[Senate Report 109-85]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 132
109th Congress                                                   Report
                                 SENATE
 1st Session                                                     109-85

======================================================================

 
    TO PERMANENTLY AUTHORIZE CERTAIN PROVISIONS OF THE UNITING AND 
   STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO 
    INTERCEPT AND OBSTRUCT TERRORISM (USA PATRIOT) ACT OF 2001, TO 
   REAUTHORIZE A PROVISION OF THE INTELLIGENCE REFORM AND TERRORISM 
 PREVENTION ACT OF 2004, TO CLARIFY CERTAIN DEFINITIONS IN THE FOREIGN 
     INTELLIGENCE SURVEILLANCE ACT OF 1978, TO PROVIDE ADDITIONAL 
     INVESTIGATIVE TOOLS NECESSARY TO PROTECT THE NATIONAL SECURITY

                                _______
                                

                 June 16, 2005.--Ordered to be printed

                                _______
                                

 Mr. Roberts, from the Select Committee on Intelligence, submitted the 
                               following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 1266]

    The Select Committee on Intelligence (Committee), having 
considered the original bill (S. 1266), to permanently 
authorize certain provisions of the Uniting and Strengthening 
America by Providing Appropriate Tools Required to Intercept 
and Obstruct Terrorism (USA PATRIOT) Act of 2001, to 
reauthorize a provision of the Intelligence Reform and 
Terrorism Prevention Act of 2004, to clarify certain 
definitions in the Foreign Intelligence Surveillance Act (FISA) 
of 1978, to provide additional investigative tools necessary to 
protect the national security, and for other purposes, reports 
an original bill without amendment favorably thereon and 
recommends that the bill do pass.

                 PURPOSE AND SCOPE OF COMMITTEE REVIEW

    The attacks of September 11, 2001, highlighted the systemic 
flaws and inaccurate interpretations of existing law under 
which the nation's intelligence and law enforcement agencies 
operated and which restricted common-sense sharing of 
intelligence information among these agencies. In an effort to 
enhance counterterrorism authorities and remove these 
restrictions, the Congress passed, and the President signed 
into law, the USA PATRIOT Act (Pub. L. No. 107-56) in October 
2001.
    The Act made modifications in several different areas of 
law, each designed to limit the ability of terrorists to 
conduct their operations and to secure the United States from 
further terrorist attacks. For example, Title II of the Act 
enhanced surveillance and information sharing authorities. 
Title IX addressed restrictions on asset recruiting for 
intelligence operations; required mandatory disclosure of 
foreign intelligence information acquired during the course of 
a criminal investigation to national security officials; and 
required the Attorney General and Director of Central 
Intelligence (DCI) to coordinate the training of law 
enforcement and other officials to identify and use foreign 
intelligence information in the course of their official 
duties. Sixteen of the Act's important provisions--as well as 
the recently enacted ``lone wolf'' amendment to the FISA 
(Intelligence Reform and Terrorism Prevention Act of 2004, 
Section 6001 (Pub. L. No. 108-458))--will expire on December 
31, 2005.
    Since enactment of the USA PATRIOT Act, the Committee has 
exercised careful oversight of the use and administration of 
the investigative tools authorized by the legislation. The 
Committee has held a series of hearings and received numerous 
briefings on the Intelligence Community's use of USA PATRIOT 
Act authorities. The Committee also has received detailed 
reports from the Department of Justice (DoJ) regarding FISA 
collection and the use of other surveillance tools. Moreover, 
the Committee is in the final stages of completing its second 
audit of the procedures, practices, and use of the FISA. This 
comprehensive, classified analysis will represent one of the 
most thorough reviews of Executive branch activities under the 
FISA since the USA PATRIOT Act was enacted.
    The Committee notes that, in addition to its own oversight 
activities, three other Congressional committees with oversight 
responsibility have held at least 12 hearings this year 
regarding the USA PATRIOT Act. Since January 2005, a total of 
20 witnesses from the DoJ, including the Attorney General, the 
Director of the Federal Bureau of Investigation (FBI), and the 
Deputy Attorney General, have testified before either this 
Committee, the House Permanent Select Committee on 
Intelligence, or the House and Senate Judiciary Committees on 
the reauthorization of the Act's expiring provisions and 
related matters. In addition, during the 108th Congress (the 
last period for which records were available at the time of 
this writing), the DoJ answered more than 520 Questions for the 
Record and responded to at least 100 letters from Members of 
Congress specifically addressing the USA PATRIOT Act.
    The Committee is aware that a number of the Act's 
provisions have been characterized as being controversial. 
However, the reports of the DoJ Inspector General, the hearings 
of the Committee and its follow-up inquiries to the DoJ and the 
FBI, and the Committee's general oversight activities have 
revealed no instance in which a citizen's privacy rights or 
civil liberties have been violated by the use of authorities 
provided under the Act. Indeed, the record reflects that the 
DoJ's and the FBI's use of those authorities has been judicious 
and fully consistent with the law.
    As a result of its extensive oversight activities, the 
Committee is convinced that the tools and authorities provided 
to the Intelligence Community through the USA PATRIOT Act 
contribute significantly to international terrorism, espionage, 
and other foreign intelligence investigations. Failure to 
reauthorize those provisions that are set to expire will result 
in a return to the failed, outdated, and illogical limits on 
national security investigations that tied the hands of 
Intelligence Community and law enforcement officials prior to 
the terrorist attacks of September 11, 2001. Moreover, the 
Committee recognizes that national security investigators 
should have the same investigative tools provided to their 
counterparts investigating ordinary crimes. These additional, 
constitutional authorities are needed to effectively target 
terrorists and spies, particularly in time-sensitive 
investigations.

              SECTION-BY-SECTION ANALYSIS AND EXPLANATION

    The following is a section-by-section analysis and 
explanation of the legislation, as reported herein. Following 
the section-by-section analysis and explanation there are 
additional and minority views offered by Committee Members 
regarding this legislation and other matters.

     TITLE I--REPEAL AND EXTENSION OF SUNSET ON CERTAIN AUTHORITIES

Section 101. Expansion of enhanced surveillance procedures not subject 
        to sunset under USA PATRIOT Act

    During the course of USA PATRIOT Act hearings and the staff 
audit of the FISA process, the Committee gathered information 
that overwhelmingly supports the permanent authorization of the 
intelligence and intelligence-related provisions in Title II of 
the USA PATRIOT Act, which are due to sunset on December 31, 
2005. The Committee's review of these matters also disclosed 
the need for certain enhancements to existing authorities. 
These modifications are addressed in Title II of this 
legislation.
    Section 101 permanently authorizes the intelligence and 
intelligence-related sections of the USA PATRIOT Act subject to 
the sunset deadline. Sixteen of the provisions in Title II of 
the Act are subject to sunset. Section 101 permanently 
authorizes the following nine provisions: 203(b) (authority to 
share electronic, wire, and oral interception information); 
203(d) (authority to share foreign intelligence information); 
204 (clarification of intelligence exceptions to criminal 
wiretap authorities); 206 (FISA ``roving'' authority); 207 
(duration of FISA surveillance of non-U.S. persons who are 
agents of a foreign power), 214 (FISA pen register and trap and 
trace authority); 215 (FISA business records authority); 218 
(``significant purpose''); and 225 (immunity for compliance 
with FISA wiretap). Each of these provisions is discussed in 
greater detail below. Because the remaining seven provisions 
are not directly connected to the intelligence and 
intelligence-related activities of the Government, the 
Committee has taken no action, or position, with respect to the 
remaining sections subject to the USA PATRIOT Act sunset 
provision.

            Information Access
    The information access provisions of Section 203 of the USA 
PATRIOT Act were lauded by the Executive branch during the 
Committee's hearings on the Act, and their utility was 
confirmed by the staff FISA audit. According to the witnesses, 
Section 203 has reduced the statutory and cultural barriers to 
information sharing that hindered national security 
investigations before September 11, 2001. The DoJ and the FBI 
informed the Committee that Section 203(b) has permitted 
disclosures of vital information to the Intelligence Community 
and national security officials on numerous occasions. They 
provided two specific examples in which intercepted 
communications in criminal cases contained foreign intelligence 
information. First, an investigation of a scheme to defraud 
donors and the Internal Revenue Service uncovered the illegal 
transfer of monies to Iraq and the manner and means by which 
those monies were transferred. Second, a sting operation in a 
money laundering investigation uncovered foreign intelligence 
information about an attempt to transport night-vision goggles, 
infrared lights, and other sensitive military equipment to a 
foreign terrorist organization.
    The DoJ also provided a number of examples where 
intelligence information from a criminal investigation was 
appropriately shared with the Intelligence Community under 
203(d). Some of these examples included ordinary domestic 
criminal investigations that discovered foreign intelligence 
information about violent terrorist training camps, plots to 
bomb soft targets abroad, an assassination plot, use of false 
travel documents, and logistical support networks for terrorist 
groups.
    The Director of the Central Intelligence Agency also spoke 
approvingly of the information sharing procedures promulgated 
under Section 203. He cited the National Counterterrorism 
Center (NCTC) as one of the most positive illustrations of the 
current collaborative environment created by Section 203. He 
noted that NCTC receives foreign intelligence information 
obtained by the FBI during its criminal investigations. Such 
information is compiled with other foreign intelligence 
information and is used to produce all-source terrorism 
analysis that is disseminated throughout the Intelligence 
Community and to national security officials throughout the 
Government.
    In a closed session, Intelligence Community officials 
provided specific examples of how the USA PATRIOT Act 
information sharing provisions were having a positive impact in 
ongoing classified investigations and operations.
    All of the Executive branch witnesses stated that allowing 
Section 203(b) and (d) to expire would adversely impact 
currently robust information sharing relationships, discourage 
information access, and make it more difficult to detect and 
disrupt terrorist plots.
    Finally, the staff FISA audit confirmed that the 
information sharing provisions in Section 203 have been 
successful, by all accounts. FBI agents in several field 
offices provided the audit staff with specific examples of 
cases in which they were able to use the USA PATRIOT Act 
information access provisions to neutralize targets in non-
traditional ways.

            Intelligence Exception to Criminal Electronic Surveillance 
                    Authorities
    Section 204 provides an important exception for certain 
foreign intelligence activities from the requirements governing 
specified criminal electronic surveillance activities. The 
Committee received no criticism regarding this provision, and 
it is imperative that the provision be made permanent.

            FISA Multipoint or Roving Authority
    A ``multipoint'' or ``roving'' wiretap order attaches to a 
particular surveillance target rather than to a particular 
phone or other communications facility. Prior to the enactment 
of Section 206 of the USA PATRIOT Act, such wiretaps, which 
have long been available in the criminal investigative context, 
were not available under the FISA.
    Some commentators, though not opposed to the permanent 
authorization of the FISA roving authority granted in Section 
206, have asked Congress to conform the FISA roving wiretap 
provision to the corresponding authority for roving wiretaps in 
the criminal code. Those commentators have suggested the 
addition of an ``ascertainment'' requirement that ensures law 
enforcement agents listen only to the conversations to which 
the target is a party. Others have proposed a requirement that 
the Government add additional specificity in its application 
for a FISA wiretap to more completely describe either the 
identity of the person whose phone or computer would be 
surveilled or the facility that would be tapped. In testimony 
before the Committee, some witnesses noted that their 
recommended changes are addressed in S. 737, the Security and 
Freedom Enhancement (SAFE) Act.
    The SAFE Act contains a broad ascertainment requirement 
that would apply to any electronic surveillance where the 
facility or place at which the surveillance will be directed is 
not known at the time the order is issued. In such 
circumstances, the person conducting the surveillance could 
only initiate coverage when the presence of the target at a 
particular facility or place is ascertained. This would apply 
to all means of electronic surveillance. See Section 2, S. 737. 
By comparison, the criminal roving authority only requires 
ascertainment in the context of the interception of oral 
communications (e.g., by a microphone). See 18 U.S.C. 2518(12). 
The ascertainment requirements of the SAFE Act are not 
necessary in the FISA context because the Foreign Intelligence 
Surveillance Court (FISC) can fashion specialized minimization 
procedures depending upon the means by which the electronic 
surveillance is conducted. See 50 U.S.C. 1804(a)(11), 
1805(c)(1)(F). When appropriate, the FISC has the authority to 
approve an ascertainment requirement designed specifically to 
collect primarily the target's communications and to limit the 
amount of incidental collection. Thus, there is no need to 
build the criminal ascertainment requirement for oral 
communications into the FISA, much less the extremely broad 
ascertainment requirement contained in the SAFE Act.
    The SAFE Act also would require the FISC to specify either 
the identity of the target, or a description of the target and 
the nature and location of the facilities and places at which 
the electronic surveillance will be directed. In the context of 
roving electronic surveillance under the FISA, the Government 
already must provide the identity of the target, if known, the 
nature and location of each of the facilities or places at 
which the electronic surveillance will be directed, if known, 
and sufficient information so that the FISC may find that the 
actions of the target of the application may have the effect of 
thwarting the electronic surveillance. See 50 U.S.C. 
105(c)(1)(A)-(B), (C)(2)(B). In addition, the Government must 
establish probable cause that the target of the surveillance is 
a foreign power or an agent of a foreign power. See 50 U.S.C. 
1805(a)(3). These four requirements together require a 
sufficiently adequate description of the target to ensure that 
the FISA roving authority is not used to broadly collect and 
retain the communications of innocent third parties.
    In addition to these unclassified protections, the 
Committee has received classified information from the DoJ 
describing additional reasons an ascertainment requirement is 
not necessary in the context of FISA roving surveillance. The 
Committee will continue to closely examine the safeguards now 
in place, whether in law or practice, designed to prevent 
misuse of the FISA roving surveillance authority.

            Duration of FISA Surveillance
    Section 207 of the USA PATRIOT Act increased the maximum 
duration of FISA electronic surveillance and physical search 
orders under certain circumstances. Under Section 207 of the 
Act, initial surveillance and physical search orders directed 
against non-U.S. person members of international terrorist 
groups or officers or employees of foreign powers can be 
authorized up to 120 days (instead of 90 days) and renewed for 
up to one year (instead of 90 days). Section 207 also extended 
the duration of physical search orders directed against U.S. 
persons to 90 days (instead of 45 days) to match the standard 
duration period of an electronic surveillance order directed 
against a U.S. person.
    Some critics of Section 207 have noted that the time 
periods for FISA orders are already much longer than for 
criminal surveillance orders. These critics have expressed 
concern that permitting surveillance to continue for a year 
with no judicial review opens the door for potential abuse. 
They have suggested that Congress should provide sufficient 
funds to the DoJ and the FISC to provide the necessary 
personnel and equipment to process FISA applications with 
shorter periods of duration.
    Both the Executive branch witnesses and the staff FISA 
audit confirmed that Section 207 has been instrumental in 
allowing the FBI and the DoJ Office of Intelligence Policy and 
Review (OIPR) to conserve their limited resources to process 
FISA applications. By making the time periods for physical 
search and electronic surveillance equivalent, Section 207 has 
allowed the DoJ to file streamlined, combined electronic 
surveillance and physical search applications that, in the 
past, were tried but abandoned as too cumbersome to be 
effective. The DoJ further noted that if Section 207 were 
allowed to sunset, DoJ personnel would be forced to spend more 
time on routine extensions of current FISA orders and less time 
on applications relating to new targets. Also, DoJ personnel 
would have less time to oversee investigations involving the 
authorized surveillance of U.S. persons.
    The staff FISA audit found that Section 207 has enabled the 
FBI and the OIPR to process more effectively certain non-U.S. 
person FISA applications. The audit revealed that the FISA 
process is still showing the strain from efforts to adjust to 
the post-9/11 operational environment, as evidenced by a 
significant number of initiation requests that were backlogged 
in the system.Therefore, the Committee has recommended 
permanent authorization of Section 207 of the USA PATRIOT Act, in 
addition to modification of other FISA time limits in Section 216 of 
this legislation.

            FISA Pen Register and Trap and Trace Devices
    Section 214 of the USA PATRIOT Act made the standard 
contained in the FISA for obtaining an order for a pen register 
or trap and trace device consistent with the standard for 
obtaining an order for a criminal pen register or trap and 
trace device (i.e., relevance to an ongoing investigation). 
Compare 50 U.S.C. 1842 with 18 U.S.C. 3123. Section 214 
accomplished this by eliminating the FISA application 
requirement that the telephone line subject to the pen register 
or trap and trace device has been, or is about to be, used in 
communication with a foreign power or an agent of foreign 
power. Section 214 also incorporated an additional safeguard 
that such an investigation could not be conducted solely upon 
the basis of activities protected by the First Amendment to the 
Constitution.
    Some critics of Section 214 have asserted that the FISA pen 
register statute allows the FISC to act as little more than a 
``rubber stamp.'' Those critics have testified that the statute 
is silent on the need for a factual predicate in the underlying 
application. The SAFE Act would amend the FISA pen register 
statute to require a statement by the applicant of ``specific 
and articulable facts'' showing there is reason to believe that 
the information likely to be obtained is relevant to an ongoing 
national security investigation.
    The ``rubber stamp'' criticism undervalues the FISC's 
authority to modify Government requests for FISA pen registers 
(see 50 U.S.C. 1842(d)(1)) and does not adequately account for 
current Government pleading practice before the FISC. The FISA 
pen register provision requires a certification that the 
information likely to be obtained is relevant to an ongoing 
national security investigation. See 50 U.S.C 1842(c)(2). Thus, 
the Government application must satisfy the FISC that the 
requested records are relevant to a lawful investigation. 
Otherwise, the FISC may deny the application or direct 
modification of the requested order. Therefore, the Government 
application must contain a sufficient explanation supporting 
the assertion that information sought is relevant to an 
ongoing, lawful investigation. Moreover, before an authorized 
national security investigation can be initiated, the FBI must 
meet the factual predicate required by the FISA, Executive 
Order 12333, and Attorney General implementing guidelines. The 
FBI is not authorized to investigate or maintain information on 
United States persons solely for the purpose of monitoring 
activities protected by the First Amendment or the lawful 
exercise of other rights secured by the Constitution. These 
statutory and regulatory safeguards prevent the FBI from 
engaging in random ``fishing expeditions'' to collect 
information on innocent U.S. persons. Thus, the additional 
requirements proposed in the SAFE Act are unnecessary.
    In addition to the protections afforded by current law and 
practice, Section 217 of the legislation would require that a 
FISA application for a pen register or trap and trace order (or 
a FISA business records order) include ``an explanation . . . 
that supports the assertion'' that the information sought is 
relevant to a lawful investigation. This modification is 
designed to codify current Government pleading practice.
    The FISA audit staff was informed that when a federal court 
issues an order for a criminal pen register or trap and trace 
device, the court has the authority under 18 U.S.C. 2703(d) to 
routinely require the service provider to supply subscriber 
information in its possession for the numbers or e-mail 
addresses captured by the devices. The FISA pen register/trap 
and trace provision has no comparable authority. Section 215 of 
this bill addresses this discrepancy.

