seventh, we authorize emergency electronic surveillance for 
up to 7 days.
    Eighth, we enhance the surveillance authority in wartime by 
providing that FISA, through the authorization, use military 
force when the explicit references made can be triggered.
    Ninth, we make it clear that the acquisition of 
communications between foreigner to foreigner----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Schiff. Would the gentleman give me 30 additional 
seconds?
    Finally, tenth, we authorize the Foreign Intelligence 
Surveillance Court, DOJ, FBI, and NSA to hire additional staff 
for the preparation and consideration of applications for 
electronic surveillance.
    These are the ten steps that are outlined in the substitute 
bill, and I would urge its favorable consideration.
    Chairman Sensenbrenner. The time of the gentleman has once 
again expired. For what purposes does the gentleman from Utah, 
Mr. Cannon, seek recognition?
    Mr. Cannon. Strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Cannon. Thank you, Mr. Chairman. I am just trying to 
understand this amendment. And if the gentleman from California 
would indulge me, looking at page 5, line 9, line starting (a), 
Exclusive Means. Would the gentleman mind looking that through 
and explaining it, because it sounds to me like this does 
extraordinarily change the nature of what we are doing here.
    Mr. Schiff. Would you restate the provision you are 
referring to?
    Mr. Cannon. On page 5 of your amendment, line 9, paren (a), 
Exclusive Means: Notwithstanding any other provision of law the 
Foreign Intelligence Surveillance Act of 1978, et cetera, shall 
be the exclusive means by which electronic surveillance for the 
purposes of gathering foreign intelligence information may be 
conducted.
    Mr. Schiff. Yes. As I was relating, we are reiterating that 
the Foreign Intelligence Surveillance Act is the exclusive 
means by which domestic electronic surveillance can be 
conducted. This is designed to distinguished between foreign-
to-foreign communications which are within the prerogative of 
the executive and which Mr. Deitz testified were problematic 
under FISA because if the communication touched down in the 
United States or was gathered in the United States, 
notwithstanding the fact it was between two foreigners on 
foreign soil, that FISA was implicated. We want to make it 
clear FISA is not implicated in those circumstances.
    But where we are talking about the surveillance of 
Americans on American soil, that if it is not authorized by 
FISA, it is not authorized. Because none of us on this 
committee know what is in the President's terrorist 
surveillance program.
    Mr. Cannon. Reclaiming my time. If you have an American 
citizen who has decided to become a terrorist and is residing 
in a Middle Eastern country but communicates by means of the 
Internet, a voice on the Internet, and uses a server that is in 
the United States, you are saying that that communication can't 
be intercepted except under FISA.
    Mr. Schiff. No. What I am saying is that when you have 
surveillance of Americans on American soil, that that is 
exclusively within FISA. So if we are conducting surveillance 
today under the TSP program, it needs to be brought under FISA 
if we are surveilling Americans on American soil.
    Mr. Cannon. Reclaiming my time and looking forward to help 
understand this. Section 4 Disclosure Requirements, line 23 of 
page 5, just skip a paragraph, it says: Report--as soon as 
practicable, et cetera, the President shall submit to the 
Permanent Select Committee on Intelligence and the Committee on 
the Judiciary of the House of Representatives, and for the 
House and also for the Senate, and then it lists substantial 
things that need to be--do we want to change the nature of this 
committee? And in my office, I have a new office in Rayburn, I 
have a safe that is locked open so we won't get something 
locked in. Are we all going to have to have safes and use this 
committee and use information in this committee the way the 
Intelligence Committees operate?
    Mr. Schiff. If the gentleman would yield. No, I wouldn't 
recommend anyone bring classified information out of the 
classified setting. What this provides, though, is that if we 
are the Judiciary Committee and we have jurisdiction over the 
U.S. Constitution and we are not informed of when surveillance 
is being done of Americans without a court order, we cannot 
uphold our constitutional duty to ensure that its provisions 
are being adhered to.
    Now, members of this committee have gone to classified 
briefings, some members decided not to go. Every member has to 
make that decision for themselves. But for my own part, if I am 
being asked to authorize a program or if I am being asked to 
amend FISA or make wholesale changes to the law without even 
knowing why they are necessary, I don't think I can do my 
constitutional duty. So I do think that things that are 
within----
    Mr. Cannon. Reclaiming my time, since I think it is quickly 
advancing. Let me just say that we are sort of like an 
appellate court here. I don't think we ought to be involved in 
the facts as--particularly as suggested by this amendment. I 
think this amendment does substantial damage to the underlying 
bill, and I encourage my colleagues to reject this amendment 
and I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the--for what 
purposes does----
    Mr. Nadler. Strike the last word.
    I will be very brief. I will say this provision does not do 
substantial damage. It basically restates current law and says 
with respect to people in the United States, FISA is exclusive.
    I yield back.
    Chairman Sensenbrenner. For what purposes does the 
gentleman from Arizona seek recognition?
    Mr. Flake. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Flake. I thank the Chairman. Let me just state it from 
my perspective from this side of the aisle. I believe that the 
war on terrorism is going to be won or lost through the 
gathering of intelligence. That is the most important thing we 
can do. The last thing I want to do is to hamstring the 
administration in ways that they shouldn't be hamstrung.
    I believe--and none of us know what is going on in the 
TSP--but my guess is it is some pretty important stuff and we 
ought to be glad that some intelligence there is being 
gathered. But for those of us who believe that there is likely 
vital intelligence being gathered, what happens 2 years from 
now? Are we to assume the war on terrorism is going to be won 
in the next 2 years? Because if it isn't, unless we have 
institutionalized this program under FISA, the next President 
could simply say, I don't want to exercise my Article II 
powers, and this program is done away with. What kind of gaps 
would that leave in our intelligence?
    I have yet to hear a persuasive case why we can't 
institutionalize the TSP or any other surveillance programs 
that are going on under FISA. And I think that is the effort 
here, that is what we are trying to do. We simply cannot 
continue to have two programs, or more than two, one run on the 
books and one run off the books. And unless there is some kind 
of exclusivity provision that, Mr. Cannon, you alluded to or 
pointed out, unless we have an exclusivity provision that 
actually works, we will continue to have an on-the-book program 
and an off-the-book program. And we can make all kind of 
changes, we can spend until tomorrow this time, or all week, 
making changes to streamline FISA or to make it more nimble or 
to react better, and it will mean nothing because if the 
President simply says, I have authority to go outside of it, 
then he will go outside of it and we won't even know what is 
going on.
    Are we a committee of oversight or not? Do we have some 
jurisdiction here? I would argue that we do. And if we do, we 
ought to ensure that the tools are given for the President to 
conduct necessary surveillance. And that is what we have 
attempted to do within this.
    Mr. Schiff did a great job explaining what the bill is 
about. It simply makes it easier. We have been given compelling 
evidence that FISA needs to be changed. There are some changes; 
we wish we would have heard about these changes sooner, I might 
add, but changes need to be made. We are willing to make those 
changes. But what I think we should not be willing to do is to 
concede that we will have a program run off the books.
    I can say, as one who believes that we need to gather 
intelligence, I worry tremendously about what will happen 2 
years from now if we haven't institutionalized this program, if 
we leave it up to the next President to decide whether or not 
we ought to be gathering this intelligence. So with that, I 
yield back.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Michigan seek recognition?
    Mr. Conyers. I rise in support of----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Conyers. I will be brief because I think when we get 
through with the several amendments, we will be able to dispose 
of this, hopefully, successfully and we will be finished for 
the day. So I join with those who compliment the gentleman from 
California and the gentleman from Arizona on some 
reasonableness here.
    The most important thing to me is that we extend the 
emergency provision from 72 hours to 168 hours; from 3 days to 
7 days. We make it clear that there is an exclusivity provision 
in this measure that means that domestic electronic 
surveillance for foreign intelligence purposes will be 
controlled under FISA. It will be specific. And we also make 
clear that the authorization for the use of military force is 
not an exception.
    We increase the forces here. We put in more manpower, we 
improve the system, we try to get more personnel for speed and 
agility. And for that reason, I urge the members on both sides 
of the committee to support this substitute, and I return the 
unused time.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment in the nature of a substitute offered by the 
gentleman from California, Mr. Schiff.
    Those in favor will say aye; opposed, no.
    The noes appear to have it.
    Record vote is ordered.
    Those in favor of the Schiff amendment in the nature of a 
substitute will, as your name is called, answer aye.
    Those opposed, no.
    And the Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. No.
    The Clerk. Mr. Hyde, no.
    Mr. Coble.
    [No response.]
    The Clerk. Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith, no.
    Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Mr. Goodlatte.
    [No response.]
    The Clerk. Mr. Chabot.
    [No response.]
    The Clerk. Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no.
    The Clerk. Mr. Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no.
    Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Mr. Inglis.
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Mr. Flake.
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye.
    Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence, no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King, no.
    Mr. Feeney.
    The Clerk. Mr. Feeney, no.
    Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks, no.
    Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no.
    Mr. Conyers.
    Mr. Conyers. Ate.
    The Clerk. Mr. Conyers, aye.
    Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman, aye.
    Mr. Boucher.
    Mr. Boucher. Aye.
    The Clerk. Mr. Boucher, aye.
    Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye.
    Ms. Jackson Lee.
    [No response.]
    The Clerk. Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye.
    Mr. Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Mr. Delahunt.
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt, aye.
    Mr. Wexler.
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye.
    Mr. Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye.
    Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye.
    Mr. Chairman.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote. The gentleman from North Carolina, Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their vote. If not, the Clerk will report.
    For what purpose does the gentlewoman from Florida, Ms. 
Wasserman Schultz, seek recognition?
    Mrs. Wasserman Schultz. How am I recorded?
    The Clerk. Mr. Chairman, Ms. Wasserman Schultz is recorded 
as aye.
    Mr. Chairman, there are 18 ayes and 20 nays.
    Chairman Sensenbrenner. The amendment in the nature of a 
substitute is not agreed to.
    [Intervening business.]
    Chairman Sensenbrenner. The unfinished business of the 
committee is the motion to report the bill, 5825.
    Mr. Cannon. Mr. Chairman.
    Chairman Sensenbrenner. When the committee broke for the 
last series of votes, the Chair made a motion to report the 
bill favorably. The bill was considered as read and open for 
amendment at any point. Several amendments had been adopted. 
Are there further amendments?
    Mr. Cannon. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from----
    Mr. Cannon. Mr. Chairman, I have an amendment at the desk.
    Mr. Nadler. Mr. Chairman, I reserve a point of order.
    Chairman Sensenbrenner. A point of order is reserved. The 
Clerk will report the amendment.
    The Clerk. Mr. Chairman, I have two Cannon amendments.
    Chairman Sensenbrenner. Which one does the gentleman wish 
reported?
    Mr. Cannon. I think we shall show you which amendment is 
appropriate.
    Chairman Sensenbrenner. Well, the Clerk has to report the 
amendment.
    Mr. Cannon. They have the appropriate amendment.
    Chairman Sensenbrenner. There are two amendments, gentleman 
from Utah. Which one do you wish to offer?
    Mr. Cannon. The one that the clerk has, is now passing out.
    The Clerk. Amendment to H.R. 5825 offered by Mr. Cannon of 
Utah. Page 18, after line three insert the following new 
section. Section 10 compliance with court orders and----
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and subject to the reservation of the 
gentleman from New York. The gentleman from Utah is recognized 
for 5 minutes.
    Mr. Cannon. Thank you, Mr. Chairman. The debate before us 
centers on what the legitimate roles of Congress and the 
executive branch are in terms of foreign policy and 
intelligence gathering matters. It is an issue that goes to the 
heart of the Constitution.
    Mr. Nadler. Mr. Chairman, I cannot hear the gentleman.
    Mr. Cannon. Is it the mike that is inadequate, my voice, or 
too much noise in the background? I can't hear you.
    The Constitution leaves little doubt that the President is 
expected to have the primary role of conducting foreign policy, 
but Congress has a role and the debate today indulges us in 
defining that role. This amendment does not delve into the 
constitutional relationship between Congress and the Executive. 
This amendment deals with an issue of fairness. It deals with 
the issue of whether individuals or companies that comply with 
government orders are liable to third parties for following 
these orders.
    This amendment would eliminate the 60-plus lawsuits that 
have been filed because companies complied with government 
orders. Absent an effective immunity provision that allows a 
company to avoid these legal quagmires, an individual or 
company will be reluctant to cooperate with any authorized 
government surveillance program, and that will severely 
undercut this country's terror fighting capabilities and the 
safety of our constituents. Should these claims proceed to 
judgment, the financial liabilities could add up to hundreds of 
billions of dollars, enough to destroy any industry. Although I 
do not believe these suits will succeed, the defense costs 
alone will be considerable. But what is worse is the chilling 
effect on compliance for future requests. We can argue what the 
law is, but we all agree that we should encourage compliance 
with our laws.
    This amendment will separate questionable litigation from a 
national security imperative and focuses our attention where it 
should be, which is what is constitutionally allowed. If the 
overall program is illegal or unconstitutional, that is for us 
and the courts to decide. Judges who are sought out in a forum 
shopping frenzy should not issue decisions that could undermine 
our protection from a future terrorist attack through the 
revelation of classified sources or methods.
    If you oppose the program administered by this 
administration, if you don't believe in the constitutional 
theories regarding the executive's authority, that is an issue 
for discussion. That is our right as Members of Congress to 
debate. But it does not relate to this amendment.
    I urge support of this amendment, which will provide 
liability protection for those who comply with the 
certification from the Attorney General. I reserve the balance 
of my time. I yield back.
    Chairman Sensenbrenner. Does the gentleman from New York 
insist on his point of order?
    Mr. Nadler. Yes, I do.
    Chairman Sensenbrenner. The gentleman will state his point 
of order.
    Mr. Nadler. Mr. Chairman, I raise a point of order against 
the amendment because it is not germane to the bill. This 
amendment would exempt from liability any individual or 
corporation for any activity arising from any intelligence 
program certified by the Attorney General to be intended to 
protect the United States from a terrorist attack, not just 
FISA. The amendment is nongermane for several reasons.
    First, the bill is limited to the Foreign Intelligence 
Surveillance Act only and does not extend to any other 
intelligence program that may arise, as does this amendment.
    Second, the underlying bill does not pertain to or raise 
any liability issues arising under intelligence programs. In 
these two regards the amendment introduces new issues outside 
the scope of the bill and, as such, is nongermane.
    Chairman Sensenbrenner. The Chair is prepared to rule. The 
underlying bill pertains only to FISA. The amendment by the 
gentleman from Utah extends liability protection to private 
parties for, quote, an activity arising from or relating to the 
provision of an element of the Intelligence Community, unquote. 
As such, the amendment exceeds the scope of the underlying bill 
and is thus nongermane, and the Chair sustains the point of 
order.
    Are there further amendments.
    Mr. Cannon. Mr. Chairman, I have an amendment at the desk. 
It is the other amendment.
    Chairman Sensenbrenner. The Clerk will report the other 
amendment.
    The Clerk. Amendment to H.R. 5820.
    Mr. Nadler. Mr. Chairman, I reserve a point of order on 
this amendment.
    Chairman Sensenbrenner. The point order is reserved.
    The Clerk. Offered by Mr. Cannon of Utah. Page 18 after 
line three insert the following new section. Section 10.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read, and the gentleman from Utah is recognized 
for 5 minutes subject to the reservation of the gentleman from 
New York.
    Mr. Cannon. This amendment is similar to the prior 
amendment but it strikes out the language beginning on the 
latter part of line 9, ``the provision,'' to ``and ending on,'' 
as you will see in the amendment that is being passed out. And 
I think that that goes to the heart of the gentleman's concern 
about germaneness, and I move its favorable passage.
    Chairman Sensenbrenner. Does the gentleman from New York 
insist on his point of order?
    Mr. Nadler. Yes, Mr. Chairman, I do.
    Chairman Sensenbrenner. The gentleman will state his point 
of order.
    Mr. Nadler. Mr. Chairman, it is the same point of order as 
the other amendment. The change in the amendment does not cure 
the problem. It still says against any person for an activity 
arising from or relating to any alleged intelligence program 
involving electronic surveillance, the Attorney General, et 
cetera. Whether or not it is under FISA, so that, and remember, 
we did not make FISA exclusive in the underlying bill as some 
of us wanted to. So there are or could be intelligence programs 
outside of FISA which fall under the scope of this amendment 
which do not fall within the scope of the bill. Therefore, the 
bill, the amendment exceeds the scope of the bill.
    Chairman Sensenbrenner. The Chair is prepared to rule.
    Mr. Nadler. And is therefore not germane.
    Chairman Sensenbrenner. The Chair is prepared to rule. The 
Chair does not believe that the doctored amendment that is 
before us exceeds the scope of the bill because on page two, 
lines 8 through 13, inclusive, the term electronic surveillance 
as defined is the meaning given the term by the Foreign 
Intelligence Surveillance Act, as amended. So the Chair 
overrules the point of order.
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Virginia seek recognition?
    Mr. Scott. To raise another point of order that this bill 
has a removal clause in it under page two, line three that 
isn't part of the original bill.
    Chairman Sensenbrenner. Well, that point of order is not 
timely because it was raised and not reserved after the 
gentleman from Utah was recognized to explain the amendment.
    The question is on the amendment offered by the gentleman 
from Utah, Mr. Cannon. Those in favor will say aye. Opposed, 
no. The ayes appear to have it. The ayes have it and the 
amendment is agreed to.
    Mr. Watt. Recorded vote, Mr. Chairman.
    Chairman Sensenbrenner. A recorded vote has been requested 
by the gentleman from North Carolina. Those in favor of the 
amendment offered by the gentleman from Utah, Mr. Cannon, will, 
as your names are called, answer aye. Those opposed, no. And 
the Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde votes aye.
    Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble votes aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith votes aye.
    Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly votes aye.
    Mr. Goodlatte.
    [No response.]
    The Clerk.Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot votes aye.
    Mr. Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren votes aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins votes aye.
    Mr. Cannon.
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon votes aye.
    Mr. Bachus.
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus votes aye.
    Mr. Inglis.
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis votes aye.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler votes aye.
    Mr. Green.
    [No response.]
    The Clerk. Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. Aye.
    The Clerk. Mr. Issa votes aye.
    Mr. Flake.
    Mr. Flake. Aye.
    The Clerk. Mr. Flake votes aye.
    Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence votes aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes votes aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King votes aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney votes aye.
    Mr. Franks.
    Mr. Franks. Aye.
    The Clerk. Mr. Franks votes aye.
    Mr. Gohmert.
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert votes aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers votes no.
    Mr. Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman votes no.
    Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler votes no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott votes no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt votes no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren votes no.
    Ms. Jackson Lee.
    [No response.]
    The Clerk. Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters votes no.
    Mr. Meehan.
    Mr. Meehan. No.
    The Clerk. Mr. Meehan votes no.
    Mr. Delahunt.
    Mr. Delahunt. No.
    The Clerk. Mr. Delahunt votes no.
    Mr. Wexler.
    Mr. Wexler. No.
    The Clerk. Mr. Wexler votes no.
    Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner votes no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff votes no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez votes no.
    Mr. Van Hollen.
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen votes no.
    Ms. Wasserman Schultz.
    [No response.]
    The Clerk. Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote. Gentleman from Wisconsin, Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Chairman Sensenbrenner. Gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee.
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no.
    Chairman Sensenbrenner. The Clerk will report.
    The Clerk. Mr. Chairman, there are 22 ayes and 16 nays.
    Chairman Sensenbrenner. Then the amendment is agreed to. 
Are there further amendments?
    Ms. Jackson Lee. Mr. Chairman, I have an amendment at the 
desk.
    Chairman Sensenbrenner. The gentlewoman from Texas has an 
amendment at the desk which will the Clerk will report.
    Mr. Smith. Mr. Chairman, I reserve a point of order.
    Chairman Sensenbrenner. A point of order is reserved by the 
gentleman from Texas.
    The Clerk. Amendment to H.R. 5825, offered by Ms. Jackson 
Lee of Texas. Strike section 9(a) on page 17, lines one through 
three and insert the following: One, in subsection (a) one by 
striking the house permanent select Committee on Intelligence 
and all that follows through of the Senate and inserting----
    Ms. Jackson Lee. I am sorry. I think you have the wrong 
amendment. This has to do with the inclusion the judiciary 
committee. 001 X M L. Section 11.
    The Clerk. Amendment to H.R. 5825, offered by Ms. Jackson 
Lee. At the end of the bill add the following new section, 
section 11 reiteration of FISA as executive authorization of 
electronic surveillance for foreign intelligence purposes, 
subsection (a), in general notwithstanding----
    [The information follows:]
    
