109TH CONGRESS REPT. 109–680 " ! HOUSE OF REPRESENTATIVES 2d Session Part 2 

ELECTRONIC SURVEILLANCE MODERNIZATION ACT 

SEPTEMBER 25, 2006.—Ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING AND ADDITIONAL VIEWS 

[To accompany H.R. 5825] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 5825) to update the Foreign Intelligence Surveillance Act of 

1978, having considered the same, report favorably thereon with an 

amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Electronic Surveillance Modernization Act’’. 

SEC. 2. FINDING. 

Congress finds that article I, section 8, clause 18 of the Constitution, known as 

the ‘‘necessary and proper clause’’, grants Congress clear authority to regulate the 

President’s inherent power to gather foreign intelligence. 

SEC. 3. FISA DEFINITIONS. 

(a) AGENT OF A FOREIGN POWER.—Subsection (b)(1) of section 101 of the Foreign 

Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) is amended— 

(1) in subparagraph (B), by striking ‘‘; or’’ and inserting ‘‘;’’; and 

(2) by adding at the end the following: 

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

deems such foreign intelligence information to be significant; or’’. 

(b) ELECTRONIC SURVEILLANCE.—Subsection (f) of such section is amended to read 

as follows: 

‘‘(f) ‘Electronic surveillance’ means— 

‘‘(1) the installation or use of an electronic, mechanical, or other surveillance 

device for acquiring information by intentionally directing surveillance at a parVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00001 Fmt 6659 Sfmt 6621 E:\HR\OC\HR680P2.XXX HR680P2

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ticular known person who is reasonably believed to be in the United States 

under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or ‘‘(2) the intentional acquisition of the contents of any communication under 

circumstances in which a person has a reasonable expectation of privacy and 

a warrant would be required for law enforcement purposes, if both the sender 

and all intended recipients are reasonably believed to be located within the 

United States.’’. (c) CONTENTS.—Subsection (n) of such section is amended to read as follows: ‘‘(n) ‘Contents’, when used with respect to a communication, includes any information concerning the substance, purport, or meaning of that communication.’’. 

SEC. 4. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS FOR 

FOREIGN INTELLIGENCE PURPOSES. 

(a) IN GENERAL.—The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

1801 et seq.) is further amended by striking section 102 and inserting the following: 

‘‘AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE

PURPOSES

‘‘SEC. 102. (a) IN GENERAL.—Notwithstanding any other law, the President, acting 

through the Attorney General, may authorize electronic surveillance without a court 

order under this title to acquire foreign intelligence information for periods of up 

to one year if the Attorney General certifies in writing under oath that— ‘‘(1) the electronic surveillance is directed at— ‘‘(A) the acquisition of the contents of communications of foreign powers, 

as defined in paragraph (1), (2), or (3) of section 101(a), or an agent of a 

foreign power, as defined in subparagraph (A) or (B) of section 101(b)(1); or ‘‘(B) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and 

exclusive control of a foreign power, as defined in paragraph (1), (2), or (3) 

of section 101(a); and ‘‘(2) the proposed minimization procedures with respect to such surveillance 

meet the definition of minimization procedures under section 101(h); 

if the Attorney General reports such minimization procedures and any changes 

thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate at least 30 days 

prior to the effective date of such minimization procedures, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective 

immediately. ‘‘(b) MINIMIZATION PROCEDURES.—An electronic surveillance authorized by this 

subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under the provisions of section 108(a). 

‘‘(c) SUBMISSION OF CERTIFICATION.—The Attorney General shall immediately 

transmit under seal to the court established under section 103(a) a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless—

‘‘(1) an application for a court order with respect to the surveillance is made 

under section 104; or 

‘‘(2) the certification is necessary to determine the legality of the surveillance 

under section 106(f). 

‘‘AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION

‘‘SEC. 102A. (a) IN GENERAL.—Notwithstanding any other law, the President, acting through the Attorney General may, for periods of up to one year, authorize the 

acquisition of foreign intelligence information concerning a person reasonably believed to be outside the United States if the Attorney General certifies in writing 

under oath that—

‘‘(1) the acquisition does not constitute electronic surveillance; 

‘‘(2) the acquisition involves obtaining the foreign intelligence information 

from or with the assistance of a wire or electronic communications service provider, custodian, or other person (including any officer, employee, agent, or 

other specified person of such service provider, custodian, or other person) who 

has access to wire or electronic communications, either as they are transmitted 


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or while they are stored, or equipment that is being or may be used to transmit 

or store such communications; ‘‘(3) a significant purpose of the acquisition is to obtain foreign intelligence 

information; and ‘‘(4) the proposed minimization procedures with respect to such acquisition activity meet the definition of minimization procedures under section 101(h). ‘‘(b) SPECIFIC PLACE NOT REQUIRED.—A certification under subsection (a) is not 

required to identify the specific facilities, places, premises, or property at which the 

acquisition of foreign intelligence information will be directed. ‘‘(c) SUBMISSION OF CERTIFICATION.—The Attorney General shall immediately 

transmit under seal to the court established under section 103(a) a copy of a certification made under subsection (a). Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless the certification is necessary to determine the legality of the acquisition under section 102B. ‘‘(d) MINIMIZATION PROCEDURES.—An acquisition under this section may be conducted only in accordance with the certification of the Attorney General and the 

minimization procedures adopted by the Attorney General. The Attorney General 

shall assess compliance with such procedures and shall report such assessments to 

the Permanent Select Committee on Intelligence of the House of Representatives 

and the Select Committee on Intelligence of the Senate under section 108(a). 

‘‘DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS OF

FOREIGN INTELLIGENCE INFORMATION

‘‘SEC. 102B. (a) DIRECTIVE.—With respect to an authorization of electronic surveillance under section 102 or an authorization of an acquisition under section 102A, 

the Attorney General may direct a person to— ‘‘(1) immediately provide the Government with all information, facilities, and 

assistance necessary to accomplish the acquisition of foreign intelligence information in such a manner as will protect the secrecy of the electronic surveillance or acquisition and produce a minimum of interference with the services 

that such person is providing to the target; and ‘‘(2) maintain under security procedures approved by the Attorney General 

and the Director of National Intelligence any records concerning the electronic 

surveillance or acquisition or the aid furnished that such person wishes to 

maintain. ‘‘(b) COMPENSATION.—The Government shall compensate, at the prevailing rate, 

a person for providing information, facilities, or assistance pursuant to subsection 

(a). ‘‘(c) FAILURE TO COMPLY.—In the case of a failure to comply with a directive 

issued pursuant to subsection (a), the Attorney General may petition the court established under section 103(a) to compel compliance with the directive. The court 

shall issue an order requiring the person or entity to comply with the directive if 

it finds that the directive was issued in accordance with section 102(a) or 102A(a) 

and is otherwise lawful. Failure to obey an order of the court may be punished by 

the court as contempt of court. Any process under this section may be served in any 

judicial district in which the person or entity may be found. ‘‘(d) REVIEW OF PETITIONS.—(1) IN GENERAL.—(A) CHALLENGE.—A person receiving a directive issued pursuant to subsection (a) may challenge the legality of that 

directive by filing a petition with the pool established under section 103(e)(1). ‘‘(B) ASSIGNMENT OF JUDGE.—The presiding judge designated pursuant to section 

103(b) shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1). Not later than 24 hours after the 

assignment of such petition, the assigned judge shall conduct an initial review of 

the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall deny the petition and affirm the directive or any part of the directive that is the subject of the petition. If the assigned judge determines the petition 

is not frivolous, the assigned judge shall, within 72 hours, consider the petition in 

accordance with the procedures established under section 103(e)(2) and provide a 

written statement for the record of the reasons for any determination under this 

subsection. 

‘‘(2) STANDARD OF REVIEW.—A judge considering a petition to modify or set aside 

a directive may grant such petition only if the judge finds that such directive does 

not meet the requirements of this section or is otherwise unlawful. If the judge does 

not modify or set aside the directive, the judge shall affirm such directive, and order 

the recipient to comply with such directive. 

‘‘(3) DIRECTIVES NOT MODIFIED.—Any directive not explicitly modified or set aside 

under this subsection shall remain in full effect. 


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‘‘(e) APPEALS.—The Government or a person receiving a directive reviewed pursuant to subsection (d) may file a petition with the court of review established under 

section 103(b) for review of the decision issued pursuant to subsection (d) not later 

than 7 days after the issuance of such decision. Such court of review shall have jurisdiction to consider such petitions and shall provide for the record a written statement of the reasons for its decision. On petition by the Government or any person 

receiving such directive for a writ of certiorari, the record shall be transmitted 

under seal to the Supreme Court, which shall have jurisdiction to review such decision. 

‘‘(f) PROCEEDINGS.—Judicial proceedings under this section shall be concluded as 

expeditiously as possible. The record of proceedings, including petitions filed, orders 

granted, and statements of reasons for decision, shall be maintained under security 

measures established by the Chief Justice of the United States, in consultation with 

the Attorney General and the Director of National Intelligence. 

‘‘(g) SEALED PETITIONS.—All petitions under this section shall be filed under seal. 

In any proceedings under this section, the court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a 

submission, which may include classified information. 

‘‘(h) LIABILITY.—No cause of action shall lie in any court against any person for 

providing any information, facilities, or assistance in accordance with a directive 

under this section. 

‘‘(i) USE OF INFORMATION.—Information acquired pursuant to a directive by the 

Attorney General under this section concerning any United States person may be 

used and disclosed by Federal officers and employees without the consent of the 

United States person only in accordance with the minimization procedures required 

by section 102(a) or 102A(a). No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this section shall lose its privileged character. No information from an electronic surveillance under section 102 

or an acquisition pursuant to section 102A may be used or disclosed by Federal officers or employees except for lawful purposes. 

‘‘(j) USE IN LAW ENFORCEMENT.—No information acquired pursuant to this section 

shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived from such 

information, may only be used in a criminal proceeding with the advance authorization of the Attorney General. 

‘‘(k) DISCLOSURE IN TRIAL.—If the Government intends to enter into evidence or 

otherwise use or disclose in any trial, hearing, or other proceeding in or before any 

court, department, officer, agency, regulatory body, or other authority of the United 

States, against an aggrieved person, any information obtained or derived from an 

electronic surveillance conducted under section 102 or an acquisition authorized 

pursuant to section 102A, the Government shall, prior to the trial, hearing, or other 

proceeding or at a reasonable time prior to an effort to disclose or use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to disclose or use such information. 

‘‘(l) DISCLOSURE IN STATE TRIALS.—If a State or political subdivision of a State 

intends to enter into evidence or otherwise use or disclose in any trial, hearing, or 

other proceeding in or before any court, department, officer, agency, regulatory body, 

or other authority of a State or a political subdivision of a State, against an aggrieved person, any information obtained or derived from an electronic surveillance 

authorized pursuant to section 102 or an acquisition authorized pursuant to section 

102A, the State or political subdivision of such State shall notify the aggrieved person, the court, or other authority in which the information is to be disclosed or used 

and the Attorney General that the State or political subdivision intends to disclose 

or use such information. 

‘‘(m) MOTION TO EXCLUDE EVIDENCE.—(1) IN GENERAL.—Any person against 

whom evidence obtained or derived from an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A is to be, 

or has been, used or disclosed in any trial, hearing, or other proceeding in or before 

any court, department, officer, agency, regulatory body, or other authority of the 

United States, a State, or a political subdivision thereof, may move to suppress the 

evidence obtained or derived from such electronic surveillance or such acquisition 

on the grounds that—

‘‘(A) the information was unlawfully acquired; or 

‘‘(B) the electronic surveillance or acquisition was not properly made in conformity with an authorization under section 102(a) or 102A(a). 

‘‘(2) TIMING.—A person moving to suppress evidence under paragraph (1) shall 

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ceeding unless there was no opportunity to make such a motion or the person was 

not aware of the grounds of the motion. 

‘‘(n) REVIEW OF MOTIONS.—If a court or other authority is notified pursuant to 

subsection (k) or (l), a motion is made pursuant to subsection (m), or a motion or 

request is made by an aggrieved person pursuant to any other statute or rule of 

the United States or any State before any court or other authority of the United 

States or any State—

‘‘(1) to discover or obtain an Attorney General directive or other materials relating to an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A, or 

‘‘(2) to discover, obtain, or suppress evidence or information obtained or derived from an electronic surveillance authorized pursuant to section 102 or an 

acquisition authorized pursuant to section 102A, 

the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the Attorney General files an affidavit under oath 

that disclosure or an adversary hearing would harm the national security of the 

United States, review in camera and ex parte the application, order, and such other 

materials relating to such electronic surveillance or such acquisition as may be necessary to determine whether such electronic surveillance or such acquisition authorized under this section was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the directive or other materials relating to the acquisition only where such disclosure is necessary to make an accurate determination of the legality of the acquisition. 

‘‘(o) DETERMINATIONS.—If, pursuant to subsection (n), a United States district 

court determines that the acquisition authorized under this section was not lawfully 

authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived or otherwise grant the 

motion of the aggrieved person. If the court determines that such acquisition was 

lawfully authorized and conducted, it shall deny the motion of the aggrieved person 

except to the extent that due process requires discovery or disclosure. 

‘‘(p) BINDING ORDERS.—Orders granting motions or requests under subsection (m), 

decisions under this section that an electronic surveillance or an acquisition was not 

lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of directives, orders, or other materials relating to such acquisition shall be final orders and binding upon all courts of the 

United States and the several States except a United States court of appeals and 

the Supreme Court. 

‘‘(q) COORDINATION.—(1) IN GENERAL.—Federal officers who acquire foreign intelligence information may consult with Federal law enforcement officers or law enforcement personnel of a State or political subdivision of a State, including the chief 

executive officer of that State or political subdivision who has the authority to appoint or direct the chief law enforcement officer of that State or political subdivision, 

to coordinate efforts to investigate or protect against—

‘‘(A) actual or potential attack or other grave hostile acts of a foreign power 

or an agent of a foreign power; 

‘‘(B) sabotage, international terrorism, or the development or proliferation of 

weapons of mass destruction by a foreign power or an agent of a foreign power; 

or 

‘‘(C) clandestine intelligence activities by an intelligence service or network of 

a foreign power or by an agent of a foreign power. 

‘‘(2) CERTIFICATION REQUIRED.—Coordination authorized under paragraph (1) 

shall not preclude the certification required by section 102(a) or 102A(a). 

‘‘(r) RETENTION OF DIRECTIVES AND ORDERS.—A directive made or an order granted under this section shall be retained for a period of not less than 10 years from 

the date on which such directive or such order is made.’’. 

(b) TABLE OF CONTENTS.—The table of contents in the first section of the Foreign 

Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after the item relating to section 102 the following: 

‘‘102A. Authorization for acquisition of foreign intelligence information. 

‘‘102B. Directives relating to electronic surveillance and other acquisitions of foreign intelligence information.’’. 

SEC. 5. JURISDICTION OF FISA COURT. 

Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803) 

is amended by adding at the end the following new subsection: 

‘‘(g) Applications for a court order under this title are authorized if the President 

has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under this section, and a judge to whom an 


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application is made may, notwithstanding any other law, grant an order, in conformity with section 105, approving electronic surveillance of a foreign power or an 

agent of a foreign power for the purpose of obtaining foreign intelligence information.’’. 

SEC. 6. APPLICATIONS FOR COURT ORDERS. 

Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) 

is amended— (1) in subsection (a)— (A) in paragraph (6), by striking ‘‘detailed description’’ and inserting ‘‘summary description’’; 

(B) in paragraph (7)— (i) in the matter preceding subparagraph (A), by striking ‘‘or officials 

designated’’ and all that follows through ‘‘consent of the Senate’’ and inserting ‘‘designated by the President to authorize electronic surveillance 

for foreign intelligence purposes’’; 

(ii) in subparagraph (C), by striking ‘‘techniques;’’ and inserting ‘‘techniques; and’’; 

(iii) by striking subparagraph (D); and 

(iv) by redesignating subparagraph (E) as subparagraph (D); 

(C) in paragraph (8), by striking ‘‘a statement of the means’’ and inserting ‘‘a summary statement of the means’’; 

(D) in paragraph (9)— (i) by striking ‘‘a statement’’ and inserting ‘‘a summary statement’’; 

and 

(ii) by striking ‘‘application;’’ and inserting ‘‘application; and’’; 

(E) in paragraph (10), by striking ‘‘thereafter; and’’ and inserting ‘‘thereafter.’’; and 

(F) by striking paragraph (11). 

(2) by striking subsection (b); 

(3) by redesignating subsections (c) through (e) as subsections (b) through (d), 

respectively; and 

(4) in paragraph (1)(A) of subsection (d), as redesignated by paragraph (3), by 

striking ‘‘or the Director of National Intelligence’’ and inserting ‘‘the Director of 

National Intelligence, or the Director of the Central Intelligence Agency’’. 

SEC. 7. ISSUANCE OF AN ORDER. 

Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) 

is amended— (1) in subsection (a)— (A) by striking paragraph (1); and 

(B) by redesignating paragraphs (2) through (5) as paragraphs (1) 

through (4), respectively; 

(2) in subsection (c)(1)—

(A) in subparagraph (D), by striking ‘‘surveillance;’’ and inserting ‘‘surveillance; and’’; 

(B) in subparagraph (E), by striking ‘‘approved; and’’ and inserting ‘‘approved.’’; and 

(C) by striking subparagraph (F); 

(3) by striking subsection (d); 

(4) by redesignating subsections (e) through (i) as subsections (d) through (h), 

respectively; 

(5) in subsection (d), as redesignated by paragraph (4), by amending paragraph (2) to read as follows: 

‘‘(2) Extensions of an order issued under this title may be granted on the same 

basis as an original order upon an application for an extension and new findings 

made in the same manner as required for an original order and may be for a period 

not to exceed one year.’’. 

(6) in subsection (e), as redesignated by paragraph (4), to read as follows: 

‘‘(e) Notwithstanding any other provision of this title, an official appointed by the 

President with the advice and consent of the Senate that is designated by the President to authorize electronic surveillance may authorize the emergency employment 

of electronic surveillance if—

‘‘(1) such official determines that an emergency situation exists with respect 

to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be 

obtained; 

‘‘(2) such official determines that the factual basis for issuance of an order 

under this title to approve such electronic surveillance exists; 

‘‘(3) such official informs the Attorney General of such electronic surveillance; 


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‘‘(4) the Attorney General or a designee of the Attorney General informs a 

judge having jurisdiction under section 103 of such electronic surveillance as 

soon as practicable, but in no case more than 7 days after the date on which 

such electronic surveillance is authorized; 

‘‘(5) an application in accordance with this title is made to such judge or another judge having jurisdiction under section 103 as soon as practicable, but not 

more than 7 days after such electronic surveillance is authorized; 

‘‘(6) such official requires that the minimization procedures required by this 

title for the issuance of a judicial order be followed. 

In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application 

for the order is denied, or after the expiration of 7 days from the time of authorization by such official, whichever is earliest. In the event that the application for approval submitted pursuant to paragraph (5) is denied, or in any other case where 

the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall 

be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory 

body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other 

manner by Federal officers or employees without the consent of such person, except 

with the approval of the Attorney General if the information indicates a threat of 

death or serious bodily harm to any person. A denial of the application made pursuant to paragraph (5) may be reviewed as provided in section 103.’’; 

(7) in subsection (h), as redesignated by paragraph (4)—

(A) by striking ‘‘a wire or’’ and inserting ‘‘an’’; and 

(B) by striking ‘‘physical search’’ and inserting ‘‘physical search or in response to a certification by the Attorney General or a designee of the Attorney General seeking information, facilities, or technical assistance from 

such person under section 102B’’; and 

(8) by adding at the end the following new subsection: 

‘‘(i) In any case in which the Government makes an application to a judge under 

this title to conduct electronic surveillance involving communications and the judge 

grants such application, the judge shall also authorize the installation and use of 

pen registers and trap and trace devices to acquire dialing, routing, addressing, and 

signaling information related to such communications and such dialing, routing, addressing, and signaling information shall not be subject to minimization procedures.’’. 

SEC. 8. USE OF INFORMATION. 

Section 106(i) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

1806(i)) is amended—

(1) by striking ‘‘radio communication’’ and inserting ‘‘communication’’; and 

(2) by striking ‘‘contents indicates’’ and inserting ‘‘contents contain significant 

foreign intelligence information or indicate’’. 

SEC. 9. CONGRESSIONAL OVERSIGHT. 

(a) ELECTRONIC SURVEILLANCE UNDER FISA.—Section 108 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808) is amended—

(1) in subsection (a)(1), by inserting ‘‘each member of’’ before ‘‘the House Permanent Select Committee on Intelligence’’; and 

(2) in subsection (a)(2)—

(A) in subparagraph (B), by striking ‘‘and’’ at the end; 

(B) in subparagraph (C), by striking the period and inserting ‘‘; and’’; and 

(C) by adding at the end the following new subparagraph: 

‘‘(D) the authority under which the electronic surveillance is conducted.’’; 

and 

(3) in subsection (a), by adding at the end the following new paragraph: 

‘‘(3) Each report submitted under this subsection shall include reports on electronic surveillance conducted without a court order.’’. 

(b) INTELLIGENCE ACTIVITIES.—Section 501 of the National Security Act of 1947 

(50 U.S.C. 413) is amended—

(1) in subsection (a)(1), by inserting ‘‘each member of’’ before ‘‘the congressional intelligence committees’’; and 

(2) in subsection (b), by inserting ‘‘each member of’’ before ‘‘the congressional 

intelligence committees’’. 


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SEC. 10. INTERNATIONAL MOVEMENT OF TARGETS. 

(a) ELECTRONIC SURVEILLANCE.—Section 105(d) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)), as redesignated by section 7(4), is amended by adding at the end the following new paragraph: 

‘‘(4) An order issued under this section shall remain in force during the authorized 

period of surveillance notwithstanding the absence of the target from the United 

States, unless the Government files a motion to extinguish the order and the court 

grants the motion.’’. 

(b) PHYSICAL SEARCH.—Section 304(d) of the Foreign Intelligence Surveillance Act 

of 1978 (50 U.S.C. 1824(d)) is amended by adding at the end the following new paragraph: 

‘‘(4) An order issued under this section shall remain in force during the authorized 

period of surveillance notwithstanding the absence of the target from the United 

States, unless the Government files a motion to extinguish the order and the court 

grants the motion.’’. 

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

(a) IN GENERAL.—Notwithstanding any other provision of law, and in addition to 

the immunities, privileges, and defenses provided by any other provision of law, no 

action shall lie or be maintained in any court, and no penalty, sanction, or other 

form of remedy or relief shall be imposed by any court or any other body, against 

any person for an activity arising from or relating to any alleged intelligence program involving electronic surveillance that the Attorney General or a designee of 

the Attorney General certifies, in a manner consistent with the protection of State 

secrets, is, was, or would be intended to protect the United States from a terrorist 

attack. This section shall apply to all actions or proceedings pending on or after the 

effective date of this Act. 

(b) JURISDICTION.—Any action or claim described in subsection (a) that is brought 

in a State court shall be deemed to arise under the Constitution and laws of the 

United States and shall be removable pursuant to section 1441 of title 28, United 

States Code. 

(c) DEFINITIONS.—In this section: 

(1) The term ‘‘electronic surveillance’’ has the meaning given the term in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 

1801(f)) on the day before the date of the enactment of this Act. 

(2) The term ‘‘person’’ has the meaning given the term in section 2510(6) of 

title 18, United States Code. 

SEC. 12. REPORT ON MINIMIZATION PROCEDURES. 

(a) REPORT.—Not later than two years after the date of the enactment of this Act, 

and annually thereafter until December 31, 2009, the Director of the National Security Agency, in consultation with the Director of National Intelligence and the Attorney General, shall submit to the Permanent Select Committee on Intelligence of the 

House of Representatives and the Select Committee on Intelligence of the Senate 

a report on the effectiveness and use of minimization procedures applied to information concerning United States persons acquired by means that were considered electronic surveillance as that term was defined by section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(f)) on the day before the date of 

the enactment of this Act but no longer constitutes electronic surveillance as of the 

effective date of this Act. 

(b) REQUIREMENTS.—A report submitted under subsection (a) shall include—

(1) a description of the implementation, during the course of communications 

intelligence activities conducted by the National Security Agency, of procedures 

established to minimize the acquisition, retention, and dissemination of nonpublicly available information concerning United States persons; 

(2) the number of significant violations, if any, of such minimization procedures during the 18 months following the effective date of this Act; and 

(3) summary descriptions of such violations. 

(c) RETENTION OF INFORMATION.—Information concerning United States persons 

shall not be retained solely for the purpose of complying with the reporting requirements of this section. 

(d) MINIMIZATION PROCEDURES DEFINED.—In this section, the term ‘‘minimization 

procedures’’ has the meaning given the term in section 101(h) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(h)). 

SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS. 

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is further amended—


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1 Charles Doyle, and Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 

at 2 (2001). 2 277 U.S. 438 (1928). 

3 Id. at 466. 

4 Charles Doyle, and Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 

at 5 n.15 (2001). 5 389 U.S. 347, 361 (1967). 

(1) in section 101(h)(4), by striking ‘‘approved pursuant to section 102(a),’’ and 

inserting ‘‘authorized pursuant to section 102 or any acquisition authorized pursuant to section 102A’’; 

(2) in section 105(a)(4), as redesignated by section 7(1)(B)—

(A) by striking ‘‘104(a)(7)(E)’’ and inserting ‘‘104(a)(6)(D)’’; and 

(B) by striking ‘‘104(d)’’ and inserting ‘‘104(c)’’; 

(3) in section 106—

(A) in subsection (j) in the matter preceding paragraph (1), by striking 

‘‘105(e)’’ and inserting ‘‘105(d)’’; and 

(B) in subsection (k)(2), by striking ‘‘104(a)(7)(B)’’ and inserting 

‘‘104(a)(6)(B)’’; and 

(4) in section 108(a)(2)(C), by striking ‘‘105(f)’’ and inserting ‘‘105(e)’’. 

PURPOSE AND SUMMARY

Representative Heather Wilson, Judiciary Committee Chairman 

Sensenbrenner, and Select Committee on Intelligence Chairman 

Hoekstra introduced H.R. 5825, the ‘‘Electronic Surveillance Modernization Act,’’ on July 18, 2006. This bill would strengthen oversight of the executive branch and enhance accountability, clarify 

the scope and applicability of FISA (Foreign Intelligence Surveillance Act) warrants; and update the 1978 Foreign Intelligence Surveillance Act to reflect modern changes in technology and communication. 

BACKGROUND AND NEED FOR THE LEGISLATION

H.R. 5825 pertains to the manner in which the Federal government collects oral, wire and electronic communications for foreign 

intelligence purposes. Congress enacted the first Federal wiretap 

statute during World War I.1 The authority and limits of government surveillance have been the focus of extensive judicial consideration. By the time the United States Supreme Court ruled on the 

issue in Olmstead v. United States,2 over 40 States had banned 

wiretapping. In the Olmstead case, the Court found that a wiretap 

of a Seattle bootlegger did not violate the Fourth Amendment because there was not ‘‘an official search and seizure of his person, 

or such a seizure of his papers or his tangible material effects, or 

an actual physical invasion of his house or curtilage for the purposes of making a seizure.’’ 3 Subsequent decisions eroded the 

Olmstead holding, however. 

Today, United States courts tend to use a two-prong expectation 

of privacy analysis to determine whether the Fourth Amendment 

has been violated.4 Justice Harlan’s concurrence in Silverman v. 

United States,5 highlights the analysis stating ‘‘. . . there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be 

one that society is prepared to recognize as reasonable.’’

In order to safeguard Fourth Amendment protections, Congress 

has created procedures to allow limited law enforcement access to 

private communications and communication records. Specifically, 


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6 87 Stat. 197, 18 U.S.C. 2510–2520 (1970 ed.) (Title III of the Crime Control Act). 7 Charles Doyle, and Gina Stevens, Congressional Research Service, Library of Congress, Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 

at 6 (2001). 8 United States v. United States District Court, 407 U.S. 297 (1972). 9 ‘‘Moreover, we do not hold that the same type of standards and procedures prescribed by 

Title III are necessarily applicable to this case. We recognize that domestic security surveillance 

may involve different policy and practical considerations from the surveillance of ‘ordinary 

crime’. The gathering of security intelligence is often long range and involves the interrelation 

of various sources and types of information. The exact targets of such surveillance may be more 

difficult to identify than in surveillance operations against many types of crime specified in Title 

III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful 

activity or the enhancement of the Government’s preparedness for some possible future crisis 

or emergency. Thus, the focus of domestic surveillance may be less precise than that directed 

against more conventional types of crime. 

Given these potential distinctions between Title III criminal surveillances and those involving 

the domestic security, Congress may wish to consider protective standards for the latter which 

differ from those already prescribed for specified crimes in Title III. Different standards may 

be compatible with the Fourth Amendment [407 U.S. 297, 323] if they are reasonable both in 

relation to the legitimate need of Government for intelligence information and the protected 

rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. As the Court said in 

Camara v. Municipal Court, 387 U.S. 523, 534–535 (1967): ‘‘In cases in which the Fourth Amendment requires that a warrant to search be obtained, ‘probable cause’ is the standard by which a particular decision to search is tested against the 

constitutional mandate of reasonableness. . . . In determining whether a particular inspection 

is reasonable—and thus in determining whether there is probable cause to issue a warrant for 

that inspection—the need for the inspection must be weighed in terms of these reasonable goals 

of code enforcement.’’ It may be that Congress, for example, would judge that the application and affidavit showing 

probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., 

the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 

2518. Id. at 322. 10 92 Stat. 1783, 50 U.S.C. 1801 et seq. 

Congress enacted Title III of the Omnibus Crime Control and Safe 

Streets Act of 1968,6 that outlines what is and is not permissible 

with regard to wiretapping and electronic eavesdropping.7 Title III 

of the Crime Control Act, authorizes the use of electronic surveillance for crimes specified in 18 U.S.C. 2516. 

While Congress did not cover national security cases in the 

Crime Control Act, it did include a disclaimer that the wiretap 

laws did not affect the President’s constitutional duty to protect 

National Security. In 1972, the U.S. Supreme Court rejected the 

claim that this disclaimer applied to domestic security case.8 The 

Court specifically invited Congress to establish similar standards 

for domestic intelligence that were established for criminal investigations.9

Congress enacted the Foreign Intelligence Surveillance Act of 

1978 (FISA),10 to prescribe procedures for foreign intelligence collected domestically. FISA authorized the Federal government to 

collect intelligence within the United States on foreign powers and 

agents of foreign powers. It established a special court to review 

and authorize or deny wiretapping and other forms of electronic 

eavesdropping for purposes of foreign intelligence gathering in domestic surveillance cases. FISA was enacted by Congress to secure 

the integrity of the Fourth Amendment while protecting the national security interest of the United States by providing a mechanism for the domestic collection of foreign intelligence information. 

Changes in technology have caused an unintentional shift in the 

focus and reach of FISA. When FISA was enacted, domestic communications were ordinarily transmitted differently than international communications. Domestic communications were transVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\HR680P2.XXX HR680P2

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mitted via ‘‘wire’’ while international communications were transmitted via ‘‘radio.’’ Over time, however, wire became the preferred 

method of transmitting international communications, blurring the 

technology-centered distinction between international and domestic 

communications. 