            FISA Business Record Orders
    Section 215 of the USA PATRIOT Act made two important 
changes to the FISA ``business records'' authority. First, it 
broadened the scope of records that could be sought to ``any 
tangible things,'' rather than the limited classes of records 
allowed by the then-existing version of the statute. Second, it 
allowed the FBI to make an application ``for an investigation'' 
to protect against international terrorism or clandestine 
intelligence activities. The DoJ has interpreted the ``for an 
investigation'' standard to be the practical equivalent of a 
``relevance'' standard.
    No witness before the Committee testified against permanent 
authorization of Section 215. Rather, some witnesses supported 
proposed SAFE Act amendments to the FISA business record 
provision. The SAFE Act would make a number of modifications to 
the FISA business records provision. First, it would raise the 
FISA business records standard from ``for an investigation'' to 
``specific and articulable facts giving reason to believe that 
the person to whom the records pertain is a foreign power or an 
agent of a foreign power.'' Second, it would modify the 
permanent nondisclosure period currently embodied in the FISA 
in favor of a nondisclosure period of 180 days that could be 
extended in 180-day increments only by an order of the FISC. 
Third, it would allow the recipient of a FISA order to consult 
with an attorney and those persons necessary to comply with the 
order. Fourth, it would permit the recipient to seek judicial 
review to modify or set aside the order. Fifth, it would place 
limitations on the dissemination and use of information 
obtained with a FISA order. Sixth, it would require that notice 
be provided to an ``aggrieved person'' when using the 
information in a trial or proceeding. Finally, it would provide 
procedures for making motions to suppress information obtained 
with a FISA order.
    The Attorney General has supported clarifying the FISA to 
make the ``relevance'' standard explicit, to specifically 
permit consultation with an attorney under the FISA 
nondisclosure provision, and to allow a recipient to challenge 
a business records order before the FISC. The Attorney General, 
however, did not support the imposition of other limitations on 
FISA nondisclosure requirements. The Attorney General also 
testified that raising the FISA business record standard from 
``relevance'' to ``specific and articulable facts'' would 
``make the use of [Section] 215 sort of a dead letter.'' The 
SAFE Act provisions which place limitations on dissemination 
and use of information obtained with a FISA business records 
order are verysimilar to the limitations in place for 
information acquired during the course of an electronic surveillance or 
physical search. Also, the notice requirements and suppression 
procedures in the SAFE Act appear to be modeled on the procedures in 
place for electronic surveillance and physical search. These 
limitations, notice requirements, or suppression procedures, do not 
seem appropriate, given that requests for third party records are not 
nearly as invasive as the information obtained during a FISA electronic 
surveillance or physical search.
    The Committee does believe, however, that certain 
modifications to the FISA business record authority are 
warranted. These modifications (such as an explicit 
``relevance'' standard, tailored nondisclosure exemptions, 
judicial review procedures, and specific reporting requirements 
for certain types of records) are contained in Section 211 of 
this bill. In addition, Section 217 of the legislation codifies 
current Government pleading practice by requiring that a FISA 
business records application provide ``an explanation . . . 
that supports the assertion'' that the information sought is 
relevant to a lawful investigation.

            FISA ``Significant Purpose''
    Section 218 of the USA PATRIOT Act is often credited as the 
provision that helped tear down the information sharing 
``walls'' that had developed over the years prior to September 
11, 2001, and separated intelligence agents from criminal 
agents and prosecutors. The original statutory text of the FISA 
required an official to certify that ``the purpose'' of the 
surveillance (or search) was to obtain foreign intelligence 
information. Section 218 amended that text to require a 
certification that ``a significant purpose'' of the 
surveillance (or search) is to obtain foreign intelligence 
information. This seemingly minor textual change set off a 
series of events that eventually led to the first, and only, 
decision by the Foreign Intelligence Surveillance Court of 
Review (Court of Review). See In re: Sealed Case, 310 F.3d 717 
(U.S. FISCR 2002).
    The reasoning of In re: Sealed Case provides a number of 
important insights into the FISA statute and process. First, 
the FISA, as passed by Congress in 1978, clearly did not 
preclude or limit the Government's use, or proposed use, of 
foreign intelligence information, which included evidence of 
certain kinds of criminal activity, in a criminal prosecution. 
See 310 F.3d at 727. The Court of Review reached this 
conclusion after conducting an in-depth review of the statute, 
legislative history, and relevant case law. See id. at 722-27. 
The Court of Review was puzzled that the DoJ, at some point 
during the 1980's, began to read the FISA as limiting its 
ability to obtain FISA orders if it intended to prosecute the 
targeted agents-even for foreign intelligence crimes. See id. 
at 723.
    Second, although the original FISA did not contemplate a 
``false dichotomy'' between intelligence and criminal 
investigations, the Court of Review opined that the USA PATRIOT 
Act's ``significant purpose'' and ``consultation'' amendments 
actually did--which had the ironic effect of making the ``false 
dichotomy'' true. See 310 F.3d at 735. In other words, Section 
218 tore down an imaginary ``wall'' that never actually 
existed, and, in its place, created an actual distinction 
between foreign intelligence and law enforcement that had never 
existed in the FISA. This created an ``analytic conundrum'' for 
the Court of Review: had Congress accepted the dichotomy 
between intelligence and law enforcement by adopting the 
``significant purpose'' test without also amending the 
definition of the term ``foreign intelligence information,'' 
which clearly includes evidence of foreign intelligence crimes? 
See id.
    To resolve this ``analytic conundrum,'' the Court of Review 
read the FISA statute to preclude the use of the FISA as a 
collection tool if the sole objective of such collection was 
criminal prosecution. In other words, so long as the Government 
entertains a realistic option of dealing with the target other 
than through criminal prosecution, it satisfies the 
``significant purpose'' test. See 310 F.3d at 735. In its 
consideration of this issue, the Court of Review stated that 
the FISA process should not be used as a device to investigate 
ordinary crimes wholly unrelated to foreign intelligence crimes 
such as international terrorism, espionage, sabotage, and other 
hostile acts that threaten national security. However, the 
Court of Review recognized that sometimes even ordinary crimes 
might be inextricably intertwined with foreign intelligence 
crimes, such as when a terrorist engages in bank robberies to 
finance the manufacture of a bomb. See id. at 736.
    To resolve whether a required non-prosecutorial purpose 
exists, the Court of Review clarified that the Government's 
purpose as set forth in a FISA application certification is to 
be judged by the national security official's articulation and 
not by a FISC inquiry into the origins of the investigation or 
an examination of the ``types'' of personnel involved. If the 
FISC has reason to doubt that the Government has any real non-
prosecutorial purpose in seeking foreign intelligence 
information with a FISA surveillance or search, it can demand 
further inquiry into the certifying officer's purpose, or 
perhaps even the Attorney General's or Deputy Attorney 
General's reasons for approving the application. See 310 F.3d 
at 736.
    This reasoning led the Court of Review to find that the 
FISC erred when it took portions of the Attorney General's 
augmented 1995 procedures--modified to incorporate the 
``significant purpose'' standard in Section 218 of the USA 
PATRIOT Act--and imposed them generically as minimization 
procedures. See 310 F.3d at 730. The FISC's decision and order 
not only misinterpreted and misapplied minimization procedures 
it was entitled to impose, but may well have exceeded the 
constitutional bounds that restrict an Article III court when 
the FISC attempted to place limits and restrictions on the 
internal organization and investigative procedures of the DoJ. 
See id. at 731. The Court of Review also found that the FISC's 
refusal to consider the legal significance of the USA PATRIOT 
Act's crucial amendments was erroneous. See id. at 732. The 
practical impact of the Court of Review's decision was to 
remove the ``walls'' that had developed over the years that 
separated intelligence agents from criminal agents and 
prosecutors. Unfortunately, the Court of Review opinion could 
also be read to put in place a different kind of ``wall''--one 
that actually exists.
    As it relates to the historic discussion of the FISA 
statute and the approval of the Attorney General's augmented 
FISA procedures, the Committee explicitly endorses the Court of 
Review's decision. The Committee, however, is very concerned 
with one aspect of the opinion, and inSection 202 of this bill 
takes action to explicitly correct the potential negative ramifications 
of certain dicta in the Court of Review opinion. After finding that the 
USA PATRIOT Act's ``significant purpose'' and ``consultation'' 
amendments had the ironic effect of creating a ``false dichotomy'' 
where none previously existed, the Court of Review stated:

        Of course if the [FISC] concluded that the government's 
        sole objective was merely to gain evidence of past 
        criminal conduct--even foreign intelligence crimes--to 
        punish the agent rather than halt ongoing espionage or 
        terrorist activity, the application should be denied.

310 F.3d at 735. This reasoning has been cited in subsequent 
decisions. See American Civil Liberties Union v. U.S. Dep't of 
Justice, 265 F.Supp. 2d 20, 32 n.12 (D.D.C. 2003), United 
States v. Sattar, 2003 WL 22137012, 12 (S.D.N.Y. 2003) 
(unpublished opinion). If permanent authorization of the 
``significant purpose'' amendment in Section 218 of the USA 
PATRIOT Act would create a ``false dichotomy'' between foreign 
intelligence and law enforcement, the Committee cannot accept 
that outcome. Rather, the permanent authorization of Section 
218 is intended to ensure that the ``walls'' are never rebuilt, 
and that the FISA may be used to gain evidence to prosecute 
targets for their past or future criminal conduct involving a 
``foreign intelligence crime,'' as that term was defined by the 
Court of Review in In re: Sealed Case. See 310 F.3d at 723. 
Simply put, evidence of a crime related to sabotage, 
international terrorism, clandestine intelligence activities, 
or other foreign intelligence crimes (including evidence of an 
ordinary crime ``inextricably intertwined'' with a foreign 
intelligence crime), is a wholly-included subset of the term 
``foreign intelligence information.''
    It is perfectly permissible under the FISA to conduct 
electronic surveillance or a physical search when the intent of 
the collection is the protection of national security by 
criminal prosecution of any foreign intelligence crime the 
target may have committed or intends to commit. Thus, if the 
Government intends to prosecute a suspected spy from the moment 
it begins its espionage investigation of the target, the 
Government may appropriately seek a FISA order. If a terrorist 
is engaging in cigarette smuggling to raise funds for a 
terrorist group, and the Government intends to prosecute the 
target for cigarette smuggling, the Government may 
appropriately seek a FISA order because such criminal activity 
is inextricably intertwined with a foreign intelligence crime. 
It would not be a permissible use of FISA surveillance or 
search authority, however, if the Government's sole purpose was 
the criminal prosecution of the target for an ordinary or non-
foreign intelligence crime. Under such circumstances, the 
Government would have to seek a criminal search warrant or 
electronic surveillance order. Regardless, if the certifying 
official could certify that a significant purpose of the 
surveillance or physical search is to obtain foreign 
intelligence information about the target's international 
terrorism or clandestine intelligence activities, then any 
incidental collection of non-foreign intelligence criminal 
activity would be proper.
    To further ensure that the ``false dichotomy'' is 
eliminated and the statutory question of purpose is resolved in 
favor of keeping any ``walls'' that may have existed from being 
rebuilt, Section 202 of this bill amends the FISA definition of 
``foreign intelligence information'' to authorize the use of 
law enforcement methods, including prosecution, when so doing 
would protect against specified national security threats.

            Civil Immunity
    Section 225 of the USA PATRIOT Act may be one of the least 
controversial of the provisions subject to sunset. The 
provision provides immunity from civil liability to any 
provider of a wire or 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 FISA court order or request for emergency 
assistance under the FISA. The DoJ noted that this provision 
was modeled on the immunity provision which protects those 
persons or entities who assist the Government in carrying out 
criminal investigative wiretaps. See 18 U.S.C. 2511(2)(a)(ii). 
Section 225 is important because it helps secure the prompt 
cooperation of private parties with the Intelligence Community 
to ensure the effective implementation of FISA orders. The 
Committee received no criticism of Section 225 during its 
review of the FISA process and the USA PATRIOT Act provisions 
subject to sunset.

Section 102. Extension of sunset of treatment of individual terrorists 
        as agents of foreign powers

    Section 6001 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 amended the FISA by expanding the 
definition of an ``agent of a foreign power'' to include any 
person, other than a United States person, who ``engages in 
international terrorism or activities in preparation 
therefor.'' This authority is sometimes referred to as the FISA 
``lone wolf '' provision. Section 6001 is scheduled to sunset 
on December 31, 2005. The Attorney General and the Director of 
the FBI have both requested that this provision be made 
permanent. Section 102 of this bill extends the sunset on 
Section 6001 until December 31, 2009.
    Since the FISA's enactment in 1978, the targets of 
intelligence collection and their means of communication have 
changed dramatically. Intelligence Community collection efforts 
are increasingly challenged by enhancements in communications 
technology and by the changing nature of intelligence targets. 
The FISA ``lone wolf'' provision permits the Government to 
apply for a FISA warrant to monitor a foreign person--i.e., not 
a citizen or lawful permanent resident of the United States--
who is engaged in or preparing to commit acts of international 
terrorism, even if it is not known whether the foreign person 
is connected to an international terrorist group engaged in or 
preparing to commit similar acts. If the FISC grants a FISA 
order, the Government will be able to monitor the activities of 
the foreign person via electronic surveillance or physical 
searches, as authorized by the FISA. The provision takes better 
account of current operational realities without damaging 
important privacy interests of U.S. persons.
    The Attorney General is required to report semiannually on 
the use of the FISA ``lone wolf '' provision. Since the 
Committee expects that this provision will be used 
infrequently, this reporting requirement will allow Congress to 
closely monitor the implementation of this provision. As the 
Committee has not yet received the initial report on this 
matter, it is appropriate to extend the sunset so that regular 
reporting can inform whether Congress should permanently 
authorize the provision.

          TITLE II--FOREIGN INTELLIGENCE SURVEILLANCE MATTERS

                    Subtitle A--Definitional Matters


Section 201. Clarification of contents of communications for purposes 
        of Foreign Intelligence Surveillance Act of 1978

    Section 201 amends the definition of the term ``contents'' 
in the FISA to make it consistent with Supreme Court precedent 
and the definition of the same term in ``Title III'' (governing 
electronic surveillance in criminal investigations). Section 
201 is based upon a finding and recommendation of the staff 
FISA audit concerning the fact that the FISA uses two different 
definitions for the term ``contents.'' In the context of a FISA 
pen register or trap and trace device, the statute incorporates 
the definitions of the terms ``pen register'' and ``trap and 
trace device'' used in 18 U.S.C. 3127. In Section 3127, both 
the terms ``pen register'' and ``trap and trace device'' 
contain the term ``contents'' within their definitions. Section 
3127(1) incorporates the definition of ``contents'' from 18 
U.S.C. 2510. Section 2510(8) defines ``contents'' as follows: 
``when used with respect to any wire, oral, or electronic 
communication, includes any information concerning the 
substance, purport, or meaning of that communication.'' Thus, 
the term ``contents'' in the context of FISA pen register and 
trap and trace orders is identical to that used for criminal 
pen registers and trap and trace devices, as that ``criminal'' 
definition is incorporated by reference.
    In the context of FISA electronic surveillance, however, 
the term ``contents'' differs from the Title III definition at 
18 U.S.C. 2510(8). The FISA defines ``contents'' with respect 
to electronic surveillance as follows: ``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.'' 50 U.S.C. 1801(n) (emphasis added). This 
language makes the FISA definition of contents considerably 
broader because it includes any information that would identify 
the parties to a communication or the mere existence of such 
communication. The Supreme Court has held that the installation 
and use of a pen register is not a search within the meaning of 
the Fourth Amendment, and hence no warrant is required. See 
Smith v. Maryland, 442 U.S. 735, 739-46 (1979). Thus, the FISA 
definition of contents is more restrictive than Smith v. 
Maryland because it includes the mere existence of, or identity 
of the parties to, a communication, even though the acquisition 
of that information would not be subject to the warrant 
requirement of the Fourth Amendment.
    The FISA legislative history explains that the reason for 
the broad phrasing of the ``contents'' definition was to ensure 
that the scope of the FISA was sufficient to protect legitimate 
privacy interests and so that pen register and trap and trace 
devices would be included within the definition of ``electronic 
surveillance.'' See H.R. Rep. No. 95-1283, at 67-68 (1978). In 
1998, when Congress added a separate subtitle within the FISA 
to authorize the use of pen registers and trap and trace 
devices consistent with Smith v. Maryland, it chose to 
incorporate the Title III definition of ``contents'' into that 
subtitle rather than modify the existing FISA definition. The 
legislative history is silent on why Congress took this 
approach. See H.R. Rep. No. 105-780, at 32 (1998). Section 201 
corrects this longstanding inconsistency by conforming the FISA 
definition of ``contents'' to that used in Title III.

