II 

Calendar No. 609 

109TH CONGRESS 

2D SESSION S. 2453 

To establish procedures for the review of electronic surveillance programs. 

IN THE SENATE OF THE UNITED STATES 

MARCH 16 (legislative day, MARCH 15), 2006 

Mr. SPECTER (for himself and Mr. HAGEL) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

SEPTEMBER 13, 2006 

Reported by Mr. SPECTER, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To establish procedures for the review of electronic 

surveillance programs. 

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 ‘‘National Security Sur5 veillance Act of 2006’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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1 (1) After the terrorist attacks of September 11, 

2 2001, President Bush authorized the National Secu3 rity Agency to intercept communications between 

4 people inside the United States, including American 

5 citizens, and terrorism suspects overseas. 

6 (2) One of the lessons learned from September 

7 11, 2001, is that the enemies who seek to greatly 

8 harm and terrorize our Nation utilize technologies 

9 and techniques that defy conventional law enforce10 ment practices. 

11 (3) The Commander in Chief requires the abil12 ity and means to detect and track an enemy that 

13 can master and exploit modern technology. 

14 (4) Although it is essential that the President 

15 have all necessary means to protect us against our 

16 enemies, it is equally essential that, in doing so, the 

17 President does not compromise the very civil lib18 erties that the President seeks to safeguard. As Jus19 tice Hugo Black observed,’’The President’s power, if 

20 any, to issue [an] order must stem either from an 

21 Act of Congress or from the Constitution itself.‘‘. 

22 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 

23 579, 585 (1952) (opinion by Black, J.). 

24 (5) In 2004, Justice Sandra Day O’Connor ex25 plained in her plurality opinion for the Supreme 


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1 Court in Hamdi v. Rumsfeld:’’We have long since 

2 made clear that a state of war is not a blank check 

3 for the President when it comes to the rights of the 

4 Nation’s citizens. Youngstown Sheet & Tube, 343 

5 U.S., at 587, 72 S.Ct. 863. Whatever power the 

6 United States Constitution envisions for the Execu7 tive in its exchanges with other nations or with 

8 enemy organizations in times of conflict, it most as9 suredly envisions a role for all three branches when 

10 individual liberties are at stake.‘‘. Hamdi v. Rums11 feld, 542 U.S. 507, 536 (2004) (citations omitted). 

12 (6) Similarly, as Justice Jackson famously ob13 served in his Youngstown concurrence:’’When the 

14 President acts pursuant to an express or implied au15 thorization of Congress, his authority is at its max16 imum, for it includes all that he possesses in his own 

17 right plus all that Congress can delegate. . . . When 

18 the President acts in absence of either a congres19 sional grant or denial of authority, he can only rely 

20 upon his own independent powers, but there is a 

21 zone of twilight in which he and Congress may have 

22 concurrent authority, or in which its distribution is 

23 uncertain. Therefore, congressional inertia, indiffer24 ence or quiescence may sometimes, at least as a 

25 practical matter, enable, if not invite, measures on 


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1 independent presidential responsibility . . . When the 

2 President takes measures incompatible with the ex3 pressed or implied will of Congress, his power is at 

4 its lowest ebb, for then he can rely only upon his 

5 own constitutional powers minus any constitutional 

6 powers of Congress over the matter. Courts can sus7 tain exclusive Presidential control in such a case 

8 only by disabling the Congress from acting upon the 

9 subject.‘‘. Youngstown Sheet & Tube Co. v. Sawyer, 

10 343 U.S. 579, 635–38 (1952) (Jackson, J., concur11 ring). 

12 (7) The Constitution provides Congress with 

13 broad powers of oversight over national security and 

14 foreign policy, under article I, section 8 of the Con15 stitution of the United States, which confers on Con16 gress numerous powers, including the powers— 

17 (A) ‘‘To declare War, grant Letters of 

18 Marque and Reprisal, and make Rules con19 cerning Captures on Land and Water’’; 

20 (B) ‘‘To raise and support Armies’’; 

21 (C) ‘‘To provide and maintain a Navy’’; 

22 (D) ‘‘To make Rules for the Government 

23 and Regulation of the land and naval Forces’’; 


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1 (E) ‘‘To provide for calling forth the Mili2 tia to execute the Laws of the Union, suppress 

3 Insurrections and repel Invasions’’; and 

4 (F) ‘‘To provide for organizing, arming, 

5 and disciplining the Militia, and for governing 

6 such Part of them as may be employed in the 

7 Service of the United States’’. 

8 (8) It is in our Nation’s best interest for Con9 gress to use its oversight power to establish a system 

10 to ensure that electronic surveillance programs do 

11 not infringe on the constitutional rights of Ameri12 cans, while at the same time making sure that the 

13 President has all the powers and means necessary to 

14 detect and track our enemies. 

15 (9) While Attorney General Alberto Gonzales 

16 explained that the executive branch reviews the elec17 tronic surveillance program of the National Security 

18 Agency every 45 days to ensure that the program is 

19 not overly broad, it is the belief of Congress that ap20 proval and supervision of electronic surveillance pro21 grams should be conducted outside of the executive 

22 branch, by the Article III court established under 

23 section 103 of the Foreign Intelligence Surveillance 

24 Act of 1978 (50 U.S.C. 1803). It is also the belief 

25 of Congress that it is appropriate for an Article III 


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1 court to pass upon the constitutionality of electronic 

2 surveillance programs that may implicate the rights 

3 of Americans. 

4 (10) The Foreign Intelligence Surveillance 

5 Court is the proper court to approve and supervise 

6 classified electronic surveillance programs because it 

7 is adept at maintaining the secrecy with which it 

8 was charged and it possesses the requisite expertise 

9 and discretion for adjudicating sensitive issues of 

10 national security. 

11 (11) In 1975, then-Attorney General Edward 

12 Levi, a strong defender of executive authority, testi13 fied that in times of conflict, the President needs the 

14 power to conduct long-range electronic surveillance 

15 and that a foreign intelligence surveillance court 

16 should be empowered to issue special warrants in 

17 these circumstances. 

18 (12) This Act clarifies and definitively estab19 lishes that the Foreign Intelligence Surveillance 

20 Court has the authority to review electronic surveil21 lance programs and pass upon their constitu22 tionality. Such authority is consistent with well-es23 tablished, longstanding practices. 

24 (13) The Foreign Intelligence Surveillance 

25 Court already has broad authority to approve surVerDate Aug 31 2005 07:14 Sep 14, 2006 Jkt 049196 PO 00000 Frm 00006 Fmt 6652 Sfmt 6401 E:\BILLS\S2453.RS S2453

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1 veillance of members of international conspiracies, in 

2 addition to granting warrants for surveillance of a 

3 particular individual under sections 104, 105, and 

4 402 of the Foreign Intelligence Surveillance Act of 

5 1978 (50 U.S.C. 1804, 1805, and 1842). 

6 (14) Prosecutors have significant flexibility in 

7 investigating domestic conspiracy cases. Courts have 

8 held that flexible warrants comply with the fourth 

9 amendment to the Constitution of the United States 

10 when they relate to complex, far reaching, and 

11 multi-faceted criminal enterprises like drug conspir12 acies and money laundering rings. The courts recog13 nize that applications for search warrants must be 

14 judged in a common sense and realistic fashion, and 

15 the courts permit broad warrant language where, 

16 due to the nature and circumstances of the inves17 tigation and the criminal organization, more precise 

18 descriptions are not feasible. 

19 (15) Federal agents investigating international 

20 terrorism by foreign enemies are entitled to tools at 

21 least as broad as those used by Federal agents in22 vestigating domestic crimes by United States citi23 zens. The Supreme Court, in the ‘‘Keith Case’’, 

24 United States v. Unit∼ed States District Court for 

25 the Eastern District of Michigan, 407 U.S. 297 


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1 (1972), recognized that the standards and proce2 dures used to fight ordinary crime may not be appli3 cable to cases involving national security. The Court 

4 recognized that national ‘‘security surveillance may 

5 involve different policy and practical considerations 

6 from the surveillance of ordinary crime’’ and that 

7 courts should be more flexible in issuing warrants in 

8 national security cases. United States v. United 

9 States District Court for the Eastern District of 

10 Michigan, 407 U.S. 297, 322 (1972). 

11 (16) By authorizing the Foreign Intelligence 

12 Surveillance Court to review electronic surveillance 

13 programs, Congress preserves the ability of the 

14 Commander in Chief to use the necessary means to 

15 guard our national security, while also protecting the 

16 civil liberties and constitutional rights that we cher17 ish. 

18 SEC. 3. DEFINITIONS. 

19 The Foreign Intelligence Surveillance Act of 1978 

20 (50 U.S.C. 1801 et seq.) is amended— 

21 (1) by redesignating title VII as title VIII; 

22 (2) by redesignating section 701 as section 801; 

23 and 

24 (3) by inserting after title VI the following: 


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1 ‘‘TITLE VII—ELECTRONIC 

2 SURVEILLANCE 

3 ‘‘SEC. 701. DEFINITIONS. 