As General Hayden testified before the Senate on July 26, 2006, 

the: 

. . . NSA intercepts communications and it does so for only 

one purpose: to protect the lives, the liberties and the well 

being of the citizens of the United States from those who 

would do us harm. By the late 1990s, that job was becoming very difficult. The explosion of modern communications 

in terms of its volume, variety and velocity threatened to 

overwhelm the Agency. The September 11th attacks exposed an even more critical fault line. The laws of the 

United States do (and should) distinguish between the information space that is America and the rest of the planet. 

But modern telecommunications do not so cleanly respect that geographic distinction. We exist on a unitary, 

integrated, global telecommunications grid in which geography is an increasingly irrelevant factor. What does 

‘‘place’’ mean when one is traversing the World Wide Web? 

There are no area codes on the Internet. 

And if modern telecommunications muted the distinctions of geography, our enemy seemed to want to end the 

distinction altogether. After all, he killed 3000 of our countrymen from within the homeland. 

In terms of both technology and the character of our 

enemy, ‘‘in’’ America and ‘‘of’’ America no longer were synonymous. 

I testified about this challenge in open session to the 

House Intelligence Committee in April of the year 2000. At 

the time I created some looks of disbelief when I said that 

if Usama bin Ladin crossed the bridge from Niagara Falls, 

Ontario to Niagara Falls, New York, there were provisions 

of U.S. law that would kick in, offer him some protections 

and affect how NSA could now cover him. At the time I 

was just using this as a stark hypothetical. Seventeen 

months later this was about life and death. 

The legal regime under which NSA was operating—the 

Foreign Intelligence Surveillance Act—had been crafted to 

protect American liberty and American security. 

But the revolution in telecommunications technology has 

extended the actual impact of the FISA regime far beyond 

what Congress could ever have anticipated in 1978. And I 

don’t think that anyone could make the claim that the 

FISA statute was optimized to deal with a 9/11 or to deal 

with a lethal enemy who likely already had combatants inside the United States. 

Because of the wording of the statute, the government 

looks to four factors in assessing whether or not a court 

order was required before NSA can lawfully intercept a 

communication: who was the target, where was the target, 

how did we intercept the communication, and where did 

we intercept the communication. 


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The [Specter] bill before the committee today effectively 

re-examines the relevance of each of these factors and the 

criteria we want to use with each. 

Who is the target? 

The FISA regime from 1978 onward focused on specific 

court orders, against individual targets, individually justified and individually documented. This was well suited to 

stable, foreign entities on which we wanted to focus for extended period of time for foreign intelligence purposes. It 

is less well suited to provide the agility to detect and prevent attacks against the homeland. 

In short, its careful, individualized processes exacted little cost when the goal was long term and exhaustive intelligence coverage against a known and recognizable agent 

of a foreign power. The costs were different when the objective was to detect and prevent attacks, when we are in 

hot pursuit of communications entering or leaving the 

United States involving someone associated with al Qa’ida. 

* * * * * 

Where is the target? 

As I said earlier, geography is becoming less relevant. In 

the age of the Internet and a global communications grid 

that routes communications by the cheapest available 

bandwidth available each nanosecond, should our statutes 

presume that all communications that touch America 

should be equally protected? 

* * * * * 

How did we intercept the communication? 

For reasons that seemed sound at the time, current statute makes a distinction between collection ‘‘on a wire’’ and 

collection out of the air. When the law was passed, almost 

all local calls were on a wire and almost all long haul communications were in the air. In an age of cell phones and 

fiber optic cables, that has been reversed . . . with powerful and unintended consequences for how NSA can lawfully acquire a signal. Legislators in 1978 should not have 

been expected to predict the future of global telecommunications. Neither should you. The statute should be technology neutral. 

Where we intercept the communication? 

A single communication can transit the world even if the 

communicants are only a few miles apart. And in that 

transit NSA may have multiple opportunities to intercept 

it as it moves and changes medium. As long as a communication is otherwise lawfully targeted, we should be indifferent to where the intercept is achieved. Signals intelligence is a difficult art and science, especially in today’s 

telecommunication universe. Intercept of a particular communication—one that would help protect the homeland, for 

example—is always probabilistic, not deterministic. No 

coverage is guaranteed. We need to be able to use all the 

technological tools we have. 

In that light, there are no communications more important to the safety of the Homeland than those affiliated 


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11FISA for the 21st Century: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 

(2006). 12 H. Rpt. 95–1283 at p. 15, 95th Congress, 2d Session, June 8, 1978. 

with al Qa’ida with one end in the United States. And so 

why should our laws make it more difficult to target the 

al Qa’ida communications that are most important to us— those entering or leaving the United States!11

As we learned from the 9/11 attacks, the enemy will exploit any 

vulnerability in our antiterrorism efforts with catastrophic consequences. Congress must ensure that the law enforcement and the 

intelligence communities are given the necessary tools and resources to detect and deter credible threats to our national security 

before they materialize. Congress has enhanced the tools law enforcement and intelligence officers need to fight and win the war 

against terrorism by passing the USA PATRIOT Act, the Homeland 

Security Act and the Intelligence Reform Act. However, the threat 

has not receded, nor has the need to update current law to ensure 

that FISA continues to serve the goals for which it was established. 

Congressional hearings demonstrate that FISA must be streamlined and technology-neutral. Furthermore, testimony highlighted 

the need for Congress to return FISA’s focus to protecting Fourth 

Amendment rights. The General Counsel for the National Security 

Agency pointed out that ‘‘the legislative history of the 1978 statute 

states: ‘[t]he history and law relating to electronic surveillance for ‘national security’ purposes have revolved around the competing demands of the President’s constitutional powers to gather intelligence deemed necessary for the security of the nation and the requirements of the Fourth Amendment.’ 12 With that balance in 

mind, H.R. 5825, the ‘‘Electronic Surveillance Modernization Act,’’ works to accomplish these goals. 

HEARINGS

The Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security held two hearings on H.R. 5825 on 

the 6th and 12th of September 2006. 

COMMITTEE CONSIDERATION

On September 20, 2006, the Committee met in open session and 

ordered favorably reported the bill, H.R. 5825, with an amendment, 

by rollcall vote with 20 ayes and 16 nays, a quorum being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that the following 

rollcall votes occurred during the Committee’s consideration of H.R. 

5825: 

ROLLCALL NO. 5—DATE: 9–20–06

SUBJECT: Nadler motion to adjourn, which was not agreed to by 

a rollcall vote of 14 ayes to 17 nays. 

Ayes Nays Present 

MR. HYDE.

MR. COBLE .................................................................................................................................... X 


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Ayes Nays Present 

MR. SMITH ..................................................................................................................................... X 

MR. GALLEGLY.

MR. GOODLATTE.

MR. CHABOT .................................................................................................................................. X 

MR. LUNGREN ............................................................................................................................... X 

MR. JENKINS .................................................................................................................................. X 

MR. CANNON ................................................................................................................................. X 

MR. BACHUS ................................................................................................................................. X 

MR. INGLIS .................................................................................................................................... X 

MR. HOSTETTLER.

MR. GREEN .................................................................................................................................... X 

MR. KELLER.

MR. ISSA.

MR. FLAKE ..................................................................................................................................... X 

MR. PENCE .................................................................................................................................... X 

MR. FORBES .................................................................................................................................. X 

MR. KING ....................................................................................................................................... X 

MR. FEENEY .................................................................................................................................. X 

MR. FRANKS .................................................................................................................................. X 

MR. GOHMERT ............................................................................................................................... X 

MR. CONYERS ............................................................................................................................... X 

MR. BERMAN ................................................................................................................................. X 

MR. BOUCHER.

MR. NADLER .................................................................................................................................. X 

MR. SCOTT .................................................................................................................................... X 

MR. WATT ...................................................................................................................................... X 

MS. LOFGREN ................................................................................................................................ X 

MS. JACKSON LEE.

MS. WATERS .................................................................................................................................. X 

MR. MEEHAN ................................................................................................................................. X 

MR. DELAHUNT.

MR. WEXLER .................................................................................................................................. X 

MR. WEINER .................................................................................................................................. X 

MR. SCHIFF ................................................................................................................................... X 

MS. SANCHEZ ................................................................................................................................ X 

MR. VAN HOLLEN .......................................................................................................................... X 

MRS. WASSERMAN SCHULTZ ......................................................................................................... X 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... X 

TOTAL ................................................................................................................................... 14 17 

ROLLCALL NO. 6—DATE: 9–20–06

SUBJECT: Roll to record presence of Members to consider 

amendments to H.R. 5825—there were 16 Members present. 

MR. HYDE.

MR. COBLE .................................................................................................................................... X 

MR. SMITH ..................................................................................................................................... X 

MR. GALLEGLY.

MR. GOODLATTE.

MR. CHABOT .................................................................................................................................. X 

MR. LUNGREN ............................................................................................................................... X 

MR. JENKINS .................................................................................................................................. X 

MR. CANNON ................................................................................................................................. X 

MR. BACHUS ................................................................................................................................. X 

MR. INGLIS .................................................................................................................................... X 

MR. HOSTETTLER.

MR. GREEN .................................................................................................................................... X 

MR. KELLER.

MR. ISSA.

MR. FLAKE ..................................................................................................................................... X 

MR. PENCE .................................................................................................................................... X 

MR. FORBES .................................................................................................................................. X 


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MR. KING ....................................................................................................................................... X 

MR. FEENEY .................................................................................................................................. X 

MR. FRANKS .................................................................................................................................. X 

MR. GOHMERT.

MR. CONYERS.

MR. BERMAN.

MR. BOUCHER.

MR. NADLER.

MR. SCOTT.

MR. WATT.

MS. LOFGREN.

MS. JACKSON LEE.

MS. WATERS.

MR. MEEHAN.

MR. DELAHUNT.

MR. WEXLER.

MR. WEINER.

MR. SCHIFF.

MS. SANCHEZ.

MR. VAN HOLLEN.

MRS. WASSERMAN SCHULTZ.

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... X 

TOTAL ................................................................................................................................... 16 

ROLLCALL NO. 7—DATE 9–20–06

SUBJECT: Mr. Lungren amendment to H.R. 5825, which was 

agreed to by a rollcall vote of 17 ayes to 2 nays. The amendment 

modifies section 2 to narrow the new definition in H.R. 5825 of an 

‘‘Agent of a Foreign Power’’ that covers non-U.S. persons who possess or receive foreign intelligence information to covering only situations in which the relevant foreign intelligence information is 

deemed significant. This amendment would also amend the bill’s 

modified definition of ‘‘electronic surveillance.’’ The amendment 

also amends section 3 of the bill that modified section 102(a) certification process of FISA to ensure that it remains focused on foreign 

power or agents of those foreign powers. Furthermore, the amendment modifies section 5 and 6 that streamline the FISA process to 

ensure that the court receives the information necessary. The 

amendment expands section 5, FISA’s emergency authorization 

provision, to allow an emergency surveillance from 5 days prior to 

court approval up to 7 days. 

Ayes Nays Present 

MR. HYDE ...................................................................................................................................... X 

MR. COBLE .................................................................................................................................... X 

MR. SMITH ..................................................................................................................................... X 

MR. GALLEGLY ............................................................................................................................... X 

MR. GOODLATTE ............................................................................................................................ X 

MR. CHABOT .................................................................................................................................. X 

MR. LUNGREN ............................................................................................................................... X 

MR. JENKINS .................................................................................................................................. X 

MR. CANNON ................................................................................................................................. X 

MR. BACHUS ................................................................................................................................. X 

MR. INGLIS .................................................................................................................................... X 

MR. HOSTETTLER ........................................................................................................................... X 

MR. GREEN .................................................................................................................................... X 

MR. KELLER ................................................................................................................................... X 

MR. ISSA ....................................................................................................................................... X 

MR. FLAKE ..................................................................................................................................... X 


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Ayes Nays Present 

MR. PENCE .................................................................................................................................... X 

MR. FORBES .................................................................................................................................. X 

MR. KING ....................................................................................................................................... X 

MR. FEENEY .................................................................................................................................. X 

MR. FRANKS .................................................................................................................................. X 

MR. GOHMERT ............................................................................................................................... X 

MR. CONYERS.

MR. BERMAN.

MR. BOUCHER.

MR. NADLER.

MR. SCOTT.

MR. WATT.

MR. LOFGREN.

MS. JACKSON LEE.

MR. WATERS.

MR. MEEHAN.

MR. DELAHUNT.

MR. WEXLER.

MR. WEINER.

MR. SCHIFF.

MR. SANCHEZ.

MR. VAN HOLLEN.

MRS. WASSERMAN SCHULTZ.

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... X 

TOTAL ................................................................................................................................... 17 2 

ROLLCALL NO. 8—DATE: 9–20–06

SUBJECT: Mr. Schiff and Mr. Flake offered an amendment in 

the nature of a substitute to H.R. 5825, which was not agreed to 

by a rollcall vote of 18 ayes to 20 nays. This amendment would 

have deemed the Foreign Intelligence Surveillance Act the sole authorization for electronic surveillance to gather foreign intelligence 

information; prohibited future congressional action to amend this 

restriction; required the President to report to the Judiciary and 

Intelligence Committees on the Terrorist Surveillance Program; expanded the judges who the Chief Justice could designate as having 

jurisdiction to hear Foreign Intelligence Surveillance cases; has 

language to streamline FISA; expanded the period for applications 

for orders for emergency electronic surveillance; and changed the 

Wartime exception that currently allows warrantless surveillance 

to times when Congress declares war or provides an authorization 

that contains a specific authorization for electronic surveillance, 

among other things. 

Ayes Nays Present 

MR. HYDE ...................................................................................................................................... X 

MR. COBLE .................................................................................................................................... X 

MR. SMITH ..................................................................................................................................... X 

MR. GALLEGLY ............................................................................................................................... X 

MR. GOODLATTE ............................................................................................................................ X 

MR. CHABOT .................................................................................................................................. X 

MR. LUNGREN ............................................................................................................................... X 

MR. JENKINS .................................................................................................................................. X 

MR. CANNON ................................................................................................................................. X 

MR. BACHUS ................................................................................................................................. X 

MR. INGLIS .................................................................................................................................... X 

MR. HOSTETTLER ........................................................................................................................... X 

MR. GREEN .................................................................................................................................... X 

MR. KELLER.


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Ayes Nays Present 

MR. ISSA ....................................................................................................................................... X 

MR. FLAKE ..................................................................................................................................... X 

MR. PENCE .................................................................................................................................... X 

MR. FORBES .................................................................................................................................. X 

MR. KING ....................................................................................................................................... X 

MR. FEENEY .................................................................................................................................. X 

MR. FRANKS .................................................................................................................................. X 

MR. GOHMERT ............................................................................................................................... X 

MR. CONYERS ............................................................................................................................... X 

MR. BERMAN ................................................................................................................................. X 

MR. BOUCHER ............................................................................................................................... X 

MR. NADLER .................................................................................................................................. X 

MR. SCOTT .................................................................................................................................... X 

MR. WATT ...................................................................................................................................... X 

MS. LOFGREN ................................................................................................................................ X 

MS. JACKSON LEE.

MS. WATERS .................................................................................................................................. X 

MR. MEEHAN ................................................................................................................................. X 

MR. DELAHUNT .............................................................................................................................. X 

MR. WEXLER .................................................................................................................................. X 

MR. WEINER .................................................................................................................................. X 

MR. SCHIFF ................................................................................................................................... X 

MS. SANCHEZ ................................................................................................................................ X 

MR. VAN HOLLEN .......................................................................................................................... X 

MRS. WASSERMAN SCHULTZ.

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... X 

TOTAL ................................................................................................................................... 18 20 

ROLLCALL NO. 13—DATE: 9–20–06

SUBJECT: Mr. Cannon offered an amendment to H.R. 5825, 

which was agreed to by a rollcall vote of 22 ayes to 16 nays. This 

amendment would limit the civil and criminal liability of telecommunications carriers for any activity arising from, or relating 

to, any alleged intelligence program involving electronic surveillance that the government has certified is, was, or would be intended to protect the United States from a terrorist attack. The 

amendment applies to all pending and future cases, and allows all 

such cases to be removed to Federal court. The amendment also applies the old definition of ‘‘electronic surveillance’’ contained in 

FISA prior to enactment of the Act. 

Ayes Nays Present 

MR. HYDE ...................................................................................................................................... X 

MR. COBLE .................................................................................................................................... X 

MR. SMITH ..................................................................................................................................... X 

MR. GALLEGLY ............................................................................................................................... X 

MR. GOODLATTE ............................................................................................................................ X 

MR. CHABOT .................................................................................................................................. X 

MR. LUNGREN ............................................................................................................................... X 

MR. JENKINS .................................................................................................................................. X 

MR. CANNON ................................................................................................................................. X 

MR. BACHUS ................................................................................................................................. X 

MR. INGLIS .................................................................................................................................... X 

MR. HOSTETTLER ........................................................................................................................... X 

MR. GREEN .................................................................................................................................... X 

MR. KELLER.

MR. ISSA ....................................................................................................................................... X 

MR. FLAKE ..................................................................................................................................... X 

MR. PENCE .................................................................................................................................... X 

MR. FORBES .................................................................................................................................. X 


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Ayes Nays Present 

MR. KING ....................................................................................................................................... X 

MR. FEENEY .................................................................................................................................. X 

MR. FRANKS .................................................................................................................................. X 

MR. GOHMERT ............................................................................................................................... X 

MR. CONYERS ............................................................................................................................... X 

MR. BERMAN ................................................................................................................................. X 

MR. BOUCHER.

MR. NADLER .................................................................................................................................. X 

MR. SCOTT .................................................................................................................................... X 

MR. WATT ...................................................................................................................................... X 

MS. LOFGREN ................................................................................................................................ X 

MS. JACKSON LEE ......................................................................................................................... X 

MS. WATERS .................................................................................................................................. X 

MR. MEEHAN ................................................................................................................................. X 

MR. DELAHUNT .............................................................................................................................. X 

MR. WEXLER .................................................................................................................................. X 

MR. WEINBER ................................................................................................................................ X 

MR. SCHIFF ................................................................................................................................... X 

MS. SANCHEZ ................................................................................................................................ X 

MR. VAN HOLLEN .......................................................................................................................... X 

MRS. WASSERMAN SCHULTZ ......................................................................................................... X 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... X 

TOTAL ................................................................................................................................... 22 16 

ROLLCALL NO. 14

SUBJECT: Mr. Nadler offered an amendment to H.R. 5825, 

which was not agreed to by a rollcall vote of 14 ayes to 22 nays. 

This amendment would have allowed any person to seek injunctive 

relief to stop an intelligence program involving electronic surveillance. 

Ayes Nays Present 

MR. HYDE ...................................................................................................................................... X 

MR. COBLE .................................................................................................................................... X 

MR. SMITH ..................................................................................................................................... X 

MR. GALLEGLY ............................................................................................................................... X 

MR. GOODLATTE ............................................................................................................................ X 

MR. CHABOT .................................................................................................................................. X 

MR. LUNGREN ............................................................................................................................... X 

MR. JENKINS .................................................................................................................................. X 

MR. CANNON ................................................................................................................................. X 

MR. BACHUS ................................................................................................................................. X 

MR. INGLIS .................................................................................................................................... X 

MR. HOSTETTLER ........................................................................................................................... X 

MR. GREEN .................................................................................................................................... X 

MR. KELLER.

MR. ISSA ....................................................................................................................................... X 

MR. FLAKE ..................................................................................................................................... X 

MR. PENCE .................................................................................................................................... X 

MR. FORBES .................................................................................................................................. X 

MR. KING ....................................................................................................................................... X 

MR. FEENEY .................................................................................................................................. X 

MR. FRANKS .................................................................................................................................. X 

MR. GOHMERT ............................................................................................................................... X 

MR. CONYERS ............................................................................................................................... X 

MR. BERMAN ................................................................................................................................. X 

MR. BOUCHER.

MR. NADLER .................................................................................................................................. X 

MR. SCOTT .................................................................................................................................... X 

MR. WATT ...................................................................................................................................... X 

MS. LOFGREN ................................................................................................................................ X 


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Ayes Nays Present 

MS. JACKSON LEE ......................................................................................................................... X 

MS. WATERS .................................................................................................................................. X 

MR. MEEHAN..

MR. DELAHUNT..

MR. WEXLER .................................................................................................................................. X 

MR. WEINER .................................................................................................................................. X 

MR. SCHIFF ................................................................................................................................... X 

MS. SANCHEZ ................................................................................................................................ X 

MR. VAN HOLLEN .......................................................................................................................... X 

MRS. WASSERMAN SCHULTZ ......................................................................................................... X 

MR. SENSENBRENNER, CHAIRMAN ............................................................................................... X 

TOTAL ................................................................................................................................... 14 22 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 5825, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974: 

H.R. 5825—Electronic Surveillance Modernization Act 

Summary: H.R. 5825 would modify the rules and procedures the 

government must follow to use electronic surveillance programs in 

the investigation of international terrorism. The bill would amend 

the definition of electronic surveillance under the Foreign Intelligence Surveillance Act (FISA) to remove the current distinction 

between treatment of wire and radio communications, and to focus 

FISA protections on domestic communications. The bill also would 

expand the ability of the government to conduct electronic surveillance without a warrant in certain cases where the target of the 

surveillance is an agent of a foreign power. 

H.R. 5825 would authorize the President, under certain conditions, to acquire foreign intelligence information concerning a person believed to be outside of the United States. To this end, the bill 

would authorize the Attorney General to direct any person or organization with access to such information to provide the United 

States government with all assistance necessary to acquire such intelligence. The bill directs that such persons shall be compensated 

at the prevailing rate for such assistance. 


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In addition, H.R. 5825 also bakes a number of changes that could 

reduce the volume of material required for a FISA application, including minimizing the detailed descriptions of both the nature of 

the foreign intelligence information sought and the intended method of collection. 

CBO has no basis for predicting how the volume or type of surveillance would be changed if H.R 5825 were enacted. Furthermore, 

information regarding surveillance techniques and their associated 

costs are classified. For these reasons, CBO cannot estimate the 

impact on the federal budget of implementing H.R. 5825. 

H.R. 5825 contains intergovernmental mandates, as defined in 

the Unfunded Mandates Reform Act (UMRA), but CBO estimates 

that costs to state and local governments would fall well below the 

annual threshold established in UMRA ($64 million in 2006, adjusted annually for inflation). 

The bill also contains private-sector mandates as defined in 

UMRA, but CBO has no basis for estimating the costs of those 

mandates or whether the costs would exceed the annual threshold 

established in UMRA ($128 million in 2006, adjusted annually for 

inflation). 

Estimated cost to the Federal Government: CBO cannot estimate 

the budgetary impact of implementing H.R. 5825 because we cannot predict how the volume or type of surveillance would change 

under this legislation. Moreover, information regarding surveillance technologies and their associated costs are classified. 

Any changes in federal spending under the bill would be subject 

to the appropriation of the necessary funds. Enacting H.R. 5825 

would not affect direct spending or revenues. 

Estimated impact on state, local, and tribal governments: H.R. 

5825 contains an intergovernmental mandate as defined in UMRA 

because it would exempt from liability individuals that comply with 

certain federal requests for information. That exemption would preempt some state and local liability laws. CBO estimates that such 

preemption would impose only minimal costs on those governments. 

The bill also contains a mandate because it would allow federal 

law enforcement officers to direct public institutions such as libraries to provide information. Because data about the number of public entities currently complying with similar requests and the costs 

of that compliance is classified, CBO cannot estimate the total costs 

state and local governments would incur to comply with this mandate. Based on information from a recent survey of public libraries, 

however, CBO estimates that the number of requests likely would 

be small and that the total costs to those entities would be well 

below the annual threshold established in UMRA ($64 million in 

2006, adjusted annually for inflation). 

Estimated impact on the private sector: H.R. 5825 contains private-sector mandates as defined in UMRA by requiring certain entities to assist the government with electronic surveillance and providing liability protections for those entities. CBO has no basis for 

estimating the costs of the mandates or whether the costs would 

exceed the annual threshold established in UMRA for private-sector mandates ($128 million in 2006, adjusted annually for inflation). 


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The bill would authorize the Attorney General, after obtaining 

the certification required under the bill, to direct a person to immediately provide the government with all information, facilities, and 

assistance necessary to conduct electronic surveillance and to acquire foreign intelligence. Under current law, the Attorney General 

may direct a ‘‘common carrier’’ to provide such assistance with electronic surveillance. This bill would expand the scope of entities 

that must comply with the government orders in such cases. Because CBO has no information about how often such entities would 

be directed to provide assistance or the costs associated with providing assistance, CBO has no basis for estimating the costs of this 

mandate. The bill also would authorize the government to compensate, at the prevailing rate, a person for providing such information, facilities or assistance. 

H.R. 5825 also would provide protection from a cause of action 

for any person providing information, facilities, or assistance as 

well as conducting physical searches in accordance with a directive 

from the Attorney General under the bill. Because the bill would 

eliminate existing rights to seek compensation for injury caused by 

certain acts, it would impose a private-sector mandate. The cost of 

the mandate would be the forgone net value of awards and settlements that could be received under current law. Because of the 

lack of information about both the value of awards in such cases 

and the number of claims that would be filed in the absence of this 

legislation, CBO cannot estimate the cost of this mandate. 

Estimate prepared by: Federal Costs: Jason Wheelock. Impact on 

State, Local, and Tribal Governments: Melissa Merrell. Impact on 

the Private Sector: Victoria Liu. 

Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.R. 5825 continues 

the effort by Congress to provide the Administration with reasonable tools and authorities to prevent terrorist attacks on our nation, while protecting Fourth Amendment rights. The bill makes 

FISA technology neutral and simplifies the process for obtaining a 

FISA court order. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article 1, section 8, and the Fourth Amendment of the 

Constitution. 

EARMARKS

Pursuant to H. Res. 1000, adopted by the House on September 

14, 2006, the Committee states that this legislation contains no 

earmarks. 


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SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. 

Section 1. Short title 

This section sets forth the title of the bill as the ‘‘Electronic Surveillance Modernization Act.’’

Section 2. Finding 

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

Section 3. FISA definitions 

This section updates definitions in the Foreign Intelligence Surveillance Act in an effort to update the law and make it technology 

neutral. Section 3(a) amends the definition of ‘‘Agent of a Foreign 

Power,’’ and also the definition ‘‘Electronic Surveillance.’’ Section 

50 U.S.C. 1801(b) (the Foreign Intelligence Surveillance Act of 

1978) provides the definitions used to determine the target of surveillance under FISA. This section of the bill amends the definition 

of ‘‘Agent of a Foreign Power’’ under section 50 U.S.C. 1801(b)(1) 

by adding new subparagraph D. Section 1801(b)(1) covers any person other than a United States person, who—

(A) acts in the United States as an officer or employee of a 

foreign power, or as a member of a foreign power as defined 

in subsection (a)(4) of this section; 

(B) acts for or on behalf of a foreign power which engages in 

clandestine intelligence activities in the United States contrary 

to the interests of the United States, when the circumstances 

of such person’s presence in the United States indicate that 

such person may engage in such activities in the United 

States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires 

with any person to engage in such activities; or 

(C) engages in international terrorism or activities in preparation therefore. 

Section 3(a) of the bill would add new subparagraph D to the definition, which states ‘‘Agent of a foreign power’’ for any person 

other than a United States person, includes a person who ‘‘is reasonably expected to possess, control, transmit or receive foreign intelligence information while in the United States, provided that the 

official making the certification required by section 104(a)(7) deems 

such foreign intelligence information to be significant;’’. This new 

definition applies only to situations in which the relevant foreign 

intelligence information is deemed significant. 

Section 3(b) of the bill would update the term ‘‘Electronic Surveillance’’ to account for significant changes in technology since the 

1978 passage of FISA. The Committee believes these changes will 

return FISA to its original purpose of protecting Fourth Amendment concerns by focusing on the fundamental question of whose 

communications are being targeted and not on the type of technology used or where communications are intercepted. The definition turns on targeting a particular known person (a) believed to 

be in the United States, (b) in circumstances in which that person 


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has (i) a reasonable expectation of privacy and (ii) a warrant would 

be required for law enforcement purposes. The Committee strongly 

believes that the focus must be on the target to determine what applies and does not apply and whether fourth amendment privacy 

rights are implicated. A non-U.S. person, who is a terrorist in Afghanistan does not have the same privacy rights of a U.S. person 

and our surveillance laws should reflect this. Furthermore, the government should not be required to use different surveillance procedures based on whether a terrorist uses radio communications or 

wire communications to plot another attack on U.S. soil. 

Section 3(c) would make the definition of ‘‘content’’ for consistent 

with the definition used in the Federal criminal code. 

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

Section 4 of the bill would amend the current section 102(a) certification process to expand the circumstances under which the government may conduct electronic surveillance without court order of 

foreign powers or agents of foreign powers. The drafters of FISA 

were trying to carve out Foreign to Foreign communications, the 

testimony before the Subcommittee on Crime, Terrorism, and 

Homeland Security explained that technology changes have made 

it impossible to use this provision. This section updates the section 

to cover agents of a foreign power and make the language technology neutral. 

This section would also provide a new and streamlined Attorney 

General certification process permitting the Attorney General to direct electronic communications service providers to provide certain 

information, facilities, or technical assistance for a period of up to 

1 year, provided that the provision of these resources does not constitute ‘‘electronic surveillance.’’ The new process the manner in 

which the information is to be obtained and creates a mechanism 

for the FISA Court to review and enforce the directives as well as 

allowing for challenges to the process. 

This section of the bill would modernize the law by providing the 

AG with the ability to ‘‘require’’ rather than ‘‘direct’’ common carriers to provide access to communications or equipment. Since the 

leaks of classified information to the press, some companies are 

concerned about assisting law enforcement in the war on terrorism 

without a legal document directing them to do so. 

Section 5. Jurisdiction of the FISA court 

This section provides that applications for a court order under 

this title are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to 

the court having jurisdiction under this section, and a judge to 

whom an application is made may, notwithstanding any other law, 

grant an order, in conformity with section 105, approving electronic 

surveillance of a foreign power or an agent of a foreign power for 

the purpose of obtaining foreign intelligence information. 

Section 6. Applications for court orders 

This section of the bill amends section 104 of FISA (50 U.S.C. 

1804). Section 104 of FISA covers the process and circumstances by 

which an application for a court order authorizing electronic surVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00023 Fmt 6659 Sfmt 6602 E:\HR\OC\HR680P2.XXX HR680P2

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veillance for foreign intelligence purposes may be sought. An application for such a court order must still be made by a Federal officer 

in writing on oath or affirmation to a FISC judge. The application 

must still be approved by the Attorney General based upon his 

finding that the criteria and requirements set forth in 50 U.S.C. 

§ 1801 et seq. have been met. This section would reduce the volume 

of material required for a FISA application. 

Section 7. Issuance of an order 

This section of the bill would amend section 105 of FISA (50 

U.S.C. § 1805) that covers the issuance of an order based on the application in section 104 of FISA (50 U.S.C. § 1804). This section 

modifies the issuance of order section to be consistent with the 

changes in the application process. Current protections and minimization procedures will remain in place to protect unintended targets. This section also amends 50 U.S.C. § 1805(f) that covers emergency orders to extend the period before a judge must be notified 

of an emergency employment of electronic surveillance from not 

more than 72 hours to not more than 158 hours (7 days). 