Section 202. Clarification of foreign intelligence information for 
        purposes of Foreign Intelligence Surveillance Act of 1978

    Section 202 amends the FISA definition of ``foreign 
intelligence information'' to clarify that the term includes 
information that relates to the ability of the United States to 
protect against certain threats to the national security, 
including protection through the use of law enforcement methods 
such as criminal prosecution. The intent of this amendment is 
to ensure that the information sharing ``walls'' cannot be 
rebuilt and to clarify that Congress does not accept or intend 
to create the ``false dichotomy'' discussed in dicta by the 
Court of Review in In re: Sealed Case, 310 F.3d at 735.
    The misinterpretation and misapplication of the ``primary 
purpose'' test by the DoJ and the FISC in the decades preceding 
the Court of Review's decision had a very real and negative 
impact on the Intelligence Community's investigations, 
analyses, and operations. The Committee received testimony in 
all of its hearings that the bifurcation of national security 
investigations into their criminal and intelligence components 
prevented cooperation between intelligence and law enforcement 
officials engaged in investigations--even investigations of the 
same target and even though both groups were working to protect 
national security. The Committee also received testimony that 
the USA PATRIOT Act's removal of these information sharing 
``walls'' subsequent to the Court of Review opinion has allowed 
the Intelligence Community to better coordinate its 
investigations, analyses, and operations.
    The combined effect of Section 202's clarification of the 
definition of ``foreign intelligence information'' with the 
``significant purpose'' and ``consultation'' amendments of the 
USA PATRIOT Act should leave no doubt that national security 
investigations are hybrid investigations with fully integrated 
intelligence and law enforcement components. See 50 U.S.C. 
1804(a)(7)(B), 1806(k), and 1825(k). The FISA was designed, in 
part, to allow the Government to protect against the ``foreign 
intelligence crimes'' discussed by the Court of Review. See In 
re: Sealed Case, 310 F.3d at 723. The goal of Section 202 of 
this bill and Sections 218 and 504 of the USA PATRIOT Act is to 
ensure that the President is able to use all lawful means, 
including criminal prosecution, to prevent and neutralize 
threats to the national security. Simply put, Section 202 makes 
clear that collection of evidence via the FISA to protect 
national securitythrough the prosecution of a crime related to 
sabotage, international terrorism, clandestine intelligence activities, 
or other foreign intelligence crimes (including evidence of an ordinary 
crime ``inextricably intertwined'' with a foreign intelligence crime), 
is an appropriate use of the FISA electronic surveillance and physical 
search authorities.

                       Subtitle B--Other Matters


Section 211. Access to business records for investigations under 
        Foreign Intelligence Surveillance Act of 1978

    Section 215 of the USA PATRIOT Act (the FISA ``business 
records'' amendment) has been one of the most maligned 
provisions of that Act. This Committee received testimony 
during each of its three open hearings on the USA PATRIOT Act 
regarding the exercise/use of Section 215. All of the witnesses 
agreed that Section 215 should be reauthorized, but they 
differed as to the modifications that should be made to 
``improve'' the provision. Section 211 of this bill 
incorporates six modifications to the FISA business records 
provision that the Committee has found reasonable to address 
concerns that have been raised. Section 217 of the legislation 
makes an additional modification to codify existing Government 
pleading practice before the FISC.
    First, the Committee has clarified that ``relevance'' to an 
authorized investigation is the correct standard for issuing a 
FISA business records order, as opposed to the current, 
equivalent standard of ``for an investigation.''
    Second, FISA Section 501(a) (50 U.S.C. 1861(a)) contains 
the following redundant provision: ``provided that such 
investigation of a United States person is not conducted solely 
upon the basis of activities protected by the first amendment 
to the Constitution.'' Nearly identical text follows in the 
very next subsection that defines ``an investigation'' to mean 
that it cannot ``be conducted of a United States person solely 
upon the basis of activities protected by the first amendment 
to the Constitution of the United States.'' Compare 50 U.S.C. 
1861(a)(1) with 50 U.S.C. 1861(a)(2)(B). Section 211 corrects 
this redundancy by deleting the first provision. The 
elimination of this redundancy does not affect the existing 
(and continuing) prohibition against the initiation or conduct 
of an investigation (or the application for a FISA business 
records order) solely based on activities of a U.S. person that 
are protected by the First Amendment. See 50 U.S.C. 
1861(a)(2)(B).
    Third, Section 211 provides additional categories of 
individuals to whom the existence of a given FISA business 
record order may be disclosed. The current statutory limitation 
prohibits the recipient of a FISA business records order from 
disclosing to any other person that the FBI has sought or 
obtained such an order. The statute provides one exception to 
this prohibition--disclosure may be made only to those persons 
necessary to comply with the order. Section 211 provides two 
additional exceptions to this general rule. Under Section 211, 
the recipient may disclose the existence of the order to: (1) 
those persons to whom such disclosure is necessary to comply 
with the order; (2) an attorney for purposes of seeking legal 
advice (including legal assistance necessary to initiate and 
litigate judicial review of the order); or (3) other persons 
designated by the Director of the FBI or the designee of the 
Director. Should it become necessary for the recipient to 
disclose the matter beyond the one attorney permitted, the 
recipient, or the initial attorney, may seek approval from the 
Director of the FBI or the Director's designee to expand 
disclosure to other attorneys, paralegals, or staff necessary 
to respond to the order.
    Fourth, Section 211 requires the Attorney General to adopt 
minimization procedures governing the retention and 
dissemination of information acquired by the FBI through the 
FISA business records order process. These procedures will 
provide an additional safeguard to ensure that FISA business 
record orders, and the information obtained therefrom, are used 
appropriately.
    Fifth, Section 211 provides an explicit process for 
challenging a FISA business records order before the FISC. 
Following receipt of a FISA business records order, but before 
the return date specified, the person charged with production 
under the order may seek to modify or set aside the order. 
During this period, the recipient may also seek to modify or 
set aside the nondisclosure requirements normally applicable to 
such an order. Although proceedings before the FISC will be 
closed to the public (subject to the right of an open hearing 
in a criminal proceeding), the Government must request that the 
FISC review classified or other sensitive information ex parte 
and in camera--such review is not automatic. In addition, 
applying a standard similar to that found in Section 106(f) of 
the FISA (governing the disclosure of information to an 
aggrieved person), the FISC may disclose information reviewed 
ex parte and in camera to the person challenging the FISA 
business record order, under appropriate security procedures 
and protective orders, only when such disclosure is necessary 
for the FISC to make an accurate determination to modify or set 
aside the order. Under Section 211, the FISC may modify or set 
aside a FISA business record order if compliance would be 
unreasonable or oppressive, the same standard applicable to a 
grand jury subpoena under Federal Rule of Criminal Procedure 
17(c)(2). Section 211 also requires the FISC to adopt and 
publish procedures governing such challenges.
    Sixth, Section 211 amends the FISA business record 
authority by adding new reporting requirements. In addition to 
the total number of FISA business record orders and the total 
number of such orders either granted, modified, or denied, 
Section 211 also requires that the semiannual report include 
specific details about business record orders that involve the 
production of any tangible things related to: libraries or 
bookstores; the purchase of a firearm; health information; or 
certain tax information. The Committee believes that this 
oversight mechanism is preferable to other legislative 
approaches that would create ``safe havens'' or ``carve outs'' 
for certain classes of records, particularly when the 
Constitution does not require disparate treatment for those 
classes of records.

Section 212. National security mail covers

    The process by which national security investigators have 
obtained mail cover information has been governed by U.S. 
postal regulations for nearly 30 years. See 39 C.F.R. 233.3. 
The authority to use of mail covers for law enforcement 
purposes first appeared in the 1879 postal regulations. Section 
212 statutorily authorizes the continued use of mail covers in 
national security investigations. A ``mail cover'' is the 
process by which the U.S. Postal Service furnishes to the FBI 
the information appearing on the face of an envelope addressed 
to a particular address: i.e., addressee, postmark, name and 
address of sender (if it appears), and class of mail. The 
actual mail is delivered to the addressee and only the letter-
carrier's notation reaches the FBI. A mail cover does not 
include the contents of any ``sealed mail,'' as defined in 
existing U.S. postal regulations (see 39 C.F.R. 233.3(c)(3)) 
and incorporated in Section 212. Although the Supreme Court has 
not directly addressed the constitutionality of mail covers 
(the Court has denied certiorari in cases involving the issue), 
lower courts have uniformly upheld mail covers as consistent 
with the requirements of the Fourth Amendment. See Vreeken v. 
Davis, 718 F.2d 343 (10th Cir. 1983); United States v. DePoli, 
628 F.2d 779 (2d Cir. 1980); United States v. Huie, 593 F.2d 14 
(5th Cir. 1979); United States v. Choate, 576 F.2d 165 (9th 
Cir.), cert. denied, 439 U.S. 953 (1978).
    In a letter dated November 19, 2004, the Attorney General 
formally requested that the Postmaster General make certain 
modifications to those portions of the U.S. postal regulation 
governing national security mail covers. Those modifications 
were not made. The Committee addresses the concerns raised by 
the Attorney General in the November 19 letter with Section 
212.
    First, the standard for obtaining a national security mail 
cover is too vague. For a national security mail cover, the 
requesting authority must specify the reasonable grounds to 
demonstrate the mail cover is ``necessary to protect the 
national security.'' See 39 C.F.R. 233.3(e)(2)(i). This 
standard injects subjectivity where none is needed. Section 212 
resolves this problem by making the standard for obtaining a 
national security mail cover one of ``relevance'' to an 
authorized investigation to obtain foreign intelligence 
information not concerning a United States person or to protect 
against international terrorism or clandestine intelligence 
activities. This is the same relevance standard already in use 
for FISA pen register/trap and trace orders, FISA business 
record orders, ``national security letters,'' and (under 
Section 213 of this legislation) FISA administrative subpoenas.
    Second, the current approval level necessary to request a 
national security mail cover is too high. Under current 
regulation, requests for national security mail covers must be 
approved personally by the head of the law enforcement agency 
requesting the coverage or one designee at the agency's 
headquarters level. See 39 C.F.R. 233.3(g)(8). Conversely, 
requests for criminal mail covers need only be in writing and 
from any law enforcement agency. See 39 C.F.R. 233.3(e)(2). 
Section 212 resolves this problem by permitting mail cover 
requests to be made by the Director of the FBI, or a designee 
of the Director in a position not lower than Deputy Assistant 
Director at Bureau headquarters or Special Agent in Charge 
(including an ``acting'' Special Agent in Charge) in a Bureau 
field office. This delegation authority is consistent with the 
approval levels permitted in the context of ``national security 
letters.'' See, e.g., 18 U.S.C. 2709(b).
    Committee oversight has also revealed some longstanding 
issues with the manner in which national security mail covers 
are processed. Current regulations leave the decision on 
whether a mail cover should be issued or renewed to the 
discretion of the U.S. Postal Service. Over the years and on a 
number of occasions, the U.S. Postal Inspection Service has 
unilaterally decided to discontinue the use of the mail cover 
technique in certain FBI national security investigations. On 
some occasions, the FBI was asked to provide additional 
information justifying the continuance of the mail cover 
technique in these investigations. Section 212 resolves this 
issue by making U.S. Postal Service compliance with a properly 
formatted national security mail cover request compulsory. The 
Committee does not believe that it is appropriate for the U.S. 
Postal Service to substitute its judgment for that of the FBI 
in the context of national security investigations.
    In addition to these investigative concerns, the Committee 
has included in Section 212 safeguards for privacy and civil 
liberties that do not exist in current regulations. These 
safeguards include regulating information collection, requiring 
minimization procedures, protecting against unauthorized 
disclosure of the requests, and ensuring Congressional 
oversight of the investigative technique. A new Section 702(e) 
of the FISA directs the Attorney General to adopt minimization 
procedures governing the retention and dissemination of any 
records received by the FBI in response to a mail cover 
request. A new Section 702(f) of the FISA permits the U.S. 
Postal Service to make reasonable disclosures of FBI national 
security mail cover requests to U.S. Postal Service personnel 
when necessary to ensure compliance with the FBI requests. 
Finally, a new Section 703 of the FISA requires the Attorney 
General to provide semiannual reports that keep Congress fully 
and currently informed of the quantity and uses of national 
security mail covers.
    Section 212, in a technical modification, also removes from 
the FISA an ``effective date'' title (currently Title VII of 
the FISA). All matters addressed by the ``effective date'' 
provision have come to fruition, and this amendment will have 
no substantive effect on any current FISA operations or 
proceedings.

Section 213. Administrative subpoenas in national security 
        investigations

    Section 213 authorizes the FBI to issue administrative 
subpoenas to provide timely access to records that are relevant 
to authorized investigations to protect against international 
terrorism and espionage or to obtain foreign intelligence 
information not concerning United States persons.

            Administrative Subpoenas: In General
    To gain access to records that are relevant to law 
enforcement investigations of criminal activity, the DoJ and 
the FBI have long utilized grand jury subpoenas (Fed. R. Crim. 
P. 17) and more recently, with respect to particular crimes, 
administrative subpoenas (see, e.g., 18 U.S.C. 3486 
(authorizing administrative subpoenas for, inter alia, criminal 
investigations of health care fraud and sexual exploitation or 
abuse of children); 21 U.S.C. 876 (authorizing administrative 
subpoenas in controlled substance investigations); 31 U.S.C. 
3733 (authorizing administrative subpoenas to investigate false 
claims against the Government)). See Graham Hughes, 
``Administrative Subpoenas and the Grand Jury: Converging 
Streams of Criminal and Civil Compulsory Process,'' 47 Vand. L. 
Rev. 573 (1994). The grand jury subpoena and administrative 
subpoena are similar investigative tools, permitting access to 
information or testimony relevant to an investigation without 
the prior approval of a judge. A grand jury subpoena is issued 
by a federal prosecutor. See Doe v. DiGenova, 779 F.2d 74, 80 
n.11 (D.C. Cir. 1985) (``[A] grand jury subpoena gets its name 
from the intended use of the . . . evidence, not from the 
source of its issuance.''). Administrative subpoenas are issued 
by an authorized official of the investigating agency. Judicial 
review of both grand jury and administrative subpoenas occur 
after-the-fact, and only if the recipient challenges the 
subpoena in court.
    The use of administrative subpoenas has been upheld by the 
Supreme Court. Federal courts have enforced administrative 
subpoenas so long as the documents requested are relevant to an 
authorized investigation and the issuance of the subpoena meets 
the ``reasonableness'' requirements of the Fourth Amendment. 
See, e.g., United States v. LaSalle Nat'l Bank, 437 U.S. 298, 
313 (1978) (requiring that information sought be relevant to a 
lawfully authorized inquiry); Oklahoma Press Publishing Co. v. 
Walling, 327 U.S. 186, 209 (1946) (holding that the 
requirements of the Fourth Amendment are satisfied if an 
administrative subpoena seeks information relevant to an 
investigation authorized by Congress and is ``reasonable'' in 
scope); see also, e.g., United States v. Powell, 379 U.S. 48 
(1964). A finding of ``probable cause'' is not necessary to 
support the issuance of an administrative subpoena because 
Executive branch agencies may utilize the subpoenas only when 
authorized by Congress to support a lawful investigation and 
only to procure information relevant to that authorized 
investigation. See Oklahoma Press Publishing Co., 327 U.S. at 
209; see also Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984).
    Administrative subpoenas have been utilized by many 
departments and agencies of the Executive branch to implement 
and enforce regulatory policies. According to the DoJ Report to 
Congress on the Use of Administrative Subpoena Authorities by 
Executive Branch Agencies and Entities (May 13, 2002) 
(hereinafter, ``Administrative Subpoena Report''), there are 
``approximately 335 existing administrative subpoena 
authorities held by various executive branch entities under 
current law.'' See Administrative Subpoena Report at 5. For 
example, the Inspector General Act of 1978 (5 U.S.C. App. 
6(a)(4)) authorizes agency Inspectors General to issue 
judicially enforceable administrative subpoenas for certain 
information necessary for the performance of their functions 
(including investigations of possible criminal violations). 
Section 104(e) of the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) (42 U.S.C. 9604(e)) 
authorizes administrative subpoenas to aid in the enforcement 
of environmental laws. The Secretary of Labor can issue an 
administrative subpoena to investigate, among other things, a 
violation, or potential violation, of the Employee Retirement 
and Income Security Act (ERISA) of 1974. See 29 U.S.C. 1134. 
The Federal Maritime Commission may issue administrative 
subpoenas to enforce the provisions of the Foreign Shipping 
Practices Act. See 46 U.S.C. App. 1710a. These are only a few 
of the administrative subpoenas authorized for ``regulatory'' 
investigations.
    National security investigators have several different 
tools to obtain information relevant to terrorism, espionage, 
and other national security investigations; each of these tools 
suffers from inherent limitations, however. The primary tool 
utilized by the FBI to obtain information relevant to national 
security investigations is a ``national security letter.'' 
Using ``national security letters,'' the FBI may request 
certain communication service provider records (18 U.S.C. 
2709), financial institution customer records (12 U.S.C. 3414); 
financial information, financial records, and consumer reports 
(50 U.S.C. 436); credit agency consumer records for 
counterterrorism investigations (15 U.S.C. 1681v); and certain 
financial information and consumer reports (15 U.S.C. 1681u). 
The records requested through ``national security letters'' do 
not cover all categories of information that may be relevant to 
an international terrorism, espionage, or other national 
security investigation. Moreover, while compliance with these 
``national security letters'' is mandatory, the letters lack an 
explicit enforcement mechanism. If a recipient chooses not to 
comply, the FBI has little, if any, recourse to enforce 
compliance. Although useful investigative tools, the 
effectiveness of ``national security letters'' is hindered by 
their limited reach and lack of an explicit judicial 
enforcement mechanism.
    The FBI may also utilize a FISA business records order to 
access ``any tangible things'' relevant to an investigation to 
obtain foreign intelligence information not concerning a U.S. 
person or to protect against international terrorism or 
clandestine intelligence activities. See 50 U.S.C. 1861. 
Although the FISA business records order may be used to access 
``any tangible thing'' and does not have the scope limitations 
associated with ``national security letters,'' the FBI can 
obtain information with a FISA business records order only 
after an extensive application and approval process through the 
FBI, the DoJ, and the FISC. On the other hand, a federal 
prosecutor need only sign and issue a grand jury subpoena to 
obtain similar documents in criminal investigations, yet 
national security investigators have no similar investigative 
tool. In addition to bureaucratic inefficiencies that delayed 
for over two years the implementation of the amendments made to 
the FISA by Section 215 of the USA PATRIOT Act, the Committee 
has noted that the inability to quickly access records has 
limited the usefulness of the FISA business records order.
    In a speech before the FBI Academy in Quantico, Virginia, 
on September 10, 2003--two years after the terrorist attacks of 
September 11, 2001--the President called on Congress to grant 
the FBI the authority to issue administrative subpoenas for 
terrorism investigations:

          Under current federal law, there are unreasonable 
        obstacles to investigating and prosecuting terrorism, 
        obstacles that don't exist when law enforcement 
        officials are going after embezzlers or drug 
        traffickers. For the sake of the American people, 
        Congress should change the law, and give law 
        enforcement officials the same tools they have to fight 
        terror that they have to fight other crime.
          Here's some examples. Administrative subpoenas, which 
        enable law enforcement officials to obtain certain 
        records quickly, are critical to many investigations. 
        They're used in a wide range of criminal and civil 
        matters, including health care fraud and child abuse 
        cases. Yet, incredibly enough, in terrorism cases, 
        where speed is often of the essence, officials lack the 
        authority to use administrative subpoenas. If we can 
        use these subpoenas to catch crooked doctors, the 
        Congress should allow law enforcement officials to use 
        them in catching terrorists.