    
    Chairman Sensenbrenner. Subject to the reservation of the 
gentleman from Texas, the gentlewoman from Texas is recognized 
for 5 minutes.
    Ms. Jackson Lee. I thank the distinguished chairman. I am 
going to take a little bit of my time. This is a very simple 
amendment.
    Mr. Scott. Mr. Chairman, has the amendment been passed out?
    Chairman Sensenbrenner. I have it.
    Mr. Watt. We don't.
    Ms. Jackson Lee. Section 11. She read the correct 
amendment.
    Chairman Sensenbrenner. Does the gentleman wish to have the 
Clerk rereport the amendment?
    Mr. Scott. I think it is on the way. No, Mr. Chairman. I 
think it is on the way now. We just hadn't received it. So I'll 
withdraw my reservation.
    Chairman Sensenbrenner. The gentlewoman from Texas is 
recognized for 5 minutes subject to the reservation.
    Ms. Jackson Lee. Mr. Chairman, if I might, I want to make 
sure they have the correct amendment. It is an amendment to--
yes, thank you. The amendment presently before the members 
reiterates that FISA is the exclusive procedure and authority 
for wiretapping Americans to gather foreign intelligence. In 
the absence of the reaffirmation of this critically important 
principle, H.R. 5825 would have the unacceptable consequence of 
rewarding the President's refusal to follow FISA by exempting 
him from following these procedures. The effect of this would 
be to allow any President to make up his own rules. This would 
make tangible President Nixon's 1977 claim to David Frost, when 
the President does it it means that it is not illegal.
    Without my amendment, Mr. Chairman, H.R. 5825 would undo 
the Congress manifest intent in passing FISA which was designed 
to curb the practice by which the executive branch may conduct 
warrantless electronic surveillance on its own unilateral 
determination. It is more than a truism that real security for 
the American people comes not from deferring to the President, 
but from preserving the separation of powers. My amendment does 
precisely that and is for this reason worthy of support. I 
would ask my colleagues to leave the rights of the American 
people within the protection of the independent Federal 
judiciary, and ask my colleagues to support the amendment.
    Chairman Sensenbrenner. Does the gentleman from Texas 
insist on his point of order?
    Mr. Smith. Mr. Chairman, I'll withdraw my point of order.
    Chairman Sensenbrenner. Before recognizing Mr. Lungren, let 
me say that the next votes are anticipated on the House floor 
about 5:30. The Rules Committee will be meeting on the 
immigration bills that will be coming up in the House tomorrow. 
If we do not get this bill reported out by 5:30 then we will 
reconvene here at 7:00 tonight to finish our work on this bill. 
Members are advised to temper their remarks if they don't want 
to come back.
    For what purpose does the gentleman from California seek 
recognition?
    Mr. Lungren. Mr. Chairman, in opposition to the amendment.
    Chairman Sensenbrenner. And the gentleman's recognized for 
5 minutes.
    Mr. Lungren. I will temper my remarks if possible. Mr. 
Chairman, this amendment, as I read it, would require all 
electronic surveillance to be done under FISA. As such, it is 
so broadly drafted that it could prevent our soldiers from 
intercepting battlefield communications in Iraq or al Qaeda 
phone calls originating outside the United States to persons 
inside the U.S. because it could do grave damage to the safety 
of our military and our ability to detect and deter terrorist 
threats, even though that may not be intent of the gentlelady 
from Texas, I would urge my colleagues not only to look at this 
amendment carefully but to oppose it.
    The amendment is over broad and could prohibit the 
intercept of enemy communications on the battlefield. As 
drafted, the amendment would require all electronic 
surveillance to be conducted pursuant to FISA. The FISA 
definition of electronic surveillance sets forth four 
circumstances under which the government must obtain a warrant 
in order to intercept communications. This amendment would mean 
that those four circumstances are the only means by which the 
executive branch may obtain any electronic surveillance. By 
implication, any other electronic surveillance which does not 
fall within those four circumstances would be prohibited. Thus, 
if an insurgent in Iraq uses a cell phone to communicate with 
his terrorist friends and that call is the requisite nexus with 
the United States, our military would be required to obtain a 
FISA warrant to intercept the call or any such interception 
would be illegal.
    I don't believe that is what we intend, and I certainty 
can't imagine that we intend our soldiers to obtain FISA 
warrants before engaging in that activity. Additionally, if the 
call does not have the requisite FISA nexus, any interception 
would be illegal since FISA would be exclusive means, according 
to the terms of the amendment. I am certain that is not what 
the drafters of the amendment intended; however, that is what 
we have here.
    The amendment also impermissibly restricts the President's 
recognized inherent authority to collect intelligence needed to 
protect the U.S. The amendment also hamstrings the Nation's 
traditional longstanding inherent constitutional authority as 
Commander in Chief. The President's traditional and 
longstanding inherent constitutional authority to collect the 
intelligence needed to protect our Nation.
    As I have tried to point out from time to time, as we have 
dealt with this issue from the beginning of our republic and 
throughout recent history, Presidents have acted pursuant to 
their inherent authority to collect foreign intelligence 
without a warrant. Congress has acknowledged repeatedly that 
such authority exists. Our Federal courts have repeatedly 
reaffirmed the power of the President to act independent of 
Congressional authorization in the area of foreign 
intelligence. The FISA court itself has recognized this. No one 
can serious doubt that framers vested in the Commander in Chief 
all authority inherent to protect our Nation and citizens from 
foreign threats. In reliance on this constitutional principle 
Presidents, Democrat and Republican, throughout history have 
utilized their inherent authority to collect foreign 
intelligence information within the U.S. using warrantless 
surveillance. Beginning in at least 1940 Presidents Roosevelt, 
Truman, Johnson and Carter, as well as Republican Presidents, 
ordered warrantless wiretaps to protect our citizens against 
spies, saboteurs and foreign subversives. This is not and 
should not be a partisan principle. It is one that recognize 
the need of Presidents to act with deliberate speed and in 
keeping with their constitutional responsibilities to protect 
our citizens as they have in the past from Nazi saboteurs, 
Russian spies and the likes of the terrorists that we see today 
who seek to do harm against the United States.
    Indeed, Presidents of both parties have recognized the 
importance of the Executive's inherent authority. While FISA 
itself was first debated in 1978, Attorney General Griffin Bell 
made it clear that President Carter acknowledged and intended 
to preserve his inherent authority to protect Americans against 
foreign threats. Bell testified that the FISA bill Congress had 
drafted failed to recognize the President's inherent authority, 
but that the regulation did not and indeed could not take away 
the power from the President under the Constitution. President 
Clinton's Justice Department apparently took the same view. 
Jamie Gorelich, Deputy Attorney General in the Clinton 
administration, testified in 1994 during FISA reauthorization 
that the Department of Justice believes and case history 
supports the President has inherent authority to conduct 
warrantless physical searches for foreign intelligence 
purposes. And the long and short of it is, this amendment, if 
adopted, would change the history, would be inconsistent with 
the history of the United States and the authority of the 
President as recognized by Presidents, both Democrat and 
Republican, and Supreme Court decisions as well as FISA Court 
decisions.
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from California, Ms. Lofgren, seek recognition?
    Ms. Lofgren. To strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Lofgren. And to yield to my colleague from Texas.
    Ms. Jackson Lee. I thank the distinguished gentlewoman. I 
hope, as my good friend from California on the other side of 
the aisle seemed to not be able to contain his glee, I would 
like to put a more serious approach and spin on this. And with 
all of his commentary, this is a restatement of basic existing 
law. And all that it says is that it rejects the elimination of 
exclusivity of the procedures of FISA to collect electronic 
data and electronic surveillance. And we have made the 
argument, those of us who find fault with this legislation, 
that in fact you are able to secure surveillance with present 
FISA and certain additional reform. Mr. Lungren has suggested 
that that is not possible and cited a litany of high commentary 
from Republican and Democratic Presidents. But Mr. Schiff 
provided a reasonable response to how the protection of 
intelligence could also include the protection of the rights of 
Americans. So now attempt to do it by amendment. And this 
amendment is not overbroad. It is not difficult to understand. 
It simply restores the idea of FISA being the main focus of the 
FISA--excuse me, of electronic surveillance.
    So I would indicate to my colleagues that this amendment is 
reasonable; it is constrained and it is serious. And 
unfortunately, as we abolish the Constitution in this 
particular committee at this time, we are not able to see the 
forest for the trees. And I yield back.
    Mr. Cannon. Would the gentlewoman yield?
    Ms. Lofgren. I would be happy to yield further to Mr. 
Schiff.
    Mr. Schiff. I thank the gentlewoman for yielding. I just 
wanted to state briefly that I disagree with my colleague from 
California's legal interpretation of the breadth of this 
amendment. I think the amendment is fairly narrow. It defines 
the term ``electronic surveillance'' as that which is given in 
FISA, so it does not apply to the terrorists on the battlefield 
in some foreign country, foreign to foreign communication. It 
makes reference to section 1801(f) of FISA, which pertains to 
surveillance of known U.S. persons who are in the U.S., 
communications to or from a person in the U.S., communications 
where all intended, the sender and all intended recipients are 
in the United States. So the sections that it makes reference 
to, by and large, apply to whether the information is gathered 
through technology in the United States or of U.S. persons, so 
I think it is fairly narrow.
    I do believe that FISA is the exclusive authorization for 
domestic surveillance, and I think that is essentially what the 
amendment sets out. And I yield back.
    Ms. Lofgren. And with that, I would yield back, Mr. 
Chairman.
    Chairman Sensenbrenner. The question is on agreeing to the 
amendment offered by the gentlewoman from Texas, Ms. Jackson 
Lee. Those in favor will say aye. Those opposed, no. The noes 
appear to have it. The noes have it. The amendment is not 
agreed to. Are there further amendments?
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas seek recognition?
    Ms. Jackson Lee. I have an amendment at the desk, Mr. 
Chairman. I am going to try and give the, it looks as if it is 
amendment 358.XML.
    Chairman Sensenbrenner. How many amendments does the 
gentlewoman from Texas have?
    Ms. Jackson Lee. Mr. Chairman, this will be my last 
amendment.
    Chairman Sensenbrenner. Okay. The Clerk will report. Point 
of order is reserved.
    The Clerk. Amendment to H.R. 5825 offered by Ms. Jackson 
Lee of Texas. Strike section 9(a) one page 17, lines one 
through three, and insert the following. In subsection (a) 
one----
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentlewoman from Texas, subject to the 
reservation, is recognized for 5 minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. As I 
have watched the ins and outs of our hearings and this markup 
this afternoon, I can't help but feel enormously disappointed, 
not because we are not crafty and know the ins and outs of 
committee procedures, we understand how to reconsider a vote 
that was fair and meaningful. But, of course, we have made 
light of what I think will be devastating consequences out of 
the military tribunal vote, where we now put our military 
soldiers in jeopardy, and this legislation, where we have 
rejected the fairness litmus test.
    The American people have been so terrorized and frightened 
by the representations of our government that you may be right, 
that they are swayed toward the extinguishing of their own 
rights, the loss of their own dignity, the collection of data 
without restraints, the sending of young men and women off to 
war without the protection of the Geneva Convention under the 
pretense that we would be safer. I beg to differ. And I think 
this committee has an enormous responsibility to not view this 
in the lightheartedness that I sense.
    A gentleman earlier in the debate wanted to make light of 
the Armed Services members who voted for the military 
tribunals. Well, I had information that Democrats voted for Mr. 
Skelton's substitute, 32 to 26, but it failed. So frankly, we 
now will leave this room with the stomping of the Constitution 
and the ignoring of the Geneva Convention and the potential of 
detainees that happen to be wearing the American flag on their 
sleeves in more jeopardy than they have ever been, and we will 
leave this room with the concept of congressional oversight 
being literally ignored. And I might say that we have some 
competition. I know that I will get a response from the other 
side of the aisle, but we have some competition with the era of 
the 1950's, because we are not listening to combined voices of 
reasons, Democrat and Republicans.
    John McCain, Senator Graham, Senator Warner, bipartisan 
voices that have raised their voices on the military tribunal 
and some who have raised their voices on the electronic 
surveillance. Because data shopping, if you will, with no 
understanding whether or not are you getting information that 
is not necessary, is really a concern. And my amendment is 
simply this, to add the Judiciary Committee to the names of the 
committees that would receive the information from the Attorney 
General about whether or not they are minimizing the amount of 
data that would be collected.
    So we are just simply asking that the Intelligence 
Committee and the Judiciary Committee would be the committees 
that the Attorney General would report to when they report 
about the status of the electronic data collection under FISA, 
simple, not broad, narrow, and it simply adds our jurisdiction 
to the responsibility of the Attorney General. I would hope, in 
a spirit of oversight and reflection of the rights of the 
American people, that this committee that has the 
responsibility of holding the Constitution in its hands would 
at least allow itself to be reported to as the Intelligence 
Committee is reported to.
    I would ask my colleagues to support this amendment. I 
yield back.
    Chairman Sensenbrenner. Does the gentleman from Texas 
insist upon his point of order?
    Mr. Smith. No, Mr. Chairman, I do not insist on my point of 
order.
    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes in opposition to the amendment and will take it.
    Looking at this amendment, this amendment is going to 
jeopardize any intelligence agent and anybody in the United 
States or outside the United States that utilizes intelligence. 
What the gentlewoman from Texas' amendment does is it requires 
that these highly classified reports be sent to each member of 
the congressional Intelligence Committees and the Committee on 
the Judiciary of both the House of Representatives and the 
Senate. You might as well send a copy to the New York Times and 
the Washington Post and every other newspaper in the country 
because this place is leaky as a sieve, and all of us know it.
    I think this amendment is a shocking amendment because this 
country will have no secrets if this amendment becomes law.
    Ms. Jackson Lee. Will the gentleman yield?
    Chairman Sensenbrenner. No, I won't.
    Ms. Jackson Lee. Well, speak for yourself because I don't 
consider myself a leaky sieve.
    Chairman Sensenbrenner. But there are plenty of leaky 
sieves around here, you know. And sending 40 copies here and 
one to each member of the Intelligence Committee and those on 
the other side of the Capitol building means that it is going 
to become a matter of public record, and people will die as a 
result of it. This amendment ought to be rejected. And I yield 
back the balance of my time.
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. Strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. I just want to understand the Chairman's 
objection. The amendment says they have got to send all this 
stuff to every member of the two Intelligence Committees and 
the two Judiciary Committees, correct?
    Chairman Sensenbrenner. If the gentleman will yield, that 
is correct.
    Mr. Nadler. And what is the current law?
    Chairman Sensenbrenner. The current law says that it goes 
to the Intelligence Committee as an institution and members can 
go to the Intelligence Committee and look at it. And that was 
one of the parts of the Church Commission report to try to give 
Congress oversight, but not take out an ad on the front page of 
the newspaper.
    Mr. Nadler. Reclaiming my time. So, in other words, when 
you say to the Intelligence Committee as an institution, it 
goes to the chairman and he or she sets up some place where 
members can look at it but not take copies; is that what you 
are saying?
    Chairman Sensenbrenner. If the gentleman will yield, that 
is the current law.
    Mr. Nadler. And if the law were changed--reclaiming my time 
again. And if the law were changed to say to the Judiciary 
Committee as an institution in the same way as to the 
Intelligence Committee, would you think that would be 
objectionable?
    Chairman Sensenbrenner. If the gentleman will yield.