4 ‘‘As used in this title— 

5 ‘‘(1) the terms ‘agent of a foreign power’, ‘At6 torney General’, ‘foreign intelligence information’, 

7 ‘foreign power’, ‘international terrorism’, ‘minimiza8 tion procedures’, ‘person’, ‘United States’, and 

9 ‘United States person’ have the same meaning as in 

10 section 101; 

11 ‘‘(2) the term ‘congressional intelligence com12 mittees’ means the Select Committee on Intelligence 

13 of the Senate and the Permanent Select Committee 

14 on Intelligence of the House of Representatives; 

15 ‘‘(3) the term ‘electronic communication’ means 

16 any transfer of signs, signals, writing, images, 

17 sounds, data, or intelligence of any nature trans18 mitted in whole or in part by a wire, radio, electro19 magnetic, photoelectronic or photooptical system, 

20 cable, or other like connection furnished or operated 

21 by any person engaged as a common carrier in pro22 viding or operating such facilities for the trans23 mission of communications; 

24 ‘‘(4) the term ‘electronic surveillance’ means the 

25 acquisition by an electronic, mechanical, or other 


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1 surveillance device of the substance of any electronic 

2 communication sent by, received by, or intended to 

3 be received by a person who is in the United States, 

4 where there is a reasonable possibility that the sur5 veillance will intercept communication in which a 

6 person in the United States participating in the 

7 communication has a reasonable expectation of pri8 vacy; 

9 ‘‘(5) the term ‘electronic surveillance program’ 

10 means a program to engage in electronic surveil11 lance— 

12 ‘‘(A) to gather foreign intelligence informa13 tion or to protect against international ter14 rorism or clandestine intelligence activities by 

15 obtaining the substance of or information re16 garding electronic communications sent by, re17 ceived by, or intended to be received by a for18 eign power, an agent or agents of a foreign 

19 power, or a person or persons who have had 

20 communication with a foreign power seeking to 

21 commit an act of international terrorism or 

22 clandestine intelligence activities against the 

23 United States; 


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1 ‘‘(B) where it is not feasible to name every 

2 person or address every location to be subjected 

3 to electronic surveillance; and 

4 ‘‘(C) where effective gathering of foreign 

5 intelligence information requires an extended 

6 period of electronic surveillance; 

7 ‘‘(6) the term ‘Foreign Intelligence Surveillance 

8 Court’ means the court, sitting en banc, established 

9 under section 103(a); 

10 ‘‘(7) the term ‘Foreign Intelligence Surveillance 

11 Court of review’ means the court established under 

12 section 103(b); 

13 ‘‘(8) the term ‘intercept’ means the acquisition 

14 of the substance of any electronic communication by 

15 a person through the use of any electronic, mechan16 ical, or other device; and 

17 ‘‘(9) the term ‘substance’ means any informa18 tion concerning the words, purport, or meaning of a 

19 communication, and does not include information 

20 identifying the sender, origin, or recipient of the 

21 communication or the date or time of its trans22 mission.’’. 


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1 SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

2 JURISDICTION TO REVIEW ELECTRONIC SUR3 VEILLANCE PROGRAMS. 

4 Title VII of the Foreign Intelligence Surveillance Act 

5 of 1978, as amended by section 3, is amended by adding 

6 at the end the following: 

7 ‘‘SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

8 JURISDICTION TO REVIEW ELECTRONIC SUR9 VEILLANCE PROGRAMS. 

10 ‘‘(a) IN GENERAL.—The Foreign Intelligence Sur11 veillance Court shall have jurisdiction to issue an order 

12 under this title, lasting not longer than 45 days, that au13 thorizes an electronic surveillance program to obtain for14 eign intelligence information or to protect against inter15 national terrorism or clandestine intelligence activities. 

16 ‘‘(b) REAUTHORIZATION.—In order to continue an 

17 electronic surveillance program after the time period de18 scribed in subsection (a), the Attorney General shall sub19 mit a new application under section 703. There shall be 

20 no limit on the number of times the Attorney General may 

21 seek approval of an electronic surveillance program. 

22 ‘‘(c) MODIFICATIONS AND APPEAL IN EVENT APPLI23 CATION IS DENIED.— 

24 ‘‘(1) IN GENERAL.—In the event that the For25 eign Intelligence Surveillance Court refuses to apVerDate Aug 31 2005 07:14 Sep 14, 2006 Jkt 049196 PO 00000 Frm 00012 Fmt 6652 Sfmt 6401 E:\BILLS\S2453.RS S2453

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1 prove an application under subsection (a), the court 

2 shall state its reasons in a written opinion. 

3 ‘‘(2) OPINION.—The court shall submit a writ4 ten opinion described in paragraph (1) to the Attor5 ney General and to each member of the congres6 sional intelligence committees (or any subcommittee 

7 thereof designated for oversight of electronic surveil8 lance programs under this title). 

9 ‘‘(3) RESUBMISSION OR APPEAL.—The Attor10 ney General shall be permitted to submit a new ap11 plication under section 703 for the electronic surveil12 lance program, reflecting modifications to address 

13 the concerns set forth in the written opinion of the 

14 Foreign Intelligence Surveillance Court. There shall 

15 be no limit on the number of times the Attorney 

16 General may seek approval of an electronic surveil17 lance program. Alternatively, the Attorney General 

18 shall be permitted to appeal the decision of the For19 eign Intelligence Surveillance Court to the Foreign 

20 Intelligence Surveillance Court of Review. 

21 ‘‘(d) COMMUNICATIONS SUBJECT TO THIS TITLE.— 

22 ‘‘(1) IN GENERAL.—The provisions of this title 

23 requiring authorization by the Foreign Intelligence 

24 Surveillance Court apply only to interception of the 

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1 ceived by, or intended to be received by a person 

2 who is in the United States, where there is a reason3 able possibility that a participant in the communica4 tion has a reasonable expectation of privacy. 

5 ‘‘(2) EXCLUSION.—The provisions of this title 

6 requiring authorization by the Foreign Intelligence 

7 Surveillance Court do not apply to information iden8 tifying the sender, origin, or recipient of the elec9 tronic communication or the date or time of its 

10 transmission that is obtained without review of the 

11 substance of the electronic communication. 

12 ‘‘(e) EXISTING PROGRAMS SUBJECT TO THIS

13 TITLE.— 

14 ‘‘(1) IN GENERAL.—The Attorney General shall 

15 submit an application to the Foreign Intelligence 

16 Surveillance Court for any electronic surveillance 

17 program to obtain foreign intelligence information or 

18 to protect against international terrorism or clandes19 tine intelligence activities. 

20 ‘‘(2) EXISTING PROGRAMS.—Not later than 45 

21 days after the date of enactment of this title, the At22 torney General shall submit an application under 

23 this title for approval of the electronic surveillance 

24 program sometimes referred to as the ‘Terrorist 

25 Surveillance Program’ and discussed by the Attorney 


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1 General before the Committee on the Judiciary of 

2 the United States Senate on February 6, 2006. Not 

3 later than 120 days after the date of enactment of 

4 this title, the Attorney General shall submit applica5 tions under this title for approval of any other elec6 tronic surveillance program in existence on the date 

7 of enactment of this title that has not been sub8 mitted to the Foreign Intelligence Surveillance 

9 Court.’’. 

10 SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

11 SURVEILLANCE PROGRAMS. 

12 Title VII of the Foreign Intelligence Surveillance Act 

13 of 1978, as amended by section 4, is amended by adding 

14 at the end the following: 

15 ‘‘SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

16 SURVEILLANCE PROGRAMS. 

17 ‘‘(a) IN GENERAL.—Each application for approval of 

18 an electronic surveillance program under this title shall— 

19 ‘‘(1) be made by the Attorney General; 

20 ‘‘(2) include a statement of the authority con21 ferred on the Attorney General by the President of 

22 the United States; 

23 ‘‘(3) include a statement setting forth the legal 

24 basis for the conclusion by the Attorney General 

25 that the electronic surveillance program is consistent 


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1 with the requirements of the Constitution of the 

2 United States; 

3 ‘‘(4) certify that the information sought cannot 

4 reasonably be obtained by conventional investigative 

5 techniques or through an application under section 

6 104; 

7 ‘‘(5) include the name, if known, identity, or de8 scription of the foreign power or agent of a foreign 

9 power seeking to commit an act of international ter10 rorism or clandestine intelligence activities against 

11 the United States that the electronic surveillance 

12 program seeks to monitor or detect; 

13 ‘‘(6) include a statement of the means and 

14 operational procedures by which the surveillance will 

15 be executed and effected; 

16 ‘‘(7) include a statement of the facts and cir17 cumstances relied upon by the Attorney General to 

18 justify the belief that at least 1 of the participants 

19 in the communications to be intercepted by the elec20 tronic surveillance program will be the foreign power 

21 or agent of a foreign power that is specified under 

22 paragraph (5), or a person who has had communica23 tion with the foreign power or agent of a foreign 