In an April 27, 2005, hearing before this Committee, both the 
Attorney General and the Director of the FBI reiterated the 
Administration's support for administrative subpoena authority 
to fight national security threats such as terrorism. DoJ 
officials have testified on several occasions before the Senate 
on the need for administrative subpoenas to support terrorism 
and other national security investigations. See A Review of the 
Tools to Fight Terrorism Act, 108th Cong., 2d Sess. (Sept. 13, 
2004) (Joint Testimony of Daniel J. Bryant, Assistant Attorney 
General, Office of Legal Policy, U.S. Department of Justice, 
and Barry Sabin, Chief, Counterterrorism Section, Criminal 
Division, U.S. Department of Justice); Tools to Fight 
Terrorism: Subpoena Authority and Pretrial Detention of 
Terrorists, 108th Cong., 2d Sess. (June 22, 2004) (statement of 
Rachel Brand, Principal Deputy Assistant Attorney General, U.S. 
Department of Justice).

            Authorized National Security Investigations
    Section 213 provides the Attorney General with the 
administrative subpoena authority necessary to provide timely 
access to records or other materials that are relevant to 
authorized investigations to obtain foreign intelligence 
information not concerning U.S. persons or to protect against 
international terrorism and clandestine intelligence 
activities. The Attorney General may delegate the authority 
only to certain senior national security officials (a DoJ 
official with responsibilities for national security 
investigations not lower than an Assistant Attorney General, a 
United States Attorney, an Assistant United States Attorney 
with responsibility for national security investigations, the 
Director of the FBI, an FBI official not lower than a Deputy 
Assistant Director at Bureau headquarters, or a Special Agent 
in Charge (including an ``acting'' Special Agent in Charge) of 
an FBI field office). The administrative subpoena--a tool 
equivalent to the grand jury subpoena--may be used to further 
intelligence investigations of terrorists, spies, and other 
national security threats. The subpoena may be used only during 
the course of a lawful investigation authorized under the 
Attorney General's Guidelines for FBI National Security 
Investigations and Foreign Intelligence Collection (including 
the Executive Order 12333 limitation that foreign intelligence 
collection may not be undertaken for the purpose of acquiring 
information concerning the domestic activities of United States 
persons). Section 213 also expressly prohibits use of the 
administrative subpoena authority if an investigation of a 
United States person is based solely upon activities protected 
by the First Amendment. The administrative subpoena may not be 
used during the course of criminal investigations unrelated to 
international terrorism, clandestine intelligence activities, 
or the collection of foreign intelligence concerning non-United 
States persons. Any documentary evidence sought by the 
administrative subpoena will not be subject to disclosure if 
the information would be considered ``privileged'' if demanded 
by a subpoena duces tecum issued by a Federal court in aid of a 
grand jury investigation of espionage or international 
terrorism. A recipient that complies in good faith with an 
administrative subpoena under Section 213 is granted immunity 
from civil liability.

            Nondisclosure Requirements
    Although Section 213 provides authority to prohibit the 
disclosure of information concerning the issuance of the 
administrative subpoena, the nondisclosure requirements are not 
mandatory or automatic. To subject the administrative subpoena 
to limitations on disclosure, the Attorney General or the 
issuing designee must certify that a danger to the national 
security may result from the public disclosure of the fact that 
a person has received a subpoena or that records were provided 
pursuant to such subpoena. If the nondisclosure requirements 
are applicable, a recipient may still disclose information 
concerning the subpoena to those persons to whom disclosure is 
necessary to comply with the subpoena, to an attorney for 
purposes of seeking legal advice (including legal assistance 
necessary to initiate and litigate judicial review of the 
subpoena), or to other persons designated by the Attorney 
General or the issuing designee. Should it become necessary for 
the recipient to disclose the matter beyond the one attorney 
permitted, the recipient, or the initial attorney, may seek 
approval from the Attorney General, or from the Attorney 
General's designee who issued the original administrative 
subpoena, to expand disclosure to other attorneys, paralegals, 
or staff necessary to resolve the matter.
    If the Attorney General or the issuing designee determines 
that nondisclosure is no longer justified by a danger to 
national security, the recipient must be so notified. The 
requirement to examine the applicability of nondisclosure 
requirements under the statute is continuing. Issuing officials 
should monitor closely the status of the underlying 
investigation to ensure that disclosure would still result in a 
danger to national security. Nondisclosure requirements should 
not go stale because the need for such requirements has not 
been consistently and regularly examined. A formal review of 
the continuing applicability of nondisclosure requirements to 
issued subpoenas should occur at least every five years and be 
conducted by a senior official at the DoJ or the FBI.
    During the course of a judicial review to modify or set 
aside an administrative subpoena, recipients may also challenge 
the applicability of nondisclosure requirements. If a recipient 
challenges the nondisclosure requirements, the Attorney General 
or the Director of the FBI mustcertify to the reviewing court 
that disclosure may still result in a danger to national security. The 
judicial review certification by the Attorney General or the Director 
of the FBI is not delegable.

            Enforcement and Judicial Review
    Section 213 is consistent with judicial precedent regarding 
the issuance of administrative subpoenas and provides 
protections for privacy and civil liberties through enforcement 
and judicial review procedures, mandated Attorney General 
guidelines governing use, and required Attorney General-
approved minimization procedures.
    Under Section 213, the Attorney General, or his designees, 
may issue an administrative subpoena only to obtain information 
relevant to a lawful, authorized investigation of specified 
matters. See Oklahoma Press Publishing Co., 327 U.S. at 209. 
While the administrative subpoena may require the production of 
any records or materials and may require a certification by the 
custodian concerning the production of the records or other 
materials sought, the administrative subpoena cannot mandate 
testimony by any individual.
    If a recipient refuses to comply with an administrative 
subpoena, the Attorney General may enforce the subpoena only 
through proceedings before a Federal district court or the 
FISC. A decision by the DoJ to seek judicial enforcement of an 
administrative subpoena should not be made lightly. As the DoJ 
explained in the Administrative Subpoena Report:

        Where an agency requests the assistance of the Attorney 
        General through the United States Attorney's office to 
        seek enforcement of an administrative subpoena in 
        federal district court, the United States Attorney's 
        office plays a role that is more than ministerial, 
        exercising discretion in determining whether to seek 
        enforcement by a court. In evaluating such requests, 
        the United States Attorney's office evaluates the 
        subpoena issued by the agency to determine whether the 
        scope of the request is in keeping with the agency's 
        statutory authority and the agency has followed proper 
        procedures in issuing the subpoena.

Administrative Subpoena Report at 10 (citing United States 
Attorneys Manual, 4-6.210 C). The Committee expects that this 
review, done in a timely fashion, will continue to play a 
crucial role in the proper and judicious use of administrative 
subpoenas under Section 213.
    The judicial review provisions in Section 213 also provide 
an important check on the authority of the Executive branch. 
Under Section 213, any recipient of an administrative subpoena 
may challenge the issuance in a local Federal district court or 
before the FISC. As the Third Circuit noted in Wearly v. FTC, 
``the district court's role [in reviewing an administrative 
subpoena] is not that of a mere rubber stamp, but of an 
independent reviewing authority called upon to insure the 
integrity of the proceeding.'' Wearly, 616 F.2d 662, 665 (3rd 
Cir., 1980); see also United States v. Security State Bank and 
Trust, 473 F.2d 638, 641-42 (5th Cir. 1973) (noting that a 
statutory ``system of judicial enforcement [provides] a 
meaningful day in court for one resisting an administrative 
subpoena''). Under Section 213, a court may modify or set aside 
an administrative subpoena if compliance would be unreasonable 
or oppressive, the same standard applicable to a grand jury 
subpoena under Federal Rule of Criminal Procedure 17(c)(2). 
Before setting an administrative subpoena aside and, thereby, 
depriving the Government of information needed to protect 
national security, the overriding role of the court should be 
modification of that subpoena to address any unreasonable or 
oppressive elements of the request.

            Congressional Oversight and Reporting Obligations
    The Committee will vigorously oversee and closely monitor 
the use of the administrative subpoena authority provided by 
Section 213. To support this oversight, Section 213 contains an 
extensive and detailed semiannual reporting requirement. The 
DoJ will be required to notify the Committee every six months 
regarding the number of administrative subpoenas issued, the 
total number of times a nondisclosure certification has been 
made, the number of judicial review proceedings initiated by 
recipients, the total number of administrative subpoenas 
modified or set aside by courts, and the total number of 
administrative subpoenas used to gain access to sensitive 
information from libraries or booksellers, information 
regarding the purchase of a firearm, health information, or 
certain tax information. The Committee will also closely 
monitor the implementing guidelines issued by the Attorney 
General, in consultation with the Director of the FBI, and the 
minimization procedures approved by the Attorney General.

            ``National Security Letters'' and FISA Business Records 
                    Orders
    The Attorney General, in consultation with the Director of 
the FBI, is required to issue guidelines to implement the 
authority provided in Section 213 within six months of 
enactment of this legislation. Within six months of the 
issuance of such guidelines, the FBI must stop using certain 
specified investigative techniques--specifically, five 
``national security letter'' authorities--in recognition of the 
similar authority provided in Section 213--and based on the 
additional protections for privacy and civil liberties 
expressly provided in Section 213. In addition, within one year 
of enactment, the Attorney General and the Director of National 
Intelligence must report to Congress regarding the continuing 
need for ``national security letters'' and FISA business 
records orders as investigative tools given the administrative 
subpoena authority provided by Section 213.

            Sunset Provision
    The administrative subpoena provision in Section 213 is 
subject to a sunset provision. On December 31, 2009, without 
further legislative action, the authority will expire. The 
sunset provision will give Congress the opportunity to revisit 
the manner in which the DoJ and the FBI have used the 
administrative subpoena authority established by Section 213, 
before Congress must act to authorize the investigative tool 
again.

Section 214. Modification of semiannual report requirement on 
        activities under Foreign Intelligence Surveillance Act of 1978

    Section 214 removes from Section 108(a)(2)(A) of the FISA 
(50 U.S.C. 1808(a)(2)(A)) a reporting requirement that is 
virtually impossible for the Attorney General to administer, 
because the FBI has significantly increased dissemination of 
foreign intelligence information to national security 
officials, including those in law enforcement positions. When 
the USA PATRIOT Act tore down the ``walls'' that prevented the 
sharing of FISA-derived foreign intelligence information with 
law enforcement officials (see discussion, supra, of Section 
101 and 202), the Attorney General issued new procedures 
governing the minimization and dissemination of such 
information. These procedures, issued on March 6, 2002, ``were 
designed to permit the complete exchange of information and 
advice between intelligence and law enforcement officials.'' 
See In re: Sealed Case, 310 F.3d at 729. These procedures were 
approved by the Court of Review on November 18, 2002. See id. 
at 746. Given Congressional intent to support increased 
information access and the judicially-approved Attorney General 
mandate to share FISA-derived foreign intelligence information, 
it is unreasonable to expect the Attorney General to continue 
attempts to comply with this reporting requirement. The 
Committee, however, maintains an existing FISA semiannual 
report that requires a description of ``each criminal case in 
which information acquired under [FISA] has been authorized for 
use at trial during such reporting period.'' See 50 U.S.C. 
1808(a)(2)(B). The Committee appreciates the specificity of 
current DoJ reporting of ``each criminal case'' in which FISA 
information has been authorized for use. The Committee expects 
that the current level of specific reporting will continue.

Section 215. Authority for disclosure of additional information in 
        connection with orders for pen registers or trap and trace 
        devices under Foreign Intelligence Surveillance Act of 1978

    Section 215 authorizes the FISC to issue FISA pen register/
trap and trace orders that also provide the Government 
subscriber information on the service targeted for surveillance 
and certain limited subscriber information associated with 
routing information captured by the surveillance devices.
    During the staff FISA audit, the Committee found that FISA 
pen register/trap and trace orders were being underutilized for 
two reasons. First, FBI and DoJ bureaucratic delays in 
processing FISA pen register/trap and trace applications 
depress demand for the investigative tool. The FBI reported 
that it often takes as long to get a FISA pen register/trap and 
trace order as it does to get a ``full content'' FISA 
electronic surveillance order. By comparison, a criminal pen 
register/trap and trace order can usually be obtained on the 
same day it is requested. Second, FISA pen register/trap and 
trace orders are a less effective tool than the criminal law 
equivalent because--at least until fairly recently--
investigators could obtain more information from the criminal 
pen register/trap and trace order. When a federal court issues 
a criminal pen register/trap and trace order, the court also 
has the authority under 18 U.S.C. 2703(d) to routinely require 
that the service provider furnish subscriber information for 
the captured numbers or e-mail addresses that are in its 
possession. The FISA pen register/trap and trace provision does 
not contain language that would permit the FISC to issue 
similar orders. Thus, the FBI is forced to use ``national 
security letter'' authority under 18 U.S.C. 2709 to obtain the 
same information. Unfortunately, the ``national security 
letter'' does not permit access to this customer/subscriber 
information in a timely fashion. The OIPR has found an 
intermediate solution to this problem by coupling a FISA 
business record order for subscriber records with a FISA pen 
register/trap and trace order.
    Section 215 resolves this issue by authorizing the FISC to 
issue pen register/trap and trace orders that require a service 
provider to furnish certain subscriber information on the 
service targeted for surveillance and, if available, specified 
information concerning the subscriber accounts making incoming 
and outgoing communications on the targeted line. This 
provision is modeled on 18 U.S.C. 2703(c)(2) and (d).

Section 216. Surveillance of certain non-United States persons under 
        Foreign Intelligence Surveillance Act of 1978.

    Section 216 increases the maximum duration of a FISA 
electronic surveillance or physical search of a non-U.S. person 
agent of a foreign power who knowingly aids, abets, or 
conspires with any member of a group engaged in international 
terrorism. Under present law, such targets must be pled under 
the FISA ``any person'' standard and the duration of the 
initial search or surveillance cannot exceed 90 days and may 
only be renewed in 90-day increments. See 50 U.S.C. 1805(e) and 
1824(d). This amendment would permit the Government to obtain 
initial electronic surveillance or physical search authority 
for 120 days on such non-U.S. persons, which then could be 
renewed for periods up to one year. This provision is a modest 
expansion of the improvements made by Section 207 of the USA 
PATRIOT Act, which increased the maximum duration of FISA 
electronic surveillance and physical search orders directed 
against non-U.S. person members of international terrorist 
groups or officers or employees of foreign powers.
    Section 216 also increases the maximum duration of FISA 
orders for pen registers and trap and trace devices. Under 
present law, pen register/trap and trace orders can be 
initiated for a 90-day period and renewed only for an 
additional 90 days. Section 216 makes the order durations for a 
pen register/trap and trace device consistent with those for 
electronic surveillance and physical search. Thus, when an 
applicant certifies that the pen register/trap and trace device 
will likely obtain foreign intelligence information concerning 
a foreign power (as defined in paragraph (1), (2), or (3) of 
section 101(a)), the FISC may issue the first order for a 
period up to one year and authorize renewal periods of up to 
one year. When an applicant certifies that the pen register/
trap and trace device will likely obtain foreign intelligence 
information concerning an agent of a foreign power (as defined 
in section 101(b)(1)(A)), the order may be initiated for up to 
120 days and renewed for periods up to one year. All other FISA 
pen register/trap and trace orders may be initiated for up to 
90 days and must still be renewed in 90-day increments.
    The DoJ estimates that Section 207 of the USA PATRIOT Act 
has saved nearly 60,000 attorney hours. Put another way, 
Section 207 of that Act saved 30 lawyers a year's worth of 
work--and this estimate does not account for time saved by FBI 
agents, administrative staff, and the judiciary.
    Section 216 would allow the DoJ and the FISC to focus more 
oversight scrutiny on applications for surveillance and 
physical search of U.S. persons. The section would also allow 
intelligence officials to spend more time investigating 
potential terrorist or espionage activity by non-U.S. persons, 
rather than wasting valuable time returning to the FISC to 
extend surveillance of foreign powers and agents of foreign 
powers that had already been authorized by the court.