    Mr. Nadler. Yes.
    Chairman Sensenbrenner. The answer to that question is yes, 
because members of the Judiciary Committee can walk across the 
street and see intelligence reports in the committee that the 
House has established to collect and review intelligence 
reports and to do oversight over the Intelligence Community.
    Mr. Nadler. And further, if the gentleman would yield. I am 
sorry, reclaiming my time. And under the current law, members 
of the Judiciary Committee have the same right as members of 
the Intelligence Committee to see that information at the 
Intelligence Committee office?
    Chairman Sensenbrenner. The rules were changed, I believe 
two Congresses ago, to give us access to that type of 
information.
    Mr. Nadler. I thank the gentleman. I am told that that the 
rules were changed, but it is not in statute. It would be 
better if it were in the statute. But under those 
circumstances, I think it would be a good idea.
    Ms. Jackson Lee. Would the gentleman yield for a moment 
please?
    Mr. Nadler. Yes, I yield.
    Ms. Jackson Lee. I thank the distinguished gentleman. 
Again, I would like to put on the record that I don't consider 
my colleagues here a leaking coffee pot. And I would argue that 
it would be appropriate to change existing law and I would even 
accept a friendly amendment that it be to the chairman and 
Ranking Member of the Judiciary Committee. But I beg to differ 
with the chairman's interpretation of what kinds of leaks would 
occur because frankly, to be very honest with you, who in this 
room could raise their hand and not read a story about leaks 
coming from the Intelligence Committee? This is a question of 
oversight, and I would hold my colleagues to the kind of 
standard, the kind of standard that would argue for saving 
lives. And I would not put on my colleagues that they would 
jeopardize lives by going and providing intelligence to the New 
York Times or to the Sacramento Bee.
    And I ask my colleagues to support this amendment. I would 
accept a friendly amendment that would limit it to the chairs 
of the committee.
    Mr. Nadler. Thank you. Reclaiming my time. I would just--
Mr. Chairman, I am informed that although the--we were told a 
moment ago that the current law is correct, the underlying bill 
that we are considering today, that we are presumably going to 
report, changes that so that that information goes not to the 
Intelligence Committee institutionally, but to every member of 
the Intelligence Committee. If that is the case, I would--then 
I wonder, since we have jurisdiction over FISA, why that 
shouldn't be the Judiciary Committee also.
    Chairman Sensenbrenner. If the gentleman will yield, that 
is not our jurisdiction under House Rule X. That is what the 
problem is.
    Mr. Nadler. Wait a minute. Well, now I am really confused. 
Under the underlying Wilson bill that we are having, am I 
correct that, in fact, the information will go to every member 
of the Intelligence Committees?
    Chairman Sensenbrenner. If the gentleman will yield, the 
answer to the question is yes, because rule X gives them 
oversight responsibility over this. Rule X does not give this 
committee oversight responsibility.
    Mr. Nadler. But we have oversight responsibility over FISA, 
do we not?
    Chairman Sensenbrenner. If the gentleman will yield. The 
answer to the question is yes. But that is different than 
actually providing intelligence to members of this committee 
which is outside of our rule X jurisdiction.
    Mr. Nadler. Let me just say that I find what the chairman 
said a few minutes ago about keeping the number of people down 
who get this, all be it others can look at it, a useful thing. 
But if the Intelligence Committee as a whole, both Intelligence 
Committees, I don't--I think it is a slur on the members of 
this committee to say that this committee is more of a sieve 
than the Intelligence Committee. I am not sure that either is a 
sieve. But I think, given our FISA jurisdiction, we should have 
the same access as the members of the Intelligence Committee.
    Chairman Sensenbrenner. The question occurs on the 
amendment offered by the gentlewoman from Texas, Ms. Jackson 
Lee. Those in favor will say aye. Opposed, no. The noes appear 
to have it. The noes have it. The amendment is not agreed to.
    Mr. Flake. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Arizona, Mr. 
Flake.
    Mr. Flake. I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    Mr. Flake. This is a section 2 finding, and I would ask 
unanimous consent, given the changes that were made with the 
Lungren amendment, to place this in the appropriate place in 
the bill.
    Chairman Sensenbrenner. Without objection, the modification 
referred to by the gentleman of Arizona is agreed to, and the 
Clerk will report the amendment.
    The Clerk. Amendment to H.R. 5825 offered by Mr. Flake of 
Arizona. Page one, after line 5 insert the following new 
section. Section two finding. Congress finds article I, section 
8, clause 18 of the Constitution, known as the necessary and 
proper clause, grants Congress clear and unequivocal authority 
to regulate the President's inherent power to gather foreign 
intelligence.
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Arizona is 
recognized for 5 minutes.
    Mr. Flake. Thank you, Mr. Chairman. This amendment simply 
states the Congressional finding that Congress has the 
authority to regulate the President's inherent power to gather 
foreign intelligence. The Constitution clearly states in 
article I, section 8, clause 18 that Congress shall have the 
power to, quote, make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers and all 
other powers vested by this Constitution in the government of 
the United States in any department or officer thereof. The 
President's inherent power to gather foreign intelligence is a 
power vested by the Constitution. And therefore, according to 
this clause, Congress can regulate it when it is, quote, 
necessary and proper.
    After years of abuses of wiretapping in America, where 
wiretapping was done by the executive branch without 
congressional regulation, Congress decided to finally create 
FISA under this authority. The President, at that time, agreed 
and signed FISA into law. I believe this is an important 
constitutional argument to make when talking about whether 
Congress can or cannot regulate the NSA wiretap program.
    I urge my colleagues to adopt the amendment, and I would 
simply state that this is, this could be termed the ``we are 
not potted plants'' amendment. It simply states that----
    Mr. Nadler. Would the gentleman yield?
    Mr. Flake. Just 1 minute. It simply states that, and if you 
disagree with this amendment, apparently you might disagree 
with all of FISA because FISA was an effort to assert 
congressional authority after years of abuses by the executive 
branch. When FISA was implemented in 1978 the Congress agreed 
that Congress has the power to regulate the President's actions 
or the President's inherent authority. This is simply 
reaffirming that prerogative. And with that I will yield to the 
gentleman from New York.
    Mr. Nadler. Yeah. I commend the gentleman for his 
amendment. I would just ask, I would ask if he would remove the 
word ``inherent'' because I don't want to get into a debate as 
to whether the President has that inherent power under the 
Constitution. I think that power probably derives from his 
power as Commander in Chief once the Congress has declared war. 
It doesn't change the meaning of your amendment. But it is 
clear that Congress is granted the clear and unequivocal power 
to regulate the President's power to gather foreign 
intelligence. We don't have to get into a separate debate as to 
where that power comes from.
    Mr. Flake. I would resist that change. I think we do agree 
that the President has inherent authority, but the argument 
here is does Congress have the ability to regulate it. And I 
don't know that there is a serious question or argument about 
whether or not the President has inherent authorities as 
Commander in Chief.
    Mr. Schiff. Would the gentleman yield?
    Mr. Flake. I would.
    Mr. Schiff. I would just like to voice my agreement with my 
colleague from Arizona. I don't think there is an argument 
about whether the President has inherent authority to gather 
foreign intelligence certainly on foreign battlefields. The 
President does so. So I see no objection to the inclusion of 
the term ``inherent.'' and the question is whether Congress has 
the power to regulate that, particularly when it involves U.S. 
persons on U.S. soil. And I voice my support in favor of your 
amendment.
    Mr. Flake. I thank the gentleman. And reclaiming my time, 
again, this is simply stating that Congress has authority to 
regulate. We know the previous Congresses have asserted that 
authority because we have FISA and we are simply wanting to 
reiterate that. And I can't imagine that we would at this point 
say no, we don't have that authority and we are giving it all 
up, we have no right. That would be to say that we don't take 
FISA seriously at all. And I know that this committee does and 
that this Congress can and does take its oversight 
responsibility seriously. With that, I yield back.
    Chairman Sensenbrenner. Before recognizing the gentleman 
from California to speak in opposition to the amendment, the 
Chair will state that 3 minutes ago, while the potted plant 
from Arizona was waxing eloquently, we got an e-mail that there 
will be no more votes on the floor today. This was done in 
deference to keeping this committee in session.
    However, the Rules Committee is waiting upon us to grant a 
rule relative to the immigration bills, and they are currently 
scheduled at 6:15. I think they would really appreciate it if 
we wrapped it up by then. For what purpose does the----
    Mr. Conyers. Will the gentleman yield?
    Chairman Sensenbrenner.  I yield to the gentleman from 
Michigan.
    Mr. Conyers. We have only one amendment. That should be 
quickly disposed of. It is an important amendment and I think 
that will close it down.
    Chairman Sensenbrenner. Okay. The gentleman from California 
is recognized for 5 minutes in opposition to this amendment, 
with the admonition that the clock is running quickly.
    Mr. Lungren. Thank you very much, Mr. Chairman. I have 
always tried to look at a clock running quickly. I rise in 
opposition to the gentleman's amendment because this is a very, 
very serious question of constitutional law. It goes to the 
question of the proper relationship of the two branches of 
government established under article I and article II. And the 
gentleman refers to the necessary and proper clause, which I 
think, properly understood, means that Congress has the powers 
that are necessary and proper to carry out the express powers 
given to it in the Constitution. If the person has inherent 
power, we don't have the right to regulate it. And that was 
stated in the FISA appellate court decision, ``In Re: Sealed.'' 
it does not mean we are potted plants and that we are 
powerless. If you go to the underlying understanding of the 
relationship between the two branches of government, the 
Executive and Legislative, our power remains in the power of 
the purse and ultimately the power of impeachment. Now, I 
realize the last one is an extreme matter and I am not 
suggesting we bring it out easily. But the framers of the 
Constitution appeared to try and balance the tension or deal 
with the tension that exists with the two branches in this area 
as in others, but particularly in this area, but again allowing 
us the power of the purse. We can restrict, if you will, the 
President's use of his inherent powers by the power of the 
purse, which is different than regulating that power as a 
substantive matter.
    And that is where I find a real problem with us stating 
this as a finding. I think this finding is an opinion, but I 
think this opinion is actually contrary to the greatest weight 
of constitutional writings that have taken place on that. And 
for that reason, I would ask that the gentleman's amendment be 
voted down.
    Chairman Sensenbrenner. The question is on the----
    Mr. Hostettler. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Indiana, Mr. Hostettler, seek recognition?
    Mr. Hostettler. Mr. Chairman, I move to strike the last 
word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, I won't take near the 5 
minutes. But I just want to highlight a portion of the 
Constitution, article I, section 8, that the gentleman from 
Arizona references. And there are a number of powers that are 
given to Congress in article I, section 8 that are enumerated 
and limit the power of Congress. But in one area that Congress 
has sole, explicit and exclusive authority is found in article 
I, section 8, I believe, subsection (14). But to preface that, 
Congress, in subsection (11) of article I, section 8 has the 
power to declare war, (12), to raise and support armies, (13), 
to provide and maintain a navy, and then finally, to make rules 
for the government and regulation of the land and naval forces. 
Article I, section 8 gives sole exclusive explicit authority to 
Congress to make rules for the government and regulation of the 
land and naval forces. There are no limitations in the 
Constitution for governing and regulating the land and naval 
forces. This obviously was before the creation of an air force. 
But many of us believe that this power extends there. And so I 
would simply say that according to the Constitution and the 
clear wording of the Constitution, when married to the 
necessary and proper clause that the gentleman from Arizona 
states, that, in fact, this is exclusive authority of the 
Congress to regulate all elements of the land and naval forces. 
And I yield back the balance of my time.
    Chairman Sensenbrenner.  The question is on the amendment 
offered by the gentleman from Arizona, Mr. Flake.
    Mr. Van Hollen. Mr. Chairman.
    Chairman Sensenbrenner. Gentleman from Maryland, Mr. Van 
Hollen.
    Mr. Van Hollen. I thank you, Mr. Chairman. Move to strike 
the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Van Hollen. I thank you, Mr. Chairman. I am supporting 
the amendment by Mr. Flake. And it seems to me that our entire 
discussion on the piece of legislation that has been before the 
committee today with respect to electronic surveillance is 
premised on the understanding that Congress has some regulatory 
authority over this area. If not, this whole discussion and 
exercise has been for nothing because the President could 
totally disregard what the committee has done so far. And 
whether you are for or against the final bill, the final bill 
does attempt to regulate this area. And the amendment by Mr. 
Flake simply says we have the power to do what we have already 
done today and what this committee may do in the future with 
regard to this area.
    Now, I would find it unbelievable that we would say that 
everything we have done today is, we have no authority really 
to do it; that if the President wanted, the President could 
totally ignore it. And I further find it in the realm of sort 
of never, never land that we have spent, as a committee, many, 
many sessions with respect to the PATRIOT Act where we have 
also debated at length regarding provisions of FISA. And if we 
don't have any authority to do that, what is the point? And all 
this amendment does is underscore the fact that we have an 
important role in this area and that the President can't 
totally ignore FISA, which is on the books today, that the 
President can't ignore what we are about to do, the President 
can't ignore what we have done in the PATRIOT Act. It is a 
simple statement, I think, of the fact that Congress has an 
important role to play. If you don't support this amendment, we 
might as well pack it up and forget about the legislation we 
are dealing with today. That may be what the President would 
like us to do, but it certainly seems to me it is not what 
Congress should do.
    Mr. Flake. Will the gentleman yield?
    Mr. Van Hollen. I would be happy to yield.
    Mr. Flake. Thank you. You said it much better than I did. 
But that is exactly what this is about. If we are going through 
this entire exercise today, we would, by voting down this 
amendment, we would be saying it really doesn't matter. And I 
would submit that we will walk out that door a lot less 
relevant than when we walked in here this morning because we 
had that authority, that power. It has been recognized by 
previous Congresses. I think that we ought to recognize it 
today.
    The gentleman from Florida had a suggestion, and I would 
like to hear that.
    Mr. Feeney. I would ask unanimous consent to change the 
language of the amendment to strike the words ``and 
unequivocal.'' by definition of a checks and balance system, 
our powers are equivocated, all three legislative branches, 
number one. And Number two, the power to regulate, if we had 
unequivocal powers to regulate, would basically be the power to 
eliminate. And the finding that the gentleman from Arizona has 
in this amendment says that the President does have inherent 
power. So I suggest if you would take out the word 
``unequivocal'' a lot of us could support the amendment and we 
could move on.
    Mr. Flake. With that I would agree to take out----
    Chairman Sensenbrenner. Without objection, the modification 
suggested by the gentleman from Florida is agreed to.
    Mr. Conyers. Mr. Chairman, I move the previous question.
    Chairman Sensenbrenner. Does the gentleman move the 
previous question on the bill and the amendment?
    Mr. Conyers. No, just the amendment.
    Chairman Sensenbrenner. Without objection, the previous 
question on the amendment only is ordered. Those in favor of 
the Flake amendment will say aye. Opposed, no. The ayes appear 
to have it. The ayes have it. The amendment is agreed is. Are 
there further amendments?
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    The Clerk. Amendment to H.R. 5825 offered by Mr. Nadler. 
Insert at the end the following new section. Section blank, 
preservation of remedies. Notwithstanding section 10 of this 
act, the court may consider an action----
    [The amendment follows:]
    