24 power that is specified under paragraph (5), and is 

25 seeking to commit an act of international terrorism 


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1 or clandestine intelligence activities against the 

2 United States; 

3 ‘‘(8) include a statement of the proposed mini4 mization procedures; 

5 ‘‘(9) include a detailed description of the nature 

6 of the information sought and the type of commu7 nication to be intercepted by the electronic surveil8 lance program; 

9 ‘‘(10) include an estimate of the number of 

10 communications to be intercepted by the electronic 

11 surveillance program during the requested authoriza12 tion period; 

13 ‘‘(11) specify the date that the electronic sur14 veillance program that is the subject of the applica15 tion was initiated, if it was initiated before submis16 sion of the application; 

17 ‘‘(12) certify that any electronic surveillance of 

18 a person in the United States under this title shall 

19 cease 45 days after the date of the authorization, 

20 unless the Government has obtained judicial author21 ization for continued surveillance of the person in 

22 the United States under section 104 or another Fed23 eral statute; 

24 ‘‘(13) include a statement of the facts con25 cerning all previous applications that have been 


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1 made to the Foreign Intelligence Surveillance Court 

2 under this title involving the electronic surveillance 

3 program in the application, including the minimiza4 tion procedures and the means and operational pro5 cedures proposed, and the Foreign Intelligence Sur6 veillance Court’s decision on each previous applica7 tion; and 

8 ‘‘(14) include a statement of the facts con9 cerning the implementation of the electronic surveil10 lance program described in the application, includ11 ing, for any period of operation of the program au12 thorized at least 45 days prior to the date of submis13 sion of the application— 

14 ‘‘(A) the minimization procedures imple15 mented; 

16 ‘‘(B) the means and operational procedures 

17 by which the surveillance was executed and ef18 fected; 

19 ‘‘(C) the number of communications sub20 jected to the electronic surveillance program; 

21 ‘‘(D) the identity, if known, or a descrip22 tion of any United States person whose commu23 nications sent or received in the United States 

24 were intercepted by the electronic surveillance 

25 program; and 


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1 ‘‘(E) a description of the foreign intel2 ligence information obtained through the elec3 tronic surveillance program. 

4 ‘‘(b) ADDITIONAL INFORMATION.—The Foreign In5 telligence Surveillance Court may require the Attorney 

6 General to furnish such other information as may be nec7 essary to make a determination under section 704.’’. 

8 SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PRO9 GRAMS. 

10 Title VII of the Foreign Intelligence Surveillance Act 

11 of 1978, as amended by section 5, is amended by adding 

12 at the end the following: 

13 ‘‘SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE 

14 PROGRAMS. 

15 ‘‘(a) NECESSARY FINDINGS.—Upon receipt of an ap16 plication under section 703, the Foreign Intelligence Sur17 veillance Court shall enter an ex parte order as requested, 

18 or as modified, approving the electronic surveillance pro19 gram if it finds that— 

20 ‘‘(1) the President has authorized the Attorney 

21 General to make the application for electronic sur22 veillance for foreign intelligence information; 

23 ‘‘(2) approval of the electronic surveillance pro24 gram in the application is consistent with the duty 


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1 of the Foreign Intelligence Surveillance Court to up2 hold the Constitution of the United States; 

3 ‘‘(3) there is probable cause to believe that the 

4 electronic surveillance program will intercept com5 munications of the foreign power or agent of a for6 eign power specified in the application, or a person 

7 who has had communication with the foreign power 

8 or agent of a foreign power that is specified in the 

9 application and is seeking to commit an act of inter10 national terrorism or clandestine intelligence activi11 ties against the United States; 

12 ‘‘(4) the proposed minimization procedures 

13 meet the definition of minimization procedures 

14 under section 101(h); 

15 ‘‘(5) the application contains all statements and 

16 certifications required by section 703; and 

17 ‘‘(6) an evaluation of the implementation of the 

18 electronic surveillance program, as described in sub19 section (b), supports approval of the application. 

20 ‘‘(b) EVALUATION OF THE IMPLEMENTATION OF THE

21 ELECTRONIC SURVEILLANCE PROGRAM.—In determining 

22 whether the implementation of the electronic surveillance 

23 program supports approval of the application for purposes 

24 of subsection (a)(6), the Foreign Intelligence Surveillance 

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1 veillance program for at least 3 previously authorized peri2 ods, to the extent such information is available, and 

3 shall— 

4 ‘‘(1) evaluate whether the electronic surveillance 

5 program has been implemented in accordance with 

6 the proposal by the Federal Government by com7 paring— 

8 ‘‘(A) the minimization procedures proposed 

9 with the minimization procedures implemented; 

10 ‘‘(B) the nature of the information sought 

11 with the nature of the information obtained; 

12 and 

13 ‘‘(C) the means and operational procedures 

14 proposed with the means and operational proce15 dures implemented; 

16 ‘‘(2) consider the number of communications 

17 intercepted by the electronic surveillance program 

18 and the length of time the electronic surveillance 

19 program has been in existence; and 

20 ‘‘(3) consider the effectiveness of the electronic 

21 surveillance program, as reflected by the foreign in22 telligence information obtained.’’. 


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1 SEC. 7. CONGRESSIONAL OVERSIGHT. 

2 Title VII of the Foreign Intelligence Surveillance Act 

3 of 1978, as amended by section 6, is amended by adding 

4 at the end the following: 

5 ‘‘SEC. 705. CONGRESSIONAL OVERSIGHT. 

6 ‘‘(a) IN GENERAL.—The President shall submit to 

7 each member of the congressional intelligence committees 

8 (or any subcommittee thereof designated for oversight of 

9 electronic surveillance programs under this title) a report 

10 on the management and operational details of the elec11 tronic surveillance program generally and on any specific, 

12 surveillance conducted under the electronic surveillance 

13 program whenever requested by either of the committees, 

14 or any such subcommittee, as applicable. 

15 ‘‘(b) SEMI-ANNUAL REPORTS.— 

16 ‘‘(1) IN GENERAL.—In addition to any reports 

17 required under subsection (a), the President shall, 

18 not later than 6 months after the date of enactment 

19 of this Act and every 6 months thereafter, fully in20 form each member of the congressional intelligence 

21 committees (or any subcommittee thereof designated 

22 for oversight of electronic surveillance programs 

23 under this title) on all electronic surveillance con24 ducted under the electronic surveillance program. 

25 ‘‘(2) CONTENTS.—Each report under para26 graph (1) shall include the following: 


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1 ‘‘(A) A complete discussion of the manage2 ment, operational details, effectiveness, and ne3 cessity of the electronic surveillance program 

4 generally, and of the management, operational 

5 details, effectiveness, and necessity of all elec6 tronic surveillance conducted under the pro7 gram, during the 6-month period ending on the 

8 date of such report. 

9 ‘‘(B) The total number of targets of elec10 tronic surveillance commenced or continued 

11 under the electronic surveillance program. 

12 ‘‘(C) The total number of United States 

13 persons targeted for electronic surveillance 

14 under the electronic surveillance program. 

15 ‘‘(D) The total number of targets of elec16 tronic surveillance under the electronic surveil17 lance program for which an application was 

18 submitted under section 104 for an order under 

19 section 105 approving electronic surveillance, 

20 and, of such applications, the total number ei21 ther granted, modified, or denied. 

22 ‘‘(E) Any other information specified, in 

23 writing, to be included in such report by the 

24 congressional intelligence committees or any 


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1 subcommittees thereof designated for oversight 

2 of the electronic surveillance program. 

3 ‘‘(F) A description of the nature of the in4 formation sought under the electronic surveil5 lance program, the types of communications 

6 subjected to such program, and whether the in7 formation sought under such program could be 

8 reasonably obtained by less intrusive investiga9 tive techniques in a timely and effective man10 ner. 

11 ‘‘(c) FORM OF REPORTS.—Any report or information 

12 submitted under this section shall be submitted in classi13 fied form.’’. 

14 SEC. 8. EMERGENCY AUTHORIZATION. 

15 Title VII of the Foreign Intelligence Surveillance Act 

16 of 1978, as amended by section 6, is amended by adding 

17 at the end the following: 

18 ‘‘SEC. 706. EMERGENCY AUTHORIZATION. 

19 ‘‘Notwithstanding any other provision of law, the 

20 President, through the Attorney General, may authorize 

21 electronic surveillance without a court order under this 

22 title to, acquire foreign intelligence information for a pe23 riod not to exceed 45 days following a declaration of war 

24 by Congress.’’. 


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1 SEC. 9. CONFORMING AMENDMENT. 

2 The table of contents for the Foreign Intelligence 

3 Surveillance Act of 1978 is amended by striking the items 

4 related to title VII and section 701 and inserting the fol5 lowing: 

‘‘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’’. 

6 SECTION 1. SHORT TITLE. 

7 This Act may be cited as the ‘‘National Security Sur8 veillance Act of 2006’’. 

9 SEC. 2. FINDINGS. 

10 Congress finds the following: 

11 (1) After the terrorist attacks of September 11, 

12 2001, President Bush authorized the National Secu13 rity Agency to intercept communications between peo14 ple inside the United States, including American citi15 zens, and terrorism suspects overseas. 