Section 217. Additional information in applications for orders for pen 
        registers and trap and trace devices and business records under 
        Foreign Intelligence Surveillance Act of 1978

    Section 217 codifies existing Government pleading practice 
before the FISC in applications for FISA pen register/trap and 
trace and business record orders. Some commentators have argued 
that Section 214 (pen register/trap and trace) and Section 215 
(business records) of the USA PATRIOT Act deprive the FISC of 
discretion to deny a Government application for a FISA pen 
register/trap and trace or business record order. These 
commentators have expressed particular concern that the 
application requirements for FISA pen register/trap and trace 
and business record orders contain no required factual showing 
demonstrating how the information sought under such orders is 
relevant to a lawful investigation. Based on the staff FISA 
audit and a review of FISA applications for pen register/trap 
and trace and business record orders, it is apparent that the 
Government currently provides in its applications a factual 
predicate for the FISC to make a determination of relevance. In 
order to codify existing practice, Section 217 amends the FISA 
to require that applications for both pen register/trap and 
trace and business record orders provide ``an explanation . . . 
that supports the assertion of relevance'' required by the 
FISA. The Committee does not expect this amendment to change 
current practice. The ``explanation'' requirement should not 
require additional information to support an application beyond 
the short and concise description already provided by the 
Government in such applications.

Section 218. Form of semiannual reports on access to business records 
        under Foreign Intelligence Surveillance Act of 1978

    Section 218 amends the reporting requirement in Section 
502(b) of the FISA to encourage the submission of the report in 
unclassified form. The report may include a classified annex. 
The Committee encourages the Attorney General to include as 
much information as possible in the unclassified portions of 
this report, but recognizes that some information may provide 
information to terrorists, spies, and others that might 
threaten national security. The classified annex to this report 
should include any information the disclosure of which might 
threaten national security by providing information to the 
nation's enemies that would allow them to modify their 
activities to avoid detection.

Section 219. Report on voluntary disclosure of business records for 
        Foreign Intelligence Purposes

    Section 219 requires a one-time report from the Attorney 
General describing the policies and procedures applicable to 
the FBI's ability to request the voluntary disclosure of 
``tangible things'' that are relevant to investigations to 
protect against international terrorism and espionage or to 
obtain foreign intelligence information not concerning United 
States persons. The FBI has a number of formal investigative 
tools to obtain information relevant to lawful national 
security investigations (e.g., ``national security letters,'' 
FISA business records orders, grand jury subpoenas, and (under 
Section 213) administrative subpoenas). Often, however, a mere 
request for assistance is sufficient to gain access to 
information. Indeed, the assistance and awareness of the public 
has been termed the ``first line of defense'' against terrorism 
and other national security threats. Some have expressed 
concerns, however, that these ``requests'' might intimidate or 
coerce access to information that an individual otherwise may 
not have provided. The report required by this section is 
intended to provide a general overview of the FBI's practices 
and procedures relating to these ``requests,'' including the 
``general frequency'' of the requests and the ``general 
frequency'' that such requests are ``denied.'' The Committee 
does not expect specific numbers of occasions if that 
information is not readily available, but instead hopes to gain 
a better understanding of this process. The report should be 
submitted in unclassified form, but may include a classified 
annex.

                            COMMITTEE ACTION

Motion to close

    On May 26, 2005, on the motion of Chairman Roberts, by a 
vote of 9 ayes to 6 noes, the Committee voted to close the 
markup. The votes in person or by proxy were as follows: 
Chairman Roberts--aye; Senator Hatch--aye; Senator DeWine--aye; 
Senator Bond--aye; Senator Lott--aye; Senator Snowe--aye; 
Senator Hagel--aye; Senator Chambliss--aye; Vice Chairman 
Rockefeller--no; Senator Levin--no; Senator Feinstein--aye; 
Senator Wyden--no; Senator Bayh--no; Senator Mikulski--no; 
Senator Corzine--no.

Motion to report committee draft bill favorably subject to amendments

    On May 26, 2005, on the motion of Chairman Roberts and by a 
vote of 8 ayes and 7 noes, the Committee voted to report the 
bill favorably, subject to amendment. The votes in person or by 
proxy were as follows: Chairman Roberts--aye; Senator Hatch--
aye; Senator DeWine--aye; Senator Bond--aye; Senator Lott--aye; 
Senator Snowe--aye; Senator Hagel--aye; Senator Chambliss--aye; 
Vice Chairman Rockefeller--no; Senator Levin--no; Senator 
Feinstein--no; Senator Wyden--no; Senator Bayh--no; Senator 
Mikulski--no; Senator Corzine--no.

Amendments to committee draft bill

    On May 26, 2005, by a vote of 8 noes and 7 ayes, the 
Committee rejected an amendment by Senator Feinstein to add in 
the section of the bill on administrative subpoenas a 
requirement and procedures to limit their use to emergency 
circumstances and to require Department of Justice review and 
approval before their issuance. The votes in person or by proxy 
were as follows: Chairman Roberts--no; Senator Hatch--no; 
Senator DeWine--no; Senator Bond--no; Senator Lott--no; Senator 
Snowe--no; Senator Hagel--no; Senator Chambliss--no; Vice 
Chairman Rockefeller--aye; Senator Levin--aye; Senator 
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator 
Mikulski--aye; Senator Corzine--aye.
    On May 26, 2005, by a unanimous vote of 15 ayes, the 
Committee agreed to an amendment by Chairman Roberts to add in 
the section of the bill on administrative subpoenas a 
modification to provide the authority to the Attorney General 
instead of the Director of the Federal Bureau of Investigation, 
to permit certain delegations of the authority, to make certain 
technical modifications regarding compliance with an 
administrative subpoena, to modify the procedures for 
consideration of classified information during the course of 
judicial review of an administrative subpoena, to require the 
Attorney General instead of the Director of the Federal Bureau 
of Investigation to issue implementing guidelines, to limit the 
ability of the Federal Bureau of Investigation to utilize 
``national security letters'' six months after issuance of 
implementing guidelines, to require a report by the Attorney 
General and Director of National Intelligence on the continuing 
need for ``national security letters'' and for the authority 
provided by Title V of the Foreign Intelligence Surveillance 
Act of 1978 based on the authority to issue administrative 
subpoenas, and to subject the administrative subpoena authority 
to a ``sunset'' date of December 31, 2009, unless renewed. The 
votes in person or by proxy were as follows: Chairman Roberts--
aye; Senator Hatch--aye; Senator DeWine--aye; Senator Bond--
aye; Senator Lott--aye; Senator Snowe--aye; Senator Hagel--aye; 
Senator Chambliss--aye; Vice Chairman Rockefeller--aye; Senator 
Levin--aye; Senator Feinstein--aye; Senator Wyden--aye; Senator 
Bayh--aye; Senator Mikulski--aye; Senator Corzine--aye.
    On June 7, 2005, by a vote of 8 noes and 7 ayes, the 
Committee rejected an amendment by Senator Feinstein to delete 
Section 203 (now Section 202) of the bill. The votes in person 
or by proxy were as follows: Chairman Roberts--no; Senator 
Hatch--no; Senator DeWine--no; Senator Bond--no; Senator Lott--
no; Senator Snowe--no; Senator Hagel--no; Senator Chambliss--
no; Vice Chairman Rockefeller--aye; Senator Levin--aye; Senator 
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator 
Mikulski--aye; Senator Corzine--aye.
    On June 7, 2005, by a vote of 8 noes and 7 ayes, the 
Committee rejected an amendment by Vice Chairman Rockefeller to 
modify Title V of the Foreign Intelligence Surveillance Act of 
1978 to permit the Attorney General to require the production 
of business records under certain emergency situations without 
the approval of the Foreign Intelligence Surveillance Court, 
with a requirement that the request be presented to and 
approved by the Foreign Intelligence Surveillance Court as soon 
as practicable thereafter. The votes in person or by proxy were 
as follows: Chairman Roberts--no; Senator Hatch--no; Senator 
DeWine--no; Senator Bond--no; Senator Lott--no; Senator Snowe--
no; Senator Hagel--no; Senator Chambliss--no; Vice Chairman 
Rockefeller--aye; Senator Levin--aye; Senator Feinstein--aye; 
Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; 
Senator Corzine--aye.
    On June 7, 2005, by unanimous consent, the Committee 
adopted, on motion by Chairman Roberts, an amendment offered by 
Senator Levin to modify the standard of review applicable to 
the section of the bill concerning judicial review of 
administrative subpoenas. No Senator objected to this motion.
    On June 7, 2005, by unanimous consent, the Committee 
adopted, on motion by Chairman Roberts, an amendment offered by 
Senator Levin to modify the records subject to disclosure 
pursuant to an administrative subpoena. No Senator objected to 
this motion.
    On June 7, 2005, by a vote of 8 noes and 7 ayes, the 
Committee rejected an amendment by Senator Levin to modify the 
section of the bill on administrative subpoenas to require 
judicial review every 90 days of the decision to invoke the 
nondisclosure requirements applicable to administrative 
subpoenas. The votes in person or by proxy were as follows: 
Chairman Roberts--no; Senator Hatch--no; Senator DeWine--no; 
Senator Bond--no; Senator Lott--no; Senator Snowe--no; Senator 
Hagel--no; Senator Chambliss--no; Vice Chairman Rockefeller--
aye; Senator Levin--aye; Senator Feinstein--aye; Senator 
Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; Senator 
Corzine--aye.
    On June 7, 2005, by a vote of 8 noes and 7 ayes, the 
Committee rejected an amendment by Senator Levin to modify a 
portion of Title I of the Foreign Intelligence Surveillance Act 
of 1978 governing electronic surveillance orders of the Foreign 
Intelligence Surveillance Court to require that, under certain 
circumstances, such orders describe with sufficient specificity 
the target of the electronic surveillance. The votes in person 
or by proxy were as follows: Chairman Roberts--no; Senator 
Hatch--no; Senator DeWine--no; Senator Bond--no; Senator Lott--
no; Senator Snowe--no; Senator Hagel--no; Senator Chambliss--
no; Vice Chairman Rockefeller--aye; Senator Levin--aye; Senator 
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator 
Mikulski--aye; Senator Corzine--aye.
    On June 7, 2005, by a unanimous vote of 15 ayes, the 
Committee agreed to an amendment by Chairman Roberts, for 
himself and Vice Chairman Rockefeller, to modify Section 102 of 
the bill to extend for four years the ``sunset'' provision 
applicable to Section 6001 of the Intelligence Reform and 
Terrorism Prevention Act of 2004, to strike Section 201 of the 
bill in lieu of a modification to Section 216 of the bill, to 
add express procedures for judicial review before the Foreign 
Intelligence Surveillance Court of orders issued under Title V 
of the Foreign Intelligence Surveillance Act of 1978, to make 
certain technical modifications to Section 212 of the bill, to 
modify Section 216 of the bill to add a new category of 
``agents of foreign power'' to the Foreign Intelligence 
Surveillance Act and to modify the time periods associated with 
pen register or trap and trace orders issued under Title IV of 
the Foreign Intelligence Surveillance Act, to add a new Section 
217 to the bill modifying the application requirements for 
orders under Title IV and Title V of the Foreign Intelligence 
Surveillance Act, to add a new Section 218 to the bill relating 
to the form of semiannual reports under Title V of the Foreign 
Intelligence Surveillance Act, and to add a new Section 219 to 
the bill mandating a one-time report on voluntary disclosure of 
business records to the Federal Bureau of Investigation for 
foreign intelligence investigations. The votes in person or by 
proxy were as follows: Chairman Roberts--aye; Senator Hatch--
aye; Senator DeWine--aye; Senator Bond--aye; Senator Lott--aye; 
Senator Snowe--aye; Senator Hagel--aye; Senator Chambliss--aye; 
Vice Chairman Rockefeller--aye; Senator Levin--aye; Senator 
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator 
Mikulski--aye; Senator Corzine--aye.

Motion to report bill favorably

    On June 7, 2005, after disposition of all offered 
amendments, the Members of the Committee in person or by proxy 
recorded their final votes on reporting the bill favorably, 11 
ayes and 4 noes, as follows: Chairman Roberts--aye; Senator 
Hatch--aye; Senator DeWine--aye; Senator Bond--aye; Senator 
Lott--aye; Senator Snowe--aye; Senator Hagel--aye; Senator 
Chambliss--aye; Vice Chairman Rockefeller--aye; Senator Levin--
no; Senator Feinstein--no; Senator Wyden--no; Senator Bayh--
aye; Senator Mikulski--aye; Senator Corzine--no.

                           ESTIMATE OF COSTS

    Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing 
Rules of the Senate, the Committee deems it impractical to 
include an estimate of the costs incurred in carrying out the 
provisions of this report due to the classified nature of the 
operations conducted pursuant to the legislation. On June 16, 
2005, the Committee will transmit this bill to the 
Congressional Budget Office and request that it conduct, to the 
extent practicable, an estimate of the costs incurred in 
carrying out the provisions of this bill.

                    EVALUATION OF REGULATORY IMPACT

    In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that no 
substantial regulatory impact will be incurred by implementing 
the provisions of this legislation.

                        CHANGES IN EXISTING LAWS

    In the opinion of the Committee, it is necessary to 
dispense with the requirements of paragraph 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.

 ADDITIONAL VIEWS OF SENATORS ROBERTS, HATCH, DeWINE, BOND, LOTT, AND 
                               CHAMBLISS

    Congress enacted the USA PATRIOT Act to correct the flaws 
in, and the interpretations of, U.S. law that prevented 
cooperation and information sharing between our intelligence 
and law enforcement agencies prior to the September 11 attacks. 
Because of the Act, we have seen significant progress in some 
areas. For that reason alone, the intelligence provisions of 
the Act, set to expire at the end of this year, should be 
permanently authorized. The Intelligence Committee's oversight 
activities have revealed, however, the need for additional 
legislation to ensure national security investigators have the 
tools they need to combat international terrorism and 
espionage. With this bill, the Committee would not only 
reauthorize the expiring provisions, but also provide the 
additional tools these investigators need.
    We recognize that the USA PATRIOT Act has been the source 
of considerable controversy, and, as a result, some have 
questioned the need for permanently authorizing the 
legislation. But, the threats to our nation from terrorists and 
spies are not going to expire at the end of the year. The 
stakes are simply too high to return to the failed policies and 
procedures that tied the hands of our law enforcement and 
intelligence agencies before September 11.
    Additionally, we now have had nearly four years of 
congressional oversight of the use of the tools provided by the 
USA PATRIOT Act. Despite rhetoric to the contrary, our 
oversight has revealed not a single substantiated incident of 
abuse of the authorities provided by the Act.
    Our experience with the Foreign Intelligence Surveillance 
Act (FISA) business record provision highlights this point. 
This provision is often characterized as giving federal agents 
the authority to investigate the reading habits of innocent 
citizens through the seizure of library records. First of all, 
we should all remember that several of the 9-11 hijackers used 
library internet access to purchase and track the airline 
reservations they used to board the flights that they would 
soon hijack. The Federal Bureau of Investigation (FBI) should 
be able to access these library records using every 
constitutional tool available so--should the need arise--they 
might be able to prevent a future attack. Beyond that, we know 
through Congressional oversight that the FBI has used this 
authority only 35 times and never to access library records.
    Given the FBI's careful and judicious use of the USA 
PATRIOT Act authorities provided after the September 11 
attacks, Americans can be confident that any further grants of 
legitimate, constitutional investigative tools to national 
security investigators will be used only to protect Americans--
not to deprive them of their privacy or civil liberties.
    The bill reported by this Committee reflects a balanced 
approach to providing investigative tools to national security 
investigators while maintaining the checks and balances 
necessary to preserve civil liberties. First, the legislation 
permanently authorizes the nine intelligence-related provisions 
set to expire at the end of the year. Second, it extends to 
national security investigators tools already used in federal 
criminal cases. Third, it addresses concerns expressed by the 
critics of the USA PATRIOT Act by expressly establishing 
standards for the use of certain tools and increasing 
Congress's ability to oversee the use of every investigative 
tool it authorizes.
    As with the USA PATRIOT Act, portions of the Committee's 
bill have been (and no doubt will continue to be) significantly 
mischaracterized. As discussed in greater detail below, many of 
the mischaracterizations of the bill's provisions are based on 
a misreading of the plain language of the bill and its 
accompanying report; a lack of understanding of--or a refusal 
to recognize--the safeguards and limitations imposed by 
statute, executive order, and agency regulations; and a flawed 
understanding of the role of the FBI in national security 
investigations.