    
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read. The gentleman from New York is recognized 
for 5 minutes.
    Mr. Nadler. Thank you. I won't take 5 minutes, Mr. 
Chairman. We adopted an amendment by Mr. Cannon a little while 
ago and that amendment said that notwithstanding any other 
provision of law, no action may be maintained in any court, no 
penalty, sanction or form of remedy or relief shall be imposed 
by any court against someone for any activity relating to any 
alleged intelligence program involving electronic surveillance 
that the Attorney General or his designees certifies is very 
important because it is necessary to prevent an attack.
    I presume the intent of that amendment was to say that as 
long as someone is acting in good faith he shouldn't have to 
worry about criminal liability or civil sanctions or damages, 
and there should be no deterrence to someone doing what he 
should do as long as the Attorney General certified that this 
is a very necessary thing. I have no problem with that. And 
that is what the amendment does. But, I don't think we should 
also say that just because the Attorney General certifies that 
some activity is necessary, in his opinion, to deter and 
attack, if someone thinks that that activity is 
unconstitutional or is illegal under the law we are passing, or 
under some other law, he shouldn't be able to go to court and 
seek an injunction to say it is unconstitutional. I certainly 
agree with Mr. Cannon. No one who acts should have to worry 
about civil or criminal liability or damages. There should be 
no deterrence. And this amendment simply says that is fine. But 
if someone, if there is a question of constitutionality or 
legality, just the fact that the Attorney General said 
something is very necessary shouldn't preclude someone from 
going to court and asking for an injunction based on the 
illegality or asserted illegality or unconstitutionality. It is 
to stop the Attorney General or his designee from breaking the 
law and having no judicial forum to challenge that.
    Mr. Cannon. Would the gentleman yield?
    Mr. Nadler. Sure.
    Mr. Cannon. The injunctive relief, I am sorry. I have just 
gotten this. I am trying to sort it through. The injunctive 
relief would lie against the Attorney General or against the 
person or corporation that is being asked?
    Mr. Nadler. It would lie, well, that would depend on who 
they sued. It would lie against the people carrying out 
whatever they allege was illegal.
    Mr. Cannon. In other words, so under your amendment, if a 
telephone company was providing access to information, that 
telephone company could be the object of an injunction as 
opposed to the United States?
    Mr. Nadler. Yes. They could be enjoined from future action. 
There could be no penalty against them. There could be no 
damages, but if what they are doing is determined by a court to 
be illegal, they could be told to stop doing it anymore.
    Mr. Cannon. So, it would seem to me that what you would 
want to be doing is to stop the Attorney General from asking 
for information, and that is where the injunction would lie, 
because if you allow lawsuits for injunctive relief against 
corporations, or persons, then you end up encouraging the kind 
of lawsuits that I think my amendment was intended to avoid.
    Mr. Nadler. No. Reclaiming my time. I think you have to 
allow a lawsuit for an injunction against whoever, whoever is 
carrying out the program or authorizes the program. Maybe it 
should be against the Attorney General. But I don't think you 
can limit it to be against the Attorney General because if 
someone, a telephone company or somebody is doing something 
pursuant, because the Attorney General said it was okay to do, 
but it isn't, in fact, okay to do legally, you have to go to 
court to be able to say to them it is illegal; you are to stop 
doing it. I don't think you want to go to court to say to the 
Attorney General, tell them to stop doing it because maybe he 
has no authority to tell them to stop doing it.
    But what your amendment is intended to do, I think, is to 
say that no one, if the Attorney General asked the telephone 
company to do something, they shouldn't have to worry about 
being sued for damages; they shouldn't have to worry about 
civil or criminal liability. But I think anybody always has to 
be held subject to a lawsuit to say, stop doing what they are 
doing if it is illegal.
    Mr. Cannon. Would the gentleman yield?
    Mr. Nadler. Sure.
    Mr. Cannon. My purpose in my amendment was to limit the 
vexatious lawsuits that cost money to defend and divert 
resources. I am not sure how I would react to something that 
allowed an injunction to lie against the Attorney General, but 
it seems to me that since it is not likely that these lawsuits, 
60 or so that are out there, are likely to succeed, all this 
does is change the nature of the vexatious lawsuit.
    Mr. Nadler. Well, reclaiming my time. The 60 or so lawsuits 
that are out there are for damages and so forth. What you are 
really talking about is, at least for what they are doing now, 
probably one lawsuit to say it is illegal. If there is some 
other program maybe you get one or two lawsuits saying that is 
illegal. I don't think you are going to get a lot of----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California seek recognition? The gentleman from Alabama.
    Mr. Bachus. Thank you. I would like to ask the gentleman 
offering the amendment, when you say the court, what court are 
you talking about?
    Mr. Nadler. I presume I am talking about the Federal court 
because you would go into Federal court if you were alleging 
against----
    Mr. Bachus. It doesn't say that in your amendment. It just 
says the court.
    Mr. Nadler. Well, this doesn't confer--it is a court of 
competent jurisdiction by definition. This does not confer 
jurisdiction on anybody. This simply says we are not taking it 
away from them.
    Mr. Bachus. I am just saying, you know, without anything 
else----
    Mr. Nadler. Would it make you happier if we said a Federal 
court of competent jurisdiction?
    Mr. Bachus. That is the Federal court having competent 
jurisdiction over the----
    Mr. Nadler. I am sorry. Reclaiming my time. There is a 
provision on section 10 in Mr. Cannon's amendment which says, 
there is a provision that this does not contradict that says 
any action or claim described in subsection (8) that is brought 
in a State court shall be deemed to arise under the 
constitutional----
    Mr. Bachus. I am just saying right now you just said it 
would allow any court.
    Mr. Nadler. Federal court. Because of the provision----
    Mr. Bachus. I think if you are going to consider it ought 
to be limited to a Federal court having jurisdiction over this 
program----
    Mr. Nadler. I will--reclaiming my time, I think that is 
what it does, and if it will make you happy I would ask 
unanimous consent to say a Federal court with appropriate 
jurisdiction may consider that.
    Mr. Bachus. And you say any alleged intelligence program. 
Does this mean that anyone could walk into a Federal court and 
allege that there was an intelligence program and get an 
injunction?
    Mr. Nadler. That language is tracked from Mr. Cannon's 
amendment which we just voted for and it refers to the same 
page. All we are trying to say here is that we are not taking 
away the ability of a Federal court of competent jurisdiction 
to entertain an injunction. We are taking away their ability to 
entertain a lawsuit for damages or a criminal action, but we 
are not taking away their ability to entertain a lawsuit.
    Mr. Bachus. Of course they can then get back, and if they 
have an injunction, then that would shut down the entire 
program.
    Mr. Nadler. If the court found it was illegal, yes, that is 
the point of it. If the court found, if the Attorney General 
says this is, or his designee, this is a very important program 
necessary to protect us against attack, but this program is 
totally illegal or unconstitutional, a Federal court of 
competent jurisdiction, appealable to the Supreme Court, ought 
to be able to say that. That is the point of the amendment.
    Ms. Lofgren. Would the gentleman yield for a question?
    Mr. Bachus. The gentleman will yield to the gentleman from 
Ohio.
    Mr. Nadler. It is Mr. Bachus's time, I think.
    Mr. Bachus. I yield to the gentleman from Ohio.
    Mr. Chabot. I want to make sure I understand the 
gentleman's amendment. In essence what we are saying here; 
thank you, Mr. Lungren. What the gentleman's amendment would do 
is it would allow a program that essentially is acquiring 
information to prevent terrorist acts from occurring in our 
country, in essence is what it is. And you would allow, who 
would have standing to bring these types of lawsuit, if I could 
ask the gentleman?
    Mr. Nadler. First of all, if the gentleman would yield.
    Mr. Chabot. It is his time.
    Mr. Bachus. My point is, and I will just say to this 
committee, the gentleman offering the amendment, if the courts 
have already ruled that this intelligence program is 
constitutional, then to then allow any court across the 
country, any Federal court to shut this program down, I don't 
know how that is appropriate, particularly when they are going 
in and you could, any Internet provider----
    Mr. Nadler. Will the gentleman yield?
    Mr. Bachus. I would yield.
    Mr. Nadler. First of all, I would ask unanimous consent to 
change the amendment to say a Federal court of competent 
jurisdiction to meet the gentleman's request.
    Mr. Bachus. That would be an improvement.
    Chairman Sensenbrenner. Without objection, the modification 
referred to by the gentleman from New York is agreed to.
    Mr. Nadler. Thank you. And I thank the gentleman for 
suggesting that. Secondly, the plaintiff presumably would be 
someone who thinks his constitutional rights are being 
violated. And our system of government says that if someone 
thinks his constitutional or other rights are being violated he 
has the right to go to court and say so. And if the court 
agrees with him, they can order that constitutional or legal 
violation to stop.
    Mr. Bachus. Would you be willing to add to that no damages 
could be assessed against the utilities?
    Mr. Nadler. Yes, but I think the underlying----
    Mr. Bachus. Or some indemnification?
    Mr. Nadler. Mr. Bachus, the underlying bill says exactly 
that. The Cannon amendment said exactly that. And all I am 
doing is narrowing it by saying notwithstanding section 10, 
section 10 says no relief, no penalty, sanction or other form 
of remedy or relief shall be imposed. We are not changing that.
    Mr. Bachus. Of course you know the utility is going to then 
have to pay attorney's fees.
    Mr. Nadler. We are not changing that except with respect 
to----
    Chairman Sensenbrenner.  The gentleman's time has expired.
    Mr. Scott. Mr. Chairman.
    Ms. Lofgren. Mr. Chairman.
    Chairman Sensenbrenner. You guys really do want to come 
back after 7:00, don't you? The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. I speak in favor, very briefly in favor of the 
amendment and just point out that it doesn't go far enough. The 
underlying problem with the Cannon amendment is it immunizes 
people from criminal activity. They can be breaking the law. If 
John Mitchell authorized a criminal wiretap, everybody involved 
would be immunized by the Cannon amendment, and you can't even 
get into court to stop it. The Nadler amendment would at least 
let you get an injunction to stop it, although you can't throw 
anybody in jail for--he said good faith. There is no good faith 
exception in here. You can know you are breaking the law. If 
John Mitchell authorized it you can break the law under the 
Cannon amendment. Nadler's amendment, all that would do is just 
let some court stop the thing from going on.
    Mr. Cannon. Would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Cannon. Dan, go ahead.
    Mr. Lungren. As a matter of historical fact, John Mitchell 
is now dead. But more importantly, as I understand this 
amendment, it, as a condition precedent to the right to seek 
injunctive relief, you have to have a program where the 
Attorney General has certified that it involves the protection 
of state secrets, is, was or intended to protect the U.S. from 
terrorist attacks.
    Mr. Scott. Reclaiming my time. If you have got a slimy 
Attorney General who makes a certification, everybody breaking 