16 (2) One of the lessons learned from September 

17 11, 2001, is that the enemies who seek to greatly harm 

18 and terrorize our Nation utilize technologies and tech19 niques that defy conventional law enforcement prac20 tices. 


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1 (3) For days before September 11, 2001, the Fed2 eral Bureau of Investigation suspected that confessed 

3 terrorist Zacarias Moussaoui was planning to hijack 

4 a commercial plane. The Federal Bureau of Investiga5 tion, however, could not meet the requirements to ob6 tain a traditional criminal warrant or an order 

7 under the Foreign Intelligence Surveillance Act of 

8 1978 to search his laptop computer (Report of the 9/ 

9 11 Commission 273–76). 

10 (4) The President, as the constitutional officer 

11 most directly responsible for protecting the United 

12 States from attack, requires the ability and means to 

13 detect and track an enemy that can master and ex14 ploit modern technology. 

15 (5) It is equally essential, however, that in pro16 tecting the United Sates against our enemies, the 

17 President does not compromise the very civil liberties 

18 that he seeks to safeguard. As Justice Hugo Black ob19 served, ‘‘The President’s power, if any, to issue [an] 

20 order must stem either from an Act of Congress or 

21 from the Constitution itself.’’ Youngstown Sheet & 

22 Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opin23 ion by Black, J.). Similarly, in 2004, Justice Sandra 

24 Day O’Connor explained in her plurality opinion for 

25 the Supreme Court in Hamdi v. Rumsfeld: ‘‘We have 


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1 long since made clear that a state of war is not a 

2 blank check for the President when it comes to the 

3 rights of the Nation’s citizens.’’ Hamdi v. Rumsfeld, 

4 542 U.S. 507, 536 (2004) (citations omitted). 

5 (6) When deciding issues of national security, it 

6 is in our Nation’s best interest that, to the extent fea7 sible, all 3 branches of the Federal Government should 

8 be involved. This helps guarantee that electronic sur9 veillance programs do not infringe on the constitu10 tional rights of Americans, while at the same time en11 suring that the President has all the powers and 

12 means necessary to detect and track our enemies and 

13 protect our Nation from attack. 

14 (7) As Justice Sandra Day O’Connor explained 

15 in her plurality opinion for the Supreme Court in 

16 Hamdi v. Rumsfeld, ‘‘Whatever power the United 

17 States Constitution envisions for the Executive in its 

18 exchanges with other nations or with enemy organiza19 tions in times of conflict, it most assuredly envisions 

20 a role for all 3 branches when individual liberties are 

21 at stake.’’ Hamdi v. Rumsfeld, 542 U.S. 507, 536 

22 (2004) (citations omitted). 

23 (8) Similarly, Justice Jackson famously ex24 plained in his Youngstown concurrence: ‘‘When the 

25 President acts pursuant to an express or implied auVerDate Aug 31 2005 07:14 Sep 14, 2006 Jkt 049196 PO 00000 Frm 00027 Fmt 6652 Sfmt 6203 E:\BILLS\S2453.RS S2453

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1 thorization of Congress, his authority is at its max2 imum, for it includes all that he possesses in his own 

3 right plus all that Congress can delegate... When the 

4 President acts in absence of either a congressional 

5 grant or denial of authority, he can only rely upon 

6 his own independent powers, but there is a zone of 

7 twilight in which he and Congress may have concur8 rent authority, or in which its distribution is uncer9 tain. Therefore, congressional inertia, indifference or 

10 quiescence may sometimes, at least as a practical 

11 matter, enable, if not invite, measures on independent 

12 presidential responsibility... When the President takes 

13 measures incompatible with the expressed or implied 

14 will of Congress, his power is at its lowest ebb, for 

15 then he can rely only upon his own constitutional 

16 powers minus any constitutional powers of Congress 

17 over the matter. Courts can sustain exclusive Presi18 dential control in such a case only by disabling the 

19 Congress from acting upon the subject.’’ Youngstown 

20 Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 

21 (1952) (Jackson, J., concurring). 

22 (9) Congress clearly has the authority to enact 

23 legislation with respect to electronic surveillance pro24 grams. The Constitution provides Congress with broad 

25 powers of oversight over national security and foreign 


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1 policy, under article I, section 8 of the Constitution 

2 of the United States, which confers on Congress nu3 merous powers, including the powers— 

4 (A) ‘‘To declare War, grant Letters of 

5 Marque and Reprisal, and make Rules con6 cerning Captures on Land and Water’’; 

7 (B) ‘‘To raise and support Armies’’; 

8 (C) ‘‘To provide and maintain a Navy’’; 

9 (D) ‘‘To make Rules for the Government 

10 and Regulation of the land and naval Forces’’; 

11 (E) ‘‘To provide for calling forth the Militia 

12 to execute the Laws of the Union, suppress In13 surrections and repel Invasions’’; and 

14 (F) ‘‘To provide for organizing, arming, 

15 and disciplining the Militia, and for governing 

16 such Part of them as may be employed in the 

17 Service of the United States’’. 

18 (10) While Attorney General Alberto Gonzales ex19 plained that the executive branch reviews the elec20 tronic surveillance program of the National Security 

21 Agency every 45 days to ensure that the program is 

22 not overly broad, it is the belief of Congress that ap23 proval and supervision of electronic surveillance pro24 grams should be conducted outside of the executive 

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1 tion 103 of the Foreign Intelligence Surveillance Act 

2 of 1978 (50 U.S.C. 1803). It is also the belief of Con3 gress that it is appropriate for an article III court to 

4 pass upon the constitutionality of electronic surveil5 lance programs that may implicate the rights of 

6 Americans. 

7 (11) The Foreign Intelligence Surveillance Court 

8 is the proper court to approve and supervise classified 

9 electronic surveillance programs because it is adept at 

10 maintaining the secrecy with which it was charged 

11 and it possesses the requisite expertise and discretion 

12 for adjudicating sensitive issues of national security. 

13 (12) In 1975, [then] Attorney General Edward 

14 Levi, a strong defender of executive authority, testified 

15 that in times of conflict, the President needs the 

16 power to conduct long-range electronic surveillance 

17 and that a foreign intelligence surveillance court 

18 should be empowered to issue special approval orders 

19 in these circumstances. 

20 (13) The Foreign Intelligence Surveillance Act of 

21 1978 clarifies and definitively establishes that the 

22 Foreign Intelligence Surveillance Court has the au23 thority to review electronic surveillance programs and 

24 pass upon their constitutionality. Such authority is 


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1 consistent with well-established, longstanding prac2 tices. 

3 (14) The Foreign Intelligence Surveillance Court 

4 already has broad authority to approve surveillance 

5 of members of international conspiracies, in addition 

6 to granting warrants for surveillance of a particular 

7 individual under sections 104, 105, and 402 of the 

8 Foreign Intelligence Surveillance Act of 1978 (50 

9 U.S.C. 1804, 1805, and 1842). 

10 (15) Prosecutors have significant flexibility in 

11 investigating domestic conspiracy cases. Courts have 

12 held that flexible warrants comply with the 4th 

13 amendment to the Constitution of the United States 

14 when they relate to complex, far-reaching, and multi15 faceted criminal enterprises like drug conspiracies 

16 and money laundering rings. The courts recognize 

17 that applications for search warrants must be judged 

18 in a common sense and realistic fashion, and the 

19 courts permit broad warrant language where, due to 

20 the nature and circumstances of the investigation and 

21 the criminal organization, more precise descriptions 

22 are not feasible. 

23 (16) Federal agents investigating international 

24 terrorism by foreign enemies are entitled to tools at 

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1 cers investigating domestic crimes by United States 

2 citizens. The Supreme Court, in the ‘‘Keith Case’’, 

3 United States v. United States District Court for the 

4 Eastern District of Michigan, 407 U.S. 297 (1972), 

5 recognized that the standards and procedures used to 

6 fight ordinary crime may not be applicable to cases 

7 involving national security. The Court recognized that 

8 national ‘‘security surveillance may involve different 

9 policy and practical considerations from the surveil10 lance of ordinary crime’’ and that courts should be 

11 more flexible in issuing warrants in national security 

12 cases. United States v. United States District Court 

13 for the Eastern District of Michigan, 407 U.S. 297, 

14 322 (1972). 

15 (17) By authorizing the Foreign Intelligence 

16 Surveillance Court to review electronic surveillance 

17 programs, Congress preserves the ability of the Presi18 dent to use the necessary means to guard our national 

19 security, while also protecting the civil liberties and 

20 constitutional rights that we cherish. 

21 SEC. 3. DEFINITIONS. 

22 The Foreign Intelligence Surveillance Act of 1978 (50 

23 U.S.C. 1801 et seq.) is amended— 

24 (1) by redesignating title VII as title IX; 


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1 (2) by redesignating section 701 as section 901; 

2 and 

3 (3) by inserting after title VI the following: 

4 ‘‘TITLE VII—ELECTRONIC 

5 SURVEILLANCE 

6 ‘‘SEC. 701. DEFINITION. 

