II 

109TH CONGRESS 

2D SESSION S. 2362 

To establish the National Commission on Surveillance Activities and the 

Rights of Americans. 

IN THE SENATE OF THE UNITED STATES 

MARCH 2, 2006 

Mr. BYRD introduced the following bill; which was read twice and referred to 

the Committee on the Judiciary 

A BILL 

To establish the National Commission on Surveillance 

Activities and the Rights of Americans. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Surveillance Activities 

5 Commission Act of 2006’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 

8 (1) the term ‘‘Commission’’ means the National 

9 Commission on Surveillance Activities and the 

10 Rights of Americans established under section 3; 


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1 (2) the term ‘‘electronic surveillance’’ has the 

2 same meaning as in section 101 of the Foreign In3 telligence Surveillance Act of 1978 (50 U.S.C. 

4 1801); 

5 (3) the term ‘‘Foreign Intelligence Surveillance 

6 Court’’ means the court established under section 

7 103(a) of the Foreign Intelligence Surveillance Act 

8 of 1978 (50 U.S.C. 1803(a)); 

9 (4) the terms ‘‘pen register’’ and ‘‘trap and 

10 trace device’’ have the same meaning as in section 

11 3127 of title 18, United States Code; 

12 (5) The term ‘‘physical search’’ has the same 

13 meaning as in section 301 of the Foreign Intel14 ligence Surveillance Act of 1978 (50 U.S.C. 1821); 

15 (6) the term ‘‘surveillance’’ means any elec16 tronic surveillance, physical search, use of a pen reg17 ister or trap and trace device, order for the produc18 tion of any tangible item, or surveillance activity for 

19 which a Federal or State government agent is re20 quired to obtain a warrant, before or after engaging 

21 in the activity; and 

22 (7) the term ‘‘warrantless surveillance pro23 gram’’ means a program of warrantless surveillance 

24 conducted inside the United States by any Federal 

25 or State agency. 


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1 SEC. 3. ESTABLISHMENT OF COMMISSION. 

2 There is established in the legislative branch the Na3 tional Commission on Surveillance Activities and the 

4 Rights of Americans to conduct an investigation and to 

5 study governmental operations with respect to warrantless 

6 surveillance conducted inside the United States and intel7 ligence activities, and the extent, if any, to which illegal, 

8 improper, or unethical activities were engaged in by any 

9 Federal, State, or local government agency or any person 

10 employed by a Federal, State, or local government. 

11 SEC. 4. PURPOSES. 

12 The purposes of the Commission are to— 

13 (1) examine and report upon the facts, causes, 

14 and use of executive authority relating to any 

15 warrantless surveillance conducted inside the United 

16 States that occurred after September 11, 2001, by 

17 the National Security Agency or any other Federal 

18 or State agency, and the extent to which any illegal, 

19 improper, or unethical activities were engaged in by 

20 any agency or by any person, acting either individ21 ually or in combination with others, in carrying out 

22 any surveillance activities; 

23 (2) examine the origin and operation of any 

24 warrantless surveillance conducted inside the United 

25 States, including the collection, processing, analysis, 


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1 dissemination, and retention of intelligence informa2 tion; 

3 (3) report on any constitutional, statutory, and 

4 regulatory basis for any warrantless surveillance pro5 gram, including all presidential orders and author6 izations, and all opinions, instructions, or guidance 

7 concerning any warrantless surveillance program 

8 provided by the Department of Justice, the Director 

9 of Central Intelligence, the Director of National In10 telligence, the Director of the National Security 

11 Agency, the Department of Defense, or any depart12 ment, office, or agency of the Federal Government, 

13 and any of their subordinate offices or officials, ei14 ther in writing or verbally; 

15 (4) examine any periodic reviews of any 

16 warrantless surveillance program, including all re17 views conducted by the National Security Agency In18 spector General, the Department of Justice, or any 

19 other Federal agency; 

20 (5) gather any information regarding questions 

21 raised by any judge of the Foreign Intelligence Sur22 veillance Court regarding any warrantless surveil23 lance program or the utilization of intelligence col24 lected under such program, and any response by the 

25 Department of Justice to any such inquiries, includVerDate Aug 31 2005 03:12 Mar 04, 2006 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2362.IS S2362