the law pursuant to that certification is immunized, knowing 
they are breaking the law.
    Ms. Lofgren. Would the gentleman yield for a question?
    Mr. Lungren. If he doesn't certify, you don't have a right.
    Mr. Scott. That is what the underlying amendment does. At 
least this amendment will let you stop it.
    Ms. Lofgren. Would the gentleman yield?
    Mr. Scott. I yield to gentleman from New York.
    Mr. Nadler. An Attorney General may not always be honest. 
He may not always be correct. All this says is if a future 
Attorney General authorizes a program, makes the certification 
that it is, you know, all important, and it is illegal, it is 
criminal, it is whatever, nobody is subject to criminal 
penalties. Nobody is subject to a damage suit. But you can go 
to court and seek an injunction to stop that program. That is 
what my amendment says.
    Mr. Cannon. Would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Cannon. But I think we agree on what you are saying. 
But the implications are significant. If the Attorney General 
does something wrong, then the Attorney General should be 
subject to a suit. As I understand the amendment----
    Mr. Scott. No. No. Your amendment immunized him, too. 
Nobody can get busted for criminal enterprise. I yield to the 
gentlelady from California.
    Ms. Lofgren. I think this is being made a lot more 
complicated than it needs to be, frankly, because the 
underlying amendment, which I opposed, is very broad. It 
immunizes past and future, potentially even criminal activity. 
I will give you a scenario. You have the current Attorney 
General certifies a program pursuant to the underlying 
amendment. The next Attorney General finds out that a phone 
company is doing something that, in her judgment, jeopardizes 
the state secrets of the United States. It would allow that 
Attorney General to take, to initiate or to allow another to 
initiate injunctive relief. You can't, under the amendment that 
is being offered, you can't do anything without the Attorney 
General or her designee certifying. So you have got a 
constraint right there in the amendment. But this, the 
underlying amendment is so broad that you could actually end up 
endangering the security. I am sure that the--I know that Mr. 
Cannon would not have intended that, but the fact is you could 
end up endangering the security of the United States, even 
though you didn't mean to because you have completely tied the 
hands. And I thank the gentleman for yielding. And correct me 
if my understanding of the amendment is incorrect.
    Mr. Cannon. Would the gentleman yield? The amendment before 
us I think is relatively simple, and the underlying amendment 
that I made earlier is quite direct. I think the consideration 
here, the concern here is that if the Attorney General 
authorizes a program that is somehow defective, there ought to 
be a process whereby in court that program can be corrected. 
The question is, should the person who gets the order from the 
Attorney General, that is person in the way it is described in 
the amendment----
    Mr. Scott. Reclaiming our time. That is what the Nadler 
amendment does. There is no mechanism for getting--under your 
amendment there is nothing. Once it is certified everybody's--
--
    Mr. Cannon. If the gentleman would yield. If you look at 
the definition of person, the Attorney General is subject to 
some kind of----
    Mr. Scott. Not under your amendment. I yield to the 
gentleman from New York.
    Mr. Nadler. First of all, under your amendment, there is no 
ability to change it. Nobody can go to court. Second of all----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Nadler. Mr. Chairman, I would ask for an additional 
minute.
    Mr. Chabot. Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Ohio seek recognition?
    Mr. Chabot. Mr. Chairman, I move the previous question.
    Chairman Sensenbrenner. Does the gentleman move the 
previous question on the amendment and the bill?
    Mr. Chabot. Yes, Mr. Chairman.
    Chairman Sensenbrenner. The question is shall the previous 
question be ordered on the amendment and the bill. It is a 
nondebatable motion. Those in favor will say aye. Opposed no. 
The ayes appear to have it. The ayes have it. The previous 
question is ordered.
    The question is on agreeing to the amendment offered by the 
gentleman from New York, Mr. Nadler. Those in favor will say 
aye. Opposed, no. The noes appear to have it. The noes have it. 
The amendment is not agreed to.
    Mr. Van Hollen. Mr. Chairman, I move for a rollcall vote.
    Chairman Sensenbrenner. The rollcall is ordered. Those in 
favor of the Nadler amendment will as your names are called 
answer aye. Those opposed, no. And the Clerk will call the 
roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. No.
    The Clerk. Mr. Hyde votes no.
    Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble votes no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith votes no.
    Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly votes no.
    Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte votes no.
    Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot votes no.
    Mr. Lungren.
    Mr. Lungren. No.
    The Clerk. Mr. Lungren votes no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins votes no.
    Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon votes no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus votes no.
    Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis votes no.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler votes no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green votes no.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. No.
    The Clerk. Mr. Issa votes no.
    Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake votes no.
    Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence votes no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes votes no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King votes no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney votes no.
    Mr. Franks.
    Mr. Franks. No.
    The Clerk. Mr. Franks votes no.
    Mr. Gohmert.
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert votes no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers votes aye.
    Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler votes aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott votes aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt votes aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren votes aye.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Pass.
    The Clerk. Ms. Jackson Lee passes.
    Ms. Waters.
    [No response.]
    The Clerk. Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler votes aye.
    Mr. Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner votes aye.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff votes aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez votes aye.
    Mr. Van Hollen.
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen votes aye.
    Ms. Wasserman Schultz.
    [No response.]
    The Clerk. Mr. Chairman.
    Chairman Sensenbrenner. No.
    Members who wish to cast or change their vote. Gentleman 
from California, Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman aye.
    Chairman Sensenbrenner. Gentlewoman from Florida, Ms. 
Wasserman Schultz.
    Ms. Wasserman Schultz. Aye.
    The Clerk. Ms. Wasserman Schultz, aye.
    Chairman Sensenbrenner. Gentlewoman from Texas, Ms. Jackson 
Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes? If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 13 ayes and 22 nays.
    Chairman Sensenbrenner. And the----
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The amendment is not.
    Mr. Scott. Mr. Chairman, Ms. Waters just walked in.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters.
    Ms. Waters. Aye.
    Chairman Sensenbrenner. Waters is an aye.
    Mr. Scott. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. And the Clerk will report again.
    The Clerk. Mr. Chairman, there are 14 ayes and 22 nays.
    Chairman Sensenbrenner. The amendment is not agreed to.
    The previous question has been ordered on the question of 
reporting the bill, H.R. 5825, favorably, as amended. A 
reporting quorum is present. The question occurs on the motion 
to report the bill, H.R. 5825, favorably, as amended.
    All those in favor signify by saying aye.
    Opposed no.
    The ayes appear to have it. A recorded vote is requested. 
Those in favor of reporting the bill, H.R. 5825, favorably, as 
amended, will as your names are called say aye. Those opposed, 
no. The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    Mr. Hyde. Aye.
    The Clerk. Mr. Hyde votes aye.
    Mr. Coble.
    Mr. Coble. Aye.
    The Clerk. Mr. Coble votes aye.
    Mr. Smith.
    Mr. Smith. Aye.
    The Clerk. Mr. Smith votes aye.
    Mr. Gallegly.
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly votes aye.
    Mr. Goodlatte.
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte votes aye.
    Mr. Chabot.
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot votes aye.
    Mr. Lungren.
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren votes aye.
    Mr. Jenkins.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins votes aye.
    Mr. Cannon
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon aye.
    Mr. Bachus.
    Mr. Bachus. Yes.
    The Clerk. Mr. Bachus votes yes.
    Mr. Inglis.
    Mr. Inglis. No.
    The Clerk. Mr. Inglis votes no.
    Mr. Hostettler.
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler aye.
    Mr. Green.
    Mr. Green. Aye.
    The Clerk. Mr. Green votes aye.
    Mr. Keller.
    [No response.]
    The Clerk. Mr. Issa.
    Mr. Issa. Aye.
    The Clerk. Mr. Issa votes aye.
    Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake votes no.
    Mr. Pence.
    Mr. Pence. Aye.
    The Clerk. Mr. Pence votes aye.
    Mr. Forbes.
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes votes aye.
    Mr. King.
    Mr. King. Aye.
    The Clerk. Mr. King votes aye.
    Mr. Feeney.
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney votes aye.
    Mr. Franks.
    Mr. Franks. Aye.
    The Clerk. Mr. Franks votes aye.
    Mr. Gohmert.
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert votes aye.
    Mr. Conyers.
    Mr. Conyers. No.
    The Clerk. Mr. Conyers votes no.
    Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher.
    [No response.]
    The Clerk. Mr. Nadler.
    Mr. Nadler. No.
    The Clerk. Mr. Nadler votes no.
    Mr. Scott.
    Mr. Scott. No.
    The Clerk. Mr. Scott votes no.
    Mr. Watt.
    Mr. Watt. No.
    The Clerk. Mr. Watt votes no.
    Ms. Lofgren.
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren votes no.
    Ms. Jackson Lee.
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee votes no.
    Ms. Waters.
    Ms. Waters. No.
    The Clerk. Ms. Waters votes no.
    Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    [No response.]
    The Clerk. Mr. Wexler.
    Mr. Wexler. No.
    The Clerk. Mr. Wexler votes no.
    Mr. Weiner.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner votes no.
    Mr. Schiff.
    Mr. Schiff. No.
    The Clerk. Mr. Schiff votes no.
    Ms. Sanchez.
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez votes no.
    Mr. Van Hollen.
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen votes no.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. No.
    The Clerk. Ms. Wasserman Schultz votes no.
    Mr. Chairman.
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Sensenbrenner votes aye.
    Chairman Sensenbrenner. Are there members who wish to cast 
or change their votes? The gentleman from California, Mr. 
Berman.
    Mr. Berman. No.
    The Clerk. Mr. Berman votes no.
    Chairman Sensenbrenner. Further members who wish to cast or 
change their votes? If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 20 ayes and 16 nays.
    Chairman Sensenbrenner. And the motion to favorably report 
the bill, as amended, is agreed to.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute incorporating the amendments adopted here today. 
Without objection, the staff is directed to make any technical 
and conforming changes. And all members will be given 2 days, 
as provided by the House rules, in which to submit additional 
dissenting or supplemental or minority views.
    I think we put in a good day's work for a day's pay and 
without objection, the subcommittee stands adjourned.
    [Whereupon, at 6:08 p.m., the committee was adjourned.]