7 ‘‘As used in this title— 

8 ‘‘(1) the terms ‘agent of a foreign power’, ‘Attor9 ney General’, ‘foreign power’, ‘international ter10 rorism’, ‘minimization procedures’, ‘person’, ‘United 

11 States’, and ‘United States person’ have the same 

12 meaning as in section 101; 

13 ‘‘(2) the term ‘congressional intelligence commit14 tees’ means the Select Committee on Intelligence of the 

15 Senate and the Permanent Select Committee on Intel16 ligence of the House of Representatives; 

17 ‘‘(3) the term ‘electronic communication’ means 

18 any transfer of signs, signals, writing, images, 

19 sounds, data, or intelligence of any nature trans20 mitted, in whole or in part, by a wire, radio, electro 

21 magnetic, photo electronic or photo optical system, 

22 cable, or other like connection furnished or operated 

23 by any person engaged as a common carrier in pro24 viding or operating such facilities for the trans25 mission of communications; 


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1 ‘‘(4) the term ‘electronic tracking’ means the ac2 quisition by an electronic, mechanical, or other sur3 veillance device of the substance of any electronic com4 munication sent by, received by, or intended to be re5 ceived by a person who is reasonably believed to be 

6 in the United States, through the intentional tar7 geting of that person’s communications, where a per8 son in the United States participating in the commu9 nication has a reasonable expectation of privacy; 

10 ‘‘(5) the term ‘electronic surveillance program’ 

11 means a program to engage in electronic tracking— 

12 ‘‘(A) that has as a significant purpose the 

13 gathering of foreign intelligence information or 

14 protecting against international terrorism; 

15 ‘‘(B) where it is not technically feasible to 

16 name every person or address every location to 

17 be subjected to electronic tracking; 

18 ‘‘(C) where effective gathering of foreign in19 telligence information requires the flexibility to 

20 begin electronic surveillance immediately after 

21 learning of suspect activity; and 

22 ‘‘(D) where effective gathering of foreign in23 telligence information requires an extended pe24 riod of electronic surveillance; 


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1 ‘‘(6) the term ‘foreign intelligence information’ 

2 has the same meaning as in section 101 and includes 

3 information necessary to protect against inter4 national terrorism; 

5 ‘‘(7) the term ‘Foreign Intelligence Surveillance 

6 Court’ means the court established under section 

7 103(a); 

8 ‘‘(8) the term ‘Foreign Intelligence Surveillance 

9 Court of Review’ means the court established under 

10 section 103(b); 

11 ‘‘(9) the term ‘intercept’ means the acquisition of 

12 the substance of any electronic communication by a 

13 person through the use of any electronic, mechanical, 

14 or other device; and 

15 ‘‘(10) the term ‘substance’ means any informa16 tion concerning the symbols, sounds, words, purport, 

17 or meaning of a communication, and does not include 

18 dialing, routing, addressing, or signaling.’’. 

19 SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JU20 RISDICTION TO REVIEW ELECTRONIC SUR21 VEILLANCE PROGRAMS. 

22 (a) IN GENERAL.—Title VII of the Foreign Intelligence 

23 Surveillance Act of 1978, as amended by section 3, is 

24 amended by adding at the end the following: 


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1 ‘‘SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT 

2 JURISDICTION TO REVIEW ELECTRONIC SUR3 VEILLANCE PROGRAMS. 

4 ‘‘(a) AUTHORIZATION OF REVIEW.— 

5 ‘‘(1) INITIAL AUTHORIZATION.—The Foreign In6 telligence Surveillance Court shall have jurisdiction to 

7 issue an order under this title, lasting not longer than 

8 90 days, that authorizes an electronic surveillance 

9 program to obtain foreign intelligence information or 

10 to protect against international terrorism. 

11 ‘‘(2) REAUTHORIZATION.—The Foreign Intel12 ligence Surveillance Court shall have jurisdiction to 

13 reauthorize an electronic surveillance program for a 

14 period of time not longer than such court determines 

15 to be reasonable. 

16 ‘‘(3) RESUBMISSION OR APPEAL.—In the event 

17 that the Foreign Intelligence Surveillance Court re18 fuses to approve an application under this subsection, 

19 the Attorney General may submit a new application. 

20 There shall be no limit on the number of times the At21 torney General may seek approval of an electronic 

22 surveillance program. Alternatively, the Attorney 

23 General may appeal the decision of the Foreign Intel24 ligence Surveillance Court to the Foreign Intelligence 

25 Surveillance Court of Review. 

26 ‘‘(b) MANDATORY TRANSFER FOR REVIEW.— 


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1 ‘‘(1) IN GENERAL.—In any case before any court 

2 challenging the legality of classified communications 

3 intelligence activity relating to a foreign threat, in4 cluding an electronic surveillance program, or in 

5 which the legality of any such activity or program is 

6 in issue, if the Attorney General files an affidavit 

7 under oath that the case should be transferred to the 

8 Foreign Intelligence Court of Review because further 

9 proceedings in the originating court would harm the 

10 national security of the United States, the originating 

11 court shall transfer the case to the Foreign Intel12 ligence Surveillance Court of Review for further pro13 ceedings under this subsection. 

14 ‘‘(2) RETRANSFER TO ORIGINATING COURT.— 

15 Upon completion of review pursuant to this sub16 section, the Foreign Intelligence Surveillance Court of 

17 Review shall remand the case to the originating court 

18 for further proceedings consistent with its opinion. 

19 ‘‘(3) PRESERVATION OF LITIGATION.—In any 

20 case that is transferred and received under this sub21 section, all litigation privileges shall be preserved. 

22 ‘‘(4) CERTIORARI AND EFFECTS OF DECISIONS.— 

23 The decision the Foreign Intelligence Surveillance 

24 Court of Review made under paragraph (1), includ25 ing a decision that the disclosure of national security 


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1 information is constitutionally required, shall be sub2 ject to certiorari review in the United States Supreme 

3 Court, and shall otherwise be binding in all other 

4 courts. 

5 ‘‘(5) DISMISSAL.—The Foreign Intelligence Sur6 veillance Court of Review or a court that is an origi7 nating court under paragraph (1) may dismiss a 

8 challenge to the legality of an electronic surveillance 

9 program for any reason provided for under law. 

10 ‘‘(c) MODIFICATIONS AND APPEAL IN EVENT APPLICA11 TION IS DENIED.—In the event that the Foreign Intelligence 

12 Surveillance Court declines to approve an application 

13 under subsection (a)— 

14 ‘‘(1) the court shall state its reasons in a written 

15 opinion, which it shall submit to the Attorney Gen16 eral; and 

17 ‘‘(2) the Attorney General may submit a new ap18 plication under section 703 for the electronic surveil19 lance program.’’. 

20 SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

21 SURVEILLANCE PROGRAMS. 

22 Title VII of the Foreign Intelligence Surveillance Act 

23 of 1978, as amended by section 4, is amended by adding 

24 at the end the following: 


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1 ‘‘SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC 

2 SURVEILLANCE PROGRAMS. 

3 ‘‘(a) IN GENERAL.—Each application for approval of 

4 an electronic surveillance program under this title (includ5 ing for reauthorization) shall— 

6 ‘‘(1) be made by the Attorney General or his des7 ignee; 

8 ‘‘(2) include a statement of the authority con9 ferred on the Attorney General by the President of the 

10 United States; 

11 ‘‘(3) include a statement setting forth the legal 

12 basis for the conclusion by the Attorney General that 

13 the electronic surveillance program is consistent with 

14 the Constitution of the United States; 

15 ‘‘(4) certify that a significant purpose of the elec16 tronic surveillance program is to gather foreign intel17 ligence information or to protect against inter18 national terrorism; 

19 ‘‘(5) certify that the information sought cannot 

20 reasonably be obtained by normal investigative tech21 niques or through an application under section 104; 

22 ‘‘(6) include a statement of the means and oper23 ational procedures by which the electronic tracking 

24 will be executed and effected; 

25 ‘‘(7) include an explanation of how the electronic 

26 surveillance program is reasonably designed to ensure 


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1 that the communications that are intercepted are 

2 communications of or with— 

3 ‘‘(A) a foreign power that is engaged in 

4 international terrorism activities or in prepara5 tion therefor; 

6 ‘‘(B) an agent of a foreign power that is en7 gaged in international terrorism activities or in 

8 preparation therefor; or 

9 ‘‘(C) a person reasonably believed to have 

10 communication with or be associated with a for11 eign power that is engaged in international ter12 rorism activities or in preparation therefor or an 

13 agent of a foreign power that is engaged in 

14 international terrorism activities or in prepara15 tion therefor; 

16 ‘‘(8) include a statement of the proposed mini17 mization procedures; 

18 ‘‘(9) if the electronic surveillance program that is 

19 the subject of the application was initiated prior to 

20 the date the application was submitted, specify the 

21 date that the program was initiated; 

22 ‘‘(10) include a description of all previous appli23 cations that have been made under this title involving 

24 the electronic surveillance program in the application 

25 (including the minimization procedures and the 


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1 means and operational procedures proposed) and the 

2 decision on each previous application; and 

3 ‘‘(11) include a statement of facts concerning the 

4 implementation of the electronic surveillance program 

5 described in the application, including, for any pe6 riod of operation of the program authorized not less 

7 than 90 days prior to the date of submission of the 

8 application— 

9 ‘‘(A) the minimization procedures imple10 mented; and 

11 ‘‘(B) the means and operational procedures 

12 by which the electronic tracking was executed 

13 and effected. 