Section 8. Use of information 

This section strike the term ‘‘radio’’ in effort to make the statute 

technology neutral. Additionally section 106(I) of FISA directs the 

destruction of unintentionally acquired information, unless the contents indicate a threat of death or serious bodily harm to any person. The bill would add to the exception contents that contain significant foreign intelligence information. 

Section 9. Congressional oversight 

Section 9 would strengthen and expand congressional oversight 

by amending current law that requires the Administration to inform the Intelligence Committees to instead require the Administration to inform each Member of the House Permanent Select 

Committee on Intelligence and Senate Select Committee on Intelligence of electronic surveillance activities conducted under this 

Act. 

Section 10. International movement of targets 

This section provides that an order issued under this section 

shall remain in force during the authorized period of surveillance 

notwithstanding the absence of the target from the United States, 

unless the Government files a motion to extinguish the order and 

the court grants the motion. 

Section 11. Compliance with court orders and antiterrorism programs 

This section would limit the civil and criminal liability of telecommunications carriers for any activity arising from, or relating 

to, any alleged intelligence program involving electronic surveillance that the government has certified is, was, or would be intended to protect the United States from a terrorist attack. The 

amendment applies to all pending and future cases, and allows all 

such cases to be removed to Federal court. The amendment also applies the old definition of ‘‘electronic surveillance’’ contained in 

FISA prior to enactment of the Act. 


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Section 12. Report on minimization procedures 

This section would require reporting to Congress that would permit Congress to conduct efficient and appropriate oversight of the 

implementation of FISA modernization at NSA. H.R. 5825 would 

update the definition of ‘‘electronic surveillance’’ in FISA to help restore the statute to its intended focus on the surveillance of the domestic communications of persons in the United States and more 

generally on situations in which the constitutional interests are 

greatest. The bill would limit the circumstances under which it is 

necessary to obtain an order from the FISA Court, thereby help to 

focus FISA resources on the circumstances in which those resources are most important. This Amendment would provide for reporting to Congress—allowing better congressional oversight—on 

the treatment of U.S. person information for several years and 

would help Congress see whether the changes have had the desired 

effects. Specifically, this section requires the NSA to provide a report to the intelligence committees on the effectiveness of the procedures applied to safeguard U.S. person information acquired by 

means that constituted ‘‘electronic surveillance’’ under the current 

FISA, but do not constitute ‘‘electronic surveillance’’ under the 

modernized FISA. The reports would require: 

• A description of the ‘‘minimization’’ procedures implemented by the NSA to protect this information pertaining to 

U.S. Persons; 

• The number of significant violations of those procedures; 

and, 

• Summary descriptions of those violations. 

Section 13. Technical and conforming amendments 

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

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

* * * * * * * 

FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 

AN ACT To authorize electronic surveillance to obtain foreign intelligence 

information. 

Be it enacted by the Senate and House of Representatives of the 

United States of America in Congress assembled, That this Act may 

be cited as the ‘‘Foreign Intelligence Surveillance Act of 1978’’. 

TABLE OF CONTENTS 

TITLE I—ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR 

FOREIGN INTELLIGENCE PURPOSES 

Sec. 101. Definitions. 

* * * * * * * 


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102A. Authorization for acquisition of foreign intelligence information. 

102B. Directives relating to electronic surveillance and other acquisitions of foreign 

intelligence information. 

* * * * * * * 

TITLE I—ELECTRONIC SURVEILLANCE WITHIN THE 

UNITED STATES FOR FOREIGN INTELLIGENCE PURPOSES 

DEFINITIONS

SEC. 101. As used in this title: 

(a) * * * 

(b) ‘‘Agent of a foreign power’’ means—

(1) any person other than a United States person, who—

(A) * * * 

(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United 

States contrary to the interests of the United States, when 

the circumstances of such person’s presence in the United 

States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage 

in such activities; øor¿ 

* * * * * * * 

(D) is reasonably expected to possess, control, transmit, or 

receive foreign intelligence information while such person is 

in the United States, provided that the official making the 

certification required by section 104(a)(7) deems such foreign intelligence information to be significant; or 

* * * * * * * 

ø(f) ‘‘Electronic surveillance’’ means— ø(1) the acquisition by an electronic, mechanical, or other 

surveillance device of the contents of any wire or radio communications sent by or intended to be received by a particular, 

known United States person who is in the United States, if the 

contents are acquired by intentionally targeting that United 

States person, under circumstances in which a person has a 

reasonable expectation of privacy and a warrant would be required for law enforcement purposes; 

ø(2) the acquisition by an electronic, mechanical, or other 

surveillance device of the contents of any wire communication 

to or from a person in the United States, without the consent 

of any party thereto, if such acquisition occurs in the United 

States, but does not include the acquisition of those communications of computer trespassers that would be permissible 

under section 2511(2)(i) of title 18, United States Code; 

ø(3) the intentional acquisition by an electronic, mechanical, 

or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender 

and all intended recipients are located within the United 

States; or 


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ø(4) the installation or use of an electronic, mechanical, or 

other surveillance device in the United States for monitoring 

to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required 

for law enforcement purposes.¿ 

(f) ‘‘Electronic surveillance’’ means— (1) the installation or use of an electronic, mechanical, or 

other surveillance device for acquiring information by intentionally directing surveillance at a particular known person 

who is reasonably believed to be in the United States under circumstances in which that person has a reasonable expectation 

of privacy and a warrant would be required for law enforcement purposes; or 

(2) the intentional acquisition of the contents of any communication under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for 

law enforcement purposes, if both the sender and all intended 

recipients are reasonably believed to be located within the 

United States. 

* * * * * * * 

(h) ‘‘Minimization procedures’’, with respect to electronic surveillance, means— (1) * * * 

* * * * * * * 

(4) notwithstanding paragraphs (1), (2), and (3), with respect 

to any electronic surveillance øapproved pursuant to section 

102(a),¿ authorized pursuant to section 102 or any acquisition 

authorized pursuant to section 102A procedures that require 

that no contents of any communication to which a United 

States person is a party shall be disclosed, disseminated, or 

used for any purpose or retained for longer than 72 hours unless a court order under section 105 is obtained or unless the 

Attorney General determines that the information indicates a 

threat of death or serious bodily harm to any person. 

* * * * * * * 

ø(n) ‘‘Contents’’, when used with respect to a communication, includes any information concerning the identity of the parties to 

such communications or the existence, substance, purport, or meaning of that communication.¿ 

(n) ‘‘Contents’’, when used with respect to a communication, includes any information concerning the substance, purport, or meaning of that communication. 

* * * * * * * 

øAUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN

INTELLIGENCE PURPOSES

øSEC. 102. (a)(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign 

intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

ø(A) the electronic surveillance is solely directed at—


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ø(i) the acquisition of the contents of communications 

transmitted by means of communications used exclusively 

between or among foreign powers, as defined in section 

101(a) (1), (2), or (3); or 

ø(ii) the acquisition of technical intelligence, other than 

the spoken communications of individuals, from property 

or premises under the open and exclusive control of a foreign power, as defined in section 101(a) (1), (2), or (3); 

ø(B) there is no substantial likelihood that the surveillance 

will acquire the contents of any communications to which a 

United States person is a party; and 

ø(C) the proposed minimization procedures with respect to 

such surveillance meet the definition of minimization procedures under section 101(h); and 

if the Attorney General reports such minimization procedures and 

any changes thereto to the House Permanent Select Committee on 

Intelligence and the Senate Select Committee on Intelligence at 

least thirty days prior to their effective date, unless the Attorney 

General determines immediate action is required and notifies the 

committees immediately of such minimization procedures and the 

reason for their becoming effective immediately. 

ø(2) An electronic surveillance authorized by this subsection may 

be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and 

shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 108(a). 

ø(3) The Attorney General shall immediately transmit under seal 

to the court established under section 103(a) a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the 

Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless—

ø(A) an application for a court order with respect to the surveillance is made under sections 101(h)(4) and 104; or 

ø(B) the certification is necessary to determine the legality 

of the surveillance under section 106(f). 

ø(4) With respect to electronic surveillance authorized by this 

subsection, the Attorney General may direct a specified communication common carrier to—

ø(A) furnish all information, facilities, or technical assistance 

necessary to accomplish the electronic surveillance in such a 

manner as will protect its secrecy and produce a minimum of 

interference with the services that such carrier is providing its 

customers; and 

ø(B) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any 

records concerning the surveillance or the aid furnished which 

such carrier wishes to retain. 

The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid. 

ø(b) Applications for a court order under this title are authorized 

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tion under section 103, and a judge to whom an application is made 

may, notwithstanding any other law, grant an order, in conformity 

with section 105, approving electronic surveillance of a foreign 

power or an agent of a foreign power for the purpose of obtaining 

foreign intelligence information, except that the court shall not 

have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection 

(a) unless such surveillance may involve the acquisition of communications of any United States person.¿ 

AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN

INTELLIGENCE PURPOSES

SEC. 102. (a) IN GENERAL.—Notwithstanding any other law, the 

President, acting through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire 

foreign intelligence information for periods of up to one year if the 

Attorney General certifies in writing under oath that— (1) the electronic surveillance is directed at— (A) the acquisition of the contents of communications of 

foreign powers, as defined in paragraph (1), (2), or (3) of 

section 101(a), or an agent of a foreign power, as defined 

in subparagraph (A) or (B) of section 101(b)(1); or 

(B) the acquisition of technical intelligence, other than 

the spoken communications of individuals, from property or 

premises under the open and exclusive control of a foreign 

power, as defined in paragraph (1), (2), or (3) of section 

101(a); and 

(2) the proposed minimization procedures with respect to such 

surveillance meet the definition of minimization procedures 

under section 101(h); 

if the Attorney General reports such minimization procedures and 

any changes thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on 

Intelligence of the Senate at least 30 days prior to the effective date 

of such minimization procedures, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their 

becoming effective immediately. 

(b) MINIMIZATION PROCEDURES.—An electronic surveillance authorized by this subsection may be conducted only in accordance 

with the Attorney General’s certification and the minimization procedures. The Attorney General shall assess compliance with such 

procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and 

the Select Committee on Intelligence of the Senate under the provisions of section 108(a). 

(c) SUBMISSION OF CERTIFICATION.—The Attorney General shall 

immediately transmit under seal to the court established under section 103(a) a copy of his certification. Such certification shall be 

maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation 

with the Director of National Intelligence, and shall remain sealed 

unless—

(1) an application for a court order with respect to the surveillance is made under section 104; or 


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(2) the certification is necessary to determine the legality of the 

surveillance under section 106(f). 

AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE

INFORMATION

SEC. 102A. (a) IN GENERAL.—Notwithstanding any other law, the 

President, acting through the Attorney General may, for periods of 

up to one year, authorize the acquisition of foreign intelligence information concerning a person reasonably believed to be outside the 

United States if the Attorney General certifies in writing under oath 

that—(1) the acquisition does not constitute electronic surveillance; 

(2) the acquisition involves obtaining the foreign intelligence 

information from or with the assistance of a wire or electronic 

communications service provider, custodian, or other person (including any officer, employee, agent, or other specified person of 

such service provider, custodian, or other person) who has access to wire or electronic communications, either as they are 

transmitted or while they are stored, or equipment that is being 

or may be used to transmit or store such communications; 

(3) a significant purpose of the acquisition is to obtain foreign 

intelligence information; and 

(4) the proposed minimization procedures with respect to such 

acquisition activity meet the definition of minimization procedures under section 101(h). 

(b) SPECIFIC PLACE NOT REQUIRED.—A certification under subsection (a) is not required to identify the specific facilities, places, 

premises, or property at which the acquisition of foreign intelligence 

information will be directed. 

(c) SUBMISSION OF CERTIFICATION.—The Attorney General shall 

immediately transmit under seal to the court established under section 103(a) a copy of a certification made under subsection (a). Such 

certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney 

General, in consultation with the Director of National Intelligence, 

and shall remain sealed unless the certification is necessary to determine the legality of the acquisition under section 102B. 

(d) MINIMIZATION PROCEDURES.—An acquisition under this section may be conducted only in accordance with the certification of 

the Attorney General and the minimization procedures adopted by 

the Attorney General. The Attorney General shall assess compliance 

with such procedures and shall report such assessments to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate under 

section 108(a). 

DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER

ACQUISITIONS OF FOREIGN INTELLIGENCE INFORMATION

SEC. 102B. (a) DIRECTIVE.—With respect to an authorization of 

electronic surveillance under section 102 or an authorization of an 

acquisition under section 102A, the Attorney General may direct a 

person to—

(1) immediately provide the Government with all information, 

facilities, and assistance necessary to accomplish the acquisition of foreign intelligence information in such a manner as 


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will protect the secrecy of the electronic surveillance or acquisition and produce a minimum of interference with the services 

that such person is providing to the target; and 

(2) maintain under security procedures approved by the Attorney General and the Director of National Intelligence any 

records concerning the electronic surveillance or acquisition or 

the aid furnished that such person wishes to maintain. 

(b) COMPENSATION.—The Government shall compensate, at the 

prevailing rate, a person for providing information, facilities, or assistance pursuant to subsection (a). 

(c) FAILURE TO COMPLY.—In the case of a failure to comply with 

a directive issued pursuant to subsection (a), the Attorney General 

may petition the court established under section 103(a) to compel 

compliance with the directive. The court shall issue an order requiring the person or entity to comply with the directive if it finds that 

the directive was issued in accordance with section 102(a) or 

102A(a) and is otherwise lawful. Failure to obey an order of the 

court may be punished by the court as contempt of court. Any process under this section may be served in any judicial district in 

which the person or entity may be found. 

(d) REVIEW OF PETITIONS.—(1) IN GENERAL.—(A) CHALLENGE.— A person receiving a directive issued pursuant to subsection (a) may 

challenge the legality of that directive by filing a petition with the 

pool established under section 103(e)(1). 

(B) ASSIGNMENT OF JUDGE.—The presiding judge designated pursuant to section 103(b) shall assign a petition filed under subparagraph (A) to one of the judges serving in the pool established by section 103(e)(1). Not later than 24 hours after the assignment of such 

petition, the assigned judge shall conduct an initial review of the directive. If the assigned judge determines that the petition is frivolous, the assigned judge shall deny the petition and affirm the directive or any part of the directive that is the subject of the petition. 

If the assigned judge determines the petition is not frivolous, the assigned judge shall, within 72 hours, consider the petition in accordance with the procedures established under section 103(e)(2) and 

provide a written statement for the record of the reasons for any determination under this subsection. 

(2) STANDARD OF REVIEW.—A judge considering a petition to modify or set aside a directive may grant such petition only if the judge 

finds that such directive does not meet the requirements of this section or is otherwise unlawful. If the judge does not modify or set 

aside the directive, the judge shall affirm such directive, and order 

the recipient to comply with such directive. 

(3) DIRECTIVES NOT MODIFIED.—Any directive not explicitly modified or set aside under this subsection shall remain in full effect. 

(e) APPEALS.—The Government or a person receiving a directive 

reviewed pursuant to subsection (d) may file a petition with the 

court of review established under section 103(b) for review of the decision issued pursuant to subsection (d) not later than 7 days after 

the issuance of such decision. Such court of review shall have jurisdiction to consider such petitions and shall provide for the record 

a written statement of the reasons for its decision. On petition by 

the Government or any person receiving such directive for a writ of 

certiorari, the record shall be transmitted under seal to the Supreme 

Court, which shall have jurisdiction to review such decision. 


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(f) PROCEEDINGS.—Judicial proceedings under this section shall 

be concluded as expeditiously as possible. The record of proceedings, 

including petitions filed, orders granted, and statements of reasons 

for decision, shall be maintained under security measures established by the Chief Justice of the United States, in consultation with 

the Attorney General and the Director of National Intelligence. 

(g) SEALED PETITIONS.—All petitions under this section shall be 

filed under seal. In any proceedings under this section, the court 

shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which 

may include classified information. 

(h) LIABILITY.—No cause of action shall lie in any court against 

any person for providing any information, facilities, or assistance in 

accordance with a directive under this section. 

(i) USE OF INFORMATION.—Information acquired pursuant to a directive by the Attorney General under this section concerning any 

United States person may be used and disclosed by Federal officers 

and employees without the consent of the United States person only 

in accordance with the minimization procedures required by section 

102(a) or 102A(a). No otherwise privileged communication obtained 

in accordance with, or in violation of, the provisions of this section 

shall lose its privileged character. No information from an electronic 

surveillance under section 102 or an acquisition pursuant to section 

102A may be used or disclosed by Federal officers or employees except for lawful purposes. 

(j) USE IN LAW ENFORCEMENT.—No information acquired pursuant to this section shall be disclosed for law enforcement purposes 

unless such disclosure is accompanied by a statement that such information, or any information derived from such information, may 

only be used in a criminal proceeding with the advance authorization of the Attorney General. 

(k) DISCLOSURE IN TRIAL.—If the Government intends to enter 

into evidence or otherwise use or disclose in any trial, hearing, or 

other proceeding in or before any court, department, officer, agency, 

regulatory body, or other authority of the United States, against an 

aggrieved person, any information obtained or derived from an electronic surveillance conducted under section 102 or an acquisition 

authorized pursuant to section 102A, the Government shall, prior to 

the trial, hearing, or other proceeding or at a reasonable time prior 

to an effort to disclose or use that information or submit it in evidence, notify the aggrieved person and the court or other authority 

in which the information is to be disclosed or used that the Government intends to disclose or use such information. 

(l) DISCLOSURE IN STATE TRIALS.—If a State or political subdivision of a State intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any 

court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision of a State, against an aggrieved person, any information obtained or derived from an electronic surveillance authorized pursuant to section 102 or an acquisition authorized pursuant to section 102A, the State or political subdivision of such State shall notify the aggrieved person, the court, 

or other authority in which the information is to be disclosed or 

used and the Attorney General that the State or political subdivision intends to disclose or use such information. 


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(m) MOTION TO EXCLUDE EVIDENCE.—(1) IN GENERAL.—Any person against whom evidence obtained or derived from an electronic 

surveillance authorized pursuant to section 102 or an acquisition 

authorized pursuant to section 102A is to be, or has been, used or 

disclosed in any trial, hearing, or other proceeding in or before any 

court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, 

may move to suppress the evidence obtained or derived from such 

electronic surveillance or such acquisition on the grounds that—

(A) the information was unlawfully acquired; or 

(B) the electronic surveillance or acquisition was not properly 

made in conformity with an authorization under section 102(a) 

or 102A(a). 

(2) TIMING.—A person moving to suppress evidence under paragraph (1) shall make the motion to suppress the evidence before the 

trial, hearing, or other proceeding unless there was no opportunity 

to make such a motion or the person was not aware of the grounds 

of the motion. 

(n) REVIEW OF MOTIONS.—If a court or other authority is notified 

pursuant to subsection (k) or (l), a motion is made pursuant to subsection (m), or a motion or request is made by an aggrieved person 

pursuant to any other statute or rule of the United States or any 

State before any court or other authority of the United States or any 

State—

(1) to discover or obtain an Attorney General directive or 

other materials relating to an electronic surveillance authorized 

pursuant to section 102 or an acquisition authorized pursuant 

to section 102A, or 

(2) to discover, obtain, or suppress evidence or information 

obtained or derived from an electronic surveillance authorized 

pursuant to section 102 or an acquisition authorized pursuant 

to section 102A, 

the United States district court or, where the motion is made before 

another authority, the United States district court in the same district as the authority, shall, notwithstanding any other law, if the 

Attorney General files an affidavit under oath that disclosure or an 

adversary hearing would harm the national security of the United 

States, review in camera and ex parte the application, order, and 

such other materials relating to such electronic surveillance or such 

acquisition as may be necessary to determine whether such electronic surveillance or such acquisition authorized under this section 

was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the directive or other materials relating to the acquisition only where such 

disclosure is necessary to make an accurate determination of the legality of the acquisition. 

(o) DETERMINATIONS.—If, pursuant to subsection (n), a United 

States district court determines that the acquisition authorized 

under this section was not lawfully authorized or conducted, it 

shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived or otherwise grant 

the motion of the aggrieved person. If the court determines that such 

acquisition was lawfully authorized and conducted, it shall deny 


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the motion of the aggrieved person except to the extent that due 

process requires discovery or disclosure. 

(p) BINDING ORDERS.—Orders granting motions or requests under 

subsection (m), decisions under this section that an electronic surveillance or an acquisition was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of directives, orders, or other materials 

relating to such acquisition shall be final orders and binding upon 

all courts of the United States and the several States except a 

United States court of appeals and the Supreme Court. 

(q) COORDINATION.—(1) IN GENERAL.—Federal officers who acquire foreign intelligence information may consult with Federal law 

enforcement officers or law enforcement personnel of a State or political subdivision of a State, including the chief executive officer of 

that State or political subdivision who has the authority to appoint 

or direct the chief law enforcement officer of that State or political 

subdivision, to coordinate efforts to investigate or protect against— (A) actual or potential attack or other grave hostile acts of a 

foreign power or an agent of a foreign power; 

(B) sabotage, international terrorism, or the development or 

proliferation of weapons of mass destruction by a foreign power 

or an agent of a foreign power; or 

(C) clandestine intelligence activities by an intelligence service 

or network of a foreign power or by an agent of a foreign power. 

(2) CERTIFICATION REQUIRED.—Coordination authorized under 

paragraph (1) shall not preclude the certification required by section 

102(a) or 102A(a). 

(r) RETENTION OF DIRECTIVES AND ORDERS.—A directive made or 

an order granted under this section shall be retained for a period 

of not less than 10 years from the date on which such directive or 

such order is made. 

DESIGNATION OF JUDGES

SEC. 103. (a) * * * 

* * * * * * * 

(g) Applications for a court order under this title are authorized 

if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction 

under this section, and a judge to whom an application is made 

may, notwithstanding any other law, grant an order, in conformity 

with section 105, approving electronic surveillance of a foreign 

power or an agent of a foreign power for the purpose of obtaining 

foreign intelligence information. 

APPLICATION FOR AN ORDER

SEC. 104. (a) Each application for an order approving electronic 

surveillance under this title shall be made by a Federal officer in 

writing upon oath or affirmation to a judge having jurisdiction 

under section 103. Each application shall require the approval of 

the Attorney General based upon his finding that it satisfies the 

criteria and requirements of such application as set forth in this 

title. It shall include—

(1) * * * 

* * * * * * * 


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(6) a ødetailed description¿ summary description of the nature of the information sought and the type of communications 

or activities to be subjected to the surveillance; 

(7) a certification or certifications by the Assistant to the 

President for National Security Affairs or an executive branch 

official øor officials designated by the President from among 

those executive officers employed in the area of national security or defense and appointed by the President with the advice 

and consent of the Senate¿ designated by the President to authorize electronic surveillance for foreign intelligence purposes— (A) * * * 

* * * * * * * 

(C) that such information cannot reasonably be obtained 

by normal investigative techniques; and 

ø(D) that designates the type of foreign intelligence information being sought according to the categories described in section 101(e); and¿ 

ø(E)¿ (D) including a statement of the basis for the certification that— (i) * * * 

* * * * * * * 

(8) øa statement of the means¿ a summary statement of the 

means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance; 

(9) øa statement¿ a summary statement of the facts concerning all previous applications that have been made to any 

judge under this title involving any of the persons, facilities, or 

places specified in the application, and the action taken on 

each previous application; and 

(10) a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of 

the use of electronic surveillance under this title should not 

automatically terminate when the described type of information has first been obtained, a description of facts supporting 

the belief that additional information of the same type will be 

obtained thereafterø; and¿. 

ø(11) whenever more than one electronic, mechanical or 

other surveillance device is to be used with respect to a particular proposed electronic surveillance, the coverage of the devices involved and what minimization procedures apply to information acquired by each device.¿ 

ø(b) Whenever the target of the electronic surveillance is a foreign power, as defined in section 101(a) (1), (2), or (3), and each of 

the facilities or places at which the surveillance is directed is 

owned, leased, or exclusively used by that foreign power, the application need not contain the information required by paragraphs (6), 

(7)(E), (8), and (11) of subsection (a), but shall state whether physical entry is required to effect the surveillance and shall contain 

such information about the surveillance techniques and communications or other information concerning United States persons 

likely to be obtained as may be necessary to assess the proposed 

minimization procedures.¿ 


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ø(c)¿ (b) The Attorney General may require any other affidavit 

or certification from any other officer in connection with the application. 

ø(d)¿ (c) The judge may require the applicant to furnish such 

other information as may be necessary to make the determinations 

required by section 105. 

ø(e)¿ (d)(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, øor the Director of National Intelligence¿ the Director of National Intelligence, or the Director of the Central Intelligence Agency, the Attorney General shall personally review under 

subsection (a) an application under that subsection for a target described in section 101(b)(2). 

* * * * * * * 

ISSUANCE OF AN ORDER

SEC. 105. (a) Upon an application made pursuant to section 

104, the judge shall enter an ex parte order as requested or as 

modified approving the electronic surveillance if he finds that—

ø(1) the President has authorized the Attorney General to 

approve applications for electronic surveillance for foreign intelligence information;¿ 

ø(2)¿ (1) the application has been made by a Federal officer 

and approved by the Attorney General; 

ø(3)¿ (2) on the basis of the facts submitted by the applicant 

there is probable cause to believe that—

(A) * * * 

* * * * * * * 

ø(4)¿ (3) the proposed minimization procedures meet the definition of minimization procedures under section 101(h); and 

ø(5)¿ (4) the application which has been filed contains all 

statements and certifications required by section 104 and, if 

the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement 

made under section ø104(a)(7)(E)¿ 104(a)(6)(D) and any other 

information furnished under section ø104(d)¿ 104(c). 

* * * * * * * 

(c)(1) SPECIFICATIONS.—An order approving an electronic surveillance under this section shall specify—

(A) * * * 

* * * * * * * 

(D) the means by which the electronic surveillance will 

be effected and whether physical entry will be used to effect the surveillance; and 

(E) the period of time during which the electronic surveillance is approvedø; and¿. ø(F) whenever more than one electronic, mechanical, or 

other surveillance device is to be used under the order, the 

authorized coverage of the devices involved and what minimization procedures shall apply to information subject to 

acquisition by each device.¿ 

* * * * * * * 


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ø(d) Whenever the target of the electronic surveillance is a foreign power, as defined in section 101(a) (1), (2), or (3), and each of 

the facilities or places at which the surveillance is directed is 

owned, leased, or exclusively used by that foreign power, the order 

used need not contain the information required by subparagraphs 

(C), (D), and (F) of subsection (c)(1), but shall generally describe 

the information sought, the communications or activities to be subjected to the surveillance, and the type of electronic surveillance involved, including whether physical entry is required.¿ 

ø(e)¿ (d)(1) An order issued under this section may approve an 

electronic surveillance for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that (A) an order 

under this section shall approve an electronic surveillance targeted 

against a foreign power, as defined in section 101(a), (1), (2), or (3), 

for the period specified in the application or for one year, whichever 

is less, and (B) an order under this Act for a surveillance targeted 

against an agent of a foreign power who is not a United States person may be for the period specified in the application or for 120 

days, whichever is less. 

ø(2) Extensions of an order issued under this title may be granted on the same basis as an original order upon an application for 

an extension and new findings made in the same manner as required for an original order, except that (A) an extension of an 

order under this Act for a surveillance targeted against a foreign 

power, a defined in section 101(a) (5) or (6), or against a foreign 

power as defined in section 101(a)(4) that is not a United States 

person, may be for a period not to exceed one year if the judge 

finds probable cause to believe that no communication of any individual United States person will be acquired during the period, and 

(B) an extension of an order under this Act for a surveillance targeted against an agent of a foreign power who is not a United 

States person may be for a period not to exceed 1 year.¿ 

(2) Extensions of an order issued under this title may be granted 

on the same basis as an original order upon an application for an 

extension and new findings made in the same manner as required 

for an original order and may be for a period not to exceed one year. 

* * * * * * * 

(4) An order issued under this section shall remain in force during the authorized period of surveillance notwithstanding the absence of the target from the United States, unless the Government 

files a motion to extinguish the order and the court grants the motion. 

ø(f) Notwithstanding any other provision of this title, when the 

Attorney General reasonably determines that— ø(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and 

ø(2) the factual basis for issuance of an order under this title 

to approve such surveillance exists; 

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 103 is informed 

by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this 


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title is made to that judge as soon as practicable, but not more 

than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this title for the issuance of a judicial 

order be followed. In the absence of a judicial order approving such 

electronic surveillance, the surveillance shall terminate when the 

information sought is obtained, when the application for the order 

is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the 

event that such application for approval is denied, or in any other 

case where the electronic surveillance is terminated and no order 

is issued approving the surveillance, no information obtained or 

evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the 

United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such 

surveillance shall subsequently be used or disclosed in any other 

manner by Federal officers or employees without the consent of 

such person, except with the approval of the Attorney General if 

the information indicates a threat of death or serious bodily harm 

to any person. A denial of the application made under this subsection may be reviewed as provided in section 103.¿ 

(e) Notwithstanding any other provision of this title, an official 

appointed by the President with the advice and consent of the Senate that is designated by the President to authorize electronic surveillance may authorize the emergency employment of electronic surveillance if— (1) such official determines that an emergency situation exists 

with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing 

such surveillance can with due diligence be obtained; 

(2) such official determines that the factual basis for issuance 

of an order under this title to approve such electronic surveillance exists; 

(3) such official informs the Attorney General of such electronic surveillance; 

(4) the Attorney General or a designee of the Attorney General 

informs a judge having jurisdiction under section 103 of such 

electronic surveillance as soon as practicable, but in no case 

more than 7 days after the date on which such electronic surveillance is authorized; 

(5) an application in accordance with this title is made to 

such judge or another judge having jurisdiction under section 

103 as soon as practicable, but not more than 7 days after such 

electronic surveillance is authorized; 

(6) such official requires that the minimization procedures required by this title for the issuance of a judicial order be followed. 

In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought 

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

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cial, whichever is earliest. In the event that the application for approval submitted pursuant to paragraph (5) is denied, or in any 

other case where the electronic surveillance is terminated and no 

order is issued approving the surveillance, no information obtained 

or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the 

United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such 

surveillance shall subsequently be used or disclosed in any other 

manner by Federal officers or employees without the consent of such 

person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any 

person. A denial of the application made pursuant to paragraph (5) 

may be reviewed as provided in section 103. 

ø(g)¿ (f) Notwithstanding any other provision of this title, officers, employees, or agents of the United States are authorized in 

the normal course of their official duties to conduct electronic surveillance not targeted against the communications of any particular 

person or persons, under procedures approved by the Attorney General, solely to— (1) * * * 

* * * * * * * 

ø(h)¿ (g) Certifications made by the Attorney General pursuant 

to section 102(a) and applications made and orders granted under 

this title shall be retained for a period of at least ten years from 

the date of the certification or application. 

ø(i)¿ (h) No cause of action shall lie in any court against any provider of øa wire or¿ an electronic communication service, landlord, 

custodian, or other person (including any officer, employee, agent, 

or other specified person thereof) that furnishes any information, 

facilities, or technical assistance in accordance with a court order 

or request for emergency assistance under this Act for electronic 

surveillance or øphysical search¿ physical search or in response to 

a certification by the Attorney General or a designee of the Attorney 

General seeking information, facilities, or technical assistance from 

such person under section 102B. (i) In any case in which the Government makes an application to 

a judge under this title to conduct electronic surveillance involving 

communications and the judge grants such application, the judge 

shall also authorize the installation and use of pen registers and 

trap and trace devices to acquire dialing, routing, addressing, and 

signaling information related to such communications and such dialing, routing, addressing, and signaling information shall not be 

subject to minimization procedures. 

