21 March 2006
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[Congressional Record: March 16, 2006 (Senate)]
[Page S2316-S2376]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr16mr06pt2-121]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. SPECTER:
S. 2453. A bill to establish procedures for the review of electronic
surveillance programs; to the Committee on the Judiciary.
Mr. SPECTER. Mr. President, I seek recognition today to introduce a
bill to regulate electronic surveillance programs designed to gather
intelligence for national security purposes.
On Friday, December 16, 2005, the New York Times reported that in
late 2001, President Bush signed a highly classified directive that
authorized the National Security Agency to intercept communications
between people inside the United States and terrorism suspects
overseas. And so the debate began. Did the President have the authority
to authorize this program? Did it violate the Foreign Intelligence
Surveillance Act--or FISA? Had Congress independently granted the
President this authority? Did he have these inherent powers under the
Constitution? Lawyers and laymen throughout our country have debated
the issue. The Senate Judiciary Committee initiated two hearings on the
legality of the NSA program and, pursuant to our oversight function,
brought in Attorney General Alberto Gonzales and seven leading scholars
and experts to testify. After questioning General Gonzales for some 7
hours, and the panel of scholars for hours more, we were still left
troubled by two competing concerns.
On the one hand, we are a Nation at war. On September 11 we suffered
the worst attack on civilians in our country's history by an enemy like
none we had faced before. The more we learn about this enemy, the more
we learn about a cruel and brutal opponent who will stop at nothing to
terrorize and harm our country. This is an enemy that knows no honor.
It seeks to inflict ever-escalating violence on defenseless civilians.
This is an enemy that knows no mercy. It beheads innocent aid workers
and journalists and proudly broadcasts these murders for the world to
see. This is an enemy that knows no bounds of decency. It recruits
women and children to strap bombs to their bodies and blow themselves
up, knowing that American soldiers are likely to come close to help
them. This is an enemy that is patient. It infiltrates our borders and
waits quietly for an opportunity to attack. Most frighteningly, this is
an enemy that is capable. It roams the globe, organizing terrorist
cells along its path. It has the ability to master and exploit modem
technology and organize attacks on America from anywhere on the globe.
On the other hand, we are a Nation that believes in the rule of law.
We are a people that hold dear the rights and liberties enshrined in
our Constitution. Although we recognize the threat we face, we are not
willing to sacrifice our rights and live in a state of perpetual fear.
Our enemy is the enemy of freedom, and we will not give that enemy the
satisfaction of making us give up the very freedom we cherish.
The question remains, what is a society like ours to do?
I do not agree with those who contend that the current FISA law is
just fine. When the FISA bill was enacted in 1978, we faced a very
different enemy. That enemy did not attack on our soil; that enemy was
organized into nation states that we could negotiate with; that enemy
did not use terrorist tactics on our civilian population. And in 1978,
we were grappling with very different technologies. We were worried
about telephone and telegraphs, not e-mail, cell phones, handheld
computers, and Internet chat rooms. Accordingly, the Congress passed a
law in 1978 that required case-by-case warrants; warrants that
identified individual persons and places; warrants a lot like those a
prosecutor would seek in a routine criminal investigation. These case-
by-case warrants, however, simply may not be sufficient today, when we
are in a time of war and we need to track an amorphous enemy that moves
quickly and is often able to evade detection.
At the same time, I do not agree with those who insist that we are
facing an entirely new situation, and that the checks and balances our
nation has long embraced are now outdated. I think these advocates are
wrong when they insist that the best we can do is to give the Executive
Branch a blank check and hope that it will do the right thing.
I believe that there is a middle ground. I believe it is possible to
provide the President with the flexibility and secrecy he needs to
track terrorists, while providing for meaningful supervision outside of
the Executive Branch. It may be surprising to some, but I think we can
get some insight from, of all places, a Senate hearing.
Let's step back and survey the situation. The country had recently
discovered that the NSA had secretly worked with major communication
companies for years. We learned that initially the program focused on
certain foreign targets, but it grew to cover communications from U.S.
citizens. Amid accusations that the President had violated the
Constitution and Federal statute, a Senate Committee called the
Attorney General to testify and address the ``serious legal and
constitutional questions . . . raised by the program.''