                        Administrative Subpoenas

    Administrative subpoenas are well-established and 
constitutional investigative tools that Executive branch 
agencies have long utilized in criminal and regulatory 
investigations. In fact, Congress has legislatively authorized 
335 different types of administrative subpoenas. The Attorney 
General currently uses administrative subpoenas to investigate 
drug trafficking, child pornography, health care fraud, and 
other crimes. Under current law, however, the Attorney General 
cannot use administrative subpoenas to investigate 
international terrorism or espionage. Section 213 remedies this 
deficiency by authorizing the Attorney General to issue 
administrative subpoenas to access records relevant to 
authorized investigations to protect against international 
terrorism and espionage or to obtain foreign intelligence 
information concerning non-U.S. persons.
    Opponents of the administrative subpoena authority provided 
in Section 213 charge that the authority will allow federal 
agents unfettered discretion to conduct ``fishing 
expeditions.'' The plain language of the provision and existing 
safeguards will prevent such abuse. The statute clearly 
restricts usage of administrative subpoenas to international 
terrorism, espionage, and certain other national security 
investigations. Thus, the authority under Section 213 may not 
be used for ordinary criminal investigations. Additionally, 
these investigations must be authorized under Executive Order 
12333 (which places express limitations on the collection of 
information concerning the domestic activities of U.S. persons) 
and be consistent with guidelines issued by the Attorney 
General.
    We are not granting this authority to the FBI of the 
1960's, which was nearly devoid of congressional oversight. In 
contrast to its overreaching in the past, today's FBI honors 
the rule of law, is bound by executive order and Attorney 
General guidelines, and is subject to the vigorous oversight of 
Senate and House Intelligence Committees. Congress will monitor 
closely the FBI's use of administrative subpoenas and other USA 
PATRIOT Act authorities and will ensure that those authorities 
are not used for ``fishing expeditions.''
    Opponents of the administrative subpoena provision also 
argue that, if administrative subpoena authority is granted to 
the Attorney General, its use should be restricted to instances 
in which there is an ``emergency need'' for the records or 
materials sought. Such a restrictionwould impose limits on 
national security investigators that Congress has not imposed on other 
regulatory or criminal investigators. In fact, of the 335 
administrative subpoenas enacted by Congress, only one contains 
anything like an emergency circumstances requirement--the Secret 
Service administrative subpoena--and the requirements of the Secret 
Service provision are light compared to those proposed in an amendment 
offered by opponents of the Committee's administrative subpoena 
authority.
    Other administrative subpoenas, like those authorized for 
criminal health care fraud, child pornography, and narcotics 
trafficking, contain no ``emergency circumstances'' 
requirement. If the Attorney General, or his designee, can 
issue an administrative subpoena without a finding of emergency 
circumstances to investigate a ``dirty doctor,'' we see no 
reason to impose that burden on the investigation of a ``dirty 
bomber.''
    Some opponents argue that the FBI's need for timely access 
to records and materials can be met simply by amending the FISA 
business records provision to allow the Attorney General to 
issue, without FISA court approval, an ``emergency'' order for 
production of business records or other tangible things. Like 
the proposals to limit administrative subpoenas to emergency 
situations, the proposals for emergency FISA business record 
orders contain burdensome administrative hurdles that are not 
required by the Constitution and will make the ``emergency'' 
business record order virtually useless.
    Requiring national security investigators to get an 
Attorney General certification or to provide pre-issuance 
notification to the Foreign Intelligence Surveillance Court 
(FISC) places hurdles in front of these investigators that 
their counterparts in regulatory and criminal investigations do 
not face. These hurdles would essentially deprive any utility 
that the emergency order process might have granted. 
Additionally, early in an investigation the FBI might not have 
the information necessary to request emergency certification 
for a FISA business record order, not to mention the ability to 
quickly work that request through the internal FBI and 
Department of Justice (DoJ) review process all the way up to 
the Attorney General for approval.
    Moreover, based on what we already know about the FBI's use 
of FISA business record orders, we question whether Attorney 
General ``emergency certification'' would ever be sought. As 
mentioned above, the FBI is using the FISA business records 
order in only a very small number of cases--35 times in nearly 
four years. This limited usage tells me that the bureaucracy 
already limits the effectiveness of the FISA business records 
tool. There is no reason to think a tool permitting Attorney 
General emergency authorization would be any more effective.
    The bottom line is that in the two years of public debate 
on administrative subpoenas, we have not heard a compelling 
argument why Congress should not give national security 
investigators the same kind of tool we give criminal and 
regulatory investigators. We cannot hold the FBI responsible 
for failures to preempt terrorism and espionage if we fail to 
give them every available tool permitted by our Constitution. 
National security investigators should not be hamstrung by 
``emergency circumstances'' requirements or be forced to use an 
inadequate substitute such as an emergency FISA business 
records order.

                              Section 202

    Section 202 seems complex and difficult to understand. 
Don't be fooled. It simply amends the definition of ``foreign 
intelligence information'' under the FISA to clarify that the 
definition includes information that is necessary to the use of 
law enforcement methods, such as criminal prosecution, to 
protect against certain, specified crimes--international 
terrorism, sabotage, clandestine intelligence activities, and 
other ``grave hostile acts''--when committed by foreign powers 
and agents of foreign powers. The Committee included this 
provision to ensure that the Foreign Intelligence Surveillance 
Court of Review (Court of Review) opinion (In re: Sealed Case, 
310 F.3d 717 (U.S. FISCR 2002)) does not prevent the use of the 
FISA to collect evidence for the arrest and prosecution of an 
individual when his crimes are inextricably intertwined with 
foreign intelligence crimes. Even so, such law enforcement-type 
use of the FISA would only be appropriate when the prosecution 
of the target would protect against international terrorism, 
sabotage, espionage, and ``grave hostile'' threats.
    Opponents of Section 202 claim that the provision will 
allow the FBI to use the FISA to collect intelligence solely 
for use as evidence in the prosecution of ordinary criminal 
acts. This argument is based on a misreading of the statute and 
accompanying report. First, even with the adoption of Section 
202, the FISA could only be used against foreign powers or 
their agents engaged in foreign intelligence crimes or 
activities in preparation for such crimes. Second, Section 202 
has been carefully drafted--along with its accompanying 
legislative history--to ensure that FISA ``foreign intelligence 
information'' only includes foreign intelligence crimes and 
other crimes ``inextricably intertwined'' with those foreign 
intelligence crimes. For criminal prosecutions in cases 
involving ordinary crimes, the Government would still have to 
seek a criminal search warrant or a criminal electronic 
surveillance order. These limitations prevent the Government 
from using the FISA solely for the purpose of criminal 
prosecution of ordinary crimes.
    Opponents also claim that Section 202 ``undermin[es] the 
distinction between intelligence and law enforcement'' 
activities allegedly contained in the FISA. This argument, 
however, ignores the history of the FISA. Congress never 
intended that the FISA should contain a distinction between 
intelligence and law enforcement activities with regard to 
foreign intelligence crimes. When the FISA was passed in 1978, 
Congress made clear in the statutory language that the 
Government could use foreign intelligence information in 
criminal prosecutions. The distinction between intelligence and 
law enforcement activities grew out of improper interpretation 
and application of the FISA by the DoJ and the FISC.
    The USA PATRIOT Act's ``significant purpose'' amendment to 
the FISA certification requirement was meant to tear down the 
``wall'' between foreign intelligence and criminal law 
enforcement activities. It was an important amendment that 
rejected the old DoJ and FISCinterpretations that created the 
``wall'' and started the cultural change necessary to encourage 
cooperation between intelligence and law enforcement. That amendment, 
however, did not restore the balance Congress had originally set in 
1978. The Court of Review interpreted the ``significant purpose'' 
amendment as potentially preventing the use of FISA information to 
prosecute international terrorists or spies for those and related 
crimes. In other words, the Court of Review interpreted the amendment 
as another potential ``wall.'' Section 202 removes this possibility by 
clearly stating that the FISA can be used when the information 
collected is intended to be used for law enforcement measures that will 
protect the United States from international terrorism, sabotage, 
clandestine intelligence activities, and other grave hostile acts. 
Thus, rather than fundamentally changing the law governing FISA 
investigations, Section 202 actually restores Congress's original 
intent in adopting the FISA and the ``significant purpose'' amendment.
    Finally, opponents claim that Section 202 threatens ``to 
create uncertainty in the currently well-established 
relationship between intelligence and criminal proceedings'' 
and argue that the provision should be deleted from the 
Committee's bill because the DoJ has not asked for the 
provision. This argument simply ignores the fact that the Court 
of Review itself pointed out that the ``significant purpose'' 
language creates a ``false dichotomy'' between intelligence and 
criminal investigations. Moreover, two district courts have 
already cited the Court of Review's reasoning on this issue. 
When a problem like this arises, Congress doesn't have to wait 
for the DoJ to request legislation before it acts. As Professor 
Richard Seamon pointed out to the Committee in his letter on 
this provision, ``The Department [of Justice] has been wrong 
about this sort of thing before (having participated in 
building the wall).'' Based on the fact that the courts are 
already relying on the reasoning of the Court of Review and 
given the DoJ role in erecting the original ``wall'' between 
intelligence and law enforcement investigators, Congress should 
act now to eliminate the risk that interpretations of the FISA 
will work to the benefit of international terrorists, spies, 
and others who would threaten our security.

                                Sunsets

    During markup of this legislation, the Committee voted to 
``sunset'' two of the authorities provided in the bill. 
Specifically, the FISA ``lone wolf'' and administrative 
subpoena authority would cease to have effect on December 31, 
2009, unless reauthorized. We are generally opposed to sunsets 
and do not believe that such restrictions are necessary in 
these cases. ``Sunset'' provisions discount or ignore 
Congress's role in overseeing the use of Executive branch 
authorities. Through normal oversight activities, the Congress 
is able to monitor the use of these authorities and, when 
required, make any necessary changes or modifications. By 
imposing sunsets, Congress also implies that these authorities 
are somehow unique and, thus, require special protections. This 
is not the case. As discussed above, the administrative 
subpoena provision simply extends to the national security 
arena a tool commonly used in criminal and regulatory 
investigations. The ``lone wolf'' provision merely allows the 
use of FISA physical search and electronic surveillance tools 
in cases in which the Government knows the target of the search 
or surveillance is a non-U.S. person engaged in international 
terrorism activities, but is doing so on his own or in cases 
where the Government is unable to identify for whom the 
individual is working. These provisions provide common-sense 
authorities that help protect Americans. We fully expect to be 
reauthorizing these important authorities in four years.

                               Conclusion

    When considering the Committee's bill, it is imperative to 
keep in mind that we are dealing with the Federal Government's 
ability to fulfill its primary obligation--protecting our 
nation from attack and preserving our way of life. Failure to 
reauthorize the expiring intelligence-related provisions of the 
USA PATRIOT Act will likely result in a return to the failed 
practices in place prior to the September 11 attacks. 
Hopefully, Congress will do its duty and permanently authorize 
these critical provisions. In going beyond reauthorization, 
however, the Committee has presented the Congress with a 
reasonable approach that further ensures our security by 
extending to national security investigators the constitutional 
tools currently available to their criminal counterparts while 
also preserving the checks and balances necessary for the 
protection of privacy and civil liberties.

                                   Pat Roberts.
                                   Orrin G. Hatch.
                                   Mike DeWine.
                                   Christopher S. Bond.
                                   Trent Lott.
                                   Saxby Chambliss.

     ADDITIONAL AND MINORITY VIEWS OF SENATORS ROCKEFELLER, LEVIN, 
             FEINSTEIN, WYDEN, BAYH, MIKULSKI, AND CORZINE

    The primary task of the Congress this year, with respect to 
investigatory powers in national security investigations, is 
action on renewal of sixteen USA PATRIOT Act authorities that 
are scheduled to sunset, or expire, at the end of this year. 
The accompanying task is to correct any defects in or otherwise 
improve these provisions.
    Sections 101 and 102 of the Committee bill would make 
permanent nine PATRIOT Act authorities (the others are within 
the sole jurisdiction of the Committee on the Judiciary), while 
also extending a sunset in the recently enacted Intelligence 
Reform Act for so-called ``lone wolf'' surveillance authority. 
In extending that sunset, the Committee accepted a proposal 
advocated by Senator Corzine that the Department of Justice 
should gain further experience under this new authority before 
Congress determines whether to make it permanent.
    Section 211 of the Committee bill--by remedying some of the 
problems with Section 215 of the PATRIOT Act pertaining to 
orders by the Foreign Intelligence Surveillance Court for 
business records--is a step in the right direction toward 
accomplishing the second task. Also, Section 216 of the 
Committee bill, by increasing the maximum duration of certain 
Foreign Intelligence Surveillance Court orders, improves the 
FISA process by enabling Department of Justice personnel and 
the FISA Court to devote attention to new applications and 
other urgent matters.
    However, the Committee bill goes beyond these core tasks. 
Notably, it adds a wide-ranging ``administrative subpoena'' to 
the Attorney General's and the FBI's broad powers in national 
security investigations. This significant new investigative 
authority and other proposed additions or changes to present 
law, as these additional views explain, are problematic and may 
even be damaging to our national security protections.

                      1. Administrative Subpoenas

    The bill proposes to add a new title to FISA to authorize 
the issuance of administrative subpoenas for production of 
records. The expressed justification for administrative 
subpoenas--which would not be reviewed by a court unless 
challenged by the recipient of the subpoena or if there is an 
enforcement action--is that they may be needed in emergency 
circumstances when alternative means for obtaining information 
might result in unacceptable delay.
    Congress has granted subpoena authority to many agencies 
that exercise economic or other regulatory powers. Several 
enactments, in recent years, have provided subpoena authority 
to the Attorney General in controlled substances, health fraud, 
and child pornography cases, and to the Secretary of the 
Treasury in matters involving imminent threats to persons 
protected by the Secret Service. Three of these measures, 
collected in 18 U.S.C. Sec. 3486, contain important checks on 
the Government's use of that authority. None is as potentially 
vast in scope as the proposal to make this power available in 
national security investigations. Moreover, in none of these 
other matters had Congress already provided for an array of 
other powers, as it has done for intelligence investigations, 
including for a special court--the Foreign Intelligence 
Surveillance Court--whose sole mission concerns the grant of 
investigative powers.
    When testifying before the Committee, the FBI could not 
document significant past or current instances when national 
security investigations faltered or were hindered due to lack 
of an administrative subpoena authority. The FBI argued that 
such a circumstance could exist in the future when immediacy 
might dictate moving quickly with a subpoena for records 
without prior judicial review. This may be true, but based on 
both demonstrated and anticipated need, the use of any such 
authority without prior review should be the exception, not the 
rule.
    Notwithstanding the desire of the Administration for 
additional authority, the responsibility of Congress is to 
determine if there is a convincing need that justifies 
departure from the careful methodology of the Foreign 
Intelligence Surveillance Act. As part of that assessment, 
Congress should consider whether any such need is not met by 
the array of other authorities now available for obtaining 
business records in national security investigations, including 
through National Security Letters and grand jury subpoenas. If 
there is such a need, particularly a need that goes beyond 
emergencies, it has not been demonstrated in the legislative 
record presented to the Committee by the Department of Justice 
or established by the Committee's own factual inquiry. On the 
present record, all that Congress has is the Administration's 
wish for more.
    By one vote, the Committee rejected an amendment by Senator 
Feinstein (set forth in the appendix to these views) to limit 
administrative subpoena authority to emergency use. It would 
have authorized administrative subpoenas upon the certification 
of the Attorney General or FBI Director, or their designees, 
that (1) it is impracticable to obtain in a timely fashion, by 
an order of the FISA Court or other means, the records or 
materials required and (2) there is a reasonable belief that 
there is an emergency need for the records or materials in 
order to protect against terrorism. The amendment would also 
have required approval from a U.S. Attorney or an Assistant 
Attorney General prior to issuance of an administrative 
subpoena, rather than at the sole discretion of an FBI Special 
Agent in Charge. To facilitate rapid action, approval could be 
oral as long as it is reduced to writing as soon as possible. 
The Feinstein amendment would tailor administrative subpoena 
authority to the need presented by the Administration: the 
occasional emergency when it is impractical to obtain a FISA 
Court order or other enforceable demand such as a grand jury 
subpoena.
    In our view, absent an emergency, maintaining pre-issuance 
judicial review of requests for orders to produce business 
records is an important check against potential abuse in the 
investigative process. The Administration acknowledges that the 
FISA Court has worked well and efficiently in reviewing 
subpoena requests. Unless changed, the bill effectively puts 
the court out of business with respect to business records, and 
puts the current subpoena authority of the court in the hands 
of the investigators. This is not necessary, justified, or 
wise.
    The Committee also rejected by a one-vote margin an 
amendment by Senator Levin (also set forth in the appendix to 
these views) to establish a procedure to assess the continuing 
need, in individual cases, for nondisclosure requirements. The 
Committee's bill provides that disclosure of the receipt of an 
administrative subpoena--other than to persons necessary to 
carry out production of records, an attorney, or other persons 
as permitted by the FBI--is prohibited if the Attorney General 
or a designee certifies that a danger to national security may 
result. The bill also provides for criminal penalties for 
knowing violation of this prohibition. The length of the ban is 
not limited. It could prevent the recipient of a subpoena from 
exercising First Amendment rights to protest government action, 
including by bringing abuses to the attention of members of 
Congress or Inspectors General.
    We recognize the importance of requiring nondisclosure in 
some cases, but any such requirement should be subject to 
judicial review. Senator Levin's amendment would have provided 
for periodic review of the nondisclosure requirement, enabling 
the FBI to extend the nondisclosure ban for repeated 90 day 
periods upon a showing to a court that a danger to national 
security may result. A similar provision exists in current law 
on criminal administrative subpoenas, 18 U.S.C. Sec. 3486, 
which provides that nondisclosure orders issued by district 
courts last for ninety days subject to renewal.
    While the appropriate length of time between the review of 
orders is open to discussion, the essential point of the 
amendment, which we strongly support, is that the combination 
of factors in the Committee's bill--a limitation on speech that 
is potentially for life and enforced by criminal penalties--
makes it imperative that there at least be periodic court 
review of the requirement that a citizen or company remain 
silent about the receipt of a governmental subpoena.