USE OF INFORMATION

SEC. 106. (a) * * * 

* * * * * * * 

(i) In circumstances involving the unintentional acquisition by an 

electronic, mechanical, or other surveillance device of the contents 

of any øradio¿ communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would 


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be required for law enforcement purposes, and if both the sender 

and all intended recipients are located within the United States, 

such contents shall be destroyed upon recognition, unless the Attorney General determines that the øcontents indicates¿ contents contain significant foreign intelligence information or indicate a threat 

of death or serious bodily harm to any person. 

(j) If an emergency employment of electronic surveillance is authorized under section ø105(e)¿ 105(d) and a subsequent order approving the surveillance is not obtained, the judge shall cause to 

be served on any United States person named in the application 

and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the 

interest of justice to serve, notice of—

(1) * * * 

* * * * * * * 

(k)(1) * * * 

(2) Coordination authorized under paragraph (1) shall not preclude the certification required by section ø104(a)(7)(B)¿ 

104(a)(6)(B) or the entry of an order under section 105. 

* * * * * * * 

CONGRESSIONAL OVERSIGHT

SEC. 108. (a)(1) On a semiannual basis the Attorney General 

shall fully inform each member of the House Permanent Select 

Committee on Intelligence and the Senate Select Committee on Intelligence, and the Committee on the Judiciary of the Senate, concerning all electronic surveillance under this title. Nothing in this 

title shall be deemed to limit the authority and responsibility of the 

appropriate committees of each House of Congress to obtain such 

information as they may need to carry out their respective functions and duties. 

(2) Each report under the first sentence of paragraph (1) 

shall include a description of—

(A) * * * 

(B) each criminal case in which information acquired 

under this Act has been authorized for use at trial during 

the period covered by such report; øand¿ 

(C) the total number of emergency employments of electronic surveillance under section ø105(f)¿ 105(e) and the 

total number of subsequent orders approving or denying 

such electronic surveillanceø.¿; and 

(D) the authority under which the electronic surveillance 

is conducted. 

(3) Each report submitted under this subsection shall include 

reports on electronic surveillance conducted without a court 

order. 

* * * * * * * 


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TITLE III—PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN 

INTELLIGENCE PURPOSES 

* * * * * * * 

ISSUANCE OF AN ORDER

SEC. 304. (a) * * * 

* * * * * * * 

(d)(1) * * * 

* * * * * * * 

(4) An order issued under this section shall remain in force during the authorized period of surveillance notwithstanding the absence of the target from the United States, unless the Government 

files a motion to extinguish the order and the court grants the motion. 

* * * * * * * 

SECTION 501 OF THE NATIONAL SECURITY ACT OF 1947 

GENERAL CONGRESSIONAL OVERSIGHT PROVISIONS

SEC. 501. (a)(1) The President shall ensure that each member of 

the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, 

including any significant anticipated intelligence activity as required by this title. 

* * * * * * * 

(b) The President shall ensure that any illegal intelligence activity is reported promptly to each member of the congressional intelligence committees, as well as any corrective action that has been 

taken or is planned in connection with such illegal activity. 

* * * * * * * 

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, SEPTEMBER 20, 2006 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:10 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. (chairman of the committee) presiding. 

[Intervening business.] 

Chairman SENSENBRENNER. Pursuant to notice, I now call up the 

bill H.R. 5825, the Electronic Surveillance Modernization Act, for 

purposes of—the committee will be in order. Pursuant to notice, I 

now call up the bill H.R. 5825, the Electronic Surveillance ModVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00041 Fmt 6659 Sfmt 6602 E:\HR\OC\HR680P2.XXX HR680P2

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ernization Act, for purposes of markup and move its favorable recommendation to the House. 

Can we have some order here please? Members, please take— and staff will please take their conversations and press inquiries 

out into the hallway. 

The Chair moves the favorable recommendation to the House. 

Without objection, the bill will be considered as read and open for 

amendment at any point. 

[The bill, H.R. 5825, follows:] 


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1

I

109TH CONGRESS

2D SESSION H. R. 5825

To update the Foreign Intelligence Surveillance Act of 1978.

IN THE HOUSE OF REPRESENTATIVES

JULY 18, 2006

Mrs. WILSON of New Mexico (for herself, Mr. SENSENBRENNER, Mr. HOEKSTRA, Mr. RENZI, Mrs. JOHNSON of Connecticut, Mr. EVERETT, Mr.

THORNBERRY, Mr. ROGERS of Michigan, Mr. GALLEGLY, and Mr. ISSA)

introduced the following bill; which was referred to the Committee on the

Judiciary, and in addition to the Select Committee on Intelligence (Permanent Select), for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To update the Foreign Intelligence Surveillance Act of 1978.

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 ‘‘Electronic Surveillance

5 Modernization Act’’.

6 SEC. 2. FISA DEFINITIONS.

7 (a) AGENT OF A FOREIGN POWER.—Subsection

8 (b)(1) of section 101 of the Foreign Intelligence Surveil9 lance Act of 1978 (50 U.S.C. 1801) is amended—

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44 

2

•HR 5825 IH

1 (1) in subparagraph (B), by striking ‘‘; or’’ and

2 inserting ‘‘;’’; and

3 (2) by adding at the end the following new sub4 paragraph:

5 ‘‘(D) possesses or is reasonably expected to

6 transmit or receive foreign intelligence informa7 tion while in the United States; or’’.

8 (b) ELECTRONIC SURVEILLANCE.—Subsection (f) of

9 such section is amended to read as follows:

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

11 ‘‘(1) the installation or use of a surveillance de12 vice for the intentional collection of information re13 lating to a person who is reasonably believed to be

14 in the United States by intentionally targeting that

15 person, under circumstances in which the person has

16 a reasonable expectation of privacy and a warrant

17 would be required for law enforcement purposes; or

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

19 of any communication, without the consent of a

20 party to the communication, under circumstances in

21 which a person has a reasonable expectation of pri22 vacy and a warrant would be required for law en23 forcement purposes, if both the sender and all in24 tended recipients are located within the United

25 States.’’.

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3

•HR 5825 IH

1 (c) MINIMIZATION PROCEDURES.—Subsection (h) of

2 such section is amended—

3 (1) in paragraph (2), by striking ‘‘importance;’’

4 and inserting ‘‘importance; and’’;

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

6 inserting ‘‘.’’; and

7 (3) by striking paragraph (4).

8 (d) WIRE COMMUNICATION AND SURVEILLANCE DE9 VICE.—Subsection (l) of such section is amended to read

10 as follows:

11 ‘‘(l) ‘Surveillance device’ is a device that allows sur12 veillance by the Federal Government, but excludes any de13 vice that extracts or analyzes information from data that

14 has already been acquired by the Federal Government by

15 lawful means.’’.

16 (e) PHYSICAL SEARCH.—Section 301(5) of the For17 eign Intelligence Surveillance Act of 1978 (50 U.S.C.

18 1821(5)) is amended by striking ‘‘Act, or (B)’’ and insert19 ing ‘‘Act, (B) activities described in section 102(b) of this

20 Act, or (C)’’.

21 SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE

22 FOR FOREIGN INTELLIGENCE PURPOSES.

23 Section 102 of the Foreign Intelligence Surveillance

24 Act of 1978 (50 U.S.C. 1802) is amended—

25 (1) in subsection (a)(1)—

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1 (A) in subparagraph (A)—

2 (i) in clause (i), by striking ‘‘trans3 mitted by means of’’ and all that follows

4 and inserting ‘‘of a foreign power, as de5 fined in paragraph (1), (2), or (3) of sec6 tion 101(a), or an agent of a foreign

7 power, as defined in section 101(b)(1); or’’;

8 and

9 (ii) in clause (ii), by striking ‘‘or (3);’’

10 and inserting ‘‘or (3); and’’;

11 (B) by striking subparagraph (B); and

12 (C) by redesignating subparagraph (C) as

13 subparagraph (B);

14 (2) by striking subsection (a)(4);

15 (3) in subsection (b), to read as follows:

16 ‘‘(b)(1) The Attorney General may require, by writ17 ten certification, any person with authorized access to

18 electronic communications or equipment used to transmit

19 or store electronic communications to provide information,

20 facilities, or technical assistance—

21 ‘‘(A) necessary to accomplish electronic surveil22 lance authorized under subsection (a); or

23 ‘‘(B) to an official designated by the President

24 for a period of up to one year, provided the Attorney

25 General certifies in writing, under oath, that the

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1 provision of the information, facilities, or technical

2 assistance does not constitute electronic surveillance.

3 ‘‘(2) The Attorney General may require a person pro4 viding information, facilities, or technical assistance under

5 paragraph (1) to—

6 ‘‘(A) provide the information, facilities, or tech7 nical assistance in such a manner as will protect the

8 secrecy of the provision of such information, facili9 ties, or technical assistance and produce a minimum

10 of interference with the services that such person is

11 providing the customers of such person; and

12 ‘‘(B) maintain under security procedures ap13 proved by the Attorney General and the Director of

14 National Intelligence any records concerning such

15 electronic surveillance or the information, facilities,

16 or technical assistance provided which such person

17 wishes to retain.

18 ‘‘(3) The Government shall compensate, at the pre19 vailing rate, a person for providing information, facilities,

20 or technical assistance pursuant to paragraph (1).’’; and

21 (4) by adding at the end the following new sub22 section:

23 ‘‘(c) Notwithstanding any other provision of law, the

24 President may designate an official who may authorize

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1 tions of a diplomat or diplomatic mission or post of the

2 government of a foreign country in the United States in

3 accordance with procedures approved by the Attorney

4 General.’’.

5 SEC. 4. APPLICATIONS FOR COURT ORDERS.

6 Section 104 of the Foreign Intelligence Surveillance

7 Act of 1978 (50 U.S.C. 1804) is amended—

8 (1) in subsection (a)—

9 (A) by striking paragraphs (6), (9), and

10 (11);

11 (B) by redesignating paragraphs (7), (8),

12 and (10) as paragraphs (6), (7), and (8), re13 spectively;

14 (C) in paragraph (6), as redesignated by

15 subparagraph (B)—

16 (i) in the matter preceding subpara17 graph (A), by striking ‘‘or officials des18 ignated’’ and all that follows through ‘‘con19 sent of the Senate’’ and inserting ‘‘des20 ignated by the President to authorize elec21 tronic surveillance for foreign intelligence

22 purposes’’;

23 (ii) in subparagraph (C), by striking

24 ‘‘techniques;’’ and inserting ‘‘techniques;

25 and’’;

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1 (iii) by striking subparagraphs (D)

2 and (E) and inserting the following:

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

4 the certification that the information sought is

5 the type of foreign intelligence information des6 ignated;’’;

7 (D) in paragraph (7), as redesignated by

8 subparagraph (B)—

9 (i) by striking ‘‘a statement of the

10 means by which the surveillance will be ef11 fected and’’; and

12 (ii) by adding ‘‘and’’ at the end; and

13 (E) in paragraph (8), as redesignated by

14 subparagraph (B), by striking ‘‘; and’’ and in15 serting a period;

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

17 (3) by redesignating subsections (c), (d), and

18 (e) as subsections (b), (c), and (d), respectively.

19 SEC. 5. ISSUANCE OF AN ORDER.

20 Section 105 of the Foreign Intelligence Surveillance

21 Act of 1978 (50 U.S.C. 1805) is amended—

22 (1) in subsection (a)—

23 (A) by striking paragraph (1); and

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•HR 5825 IH

1 (B) by redesignating paragraphs (2), (3),

2 (4), and (5) as paragraphs (1), (2), (3), and

3 (4), respectively;

4 (2) in subsection (c)(1)—

5 (A) in subparagraph (B), by striking

6 ‘‘known;’’ and inserting ‘‘known; and’’;

7 (B) by striking subparagraphs (C), (D),

8 and (F);

9 (C) by redesignating subparagraph (E) as

10 subparagraph (C); and

11 (D) in subparagraph (C), as redesignated

12 by subparagraph (C), by striking ‘‘approved;

13 and’’ and inserting ‘‘approved.’’;

14 (3) by striking subsection (d);

15 (4) by redesignating subsections (e), (f), (g),

16 (h), and (i) as subsections (d), (e), (f), (g), and (h),

17 respectively;

18 (5) in subsection (d), as redesignated by para19 graph (4)—

20 (A) in paragraph (1), by striking ‘‘for the

21 period necessary’’ and all that follows and in22 sert ‘‘for a period not to exceed one year.’’; and

23 (B) in paragraph (2), by striking ‘‘original

24 order, except that’’ and all that follows and inerjones on PROD1PC72 with HEARING


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•HR 5825 IH

1 serting ‘‘original order for a period not to ex2 ceed one year.’’;

3 (6) in subsection (e), as redesignated by para4 graph (4), to read as follows:

5 ‘‘(e) Notwithstanding any other provision of this title,

6 the Attorney General may authorize the emergency em7 ployment of electronic surveillance if the Attorney

8 General—

9 ‘‘(1) determines that an emergency situation ex10 ists with respect to the employment of electronic

11 surveillance to obtain foreign intelligence informa12 tion before an order authorizing such surveillance

13 can with due diligence be obtained;

14 ‘‘(2) determines that the factual basis for

15 issuance of an order under this title to approve such

16 surveillance exists;

17 ‘‘(3) informs a judge having jurisdiction under

18 section 103 at the time of such authorization that

19 the decision has been made to employ emergency

20 electronic surveillance; and

21 ‘‘(4) makes an application in accordance with

22 this title to a judge having jurisdiction under section

23 103 as soon as practicable, but not more than 120

24 hours after the official authorizes such surveillance.

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1 If the Attorney General authorizes such emergency em2 ployment of electronic surveillance, the Attorney General

3 shall require that the minimization procedures required by

4 this title for the issuance of a judicial order be followed.

5 In the absence of a judicial order approving such electronic

6 surveillance, the surveillance shall terminate when the in7 formation sought is obtained, when the application for the

8 order is denied, or after the expiration of 120 hours from

9 the time of authorization by the Attorney General, which10 ever is earliest. In the event that such application for ap11 proval is denied, or in any other case where the electronic

12 surveillance is terminated and no order is issued approving

13 the surveillance, no information obtained or evidence de14 rived from such surveillance shall be received in evidence

15 or otherwise disclosed in any trial, hearing, or other pro16 ceeding in or before any court, grand jury, department,

17 office, agency, regulatory body, legislative committee, or

18 other authority of the United States, a State, or political

19 subdivision thereof, and no information concerning any

20 United States person acquired from such surveillance shall

21 subsequently be used or disclosed in any other manner by

22 Federal officers or employees without the consent of such

23 person, except with the approval of the Attorney General

24 if the information indicates a threat of death or serious

25 bodily harm to any person. A denial of the application

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•HR 5825 IH

1 made under this subsection may be reviewed as provided

2 in section 103.’’; and

3 (7) in subsection (h), as redesignated by para4 graph (4)—

5 (A) by striking ‘‘in accordance with a court

6 order’’ and all that follows and inserting ‘‘—’’;

7 and

8 (B) by adding at the end the following new

9 paragraphs:

10 ‘‘(1) in accordance with a court order or re11 quest for emergency assistance under this Act for

12 electronic surveillance or physical search; or

13 ‘‘(2) in response to a certification by the Attor14 ney General or a designee of the Attorney General

15 seeking information, facilities, or technical assistance

16 from such person that does not constitute electronic

17 surveillance.’’.

18 SEC. 6. USE OF INFORMATION.

19 Section 106(i) of the Foreign Intelligence Surveil20 lance Act of 1978 (50 U.S.C. 1806(i)) is amended—

21 (1) by striking ‘‘radio communication’’ and in22 serting ‘‘communication’’; and

23 (2) by striking ‘‘contents indicates’’ and insert24 ing ‘‘contents contain significant foreign intelligence

25 information or indicate’’.

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•HR 5825 IH

1 SEC. 7. AUTHORIZATION AFTER AN ARMED ATTACK.

2 (a) ELECTRONIC SURVEILLANCE.—Section 111 of

3 the Foreign Intelligence Surveillance Act of 1978 (50

4 U.S.C. 1811) is amended by striking ‘‘for a period not

5 to exceed’’ and all that follows and inserting the following:

6 ‘‘for a period not to exceed 60 days following an armed

7 attack against the territory of the United States if the

8 President submits to each member of the congressional in9 telligence committee notification of the authorization

10 under this section.’’.

11 (b) PHYSICAL SEARCH.—Section 309 of such Act (50

12 U.S.C. 1829) is amended by striking ‘‘for a period not

13 to exceed’’ and all that follows and inserting the following:

14 ‘‘for a period not to exceed 60 days following an armed

15 attack against the territory of the United States if the

16 President submits to each member of the congressional in17 telligence committee notification of the authorization

18 under this section.’’.

19 SEC. 8. AUTHORIZATION OF ELECTRONIC SURVEILLANCE

20 AFTER A TERRORIST ATTACK.

21 The Foreign Intelligence Surveillance Act of 1978

22 (50 U.S.C. 1801 et seq.) is further amended—

23 (1) by adding at the end of title I the following

24 new section:

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•HR 5825 IH

1 ‘‘AUTHORIZATION FOLLOWING A TERRORIST ATTACK

2 UPON THE UNITED STATES

3 ‘‘SEC. 112. (a) IN GENERAL.—Notwithstanding any

4 other provision of law, but subject to subsection (d), the

5 President, acting through the Attorney General, may au6 thorize electronic surveillance without an order under this

7 title to acquire foreign intelligence information for a pe8 riod not to exceed 45 days following a terrorist attack

9 against the United States if the President submits a noti10 fication to each member of the congressional intelligence

11 committees and a judge having jurisdiction under section

12 103 that—

13 ‘‘(1) the United States has been the subject of

14 a terrorist attack; and

15 ‘‘(2) identifies the terrorist organizations or af16 filiates of terrorist organizations believed to be re17 sponsible for the terrorist attack.

18 ‘‘(b) SUBSEQUENT CERTIFICATIONS.—Subject to

19 subsection (d), at the end of the 45-day period described

20 in subsection (a), and every 45 days thereafter, the Presi21 dent may submit a subsequent certification to each mem22 ber of the congressional intelligence committees and a

23 judge having jurisdiction under section 103 that the cir24 cumstances of the terrorist attack for which the President

25 submitted a certification under subsection (a) require the

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•HR 5825 IH

1 President to continue the authorization of electronic sur2 veillance under this section for an additional 45 days. The

3 President shall be authorized to conduct electronic surveil4 lance under this section for an additional 45 days after

5 each such subsequent certification.

6 ‘‘(c) ELECTRONIC SURVEILLANCE OF INDIVID7 UALS.—The President, or an official designated by the

8 President to authorize electronic surveillance, may only

9 conduct electronic surveillance of a person under this sub10 section when the President or such official determines

11 that—

12 ‘‘(1) there is a reasonable belief that such per13 son is communicating with a terrorist organization

14 or an affiliate of a terrorist organization that is rea15 sonably believed to be responsible for the terrorist

16 attack; and

17 ‘‘(2) the information obtained from the elec18 tronic surveillance may be foreign intelligence infor19 mation.

20 ‘‘(d) MINIMIZATION PROCEDURES.—The President

21 may not authorize electronic surveillance under this sec22 tion until the Attorney General approves minimization

23 procedures for electronic surveillance conducted under this

24 section.

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•HR 5825 IH

1 ‘‘(e) UNITED STATES PERSONS.—Notwithstanding

2 subsection (b), the President may not authorize electronic

3 surveillance of a United States person under this section

4 without an order under this title for a period of more than

5 90 days unless the President, acting through the Attorney

6 General, submits a certification to each member of the

7 congressional intelligence committees that—

8 ‘‘(1) the continued electronic surveillance of the

9 United States person is vital to the national security

10 of the United States;

11 ‘‘(2) describes the circumstances that have pre12 vented the Attorney General from obtaining an order

13 under this title for continued surveillance;

14 ‘‘(3) describes the reasons for believing the

15 United States person is affiliated with or in commu16 nication with a terrorist organization or affiliate of

17 a terrorist organization that is reasonably believed to

18 be responsible for the terrorist attack; and

19 ‘‘(4) describes the foreign intelligence informa20 tion derived from the electronic surveillance con21 ducted under this section.

22 ‘‘(f) USE OF INFORMATION.—Information obtained

23 pursuant to electronic surveillance under this subsection

24 may be used to obtain an order authorizing subsequent

25 electronic surveillance under this title.

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1 ‘‘(g) REPORTS.—Not later than 14 days after the

2 date on which the President submits a certification under

3 subsection (a), and every 30 days thereafter until the

4 President ceases to authorize electronic surveillance under

5 subsection (a) or (b), the President shall submit to each

6 member of the congressional intelligence committees a re7 port on the electronic surveillance conducted under this

8 section, including—

9 ‘‘(1) a description of each target of electronic

10 surveillance under this section; and

11 ‘‘(2) the basis for believing that each target is

12 in communication with a terrorist organization or an

13 affiliate of a terrorist organization.

14 ‘‘(h) CONGRESSIONAL INTELLIGENCE COMMITTEES

15 DEFINED.—In this section, the term ‘congressional intel16 ligence committees’ means the Permanent Select Com17 mittee on Intelligence of the House of Representatives and

18 the Select Committee on Intelligence of the Senate.’’; and

19 (2) in the table of contents in the first section,

20 by inserting after the item relating to section 111

21 the following new item:

‘‘Sec. 112. Authorization following a terrorist attack upon the United States.’’.

22 SEC. 9. CONGRESSIONAL OVERSIGHT.

23 (a) ELECTRONIC SURVEILLANCE UNDER FISA.—

24 Section 108 of the Foreign Intelligence Surveillance Act

25 of 1978 (50 U.S.C. 1808) is amended—

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•HR 5825 IH

1 (1) in subsection (a)(1), by inserting ‘‘each

2 member of’’ before ‘‘the House Permanent Select

3 Committee on Intelligence’’; and

4 (2) in subsection (a)(2)—

5 (A) in subparagraph (B), by striking

6 ‘‘and’’ at the end;

7 (B) in subparagraph (C), by striking the

8 final period and inserting ‘‘; and’’; and

9 (C) by adding at the end the following new

10 subparagraph:

11 ‘‘(D) the authority under which the elec12 tronic surveillance is conducted.’’; and

13 (3) in subsection (a), by adding at the end the

14 following new paragraph:

15 ‘‘(3) Each report submitted under this sub16 section shall include reports on electronic surveil17 lance conducted without a court order.’’.

18 (b) INTELLIGENCE ACTIVITIES.—Section 501 of the

19 National Security Act of 1947 (50 U.S.C. 413) is

20 amended—

21 (1) in subsection (a)(1), by inserting ‘‘each

22 member of’’ before ‘‘the congressional intelligence

23 committees’’; and

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•HR 5825 IH

1 (2) in subsection (b), by inserting ‘‘each mem2 ber of’’ before ‘‘the congressional intelligence com3 mittees’’.

4 SEC. 10. TECHNICAL AND CONFORMING AMENDMENTS.

5 The Foreign Intelligence Surveillance Act of 1978

6 (50 U.S.C. 1801 et seq.) is further amended—

7 (1) in section 102(a)(3)(A), by striking

8 ‘‘101(h)(4) and’’;

9 (2) in section 105(a)(5)—

10 (A) by striking ‘‘104(a)(7)(E)’’ and insert11 ing ‘‘104(a)(6)(D)’’; and

12 (B) by striking ‘‘104(d)’’ and inserting

13 ‘‘104(c)’’;

14 (3) in section 106—

15 (A) in subsection (j) in the matter pre16 ceding paragraph (1), by striking ‘‘105(e)’’ and

17 inserting ‘‘105(d)’’; and

18 (B) in subsection (k)(2), by striking

19 ‘‘104(a)(7)(B)’’ and inserting ‘‘104(a)(6)(B)’’;

20 and

21 (4) in section 108(a)(2)(C), by striking

22 ‘‘105(f)’’ and inserting ‘‘105(e)’’.

Æ

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Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes to explain the bill—once there’s order. If there is not 

order, the Chair is going to start naming names. Thank you. 

Today, the committee considers H.R. 5825, the Electronic Surveillance Modernization Act, a bill introduced by Representative 

Heather Wilson, Chairman Hoekstra and myself. This legislation 

reflects Congress’ ongoing efforts to provide the administration 

with reasonable tools and authorities to prevent terrorist attacks 

on our Nation. 

H.R. 5825 would return the focus of FISA to protecting those 

with the fourth amendment expectation of privacy. The bill makes 

FISA technology neutral and simplifies the process for getting a 

FISA court order. 

When FISA was enacted, domestic communications and international communications were transmitted in a predominantly different manner. Domestic communications were transmitted via 

wire, while international communications were transmitted via 

radio. In recent years, international communications are increasingly transmitted through undersea cables which were considered 

wire. This bill recognized that international communications should 

be treated the same whether transmitted by wire technology or 

radio technology. The bill would remove the current technology——

Mr. WATT. Mr. Chairman, we are having trouble hearing you. I 

am sorry. 

Chairman SENSENBRENNER. The gentleman from California is 

correct. 

Mr. WATT. California? Wherever. North Carolina, Mr. Chairman. 

Chairman SENSENBRENNER. Well, I was stared at by the gentleman from California, but you are correct. 

Mr. WATT. They can’t hear you in North Carolina or California, 

Mr. Chairman. 

Chairman SENSENBRENNER. Well, I am more worried about 

North Carolina, because it is closer. 

The bill would remove the current technology distinction between 

the terms wire and radio communications and would use a technology neutral definition for electronic surveillance. 

It would also specifically require that when a person has a reasonable expectation of privacy, FISA applies. 

The bill also addresses the government’s use of warrantless surveillance to monitor a suspected terrorist’s international communications tape. 

On December 16 of last year, based on the leak of classified information, the New York Times published a story regarding the 

terrorist surveillance program operated by the NSA. The President 

subsequently acknowledged that he had authorized the program 

after 9/11 to intercept the international communications of those 

with known links to al Qaeda and related terrorist organizations. 

Notwithstanding the administration’s position that this program 

is fully consistent with U.S. law and the Constitution, the President has called on Congress to provide specific authorization for 

this program and to make additional changes to U.S. laws governing electronic surveillance. The bill attempts to encompass such 

surveillance without infringing on the President’s authority to protect national security. 


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The Subcommittee on Crime, Terrorism and Homeland Security 

recently held two hearings on the bill and other legislation relating 

to the surveillance of electronic communications. At these hearings, 

there was broad consensus among witnesses and members that this 

bill could be improved, which is why we are considering it at this 

markup today. 

As I noted earlier, the legislation is a priority for the President 

and critical to our national efforts to detect and disrupt acts of terrorism before they occur on American soil. 

I would note this legislation is expected to come up for consideration on the House floor as early as next week. Therefore, it is imperative that the committee act on the bill today lest we risk foregoing our opportunity to improve it. 

I yield back the balance of my time and recognize the gentleman 

from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

This is a very important measure, and I state from the outset I 

strongly support intercepting each and every conversation involving al Qaeda and its supporters. I also support commonsense updates to the Foreign Intelligence Surveillance Act, FISA, in order 

to have our surveillance capabilities keep pace with modern technologies. 

The problem that confronts us in the measure before us is that 

it is, one, unconstitutional, two, deeply flawed, and of highly questionable timing to boot. 

First, let’s talk about the flaws. The flaw is that it would radically rewrite FISA, gutting core provisions and safeguards and exposing millions of innocent Americans to warrantless surveillance. 

Among other things, the bill does nothing to impose limits on unchecked Presidential power to conduct warrantless surveillance, 

which has been the subject of much discussion here of late. 

Secondly, it extends FISA’s surveillance to broad new categories 

of individuals, corporations and the United States having no connection to foreign governments or terrorist organizations. The Computer and Communications Industry Association wrote to the Committee on the Judiciary just yesterday that the mere possibility of 

widespread, secret, unchecked surveillance of the billions of messages that flow among our customers, especially U.S. citizens, will 

corrode the fundamental openness and freedom necessary to our 

communication networks. 

The next consideration is that it allows warrantless surveillance 

of innocent Americans in the United States and allows the government to maintain records and massive databases on such individuals in perpetuity. It grants broad new powers to conduct physical 

searches on all United States persons, as well as their relatives, 

landlords, business communication providers, without court approval. 

In addition, this measure grants expansive new authority to conduct warrantless surveillance and physical searches without warrant against any and all Americans after an undefined, armed or 

terrorist attack on any American person or property anywhere in 

the world for an indefinite duration. 

Now, with those—one, two, three, four, five, six—criticisms of the 

problems of this legislation, I could stop right there. There are six 

reasons to turn this legislation back on the spot. 


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But I believe the measure is further unconstitutional for it contravenes the fourth amendment requirement that individualized judicial warrants are required for our government to intercept communications of Americans. The need is particularly vital in the 

present case, as the individuals will never learn of the surveillance. 

Further, by eliminating the requirement that the government 

show that the warrant is reasonable and narrowly tailored, the bill 

flies in the face of the fourth amendment’s particularity requirement. 

Finally, I must also question whether the committee even should 

be holding this markup at this time. The question of timing—9 

months—almost 9 months after we first learned of the warrantless 

surveillance program, there has been no attempt to conduct an 

independent inquiry into its legality. Not only has the Congress 

failed to conduct any sort of investigation but the administration 

summarily rejected all requests for special counsels as well as reviews by the Department of Justice and the Department of Defense 

Inspectors General. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. CONYERS. I ask unanimous consent that my remaining statement go into the record. 

Chairman SENSENBRENNER. Without objection, so ordered. 

[The prepared statement of Mr. Conyers follows:] 


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PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE

ON THE JUDICIARY


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Chairman SENSENBRENNER. Without objection, all members may 

place opening statements in the record at this point. 

Are there amendments? 

The Chair has an amendment at the desk, which the Clerk will 

report. 

The CLERK. Mr. Chairman, I have two amendments from you. 

Chairman SENSENBRENNER. This is the one that is 009 XML. 

The CLERK. Mr. Chairman, amendment to H.R. 5825 offered by 

Mr. Sensenbrenner. 

Strike sections 7 and 8, page 12, line 1 through page 16, line 21. 

[The amendment follows:] 


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Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes. 

The amendment strikes sections 7 and 8 of the Wilson bill. Section 7 would amend the authorization term of during time of war 

and section 11 of FISA. Under the Wilson bill, the President 

through the Attorney General is authorized to collect essential surveillance without a court order to acquire foreign intelligence information for a period of not to exceed 60 days after an armed attack 

against the U.S. 

The current law allows for warrantless surveillance for 15 days 

after a declaration of war by the Congress. Notification to each 

member of the two intelligence committees is required. 

According to the conference report on FISA, the conferees intended that this period would allow for time for consideration of 

any amendment to the Act that may be appropriate during a wartime emergency. It went on to say that the conferees expected such 

amendment would be reported with recommendations within 7 

days and that each House would vote on the amendment within 7 

days thereafter. 