If this sounds familiar, it should. It is what took place in November
1975, when the nation discovered a secret NSA program to monitor
telegraph messages, and a special Senate Committee called Attorney
General Edward Levi to testify.
That hearing, like the hearing the Senate Judiciary Committee held
last week, elicited discussions on the importance of preserving civil
liberties and upholding the Bill of Rights, and the need to protect
national security and preserve secrecy in foreign intelligence. That
hearing also elicited a possible solution.
During his testimony to the Church Committee on U.S. Intelligence
Activities, Attorney General Levi suggested that one method for
granting the President the needed flexibility, while maintaining
supervision by the courts, was to give a special court the power to
issue broader, program-wide warrants. Attorney General Levi reasoned
that for programs ``designed to gather foreign-intelligence information
essential to the security of the Nation,'' the court should have the
power to approve
[[Page S2341]]
a ``program of surveillance.'' He explained that the traditional
warrant procedure works only when surveillance ``involves a particular
target location or individual at a specific time.'' While this
procedure was fine for routine, criminal investigations, the Nation
needed a different solution for enemies that require ``virtually
continuous surveillance, which by its nature does not have specifically
predetermined targets.'' Attorney General Levi suggested that in
approving a surveillance plan, the court should determine whether the
program ``strikes a reasonable balance between the government's need
for the information and the protection of individuals' rights.''
Unfortunately, we did not follow Attorney General Levi's suggestion.
It is not too late to do so, however. The National Security
Surveillance Act of 2006 seeks to pick up where the Congress of 1978
left off.
I believe that the National Security Surveillance Act sets forth
workable and effective procedures for the FISA Court to evaluate
surveillance programs. Its procedures, in fact, are very similar to
those Attorney General Levi advocated thirty years ago.
First, in order to continue the NSA program, or any similar programs,
the Attorney General must apply to the FISA court for permission to
initiate a surveillance program and then seek re-authorization of that
program every 45 days. The Attorney General must explain his legal
basis for concluding that the surveillance program is constitutional.
He must also provide a good deal of information to the court. He must:
identify or describe the foreign country or terrorist group he seeks to
monitor; provide enough facts to indicate one of the parties on the
line is a member of that foreign country or terrorist group or has had
communications with it; identify the steps he is taking to make sure
that innocent Americans are not being swept into the surveillance
program; determine that at least one of the parties is in the U. S.;
estimate the number of communications to be monitored; and provide data
so the FISA court can evaluate the program, including information on
how long the program has existed and what type of intelligence it has
uncovered.
The Attorney General should feel no concern in sharing information
about the program with the FISA court. The FISA court has proven that
it is capable of maintaining the secrecy with which it has been charged
and that it possesses the requisite expertise and discretion for
adjudicating sensitive issues of national security.
The FISA court must then determine whether approving the program is
consistent with the U.S. Constitution. It must also balance the
interests at stake and decide whether to approve the program.
Specifically, the court must: determine whether probable cause exists
to authorize the surveillance; evaluate whether historically the
government has implemented the electronic surveillance program in
accordance with its proposals; determine that at least one of the
participants to the electronic communication is a member of the foreign
country or terrorist group that the Attorney General has identified;
consider the privacy costs of the program as measured by the number of
communications subjected to the electronic surveillance program, the
length of time the electronic surveillance program has been in
existence, and the effectiveness of the minimization procedures; and
consider the benefits of the program as measured by the intelligence
information obtained or the number of plots uncovered or cells
disrupted.
The Attorney General must resubmit the program to the FISA court
every 45 days. In the event the FISA court refuses to approve the
electronic surveillance program, that does not end the matter. The
Attorney General may modify the program and then submit a new
application, until the FISA court concludes that the program satisfies
the Constitution and the standards set forth in this bill. In the
alternative, the Attorney General may conclude that implementing an
amended program is inappropriate in light of the FISA court's concerns.
The FISA court would itself be required to notify Congress of its
decision with respect to the proffered program's constitutionality.