                   2. Section 215 of the PATRIOT Act

    The ability of intelligence as well as law enforcement 
investigators to obtain relevant records expeditiously is 
critical. They may provide information that enables 
investigators to pinpoint more exactly what additional 
investigatory tools are necessary. Legally enforceable demands 
for records--whether they be called orders or subpoenas--also 
allow investigators to obtain information in a manner that is 
less intrusive than electronic surveillance or physical 
searches.
    Section 215 of the PATRIOT Act (which amended Title V of 
the Foreign Intelligence Surveillance Act) significantly 
expanded the Government's ability to obtain ``tangible 
things,'' including records, in international terrorism and 
other national security investigations. In doing so, the broad 
reach of Section 215 has prompted a great deal of concern about 
the potential overreaching of Government demands.
    The amendments reported by the Committee address some key 
concerns about Title V, as amended by Section 215. First, the 
amendments make explicit that the Government's application to 
the Foreign Intelligence Surveillance Court, for an order to 
obtain business records or other tangible things, must be for 
items that are ``relevant'' to a foreign intelligence 
investigation. Bolstering that requirement, the Committee's 
bill also provides, as advocated by Senator Wyden, that the 
application to the court ``shall include an explanation by the 
applicant that supports the assertion of relevance.''
    The Committee's bill addresses one aspect of the 
nondisclosure regime established by Title V of FISA. As amended 
in 2001 by Section 215 of the PATRIOT Act, Title V provides 
that no person shall disclose to any other person, other than 
persons necessary to produce the things required by an order, 
that the FBI has sought or obtained things under the section. 
The Attorney General told the Committee that he supports a 
clarification in Title V that permits disclosure to an 
attorney. The bill, accordingly, makes clear that the recipient 
of an order for production of records may disclose the order to 
an attorney to obtain legal advice or assistance.
    While no amendment was offered in Committee to address 
other aspects of Title V's nondisclosure requirement, the 
reasons warranting periodic review of the related nondisclosure 
requirement for administrative subpoenas also apply to Title V 
and merit the attention of Congress as it considers amendments 
to that title.
    In accord with the Attorney General's further 
representation to the Committee, the bill also provides 
explicitly for judicial review. Following receipt of an order 
to produce, but before production, the recipient of the order 
may petition the Foreign Intelligence Surveillance Court to 
modify or set it aside. In recognition that the Government's 
response may include classified information, the bill provides 
that the court shall first review the Government's submission 
ex parte and in camera. Of course, those parts of the 
Government's submission that are neither classified nor 
otherwise law enforcement sensitive should then be provided to 
the applicant without restriction. The bill also provides that 
protected information, if necessary to make an accurate 
determination about the reasonableness or oppressiveness of the 
order, could be provided to the applicant under appropriate 
security procedures and protective orders.
    By a margin of one vote, the Committee rejected an 
amendment (also set forth in the appendix to these views) that 
would have conformed Title V to a key aspect of other major 
titles of the Foreign Intelligence Surveillance Act. Every 
other title establishing a method of obtaining foreign 
intelligence information--Title I on electronic surveillance, 
Title III on physical searches, and Title IV on pen registers 
and traps and traces--provides for exercise of emergency power 
by the Attorney General. These provisions permit the Attorney 
General to act when an emergency requires immediate action.
    The amendment, offered by Vice Chairman Rockefeller, 
adhered closely to the emergency provisions in FISA's other 
titles. If an emergency requires production before a FISA Court 
order can be obtained, the amendment would authorize the 
Attorney General to issue an order for production that has the 
same effect as an order issued by the FISA Court. The safety 
check on the Attorney General's power is that at the time of 
issuing that order the AttorneyGeneral would be required to 
notify the FISA Court (as the Attorney General must do for emergency 
use of other FISA powers) and then apply ``as soon as practicable'' for 
a judicial order requiring production. If the application is granted, 
the Attorney General may continue to use the information obtained under 
his emergency order. If the application is denied, then the information 
obtained under the order may not be used.
    In sum, under the Rockefeller amendment the Attorney 
General would be able to act rapidly in an emergency as long as 
the court is notified and a process, leading to an 
authoritative ruling of the court, is begun as soon as 
practicable. In that way, FISA would protect--as it does for 
electronic surveillance, physical searches, and pen registers--
the ability of the Attorney General to act with dispatch while 
ensuring prompt judicial review. The amendment merits adoption 
in the course of the Senate's consideration of this bill.
    One argument offered in Committee against adding emergency 
authority to Title V of FISA is that this authority is 
unnecessary in light of the administrative subpoena power that 
the bill would grant to the Attorney General. Whether Congress 
will create a new administrative subpoena authority is, at the 
present time, only speculative. Title V of FISA is not 
speculative. It exists. It can and should be improved.
    But even if Congress does establish a new administrative 
subpoena authority, the Department of Justice may conclude, in 
particular cases, that it advances the Government's interest in 
the efficient investigation of national security matters to 
proceed under Title V, including by means of emergency record 
production orders. For example, emergency orders under Title V 
may relate closely to other orders in an investigation, such as 
for electronic surveillance or pen registers. Under the 
administrative subpoena section of the Committee's bill, legal 
challenges to those subpoenas may occur in district courts 
around the country rather than in the Foreign Intelligence 
Surveillance Court, depending on who goes to court first. By 
proceeding under Title V, the Government can ensure that all 
matters about a particular investigation are handled by one 
court. The Rockefeller amendment would enable the Government to 
have both an emergency record authority and the ability to 
consolidate judicial proceedings in one court.

    3. Change in Definition of ``Foreign Intelligence Information''

    Section 202 of the bill amends the definition of ``foreign 
intelligence information'' in Title I of the Foreign 
Intelligence Surveillance Act (FISA). As the definition in 
Title I of ``foreign intelligence information'' is also the 
definition used in other titles of FISA--on physical searches, 
pen registers and traps and traces, and orders for the 
production of business records and other tangible things--the 
amendment to the definition will have an impact on all the 
investigative methods authorized by FISA.
    Section 202 alters the definition of ``foreign intelligence 
information'' by providing that the term includes ``protection 
[of the United States] by use of law enforcement methods such 
as criminal prosecution.'' Law enforcement methods such as 
criminal prosecution are key methods of protecting the United 
States. The question, however, is whether this change in 
definition would muddy or even jeopardize a salient achievement 
of the PATRIOT Act, namely, the ``significant purpose'' test in 
Section 218.
    Section 218 eliminated the prior test, known as the 
``primary purpose'' test, that had been applied by courts and 
the Department of Justice before the PATRIOT Act. That test had 
required that the ``primary purpose'' of FISA collection had to 
be obtaining foreign intelligence information rather than 
evidence of a crime. As described by the Department of Justice 
in a report to the Committee on April 1, 2005, Section 218 
eliminated the primary purpose test by allowing FISA electronic 
surveillance or physical searches to be authorized if foreign-
intelligence gathering is a ``significant'' purpose, thereby 
eliminating the need for the courts to compare the relative 
weight of the ``foreign intelligence'' or ``law enforcement'' 
purpose of the search.
    But while a foreign intelligence purpose need not be 
dominant, the ``significant purpose'' test requires that there 
be at least ``some'' such purpose. The Foreign Intelligence 
Surveillance Court of Review recognized this when it declared: 
``Of course, if the court concluded that the government's sole 
objective was merely to gain evidence of past criminal 
conduct--even foreign intelligence crimes--to punish the agent 
rather than halt ongoing espionage or terrorist activity, the 
application should be denied.'' In re: Sealed Case, 310 F.3d 
717, 735 (U.S. FISCR 2002).
    The provision of the bill, which was retained at markup by 
only one vote, would negate that holding of the Foreign 
Intelligence Surveillance Court of Review and gut the 
``significant purpose'' test in Section 218 by allowing the use 
of foreign intelligence powers when the sole purpose is to gain 
evidence of past crimes. By doing so, this provision of the 
Committee bill could invite a challenge to the 
constitutionality of FISA based on the argument that if the 
sole purpose of a FISA order is to obtain evidence of a past 
crime then the courts must decide whether FISA satisfies the 
warrant clause of the Fourth Amendment.
    The Administration has not requested that Congress change 
the definition of ``foreign intelligence information.'' Neither 
the Attorney General nor the FBI Director, in their appearance 
before the Committee, suggested a desire to change the 
definition of foreign intelligence information. There has been 
no showing, in any open or closed setting, that the present and 
longstanding definition of foreign intelligence information has 
impeded a single foreign intelligence investigation or criminal 
prosecution. Nor did the FBI inform Senator Feinstein, in her 
discussions with the Bureau about her amendment, that it 
opposed her amendment to strike the provision.
    A former Department of Justice official whose service 
included the current Bush Administration and who was called by 
the Committee in anticipation that he would address this 
matter, cautioned:

          First, Section 203 of the Committee's bill would 
        further expand governmental power at a time when the 
        Department of Justice itself has not asked for 
broaderauthority. Second, a related point, I fear that any operational 
benefit from the amendment would not justify the resulting cost in 
uncertainty about the state of the law. (Testimony of David S. Kris, 
former Deputy Associate Attorney General, May 24, 2005.)

The Section 203 referred to in Mr. Kris's testimony is Section 
202 of the bill as reported.
    Not only has the change in the definition of foreign 
intelligence information not been requested by the 
Administration, but the Administration has not brought to the 
Congress's attention any problem with information sharing 
created by either the PATRIOT Act or the Foreign Intelligence 
Court of Review decision. To the contrary, as is well known, 
the Attorney General and the FBI Director credit the PATRIOT 
Act and the Foreign Intelligence Surveillance Court of Review 
decision with helping to bring down the ``walls'' that blocked 
coordination and cooperation among intelligence and law 
enforcement officials in the past.
    At best, Section 202 of the bill is intended to correct a 
hypothetical problem. Moreover, the hypothetical is unlikely to 
arise. It would require a situation in which the Government had 
sufficient information to demonstrate probable cause that an 
individual is an agent of a foreign power but has no present 
interest in the foreign intelligence information that would be 
collected by a FISA surveillance or physical search of that 
individual.
    Thus, Section 202, which will bring uncertainty to a 
critical area of the law, addresses neither a realistic nor a 
demonstrated need. It should be deleted.

                           4. Roving Wiretaps

    Senator Levin offered an amendment that would have required 
roving electronic surveillance orders under FISA to include a 
description of the target of the surveillance ``sufficiently 
specific to give some confidence'' that the person surveilled 
is actually the same target for whom the court found probable 
cause to believe is an agent of a foreign power. The amendment 
sought only to establish in law what we understand to be 
current Justice Department practice. Adoption of the amendment 
would have helped improve public confidence that the government 
will not be listening in on the private conversations of 
innocent Americans using roving FISA wiretap orders. 
Unfortunately that amendment was defeated, by a margin of one 
vote.
    Roving wiretaps permit electronic surveillance of people 
who may be taking steps, such as switching cell phones or using 
multiple pay phones or computer terminals, to evade electronic 
surveillance at a particular location. Under criminal law, an 
application for a roving wiretap must identify the person 
against whom the wiretap is sought and make a showing that 
there is probable cause to believe that the actions of that 
person could have the effect of thwarting interception from a 
specific facility. Under criminal law, a judge may issue a 
roving electronic surveillance order if he or she determines 
that such a showing has been adequately made. Under FISA, the 
FISA Court judge must issue an order if he or she finds 
probable cause, based on the application, that, in addition to 
other requirements, the target of the electronic surveillance 
is a foreign power or an agent of a foreign power. The judge's 
order authorizing the surveillance must specify the identity of 
the target only if that identity is known. If it is not known, 
the order need only contain a description of the target.
    In an unclassified portion of a May 24, 2005 letter from 
the Department of Justice to the Chairman, the Department 
stated that under FISA:

        the target of roving surveillance must be identified or 
        described in the order of the FISA Court, and if the 
        target of the surveillance is only described, such 
        description must be sufficiently specific to allow the 
        FISA Court to find probable cause to believe that the 
        specified target is a foreign power or an agent of a 
        foreign power. As a result, section 206 is always 
        connected to a particular target of surveillance. 
        (Emphasis added.)

Requiring in law, as the Levin amendment sought to do, that 
FISA electronic surveillance orders be sufficiently specific 
would be entirely consistent with the Department's statement.

                             5. Mail Cover

    In the 1970's, both a presidential commission (chaired by 
Vice President Nelson Rockefeller) and a Senate select 
committee (chaired by Senator Frank Church) brought to light 
significant abuses by government agencies concerning intrusive 
examination of the mail. To meet the twin goals of ending 
abuses while providing federal and state investigators with 
access to information that can be gleaned from examining 
envelopes, but not reading the content of sealed letters 
without appropriate judicial warrants, the Postal Service 
promulgated regulations. These regulations have been in place 
for thirty years.
    While the Committee has not held a hearing on mail cover 
issues, its report identifies a few shortcomings with the 
regulations. In response, the Committee's bill proposes an 
entire new title of FISA to govern the examination of mail 
covers. It is not at all clear why legislation is needed. The 
several issues identified in the Committee report concerning 
the regulations can be addressed expeditiously by two agencies 
of the federal government--the Department of Justice and the 
Postal Service--working together cooperatively to amend the 
regulations or improve practices to the extent required. It is 
our hope that those efforts will begin promptly. If successful, 
they may obviate the need for legislation.
                                ------                                

    For some of us, problems in the Committee bill, several of 
which would have been remedied by the amendments described 
above, were sufficient to warrant a ``no'' vote on the bill. 
For others of us, a ``yes'' vote was warranted by the 
importance of proceeding further in the legislative process 
with a bill that includes the renewal of PATRIOT Act 
authorities and modifications that correct some of the present 
defects in the law. All of us are united in the conviction that 
improvements in the bill are essential before final passage. 
Adoption of the amendments described above would be an 
important step toward achieving a bill that provides a long-
term basis for effective national security investigation 
authority within the boundaries of our Constitution and values.

                                   John D. Rockefeller IV.
                                   Carl Levin.
                                   Dianne Feinstein.
                                   Ron Wyden.
                                   Evan Bayh.
                                   Barbara A. Mikulski.
                                   Jon S. Corzine.


                      APPENDIX--TEXT OF AMENDMENTS

                              ----------                              


     ADDITIONAL AND MINORITY VIEWS OF SENATORS ROCKEFELLER, LEVIN, 
             FEINSTEIN, WYDEN, BAYH, MIKULSKI, AND CORZINE

    1. Amendment Proposed by Senator Feinstein on Emergency Use of 
                        Administrative Subpoenas

    [To be inserted in Committee bill, as reported, as a new 
Section 802(d)]
    (d) Requirement for Emergency Use.--A subpoena may be 
issued under this title only after the Attorney General, or a 
designee of the Attorney General, or the Director of the 
Federal Bureau of Investigation, or a designee of the Director 
in accordance with subsection (a), certifies, whether in 
writing or orally (and if certified orally, then reduced to 
writing as soon thereafter as possible), that--
          (1) it is impracticable to obtain in a timely fashion 
        the records or materials to be required to be produced 
        by such subpoena pursuant to a subpoena or order issued 
        by the Foreign Intelligence Surveillance Court under 
        other provisions of this Act or pursuant to other 
        means; and
          (2) there is a reasonable belief that there is an 
        emergency need for such records or materials in order 
        to protect United States persons against terrorism.
    (b) Review and Approval.--A subpoena may be issued under 
this title only after the review and approval, whether orally 
or in writing, of the subpoena by any of the following:
          (1) The Attorney General.
          (2) The Deputy Attorney General.
          (3) The Associate Attorney General.
          (4) An Assistant Attorney General, including an 
        acting Assistant Attorney General.
          (5) A United States Attorney.

 2. Amendment Proposed by Vice Chairman Rockefeller on Emergency FISA 
                            Record Authority

    [To be inserted in the Committee bill, as a new Section 
211(b), with present subsections (b)-(e) renumbered 
accordingly]
    (b) Emergency Access.--
          (1) Notwithstanding any other provision of this 
        section, when the Attorney General reasonably 
        determines that--
                  (A) an emergency situation exists with 
                respect to the production of tangible things 
                for an investigation described in subsection 
                (a) before an order authorizing production of 
                such tangible things can with due diligence be 
                obtained; and
                  (B) the factual basis for the issuance of an 
                order under this section to approve production 
                of such tangible things exists,

the Attorney General may issue an order requiring production of 
such tangible things, which order shall have the same effect as 
an order issued by the court established by section 103(a), if 
a judge having jurisdiction under section 103 is informed by 
the Attorney General, or a designee of the Attorney, at the 
time of the issuance of such order that the decision has been 
made to require production of such tangible things under this 
subsection and an application in accordance with this section 
is made to that judge as soon as practicable thereafter.
          (2) In the event that an application under paragraph 
        (1) is denied, or in any other case where no order is 
        issued by the court established by section 103(a) 
        approving access to tangible things, no information 
        obtained or evidence derived from the production of 
        tangible things under paragraph (1) 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 the production of tangible 
        things under paragraph (1) shall subsequently be used 
        or disclosed in any other manner by any officer or 
        employee of the Federal Government without the consent 
        of such person, except with the approval of the 
        Attorney General if the information indicates a threat 
        of death or serious bodily harm to any person.
          (3) The denial of an application under paragraph (1) 
        may be reviewed as provided in section 103.

   3. Amendment Proposed by Senator Levin on Administrative Subpoena 
                       Nondisclosure Requirements

    [To be inserted in the Committee bill, as reported, as new 
paragraphs (3) and (4) of Section 802(b)]
          (3) Limitation on duration of nondisclosure 
        requirements.--Except as provided in paragraph (4), the 
        prohibition on disclosure under subsection (a) with 
        respect to a subpoena under section 802 shall expire 90 
        days after the date of the issuance of the subpoena.
    (b) Extension.--The Foreign Intelligence Surveillance 
Court, or the United States district court in which a person or 
entity subject to a prohibition on disclosure under subsection 
(a) resides or does business, may, upon application by a person 
authorized to issue a subpoena under section 802, extend a 
prohibition on disclosure under subsection (a) with respect to 
a subpoena issued under section 802 for one or more additional 
periods of not more than 90 days upon a showing by the 
applicant that a danger to the national security of the United 
States may result from disclosure that such subpoena was 
received or records were provided pursuant to this title. Each 
extension for a period under this paragraph shall require a new 
application under this paragraph.