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1 ing any temporary cessation of such surveillance ac2 tivities; 

3 (6) investigate any participation by, or use of 

4 the facilities or personnel of, United States elec5 tronic communications providers in warrantless sur6 veillance conducted inside the United States, includ7 ing the origin of certifications or representations 

8 provided to such providers concerning the legal au9 thority for their cooperation; 

10 (7) ascertain, evaluate, and report on the evi11 dence developed by all relevant governmental agen12 cies regarding any facts or circumstances that may 

13 have violated the separation of powers enumerated 

14 in the Constitution of the United States, including— 

15 (A) article I, sections 1 and 8 of the Con16 stitution of the United States; and 

17 (B) article III, sections 1 and 2 of the 

18 Constitution of the United States; 

19 (8) ascertain and evaluate any potential viola20 tions, including violations of the first, fourth, and 

21 fourteenth amendments to the Constitution of the 

22 United States; 

23 (9) investigate and report on any violation of 

24 the Foreign Intelligence Surveillance Act (50 U.S.C. 

25 1801 et seq.), or any other applicable law; 


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1 (10) examine the duty of the President to brief 

2 all Members of Congress regarding warrantless sur3 veillance of United States citizens conducted inside 

4 the United States; 

5 (11) build upon the investigations of other enti6 ties, and avoid unnecessary duplication, by reviewing 

7 the findings, conclusions, and recommendations of— 

8 (A) any investigation by a Committee of 

9 the Senate or the House of Representatives; 

10 and 

11 (B) other executive branch, congressional, 

12 or independent commission investigations into 

13 the warrantless surveillance conducted inside 

14 the United States; 

15 (12) make a full and complete accounting of the 

16 circumstances surrounding warrantless surveillance 

17 conducted inside the United States, including an as18 sessment of its effectiveness in protecting the United 

19 States from terrorism; 

20 (13) make a full and complete accounting of the 

21 use of any appropriated funds by any Federal, State, 

22 or local government agency or any person employed 

23 by a Federal, State, or local government in carrying 

24 out warrantless surveillance; and 


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1 (14) investigate and report to the President and 

2 Congress on its findings, conclusions, and rec3 ommendations for corrective measures that should 

4 be taken regarding any violations of any law dealing 

5 with intelligence gathering, and to prevent future 

6 violations. 

7 SEC. 5. COMPOSITION OF COMMISSION. 

8 (a) MEMBERS.—The Commission shall be composed 

9 of 14 members, of whom— 

10 (1) 1 member, who shall serve as Chairman of 

11 the Commission, shall be appointed by the Majority 

12 Leader of the Senate, in consultation with the Ma13 jority Leader of the House of Representatives; 

14 (2) 1 member, who shall serve as Vice Chair15 man of the Commission, shall be appointed by the 

16 Minority Leader of the Senate, in consultation with 

17 the Minority Leader of the House of Representa18 tives; 

19 (3) 1 member shall be appointed by the Chair20 man of the Committee on the Judiciary of the Sen21 ate; 

22 (4) 1 member shall be appointed by the Rank23 ing Member of the Committee on the Judiciary of 

24 the Senate; 


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1 (5) 1 member shall be appointed by the Chair2 man of the Select Committee on Intelligence of the 

3 Senate; 

4 (6) 1 member shall be appointed by the Vice 

5 Chairman of the Select Committee on Intelligence of 

6 the Senate; 

7 (7) 1 member shall be appointed by the Chair8 man of the Committee on the Judiciary of the 

9 House of Representatives; 

10 (8) 1 member shall be appointed by the Rank11 ing Member of the Committee on the Judiciary of 

12 the House of Representatives; 

13 (9) 1 member shall be appointed by the Chair14 man of the Permanent Select Committee on Intel15 ligence of the House of Representatives; 

16 (10) 1 member shall be appointed by the Rank17 ing Member of the Permanent Select Committee on 

18 Intelligence of the House of Representatives; 

19 (11) 1 member shall be appointed by the Chair20 man of the Committee on Appropriations of the Sen21 ate; 

22 (12) 1 member shall be appointed by the Rank23 ing Member of the Committee on Appropriations of 

24 the Senate; 


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1 (13) 1 member shall be appointed by the Chair2 man of the Committee on Appropriations of the 

3 House of Representatives; and 

4 (14) 1 member shall be appointed by the Rank5 ing Member of the Committee on Appropriations of 

6 the House of Representatives. 