14 ‘‘(b) ADDITIONAL INFORMATION.—The Foreign Intel15 ligence Surveillance Court may require the Attorney Gen16 eral to furnish such other information as may be necessary 

17 to make a determination under section 704.’’. 

18 SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PRO19 GRAMS. 

20 Title VII of the Foreign Intelligence Surveillance Act 

21 18 of 1978, as amended by section 5, is amended by adding 

22 at the end the following: 


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1 ‘‘SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PRO2 GRAMS. 

3 ‘‘(a) NECESSARY FINDINGS.—Upon receipt of an ap4 plication under section 703, the Foreign Intelligence Sur5 veillance Court shall enter an ex parte order as requested, 

6 or as modified, approving the electronic surveillance pro7 gram if it finds that— 

8 ‘‘(1) the President has authorized the Attorney 

9 General to make the application for electronic surveil10 lance for foreign intelligence information or to protect 

11 against international terrorism; 

12 ‘‘(2) approval of the electronic surveillance pro13 gram in the application is consistent with the Con14 stitution of the United States; 

15 ‘‘(3) the electronic surveillance program is rea16 sonably designed to ensure that the communications 

17 that are intercepted are communications of or with— 

18 ‘‘(A) a foreign power that is engaged in 

19 international terrorism activities or in prepara20 tion therefor; 

21 ‘‘(B) an agent of a foreign power that is en22 gaged in international terrorism activities or in 

23 preparation therefor; or 

24 ‘‘(C) a person reasonably believed to have 

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1 rorism activities or in preparation therefor or an 

2 agent of a foreign power that is engaged in 

3 international terrorism activities or in prepara4 tion therefor; 

5 ‘‘(4) the proposed minimization procedures meet 

6 the definition of minimization procedures under sec7 tion 101(h); and 

8 ‘‘(5) the application contains all statements and 

9 certifications required by section 703. 

10 ‘‘(b) CONSIDERATIONS.—In considering the constitu11 tionality of the electronic surveillance program under sub12 section (a), the Foreign Intelligence Surveillance Court may 

13 consider— 

14 ‘‘(1) whether the electronic surveillance program 

15 has been implemented in accordance with the pro16 posal by the Attorney General by comparing— 

17 ‘‘(A) the minimization procedures proposed 

18 with the minimization procedures actually im19 plemented; 

20 ‘‘(B) the nature of the information sought 

21 with the nature of the information actually ob22 tained; and 

23 ‘‘(C) the means and operational procedures 

24 proposed with the means and operational proce25 dures actually implemented; and 


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1 ‘‘(2) whether foreign intelligence information has 

2 been obtained through the electronic surveillance pro3 gram. 

4 ‘‘(c) CONTENTS OF ORDER.—An order approving an 

5 electronic surveillance program under this section shall di6 rect— 

7 ‘‘(1) that the minimization procedures be fol8 lowed; 

9 ‘‘(2) that, upon the request of the applicant, 

10 specified communication or other common carriers, 

11 landlords, custodians, or other specified person, fur12 nish the applicant forthwith with all information, fa13 cilities, or technical assistance necessary to undertake 

14 the electronic surveillance program in such a manner 

15 as will protect its secrecy and produce a minimum of 

16 interference with the services that such carriers, land17 lords, custodians, or other persons are providing po18 tential targets of the electronic surveillance program; 

19 ‘‘(3) that any record concerning the electronic 

20 surveillance program or the aid furnished or retained 

21 by such carriers, landlords, custodians, or other per22 sons are maintained under security procedures ap23 proved by the Attorney General and the Director of 

24 National Intelligence; and 


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1 ‘‘(4) that the applicant compensate, at the pre2 vailing rate, such carriers, landlords, custodians, or 

3 other persons for furnishing such aid.’’. 

4 SEC. 7. CONGRESSIONAL OVERSIGHT. 

5 Title VII of the Foreign Intelligence Surveillance Act 

6 of 1978, as amended by section 6, is amended by adding 

7 at the end the following: 

8 ‘‘SEC. 705. CONGRESSIONAL OVERSIGHT. 

9 ‘‘(a) IN GENERAL.—Not less often than every 180 days, 

10 the Attorney General shall submit to the congressional intel11 ligence committees a report in classified form on the activi12 ties during the previous 180-day period under any elec13 tronic surveillance program authorized under this title. 

14 ‘‘(b) CONTENTS.—Each report submitted under sub15 section (a) shall provide, with respect to the previous 180- 

16 day period, a description of— 

17 ‘‘(1) the minimization procedures implemented; 

18 ‘‘(2) the means and operational procedures by 

19 which the surveillance was executed and effected; 

20 ‘‘(3) significant decisions of the Foreign Intel21 ligence Surveillance Court on applications made 

22 under section 703; 

23 ‘‘(4) the total number of applications made for 

24 orders approving electronic surveillance pursuant to 

25 this title; and 


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1 ‘‘(5) the total number of orders applied for that 

2 are granted, modified, or denied. 

3 ‘‘(c) RULE OF CONSTRUCTION.—Nothing in this title 

4 shall be construed to limit the authority or responsibility 

5 of any committee of either House of Congress to obtain such 

6 information as such committee may need to carry out its 

7 respective functions and duties.’’. 

8 SEC. 8. CLARIFICATION OF THE FOREIGN INTELLIGENCE 

9 SURVEILLANCE ACT OF 1978. 

10 (a) IN GENERAL.—The Foreign Intelligence Surveil11 lance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by 

12 inserting after title VII, as amended by this Act, the fol13 lowing: 

14 ‘‘TITLE VIII—EXECUTIVE 

15 AUTHORITY 

16 ‘‘SEC. 801. EXECUTIVE AUTHORITY. 

17 ‘‘Nothing in this Act shall be construed to limit the 

18 constitutional authority of the President to collect intel19 ligence with respect to foreign powers and agents of foreign 

20 powers.’’. 

21 (b) REPEAL.—Sections 111, 309, and 404 of the For22 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 1811, 

23 1829, and 1844) are repealed. 

24 (c) CONFORMING AMENDMENTS.— 


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1 (1) TITLE 18.—Section 2511(2) of title 18, 

2 United States Code, is amended— 

3 (A) in paragraph (e), by striking ‘‘, as de4 fined in section 101’’ and all that follows 

5 through the end of the paragraph and inserting 

6 the following: ‘‘under the Constitution or the 

7 Foreign Intelligence Surveillance Act of 1978.’’; 

8 and 

9 (B) in paragraph (f), by striking ‘‘from 

10 international or foreign communications,’’ and 

11 all that follows through the end of the paragraph 

12 and inserting ‘‘that is authorized under a Fed13 eral statute or the Constitution of the United 

14 States.’’ 

15 (2) FISA.—Section 109 of the Foreign Intel16 ligence Surveillance Act of 1978 (50 U.S.C. 1809) is 

17 amended— 

18 (A) in subsection (a)— 

19 (i) in paragraph (1)— 

20 (I) by inserting ‘‘or under the 

21 Constitution’’ after ‘‘authorized by 

22 statute’’; and 

23 (II) by striking ‘‘or’’ at the end; 

24 (ii) in paragraph (2)— 


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1 (I) by inserting ‘‘or under the 

2 Constitution’’ after ‘‘authorized by 

3 statute’’; and 

4 (II) by striking the period and in5 serting ‘‘; or’’; and 

6 (iii) by adding at the end the fol7 lowing: 

8 ‘‘(3) knowingly discloses or uses information ob9 tained under color of law by electronic surveillance in 

10 a manner or for a purpose not authorized by law.’’; 

11 and 

12 (B) in subsection (c)— 

13 (i) by striking ‘‘$10,000’’ and inserting 

14 ‘‘$100,000’’; and 

15 (ii) by striking ‘‘five years’’ and in16 serting ‘‘15 years’’. 

17 SEC. 9. OTHER CONFORMING AMENDMENTS TO FISA. 

18 (a) REFERENCE.—In this section, a reference to 

19 ‘‘FISA’’ shall mean the Foreign Intelligence Surveillance 

20 Act of 1978 (50 U.S.C. 1801 et seq.) 

21 (b) DEFINITIONS.—Section 101 of FISA (50 U.S.C. 