                  ADDITIONAL VIEWS OF SENATOR MIKULSKI

                              Introduction

    Following the tragedy of September 11th, it was critical to 
provide law enforcement in the United States with the tools it 
needed to effectively fight the war on terror. Our 
intelligence, counterterrorism and counterintelligence experts 
needed new authorities to protect our country, our people and 
our treasured allies.
    It is our goal to stop terrorists in their tracks and to 
keep our citizens safe. But we must do so while providing 
appropriate checks and balances which protect the fundamental 
constitutional rights on which this nation was founded.
    We struck that balance in the PATRIOT Act by providing law 
enforcement with greatly expanded powers while also creating 
sunsets for the most controversial powers. We realized the 
potential for abuse in creating these broad new provisions and 
it was our constitutional responsibility to make sure that 
these new authorities were not abused or misused. That's why 
sunset provisions are so important.
    This reauthorization is using the opportunity of the 
sunsets to review how the PATRIOT Act has been used and how it 
can be improved. There are features of the bill being reported 
out by the Intelligence Committee that I agree with. However, I 
have several serious concerns about some of the provisions, 
including most importantly the failure to include sunsets which 
would allow us to conduct future periodic reviews. We must have 
sunsets and we must review how these new powers are being used 
or misused.
    I'm also concerned with the dramatic expansion of power to 
conduct intelligence gathering solely for criminal 
prosecutions. The administration did not even ask for such 
sweeping new authority. The bill also grants administrative 
subpoena power without appropriate limitations. These 
provisions greatly expand current authorities and how 
intelligence investigations are conducted. I believe that 
changes to this bill are necessary and that any unlimited 
extension of controversial provisions should be fully debated 
in the sunshine and decided by the full Senate.

                         Sunsets Are Essential

    This bill makes permanent the original provisions that were 
set to sunset at the end of this year. Law enforcement agencies 
say that these tools are needed to gather intelligence to fight 
the war on terror. I take very seriously the needs of law 
enforcement and the need to fight terrorism. But, I am 
concerned that some of these provisions are too broad and that 
we need to add appropriate checks on the powers. We need to 
know the specifics about how and when they are being used and 
whether they are impacting the constitutional rights of 
Americans.
    I believe that we do not need to make these provisions 
permanent--extending the sunsets of these provisions for 
another four years does no harm. It provides law enforcement 
with the ability to use all the same tools that they now have 
under the PATRIOT Act. At the same time, it provides for 
oversight and requires the Congress to periodically review how 
the powers are being used. We need to know how often they are 
being used, in what context, and who is impacted.
    Extending the sunsets for four more years allows this 
expansion of power to be checked to ensure that it is not 
undermining fundamental constitutional protections.

          Keep the Significant Purpose Test for Investigations

    The PATRIOT Act provided law enforcement with broad 
authority to conduct surveillance and searches where collecting 
foreign intelligence was the ``significant purpose'' of the 
investigation. This broad authority has worked well.
    Both Attorney General Gonzales and FBI Director Mueller 
have praised the ``significant purpose'' standard and the 
administration has not requested any change to the standard. 
Yet, this bill would change the PATRIOT Act to allow the 
collection of intelligence solely for the use as evidence in a 
criminal prosecution.
    This unrequested change is unnecessary and unwise. Indeed, 
Senator Feinstein has indicated that the FBI did not object to 
her amendment to strike this provision, which I supported. This 
change will create uncertainty between the criminal law and 
intelligence gathering fields where guideposts are already well 
established and working well.

           Administrative Subpoenas Should be for Emergencies

    The Administration has argued that it needs the authority 
to issue administrative subpoenas because of emergency 
situations. But, this legislation adds far-reaching 
administrative subpoena powers that are not limited. There is 
no need for such broad authority and the potential for abuse of 
constitutional rights is too great. I cannot support such 
unrequested and unlimited power.
    I understand that we need to make sure there are no 
obstacles when immediate action is needed to prevent a 
terrorist attack or the loss of life. Therefore, if the power 
to issue administrative subpoenas is included in this bill, it 
must be limited to exigent or emergency circumstances only.

                               Conclusion

    I believe that the Senate has a lot of work to do as this 
bill moves forward. This bill adds some provisions for checks 
and balances and judicial review--but more are needed. Law 
enforcement must have the tools they need to fight the war on 
terror. But, we must also protect the role of our federal 
courts to make sure that there is no abuse of power.
    We need to strike the appropriate balance--protecting 
national security while protecting constitutional rights.

                                               Barbara A. Mikulski.

 ADDITIONAL AND MINORITY VIEWS OF SENATORS CORZINE, LEVIN, WYDEN, AND 
                                MIKULSKI

    The current legislation, by permanently repealing the 
sunset on Section 215 of the USA PATRIOT Act, unnecessarily 
preempts a critical review of and debate on the impact of this 
controversial and far-reaching provision. We believe that the 
sunset should be extended for another four years, through 
December 31, 2009.
    Simply repealing the sunsets included in the USA PATRIOT 
Act deprives Congress and the American people the opportunity 
to fully explore the implications of the law. The sunset on 
Section 215, which provides broad authority to seek business 
records, including from libraries, booksellers and medical 
practitioners, through FISA, is particularly important. Of all 
the new authorities provided in the USA PATRIOT Act, Section 
215 has generated the most public concern. The FISA court 
operates in secrecy and the targets of Section 215 warrants are 
unlikely to ever learn that their records have been sought. The 
sensitivity of the information subject to a Section 215 warrant 
and the lack of public information about how the provision has 
been used have prompted calls for a public debate about how 
both to combat terrorism and protect civil liberties.
    On April 5, 2005, in apparent response to these concerns, 
the Attorney General publicly announced that Section 215 had 
been used 35 times, and never for libraries or booksellers, or 
to obtain medical or gun records. While we welcome this 
disclosure, we note that this one-time, discretionary 
declassification came only as Congress was considering the 
reauthorization of Section 215. An extension of the sunset will 
encourage further disclosures, which serve to reassure the 
American public that one of the most controversial and far-
reaching provisions of the USA PATRIOT Act have not been 
abused.
    Over the next four years, Congress will be reviewing 
critical information related to the use of Section 215. New 
reporting requirements in the current legislation cover the use 
of Section 215 to obtain records on the sale, rental or 
delivery of books and other reading material, firearms, health 
information, and tax returns. The legislation also requires a 
report on ``discreet inquiries,'' a method through which the 
FBI has sought certain business records, including from 
libraries, without a FISA warrant. While we do not discourage 
informal information-gathering efforts, the frequency with 
which such inquiries are made, the kind of information sought, 
and the targets involved are relevant to whether Congress 
should permanently enact Section 215.
    While the information released by the Attorney General on 
April 5 suggests a judicious use of Section 215 to date, it 
does not provide any check on how this power will be employed 
in the future. The Intelligence Community is currently in flux, 
with the recent confirmation of the Director and Deputy 
Director of National Intelligence and the creation of the 
National Counterterrorism Center (NCTC). The FBI faces a myriad 
of challenges as it redirects its resources toward preventing 
terrorism, from information technology to a much-needed 
cultural shift within the Bureau. Under these circumstances, it 
is far too early to project how the broad authorities conferred 
by the USA PATRIOT Act may be used in the future.
    Perhaps most importantly, the very institution mandated by 
Congress to oversee these new authorities has yet to be 
established. The Privacy and Civil Liberties Board, established 
in the Intelligence Reform and Terrorism Prevention Act of 
2004, is responsible for overseeing the implementation of laws 
related to protecting the nation against terrorism. Before 
Section 215 becomes a permanent authority, without the 
Congressional and public scrutiny that comes with a sunset, it 
is critical that the Board be in place to monitor its use.
    Finally, we note that the current legislation modifies 
Section 215. These modifications, which include a ``relevance'' 
standard and new provisions related to disclosure, represent an 
ongoing Congressional debate about the extent and limits of the 
authorities provided by Section 215. If they are passed into 
law, it will be critical that Congress review how they are 
used, how they effect the overall implementation of Section 
215, and whether further modifications are necessary. In this 
context, the permanent repeal of the sunset is unwarranted.
    Congress as well as the American people should continue the 
public dialogue over the expansive powers given to the FBI 
under the USA PATRIOT Act and how to combat terrorism while 
protecting the basic rights of all Americans. By seeking to 
extend the sunset on Section 215, we encourage that dialogue.

                                   Jon S. Corzine.
                                   Carl Levin.
                                   Ron Wyden.
                                   Barbara A. Mikulski.

                  MINORITY VIEWS OF SENATOR FEINSTEIN

    Although I support the reauthorization of the sunsetting 
provisions of the PATRIOT Act, I cannot support the legislation 
in its present form. This legislation contains two provisions 
that vastly expand current authorities and greatly expand the 
power of the Federal Bureau of Investigation in conducting 
intelligence investigations and prosecuting criminal activity. 
It is disappointing that the majority has refused to accept 
amendments to place reasonable limits on these new authorities.
    Section 202 of the Committee's legislation presents a 
fundamental change to the laws governing investigations 
conducted under the Foreign Intelligence Surveillance Act 
(FISA). The addition of criminal prosecutions to the definition 
of ``foreign intelligence information'' allows, for the first 
time ever, the FBI to use FISA to collect intelligence solely 
for the use as evidence in a criminal prosecution. This change 
would undermine current law, passed as part of the PATRIOT Act 
in 2001 that requires the FBI to articulate a significant 
intelligence purpose in conducting any FISA investigation. This 
standard has been praised by Attorneys General Ashcroft and 
Gonzales and by FBI Director Mueller as a key component to 
their ability to fight the war on terror.
    There has been no request by the Administration for this 
change to the law, and the FBI did not object to my amendment 
to strike this language. Section 202 of this legislation 
undermines the significant purpose test, removes the 
distinction between intelligence and law enforcement operations 
within the FBI, and threatens to create uncertainty in the 
currently well established relationship between intelligence 
and criminal proceedings.
    Section 213 of this legislation authorizes the FBI to issue 
administrative subpoenas to compel information on anything that 
can be claimed relevant to an ongoing investigation. This 
authority can be delegated to an FBI field office without check 
of a Department of Justice attorney or prior court approval, as 
is currently required for FISA Business Records requests. As 
approved by the Committee, this provision would amount to a 
fishing license of unprecedented proportions.
    My amendment to Section 213 would have made two modest but 
critical changes to this provision: it would have limited the 
use of administrative subpoenas to emergency situations where 
life was on the line--which was the only case where the 
Administration has claimed a need for this authority; and the 
need for approval (even if done over the phone) by a U.S. 
Attorney or Department of Justice official.
    Proponents of the intelligence administrative subpoena 
point out that there are already 335 different cases where the 
federal government has subpoena authority. Very few of these 
cases involve the Department of Justice, and none pertain to 
intelligence. More importantly, in those cases, a crime has 
taken place and a subpoena has to hold up to scrutiny in court. 
In the intelligence regime, a record just has to relate to 
something that might happen in the future. There will almost 
never be any court review, and when there is, the government 
can argue its case in secret. In fact, the party being issued 
with the subpoena will almost never be able to disclose the 
very existence of the subpoena. In these cases, when the 
government is exercising its authorities behind closed doors, 
we should be requiring extra safeguards to protect civil 
liberties, not fewer.
    Finally, I supported and regret the defeat of Vice Chairman 
Rockefeller's amendment to provide the Attorney General with 
emergency powers under FISA to demand access to business 
records. This would not have replaced the administrative 
subpoena authority in the legislation, and would simply have 
provided emergency use authority as is already on the books for 
electronic surveillance and physical searches under FISA.
    It appears that if administrative subpoena authority is 
enacted, the FBI will find it an easier mechanism for obtaining 
records than the FISA Business Records authority provided under 
the PATRIOT Act. It is thus irrelevant that the Committee has 
included good legislation to improve these FISA statutes as the 
authority will not be used. I find it alarming that the 
Committee has chosen to replace, in effect, the most 
controversial element of the PATRIOT Act with a far broader 
subpoena authority subject to fewer checks on abuse.
    In short, the Committee's legislation strays from the well-
crafted and working balance struck in the PATRIOT Act. The 
provisions in Sections 202 and 213, neither of which had strong 
Administration support or justification, make fundamental 
changes to the way intelligence investigations are authorized 
and conducted. Both raise serious questions that need to be 
answered before this legislation is passed by the Senate.

                                                  Dianne Feinstein.

              MINORITY VIEWS OF SENATORS WYDEN AND CORZINE

    There are a number of provisions in this legislation that 
give cause for concern. Perhaps the most troubling, however, is 
section 213, which gives the FBI unprecedented, excessively 
broad authority to write its own administrative subpoenas.
    We are opposed to giving the FBI authority to write 
administrative subpoenas for foreign intelligence 
investigations. The Bureau failed to make the case for such new 
power and giving the FBI the authority to demand just about 
anything from anybody, with no independent check, simply by 
claiming that it is ``relevant'' to a national security 
investigation would lead us down a very dangerous path. 
Citizens have a right to feel secure that their government is 
not spying on them or soliciting information secretly without, 
at a minimum, authorization from a grand jury, federal judge, 
or the Foreign Intelligence Surveillance Court.
    The FBI already has access to the waterfront of personal 
information through the Foreign Intelligence Surveillance Act, 
or FISA warrant process. All it has to do is go before a judge 
and explain why the information is relevant. By giving the FBI 
the authority to write its own administrative subpoenas, we 
would be removing even this last, modest safeguard.
    Administrative subpoenas are currently used by many federal 
agencies in many different contexts--from investigating labor 
and environmental violations to criminal investigations. 
However, administrative subpoenas are extremely limited in 
application and use. Congress has explicitly limited the 
authority of the FBI to issue administrative subpoenas and set 
specific limits on what type of information the FBI could 
obtain and from whom. And the FBI is held firmly accountable, 
under all of the administrative subpoena powers presently held 
by the Bureau, to grand juries and federal courts of law, which 
ultimately review the issuance of such subpoenas.
    Except in a few very limited cases, administrative 
subpoenas are not used for national security investigations. 
That is because national security investigations are different 
from criminal investigations. They are conducted in secret, and 
do not require evidence of a crime. This is why there are 
different rules for the two types of investigations. Ignoring 
the distinction between the two is both inappropriate and 
unwise.
    As proposed, these subpoenas would be incredibly broad in 
scope. They could be used to gain access to citizens' credit 
records, video rentals, medical records, gun purchases--
effectively, they could be used to obtain just about anything. 
And they would be used to obtain this information without the 
knowledge, perhaps ever, of the individuals whose records are 
seized.
    These subpoenas would only be seen by a judge if the 
recipient of the subpoena decided to challenge it. Even if the 
recipient was properly notified of his or her right to 
challenge, they might not have the time or resources to do so.
    For example, there are 56 FBI Field Offices--one in almost 
every major American city. The head of the local field office 
could issue an administrative subpoena to a hospital director 
and ask for all the hospital's medical records, simply by 
claiming that the records were relevant to an investigation. It 
will be difficult, if not impossible, for a third party such as 
a hospital to know whether the subpoena was issued reasonably. 
And it is extremely unlikely that third party record holders 
would challenge the issuance of national security 
administrative subpoenas. Consequently, patients would not even 
know their records had been seized. They would be totally in 
the dark.
    Even the FBI acknowledges that it can get all the 
information it could possibly need with the investigative 
powers it currently has. The only reason the FBI has suggested 
for supporting administrative subpoenas is speed. It says that 
the FISA warrant process is sometimes too slow for time-
sensitive emergency situations.
    There were several amendments filed by the minority side 
that would have addressed the FBI's concern for speed without 
jeopardizing the privacy of law-abiding Americans. The simplest 
way to do this would be to modify the FISA statute to provide 
for emergency circumstances.
    Creating an emergency provision under FISA would give the 
FBI adequate authority to respond to emergency situations, 
which the FBI concedes would be very rare, without giving the 
Bureau unnecessarily broad powers that could be used for 
fishing expeditions, or without any showing of law-enforcement 
need.
    The emergency provision would give the Attorney General the 
authority to declare that particular business records are 
needed immediately to respond to an emergency situation. Under 
these circumstances, the FBI could notify a judge that it is 
serving an emergency warrant, and then make a more detailed 
application after responding to the emergency. For example, if 
the FBI learned that a group of terrorists was preparing for an 
attack and had rented a car at a particular location, the 
Attorney General could declare that this was a time-sensitive 
emergency. Then the FBI could notify a judge that it is serving 
an emergency warrant on the rental car agency, and demand that 
the agency give the Bureau descriptions and license numbers of 
all the cars the terrorists rented that morning. After the FBI 
had responded to the emergency, it would have to go back to the 
judge and formally apply for the warrant. If there was a case 
where the judge decided that the FBI had acted inappropriately, 
and refused to grant the warrant, then the agents would be 
prohibited from using or divulging the information that they 
had taken.
    It is essential for the FBI to have this sort of emergency 
power; however, it is equally essential that we provide 
automatic review by a judge to safeguard against abuse. We must 
never forget our ultimate goal: to make the United States safer 
while protecting the rights of all Americans. It cannot be an 
either/or question. We must expand the powers of the FBI to 
combat terrorism while ensuring that real safeguards exist to 
preserve our civil liberties.
    This is why administrative subpoena authority should be 
struck entirely from this legislation.
    We encourage our colleagues outside the committee to 
consider this legislation very carefully, and we look forward 
to continuing this debate on the Senate floor.

                                   Ron Wyden.
                                   Jon S. Corzine.

                                  
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