7 (b) DATE OF APPOINTMENT.—All members of the 

8 Commission shall be appointed not later than the date 

9 that is 3 months after the date of enactment of this Act. 

10 (c) QUALIFICATIONS; INITIAL MEETING.— 

11 (1) NONGOVERNMENTAL APPOINTEES.—An in12 dividual appointed to the Commission may not be an 

13 officer or employee of the Federal Government or 

14 any State or local government. 

15 (2) OTHER QUALIFICATIONS.—It is the sense of 

16 Congress that individuals appointed to the Commis17 sion should be prominent United States citizens, 

18 with national recognition and significant depth of ex19 perience in such professions as law, intelligence 

20 gathering, and foreign affairs. 

21 (3) INITIAL MEETING.—The Commission shall 

22 meet and begin the operations of the Commission as 

23 soon as practicable. 

24 (d) QUORUM; VACANCIES.—After its initial meeting, 

25 the Commission shall meet upon the call of the Chairman 


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1 or a majority of its members. Six members of the Commis2 sion shall constitute a quorum. Any vacancy in the Com3 mission shall not affect its powers, but shall be filled in 

4 the same manner in which the original appointment was 

5 made. 

6 SEC. 6. FUNCTIONS OF COMMISSION. 

7 The functions of the Commission are to— 

8 (1) conduct an investigation that— 

9 (A) investigates relevant facts and cir10 cumstances relating to all incidents of 

11 warrantless surveillance conducted inside the 

12 United States, including any relevant legisla13 tion, Executive order, regulation, plan, policy, 

14 practice, or procedure; and 

15 (B) may include relevant facts and cir16 cumstances relating to— 

17 (i) intelligence agencies and intel18 ligence gathering; 

19 (ii) the Authorization for Use of Mili20 tary Force, (Public Law 107–40; 50 

21 U.S.C. 1541 note), as a justification for 

22 warrantless surveillance conducted inside 

23 the United States; 

24 (iii) any use of appropriated funds in 

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1 ducted inside the United States in con2 tradiction of Federal law; 

3 (iv) the jurisdiction of the Foreign In4 telligence Surveillance Court, in issuing 

5 warrants for the purpose of surveillance 

6 conducted inside the United States; 

7 (v) the role of congressional oversight 

8 and resource allocation; 

9 (vi) possible legislative initiatives that 

10 could strengthen the use of lawful surveil11 lance conducted inside the United States in 

12 effectively protecting national security, 

13 while preserving constitutional checks and 

14 balances and liberties; and 

15 (vii) other areas of the public and pri16 vate sectors determined relevant by the 

17 Commission for its inquiry; and 

18 (2) submit to the President and Congress such 

19 reports as are required by this Act containing such 

20 findings, conclusions, and recommendations as the 

21 Commission shall determine, including proposing or22 ganization, coordination, planning, management ar23 rangements, procedures, rules, and regulations. 

24 SEC. 7. POWERS OF COMMISSION. 

25 (a) IN GENERAL.— 


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1 (1) HEARINGS AND EVIDENCE.—The Commis2 sion or, on the authority of the Commission, any 

3 subcommittee or member thereof, may, for the pur4 pose of carrying out this Act— 

5 (A) hold such hearings and sit and act at 

6 such times and places, take such testimony, re7 ceive such evidence, administer such oaths; and 

8 (B) subject to paragraph (2)(A), require, 

9 by subpoena or otherwise, the attendance and 

10 testimony of such witnesses and the production 

11 of such books, records, correspondence, memo12 randa, papers, and documents, as the Commis13 sion or such designated subcommittee or des14 ignated member may determine advisable. 

15 (2) SUBPOENAS.— 

16 (A) ISSUANCE.— 

17 (i) IN GENERAL.—A subpoena may be 

18 issued under this subsection only— 

19 (I) by the agreement of the 

20 Chairman and the Vice Chairman; or 

21 (II) by the affirmative vote of 8 

22 members of the Commission. 