The Wilson bill changed the trigger for declaration of war to an 

armed attack and extended the time for warrantless surveillance to 

60 days. Section 11 was not intended to provide adequate time for 

the government to conduct warrantless surveillance in a time of 

war but rather for Congress to act expeditiously after such a declaration of war to amend the law. 

Furthermore, the new language is vague and does not allow the 

Intelligence Committee to work to prevent another attack if they 

have to wait for an armed attack. 

The amendment strikes section 7. Section 8 would govern electronic surveillance after a terrorist attack that would not be covered under FISA. The President, acting through the Attorney General, would have the authority to authorize electronic surveillance 

to acquire foreign intelligence information without a court order 

under specified circumstances. 

Under this authority, the President would have to submit notification to each member of the Intelligence Committees and of the 

FISA court. Notification must state that the U.S. has been the subject of a terrorist attack and must identify the terrorist organizations or affiliates of terrorist organizations believed to be responsible for the terrorist attacks. 

For someone to be the target of such surveillance there must be 

a reason to believe that such a person is communicating with a terrorist organization that is reasonably believed to be responsible for 

the attack. There must be reasonable cause to believe the information obtained from the electronic surveillance may be foreign intelligence information. This section of the bill would require recertification every 45 days and minimization procedures for electronic 

surveillance conducted under the section. The language again requires the government to wait until after attack. 

The mission of the government is to prevent another terrorist attack, and that is the very purpose of the terrorism surveillance programs. At the hearings held by the Subcommittee on Crime, members and witnesses expressed a concern that this trigger would not 

allow them to prevent an attack. These sections, I believe, should 

be stricken, while better language should be crafted. 


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I yield back the balance of my time. 

The gentleman from Michigan. 

Mr. CONYERS. Mr. Chairman, I find that striking section 7—I 

rise in support of the amendment. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes, and more if he needs it. 

Mr. CONYERS. I appreciate the amendment. Because, by eliminating these two sections, you have taken care of at least one, 

maybe two points of the criticism that I offered initially against the 

bill. 

So I support the amendment and return the balance of my time. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the Chair. Those in favor will say aye; those opposed, no. 

The ayes appear to have it. The ayes have it. The amendment 

is agreed to. 

Are there further amendments? 

Mr. LUNGREN. Mr. Chairman. 

Chairman SENSENBRENNER. Gentleman from California, Mr. 

Lungren. 

Mr. LUNGREN. Mr. Chairman, I have an amendment at the desk. 

Mr. CONYERS. Point of procedure, Mr. Chairman. Don’t we go to 

the other side? 

Chairman SENSENBRENNER. Well, the gentleman from California 

is very pushy, so he has been recognized. 

The Clerk will report the amendment. 

The CLERK. Amendment to H.R. 5825 offered by Mr. Dan E. Lungren of California. 

Strike section 2, page 1, line 6, through page 3, line 20, and insert the following: 

Section 2. FISA definitions. 

Mr. LUNGREN. Mr. Chairman, I ask unanimous consent that the 

amendment be considered——

Chairman SENSENBRENNER. Just wait till the amendment is distributed, because it is somewhat lengthy. 

The clerk will continue to report. 

The CLERK. Subsection (a). Agent of a Foreign Power. Subsection 

(b)(1) of section 101 of the Foreign Intelligence Surveillance Act of 

1978, 50 U.S. Code——

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. 

[The amendment follows:] 


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Chairman SENSENBRENNER. The gentleman will be recognized for 

5 minutes. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

I support the goals to update, streamline and make FISA technology neutral. At the same time, I am concerned that the bill’s 

language needed to be amended to ensure that the safeguards built 

in FISA remain and that the original purpose of FISA is clarified. 

Section 2(a) of the bill would add a new category to the definition 

of a, quote, agent of a foreign power, end quote, to ensure that the 

definition captures non-U.S. persons who possess or receive foreign 

intelligence information. While I support amending this definition, 

my amendment would narrow the application of this provision to 

situations in which the relevant foreign intelligence information is 

deemed, quote, significant. 

Section 2(b) would amend FISA’s definition of electronic surveillance in a manner that would return FISA to its original purpose 

by focusing on where and on whom the surveillance is being directed. The definition, as I would amend it, would turn on targeting on a particular known person, A, believed to be in the 

United States, B, in circumstances which that person has, (i), a 

reasonable expectation of privacy or, (ii), a warrant would be required for law enforcement purposes. 

The testimony that we heard at subcommittee from both the Department of Justice witness and the NSA witness suggested the 

need for what is essentially a technical amendment to the bill in 

order to clarify this definition by emphasizing that the key is, 

quote, intentionally directing the surveillance at a particular 

known person, end quote. 

I believe we need to focus on the target to determine what applies and does not apply and whether fourth amendment privacy 

rights are implicated. A non-U.S. person who is a terrorist in Afghanistan does not have the same privacy rights of U.S. person, 

and our surveillance laws should reflect that, and I believe my 

amendment does so. 

Section 3 of the bill would amend the current section 102(a) certification process to expand the circumstances under which the government may conduct electronic surveillance without court order of 

foreign powers or agents of foreign powers. Currently, under 

102(a)(1)(A), the only time the government could use this authority 

was when the means of communications are exclusively used by a 

foreign power or foreign power to a foreign power or controlled by 

the foreign power. In 1978, this technology was standard. 

When communications were controlled by a foreign power, there 

was no reason to go to a FISA court, because it was technical intelligence under the open and exclusive control of a foreign power or 

was a foreign power talking to another foreign power. Consequently, there was little chance that a U.S. person would be involved. 

Now communications are done differently, where the technology 

used to communicate could be a U.S.-controlled telecommunications 

company or a U.S. person or U.S. persons working at the embassy. 

The drafters of FISA were trying to carve out foreign to foreign 

communications. The testimony before the subcommittee explained 

that this technology has changed, making it impossible to use this 

provision. So H.R. 5825 expands this section to cover agents of a 


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foreign power and makes the application of the law technology neutral. 

I share the sentiment embodied in the language. However, I believe it goes too far and that we should restrict the expansion of 

the current law to agents of foreign powers that are actually connected to foreign powers. 

Section 3 of the bill would also provide a new and streamlined 

Attorney General certification process, permitting the Attorney 

General to direct electronic communication service providers to provide certain information to facilities or technical assistance for period of up to 1 year, provided that the provision of these resources 

does not constitute electronic surveillance. 

I think if we are going to add such a process we need to restrict 

the manner in which the information is to be obtained and create 

a mechanism for the FISA court to review and enforce the directives as well as allowing for challenges to the process, and that is 

what my amendment would seek to do. 

Section 4 would significantly streamline the FISA application 

process, would eliminate requirements to provide certain categories 

of information currently necessary to a FISA application. I would 

hope that we all support this objective, but I would suggest that 

some of the application requirements that 5825 would eliminate, 

such as detailed statements concerning prior FISA applications involving the target, and the means by which surveillance will be affected, is too blunt of an instrument rather than eliminate the requirements of——

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. LUNGREN. Mr. Chairman, I ask unanimous consent for 3 additional minutes 

Chairman SENSENBRENNER. Without objection. 

Mr. LUNGREN. Rather than eliminate the requirement of this information, which is in the bill as introduced, my amendment would 

require general summary statements to be brought forward. Section 5 of the bill would require the maximum duration of FISA orders to be 1 year. There was no argument made at the subcommittee for this change. Furthermore, the other changes we have 

made to streamline the process render such a change unnecessary, 

and my amendment would strike this change in the law. 

Section 5 of H.R. 5825 would also amend FISA’s emergency authorization provision by allowing surveillance to continue for 5 days 

prior to court approval. I agreed with the administration’s testimony, and expanded duration for emergency application of 7 days, 

and also allow senior officials rather than the Attorney General 

solely to authorize such surveillance. 

Finally, section 10 of the bill would continue a FISA- ordered 

coverage on a target even after they left the United States unless 

the government filed a motion to extinguish the order and the 

court granted the motion, and that is section 10 of this. 

So what I have attempted to do is to respond to a number of the 

concerns expressed by the minority side, shared by a number on 

the majority side, that the bill as originally introduced, while going 

in the right direction overall, probably went a little too far. And so 

what we have tried to do is narrow the focus, put it more towards 


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the direction I think we all talked about in our discussions after 

the two hearings that we had. 

I think it still goes in the direction the administration wants. I 

believe it gives them what they need but I believe it maintains a 

number of the protections that we have in the past, on a bipartisan 

basis, put into the FISA law, and I would ask support for the 

amendment. 

Chairman SENSENBRENNER. The time of the gentleman has expired. For what purpose does the gentleman seek recognition? 

Mr. CONYERS. I rise to strike the requisite number of words. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CONYERS. Mr. Chairman, I would like to ask the author of 

this amendment, Mr. Lungren, how many sections are changed 

within these 25 pages of amendment? 

How many places? 

Mr. LUNGREN. Section 2(a), 2(b), section 3. 

Mr. CONYERS. Just the number. Sounds like it is about a dozen 

to me. 

Mr. LUNGREN. Six sections in the bill, in the underlying bill. 

Mr. CONYERS. Has the gentleman from California had an opportunity to discuss this with other members of the Committee on the 

judiciary? 

Mr. LUNGREN. We have had discussions through staff with other 

members on the Judiciary, as I understand it. And also I might say 

that most of these were brought up to me during our hearings by 

members of the committee, including members of the minority. I 

was trying to respond to specific concerns raised where people articulated the position that they believed we needed to bring FISA 

up to date, we needed to make it technology neutral, but they 

thought that the language in the underlying bill went beyond what 

was necessary. 

Mr. CONYERS. Well, what I would like to ask the gentleman, I 

thank him for his summary of what he was trying to do, which is 

something I think we would agree with, but I would like the gentleman to know that no one on my staff remembers being discussed—having any discussions about the provision, and it would 

seem to me that in the fullness of our cooperation that if the gentleman could withdraw this amendment—he counted six changes I 

think—it seemed to me that there were more sections cited in his 

presentation. We may be able to respond favorably to the objectives 

stated by the gentleman from California or, in the alternative, we 

might be able to form amendments that would make it more acceptable to us. 

But at this point it is impossible for this member to gain any appreciation of the significant changes that the gentleman has attempted. And so I would ask that this be withheld until we have 

had an opportunity to examine this with the care that is required. 

This did not come up during the hearings. There was no markup 

in the subcommittee. And we are confronted with what I think are 

huge changes, some of which may be favorable to the majority of 

the members of the subcommittee. 

Mr. LUNGREN. Would the gentleman yield? The only thing I can 

say in response is I am not, obviously, responsible for the timetable 

set as we are dealing with—in the ending weeks of a Congress. I 


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attended and even chaired one of the hearings that we had on this, 

trying to make sure that everybody had ample opportunity to ask 

questions, made a conscientious effort to try and identify the areas 

of concerns of members on both sides, particularly on the minority 

side, and have tried to work with staff to develop this. I am under 

the time gun as well. And so I am worried if I withdraw this and 

don’t bring it at this time, we may miss the opportunity for our 

committee to actually work it out. 

Mr. CONYERS. Let me just ask the gentlemen, could we break 

this down into individual amendments that we can consider one at 

a time? Six different sections being modified, 25 pages I think is— this sounds like a ‘‘trust me’’ amendment if I have ever seen one. 

Mr. LUNGREN. You and I have always trusted one another. 

Mr. CONYERS. I would love to trust you, but not in 25 pages’

worth. 

Mr. SCHIFF. Would the gentleman yield? 

Mr. CONYERS. I ask for unanimous consent to proceed for an additional minute. 

Chairman SENSENBRENNER. Without objection. 

Mr. SCHIFF. I thank the gentleman for yielding. Mr. Flake and 

I have been working on a substitute amendment that we are prepared to offer today that addresses a lot of the concerns shared on 

both side of the aisle as well, and I could go through the provisions 

of that amendment and ask how it differs from what you are proposing, Mr. Lungren. I don’t know if we are going to have the opportunity to go through all the details of your proposal, all the details of ours, and all the details of the base bill. 

This illustrates, I think, the difficulty in marking up a bill like 

this on such short order when we have just had the first classified 

hearing on these issues less than a week ago. 

In the substitute that Mr. Flake and I are offering, we provide 

that the authorization to use military force is not an exception to 

FISA. We provide that FISA is the exclusive means by which domestic electronic surveillance for foreign intelligence purposes can 

be conducted. 

Mr. CONYERS. Mr. Speaker, I ask for 2 additional minutes. 

Chairman SENSENBRENNER. Without objection. 

Mr. CONYERS. I continue to yield to the gentleman. 

Mr. SCHIFF. I thank the gentleman. We require that the President submit to the Intelligence Committee and to the Judiciary 

Committee a classified report on the TSB program and any other 

program that is used for intelligence purposes that is outside of 

FISA. 

We also provide and authorize the Chief Justice of the Supreme 

Court to appoint additional FISA court judges. 

Mr. CONYERS. Could I ask my friend to suspend, because I want 

to offer a motion to table so that your amendment can be brought—

your substitute, without being prejudiced if this happens to go 

through. 

Mr. SCHIFF. I appreciate it. Whatever the procedural mechanism. 

I think the reason we are having such trouble here today is that, 

unlike the PATRIOT bill procedure where the judiciary—the Justice Department came to this committee with a proposal that we 

could analyze in detail, that we had weeks, particularly with the 

reauthorization to go over and study, the Justice Department 


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hasn’t come to this committee for a bill changing FISA. It has been 

5 years since 9/11. The Justice Department hasn’t come to us for 

a bill. But we have different member bills. 

Mr. CONYERS. Mr. Chairman, I make a motion to table the Lungren amendment. 

Chairman SENSENBRENNER. The Chair would observe that the 

motion is not timely made. Under House rule 16, clause 4, paren 

(e) paren (ii) the motion to table only lies before debate begins on 

an amendment or a motion. The question—— Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. The time of the gentleman from 

Michigan has expired. For what purposes does the gentleman from 

New York seek recognition? 

Mr. NADLER. In view of the fact that none of us have any idea 

what is in this bill, and we should consider it properly, I move we 

stand adjourned until tomorrow morning. 

Chairman SENSENBRENNER. The question is on the motion to adjourn. 

Those in favor will say aye. 

Opposed, no. 

The noes appear to have it. 

Mr. NADLER. rollcall vote. 

Chairman SENSENBRENNER. rollcall vote is ordered on the motion 

to adjourn. 

Those in favor of adjourning will, as your names are called, answer aye. 

Those opposed, no. 

The Clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

[No response.] 

The CLERK. Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. 

Mr. Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins. 

[No response.] 

The CLERK. Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Mr. Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Inglis. 


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Mr. INGLIS. Pass. 

The CLERK. Mr. Inglis, pass. 

Mr. Hostettler. 

[No response.] 

The CLERK. Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

[No response.] 

The CLERK. Mr. Flake. 

Mr. FLAKE. Pass. 

The CLERK. Mr. Flake, pass. 

Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Mr. Franks. 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert. 

Mr. GOHMERT. How am I recorded? 

The CLERK. Mr. Chairman, Mr. Gohmert has not yet voted. 

Mr. GOHMERT. Then I vote no. 

The CLERK. Mr. Gohmert, no. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt. 

Mr. WATT. Mr. Watt, aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren. 

[No response.] 

The CLERK. Ms. Jackson Lee. 

[No response.] 

The CLERK. Ms. Waters. 


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[No response.] 

The CLERK. Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Mr. Weiner. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. 

Mr. Schiff. 

[No response.] 

The CLERK. Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from South Carolina, Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Chairman SENSENBRENNER. The gentleman from Tennessee, Mr. 

Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Chairman SENSENBRENNER. The gentleman from Massachusetts, 

Mr. Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or their change vote? The Clerk will report. 

Mr. WATT. Mr. Chairman, might I inquire how I am listed? 

The CLERK. Mr. Watt is recorded as aye. 

Chairman SENSENBRENNER. Gentlewoman from California, Ms. 

Lofgren. 

Ms. LOFGREN. Aye. 


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The CLERK. Ms. Lofgren, aye. 

Chairman SENSENBRENNER. The Clerk will report. 

The gentleman from Florida, Mr. Wexler. 

Mr. WEXLER. Yes 

The CLERK. Mr. Wexler, aye. 

Chairman SENSENBRENNER. The Clerk will report. 

The other gentlelady from California, Ms. Waters. 

Ms. WATERS. Yes. 

The CLERK. Ms. Waters, aye. 

Mr. WEINER. Mr. Chairman, how am I recorded? 

Chairman SENSENBRENNER. The gentleman from New York. 

The CLERK. Mr. Chairman, Mr. Weiner is recorded as no. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Chairman SENSENBRENNER. The Clerk will report. 

The CLERK. Mr. Chairman, there are 14 ayes and 17 nays. 

Chairman SENSENBRENNER. The motion to adjourn is not agreed 

to. The question is on agreeing to the amendment offered——

Mr. WEINER. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York——

Mr. WEINER. Make a point of order. A quorum is not present. 

Chairman SENSENBRENNER. The Clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

[No response.] 

The CLERK. Mr. Smith. 

[No response.] 

The CLERK. Mr. Gallegly. 

[No response.] 

The CLERK. Mr. Goodlatte. 

[No response.] 

The CLERK. Mr. Chabot. 

Mr. CHABOT. Present. 

The CLERK. Mr. Chabot, present. 

Mr. Lungren. 

Mr. LUNGREN. Present. 

The CLERK. Mr. Lungren, present. 

Mr. Jenkins. 

[No response.] 

The CLERK. Mr. Cannon. 

[No response.] 

The CLERK. Mr. Bachus. 

Mr. CANNON. Present. 

The CLERK. Mr. Cannon present. 

Mr. Bachus. 

[No response.] 

The CLERK. Mr. Inglis. 

Mr. INGLIS. Present. 

The CLERK. Mr. Inglis, present. Mr. Hostettler. 

[No response.] 

The CLERK. Mr. Green. 

Mr. GREEN. Present. 

The CLERK. Mr. Green, present. 


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Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

[No response.] 

The CLERK. Mr. Flake. 

Mr. FLAKE. Present. 

The CLERK. Mr. Flake, present. 

Mr. Pence. 

Mr. PENCE. Present. 

The CLERK. Mr. Pence, present. 

Mr. Forbes. 

Mr. FORBES. Present. 

The CLERK. Mr. Forbes, present. 

Mr. King. 

Mr. KING. Present. 

The CLERK. Mr. King, present. 

Mr. Feeney. 

Mr. FEENEY. Present. 

The CLERK. Mr. Feeney, present. 

Mr. Franks. 

Mr. FRANKS. Present. 

The CLERK. Mr. Franks, present. 

Mr. Gohmert. 

[No response.] 

The CLERK. Mr. Conyers. 

[No response.] 

The CLERK. Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

[No response.] 

The CLERK. Mr. Scott. 

[No response.] 

The CLERK. Mr. Watt. 

[No response.] 

The CLERK. Ms. Lofgren. 

[No response.] 

The CLERK. Ms. Jackson Lee. 

[No response.] 

The CLERK. Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Mr. Weiner. 

Mr. FEENEY. Mr. Chairman, a point of order. 

Chairman SENSENBRENNER. The Clerk will continue calling the 

roll. 

The CLERK. Mr. Schiff. 

[No response.] 

The CLERK. Ms. Sa ́nchez. 


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[No response.] 

The CLERK. Mr. Van Hollen. 

[No response.] 

The CLERK. Ms. Wasserman Schultz. 

[No response.] 

The CLERK. Mr. Chairman. 

Chairman SENSENBRENNER. Present. 

Members in the Chamber who wish to record their presence. The 

gentleman from Texas, Mr. Smith. 

Mr. SMITH. I vote present. 

The CLERK. Present. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble. 

Mr. COBLE. Present. 

The CLERK. Mr. Coble, present. 

Chairman SENSENBRENNER. The gentleman from Alabama, Mr. 

Bachus. 

Mr. BACHUS. Present. 

The CLERK. Mr. Bachus, present. 

Chairman SENSENBRENNER. The gentleman from Tennessee, Mr. 

Jenkins. 

Mr. JENKINS. Present. 

The CLERK. Mr. Jenkins, present. 

Mr. FEENEY. Mr. Chairman, a point of order with respect to the 

rollcall. 

Chairman SENSENBRENNER. The gentleman will state his point of 

order. 

Mr. FEENEY. The gentleman from New York was here to raise 

the absence of a quorum. Is his presence imputed as here for purposes of the quorum? 

Chairman SENSENBRENNER. No. 

The Clerk will report. 

The CLERK. Mr. Chairman, there are 16 members present. 

Chairman SENSENBRENNER. A working quorum is present. The 

question is on agreeing to the amendment offered by the gentleman 

from California, Mr. Lungren. 

Those in favor will say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it and the amendment 

is agreed to. 

Mr. FLAKE. I request a rollcall vote. 

Chairman SENSENBRENNER. Rollcall is ordered. Those in favor of 

the Lungren amendment will, as your names are called, answer 

aye. Those opposed, no. 

And the Clerk will call the roll. 

The CLERK. Mr. Hyde. 

[No response.] 

The CLERK. Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. 

Mr. Gallegly. 

[No response.] 


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The CLERK. Mr. Goodlatte. 

[No response.] 

The CLERK. Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. 

Mr. Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. 

Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Mr. Inglis. 

[No response.] 

The CLERK. Mr. Hostettler. 

[No response.] 

The CLERK. Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

[No response.] 

The CLERK. Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Mr. Pence. 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence, aye. 

Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes, aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney, aye. 

Mr. Franks. 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. 

Mr. Gohmert. 

[No response.] 

The CLERK. Mr. Conyers. 

[No response.] 

The CLERK. Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 


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[No response.] 

The CLERK. Mr. Scott. 

[No response.] 

The CLERK. Mr. Watt. 

[No response.] 

The CLERK. Ms. Lofgren. 

[No response.] 

The CLERK. Ms. Jackson Lee. 

[No response.] 

The CLERK. Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

[No response.] 

The CLERK. Mr. Weiner. 

[No response.] 

The CLERK. Mr. Schiff. 

[No response.] 

The CLERK. Ms. Sa ́nchez. 

[No response.] 

The CLERK. Mr. Van Hollen. 

[No response.] 

The CLERK. Ms. Wasserman Schultz. 

[No response.] 

The CLERK. Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote. The gentleman from South Carolina, Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. 

Chairman SENSENBRENNER. The gentleman from Texas, Mr. 

Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? The gentleman from California, Mr. Issa. 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. On the Lungren amendment, yes. 

Chairman SENSENBRENNER. The other gentleman from California, Mr. Gallegly. 

Mr. GALLEGLY. Yes. 

The CLERK. Mr. Gallegly, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote? If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 17 ayes and 2 nays. 

Chairman SENSENBRENNER. The amendment is agreed to. 

Are there further amendments? If there are no further amendments——

Mr. FLAKE. Mr. Chairman. 


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Chairman SENSENBRENNER. For what purpose does the gentleman from Arizona seek recognition? 

Mr. FEENEY. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. Who has an amendment at the 

desk? The Clerk will report the Feeney amendment. 

Mr. FEENEY. The gentleman from Arizona sought recognition but 

I do have an amendment at the desk. 

Chairman SENSENBRENNER. Does the gentleman from Arizona 

have an amendment? 

I was talking about the other gentleman from Arizona. You 

sought recognition. For what purpose? 

Mr. FLAKE. I will defer to the other gentleman from Arizona. 

Chairman SENSENBRENNER. Let’s go first to the Feeney amendment. The Clerk will report the Feeney amendment. 

The CLERK. Amendment to H.R. 5825 offered by Mr. Feeney of 

Florida. 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and the gentleman from Florida is recognized 

for 5 minutes. 

[The amendment follows:] 


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Mr. FEENEY. Thank you. This is an important bill to give the 

proper tools to our law enforcement and Intelligence Community to 

detect and prevent terrorism. However, there are some legitimate 

fourth amendment concerns, especially when you only have one 

branch of government, the executive, involved in reviewing its own 

policies without another branch being involved. 

What this amendment does is to provide for reporting to Congress on an annual basis so we can have better congressional oversight on the treatment of U.S. persons information for several 

years and would help Congress see whether the changes that we 

have made with this bill have had the desired effects. Specifically, 

the report on an annual basis would be to the U.S. Intelligence 

Committee and the United States House, the United States Senate. 

It would require a description of the minimization procedures implemented by the NSA to protect the information pertaining to U.S. 

persons, the number of significant violations of those procedures, 

and summary descriptions for each and every one of those violations. 

Mr. Chairman, I think this requirement would permit Congress 

to conduct efficient and effective oversight of this program and 

would commend it to my colleagues. 

Chairman SENSENBRENNER. Does the gentleman yield back? The 

question is on agreeing to the Feeney amendment. 

Those in favor say aye. 

Opposed, no. 

The ayes appear to have it. The ayes have it and the amendment 

is agreed to. 

We now have how many votes? Three votes. Without objection, 

the committee stands recessed until immediately after the third 

vote. Members should please come back promptly and the committee stands in recess. 

[Recess.] 

Chairman SENSENBRENNER. The committee will be in order. A 

working quorum is present. 

When the committee recessed for the votes, pending was a motion by the Chair to report the bill H.R. 5825 favorably. The bill 

was considered as read and open for amendment at any point and 

several amendments had been agreed to. Are there further amendments? 

Mr. SCHIFF. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from California, Mr. Schiff, seek recognition? 

Mr. SCHIFF. I have an amendment at the desk. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

The CLERK. Amendment in the nature of a substitute to H.R. 

5825 offered by Mr. Schiff of California and Mr. Flake of Arizona: 

Strike all after the enacting clause and insert the following. 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and the gentleman from California is recognized 

for 5 minutes. 

[The amendment follows:] 


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Mr. SCHIFF. Mr. Chairman, Ranking Member, members of the 

committee, today I offer a bipartisan amendment—— Chairman SENSENBRENNER. The committee will be in order and 

the chatter in the room shall adjourn. The committee will not adjourn. 

The gentleman from California may continue. 

Mr. SCHIFF. Thank you, Mr. Chairman. Today I offer a bipartisan amendment with Representative Flake of Arizona to address 

the issue before us today. This amendment recognizes two important principles: first, that our government must have all the tools 

necessary and all the authority required to pursue al Qaeda and 

other terrorists who would seek to harm our country; and second, 

that we are a Nation of laws and that concern over administrative 

burden as we use all the tools available to fight terrorism should 

not supersede devotion to the Constitution and the expectation of 

privacy of each United States citizen. 

While the President possesses the inherent authority to engage 

in electronic surveillance of the enemy outside the country, Congress possesses the authority to regulate foreign intelligence surveillance within the United States. And in fact, Congress has spoken in this area through the Foreign Intelligence Surveillance Act. 

When Congress passed this statute it intended to provide the 

sole authority for such surveillance on American soil. Our amendment reinforces existing law, that the government must obtain a 

court order when U.S. persons are targeted or surveillance occurs 

in the United States. 

When Mr. Flake and I questioned the Attorney General when he 

testified before this committee in April, he would not rule out having the pure authority without going to court to tap the calls between two Americans on American soil. 

So what is the limiting principle if this program can change from 

day to day without the input of Congress? The only limiting principle is the good faith of the executive, which, when the executive 

shows that it is infallible, might be a sufficient limiting principle. 

But the executive is no more infallible than we are here in Congress, and so we have a role to play. 

The Schiff-Flake substitute responds to these issues that have 

been raised by officials at NSA and the Department of Justice over 

the last several months in testimony to Congress. First, addressing 

the point Mr. Deitz made in committee, we explicitly make clear 

that foreign-to-foreign communications are outside of FISA and 

don’t require court order. If a communication to which a U.S. person is a party is inadvertently intercepted, minimization procedures approved by the Attorney General should be followed. 

Second, we extend the FISA emergency exception from 72 hours 

to 168 hours, 7 days. This permits law enforcement to initiate surveillance in an emergency situation before going to the FISA court 

for a warrant. 

If the current 72 hours has been sufficient for the 5 years since 

9/11, surely 7 days can be considered a significant improvement. 

This authority can also be used to thwart imminent attacks. 

Third, we expand the FISA wartime exception to provide that, in 

addition to a declaration of war by Congress, that the authorization 

to use military force can also trigger the FISA wartime exception 

for the purposes of allowing 15 days of warrantless surveillance if 


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there is an explicit provision authorizing electronic surveillance 

under that FISA provision. 

Finally, our amendment streamlines the FISA application process, provides authorization to appoint additional FISA judges and 

additional personnel at DOJ, the FBI and NSA to ensure speed and 

agility in drafting and considering FISA order applications. 

Electronic surveillance of al Qaeda operatives and others seeking 

to harm our country must continue. It simply can and should comply with FISA, and I urge my colleagues to support this amendment. 

Let me go through very quickly the specific provisions. First, the 

authorization to use military force is not an exception to FISA. Second, we reiterate that FISA is the exclusive means by which domestic electronic surveillance for intelligence purposes can be conducted. Third, we require information to be provided to the Intelligence and Judiciary Committees, in classified form, on the TSP 

program or any other program involving electronic surveillance of 

U.S. persons in the United States for foreign intelligence that is 

outside of FISA. 

Fifth, we authorize the Chief Justice of the United States to appoint additional FISA court judges if necessary. 

Six, we streamline the FISA application process. 

Seventh, we authorize emergency electronic surveillance for up to 

7 days. 

Eighth, we enhance the surveillance authority in wartime by providing that FISA, through the authorization, use military force 

when the explicit references made can be triggered. 

Ninth, we make it clear that the acquisition of communications 

between foreigner to foreigner——

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. SCHIFF. Would the gentleman give me 30 additional seconds? 

Finally, tenth, we authorize the Foreign Intelligence Surveillance 

Court, DOJ, FBI, and NSA to hire additional staff for the preparation and consideration of applications for electronic surveillance. 

These are the ten steps that are outlined in the substitute bill, 

and I would urge its favorable consideration. 

Chairman SENSENBRENNER. The time of the gentleman has once 

again expired. For what purposes does the gentleman from Utah, 

Mr. Cannon, seek recognition? 

Mr. CANNON. Strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CANNON. Thank you, Mr. Chairman. I am just trying to understand this amendment. And if the gentleman from California 

would indulge me, looking at page 5, line 9, line starting (a), Exclusive Means. Would the gentleman mind looking that through and 

explaining it, because it sounds to me like this does extraordinarily 

change the nature of what we are doing here. 

Mr. SCHIFF. Would you restate the provision you are referring to? 

Mr. CANNON. On page 5 of your amendment, line 9, paren (a), 

Exclusive Means: Notwithstanding any other provision of law the 

Foreign Intelligence Surveillance Act of 1978, et cetera, shall be the 

exclusive means by which electronic surveillance for the purposes 

of gathering foreign intelligence information may be conducted. 


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Mr. SCHIFF. Yes. As I was relating, we are reiterating that the 

Foreign Intelligence Surveillance Act is the exclusive means by 

which domestic electronic surveillance can be conducted. This is designed to distinguished between foreign-to-foreign communications 

which are within the prerogative of the executive and which Mr. 

Deitz testified were problematic under FISA because if the communication touched down in the United States or was gathered in the 

United States, notwithstanding the fact it was between two foreigners on foreign soil, that FISA was implicated. We want to make 

it clear FISA is not implicated in those circumstances. 

But where we are talking about the surveillance of Americans on 

American soil, that if it is not authorized by FISA, it is not authorized. Because none of us on this committee know what is in the 

President’s terrorist surveillance program. 