Finally, the bill requires the Attorney General to submit information
on the program's scope and effectiveness to the Chairman and Ranking
Member of the Senate and House Intelligence Committees every 6 months.
In the case at hand, the Attorney General would be required to
justify the NSA surveillance program to the FISA court, which would, in
turn, determine whether the program met all constitutional and legal
requirements. The court would be required to consider, for example,
whether members of Al Qaeda were appropriately targeted, whether proper
minimization techniques were being followed, and whether the program
satisfied the demands of the Fourth Amendment.
There are those who will say that we should not act. That currently,
things are fine. I would remind my colleagues that our enemies are not
so content to sit still. A country that does not understand that our
enemy has changed since the 1970s will come to regret it. And a
Congress that pauses when it should act, denies its duty to adapt to
the enemy we currently face. But, ultimately, the enemies of democracy
win when civil liberties are lost. We must maintain our democracy and
defeat our enemies.
This legislation does both and I urge my colleagues to support it.
Mr. President, I ask unanimous consent that the text of the bill be
printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 2453
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Security
Surveillance Act of 2006''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) After the terrorist attacks of September 11, 2001,
President Bush authorized the National Security Agency to
intercept communications between people inside the United
States, including American citizens, and terrorism suspects
overseas.
(2) One of the lessons learned from September 11, 2001, is
that the enemies who seek to greatly harm and terrorize our
Nation utilize technologies and techniques that defy
conventional law enforcement practices.
(3) The Commander in Chief requires the ability and means
to detect and track an enemy that can master and exploit
modern technology.
(4) Although it is essential that the President have all
necessary means to protect us against our enemies, it is
equally essential that, in doing so, the President does not
compromise the very civil liberties that the President seeks
to safeguard. As Justice Hugo Black observed, ``The
President's power, if any, to issue [an] order must stem
either from an Act of Congress or from the Constitution
itself.''. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 585 (1952) (opinion by Black, J.).
(5) In 2004, Justice Sandra Day O'Connor explained in her
plurality opinion for the Supreme Court in Hamdi v. Rumsfeld:
``We have long since made clear that a state of war is not a
blank check for the President when it comes to the rights of
the Nation's citizens. Youngstown Sheet & Tube, 343 U.S., at
587, 72 S.Ct. 863. Whatever power the United States
Constitution envisions for the Executive in its exchanges
with other nations or with enemy organizations in times of
conflict, it most assuredly envisions a role for all three
branches when individual liberties are at stake.''. Hamdi v.
Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted).
(6) Similarly, as Justice Jackson famously observed in his
Youngstown concurrence: ``When the President acts pursuant to
an express or implied authorization of Congress, his
authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can
delegate . . . . When the President acts in absence of either
a congressional grant or denial of authority, he can only
rely upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain.
Therefore, congressional inertia, indifference or quiescence
may sometimes, at least as a practical matter, enable, if not
invite, measures on independent presidential responsibility .
. . When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of
Congress over the matter. Courts can sustain exclusive
Presidential control in such a case only by disabling the
Congress from acting upon the subject.''. Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952)
(Jackson, J., concurring).
(7) The Constitution provides Congress with broad powers of
oversight over national security and foreign policy, under
article I, section 8 of the Constitution of the United
States, which confers on Congress numerous powers, including
the powers--
(A) ``To declare War, grant Letters of Marque and Reprisal,
and make Rules concerning Captures on Land and Water'';
[[Page S2342]]
(B) ``To raise and support Armies'';
(C) ``To provide and maintain a Navy'';
(D) ``To make Rules for the Government and Regulation of
the land and naval Forces'';
(E) ``To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel
Invasions''; and
(F) ``To provide for organizing, arming, and disciplining
the Militia, and for governing such Part of them as may be
employed in the Service of the United States''.
(8) It is in our Nation's best interest for Congress to use
its oversight power to establish a system to ensure that
electronic surveillance programs do not infringe on the
constitutional rights of Americans, while at the same time
making sure that the President has all the powers and means
necessary to detect and track our enemies.