23 (ii) SIGNATURE.—Subject to clause 

24 (i), subpoenas issued under this subsection 

25 may be issued under the signature of the 


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1 Chairman or any member designated by a 

2 majority of the Commission, and may be 

3 served by any person designated by the 

4 Chairman or by a member designated by a 

5 majority of the Commission. 

6 (B) ENFORCEMENT.—In the case of contu7 macy or failure to obey a subpoena issued the 

8 United States district court for the judicial dis9 trict in which the subpoenaed person resides, is 

10 served, or may be found, or where the subpoena 

11 is returnable, may issue an order requiring such 

12 person to appear at any designated place to tes13 tify or to produce documentary or other evi14 dence. Any failure to obey the order of the 

15 court may be punished by the court as a con16 tempt of that court. 

17 (b) CONTRACTING.—The Commission may, to such 

18 extent and in such amounts as are provided in appropria19 tion Acts, enter into contracts to enable the Commission 

20 to discharge its duties under this Act. 

21 (c) INFORMATION FROM FEDERAL AGENCIES.— 

22 (1) IN GENERAL.—The Commission is author23 ized to secure directly from any executive depart24 ment, bureau, agency, board, commission, office, 

25 independent establishment, or instrumentality of the 


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1 Federal Government, information, suggestions, esti2 mates, and statistics for the purposes of this Act. 

3 Each department, bureau, agency, board, commis4 sion, office, independent establishment, or instru5 mentality shall, to the extent authorized by law, fur6 nish such information, suggestions, estimates, and 

7 statistics directly to the Commission, upon request 

8 made by the Chairman, the Chairman of any sub9 committee created by a majority of the Commission, 

10 or any member designated by a majority of the 

11 Commission. 

12 (2) RECEIPT, HANDLING, STORAGE, AND DIS13 SEMINATION.—Information shall only be received, 

14 handled, stored, and disseminated by members of 

15 the Commission and its staff consistent with all ap16 plicable statutes, regulations, and Executive orders. 

17 (d) ASSISTANCE FROM FEDERAL AGENCIES.— 

18 (1) GENERAL SERVICES ADMINISTRATION.— 

19 The Administrator of General Services shall provide 

20 to the Commission on a reimbursable basis adminis21 trative support and other services for the perform22 ance of the Commission’s functions. 

23 (2) OTHER DEPARTMENTS AND AGENCIES.—In 

24 addition to the assistance prescribed in paragraph 

25 (1), departments and agencies of the United States 


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1 may provide to the Commission such services, funds, 

2 facilities, staff, and other support services as they 

3 may determine advisable and as may be authorized 

4 by law. 

5 (e) POSTAL SERVICES.—The Commission may use 

6 the United States mails in the same manner and under 

7 the same conditions as departments and agencies of the 

8 United States. 

9 SEC. 8. NONAPPLICABILITY OF FEDERAL ADVISORY COM10 MITTEE ACT. 

11 (a) IN GENERAL.—The Federal Advisory Committee 

12 Act (5 U.S.C. App.) shall not apply to the Commission. 

13 (b) PUBLIC MEETINGS AND RELEASE OF PUBLIC

14 VERSIONS OF REPORTS.—The Commission shall— 

15 (1) hold public hearings and meetings to the ex16 tent appropriate; and 

17 (2) release public versions of the reports re18 quired under subsections (a) and (b) of section 12. 

19 (c) PUBLIC HEARINGS.—Any public hearings of the 

20 Commission shall be conducted in a manner consistent 

21 with the protection of information provided to or developed 

22 for or by the Commission as required by any applicable 

23 statute, regulation, or Executive order. 

24 SEC. 9. STAFF OF COMMISSION. 

25 (a) IN GENERAL.— 


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1 (1) APPOINTMENT AND COMPENSATION.—The 

2 Chairman, in consultation with the Vice Chairman 

3 and in accordance with rules agreed upon by the 

4 Commission, may appoint and fix the compensation 

5 of a staff director and such other personnel as may 

6 be necessary to enable the Commission to carry out 

7 its functions, without regard to the provisions of 

8 title 5, United States Code, governing appointments 

9 in the competitive service, and without regard to the 

10 provisions of chapter 51 and subchapter III of chap11 ter 53 of such title relating to classification and 

12 General Schedule pay rates, except that no rate of 

13 pay fixed under this subsection may exceed the 

14 equivalent of that payable for a position at level V 

15 of the Executive Schedule under section 5316 of title 

16 5, United States Code. 