Mr. CANNON. Reclaiming my time. If you have an American citizen who has decided to become a terrorist and is residing in a 

Middle Eastern country but communicates by means of the Internet, a voice on the Internet, and uses a server that is in the United 

States, you are saying that that communication can’t be intercepted except under FISA. 

Mr. SCHIFF. No. What I am saying is that when you have surveillance of Americans on American soil, that that is exclusively within 

FISA. So if we are conducting surveillance today under the TSP 

program, it needs to be brought under FISA if we are surveilling 

Americans on American soil. 

Mr. CANNON. Reclaiming my time and looking forward to help 

understand this. Section 4 Disclosure Requirements, line 23 of page 

5, just skip a paragraph, it says: Report—as soon as practicable, et 

cetera, the President shall submit to the Permanent Select Committee on Intelligence and the Committee on the Judiciary of the 

House of Representatives, and for the House and also for the Senate, and then it lists substantial things that need to be—do we 

want to change the nature of this committee? And in my office, I 

have a new office in Rayburn, I have a safe that is locked open so 

we won’t get something locked in. Are we all going to have to have 

safes and use this committee and use information in this committee the way the Intelligence Committees operate? 

Mr. SCHIFF. If the gentleman would yield. No, I wouldn’t recommend anyone bring classified information out of the classified 

setting. What this provides, though, is that if we are the Judiciary 

Committee and we have jurisdiction over the U.S. Constitution and 

we are not informed of when surveillance is being done of Americans without a court order, we cannot uphold our constitutional 

duty to ensure that its provisions are being adhered to. 

Now, members of this committee have gone to classified briefings, some members decided not to go. Every member has to make 

that decision for themselves. But for my own part, if I am being 

asked to authorize a program or if I am being asked to amend 

FISA or make wholesale changes to the law without even knowing 

why they are necessary, I don’t think I can do my constitutional 

duty. So I do think that things that are within——

Mr. CANNON. Reclaiming my time, since I think it is quickly advancing. Let me just say that we are sort of like an appellate court 

here. I don’t think we ought to be involved in the facts as—particularly as suggested by this amendment. I think this amendment 


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does substantial damage to the underlying bill, and I encourage my 

colleagues to reject this amendment and I yield back the balance 

of my time. 

Chairman SENSENBRENNER. The question is on the—for what 

purposes does—— Mr. NADLER. Strike the last word. 

I will be very brief. I will say this provision does not do substantial damage. It basically restates current law and says with respect 

to people in the United States, FISA is exclusive. 

I yield back. 

Chairman SENSENBRENNER. For what purposes does the gentleman from Arizona seek recognition? 

Mr. FLAKE. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. FLAKE. I thank the Chairman. Let me just state it from my 

perspective from this side of the aisle. I believe that the war on terrorism is going to be won or lost through the gathering of intelligence. That is the most important thing we can do. The last thing 

I want to do is to hamstring the administration in ways that they 

shouldn’t be hamstrung. 

I believe—and none of us know what is going on in the TSP—

but my guess is it is some pretty important stuff and we ought to 

be glad that some intelligence there is being gathered. But for 

those of us who believe that there is likely vital intelligence being 

gathered, what happens 2 years from now? Are we to assume the 

war on terrorism is going to be won in the next 2 years? Because 

if it isn’t, unless we have institutionalized this program under 

FISA, the next President could simply say, I don’t want to exercise 

my Article II powers, and this program is done away with. What 

kind of gaps would that leave in our intelligence? 

I have yet to hear a persuasive case why we can’t institutionalize 

the TSP or any other surveillance programs that are going on 

under FISA. And I think that is the effort here, that is what we 

are trying to do. We simply cannot continue to have two programs, 

or more than two, one run on the books and one run off the books. 

And unless there is some kind of exclusivity provision that, Mr. 

Cannon, you alluded to or pointed out, unless we have an exclusivity provision that actually works, we will continue to have an 

on-the-book program and an off-the-book program. And we can 

make all kind of changes, we can spend until tomorrow this time, 

or all week, making changes to streamline FISA or to make it more 

nimble or to react better, and it will mean nothing because if the 

President simply says, I have authority to go outside of it, then he 

will go outside of it and we won’t even know what is going on. 

Are we a committee of oversight or not? Do we have some jurisdiction here? I would argue that we do. And if we do, we ought to 

ensure that the tools are given for the President to conduct necessary surveillance. And that is what we have attempted to do 

within this. 

Mr. Schiff did a great job explaining what the bill is about. It 

simply makes it easier. We have been given compelling evidence 

that FISA needs to be changed. There are some changes; we wish 

we would have heard about these changes sooner, I might add, but 

changes need to be made. We are willing to make those changes. 


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But what I think we should not be willing to do is to concede that 

we will have a program run off the books. 

I can say, as one who believes that we need to gather intelligence, I worry tremendously about what will happen 2 years from 

now if we haven’t institutionalized this program, if we leave it up 

to the next President to decide whether or not we ought to be gathering this intelligence. So with that, I yield back. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Michigan seek recognition? 

Mr. CONYERS. I rise in support of—— Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CONYERS. I will be brief because I think when we get 

through with the several amendments, we will be able to dispose 

of this, hopefully, successfully and we will be finished for the day. 

So I join with those who compliment the gentleman from California 

and the gentleman from Arizona on some reasonableness here. 

The most important thing to me is that we extend the emergency 

provision from 72 hours to 168 hours; from 3 days to 7 days. We 

make it clear that there is an exclusivity provision in this measure 

that means that domestic electronic surveillance for foreign intelligence purposes will be controlled under FISA. It will be specific. 

And we also make clear that the authorization for the use of military force is not an exception. 

We increase the forces here. We put in more manpower, we improve the system, we try to get more personnel for speed and agility. And for that reason, I urge the members on both sides of the 

committee to support this substitute, and I return the unused time. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment in the nature of a substitute offered by the gentleman 

from California, Mr. Schiff. 

Those in favor will say aye; opposed, no. 

The noes appear to have it. 

Record vote is ordered. 

Those in favor of the Schiff amendment in the nature of a substitute will, as your name is called, answer aye. 

Those opposed, no. 

And the Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. No. 

The CLERK. Mr. Hyde, no. 

Mr. Coble. 

[No response.] 

The CLERK. Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. 

Mr. Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. 

Mr. Goodlatte. 

[No response.] 

The CLERK. Mr. Chabot. 

[No response.] 

The CLERK. Mr. Chabot. 

Mr. CHABOT. No. 


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The CLERK. Mr. Chabot, no. 

The CLERK. Mr. Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. 

Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Mr. Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus, no. 

Mr. Inglis. 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Mr. Flake. 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake, aye. 

Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence, no. 

Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Mr. Feeney. 

The CLERK. Mr. Feeney, no. 

Mr. Franks. 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. 

Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. 

Mr. Conyers. 

Mr. CONYERS. Ate. 

The CLERK. Mr. Conyers, aye. 

Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman, aye. 

Mr. Boucher. 

Mr. BOUCHER. Aye. 


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The CLERK. Mr. Boucher, aye. 

Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. 

Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. 

Ms. Jackson Lee. 

[No response.] 

The CLERK. Ms. Waters. 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. 

Mr. Meehan. 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. 

Mr. Delahunt. 

Mr. DELAHUNT. Aye. 

The CLERK. Mr. Delahunt, aye. 

Mr. Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler, aye. 

Mr. Weiner. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. 

Mr. Chairman. 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote. The gentleman from North Carolina, Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte, no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their vote. If not, the Clerk will report. 


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For what purpose does the gentlewoman from Florida, Ms. 

Wasserman Schultz, seek recognition? 

Mrs. WASSERMAN SCHULTZ. How am I recorded? 

The CLERK. Mr. Chairman, Ms. Wasserman Schultz is recorded 

as aye. 

Mr. Chairman, there are 18 ayes and 20 nays. 

Chairman SENSENBRENNER. The amendment in the nature of a 

substitute is not agreed to. 

[Intervening business.] 

Chairman SENSENBRENNER. The unfinished business of the committee is the motion to report the bill, 5825. 

Mr. CANNON. Mr. Chairman. 

Chairman SENSENBRENNER. When the committee broke for the 

last series of votes, the Chair made a motion to report the bill favorably. The bill was considered as read and open for amendment 

at any point. Several amendments had been adopted. Are there further amendments? 

Mr. CANNON. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from——

Mr. CANNON. Mr. Chairman, I have an amendment at the desk. 

Mr. NADLER. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. A point of order is reserved. The 

Clerk will report the amendment. 

The CLERK. Mr. Chairman, I have two Cannon amendments. 

Chairman SENSENBRENNER. Which one does the gentleman wish 

reported? 

Mr. CANNON. I think we shall show you which amendment is appropriate. 

Chairman SENSENBRENNER. Well, the Clerk has to report the 

amendment. 

Mr. CANNON. They have the appropriate amendment. 

Chairman SENSENBRENNER. There are two amendments, gentleman from Utah. Which one do you wish to offer? 

Mr. CANNON. The one that the clerk has, is now passing out. 

The CLERK. Amendment to H.R. 5825 offered by Mr. Cannon of 

Utah. Page 18, after line three insert the following new section. 

Section 10 compliance with court orders and——

[The amendment follows:] 


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Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read and subject to the reservation of the gentleman 

from New York. The gentleman from Utah is recognized for 5 minutes. 

Mr. CANNON. Thank you, Mr. Chairman. The debate before us 

centers on what the legitimate roles of Congress and the executive 

branch are in terms of foreign policy and intelligence gathering 

matters. It is an issue that goes to the heart of the Constitution. 

Mr. NADLER. Mr. Chairman, I cannot hear the gentleman. 

Mr. CANNON. Is it the mike that is inadequate, my voice, or too 

much noise in the background? I can’t hear you. 

The Constitution leaves little doubt that the President is expected to have the primary role of conducting foreign policy, but 

Congress has a role and the debate today indulges us in defining 

that role. This amendment does not delve into the constitutional 

relationship between Congress and the Executive. This amendment 

deals with an issue of fairness. It deals with the issue of whether 

individuals or companies that comply with government orders are 

liable to third parties for following these orders. 

This amendment would eliminate the 60-plus lawsuits that have 

been filed because companies complied with government orders. 

Absent an effective immunity provision that allows a company to 

avoid these legal quagmires, an individual or company will be reluctant to cooperate with any authorized government surveillance 

program, and that will severely undercut this country’s terror fighting capabilities and the safety of our constituents. Should these 

claims proceed to judgment, the financial liabilities could add up to 

hundreds of billions of dollars, enough to destroy any industry. Although I do not believe these suits will succeed, the defense costs 

alone will be considerable. But what is worse is the chilling effect 

on compliance for future requests. We can argue what the law is, 

but we all agree that we should encourage compliance with our 

laws. 

This amendment will separate questionable litigation from a national security imperative and focuses our attention where it 

should be, which is what is constitutionally allowed. If the overall 

program is illegal or unconstitutional, that is for us and the courts 

to decide. Judges who are sought out in a forum shopping frenzy 

should not issue decisions that could undermine our protection 

from a future terrorist attack through the revelation of classified 

sources or methods. 

If you oppose the program administered by this administration, 

if you don’t believe in the constitutional theories regarding the executive’s authority, that is an issue for discussion. That is our right 

as Members of Congress to debate. But it does not relate to this 

amendment. 

I urge support of this amendment, which will provide liability 

protection for those who comply with the certification from the Attorney General. I reserve the balance of my time. I yield back. 

Chairman SENSENBRENNER. Does the gentleman from New York 

insist on his point of order? 

Mr. NADLER. Yes, I do. 

Chairman SENSENBRENNER. The gentleman will state his point of 

order. 


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Mr. NADLER. Mr. Chairman, I raise a point of order against the 

amendment because it is not germane to the bill. This amendment 

would exempt from liability any individual or corporation for any 

activity arising from any intelligence program certified by the Attorney General to be intended to protect the United States from a 

terrorist attack, not just FISA. The amendment is nongermane for 

several reasons. 

First, the bill is limited to the Foreign Intelligence Surveillance 

Act only and does not extend to any other intelligence program 

that may arise, as does this amendment. 

Second, the underlying bill does not pertain to or raise any liability issues arising under intelligence programs. In these two regards 

the amendment introduces new issues outside the scope of the bill 

and, as such, is nongermane. 

Chairman SENSENBRENNER. The Chair is prepared to rule. The 

underlying bill pertains only to FISA. The amendment by the gentleman from Utah extends liability protection to private parties for, 

quote, an activity arising from or relating to the provision of an element of the Intelligence Community, unquote. As such, the amendment exceeds the scope of the underlying bill and is thus nongermane, and the Chair sustains the point of order. 

Are there further amendments. 

Mr. CANNON. Mr. Chairman, I have an amendment at the desk. 

It is the other amendment. 

Chairman SENSENBRENNER. The Clerk will report the other 

amendment. 

The CLERK. Amendment to H.R. 5820. 

Mr. NADLER. Mr. Chairman, I reserve a point of order on this 

amendment. 

Chairman SENSENBRENNER. The point order is reserved. 

The CLERK. Offered by Mr. Cannon of Utah. Page 18 after line 

three insert the following new section. Section 10. 

[The amendment follows:] 


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Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read, and the gentleman from Utah is recognized for 

5 minutes subject to the reservation of the gentleman from New 

York. 

Mr. CANNON. This amendment is similar to the prior amendment 

but it strikes out the language beginning on the latter part of line 

9, ‘‘the provision,’’ to ‘‘and ending on,’’ as you will see in the amendment that is being passed out. And I think that that goes to the 

heart of the gentleman’s concern about germaneness, and I move 

its favorable passage. 

Chairman SENSENBRENNER. Does the gentleman from New York 

insist on his point of order? 

Mr. NADLER. Yes, Mr. Chairman, I do. 

Chairman SENSENBRENNER. The gentleman will state his point of 

order. 

Mr. NADLER. Mr. Chairman, it is the same point of order as the 

other amendment. The change in the amendment does not cure the 

problem. It still says against any person for an activity arising 

from or relating to any alleged intelligence program involving electronic surveillance, the Attorney General, et cetera. Whether or not 

it is under FISA, so that, and remember, we did not make FISA 

exclusive in the underlying bill as some of us wanted to. So there 

are or could be intelligence programs outside of FISA which fall 

under the scope of this amendment which do not fall within the 

scope of the bill. Therefore, the bill, the amendment exceeds the 

scope of the bill. 

Chairman SENSENBRENNER. The Chair is prepared to rule. 

Mr. NADLER. And is therefore not germane. 

Chairman SENSENBRENNER. The Chair is prepared to rule. The 

Chair does not believe that the doctored amendment that is before 

us exceeds the scope of the bill because on page two, lines 8 

through 13, inclusive, the term electronic surveillance as defined is 

the meaning given the term by the Foreign Intelligence Surveillance Act, as amended. So the Chair overrules the point of order. 

Mr. SCOTT. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Virginia seek recognition? 

Mr. SCOTT. To raise another point of order that this bill has a 

removal clause in it under page two, line three that isn’t part of 

the original bill. 

Chairman SENSENBRENNER. Well, that point of order is not timely because it was raised and not reserved after the gentleman from 

Utah was recognized to explain the amendment. 

The question is on the amendment offered by the gentleman from 

Utah, Mr. Cannon. Those in favor will say aye. Opposed, no. The 

ayes appear to have it. The ayes have it and the amendment is 

agreed to. 

Mr. WATT. Recorded vote, Mr. Chairman. 

Chairman SENSENBRENNER. A recorded vote has been requested 

by the gentleman from North Carolina. Those in favor of the 

amendment offered by the gentleman from Utah, Mr. Cannon, will, 

as your names are called, answer aye. Those opposed, no. And the 

Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. Aye. 


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The CLERK. Mr. Hyde votes aye. 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble votes aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith votes aye. 

Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly votes aye. 

Mr. Goodlatte. 

[No response.] 

The CLERK.Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot votes aye. 

Mr. Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren votes aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins votes aye. 

Mr. Cannon. 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon votes aye. 

Mr. Bachus. 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus votes aye. 

Mr. Inglis. 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis votes aye. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler votes aye. 

Mr. Green. 

[No response.] 

The CLERK. Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa votes aye. 

Mr. Flake. 

Mr. FLAKE. Aye. 

The CLERK. Mr. Flake votes aye. 

Mr. Pence. 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence votes aye. 

Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes votes aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King votes aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney votes aye. 


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Mr. Franks. 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks votes aye. 

Mr. Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert votes aye. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers votes no. 

Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman votes no. 

Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler votes no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott votes no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt votes no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren votes no. 

Ms. Jackson Lee. 

[No response.] 

The CLERK. Ms. Waters. 

Ms. WATERS. No. 

The CLERK. Ms. Waters votes no. 

Mr. Meehan. 

Mr. MEEHAN. No. 

The CLERK. Mr. Meehan votes no. 

Mr. Delahunt. 

Mr. DELAHUNT. No. 

The CLERK. Mr. Delahunt votes no. 

Mr. Wexler. 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler votes no. 

Mr. Weiner. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner votes no. 

Mr. Schiff. 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff votes no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez votes no. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen votes no. 

Ms. Wasserman Schultz. 

[No response.] 

The CLERK. Mr. Chairman. 


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Chairman SENSENBRENNER. Aye. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote. Gentleman from Wisconsin, Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Chairman SENSENBRENNER. Gentleman from Virginia, Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Ms. JACKSON LEE. Mr. Chairman. 

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms. 

Jackson Lee. 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee, no. 

Chairman SENSENBRENNER. The Clerk will report. 

The CLERK. Mr. Chairman, there are 22 ayes and 16 nays. 

Chairman SENSENBRENNER. Then the amendment is agreed to. 

Are there further amendments? 

Ms. JACKSON LEE. Mr. Chairman, I have an amendment at the 

desk. 

Chairman SENSENBRENNER. The gentlewoman from Texas has an 

amendment at the desk which will the Clerk will report. 

Mr. SMITH. Mr. Chairman, I reserve a point of order. 

Chairman SENSENBRENNER. A point of order is reserved by the 

gentleman from Texas. 

The CLERK. Amendment to H.R. 5825, offered by Ms. Jackson 

Lee of Texas. Strike section 9(a) on page 17, lines one through 

three and insert the following: One, in subsection (a) one by striking the house permanent select Committee on Intelligence and all 

that follows through of the Senate and inserting——

Ms. JACKSON LEE. I am sorry. I think you have the wrong 

amendment. This has to do with the inclusion the judiciary committee. 001 X M L. Section 11. 

The CLERK. Amendment to H.R. 5825, offered by Ms. Jackson 

Lee. At the end of the bill add the following new section, section 

11 reiteration of FISA as executive authorization of electronic surveillance for foreign intelligence purposes, subsection (a), in general 

notwithstanding——

[The information follows:] 


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Chairman SENSENBRENNER. Subject to the reservation of the gentleman from Texas, the gentlewoman from Texas is recognized for 

5 minutes. 

Ms. JACKSON LEE. I thank the distinguished chairman. I am 

going to take a little bit of my time. This is a very simple amendment. 

Mr. SCOTT. Mr. Chairman, has the amendment been passed out? 

Chairman SENSENBRENNER. I have it. 

Mr. WATT. We don’t. 

Ms. JACKSON LEE. Section 11. She read the correct amendment. 

Chairman SENSENBRENNER. Does the gentleman wish to have 

the Clerk rereport the amendment? 

Mr. SCOTT. I think it is on the way. No, Mr. Chairman. I think 

it is on the way now. We just hadn’t received it. So I’ll withdraw 

my reservation. 

Chairman SENSENBRENNER. The gentlewoman from Texas is recognized for 5 minutes subject to the reservation. 

Ms. JACKSON LEE. Mr. Chairman, if I might, I want to make sure 

they have the correct amendment. It is an amendment to—yes, 

thank you. The amendment presently before the members reiterates that FISA is the exclusive procedure and authority for wiretapping Americans to gather foreign intelligence. In the absence of 

the reaffirmation of this critically important principle, H.R. 5825 

would have the unacceptable consequence of rewarding the President’s refusal to follow FISA by exempting him from following 

these procedures. The effect of this would be to allow any President 

to make up his own rules. This would make tangible President Nixon’s 1977 claim to David Frost, when the President does it it means 

that it is not illegal. 

Without my amendment, Mr. Chairman, H.R. 5825 would undo 

the Congress manifest intent in passing FISA which was designed 

to curb the practice by which the executive branch may conduct 

warrantless electronic surveillance on its own unilateral determination. It is more than a truism that real security for the American 

people comes not from deferring to the President, but from preserving the separation of powers. My amendment does precisely 

that and is for this reason worthy of support. I would ask my colleagues to leave the rights of the American people within the protection of the independent Federal judiciary, and ask my colleagues 

to support the amendment. 

Chairman SENSENBRENNER. Does the gentleman from Texas insist on his point of order? 

Mr. SMITH. Mr. Chairman, I’ll withdraw my point of order. 

Chairman SENSENBRENNER. Before recognizing Mr. Lungren, let 

me say that the next votes are anticipated on the House floor about 

5:30. The Rules Committee will be meeting on the immigration 

bills that will be coming up in the House tomorrow. If we do not 

get this bill reported out by 5:30 then we will reconvene here at 

7:00 tonight to finish our work on this bill. Members are advised 

to temper their remarks if they don’t want to come back. 

For what purpose does the gentleman from California seek recognition? 

Mr. LUNGREN. Mr. Chairman, in opposition to the amendment. 

Chairman SENSENBRENNER. And the gentleman’s recognized for 

5 minutes. 


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Mr. LUNGREN. I will temper my remarks if possible. Mr. Chairman, this amendment, as I read it, would require all electronic surveillance to be done under FISA. As such, it is so broadly drafted 

that it could prevent our soldiers from intercepting battlefield communications in Iraq or al Qaeda phone calls originating outside the 

United States to persons inside the U.S. because it could do grave 

damage to the safety of our military and our ability to detect and 

deter terrorist threats, even though that may not be intent of the 

gentlelady from Texas, I would urge my colleagues not only to look 

at this amendment carefully but to oppose it. 

The amendment is over broad and could prohibit the intercept of 

enemy communications on the battlefield. As drafted, the amendment would require all electronic surveillance to be conducted pursuant to FISA. The FISA definition of electronic surveillance sets 

forth four circumstances under which the government must obtain 

a warrant in order to intercept communications. This amendment 

would mean that those four circumstances are the only means by 

which the executive branch may obtain any electronic surveillance. 

By implication, any other electronic surveillance which does not fall 

within those four circumstances would be prohibited. Thus, if an 

insurgent in Iraq uses a cell phone to communicate with his terrorist friends and that call is the requisite nexus with the United 

States, our military would be required to obtain a FISA warrant 

to intercept the call or any such interception would be illegal. 

I don’t believe that is what we intend, and I certainty can’t imagine that we intend our soldiers to obtain FISA warrants before engaging in that activity. Additionally, if the call does not have the 

requisite FISA nexus, any interception would be illegal since FISA 

would be exclusive means, according to the terms of the amendment. I am certain that is not what the drafters of the amendment 

intended; however, that is what we have here. 

The amendment also impermissibly restricts the President’s recognized inherent authority to collect intelligence needed to protect 

the U.S. The amendment also hamstrings the Nation’s traditional 

longstanding inherent constitutional authority as Commander in 

Chief. The President’s traditional and longstanding inherent constitutional authority to collect the intelligence needed to protect our 

Nation. 

As I have tried to point out from time to time, as we have dealt 

with this issue from the beginning of our republic and throughout 

recent history, Presidents have acted pursuant to their inherent 

authority to collect foreign intelligence without a warrant. Congress has acknowledged repeatedly that such authority exists. Our 

Federal courts have repeatedly reaffirmed the power of the President to act independent of Congressional authorization in the area 

of foreign intelligence. The FISA court itself has recognized this. 

No one can serious doubt that framers vested in the Commander 

in Chief all authority inherent to protect our Nation and citizens 

from foreign threats. In reliance on this constitutional principle 

Presidents, Democrat and Republican, throughout history have utilized their inherent authority to collect foreign intelligence information within the U.S. using warrantless surveillance. Beginning in 

at least 1940 Presidents Roosevelt, Truman, Johnson and Carter, 

as well as Republican Presidents, ordered warrantless wiretaps to 

protect our citizens against spies, saboteurs and foreign subverVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00145 Fmt 6659 Sfmt 6601 E:\HR\OC\HR680P2.XXX HR680P2

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sives. This is not and should not be a partisan principle. It is one 

that recognize the need of Presidents to act with deliberate speed 

and in keeping with their constitutional responsibilities to protect 

our citizens as they have in the past from Nazi saboteurs, Russian 

spies and the likes of the terrorists that we see today who seek to 

do harm against the United States. 

Indeed, Presidents of both parties have recognized the importance of the Executive’s inherent authority. While FISA itself was 

first debated in 1978, Attorney General Griffin Bell made it clear 

that President Carter acknowledged and intended to preserve his 

inherent authority to protect Americans against foreign threats. 

Bell testified that the FISA bill Congress had drafted failed to recognize the President’s inherent authority, but that the regulation 

did not and indeed could not take away the power from the President under the Constitution. President Clinton’s Justice Department apparently took the same view. Jamie Gorelich, Deputy Attorney General in the Clinton administration, testified in 1994 during FISA reauthorization that the Department of Justice believes 

and case history supports the President has inherent authority to 

conduct warrantless physical searches for foreign intelligence purposes. And the long and short of it is, this amendment, if adopted, 

would change the history, would be inconsistent with the history 

of the United States and the authority of the President as recognized by Presidents, both Democrat and Republican, and Supreme 

Court decisions as well as FISA Court decisions. 

Ms. LOFGREN. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from California, Ms. Lofgren, seek recognition? 

Ms. LOFGREN. To strike the last word. 

Chairman SENSENBRENNER. The gentlewoman is recognized for 5 

minutes. 

Ms. LOFGREN. And to yield to my colleague from Texas. 

Ms. JACKSON LEE. I thank the distinguished gentlewoman. I 

hope, as my good friend from California on the other side of the 

aisle seemed to not be able to contain his glee, I would like to put 

a more serious approach and spin on this. And with all of his commentary, this is a restatement of basic existing law. And all that 

it says is that it rejects the elimination of exclusivity of the procedures of FISA to collect electronic data and electronic surveillance. 

And we have made the argument, those of us who find fault with 

this legislation, that in fact you are able to secure surveillance with 

present FISA and certain additional reform. Mr. Lungren has suggested that that is not possible and cited a litany of high commentary from Republican and Democratic Presidents. But Mr. 

Schiff provided a reasonable response to how the protection of intelligence could also include the protection of the rights of Americans. So now attempt to do it by amendment. And this amendment 

is not overbroad. It is not difficult to understand. It simply restores 

the idea of FISA being the main focus of the FISA—excuse me, of 

electronic surveillance. 

So I would indicate to my colleagues that this amendment is reasonable; it is constrained and it is serious. And unfortunately, as 

we abolish the Constitution in this particular committee at this 

time, we are not able to see the forest for the trees. And I yield 

back. 


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Mr. CANNON. Would the gentlewoman yield? 

Ms. LOFGREN. I would be happy to yield further to Mr. Schiff. 

Mr. SCHIFF. I thank the gentlewoman for yielding. I just wanted 

to state briefly that I disagree with my colleague from California’s 

legal interpretation of the breadth of this amendment. I think the 

amendment is fairly narrow. It defines the term ‘‘electronic surveillance’’ as that which is given in FISA, so it does not apply to the 

terrorists on the battlefield in some foreign country, foreign to foreign communication. It makes reference to section 1801(f) of FISA, 

which pertains to surveillance of known U.S. persons who are in 

the U.S., communications to or from a person in the U.S., communications where all intended, the sender and all intended recipients 

are in the United States. So the sections that it makes reference 

to, by and large, apply to whether the information is gathered 

through technology in the United States or of U.S. persons, so I 

think it is fairly narrow. 

I do believe that FISA is the exclusive authorization for domestic 

surveillance, and I think that is essentially what the amendment 

sets out. And I yield back. 

Ms. LOFGREN. And with that, I would yield back, Mr. Chairman. 

Chairman SENSENBRENNER. The question is on agreeing to the 

amendment offered by the gentlewoman from Texas, Ms. Jackson 

Lee. Those in favor will say aye. Those opposed, no. The noes appear to have it. The noes have it. The amendment is not agreed to. 

Are there further amendments? 

Ms. JACKSON LEE. I have an amendment at the desk. 

Chairman SENSENBRENNER. For what purpose does the gentlewoman from Texas seek recognition? 

Ms. JACKSON LEE. I have an amendment at the desk, Mr. Chairman. I am going to try and give the, it looks as if it is amendment 

358.XML. 

Chairman SENSENBRENNER. How many amendments does the 

gentlewoman from Texas have? 

Ms. JACKSON LEE. Mr. Chairman, this will be my last amendment. 

Chairman SENSENBRENNER. Okay. The Clerk will report. Point of 

order is reserved. 

The CLERK. Amendment to H.R. 5825 offered by Ms. Jackson Lee 

of Texas. Strike section 9(a) one page 17, lines one through three, 

and insert the following. In subsection (a) one——

[The amendment follows:] 


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Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The gentlewoman from Texas, subject to the 

reservation, is recognized for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. As I 

have watched the ins and outs of our hearings and this markup 

this afternoon, I can’t help but feel enormously disappointed, not 

because we are not crafty and know the ins and outs of committee 

procedures, we understand how to reconsider a vote that was fair 

and meaningful. But, of course, we have made light of what I think 

will be devastating consequences out of the military tribunal vote, 

where we now put our military soldiers in jeopardy, and this legislation, where we have rejected the fairness litmus test. 

The American people have been so terrorized and frightened by 

the representations of our government that you may be right, that 

they are swayed toward the extinguishing of their own rights, the 

loss of their own dignity, the collection of data without restraints, 

the sending of young men and women off to war without the protection of the Geneva Convention under the pretense that we would 

be safer. I beg to differ. And I think this committee has an enormous responsibility to not view this in the lightheartedness that I 

sense. 

A gentleman earlier in the debate wanted to make light of the 

Armed Services members who voted for the military tribunals. 

Well, I had information that Democrats voted for Mr. Skelton’s 

substitute, 32 to 26, but it failed. So frankly, we now will leave this 

room with the stomping of the Constitution and the ignoring of the 

Geneva Convention and the potential of detainees that happen to 

be wearing the American flag on their sleeves in more jeopardy 

than they have ever been, and we will leave this room with the 

concept of congressional oversight being literally ignored. And I 

might say that we have some competition. I know that I will get 

a response from the other side of the aisle, but we have some competition with the era of the 1950’s, because we are not listening to 

combined voices of reasons, Democrat and Republicans. 

John McCain, Senator Graham, Senator Warner, bipartisan 

voices that have raised their voices on the military tribunal and 

some who have raised their voices on the electronic surveillance. 

Because data shopping, if you will, with no understanding whether 

or not are you getting information that is not necessary, is really 

a concern. And my amendment is simply this, to add the Judiciary 

Committee to the names of the committees that would receive the 

information from the Attorney General about whether or not they 

are minimizing the amount of data that would be collected. 