(9) While Attorney General Alberto Gonzales explained that
the executive branch reviews the electronic surveillance
program of the National Security Agency every 45 days to
ensure that the program is not overly broad, it is the belief
of Congress that approval and supervision of electronic
surveillance programs should be conducted outside of the
executive branch, by the Article III court established under
section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803). It is also the belief of Congress that
it is appropriate for an Article III court to pass upon the
constitutionality of electronic surveillance programs that
may implicate the rights of Americans.
(10) The Foreign Intelligence Surveillance Court is the
proper court to approve and supervise classified electronic
surveillance programs because it is adept at maintaining the
secrecy with which it was charged and it possesses the
requisite expertise and discretion for adjudicating sensitive
issues of national security.
(11) In 1975, then-Attorney General Edward Levi, a strong
defender of executive authority, testified that in times of
conflict, the President needs the power to conduct long-range
electronic surveillance and that a foreign intelligence
surveillance court should be empowered to issue special
warrants in these circumstances.
(12) This Act clarifies and definitively establishes that
the Foreign Intelligence Surveillance Court has the authority
to review electronic surveillance programs and pass upon
their constitutionality. Such authority is consistent with
well-established, longstanding practices.
(13) The Foreign Intelligence Surveillance Court already
has broad authority to approve surveillance of members of
international conspiracies, in addition to granting warrants
for surveillance of a particular individual under sections
104, 105, and 402 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1804, 1805, and 1842).
(14) Prosecutors have significant flexibility in
investigating domestic conspiracy cases. Courts have held
that flexible warrants comply with the fourth amendment to
the Constitution of the United States when they relate to
complex, far reaching, and multi-faceted criminal enterprises
like drug conspiracies and money laundering rings. The courts
recognize that applications for search warrants must be
judged in a common sense and realistic fashion, and the
courts permit broad warrant language where, due to the nature
and circumstances of the investigation and the criminal
organization, more precise descriptions are not feasible.
(15) Federal agents investigating international terrorism
by foreign enemies are entitled to tools at least as broad as
those used by Federal agents investigating domestic crimes by
United States citizens. The Supreme Court, in the ``Keith
Case'', United States v. United States District Court for the
Eastern District of Michigan, 407 U.S. 297 (1972), recognized
that the standards and procedures used to fight ordinary
crime may not be applicable to cases involving national
security. The Court recognized that national ``security
surveillance may involve different policy and practical
considerations from the surveillance of ordinary crime'' and
that courts should be more flexible in issuing warrants in
national security cases. United States v. United States
District Court for the Eastern District of Michigan, 407 U.S.
297, 322 (1972).
(16) By authorizing the Foreign Intelligence Surveillance
Court to review electronic surveillance programs, Congress
preserves the ability of the Commander in Chief to use the
necessary means to guard our national security, while also
protecting the civil liberties and constitutional rights that
we cherish.
SEC. 3. DEFINITIONS.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended--
(1) by redesignating title VII as title VIII;
(2) by redesignating section 701 as section 801; and
(3) by inserting after title VI the following:
``TITLE VII--ELECTRONIC SURVEILLANCE
``SEC. 701. DEFINITIONS.