17 (2) PERSONNEL AS FEDERAL EMPLOYEES.— 

18 (A) IN GENERAL.—The executive director 

19 and any personnel of the Commission who are 

20 employees shall be employees under section 

21 2105 of title 5, United States Code, for pur22 poses of chapters 63, 81, 83, 84, 85, 87, 89, 

23 89A, 89B, and 90 of that title. 


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1 (B) MEMBERS OF COMMISSION.—Subpara2 graph (A) shall not be construed to apply to 

3 members of the Commission. 

4 (b) DETAILEES.—Any Federal Government employee 

5 may be detailed to the Commission without reimbursement 

6 from the Commission, and such detailee shall retain the 

7 rights, status, and privileges of his or her regular employ8 ment without interruption. 

9 (c) CONSULTANT SERVICES.—The Commission is au10 thorized to procure the services of experts and consultants 

11 in accordance with section 3109 of title 5, United States 

12 Code, but at rates not to exceed the daily rate paid a per13 son occupying a position at level IV of the Executive 

14 Schedule under section 5315 of title 5, United States 

15 Code. 

16 SEC. 10. COMPENSATION AND TRAVEL EXPENSES. 

17 (a) COMPENSATION.—Each member of the Commis18 sion may be compensated at not to exceed the daily equiva19 lent of the annual rate of basic pay in effect for a position 

20 at level IV of the Executive Schedule under section 5315 

21 of title 5, United States Code, for each day during which 

22 that member is engaged in the actual performance of the 

23 duties of the Commission. 

24 (b) TRAVEL EXPENSES.—While away from their 

25 homes or regular places of business in the performance 


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1 of services for the Commission, members of the Commis2 sion shall be allowed travel expenses, including per diem 

3 in lieu of subsistence, in the same manner as persons em4 ployed intermittently in the Government service are al5 lowed expenses under section 5703(b) of title 5, United 

6 States Code. 

7 SEC. 11. SECURITY CLEARANCES FOR COMMISSION MEM8 BERS AND STAFF. 

9 The appropriate Federal departments or agencies 

10 shall cooperate with the Commission in expeditiously pro11 viding to the Commission members and staff appropriate 

12 security clearances to the extent possible under the rel13 evant procedures and requirements, except that no person 

14 shall be provided with access to classified information 

15 under this Act without the appropriate security clearances. 

16 SEC. 12. REPORTS OF COMMISSION; TERMINATION. 

17 (a) INTERIM REPORTS.—The Commission shall sub18 mit to the President and Congress interim reports con19 taining such findings, conclusions, and recommendations 

20 for corrective measures as have been agreed to by a major21 ity of Commission members. 

22 (b) FINAL REPORT.—Not later than 18 months after 

23 the date of enactment of this Act, the Commission shall 

24 submit to the President and Congress a final report con25 taining such findings, conclusions, and recommendations 


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1 for corrective measures as have been agreed to by a major2 ity of Commission members. 

3 (c) CLASSIFIED INFORMATION.—Each report sub4 mitted under subsection (a) or (b) shall be in unclassified 

5 form, but may include a classified annex. 

6 (d) TERMINATION.— 

7 (1) IN GENERAL.—The Commission, and all the 

8 authorities of this Act, shall terminate 60 days after 

9 the date on which the final report is submitted 

10 under subsection (b). 

11 (2) ADMINISTRATIVE ACTIVITIES BEFORE TER12 MINATION.—The Commission may use the 60-day 

13 period referred to in paragraph (1) for the purpose 

14 of concluding its activities, including providing testi15 mony to committees of Congress concerning its re16 ports and disseminating the final report. 

17 SEC. 13. FUNDING. 

18 (a) AUTHORIZATION OF APPROPRIATIONS.—There 

19 are authorized to be appropriated such sums as are nec20 essary to carry out this Act. 

21 (b) DURATION OF AVAILABILITY.—Amounts made 

22 available to the Commission under subsection (a) shall re23 main available until the termination of the Commission. 

Æ 


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