22 1801) is amended— 

23 (1) in subsection (b)(1)— 

24 (A) in subparagraph (B), by striking ‘‘or’’ 

25 after the semicolon; and 


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1 (B) by adding at the end the following: 

2 ‘‘(D) otherwise possesses or is expected to 

3 transmit or receive foreign intelligence informa4 tion within the United States; or’’; 

5 (2) by striking subsection (f) and inserting the 

6 following: 

7 ‘‘(f) ‘Electronic surveillance’ means— 

8 ‘‘(1) the installation or use of an electronic, me9 chanical, or other surveillance device for the inten10 tional collection of information concerning a par11 ticular known person who is reasonably believed to be 

12 in the United States by intentionally targeting that 

13 person under circumstances in which that person has 

14 a reasonable expectation of privacy and a warrant 

15 would be required for law enforcement purposes; or 

16 ‘‘(2) the intentional acquisition of the contents of 

17 any communication under circumstances in which a 

18 person has a reasonable expectation of privacy and a 

19 warrant would be required for law enforcement pur20 poses, and if both the sender and all intended recipi21 ents are located within the United States.’’; 

22 (3) in subsection (g), by inserting before the pe23 riod the following: ‘‘or a person or persons designated 

24 by the Attorney General or Acting Attorney General’’; 

25 (4) in subsection (h)— 


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1 (A) in paragraph (2), by inserting ‘‘and’’ 

2 after the semicolon; 

3 (B) in paragraph (3), by striking ‘‘; and’’ 

4 and inserting a period; and 

5 (C) by striking paragraph (4); and 

6 (5) by striking subsection (n) and inserting the 

7 following: 

8 ‘‘(n) ‘contents’ has the meaning set forth in section 

9 2510(8) of title 18, United States Code.’’. 

10 (c) ELECTRONIC SURVEILLANCE AUTHORIZATION.— 

11 Section 102 of FISA (50 U.S.C. 1802) is amended to read 

12 as follows: 

13 ‘‘ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT

14 COURT ORDER; CERTIFICATION BY ATTORNEY GEN15 ERAL; REPORTS TO CONGRESSIONAL COMMITTEES; 

16 TRANSMITTAL UNDER SEAL; DUTIES AND COMPENSA17 TION OF COMMUNICATION COMMON CARRIER; APPLICA18 TIONS; JURISDICTION OF COURT

19 ‘‘SEC. 102. (a)(1) Notwithstanding any other law, the 

20 President through the Attorney General, may authorize elec21 tronic surveillance without a court order under this title 

22 to acquire foreign intelligence information for periods of up 

23 to 1 year if the Attorney General certifies in writing under 

24 oath that— 

25 ‘‘(A)(i) the acquisition of the contents of commu26 nications of foreign powers, as defined in section 


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1 101(a), an agent of a foreign power as defined in sec2 tion 101(b)(1); or 

3 ‘‘(ii) the acquisition of technical intelligence, 

4 other than the spoken communications of individuals, 

5 from property or premises under the open and exclu6 sive control of a foreign power, as defined in para7 graph (1), (2), or (3) of section 101(a); and 

8 ‘‘(B) the proposed minimization procedures with 

9 respect to such surveillance meet the definition of 

10 minimization procedures under section 101(h); 

11 if the Attorney General reports such minimization proce12 dures and any changes thereto to the Senate Select Com13 mittee on Intelligence and the House Permanent Select 

14 Committee on Intelligence at least 30 days prior to their 

15 effective date, unless the Attorney General determines imme16 diate action is required and notifies the committees imme17 diately of such minimization procedures and the reason for 

18 their becoming effective immediately. 

19 ‘‘(2) An electronic surveillance authorized by this sub20 section may be conducted only in accordance with the Attor21 ney General’s certification and the minimization proce22 dures. The Attorney General shall assess compliance with 

23 such procedures and shall report such assessments to the 

24 Senate Select Committee on Intelligence and the House PerVerDate Aug 31 2005 07:14 Sep 14, 2006 Jkt 049196 PO 00000 Frm 00051 Fmt 6652 Sfmt 6203 E:\BILLS\S2453.RS S2453

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1 manent Select Committee on Intelligence under the provi2 sions of section 108(a). 

3 ‘‘(3) The Attorney General shall immediately transmit 

4 under seal to the court established under section 103(a) a 

5 copy of his certification. Such certification shall be main6 tained under security measures established by the Chief Jus7 tice with the concurrence of the Attorney General, in con8 sultation with the Director of National Intelligence, and 

9 shall remain sealed unless— 

10 ‘‘(A) an application for a court order with re11 spect to the surveillance is made under section 104; 

12 or 

13 ‘‘(B) the certification is necessary to determine 

14 the legality of the surveillance under section 106(f). 

15 ‘‘(b) The Attorney General is also authorized to deliver 

16 to a provider of any electronic communication service, land17 lord, custodian, or other person (including any officer, em18 ployee, agent, or other specified person thereof) who has ac19 cess to electronic communications, either as they are trans20 mitted or while they are stored, or equipment that is being 

21 or may be used to transmit or store such communications, 

22 a certificate requiring that such person or persons furnish 

23 any information, facilities, or technical assistance to an of24 ficial authorized by the President to engage in electronic 

25 surveillance for foreign intelligence purposes, for periods of 


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1 up to 1 year if the Attorney General certifies in writing 

2 to the carrier under oath that such provision of informa3 tion, facilities, or technical assistance does not constitute 

4 electronic surveillance as defined in section 101(f). 

5 ‘‘(c) With respect to electronic surveillance or the fur6 nishing of any information, facilities, or technical assist7 ance authorized by this section, the Attorney General may 

8 direct a provider of any electronic communication service, 

9 landlord, custodian or other person (including any officer, 

10 employee, agent, or other specified person thereof) who has 

11 access to electronic communications, either as they are 

12 transmitted or while they are stored or equipment that is 

13 being or may be used to transmit or store such communica14 tions to— 

15 ‘‘(1) furnish all information, facilities, or tech16 nical assistance necessary to accomplish the electronic 

17 surveillance in such a manner as will protect its se18 crecy and produce a minimum of interference with 

19 the services that such provider of any electronic com20 munication service, landlord, custodian, or other per21 son is providing its customers; and 

22 ‘‘(2) maintain under security procedures ap23 proved by the Attorney General and the Director of 

24 National Intelligence any records concerning the sur25 veillance or the aid furnished which such provider of 


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1 any electronic communication service, landlord, custo2 dian, or other person wishes to retain. 

3 The Government shall compensate, at the prevailing rate, 

4 such provider of any electronic communication service, 

5 landlord, custodian, or other person for furnishing such aid. 

6 ‘‘(d) Electronic surveillance directed solely at the col7 lection of international radio communications of diplomati8 cally immune persons in the United States may be author9 ized by an official authorized by the President to engage 

10 in electronic surveillance for foreign intelligence purposes 

11 in accordance with procedures approved by the Attorney 

12 General.’’. 

13 (d) DESIGNATION OF JUDGES.—Section 103 of FISA 

14 (50 U.S.C. 1803) is amended in subsection (a), by inserting, 

15 ‘‘at least’’ before ‘‘seven of the United States Judiciary’’. 

16 (e) APPLICATIONS FOR COURT ORDERS.—Section 104 

17 of FISA (50 U.S.C. 1804) is amended: 

18 (1) in subsection (a), by striking paragraphs (6) 

19 through (11) and inserting the following: 

20 ‘‘(6) a certification or certifications by the As21 sistant to the President for National Security Affairs 

22 or an executive branch official authorized by the 

23 President to conduct electronic surveillance for foreign 

24 intelligence purposes— 


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1 ‘‘(A) that the certifying official deems the 

2 information sought to be foreign intelligence in3 formation; 

4 ‘‘(B) that a significant purpose of the sur5 veillance is to obtain foreign intelligence infor6 mation; 

7 ‘‘(C) that such information cannot reason8 ably be obtained by normal investigative tech9 niques; and 

10 ‘‘(D) including a statement of the basis for 

11 the certification that— 

12 ‘‘(i) the information sought is the type 

13 of foreign intelligence information des14 ignated; and 

15 ‘‘(ii) such information cannot reason16 ably be obtained by normal investigative 

17 techniques; and 

18 ‘‘(7) a statement of the period of time for which 

19 the electronic surveillance is required to be main20 tained, and if the nature of the intelligence gathering 

21 is such that the approval of the use of electronic sur22 veillance under this title should not automatically ter23 minate when the described type of information has 

24 first been obtained, a description of facts supporting 


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1 the belief that additional information of the same 

2 type will be obtained thereafter.’’; 

3 (2) by striking subsection (b); and 

4 (3) by redesignating subsections (c) through (e) 

5 as subsections (b) through (d), respectively. 