So we are just simply asking that the Intelligence Committee 

and the Judiciary Committee would be the committees that the Attorney General would report to when they report about the status 

of the electronic data collection under FISA, simple, not broad, narrow, and it simply adds our jurisdiction to the responsibility of the 

Attorney General. I would hope, in a spirit of oversight and reflection of the rights of the American people, that this committee that 

has the responsibility of holding the Constitution in its hands 

would at least allow itself to be reported to as the Intelligence 

Committee is reported to. 

I would ask my colleagues to support this amendment. I yield 

back. 


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Chairman SENSENBRENNER. Does the gentleman from Texas insist upon his point of order? 

Mr. SMITH. No, Mr. Chairman, I do not insist on my point of 

order. 

Chairman SENSENBRENNER. The Chair recognizes himself for 5 

minutes in opposition to the amendment and will take it. 

Looking at this amendment, this amendment is going to jeopardize any intelligence agent and anybody in the United States or 

outside the United States that utilizes intelligence. What the gentlewoman from Texas’ amendment does is it requires that these 

highly classified reports be sent to each member of the congressional Intelligence Committees and the Committee on the Judiciary 

of both the House of Representatives and the Senate. You might as 

well send a copy to the New York Times and the Washington Post 

and every other newspaper in the country because this place is 

leaky as a sieve, and all of us know it. 

I think this amendment is a shocking amendment because this 

country will have no secrets if this amendment becomes law. 

Ms. JACKSON LEE. Will the gentleman yield? 

Chairman SENSENBRENNER. No, I won’t. 

Ms. JACKSON LEE. Well, speak for yourself because I don’t consider myself a leaky sieve. 

Chairman SENSENBRENNER. But there are plenty of leaky sieves 

around here, you know. And sending 40 copies here and one to 

each member of the Intelligence Committee and those on the other 

side of the Capitol building means that it is going to become a matter of public record, and people will die as a result of it. This 

amendment ought to be rejected. And I yield back the balance of 

my time. 

Mr. NADLER. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from New York seek recognition? 

Mr. NADLER. Strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. I just want to understand the Chairman’s objection. 

The amendment says they have got to send all this stuff to every 

member of the two Intelligence Committees and the two Judiciary 

Committees, correct? 

Chairman SENSENBRENNER. If the gentleman will yield, that is 

correct. 

Mr. NADLER. And what is the current law? 

Chairman SENSENBRENNER. The current law says that it goes to 

the Intelligence Committee as an institution and members can go 

to the Intelligence Committee and look at it. And that was one of 

the parts of the Church Commission report to try to give Congress 

oversight, but not take out an ad on the front page of the newspaper. 

Mr. NADLER. Reclaiming my time. So, in other words, when you 

say to the Intelligence Committee as an institution, it goes to the 

chairman and he or she sets up some place where members can 

look at it but not take copies; is that what you are saying? 

Chairman SENSENBRENNER. If the gentleman will yield, that is 

the current law. 


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Mr. NADLER. And if the law were changed—reclaiming my time 

again. And if the law were changed to say to the Judiciary Committee as an institution in the same way as to the Intelligence 

Committee, would you think that would be objectionable? 

Chairman SENSENBRENNER. If the gentleman will yield. 

Mr. NADLER. Yes. 

Chairman SENSENBRENNER. The answer to that question is yes, 

because members of the Judiciary Committee can walk across the 

street and see intelligence reports in the committee that the House 

has established to collect and review intelligence reports and to do 

oversight over the Intelligence Community. 

Mr. NADLER. And further, if the gentleman would yield. I am 

sorry, reclaiming my time. And under the current law, members of 

the Judiciary Committee have the same right as members of the 

Intelligence Committee to see that information at the Intelligence 

Committee office? 

Chairman SENSENBRENNER. The rules were changed, I believe 

two Congresses ago, to give us access to that type of information. 

Mr. NADLER. I thank the gentleman. I am told that that the 

rules were changed, but it is not in statute. It would be better if 

it were in the statute. But under those circumstances, I think it 

would be a good idea. 

Ms. JACKSON LEE. Would the gentleman yield for a moment 

please? 

Mr. NADLER. Yes, I yield. 

Ms. JACKSON LEE. I thank the distinguished gentleman. Again, 

I would like to put on the record that I don’t consider my colleagues here a leaking coffee pot. And I would argue that it would 

be appropriate to change existing law and I would even accept a 

friendly amendment that it be to the chairman and Ranking Member of the Judiciary Committee. But I beg to differ with the chairman’s interpretation of what kinds of leaks would occur because 

frankly, to be very honest with you, who in this room could raise 

their hand and not read a story about leaks coming from the Intelligence Committee? This is a question of oversight, and I would 

hold my colleagues to the kind of standard, the kind of standard 

that would argue for saving lives. And I would not put on my colleagues that they would jeopardize lives by going and providing intelligence to the New York Times or to the Sacramento Bee. 

And I ask my colleagues to support this amendment. I would accept a friendly amendment that would limit it to the chairs of the 

committee. 

Mr. NADLER. Thank you. Reclaiming my time. I would just—Mr. 

Chairman, I am informed that although the—we were told a moment ago that the current law is correct, the underlying bill that 

we are considering today, that we are presumably going to report, 

changes that so that that information goes not to the Intelligence 

Committee institutionally, but to every member of the Intelligence 

Committee. If that is the case, I would—then I wonder, since we 

have jurisdiction over FISA, why that shouldn’t be the Judiciary 

Committee also. 

Chairman SENSENBRENNER. If the gentleman will yield, that is 

not our jurisdiction under House Rule X. That is what the problem 

is. 


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Mr. NADLER. Wait a minute. Well, now I am really confused. 

Under the underlying Wilson bill that we are having, am I correct 

that, in fact, the information will go to every member of the Intelligence Committees? 

Chairman SENSENBRENNER. If the gentleman will yield, the answer to the question is yes, because rule X gives them oversight responsibility over this. Rule X does not give this committee oversight responsibility. 

Mr. NADLER. But we have oversight responsibility over FISA, do 

we not? 

Chairman SENSENBRENNER. If the gentleman will yield. The answer to the question is yes. But that is different than actually providing intelligence to members of this committee which is outside 

of our rule X jurisdiction. 

Mr. NADLER. Let me just say that I find what the chairman said 

a few minutes ago about keeping the number of people down who 

get this, all be it others can look at it, a useful thing. But if the 

Intelligence Committee as a whole, both Intelligence Committees, 

I don’t—I think it is a slur on the members of this committee to 

say that this committee is more of a sieve than the Intelligence 

Committee. I am not sure that either is a sieve. But I think, given 

our FISA jurisdiction, we should have the same access as the members of the Intelligence Committee. 

Chairman SENSENBRENNER. The question occurs on the amendment offered by the gentlewoman from Texas, Ms. Jackson Lee. 

Those in favor will say aye. Opposed, no. The noes appear to have 

it. The noes have it. The amendment is not agreed to. 

Mr. FLAKE. Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Flake. 

Mr. FLAKE. I have an amendment at the desk. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

Mr. FLAKE. This is a section 2 finding, and I would ask unanimous consent, given the changes that were made with the Lungren 

amendment, to place this in the appropriate place in the bill. 

Chairman SENSENBRENNER. Without objection, the modification 

referred to by the gentleman of Arizona is agreed to, and the Clerk 

will report the amendment. 

The CLERK. Amendment to H.R. 5825 offered by Mr. Flake of Arizona. Page one, after line 5 insert the following new section. Section two finding. Congress finds article I, section 8, clause 18 of the 

Constitution, known as the necessary and proper clause, grants 

Congress clear and unequivocal authority to regulate the President’s inherent power to gather foreign intelligence. 

[The amendment follows:] 


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Chairman SENSENBRENNER. The gentleman from Arizona is recognized for 5 minutes. 

Mr. FLAKE. Thank you, Mr. Chairman. This amendment simply 

states the Congressional finding that Congress has the authority to 

regulate the President’s inherent power to gather foreign intelligence. The Constitution clearly states in article I, section 8, clause 

18 that Congress shall have the power to, quote, make all laws 

which shall be necessary and proper for carrying into execution the 

foregoing powers and all other powers vested by this Constitution 

in the government of the United States in any department or officer thereof. The President’s inherent power to gather foreign intelligence is a power vested by the Constitution. And therefore, according to this clause, Congress can regulate it when it is, quote, 

necessary and proper. 

After years of abuses of wiretapping in America, where wiretapping was done by the executive branch without congressional 

regulation, Congress decided to finally create FISA under this authority. The President, at that time, agreed and signed FISA into 

law. I believe this is an important constitutional argument to make 

when talking about whether Congress can or cannot regulate the 

NSA wiretap program. 

I urge my colleagues to adopt the amendment, and I would simply state that this is, this could be termed the ‘‘we are not potted 

plants’’ amendment. It simply states that—— Mr. NADLER. Would the gentleman yield? 

Mr. FLAKE. Just 1 minute. It simply states that, and if you disagree with this amendment, apparently you might disagree with all 

of FISA because FISA was an effort to assert congressional authority after years of abuses by the executive branch. When FISA was 

implemented in 1978 the Congress agreed that Congress has the 

power to regulate the President’s actions or the President’s inherent authority. This is simply reaffirming that prerogative. And 

with that I will yield to the gentleman from New York. 

Mr. NADLER. Yeah. I commend the gentleman for his amendment. I would just ask, I would ask if he would remove the word 

‘‘inherent’’ because I don’t want to get into a debate as to whether 

the President has that inherent power under the Constitution. I 

think that power probably derives from his power as Commander 

in Chief once the Congress has declared war. It doesn’t change the 

meaning of your amendment. But it is clear that Congress is granted the clear and unequivocal power to regulate the President’s 

power to gather foreign intelligence. We don’t have to get into a 

separate debate as to where that power comes from. 

Mr. FLAKE. I would resist that change. I think we do agree that 

the President has inherent authority, but the argument here is 

does Congress have the ability to regulate it. And I don’t know that 

there is a serious question or argument about whether or not the 

President has inherent authorities as Commander in Chief. 

Mr. SCHIFF. Would the gentleman yield? 

Mr. FLAKE. I would. 

Mr. SCHIFF. I would just like to voice my agreement with my colleague from Arizona. I don’t think there is an argument about 

whether the President has inherent authority to gather foreign intelligence certainly on foreign battlefields. The President does so. 

So I see no objection to the inclusion of the term ‘‘inherent.’’ and 


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the question is whether Congress has the power to regulate that, 

particularly when it involves U.S. persons on U.S. soil. And I voice 

my support in favor of your amendment. 

Mr. FLAKE. I thank the gentleman. And reclaiming my time, 

again, this is simply stating that Congress has authority to regulate. We know the previous Congresses have asserted that authority because we have FISA and we are simply wanting to reiterate 

that. And I can’t imagine that we would at this point say no, we 

don’t have that authority and we are giving it all up, we have no 

right. That would be to say that we don’t take FISA seriously at 

all. And I know that this committee does and that this Congress 

can and does take its oversight responsibility seriously. With that, 

I yield back. 

Chairman SENSENBRENNER. Before recognizing the gentleman 

from California to speak in opposition to the amendment, the Chair 

will state that 3 minutes ago, while the potted plant from Arizona 

was waxing eloquently, we got an e-mail that there will be no more 

votes on the floor today. This was done in deference to keeping this 

committee in session. 

However, the Rules Committee is waiting upon us to grant a rule 

relative to the immigration bills, and they are currently scheduled 

at 6:15. I think they would really appreciate it if we wrapped it up 

by then. For what purpose does the——

Mr. CONYERS. Will the gentleman yield? 

Chairman SENSENBRENNER. I yield to the gentleman from Michigan. 

Mr. CONYERS. We have only one amendment. That should be 

quickly disposed of. It is an important amendment and I think that 

will close it down. 

Chairman SENSENBRENNER. Okay. The gentleman from California is recognized for 5 minutes in opposition to this amendment, 

with the admonition that the clock is running quickly. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. I have always tried to look at a clock running quickly. I rise in opposition 

to the gentleman’s amendment because this is a very, very serious 

question of constitutional law. It goes to the question of the proper 

relationship of the two branches of government established under 

article I and article II. And the gentleman refers to the necessary 

and proper clause, which I think, properly understood, means that 

Congress has the powers that are necessary and proper to carry 

out the express powers given to it in the Constitution. If the person 

has inherent power, we don’t have the right to regulate it. And that 

was stated in the FISA appellate court decision, ‘‘In Re: Sealed.’’

it does not mean we are potted plants and that we are powerless. 

If you go to the underlying understanding of the relationship between the two branches of government, the Executive and Legislative, our power remains in the power of the purse and ultimately 

the power of impeachment. Now, I realize the last one is an extreme matter and I am not suggesting we bring it out easily. But 

the framers of the Constitution appeared to try and balance the 

tension or deal with the tension that exists with the two branches 

in this area as in others, but particularly in this area, but again 

allowing us the power of the purse. We can restrict, if you will, the 

President’s use of his inherent powers by the power of the purse, 


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which is different than regulating that power as a substantive matter. 

And that is where I find a real problem with us stating this as 

a finding. I think this finding is an opinion, but I think this opinion 

is actually contrary to the greatest weight of constitutional writings 

that have taken place on that. And for that reason, I would ask 

that the gentleman’s amendment be voted down. 

Chairman SENSENBRENNER. The question is on the—— Mr. HOSTETTLER. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Indiana, Mr. Hostettler, seek recognition? 

Mr. HOSTETTLER. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. HOSTETTLER. Mr. Chairman, I won’t take near the 5 minutes. But I just want to highlight a portion of the Constitution, article I, section 8, that the gentleman from Arizona references. And 

there are a number of powers that are given to Congress in article 

I, section 8 that are enumerated and limit the power of Congress. 

But in one area that Congress has sole, explicit and exclusive authority is found in article I, section 8, I believe, subsection (14). But 

to preface that, Congress, in subsection (11) of article I, section 8 

has the power to declare war, (12), to raise and support armies, 

(13), to provide and maintain a navy, and then finally, to make 

rules for the government and regulation of the land and naval 

forces. Article I, section 8 gives sole exclusive explicit authority to 

Congress to make rules for the government and regulation of the 

land and naval forces. There are no limitations in the Constitution 

for governing and regulating the land and naval forces. This obviously was before the creation of an air force. But many of us believe that this power extends there. And so I would simply say that 

according to the Constitution and the clear wording of the Constitution, when married to the necessary and proper clause that the 

gentleman from Arizona states, that, in fact, this is exclusive authority of the Congress to regulate all elements of the land and 

naval forces. And I yield back the balance of my time. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentleman from Arizona, Mr. Flake. 

Mr. VAN HOLLEN. Mr. Chairman. 

Chairman SENSENBRENNER. Gentleman from Maryland, Mr. Van 

Hollen. 

Mr. VAN HOLLEN. I thank you, Mr. Chairman. Move to strike the 

last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. VAN HOLLEN. I thank you, Mr. Chairman. I am supporting 

the amendment by Mr. Flake. And it seems to me that our entire 

discussion on the piece of legislation that has been before the committee today with respect to electronic surveillance is premised on 

the understanding that Congress has some regulatory authority 

over this area. If not, this whole discussion and exercise has been 

for nothing because the President could totally disregard what the 

committee has done so far. And whether you are for or against the 

final bill, the final bill does attempt to regulate this area. And the 

amendment by Mr. Flake simply says we have the power to do 


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what we have already done today and what this committee may do 

in the future with regard to this area. 

Now, I would find it unbelievable that we would say that everything we have done today is, we have no authority really to do it; 

that if the President wanted, the President could totally ignore it. 

And I further find it in the realm of sort of never, never land that 

we have spent, as a committee, many, many sessions with respect 

to the PATRIOT Act where we have also debated at length regarding provisions of FISA. And if we don’t have any authority to do 

that, what is the point? And all this amendment does is underscore 

the fact that we have an important role in this area and that the 

President can’t totally ignore FISA, which is on the books today, 

that the President can’t ignore what we are about to do, the President can’t ignore what we have done in the PATRIOT Act. It is a 

simple statement, I think, of the fact that Congress has an important role to play. If you don’t support this amendment, we might 

as well pack it up and forget about the legislation we are dealing 

with today. That may be what the President would like us to do, 

but it certainly seems to me it is not what Congress should do. 

Mr. FLAKE. Will the gentleman yield? 

Mr. VAN HOLLEN. I would be happy to yield. 

Mr. FLAKE. Thank you. You said it much better than I did. But 

that is exactly what this is about. If we are going through this entire exercise today, we would, by voting down this amendment, we 

would be saying it really doesn’t matter. And I would submit that 

we will walk out that door a lot less relevant than when we walked 

in here this morning because we had that authority, that power. 

It has been recognized by previous Congresses. I think that we 

ought to recognize it today. 

The gentleman from Florida had a suggestion, and I would like 

to hear that. 

Mr. FEENEY. I would ask unanimous consent to change the language of the amendment to strike the words ‘‘and unequivocal.’’ by 

definition of a checks and balance system, our powers are equivocated, all three legislative branches, number one. And Number two, 

the power to regulate, if we had unequivocal powers to regulate, 

would basically be the power to eliminate. And the finding that the 

gentleman from Arizona has in this amendment says that the 

President does have inherent power. So I suggest if you would take 

out the word ‘‘unequivocal’’ a lot of us could support the amendment and we could move on. 

Mr. FLAKE. With that I would agree to take out——

Chairman SENSENBRENNER. Without objection, the modification 

suggested by the gentleman from Florida is agreed to. 

Mr. CONYERS. Mr. Chairman, I move the previous question. 

Chairman SENSENBRENNER. Does the gentleman move the previous question on the bill and the amendment? 

Mr. CONYERS. No, just the amendment. 

Chairman SENSENBRENNER. Without objection, the previous 

question on the amendment only is ordered. Those in favor of the 

Flake amendment will say aye. Opposed, no. The ayes appear to 

have it. The ayes have it. The amendment is agreed is. Are there 

further amendments? 

Mr. NADLER. Mr. Chairman. 


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Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Thank you, Mr. Chairman. I have an amendment 

at the desk. 

Chairman SENSENBRENNER. The Clerk will report the amendment. 

The CLERK. Amendment to H.R. 5825 offered by Mr. Nadler. Insert at the end the following new section. Section blank, preservation of remedies. Notwithstanding section 10 of this act, the court 

may consider an action—— [The amendment follows:] 

Chairman SENSENBRENNER. Without objection, the amendment is 

considered as read. The gentleman from New York is recognized for 

5 minutes. 

Mr. NADLER. Thank you. I won’t take 5 minutes, Mr. Chairman. 

We adopted an amendment by Mr. Cannon a little while ago and 

that amendment said that notwithstanding any other provision of 

law, no action may be maintained in any court, no penalty, sanction or form of remedy or relief shall be imposed by any court 

against someone for any activity relating to any alleged intelligence 

program involving electronic surveillance that the Attorney General or his designees certifies is very important because it is necessary to prevent an attack. 


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I presume the intent of that amendment was to say that as long 

as someone is acting in good faith he shouldn’t have to worry about 

criminal liability or civil sanctions or damages, and there should be 

no deterrence to someone doing what he should do as long as the 

Attorney General certified that this is a very necessary thing. I 

have no problem with that. And that is what the amendment does. 

But, I don’t think we should also say that just because the Attorney General certifies that some activity is necessary, in his opinion, 

to deter and attack, if someone thinks that that activity is unconstitutional or is illegal under the law we are passing, or under 

some other law, he shouldn’t be able to go to court and seek an injunction to say it is unconstitutional. I certainly agree with Mr. 

Cannon. No one who acts should have to worry about civil or criminal liability or damages. There should be no deterrence. And this 

amendment simply says that is fine. But if someone, if there is a 

question of constitutionality or legality, just the fact that the Attorney General said something is very necessary shouldn’t preclude 

someone from going to court and asking for an injunction based on 

the illegality or asserted illegality or unconstitutionality. It is to 

stop the Attorney General or his designee from breaking the law 

and having no judicial forum to challenge that. 

Mr. CANNON. Would the gentleman yield? 

Mr. NADLER. Sure. 

Mr. CANNON. The injunctive relief, I am sorry. I have just gotten 

this. I am trying to sort it through. The injunctive relief would lie 

against the Attorney General or against the person or corporation 

that is being asked? 

Mr. NADLER. It would lie, well, that would depend on who they 

sued. It would lie against the people carrying out whatever they allege was illegal. 

Mr. CANNON. In other words, so under your amendment, if a telephone company was providing access to information, that telephone 

company could be the object of an injunction as opposed to the 

United States? 

Mr. NADLER. Yes. They could be enjoined from future action. 

There could be no penalty against them. There could be no damages, but if what they are doing is determined by a court to be illegal, they could be told to stop doing it anymore. 

Mr. CANNON. So, it would seem to me that what you would want 

to be doing is to stop the Attorney General from asking for information, and that is where the injunction would lie, because if you 

allow lawsuits for injunctive relief against corporations, or persons, 

then you end up encouraging the kind of lawsuits that I think my 

amendment was intended to avoid. 

Mr. NADLER. No. Reclaiming my time. I think you have to allow 

a lawsuit for an injunction against whoever, whoever is carrying 

out the program or authorizes the program. Maybe it should be 

against the Attorney General. But I don’t think you can limit it to 

be against the Attorney General because if someone, a telephone 

company or somebody is doing something pursuant, because the Attorney General said it was okay to do, but it isn’t, in fact, okay to 

do legally, you have to go to court to be able to say to them it is 

illegal; you are to stop doing it. I don’t think you want to go to 

court to say to the Attorney General, tell them to stop doing it because maybe he has no authority to tell them to stop doing it. 


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But what your amendment is intended to do, I think, is to say 

that no one, if the Attorney General asked the telephone company 

to do something, they shouldn’t have to worry about being sued for 

damages; they shouldn’t have to worry about civil or criminal liability. But I think anybody always has to be held subject to a lawsuit to say, stop doing what they are doing if it is illegal. 

Mr. CANNON. Would the gentleman yield? 

Mr. NADLER. Sure. 

Mr. CANNON. My purpose in my amendment was to limit the vexatious lawsuits that cost money to defend and divert resources. I 

am not sure how I would react to something that allowed an injunction to lie against the Attorney General, but it seems to me 

that since it is not likely that these lawsuits, 60 or so that are out 

there, are likely to succeed, all this does is change the nature of 

the vexatious lawsuit. 

Mr. NADLER. Well, reclaiming my time. The 60 or so lawsuits 

that are out there are for damages and so forth. What you are really talking about is, at least for what they are doing now, probably 

one lawsuit to say it is illegal. If there is some other program 

maybe you get one or two lawsuits saying that is illegal. I don’t 

think you are going to get a lot of——

Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. SCOTT. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from California seek recognition? The gentleman from Alabama. 

Mr. BACHUS. Thank you. I would like to ask the gentleman offering the amendment, when you say the court, what court are you 

talking about? 

Mr. NADLER. I presume I am talking about the Federal court because you would go into Federal court if you were alleging 

against——

Mr. BACHUS. It doesn’t say that in your amendment. It just says 

the court. 

Mr. NADLER. Well, this doesn’t confer—it is a court of competent 

jurisdiction by definition. This does not confer jurisdiction on anybody. This simply says we are not taking it away from them. 

Mr. BACHUS. I am just saying, you know, without anything 

else——

Mr. NADLER. Would it make you happier if we said a Federal 

court of competent jurisdiction? 

Mr. BACHUS. That is the Federal court having competent jurisdiction over the——

Mr. NADLER. I am sorry. Reclaiming my time. There is a provision on section 10 in Mr. Cannon’s amendment which says, there 

is a provision that this does not contradict that says any action or 

claim described in subsection (8) that is brought in a State court 

shall be deemed to arise under the constitutional——

Mr. BACHUS. I am just saying right now you just said it would 

allow any court. 

Mr. NADLER. Federal court. Because of the provision——

Mr. BACHUS. I think if you are going to consider it ought to be 

limited to a Federal court having jurisdiction over this program——


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Mr. NADLER. I will—reclaiming my time, I think that is what it 

does, and if it will make you happy I would ask unanimous consent 

to say a Federal court with appropriate jurisdiction may consider 

that. 

Mr. BACHUS. And you say any alleged intelligence program. Does 

this mean that anyone could walk into a Federal court and allege 

that there was an intelligence program and get an injunction? 

Mr. NADLER. That language is tracked from Mr. Cannon’s 

amendment which we just voted for and it refers to the same page. 

All we are trying to say here is that we are not taking away the 

ability of a Federal court of competent jurisdiction to entertain an 

injunction. We are taking away their ability to entertain a lawsuit 

for damages or a criminal action, but we are not taking away their 

ability to entertain a lawsuit. 

Mr. BACHUS. Of course they can then get back, and if they have 

an injunction, then that would shut down the entire program. 

Mr. NADLER. If the court found it was illegal, yes, that is the 

point of it. If the court found, if the Attorney General says this is, 

or his designee, this is a very important program necessary to protect us against attack, but this program is totally illegal or unconstitutional, a Federal court of competent jurisdiction, appealable to 

the Supreme Court, ought to be able to say that. That is the point 

of the amendment. 

Ms. LOFGREN. Would the gentleman yield for a question? 

Mr. BACHUS. The gentleman will yield to the gentleman from 

Ohio. 

Mr. NADLER. It is Mr. Bachus’s time, I think. 

Mr. BACHUS. I yield to the gentleman from Ohio. 

Mr. CHABOT. I want to make sure I understand the gentleman’s 

amendment. In essence what we are saying here; thank you, Mr. 

Lungren. What the gentleman’s amendment would do is it would 

allow a program that essentially is acquiring information to prevent terrorist acts from occurring in our country, in essence is what 

it is. And you would allow, who would have standing to bring these 

types of lawsuit, if I could ask the gentleman? 

Mr. NADLER. First of all, if the gentleman would yield. 

Mr. CHABOT. It is his time. 

Mr. BACHUS. My point is, and I will just say to this committee, 

the gentleman offering the amendment, if the courts have already 

ruled that this intelligence program is constitutional, then to then 

allow any court across the country, any Federal court to shut this 

program down, I don’t know how that is appropriate, particularly 

when they are going in and you could, any Internet provider—— Mr. NADLER. Will the gentleman yield? 

Mr. BACHUS. I would yield. 

Mr. NADLER. First of all, I would ask unanimous consent to 

change the amendment to say a Federal court of competent jurisdiction to meet the gentleman’s request. 

Mr. BACHUS. That would be an improvement. 

Chairman SENSENBRENNER. Without objection, the modification 

referred to by the gentleman from New York is agreed to. 

Mr. NADLER. Thank you. And I thank the gentleman for suggesting that. Secondly, the plaintiff presumably would be someone 

who thinks his constitutional rights are being violated. And our 

system of government says that if someone thinks his constituVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00162 Fmt 6659 Sfmt 6601 E:\HR\OC\HR680P2.XXX HR680P2

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tional or other rights are being violated he has the right to go to 

court and say so. And if the court agrees with him, they can order 

that constitutional or legal violation to stop. 

Mr. BACHUS. Would you be willing to add to that no damages 

could be assessed against the utilities? 

Mr. NADLER. Yes, but I think the underlying—— Mr. BACHUS. Or some indemnification? 

Mr. NADLER. Mr. Bachus, the underlying bill says exactly that. 

The Cannon amendment said exactly that. And all I am doing is 

narrowing it by saying notwithstanding section 10, section 10 says 

no relief, no penalty, sanction or other form of remedy or relief 

shall be imposed. We are not changing that. 

Mr. BACHUS. Of course you know the utility is going to then have 

to pay attorney’s fees. 

Mr. NADLER. We are not changing that except with respect 

to——

Chairman SENSENBRENNER. The gentleman’s time has expired. 

Mr. SCOTT. Mr. Chairman. 

Ms. LOFGREN. Mr. Chairman. 

Chairman SENSENBRENNER. You guys really do want to come 

back after 7:00, don’t you? The gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. SCOTT. I speak in favor, very briefly in favor of the amendment and just point out that it doesn’t go far enough. The underlying problem with the Cannon amendment is it immunizes people 

from criminal activity. They can be breaking the law. If John 

Mitchell authorized a criminal wiretap, everybody involved would 

be immunized by the Cannon amendment, and you can’t even get 

into court to stop it. The Nadler amendment would at least let you 

get an injunction to stop it, although you can’t throw anybody in 

jail for—he said good faith. There is no good faith exception in 

here. You can know you are breaking the law. If John Mitchell authorized it you can break the law under the Cannon amendment. 

Nadler’s amendment, all that would do is just let some court stop 

the thing from going on. 

Mr. CANNON. Would the gentleman yield? 

Mr. SCOTT. I yield. 

Mr. CANNON. Dan, go ahead. 

Mr. LUNGREN. As a matter of historical fact, John Mitchell is 

now dead. But more importantly, as I understand this amendment, 

it, as a condition precedent to the right to seek injunctive relief, 

you have to have a program where the Attorney General has certified that it involves the protection of state secrets, is, was or intended to protect the U.S. from terrorist attacks. 

Mr. SCOTT. Reclaiming my time. If you have got a slimy Attorney 

General who makes a certification, everybody breaking the law 

pursuant to that certification is immunized, knowing they are 

breaking the law. 

Ms. LOFGREN. Would the gentleman yield for a question? 

Mr. LUNGREN. If he doesn’t certify, you don’t have a right. 

Mr. SCOTT. That is what the underlying amendment does. At 

least this amendment will let you stop it. 

Ms. LOFGREN. Would the gentleman yield? 


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Mr. SCOTT. I yield to gentleman from New York. 

Mr. NADLER. An Attorney General may not always be honest. He 

may not always be correct. All this says is if a future Attorney 

General authorizes a program, makes the certification that it is, 

you know, all important, and it is illegal, it is criminal, it is whatever, nobody is subject to criminal penalties. Nobody is subject to 

a damage suit. But you can go to court and seek an injunction to 

stop that program. That is what my amendment says. 

Mr. CANNON. Would the gentleman yield? 

Mr. SCOTT. I yield. 

Mr. CANNON. But I think we agree on what you are saying. But 

the implications are significant. If the Attorney General does something wrong, then the Attorney General should be subject to a suit. 

As I understand the amendment——

Mr. SCOTT. No. No. Your amendment immunized him, too. Nobody can get busted for criminal enterprise. I yield to the 

gentlelady from California. 

Ms. LOFGREN. I think this is being made a lot more complicated 

than it needs to be, frankly, because the underlying amendment, 

which I opposed, is very broad. It immunizes past and future, potentially even criminal activity. I will give you a scenario. You have 

the current Attorney General certifies a program pursuant to the 

underlying amendment. The next Attorney General finds out that 

a phone company is doing something that, in her judgment, jeopardizes the state secrets of the United States. It would allow that 

Attorney General to take, to initiate or to allow another to initiate 

injunctive relief. You can’t, under the amendment that is being offered, you can’t do anything without the Attorney General or her 

designee certifying. So you have got a constraint right there in the 

amendment. But this, the underlying amendment is so broad that 

you could actually end up endangering the security. I am sure that 

the—I know that Mr. Cannon would not have intended that, but 

the fact is you could end up endangering the security of the United 

States, even though you didn’t mean to because you have completely tied the hands. And I thank the gentleman for yielding. And 

correct me if my understanding of the amendment is incorrect. 