``As used in this title--
``(1) the terms `agent of a foreign power', `Attorney
General', `foreign intelligence information' ,`foreign
power', `international terrorism', `minimization procedures',
`person', `United States', and `United States person' have
the same meaning as in section 101;
``(2) the term `congressional intelligence committees'
means the Select Committee on Intelligence of the Senate and
the Permanent Select Committee on Intelligence of the House
of Representatives;
``(3) the term `electronic communication' means any
transfer of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in part by
a wire, radio, electromagnetic, photoelectronic or
photooptical system, cable, or other like connection
furnished or operated by any person engaged as a common
carrier in providing or operating such facilities for the
transmission of communications;
``(4) the term `electronic surveillance' means the
acquisition by an electronic, mechanical, or other
surveillance device of the substance of any electronic
communication sent by, received by, or intended to be
received by a person who is in the United States, where there
is a reasonable possibility that the surveillance will
intercept communication in which a person in the United
States participating in the communication has a reasonable
expectation of privacy;
``(5) the term `electronic surveillance program' means a
program to engage in electronic surveillance--
``(A) to gather foreign intelligence information or to
protect against international terrorism or clandestine
intelligence activities by obtaining the substance of or
information regarding electronic communications sent by,
received by, or intended to be received by a foreign power,
an agent or agents of a foreign power, or a person or persons
who have had communication with a foreign power seeking to
commit an act of international terrorism or clandestine
intelligence activities against the United States;
``(B) where it is not feasible to name every person or
address every location to be subjected to electronic
surveillance; and
``(C) where effective gathering of foreign intelligence
information requires an extended period of electronic
surveillance;
``(6) the term `Foreign Intelligence Surveillance Court'
means the court, sitting en banc, established under section
103(a);
``(7) the term `Foreign Intelligence Surveillance Court of
review' means the court established under section 103(b);
(8) the term `intercept' means the acquisition of the
substance of any electronic communication by a person through
the use of any electronic, mechanical, or other device; and
``(9) the term `substance' means any information concerning
the words, purport, or meaning of a communication, and does
not include information identifying the sender, origin, or
recipient of the communication or the date or time of its
transmission.''.
SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION
TO REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.
Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 3, is amended by adding at the
end the following:
``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT
JURISDICTION TO REVIEW ELECTRONIC SURVEILLANCE
PROGRAMS.
``(a) In General.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to issue an order under this
title, lasting not longer than 45 days, that authorizes an
electronic surveillance program to obtain foreign
intelligence information or to protect against international
terrorism or clandestine intelligence activities.
``(b) Reauthorization.--In order to continue an electronic
surveillance program after the time period described in
subsection (a), the Attorney General shall submit a new
application under section 703. There shall be no limit on the
number of times the Attorney General may seek approval of an
electronic surveillance program.
``(c) Modifications and Appeal in Event Application Is
Denied.--
``(1) In general.--In the event that the Foreign
Intelligence Surveillance Court refuses to approve an
application under subsection (a), the court shall state its
reasons in a written opinion.
``(2) Opinion.--The court shall submit a written opinion
described in paragraph (1) to the Attorney General and to
each member of the congressional intelligence committees (or
any subcommittee thereof designated for oversight of
electronic surveillance programs under this title).
``(3) Resubmission or appeal.--The Attorney General shall
be permitted to submit a new application under section 703
for the electronic surveillance program, reflecting
modifications to address the concerns set forth in the
written opinion of the Foreign Intelligence Surveillance
Court. There shall be no limit on the number of times the
Attorney General may seek approval of an electronic
surveillance program. Alternatively, the Attorney General
shall be permitted to appeal the decision of the Foreign
Intelligence Surveillance Court to the Foreign Intelligence
Surveillance Court of Review.
``(d) Communications Subject to This Title.--
``(1) In general.--The provisions of this title requiring
authorization by the Foreign Intelligence Surveillance Court
apply only to interception of the substance of electronic
communications sent by, received by, or intended to be
received by a person who is in the United States, where there
is a reasonable possibility that a participant in the
communication has a reasonable expectation of privacy.
``(2) Exclusion.--The provisions of this title requiring
authorization by the Foreign Intelligence Surveillance Court
do not apply
[[Page S2343]]
to information identifying the sender, origin, or recipient
of the electronic communication or the date or time of its
transmission that is obtained without review of the substance
of the electronic communication.
``(e) Existing Programs Subject to This Title.--
``(1) In general.--The Attorney General shall submit an
application to the Foreign Intelligence Surveillance Court
for any electronic surveillance program to obtain foreign
intelligence information or to protect against international
terrorism or clandestine intelligence activities.
``(2) Existing programs.--Not later than 45 days after the
date of enactment of this title, the Attorney General shall
submit an application under this title for approval of the
electronic surveillance program sometimes referred to as the
`Terrorist Surveillance Program' and discussed by the
Attorney General before the Committee on the Judiciary of the
United States Senate on February 6, 2006. Not later than 120
days after the date of enactment of this title, the Attorney
General shall submit applications under this title for
approval of any other electronic surveillance program in
existence on the date of enactment of this title that has not
been submitted to the Foreign Intelligence Surveillance
Court.''.
SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE
PROGRAMS.
Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 4, is amended by adding at the
end the following:
``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC
SURVEILLANCE PROGRAMS.
``(a) In General.--Each application for approval of an
electronic surveillance program under this title shall--
``(1) be made by the Attorney General;
``(2) include a statement of the authority conferred on the
Attorney General by the President of the United States;
``(3) include a statement setting forth the legal basis for
the conclusion by the Attorney General that the electronic
surveillance program is consistent with the requirements of
the Constitution of the United States;
``(4) certify that the information sought cannot reasonably
be obtained by conventional investigative techniques or
through an application under section 104;
``(5) include the name, if known, identity, or description
of the foreign power or agent of a foreign power seeking to
commit an act of international terrorism or clandestine
intelligence activities against the United States that the
electronic surveillance program seeks to monitor or
detect;
``(6) include a statement of the means and operational
procedures by which the surveillance will be executed and
effected;
``(7) include a statement of the facts and circumstances
relied upon by the Attorney General to justify the belief
that at least 1 of the participants in the communications to
be intercepted by the electronic surveillance program will be
the foreign power or agent of a foreign power that is
specified under paragraph (5), or a person who has had
communication with the foreign power or agent of a foreign
power that is specified under paragraph (5), and is seeking
to commit an act of international terrorism or clandestine
intelligence activities against the United States;
``(8) include a statement of the proposed minimization
procedures;
``(9) include a detailed description of the nature of the
information sought and the type of communication to be
intercepted by the electronic surveillance program;
``(10) include an estimate of the number of communications
to be intercepted by the electronic surveillance program
during the requested authorization period;
``(11) specify the date that the electronic surveillance
program that is the subject of the application was initiated,
if it was initiated before submission of the application;
``(12) certify that any electronic surveillance of a person
in the United States under this title shall cease 45 days
after the date of the authorization, unless the Government
has obtained judicial authorization for continued
surveillance of the person in the United States under section
104 or another Federal statute;
``(13) include a statement of the facts concerning all
previous applications that have been made to the Foreign
Intelligence Surveillance Court under this title involving
the electronic surveillance program in the application,
including the minimization procedures and the means and
operational procedures proposed, and the Foreign Intelligence
Surveillance Court's decision on each previous application;
and
``(14) include a statement of the facts concerning the
implementation of the electronic surveillance program
described in the application, including, for any period of
operation of the program authorized at least 45 days prior to
the date of submission of the application--
``(A) the minimization procedures implemented;
``(B) the means and operational procedures by which the
surveillance was executed and effected;
``(C) the number of communications subjected to the
electronic surveillance program;
``(D) the identity, if known, or a description of any
United States person whose communications sent or received in
the United States were intercepted by the electronic
surveillance program; and
``(E) a description of the foreign intelligence information
obtained through the electronic surveillance program.
``(b) Additional Information.--The Foreign Intelligence
Surveillance Court may require the Attorney General to
furnish such other information as may be necessary to make a
determination under section 704.''.
SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.
Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 5, is amended by adding at the
end the following:
``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.
``(a) Necessary Findings.--Upon receipt of an application
under section 703, the Foreign Intelligence Surveillance
Court shall enter an ex parte order as requested, or as
modified, approving the electronic surveillance program if it
finds that--
``(1) the President has authorized the Attorney General to
make the application for electronic surveillance for foreign
intelligence information;
``(2) approval of the electronic surveillance program in
the application is consistent with the duty of the Foreign
Intelligence Surveillance Court to uphold the Constitution of
the United States;
``(3) there is probable cause to believe that the
electronic surveillance program will intercept communications
of the foreign power or agent of a foreign power specified in
the application, or a person who has had communication with
the foreign power or agent of a foreign power that is
specified in the application and is seeking to commit an act
of international terrorism or clandestine intelligence
activities against the United States;
``(4) the proposed minimization procedures meet the
definition of minimization procedures under section 101 (h);
``(5) the application contains all statements and
certifications required by section 703; and
``(6) an evaluation of the implementation of the electronic
surveillance program, as described in subsection (b),
supports approval of the application.