                            DISSENTING VIEWS

    We strongly support intercepting each and every 
conversation involving al Qaeda and its supporters. We have in 
the past and continue to support common sense updates to the 
Foreign Intelligence Surveillance Act (``FISA'') so that our 
surveillance capabilities can keep pace with modern 
technologies--as a matter of fact, all of us supported a 
bipartisan substitute offered by Representatives Schiff (D-CA) 
and Flake (R-AZ) which would have accomplished these goals 
without sacrificing our rights and liberties.\1\ However, we 
dissent from the legislation reported by the Judiciary 
Committee because instead of bringing the President's 
warrantless surveillance program under the law, it dramatically 
expands his authority and permits even broader and more 
intrusive warrantless surveillance of the phone calls and e-
mails of innocent Americans. The legislation also raises severe 
constitutional questions, and was subject to an ill-considered 
and unfair process.\2\
---------------------------------------------------------------------------
    \1\ The Majority rejected this bipartisan substitute amendment by a 
vote of 18-20. The bipartisan amendment included language: (1) 
clarifying the Authorization for Use of Military Force did not contain 
legal authority for warrantless wiretapping in the United States; (2) 
reiterating that FISA is the exclusive means of conducting electronic 
surveillance for foreign intelligence in the United States; (3) 
requiring the President must submit a report to Congress on classified 
surveillance programs; (4) permitting the Chief Justice of the United 
States can appoint additional FISA judges; (5) streamlining the FISA 
application process; (6) extending emergency FISA authority from 3 days 
to 7 days; (7) allowing for use of wartime FISA exception also after 
congressional authorization for use of military force; (8) clarifying 
that FISA warrants are not needed for intercepting foreign-foreign 
communications; and (9) authorizing the hiring of additional 
intelligence personnel.
    \2\ The legislation is opposed by technology companies and groups 
concerned with the civil liberties of Americans, including the Computer 
& Communications Ind. Ass'n, the ACLU, the Center for National Security 
Studies, and the Center for Democracy and Technology.
---------------------------------------------------------------------------