6 (f) ISSUANCE OF ORDER.—Section 105 of FISA (50 

7 U.S.C. 1805) is amended— 

8 (1) in subsection (a), by— 

9 (A) striking paragraph (1); and 

10 (B) redesignating paragraphs (2) through 

11 (5) as paragraphs (1) through (4), respectively; 

12 (2) by striking paragraph (1) of subsection (c) 

13 and inserting the following: 

14 ‘‘(1) An order approving an electronic surveillance 

15 under this section shall specify— 

16 ‘‘(A) the identity, if known, or a description of 

17 the specific target of the electronic surveillance identi18 fied or described in the application pursuant to sec19 tion 104(a)(3); 

20 ‘‘(B) the nature and location of each of the facili21 ties or places at which the electronic surveillance will 

22 be directed, if known; and 

23 ‘‘(C) the period of time during which the elec24 tronic surveillance is approved.’’; 


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1 (3) by striking subsection (d) and inserting the 

2 following: 

3 ‘‘(d) Each order under this section shall specify the 

4 type of electronic surveillance involved, including whether 

5 physical entry is required.’’; 

6 (4) by striking paragraphs (1) and (2) of sub7 section (e) and inserting the following: 

8 ‘‘(1) An order issued under this section may approve 

9 an electronic surveillance may be for a period not to exceed 

10 1 year. If such emergency employment of electronic surveil11 lance is authorized, the official authorizing the emergency 

12 employment of electronic surveillance shall require that the 

13 minimization procedures required by this title for the 

14 issuance of a judicial order be followed. 

15 ‘‘(2) Extensions of an order issued under this title may 

16 be granted on the same basis as an original order upon 

17 an application for an extension and new findings made in 

18 the same manner as required for an original order and may 

19 be for a period not to exceed 1 year.’’; 

20 (5) by striking subsection (f) and inserting the 

21 following: 

22 ‘‘(f)(1) Notwithstanding any other provision of this 

23 title, when an official authorized by the President to con24 duct electronic surveillance reasonably determines that— 


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1 ‘‘(A) an emergency situation exists with respect 

2 to the employment of electronic surveillance to obtain 

3 foreign intelligence information before an order au4 thorizing such surveillance can with due diligence be 

5 obtained; and 

6 ‘‘(B) the factual basis for issuance of an order 

7 under this title to approve such surveillance exists; 

8 that official may authorize the emergency employment of 

9 electronic surveillance in accordance with paragraph (2). 

10 ‘‘(2) Under paragraph (1), the following requirements 

11 shall be satisfied: 

12 ‘‘(A) The Attorney General shall be informed of 

13 the emergency electronic surveillance. 

14 ‘‘(B) A judge having jurisdiction under section 

15 103 shall be informed by the Attorney General or his 

16 designee as soon as practicable following such author17 ization that the decision has been made to employ 

18 emergency electronic surveillance. 

19 ‘‘(C) An application in accordance with this title 

20 shall be made to that judge or another judge having 

21 jurisdiction under section 103 as soon as practicable, 

22 but not more than 7 days after such surveillance is 

23 authorized. In the absence of a judicial order approv24 ing such electronic surveillance, the surveillance shall 

25 terminate when the information sought is obtained, 


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1 when the application for the order is denied, or after 

2 the expiration of 7 days from the time of emergency 

3 authorization, whichever is earliest. In the event that 

4 such application for approval is denied, or in any 

5 other case where the electronic surveillance is termi6 nated and no order is issued approving the surveil7 lance, no information obtained or evidence derived 

8 from such surveillance shall be received in evidence or 

9 otherwise disclosed in any trial, hearing, or other pro10 ceeding in or before any court, grand jury, depart11 ment, office, agency, regulatory body, legislative com12 mittee, or other authority of the United States, a 

13 State, or political subdivision thereof, and no infor14 mation concerning any United States person acquired 

15 from such surveillance shall subsequently be used or 

16 disclosed in any other manner by Federal officers or 

17 employees without the consent of such person, except 

18 with the approval of the Attorney General if the in19 formation indicates a threat of death or serious bodily 

20 harm to any person. A denial of the application made 

21 under this subsection may be reviewed as provided in 

22 section 103.’’; and 

23 (6) in subsection (i) by— 

24 (A) striking ‘‘a wire or’’ and inserting 

25 ‘‘any’’; 


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1 (B) striking ‘‘chapter’’ and inserting 

2 ‘‘title’’; and 

3 (C) by adding at the end ‘‘, or in response 

4 to certification by the Attorney General or his 

5 designee seeking information, facilities, or tech6 nical assistance from such person that does not 

7 constitute electronic surveillance as defined in 

8 section 101(f )’’. 

9 (g) USE OF INFORMATION.—Section 106 of FISA (50 

10 U.S.C. 1806) is amended— 

11 (1) in subsection (i), by— 

12 (A) deleting ‘‘radio’’; and 

13 (B) inserting ‘‘Attorney General determines 

14 that the content’’ after ‘‘contain significant for15 eign intelligence or’’; and 

16 (2) in subsection (k), by deleting ‘‘104(a)(7)’’ 

17 and inserting ‘‘104(a)(6)’’. 

18 (h) CONGRESSIONAL OVERSIGHT.—Section 108 of 

19 FISA (50 U.S.C. 1808) is amended by adding at the end 

20 the following: 

21 ‘‘(c) DOCUMENT MANAGEMENT SYSTEM FOR APPLICA22 TIONS FOR ORDERS APPROVING ELECTRONIC SURVEIL23 LANCE.— 

24 ‘‘(1) SYSTEM PROPOSED.—The Attorney General 

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1 sultation with the Director of the Federal Bureau of 

2 Investigation, the Director of the National Security 

3 Agency, the Director of the Central Intelligence Agen4 cy, and the Foreign Intelligence Surveillance Court, 

5 conduct a feasibility study to develop and implement 

6 a secure, classified document management system that 

7 permits the prompt preparation, modification, and 

8 review by appropriate personnel of the Department of 

9 Justice, the Federal Bureau of Investigation, the Na10 tional Security Agency, and other applicable elements 

11 of the United States Government of applications 

12 under section 104 before their submittal to the For13 eign Intelligence Surveillance Court. 

14 ‘‘(2) SCOPE OF SYSTEM.—The document man15 agement system proposed in paragraph (1) shall— 

16 ‘‘(A) permit and facilitate the prompt sub17 mittal of applications and all other matters, in18 cluding electronic filings, to the Foreign Intel19 ligence Surveillance Court under section 104 or 

20 105(g)(5); and 

21 ‘‘(B) permit and facilitate the prompt 

22 transmittal of rulings of the Foreign Intelligence 

23 Surveillance Court to personnel submitting ap24 plications described in paragraph (1).’’. 


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1 (i) CRIMINAL SANCTIONS.—Section 109 of FISA (50 

2 U.S.C. 1809) is amended by striking subsection (a) and in3 serting the following: 

4 ‘‘(a) PROHIBITED ACTIVITIES.—A person is guilty of 

5 an offense if he intentionally— 

6 ‘‘(1) engages in electronic surveillance, as defined 

7 in section 101(f), under color of law except as author8 ized by law; or 

9 ‘‘(2) discloses or uses information obtained under 

10 color of law by electronic surveillance, knowing or 

11 having reason to know that the information was ob12 tained through electronic surveillance not authorized 

13 by law.’’. 

14 (j) AUTHORIZATION DURING TIME OF WAR.—Title I 

15 of FISA is amended by striking section 111. 

16 (k) PHYSICAL SEARCHES.—Title III of Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 1821 et seq.) 

18 is amended— 

19 (1) in section 301 (50 U.S.C. 1821), by striking 

20 paragraph (5) and inserting the following: 

21 ‘‘(5) ‘Physical search’ means any physical intru22 sion within the United States into premises or prop23 erty (including examination of the interior of prop24 erty by technical means) that is intended to result in 

25 a seizure, reproduction, inspection, or alteration of 


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1 information, material, or property, under cir2 cumstances in which a person has a reasonable expec3 tation of privacy and a warrant would be required 

4 for law enforcement purposes, but does not include ac5 tivities conducted in accordance with sections 102 or 

6 105.’’; 

7 (2) in section 307, by striking subsection (a) and 

8 inserting the following: 

9 ‘‘(a) A person is guilty of an offense if he inten10 tionally— 

11 ‘‘(1) under color of law for the purpose of obtain12 ing foreign intelligence information, executes a phys13 ical search within the United States except as author14 ized by statute or under the Constitution; or 

15 ‘‘(2) discloses or uses information obtained under 

16 color of law by physical search within the United 

17 States, knowing or having reason to know that the in18 formation was obtained through physical search not 

19 authorized by statute or the Constitution.’’; and 

20 (3) by striking section 309. 

21 SEC. 10. CONFORMING AMENDMENT TO TABLE OF CON22 TENTS. 

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1 lated to title VII and section 701 and inserting the fol2 lowing: 

‘‘TITLE VII—ELECTRONIC SURVEILLANCE 

‘‘Sec. 701. Definition. 

‘‘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. 

‘‘TITLE VIII—EXECUTIVE AUTHORITY 

‘‘Sec. 801. Executive authority.’’. 


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Calendar No. 609 

109TH CONGRESS 

2D SESSION S. 2453 

A BILL 

To establish procedures for the review of electronic 

surveillance programs. 

SEPTEMBER 13, 2006 

Reported with an amendment 


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