``(b) Evaluation of the Implementation of the Electronic
Surveillance Program.--In determining whether the
implementation of the electronic surveillance program
supports approval of the application for purposes of
subsection (a)(6), the Foreign Intelligence Surveillance
Court shall consider the performance of the electronic
surveillance program for at least 3 previously authorized
periods, to the extent such information is available, and
shall--
``(1) evaluate whether the electronic surveillance program
has been implemented in accordance with the proposal by the
Federal Government by comparing--
``(A) the minimization procedures proposed with the
minimization procedures implemented;
``(B) the nature of the information sought with the nature
of the information obtained; and
``(C) the means and operational procedures proposed with
the means and operational procedures implemented;
``(2) consider the number of communications intercepted by
the electronic surveillance program and the length of time
the electronic surveillance program has been in existence;
and
``(3) consider the effectiveness of the electronic
surveillance program, as reflected by the foreign
intelligence information obtained.''.
SEC. 7. CONGRESSIONAL OVERSIGHT.
Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 6, is amended by adding at the
end the following:
``SEC. 705. CONGRESSIONAL OVERSIGHT.
``(a) In Genera1.--The President shall submit to each
member of the congressional , intelligence committees (or any
subcommittee thereof designated for oversight of electronic
surveillance programs under this title) a report on the
management and operational details of the electronic
surveillance program generally and on any specific
surveillance conducted under the electronic surveillance
program whenever requested by either of the committees, or
any such subcommittee, as applicable.
``(b) Semi-Annual Reports.--
``(1) In general.--In addition to any reports required
under subsection (a), the President shall, not later than 6
months after the date of enactment of this Act and every 6
months thereafter, fully inform each member of the
congressional intelligence committees (or any subcommittee
thereof designated for oversight of electronic surveillance
programs under this title) on all electronic surveillance
conducted under the electronic surveillance program.
``(2) Contents.--Each report under paragraph (1) shall
include the following:
``(A) A complete discussion of the management, operational
details, effectiveness, and necessity of the electronic
surveillance program generally, and of the management,
operational details, effectiveness, and necessity of all
electronic surveillance conducted under the program, during
the 6-month period ending on the date of such report.
``(B) The total number of targets of electronic
surveillance commenced or continued under the electronic
surveillance program.
``(C) The total number of United States persons targeted
for electronic surveillance under the electronic surveillance
program.
``(D) The total number of targets of electronic
surveillance under the electronic surveillance program for
which an application
[[Page S2344]]
was submitted under section 104 for an order under section
105 approving electronic surveillance, and, of such
applications, the total number either granted, modified, or
denied.
``(E) Any other information specified, in writing, to be
included in such report by the congressional intelligence
committees or any subcommittees thereof designated for
oversight of the electronic surveillance program.
``(F) A description of the nature of the information sought
under the electronic surveillance program, the types of
communications subjected to such program, and whether the
information sought under such program could be reasonably
obtained by less intrusive investigative techniques in a
timely and effective manner.
``(c) Form of Reports.--Any report or information submitted
under this section shall be submitted in classified form.''.
SEC. 8. EMERGENCY AUTHORIZATION.
Title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by section 6, is amended by adding at the
end the following:
``SEC. 706. EMERGENCY AUTHORIZATION.
``Notwithstanding any other provision of law, the
President, through the Attorney General, may authorize
electronic surveillance without a court order under this
title to acquire foreign intelligence information for a
period not to exceed 45 days following a declaration of war
by Congress.''.
SEC. 9. CONFORMING AMENDMENT.
The table of contents for the Foreign Intelligence
Surveillance Act of 1978 is amended I by striking the items
related to title VII and section 701 and inserting the
following:
``TITLE VII--ELECTRONIC SURVEILLANCE
``Sec. 701. Definitions.
``Sec. 702. Foreign Intelligence Surveillance Court jurisdiction to
review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance
programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.
``Sec. 706. Emergency Authorization.
``TITLE VIII--EFFECTIVE DATE
``Sec. 801. Effective date.''.
______