                     Description of the Legislation

    The legislation reported by the Committee proposes numerous 
significant changes to FISA, which governs the surveillance of 
foreign powers, terrorist organizations and their agents. These 
changes would dramatically expand the ability of the 
Administration to wiretap and gather information on innocent 
Americans without court approval or legal recourse.
    The legislation amends FISA in several ways that would 
expand the Administration's ability to eavesdrop on telephone 
calls, e-mails and other communications of U.S. citizens, 
without obtaining court approval. First, Section 3(b) alters 
the definition of ``electronic surveillance'' in a manner that 
permits the warrantless surveillance of the international 
communications of any American who is not a specific target.\3\ 
The bill also amends an operative section of FISA to permit 
warrantless surveillance of Americans for one year if it 
involves communications with foreign powers. Proposed new 
section 102 of FISA (added by section 4 of the bill) 
accomplishes this by eliminating a requirement in current law 
requiring that when the government wiretaps foreign powers, 
there should be no substantial likelihood that Americans' 
conversations will be captured.\4\
---------------------------------------------------------------------------
    \3\ Section 3(b) of the reported bill proposes a number of changes 
to FISA, one of which amends the definition of ``electronic 
surveillance'' in FISA to the (1) interception of communications 
acquired by targeting a person who is reasonably believed to be in the 
United States; and (2) interception of any communication if both the 
sender and all recipients are in the United States.
    \4\ Section 4(a) of the bill proposes a new section 102 of FISA 
that would allow the surveillance without a court order of 
communications of foreign powers but would not contain an exclusivity 
limitation that exists in current law; as a result, it would apply to 
all six categories of foreign powers and could permit capture of 
communications to or from U.S. persons.
    Section 4(a) of the bill also proposes a new section 102A of FISA 
that would allow the government to acquire intelligence information 
about persons the government asserts are not in the Untied States. In 
such cases the Attorney General could obtain an order for up to one 
year without a court order if the acquisition does not constitute 
electronic surveillance but pertains to foreign intelligence 
information.
---------------------------------------------------------------------------
    Proposed new section 102A of FISA also grants the 
Administration new unilateral authority to conduct any and all 
forms of allegedly non-wiretap surveillance on innocent U.S. 
citizens so long as one of the targets is ``reasonably believed 
to be outside of the United States.'' This section, for 
example, would permit the Administration to review call records 
and other stored communications from communication providers 
and other persons and perhaps even content if the Attorney 
General merely certifies the information is not electronic 
surveillance as defined in FISA.\5\
---------------------------------------------------------------------------
    \5\ For instance, the Attorney General could say that surveilling 
communications from inside the United States to outside the United 
States does not constitute ``electronic surveillance'' within the 
definition of FISA. As such, he may argue that the government does not 
require a warrant and could collect as much content as desired and 
without limitation.
---------------------------------------------------------------------------
    Under proposed new section 102B of FISA, the Attorney 
General would be granted the unilateral power to implement the 
new intelligence authorities identified in new sections 102 and 
102A by demanding that any person--including a communications 
provider, internet company, landlord, or family member--assist 
with the execution of both electronic surveillance or other 
acquisition of intelligence information (such parties would 
also be insulated from legal liability for complying with such 
a directive). Any individual challenging the directive would 
have limited rights to challenge the order in court.\6\
---------------------------------------------------------------------------
    \6\ This cause of action likely is pre-empted by section 11 of the 
bill, which prohibits any court review of any actions related to any 
intelligence programs.
---------------------------------------------------------------------------
    The bill also permits the government to permanently retain 
surveillance information inadvertently collected on innocent 
Americans pursuant to these and other provisions of FISA.\7\ 
Section 4 of the bill does this by rewriting provisions in 
existing law that govern the use of information collected 
pursuant to FISA directives under new section 102B to strike an 
existing requirement that unintentionally-acquired information 
be destroyed unless there is a threat of death or serious 
injury.\8\ Section 8 of the bill further permits the government 
to retain permanently any unintentionally-acquired information 
collected pursuant to wire, radio, or electronic communications 
if the government finds foreign intelligence information is 
present (current law is limited to the retention of radio 
communications if there is information about a death or serious 
bodily injury).
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    \7\ See new section 102B of FISA as proposed by the reported bill.
    \8\ Section 106 of FISA (section 1806 of title 50) governs the use 
of information collected via FISA.
---------------------------------------------------------------------------
    In addition and significantly, the bill would eliminate 
court review of intelligence programs. Section 11 of the bill 
(incorporating the amendment offered by Representative Chris 
Cannon (R-UT)) would preclude any court from hearing any case 
or imposing any civil or criminal liability over any activity 
related to any ``alleged intelligence program involving 
electronic surveillance'' that is certified by the Attorney 
General to be intended to protect the United States from a 
terrorist attack. In addition to having the effect of 
dismissing all pending challenges to the legality of the 
president's warrantless surveillance program, this provision 
would prevent any other legal challenges from being brought in 
the future concerning any misuse or abuse of surveillance 
powers.
    The legislation contains other provisions that expand 
Administration power to obtain information, including:
     Section 3(a) of the legislation, which broadens 
the government's ability to obtain information from foreign 
persons located within the United States, including individuals 
and corporations, even if they have no connection to a foreign 
government or terrorist organization.\9\
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    \9\ Section 3(a) of the bill would add to the category of non-U.S. 
persons who could be agents of foreign powers. It would include anyone 
(including corporations) who ``is reasonably expected to possess, 
control, transmit, or receive foreign intelligence information while 
such person is in the United States, provided that the official making 
the certification [for a FISA order] deems such foreign intelligence 
information to be significant.'' Current law defines ``foreign 
intelligence information'' as (1) that which can protect the United 
States against terrorist attack or (2) information with respect to a 
foreign power or territory that relates to the defense or security or 
foreign affairs of the United States. 50 U.S.C. Sec. 1801(e).
    Under the new definition, it is possible that the foreign employee 
of a U.S. corporation could be subject to a wiretap if his or her job 
entails working with encryption technology or computer parts (either of 
which could constitute foreign intelligence information).
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     Section 6 of the bill, which permits any official 
designed by the President, even those involved in leaking 
classified information, to seek FISA surveillance requests. 
Currently, only the National Security Adviser or Senate-
confirmed presidential appointees with responsibility for 
national security or defense can submit a certification in a 
FISA application that the wiretap is needed to collected 
intelligence.\10\
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    \10\ The legislation also broadens the government's authority with 
respect to emergency FISA surveillance, instances when the government 
can use FISA surveillance absent a court order. In addition to 
extending from 3 days to 7 days the period permitted for emergency 
surveillance, it also would permit any Sentate-confirmed presidential 
appointee to authorize emergency surveillance; current law limits that 
authority to Justice Department officials: the Attorney General, Deputy 
Attorney General, the Assistant Attorney General for National Security.
---------------------------------------------------------------------------
     Section 7 of the legislation, which makes it more 
difficult for judges to review extensions of FISA orders. Under 
the legislation extensions of FISA orders would have to be 
issued for periods of up to one year; the current limit is 90 
days in most cases.
     Section 7 of the legislation also eliminates the 
requirement that the government obtain a court order prior to 
installing a pen register or trap-and-trace device. The bill 
does this by providing that anytime a judge issues an order for 
electronic surveillance involving communications the judge also 
must issue an order authorizing the use of pen register and 
trap-and-trace devices related to such communications.
     Section 7 permits any Senate-confirmed 
presidential appointee to authorize emergency surveillance, 
even those that have nothing to do with national security or 
the Justice Department. Congress recently amended FISA to 
permit the Deputy Attorney General or the Assistant Attorney 
General for National Security to make such emergency 
authorizations.\11\
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    \11\ Sec. 506(a)(5) of Public Law 109-177.
---------------------------------------------------------------------------
    The bill also includes a few provisions nominally designed 
to rein in surveillance abuses, but which appear in actuality 
to be mere ``window dressing.'' For example, section 12 of the 
bill contains a provision requiring the Director of the 
National Security Agency, in consultation with the Director of 
National Intelligence and the Attorney General, to submit to 
the House and Senate intelligence committees a report on 
minimization procedures.\12\ In addition, section 2 of the bill 
includes a ``finding'' that the necessary and proper clause of 
the Constitution grants Congress the authority to regulate the 
President's power to gather foreign intelligence.\13\ This is a 
non-binding assertion, and given the President's proclivity to 
interpret laws that fly in the face of supposedly-binding 
statutory language,\14\ cannot be expected to provide any 
meaningful limitation on the president's authority. Also, 
Section 9 states that reports on FISA use would go to all 
members of the intelligence committees (as opposed the 
committees as a whole as provided in current law). This modest 
step will do very little to enhance accountability.
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    \12\ Section 12 of the reported bill. This report specifically 
would pertain to the applicability of such procedures to information 
concerning U.S. persons acquired under FISA electronic surveillance as 
it has been defined prior to the date of enactment of this bill.
    \13\ Section 2 of the reported bill.
    \14\ Charlie Savage, Bush Challenges Hundreds of Laws: President 
Cites Powers of His Office, Boston Globe, Apr. 30, 2006, at A1.
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    Finally, the legislation includes a number of miscellaneous 
and less controversial provisions. For example, section 7 of 
the legislation extends from 3 days to 7 days the period 
permitted for emergency surveillance. Section 6 would permit 
the government to submit a summary of information supporting a 
FISA application as opposed to a complete description. Section 
10 of the bill provides that if a FISA physical search or 
surveillance warrant is issued for a person in the United 
States, then that warrant would continue in effect if the 
person leaves the United States.

                     Concerns With the Legislation


 A. THE LEGISLATION CONTAINS SIGNIFICANT NEW STATUTORY AUTHORIZATIONS 
            THAT THREATEN THE PRIVACY OF INNOCENT AMERICANS

    An initial concern with the legislation is that it does not 
impose any limits on the President's power to conduct 
warrantless surveillance on innocent Americans in violation of 
FISA. This is because the bill does not state that it contains 
the exclusive means for the government to conduct surveillance, 
warrantless or otherwise.\15\ Rather, the legislation appears 
to assume the president has ``inherent authority'' to conduct 
the type of warrantless surveillance first disclosed by The New 
York Times in December, 2005, and goes beyond that to grant the 
president even further statutory authority to intercept the 
communications of innocent Americans without any court 
approval. The Justice Department even admitted as such when it 
testified before the Crime Subcommittee that the bill and the 
warrantless wiretapping program are separate.\16\
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    \15\ The Majority rejected two efforts at ensuring that FISA would 
be the exclusive means of collecting foreign intelligence via 
electronic surveillance. The Majority first rejected by a vote of 18-20 
a bipartisan amendment offered by Representative Jeff Flake (R-AZ) and 
Representative Adam Schiff (D-CA) that clarified that FISA was the 
exclusive means of conducting such surveillance. The Majority also 
defeated by voice vote an amendment offered by Representative Sheila 
Jackson Lee (D-TX) clarifying such exclusivity.
    \16\ H.R. 5825, the ``Electronic Surveillance Modernization Act:'' 
Hearing Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 
109th Cong., 2d Sess. (Sept. 12, 2006) (statement of John Eisenberg, 
Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Dept. 
of Justice).
---------------------------------------------------------------------------
    Second, the legislation permits vastly expanded government 
wiretapping of innocent Americans without a warrant and without 
probable cause. As described above, the bill allows for 
warrantless wiretapping of virtually all international 
communications, even if they involve a person within the United 
States, including U.S. citizens, as long as the government 
asserts that it was not targeting a U.S. citizen. As Jim 
Dempsey of the Center for Democracy and Technology testified, 
``[c]urrently, FISA requires a court order to intercept wire 
communications into or out of the [United States], many of 
which involve U.S. citizens. Under the proposed new 
[definitions in the bill], wire communications to or from the 
[United States] could be intercepted using the vacuum cleaner 
of the NSA, without a warrant, so long as the government is not 
targeting a known person in the [United States].'' \17\ The 
Computer and Communications Industry Association--a trade 
association including Microsoft, Google, and Verizon--agreed, 
writing that ``the mere possibility of widespread, secret, and 
unchecked surveillance of the billions of messages that flow 
among our customers, especially U.S. citizens, will corrode the 
fundamental openness and freedom necessary to our 
communications networks.'' \18\ The Administration has never 
articulated why such vast new authority to conduct warrantless 
surveillance involving innocent Americans is necessary, given 
that FISA already permits surveillance to be conducted without 
a warrant on an emergency basis prior to obtaining court 
review.
---------------------------------------------------------------------------
    \17\ Legislative Proposals to Update the Foreign Intelligence 
Surveillance Act (H.R. 4976, H.R. 5223, H.R. 5371, H.R. 5825, S. 2453, 
and S. 2455.): Hearing Before the Subcomm. on Crime of the H. Comm. on 
the Judiciary, 109th Cong., 2d Sess. (Sept. 6, 2006).
    \18\ Letter from Ed Black, President and CEO, Computer & 
Communications Ind. Ass'n, to the Hon. F. James Sensenbrenner, Jr., and 
the Hon. John Conyers, Jr., House Comm. on the Judiciary, Sept. 19, 
2006. The Association further noted that this unchecked surveillance 
could lead to retaliation and similar communications surveillance on 
Americans by other countries. It wrote that its ``industry is 
confronted with escalating monitoring and surveillance by repressive 
foreign regimes. When challenged, totalitarian states often justify 
their policies by pointing to U.S. government practices.'' Id.
---------------------------------------------------------------------------
    Third, the legislation authorizes the Attorney General to 
unilaterally engage in non-electronic surveillance involving 
innocent Americans (such as reviewing stored communications and 
call records) and unilaterally issuing directives against 
communications providers to obtain both electronic surveillance 
and other information. We have never received any justification 
for such broad new and unchecked authority, which was slipped 
into the legislation at the last minute with no supporting 
record or adequate explanation.
    Fourth, we are concerned that allowing the government to 
maintain permanent records on innocent U.S. citizens based on 
the records of their warrantless surveillance would also 
unnecessarily intrude on the privacy rights of innocent 
Americans. Under current law, the required destruction of 
unintentionally-acquired FISA information ensures that the 
government cannot maintain records on individuals, such as 
American citizens, who pose no threat to the nation. The bill 
would remove entirely any protections that U.S. citizens and 
lawful permanent residents have from government surveillance. 
These records could include information related to First 
Amendment and Second Amendment activity. Again, we have never 
received a justification for such expanded intrusions on 
American's privacy.
    Fifth, the legislation includes an unprecedented court 
stripping provision in the form of the Cannon Amendment which 
would not only terminate pending and future cases challenging 
the president's controversial warrantless surveillance program, 
but would nullify the few rights provided to American citizens 
in the legislation. For example, while the legislation grants 
persons the nominal right to challenge directives to provide 
intelligence information to the Attorney General, the Cannon 
amendment--which supercedes any and all inconsistent laws--
strips the court of that authority.
    Finally, we would dispute the proponents much repeated 
assertion that the committee-reported legislation is needed to 
``modernize'' FISA and make it ``technology neutral.'' The 
Congressional Research Service has confirmed that since its 
inception in 1978, 51 separate provisions in twelve different 
laws have updated FISA, many of them made in the last five 
years.\19\ To the extent further changes are required, we all 
supported the provisions included in the Schiff-Flake 
substitute which eliminated the law's differential treatment of 
different technologies and approved warrantless surveillance of 
all foreign-to-foreign communications which transmit through 
the U.S.
---------------------------------------------------------------------------
    \19\ Since the September 11 attacks, Congress amended FISA to 
extend its emergency exemption from 24 to 72 hours, and the PATRIOT Act 
included some twenty-five separate updates to FISA including: (i) 
expanding the scope of FISA pen register authority; (ii) lowering the 
standard for FISA pen-traps; (iii) lowering the legal standard for FISA 
surveillance; (v) extending the duration of FISA warrants; (vi) 
expanding the scope of business records that can be sought with a FISA 
order; (vii) allowing for ``John Doe'' roving wiretaps; (vii) requiring 
the intelligence community to set FISA requirements and assist with 
dissemination of FISA Information; (ix) immunizing those complying with 
FISA orders; (x) lowering the standard for National Security Letters; 
and (xi) expanding NSL approval authorities. Subsequent to the passage 
of the PATRIOT Act, Congress has again at the Administration's request 
broadened FISA to allow surveillance of ``Lone Wolf'' terrorists and 
the FISA courts have streamlined their procedures to accommodate the 
Administration's requests.
---------------------------------------------------------------------------

     B. THE LEGISLATION RAISES SIGNIFICANT CONSTITUTIONAL QUESTIONS

    The legislation raises serious if not intractable questions 
under both the Fourth Amendment and the principle of separation 
of powers and due process.
    First, the bill may well violate the Fourth Amendment 
protections against ``unreasonable searches and seizures,'' and 
requiring judicially approved warrants issued with 
``particular[ity]'' and ``upon probable cause.'' There is 
little doubt that the Fourth Amendment fully applies to 
electronic surveillance. In Katz v. United States,\20\ the 
Supreme Court held that the Fourth Amendment requires adherence 
to judicial processes in the case of national security 
wiretaps, and that searches conducted outside the judicial 
process, are per se unreasonable under the Fourth Amendment, 
subject only to emergency and similar exceptions. In United 
States v. U.S. District Court (the Keith case),\21\ the Court 
specifically held that, in the case of intelligence gathering 
involving domestic security surveillance, prior judicial 
approval was required to satisfy the Fourth Amendment.\22\ As 
discussed above, the legislation permits the widespread 
practice of intercepting the international telephone calls and 
e-mails of innocent Americans. As such, it would seem to 
contradict the requirements of the Fourth Amendment, as long 
interpreted by the courts.
---------------------------------------------------------------------------
    \20\ 389 U.S. 347 (1967).
    \21\ 407 U.S. 297 (1972).
    \22\ Id. at 313-14, 317, 319-20. The Court further stated: ``These 
Fourth Amendment freedoms cannot properly be guaranteed if domestic 
security surveillance may be conducted solely within the discretion of 
the Executive Branch.'' Id. at 317-318.
---------------------------------------------------------------------------
    Second, the bill would seem to violate separation of powers 
and due process requirements.\23\ It does so with respect to 
the Cannon amendment, which would preclude any court from 
hearing any legal challenges related to intelligence programs 
involving electronic surveillance. Despite the fact that 
Article III of the Constitution grants to the courts the 
judicial power over all cases in law and equity arising under 
the Constitution and laws of the United States, and harmed 
individuals have long been understood to be entitled to assert 
their due process rights in a court of law, the Cannon 
amendment would bar existing and future lawsuits and preclude 
any civil or criminal liability, including injunctive relief, 
for any activity related to any intelligence program involving 
FISA's definition of electronic surveillance.\24\ Such immunity 
is retroactive to any program in existence dating back to 
September 11, 2001. As noted above, the practical impact of the 
Cannon amendment is to nullify the enforceability of any rights 
granted in the bill or otherwise to protect one's privacy. Kate 
Martin of the Center for National Security Studies notes the 
breadth of the Cannon amendment, observing, ``the amendment . . 
. would jeopardize Americans'' fundamental right to challenge 
unconstitutional surveillance of their communications in 
court.''
---------------------------------------------------------------------------
    \23\ By denying the courts their historical role as the final legal 
authority, the legislation appears to usurp judicial power. Since the 
Supreme Court's ruling in Marbury v. Madison, the separation of powers 
doctrine has been well established. See Marbury v. Madison, 5 U.S. 137 
(1803).
    \24\ It is important to note that the Majority rejected by a vote 
of 14-22 an amendment offered by Representative Jerrold Nadler (D-NY) 
to preserve the ability of courts to order injunctive relief for 
unlawful government programs.
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  C. THE LEGISLATION WAS CONSIDERED UNDER A FLAWED AND UNFAIR PROCESS

    The entire process by which this legislation traveled 
through the Judiciary Committee was seriously flawed. At the 
outset, attempts at conducting independent investigations of 
the President's program were thwarted at every turn. Nearly 
nine months after we first learned of the warrantless 
surveillance program, there has been no attempt to conduct an 
independent inquiry into its legality. Not only has Congress 
failed to conduct any sort of investigation, but the 
Administration summarily rejected all requests for special 
counsels as well as reviews by the Department of Justice and 
Department of Defense Inspectors General.\25\ When the Justice 
Department's Office of Professional Responsibility finally 
opened an investigation, the President himself squashed it by 
denying the investigators security clearances.\26\ Furthermore, 
the Department has completely ignored the numerous questions 
posed by this Committee and the Wexler Resolution of Inquiry 
the Judiciary Committee previously adopted requesting copies of 
Administration documents concerning surveillance 
activities.\27\
---------------------------------------------------------------------------
    \25\ Letter from Glenn A. Fine, Inspector General, Department of 
Justice, to Congresswoman Zoe Lofgren et. al. (Jan. 4, 2006); Letter 
from Thomas F. Gimble, Acting Inspector General, Department of Defense, 
to Congresswoman Zoe Lofgren et. al. (Jan. 10, 2006).
    \26\ Dan Eggen, Bush Thwarted Probe into NSA Wiretapping, Wash. 
Post, July 19, 2006, at A4 (referring to testimony of Attorney General 
Alberto Gonzales before the Senate Judiciary Committee).
    \27\ H. Res. 819, 109th Cong., 2d Sess.
---------------------------------------------------------------------------
    Second, Members of the Committee have never been briefed on 
the nature and extent of the President's warrantless 
surveillance program. Although, the Justice Department did 
conduct a briefing for House Judiciary Committee Members on 
September 12, 2006, that briefing was limited to the tech 
neutrality portion of the Wilson bill. The NSA failed to honor 
or even respond to a request made by sixteen Democratic Members 
of the Judiciary Committee for even a classified briefing on 
the entirety of the NSA program.\28\
---------------------------------------------------------------------------
    \28\ Letters from Democratic Members, U.S. House Comm. on the 
Judiciary, to Robert Deitz, General Counsel, NSA (Sept. 12, 2006).
---------------------------------------------------------------------------
    Third, the process by which the markup was conducted was 
both haphazard and unfair, as the Majority substantially 
altered the bill without providing Minority Members any notice 
or opportunity to review the 25 pages of changes. Dispensing 
with the usual practice of alternating between Majority and 
Minority amendments, after offering his own amendment, Chairman 
Sensenbrenner recognized, over Democratic protestations, 
Representative Dan Lungren (R-CA) to offer an amendment that 
substantially altered the underlying bill. By virtue of its 
scope, the Majority's amendment precluded numerous additional 
Democratic amendments. Representative Conyers raised a ``point 
of procedure,'' recalling that the normal practice is to 
alternate between Majority and Minority Members. Chairman 
Sensenbrenner responded by saying ``Well, the Gentleman from 
California is very pushy so he's been recognized.'' \29\ It is 
also notable and unfortunate that the Chairman ruled 
Representative Cannon's amendment which provided that 
notwithstanding any other law precludes court review of ``any 
alleged intelligence program involving electronic 
surveillance'' to be in order, again over Democratic 
objections. In point of fact, such an amendment falls outside 
the jurisdiction of the Judiciary Committee's jurisdiction 
should not have been considered at our markup.
---------------------------------------------------------------------------
    \29\ Markup of H.R. 5825, the ``Electronic Surveillance 
Modernization Act,'' House Comm. on the Judiciary, 109th Cong., 2nd 
Sess. (Sept. 20, 2006). Once debate began on the amendment, 
Representative Conyers asked that the amendment be withdrawn until the 
Members had time to digest its contents. Mr. Conyers acknowledged the 
possibility that Democrats might agree with the substance of the 
amendment but that more time was needed to review it. He also noted 
that there were changes to at least 6 sections of the underlying bill, 
that the amendment was 25 pages long, and that staff for the Minority 
had not been consulted about any of these changes. He stated that it 
was ``impossible for this Member to gain any appreciation of the 
significant changes the Gentleman has attempted'' and asked that it be 
withheld until Democrats had the ``opportunity to examine it with the 
care that is required.'' Id. Representative Schiff also asked for 
cooperation in light of the fact that he and Representative Flake had 
been working on a bipartisan substitute to the underlying bill. He 
noted that there was no way to know how the changes from the Lungren 
amendment affected the carefully drafted substitute. Id. Representative 
Conyers moved to table the Lungren amendment but the Chairman 
prohibited the motion from being offered. Representative Nadler then 
moved to adjourn the Committee meeting until the following day so that 
the Members could have a chance to review the amendment. On a party-
line vote, this motion was defeated 14-17. The amendment eventually 
passed the committee by a vote of 17-2.
---------------------------------------------------------------------------

                               Conclusion

    We believe that every communication to and from an al Qaeda 
member should be subject to government surveillance and support 
Congress providing the President with the tools needed to 
accomplish that goal. In doing so, however, Congress must not 
abdicate its responsibility or negate the role of the courts to 
act as a check against unilateral presidential powers. We 
dissent from the legislation before us because it fails to rein 
in the president's warrantless surveillance program, expands 
the NSA's authority to expose millions of innocent Americans to 
warrantless surveillance, jeopardizes the privacy rights of 
American citizens and raises serious and significant 
constitutional concerns. The American people deserve better 
than this bill and this ill-conceived process of legislating.

                                   John Conyers, Jr.
                                   Rick Boucher.
                                   Robert C. Scott.
                                   Zoe Lofgren.
                                   Maxine Waters.
                                   Bill Delahunt.
                                   Anthony D. Weiner.
                                   Linda T. Sanchez.
                                   Debbie Wasserman Schultz.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Martin T. Meehan.
                                   Robert Wexler.
                                   Adam B. Schiff.
                                   Chris Van Hollen.

                            ADDITIONAL VIEWS

    We could not support H.R. 5825, the ``Electronic 
Surveillance Modernization Act,'' because of the wholesale 
changes the legislation would make to our existing regime of 
domestic electronic surveillance and the impact these changes 
would have on the expectations of privacy shared by each United 
States citizen.
    Instead, we offered a bipartisan amendment in the nature of 
a substitute to ensure that the Government has all the tools 
necessary and all the authority required to pursue al Qaeda and 
other terrorists who would seek to harm our country. Our 
amendment also stood for the principle that administrative 
burden and load, as we use all the tools available to fight 
terrorism, should not supersede devotion to the Constitution 
and the expectation of privacy of each United States citizen.
    While the President possesses the inherent authority to 
engage in electronic surveillance of the enemy outside the 
country, Congress possesses the authority to regulate foreign 
intelligence surveillance within the United States. Congress 
has indeed spoken in this area through the Foreign Intelligence 
Surveillance Act (FISA). When Congress passed FISA, it intended 
to provide the sole authority for such surveillance on American 
soil. Our amendment would have reinforced this existing law--
that the government must obtain a court order when U.S. persons 
are targeted or surveillance occurs in the United States.
    Our bipartisan substitute also responded to the issues that 
have been raised by officials at the NSA and the Department of 
Justice over the last several months in testimony to Congress. 
First, the proposal made clear that foreign-to-foreign 
communications are outside of FISA and don't require a court 
order. If a communication to which a U.S. person is a party is 
inadvertently intercepted, minimization procedures approved by 
the AG should be followed.
    Second, our amendment provided an extension of the FISA 
emergency exception from 72 hours to 168 hours, or seven days. 
This permits law enforcement to initiate surveillance in an 
emergency situation before going to the FISA court for a 
warrant. If the current 72 hours has been sufficient in the 5 
years since September 11th, surely 7 days can be considered a 
significant improvement. Importantly, this authority can be 
used to thwart imminent attacks.
    Third, our amendment expanded the FISA ``wartime 
exception'' to provide that in addition to a ``declaration of 
war'' by Congress, that an ``authorization for the use of 
military force'' can also trigger the FISA ``wartime 
exception'' for purposes of allowing 15 days of warrantless 
surveillance if there is an explicit provision authorizing 
electronic surveillance under that FISA provision.
    Finally, our amendment streamlined the FISA application 
process, provided authorization to appoint additional FISA 
judges and additional personnel at DOJ, the FBI, and the NSA, 
to ensure speed and agility in the drafting and consideration 
of FISA order applications.
    Electronic surveillance of al Qaeda operatives and others 
seeking to harm our country must continue; it simply can and 
should comply with FISA. We believe our substitute accomplished 
these joint goals.

                                   Adam B. Schiff.
                                   Jeff Flake.

                                  