Mr. CANNON. Would the gentleman yield? The amendment before 

us I think is relatively simple, and the underlying amendment that 

I made earlier is quite direct. I think the consideration here, the 

concern here is that if the Attorney General authorizes a program 

that is somehow defective, there ought to be a process whereby in 

court that program can be corrected. The question is, should the 

person who gets the order from the Attorney General, that is person in the way it is described in the amendment——

Mr. SCOTT. Reclaiming our time. That is what the Nadler amendment does. There is no mechanism for getting—under your amendment there is nothing. Once it is certified everybody’s——

Mr. CANNON. If the gentleman would yield. If you look at the definition of person, the Attorney General is subject to some kind 

of——

Mr. SCOTT. Not under your amendment. I yield to the gentleman 

from New York. 

Mr. NADLER. First of all, under your amendment, there is no 

ability to change it. Nobody can go to court. Second of all——


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Chairman SENSENBRENNER. The time of the gentleman has expired. 

Mr. NADLER. Mr. Chairman, I would ask for an additional 

minute. 

Mr. CHABOT. Mr. Chairman. 

Chairman SENSENBRENNER. For what purpose does the gentleman from Ohio seek recognition? 

Mr. CHABOT. Mr. Chairman, I move the previous question. 

Chairman SENSENBRENNER. Does the gentleman move the previous question on the amendment and the bill? 

Mr. CHABOT. Yes, Mr. Chairman. 

Chairman SENSENBRENNER. The question is shall the previous 

question be ordered on the amendment and the bill. It is a nondebatable motion. Those in favor will say aye. Opposed no. The 

ayes appear to have it. The ayes have it. The previous question is 

ordered. 

The question is on agreeing to the amendment offered by the 

gentleman from New York, Mr. Nadler. Those in favor will say aye. 

Opposed, no. The noes appear to have it. The noes have it. The 

amendment is not agreed to. 

Mr. VAN HOLLEN. Mr. Chairman, I move for a rollcall vote. 

Chairman SENSENBRENNER. The rollcall is ordered. Those in 

favor of the Nadler amendment will as your names are called answer aye. Those opposed, no. And the Clerk will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. No. 

The CLERK. Mr. Hyde votes no. 

Mr. Coble. 

Mr. COBLE. No. 

The CLERK. Mr. Coble votes no. 

Mr. Smith. 

Mr. SMITH. No. 

The CLERK. Mr. Smith votes no. 

Mr. Gallegly. 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly votes no. 

Mr. Goodlatte. 

Mr. GOODLATTE. No. 

The CLERK. Mr. Goodlatte votes no. 

Mr. Chabot. 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot votes no. 

Mr. Lungren. 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren votes no. 

Mr. Jenkins. 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins votes no. 

Mr. Cannon. 

Mr. CANNON. No. 

The CLERK. Mr. Cannon votes no. 

Mr. Bachus. 

Mr. BACHUS. No. 

The CLERK. Mr. Bachus votes no. 

Mr. Inglis. 


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Mr. INGLIS. No. 

The CLERK. Mr. Inglis votes no. 

Mr. Hostettler. 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler votes no. 

Mr. Green. 

Mr. GREEN. No. 

The CLERK. Mr. Green votes no. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. No. 

The CLERK. Mr. Issa votes no. 

Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake votes no. 

Mr. Pence. 

Mr. PENCE. No. 

The CLERK. Mr. Pence votes no. 

Mr. Forbes. 

Mr. FORBES. No. 

The CLERK. Mr. Forbes votes no. 

Mr. King. 

Mr. KING. No. 

The CLERK. Mr. King votes no. 

Mr. Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney votes no. 

Mr. Franks. 

Mr. FRANKS. No. 

The CLERK. Mr. Franks votes no. 

Mr. Gohmert. 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert votes no. 

Mr. Conyers. 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers votes aye. 

Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler votes aye. 

Mr. Scott. 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott votes aye. 

Mr. Watt. 

Mr. WATT. Aye. 

The CLERK. Mr. Watt votes aye. 

Ms. Lofgren. 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren votes aye. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. Pass. 


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The CLERK. Ms. Jackson Lee passes. 

Ms. Waters. 

[No response.] 

The CLERK. Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

Mr. WEXLER. Aye. 

The CLERK. Mr. Wexler votes aye. 

Mr. Weiner. 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner votes aye. 

Mr. Schiff. 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff votes aye. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez votes aye. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen votes aye. 

Ms. Wasserman Schultz. 

[No response.] 

The CLERK. Mr. Chairman. 

Chairman SENSENBRENNER. No. 

Members who wish to cast or change their vote. Gentleman from 

California, Mr. Berman. 

Mr. BERMAN. Aye. 

The CLERK. Mr. Berman aye. 

Chairman SENSENBRENNER. Gentlewoman from Florida, Ms. 

Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. Aye. 

The CLERK. Ms. Wasserman Schultz, aye. 

Chairman SENSENBRENNER. Gentlewoman from Texas, Ms. Jackson Lee. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 13 ayes and 22 nays. 

Chairman SENSENBRENNER. And the——

Mr. SCOTT. Mr. Chairman. 

Chairman SENSENBRENNER. The amendment is not. 

Mr. SCOTT. Mr. Chairman, Ms. Waters just walked in. 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Waters. 

Ms. WATERS. Aye. 

Chairman SENSENBRENNER. Waters is an aye. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Chairman SENSENBRENNER. And the Clerk will report again. 

The CLERK. Mr. Chairman, there are 14 ayes and 22 nays. 

Chairman SENSENBRENNER. The amendment is not agreed to. 

The previous question has been ordered on the question of reporting the bill, H.R. 5825, favorably, as amended. A reporting 


erjones on PROD1PC72 with HEARING
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quorum is present. The question occurs on the motion to report the 

bill, H.R. 5825, favorably, as amended. 

All those in favor signify by saying aye. 

Opposed no. 

The ayes appear to have it. A recorded vote is requested. Those 

in favor of reporting the bill, H.R. 5825, favorably, as amended, will 

as your names are called say aye. Those opposed, no. The Clerk 

will call the roll. 

The CLERK. Mr. Hyde. 

Mr. HYDE. Aye. 

The CLERK. Mr. Hyde votes aye. 

Mr. Coble. 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble votes aye. 

Mr. Smith. 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith votes aye. 

Mr. Gallegly. 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly votes aye. 

Mr. Goodlatte. 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte votes aye. 

Mr. Chabot. 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot votes aye. 

Mr. Lungren. 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren votes aye. 

Mr. Jenkins. 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins votes aye. 

Mr. Cannon 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon aye. 

Mr. Bachus. 

Mr. BACHUS. Yes. 

The CLERK. Mr. Bachus votes yes. 

Mr. Inglis. 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis votes no. 

Mr. Hostettler. 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler aye. 

Mr. Green. 

Mr. GREEN. Aye. 

The CLERK. Mr. Green votes aye. 

Mr. Keller. 

[No response.] 

The CLERK. Mr. Issa. 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa votes aye. 

Mr. Flake. 

Mr. FLAKE. No. 

The CLERK. Mr. Flake votes no. 


erjones on PROD1PC72 with HEARING
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Mr. Pence. 

Mr. PENCE. Aye. 

The CLERK. Mr. Pence votes aye. 

Mr. Forbes. 

Mr. FORBES. Aye. 

The CLERK. Mr. Forbes votes aye. 

Mr. King. 

Mr. KING. Aye. 

The CLERK. Mr. King votes aye. 

Mr. Feeney. 

Mr. FEENEY. Aye. 

The CLERK. Mr. Feeney votes aye. 

Mr. Franks. 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks votes aye. 

Mr. Gohmert. 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert votes aye. 

Mr. Conyers. 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers votes no. 

Mr. Berman. 

[No response.] 

The CLERK. Mr. Boucher. 

[No response.] 

The CLERK. Mr. Nadler. 

Mr. NADLER. No. 

The CLERK. Mr. Nadler votes no. 

Mr. Scott. 

Mr. SCOTT. No. 

The CLERK. Mr. Scott votes no. 

Mr. Watt. 

Mr. WATT. No. 

The CLERK. Mr. Watt votes no. 

Ms. Lofgren. 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren votes no. 

Ms. Jackson Lee. 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee votes no. 

Ms. Waters. 

Ms. WATERS. No. 

The CLERK. Ms. Waters votes no. 

Mr. Meehan. 

[No response.] 

The CLERK. Mr. Delahunt. 

[No response.] 

The CLERK. Mr. Wexler. 

Mr. WEXLER. No. 

The CLERK. Mr. Wexler votes no. 

Mr. Weiner. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner votes no. 

Mr. Schiff. 

Mr. SCHIFF. No. 


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The CLERK. Mr. Schiff votes no. 

Ms. Sa ́nchez. 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez votes no. 

Mr. Van Hollen. 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen votes no. 

Ms. Wasserman Schultz. 

Ms. WASSERMAN SCHULTZ. No. 

The CLERK. Ms. Wasserman Schultz votes no. 

Mr. Chairman. 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Sensenbrenner votes aye. 

Chairman SENSENBRENNER. Are there members who wish to cast 

or change their votes? The gentleman from California, Mr. Berman. 

Mr. BERMAN. No. 

The CLERK. Mr. Berman votes no. 

Chairman SENSENBRENNER. Further members who wish to cast 

or change their votes? If not, the Clerk will report. 

The CLERK. Mr. Chairman, there are 20 ayes and 16 nays. 

Chairman SENSENBRENNER. And the motion to favorably report 

the bill, as amended, is agreed to. 

Without objection, the bill will be reported favorably to the 

House in the form of a single amendment in the nature of a substitute incorporating the amendments adopted here today. Without 

objection, the staff is directed to make any technical and conforming changes. And all members will be given 2 days, as provided by the House rules, in which to submit additional dissenting 

or supplemental or minority views. 

I think we put in a good day’s work for a day’s pay and without 

objection, the subcommittee stands adjourned. 

[Whereupon, at 6:08 p.m., the committee was adjourned.] 


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1The Majority rejected this bipartisan substitute amendment by a vote of 18–20. The bipartisan amendment included language: (1) clarifying the Authorization for Use of Military Force 

did not contain legal authority for warrantless wiretapping in the United States; (2) reiterating 

that FISA is the exclusive means of conducting electronic surveillance for foreign intelligence 

in the United States; (3) requiring the President must submit a report to Congress on classified 

surveillance programs; (4) permitting the Chief Justice of the United States can appoint additional FISA judges; (5) streamlining the FISA application process; (6) extending emergency FISA 

authority from 3 days to 7 days; (7) allowing for use of wartime FISA exception also after congressional authorization for use of military force; (8) clarifying that FISA warrants are not needed for intercepting foreign-foreign communications; and (9) authorizing the hiring of additional 

intelligence personnel. 2The legislation is opposed by technology companies and groups concerned with the civil liberties of Americans, including the Computer & Communications Ind. Ass’n, the ACLU, the Center for National Security Studies, and the Center for Democracy and Technology. 3Section 3(b) of the reported bill proposes a number of changes to FISA, one of which amends 

the definition of ‘‘electronic surveillance’’ in FISA to the (1) interception of communications acquired by targeting a person who is reasonably believed to be in the United States; and (2) interception of any communication if both the sender and all recipients are in the United States. 

DISSENTING VIEWS 

We strongly support intercepting each and every conversation involving al Qaeda and its supporters. We have in the past and continue to support common sense updates to the Foreign Intelligence 

Surveillance Act (‘‘FISA’’) so that our surveillance capabilities can 

keep pace with modern technologies—as a matter of fact, all of us 

supported a bipartisan substitute offered by Representatives Schiff 

(D–CA) and Flake (R–AZ) which would have accomplished these 

goals without sacrificing our rights and liberties.1 However, we dissent from the legislation reported by the Judiciary Committee because instead of bringing the President’s warrantless surveillance 

program under the law, it dramatically expands his authority and 

permits even broader and more intrusive warrantless surveillance 

of the phone calls and e-mails of innocent Americans. The legislation also raises severe constitutional questions, and was subject to 

an ill-considered and unfair process.2

DESCRIPTION OF THE LEGISLATION

The legislation reported by the Committee proposes numerous 

significant changes to FISA, which governs the surveillance of foreign powers, terrorist organizations and their agents. These 

changes would dramatically expand the ability of the Administration to wiretap and gather information on innocent Americans 

without court approval or legal recourse. 

The legislation amends FISA in several ways that would expand 

the Administration’s ability to eavesdrop on telephone calls, e-mails 

and other communications of U.S. citizens, without obtaining court 

approval. First, Section 3(b) alters the definition of ‘‘electronic surveillance’’ in a manner that permits the warrantless surveillance of 

the international communications of any American who is not a 

specific target.3 The bill also amends an operative section of FISA 

to permit warrantless surveillance of Americans for one year if it 

involves communications with foreign powers. Proposed new secVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00171 Fmt 6604 Sfmt 6604 E:\HR\OC\HR680P2.XXX HR680P2

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4Section 4(a) of the bill proposes a new section 102 of FISA that would allow the surveillance 

without a court order of communications of foreign powers but would not contain an exclusivity 

limitation that exists in current law; as a result, it would apply to all six categories of foreign 

powers and could permit capture of communications to or from U.S. persons. 

Section 4(a) of the bill also proposes a new section 102A of FISA that would allow the government to acquire intelligence information about persons the government asserts are not in the 

Untied States. In such cases the Attorney General could obtain an order for up to one year without a court order if the acquisition does not constitute electronic surveillance but pertains to 

foreign intelligence information. 5For instance, the Attorney General could say that surveilling communications from inside 

the United States to outside the United States does not constitute ‘‘electronic surveillance’’ within the definition of FISA. As such, he may argue that the government does not require a warrant and could collect as much content as desired and without limitation. 6This cause of action likely is pre-empted by section 11 of the bill, which prohibits any court 

review of any actions related to any intelligence programs. 7See new section 102B of FISA as proposed by the reported bill. 

8Section 106 of FISA (section 1806 of title 50) governs the use of information collected via 

FISA. 

tion 102 of FISA (added by section 4 of the bill) accomplishes this 

by eliminating a requirement in current law requiring that when 

the government wiretaps foreign powers, there should be no substantial likelihood that Americans’ conversations will be captured.4

Proposed new section 102A of FISA also grants the Administration new unilateral authority to conduct any and all forms of allegedly non-wiretap surveillance on innocent U.S. citizens so long as 

one of the targets is ‘‘reasonably believed to be outside of the 

United States.’’ This section, for example, would permit the Administration to review call records and other stored communications 

from communication providers and other persons and perhaps even 

content if the Attorney General merely certifies the information is 

not electronic surveillance as defined in FISA.5

Under proposed new section 102B of FISA, the Attorney General 

would be granted the unilateral power to implement the new intelligence authorities identified in new sections 102 and 102A by demanding that any person—including a communications provider, 

internet company, landlord, or family member—assist with the execution of both electronic surveillance or other acquisition of intelligence information (such parties would also be insulated from legal 

liability for complying with such a directive). Any individual challenging the directive would have limited rights to challenge the 

order in court.6

The bill also permits the government to permanently retain surveillance information inadvertently collected on innocent Americans pursuant to these and other provisions of FISA.7 Section 4 of 

the bill does this by rewriting provisions in existing law that govern the use of information collected pursuant to FISA directives 

under new section 102B to strike an existing requirement that unintentionally-acquired information be destroyed unless there is a 

threat of death or serious injury.8 Section 8 of the bill further permits the government to retain permanently any unintentionally-acquired information collected pursuant to wire, radio, or electronic 

communications if the government finds foreign intelligence information is present (current law is limited to the retention of radio 

communications if there is information about a death or serious 

bodily injury). 

In addition and significantly, the bill would eliminate court review of intelligence programs. Section 11 of the bill (incorporating 

the amendment offered by Representative Chris Cannon (R–UT)) 


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9Section 3(a) of the bill would add to the category of non-U.S. persons who could be agents 

of foreign powers. It would include anyone (including corporations) who ‘‘is reasonably expected 

to possess, control, transmit, or receive foreign intelligence information while such person is in 

the United States, provided that the official making the certification [for a FISA order] deems 

such foreign intelligence information to be significant.’’ Current law defines ‘‘foreign intelligence 

information’’ as (1) that which can protect the United States against terrorist attack or (2) information with respect to a foreign power or territory that relates to the defense or security or 

foreign affairs of the United States. 50 U.S.C. § 1801(e). 

Under the new definition, it is possible that the foreign employee of a U.S. corporation could 

be subject to a wiretap if his or her job entails working with encryption technology or computer 

parts (either of which could constitute foreign intelligence information). 10The legislation also broadens the government’s authority with respect to emergency FISA 

surveillance, instances when the government can use FISA surveillance absent a court order. 

In addition to extending from 3 days to 7 days the period permitted for emergency surveillance, 

it also would permit any Sentate-confirmed presidential appointee to authorize emergency surveillance; current law limits that authority to Justice Department officials: the Attorney General, Deputy Attorney General, the Assistant Attorney General for National Security. 

would preclude any court from hearing any case or imposing any 

civil or criminal liability over any activity related to any ‘‘alleged 

intelligence program involving electronic surveillance’’ that is certified by the Attorney General to be intended to protect the United 

States from a terrorist attack. In addition to having the effect of 

dismissing all pending challenges to the legality of the president’s 

warrantless surveillance program, this provision would prevent any 

other legal challenges from being brought in the future concerning 

any misuse or abuse of surveillance powers. 

The legislation contains other provisions that expand Administration power to obtain information, including: 

• Section 3(a) of the legislation, which broadens the government’s ability to obtain information from foreign persons located 

within the United States, including individuals and corporations, 

even if they have no connection to a foreign government or terrorist 

organization.9

• Section 6 of the bill, which permits any official designed by the 

President, even those involved in leaking classified information, to 

seek FISA surveillance requests. Currently, only the National Security Adviser or Senate-confirmed presidential appointees with responsibility for national security or defense can submit a certification in a FISA application that the wiretap is needed to collected 

intelligence.10

• Section 7 of the legislation, which makes it more difficult for 

judges to review extensions of FISA orders. Under the legislation 

extensions of FISA orders would have to be issued for periods of 

up to one year; the current limit is 90 days in most cases. 

• Section 7 of the legislation also eliminates the requirement 

that the government obtain a court order prior to installing a pen 

register or trap-and-trace device. The bill does this by providing 

that anytime a judge issues an order for electronic surveillance involving communications the judge also must issue an order authorizing the use of pen register and trap-and-trace devices related to 

such communications. 

• Section 7 permits any Senate-confirmed presidential appointee 

to authorize emergency surveillance, even those that have nothing 

to do with national security or the Justice Department. Congress 

recently amended FISA to permit the Deputy Attorney General or 


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11Sec. 506(a)(5) of Public Law 109–177. 12Section 12 of the reported bill. This report specifically would pertain to the applicability of 

such procedures to information concerning U.S. persons acquired under FISA electronic surveillance as it has been defined prior to the date of enactment of this bill. 13Section 2 of the reported bill. 14 Charlie Savage, Bush Challenges Hundreds of Laws: President Cites Powers of His Office, 

Boston Globe, Apr. 30, 2006, at A1. 15The Majority rejected two efforts at ensuring that FISA would be the exclusive means of 

collecting foreign intelligence via electronic surveillance. The Majority first rejected by a vote 

of 18–20 a bipartisan amendment offered by Representative Jeff Flake (R–AZ) and Representative Adam Schiff (D–CA) that clarified that FISA was the exclusive means of conducting such 

surveillance. The Majority also defeated by voice vote an amendment offered by Representative 

Sheila Jackson Lee (D–TX) clarifying such exclusivity. 

the Assistant Attorney General for National Security to make such 

emergency authorizations.11

The bill also includes a few provisions nominally designed to rein 

in surveillance abuses, but which appear in actuality to be mere 

‘‘window dressing.’’ For example, section 12 of the bill contains a 

provision requiring the Director of the National Security Agency, in 

consultation with the Director of National Intelligence and the Attorney General, to submit to the House and Senate intelligence 

committees a report on minimization procedures.12 In addition, section 2 of the bill includes a ‘‘finding’’ that the necessary and proper 

clause of the Constitution grants Congress the authority to regulate the President’s power to gather foreign intelligence.13 This is 

a non-binding assertion, and given the President’s proclivity to interpret laws that fly in the face of supposedly-binding statutory 

language,14 cannot be expected to provide any meaningful limitation on the president’s authority. Also, Section 9 states that reports 

on FISA use would go to all members of the intelligence committees (as opposed the committees as a whole as provided in current 

law). This modest step will do very little to enhance accountability. 

Finally, the legislation includes a number of miscellaneous and 

less controversial provisions. For example, section 7 of the legislation extends from 3 days to 7 days the period permitted for emergency surveillance. Section 6 would permit the government to submit a summary of information supporting a FISA application as opposed to a complete description. Section 10 of the bill provides that 

if a FISA physical search or surveillance warrant is issued for a 

person in the United States, then that warrant would continue in 

effect if the person leaves the United States. 

CONCERNS WITH THE LEGISLATION

A. THE LEGISLATION CONTAINS SIGNIFICANT NEW STATUTORY AU- THORIZATIONS THAT THREATEN THE PRIVACY OF INNOCENT AMERI- CANS

An initial concern with the legislation is that it does not impose 

any limits on the President’s power to conduct warrantless surveillance on innocent Americans in violation of FISA. This is because 

the bill does not state that it contains the exclusive means for the 

government to conduct surveillance, warrantless or otherwise.15

Rather, the legislation appears to assume the president has ‘‘inherent authority’’ to conduct the type of warrantless surveillance first 

disclosed by The New York Times in December, 2005, and goes beyond that to grant the president even further statutory authority 

to intercept the communications of innocent Americans without any 


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16 H.R. 5825, the ‘‘Electronic Surveillance Modernization Act:’’ Hearing Before the Subcomm. 

on Crime of the H. Comm. on the Judiciary, 109th Cong., 2d Sess. (Sept. 12, 2006) (statement 

of John Eisenberg, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Dept. of 

Justice). 17Legislative Proposals to Update the Foreign Intelligence Surveillance Act (H.R. 4976, H.R. 

5223, H.R. 5371, H.R. 5825, S. 2453, and S. 2455.): Hearing Before the Subcomm. on Crime of 

the H. Comm. on the Judiciary, 109th Cong., 2d Sess. (Sept. 6, 2006). 18Letter from Ed Black, President and CEO, Computer & Communications Ind. Ass’n, to the 

Hon. F. James Sensenbrenner, Jr., and the Hon. John Conyers, Jr., House Comm. on the Judiciary, Sept. 19, 2006. The Association further noted that this unchecked surveillance could lead 

to retaliation and similar communications surveillance on Americans by other countries. It 

wrote that its ‘‘industry is confronted with escalating monitoring and surveillance by repressive 

foreign regimes. When challenged, totalitarian states often justify their policies by pointing to 

U.S. government practices.’’ Id. 

court approval. The Justice Department even admitted as such 

when it testified before the Crime Subcommittee that the bill and 

the warrantless wiretapping program are separate.16

Second, the legislation permits vastly expanded government 

wiretapping of innocent Americans without a warrant and without 

probable cause. As described above, the bill allows for warrantless 

wiretapping of virtually all international communications, even if 

they involve a person within the United States, including U.S. citizens, as long as the government asserts that it was not targeting 

a U.S. citizen. As Jim Dempsey of the Center for Democracy and 

Technology testified, ‘‘[c]urrently, FISA requires a court order to 

intercept wire communications into or out of the [United States], 

many of which involve U.S. citizens. Under the proposed new [definitions in the bill], wire communications to or from the [United 

States] could be intercepted using the vacuum cleaner of the NSA, 

without a warrant, so long as the government is not targeting a 

known person in the [United States].’’ 17 The Computer and Communications Industry Association—a trade association including 

Microsoft, Google, and Verizon—agreed, writing that ‘‘the mere possibility of widespread, secret, and unchecked surveillance of the billions of messages that flow among our customers, especially U.S. 

citizens, will corrode the fundamental openness and freedom necessary to our communications networks.’’ 18 The Administration has 

never articulated why such vast new authority to conduct 

warrantless surveillance involving innocent Americans is necessary, given that FISA already permits surveillance to be conducted without a warrant on an emergency basis prior to obtaining 

court review. 

Third, the legislation authorizes the Attorney General to unilaterally engage in non-electronic surveillance involving innocent 

Americans (such as reviewing stored communications and call 

records) and unilaterally issuing directives against communications 

providers to obtain both electronic surveillance and other information. We have never received any justification for such broad new 

and unchecked authority, which was slipped into the legislation at 

the last minute with no supporting record or adequate explanation. 

Fourth, we are concerned that allowing the government to maintain permanent records on innocent U.S. citizens based on the 

records of their warrantless surveillance would also unnecessarily 

intrude on the privacy rights of innocent Americans. Under current 

law, the required destruction of unintentionally-acquired FISA information ensures that the government cannot maintain records on 

individuals, such as American citizens, who pose no threat to the 


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19Since the September 11 attacks, Congress amended FISA to extend its emergency exemption from 24 to 72 hours, and the PATRIOT Act included some twenty-five separate updates 

to FISA including: (i) expanding the scope of FISA pen register authority; (ii) lowering the 

standard for FISA pen-traps; (iii) lowering the legal standard for FISA surveillance; (v) extending the duration of FISA warrants; (vi) expanding the scope of business records that can be 

sought with a FISA order; (vii) allowing for ‘‘John Doe’’ roving wiretaps; (vii) requiring the intelligence community to set FISA requirements and assist with dissemination of FISA Information; 

(ix) immunizing those complying with FISA orders; (x) lowering the standard for National Security Letters; and (xi) expanding NSL approval authorities. Subsequent to the passage of the PATRIOT Act, Congress has again at the Administration’s request broadened FISA to allow surveillance of ‘‘Lone Wolf’’ terrorists and the FISA courts have streamlined their procedures to accommodate the Administration’s requests. 20 389 U.S. 347 (1967). 21 407 U.S. 297 (1972). 

nation. The bill would remove entirely any protections that U.S. 

citizens and lawful permanent residents have from government 

surveillance. These records could include information related to 

First Amendment and Second Amendment activity. Again, we have 

never received a justification for such expanded intrusions on 

American’s privacy. 

Fifth, the legislation includes an unprecedented court stripping 

provision in the form of the Cannon Amendment which would not 

only terminate pending and future cases challenging the president’s controversial warrantless surveillance program, but would 

nullify the few rights provided to American citizens in the legislation. For example, while the legislation grants persons the nominal 

right to challenge directives to provide intelligence information to 

the Attorney General, the Cannon amendment—which supercedes 

any and all inconsistent laws—strips the court of that authority. 

Finally, we would dispute the proponents much repeated assertion that the committee-reported legislation is needed to ‘‘modernize’’ FISA and make it ‘‘technology neutral.’’ The Congressional 

Research Service has confirmed that since its inception in 1978, 51 

separate provisions in twelve different laws have updated FISA, 

many of them made in the last five years.19 To the extent further 

changes are required, we all supported the provisions included in 

the Schiff-Flake substitute which eliminated the law’s differential 

treatment of different technologies and approved warrantless surveillance of all foreign-to-foreign communications which transmit 

through the U.S. 

B. THE LEGISLATION RAISES SIGNIFICANT CONSTITUTIONAL QUESTIONS

The legislation raises serious if not intractable questions under 

both the Fourth Amendment and the principle of separation of 

powers and due process. 

First, the bill may well violate the Fourth Amendment protections against ‘‘unreasonable searches and seizures,’’ and requiring 

judicially approved warrants issued with ‘‘particular[ity]’’ and 

‘‘upon probable cause.’’ There is little doubt that the Fourth 

Amendment fully applies to electronic surveillance. In Katz v. 

United States,20 the Supreme Court held that the Fourth Amendment requires adherence to judicial processes in the case of national security wiretaps, and that searches conducted outside the 

judicial process, are per se unreasonable under the Fourth Amendment, subject only to emergency and similar exceptions. In United 

States v. U.S. District Court (the Keith case),21 the Court specifically held that, in the case of intelligence gathering involving doVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00176 Fmt 6604 Sfmt 6602 E:\HR\OC\HR680P2.XXX HR680P2

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22 Id. at 313–14, 317, 319–20. The Court further stated: ‘‘These Fourth Amendment freedoms 

cannot properly be guaranteed if domestic security surveillance may be conducted solely within 

the discretion of the Executive Branch.’’ Id. at 317–318. 23 By denying the courts their historical role as the final legal authority, the legislation appears to usurp judicial power. Since the Supreme Court’s ruling in Marbury v. Madison, the 

separation of powers doctrine has been well established. See Marbury v. Madison, 5 U.S. 137 

(1803). 24 It is important to note that the Majority rejected by a vote of 14–22 an amendment offered 

by Representative Jerrold Nadler (D–NY) to preserve the ability of courts to order injunctive 

relief for unlawful government programs. 25Letter from Glenn A. Fine, Inspector General, Department of Justice, to Congresswoman 

Zoe Lofgren et. al. (Jan. 4, 2006); Letter from Thomas F. Gimble, Acting Inspector General, Department of Defense, to Congresswoman Zoe Lofgren et. al. (Jan. 10, 2006). 

mestic security surveillance, prior judicial approval was required to 

satisfy the Fourth Amendment.22 As discussed above, the legislation permits the widespread practice of intercepting the international telephone calls and e-mails of innocent Americans. As 

such, it would seem to contradict the requirements of the Fourth 

Amendment, as long interpreted by the courts. 

Second, the bill would seem to violate separation of powers and 

due process requirements.23 It does so with respect to the Cannon 

amendment, which would preclude any court from hearing any 

legal challenges related to intelligence programs involving electronic surveillance. Despite the fact that Article III of the Constitution grants to the courts the judicial power over all cases in law 

and equity arising under the Constitution and laws of the United 

States, and harmed individuals have long been understood to be 

entitled to assert their due process rights in a court of law, the 

Cannon amendment would bar existing and future lawsuits and 

preclude any civil or criminal liability, including injunctive relief, 

for any activity related to any intelligence program involving 

FISA’s definition of electronic surveillance.24 Such immunity is retroactive to any program in existence dating back to September 11, 

2001. As noted above, the practical impact of the Cannon amendment is to nullify the enforceability of any rights granted in the bill 

or otherwise to protect one’s privacy. Kate Martin of the Center for 

National Security Studies notes the breadth of the Cannon amendment, observing, ‘‘the amendment . . . would jeopardize Americans’’ fundamental right to challenge unconstitutional surveillance 

of their communications in court.’’

C. THE LEGISLATION WAS CONSIDERED UNDER A FLAWED AND UNFAIR

PROCESS

The entire process by which this legislation traveled through the 

Judiciary Committee was seriously flawed. At the outset, attempts 

at conducting independent investigations of the President’s program were thwarted at every turn. Nearly nine months after we 

first learned of the warrantless surveillance program, there has 

been no attempt to conduct an independent inquiry into its legality. 

Not only has Congress failed to conduct any sort of investigation, 

but the Administration summarily rejected all requests for special 

counsels as well as reviews by the Department of Justice and Department of Defense Inspectors General.25 When the Justice Department’s Office of Professional Responsibility finally opened an 

investigation, the President himself squashed it by denying the inVerDate Aug 31 2005 09:41 Sep 28, 2006 Jkt 030044 PO 00000 Frm 00177 Fmt 6604 Sfmt 6602 E:\HR\OC\HR680P2.XXX HR680P2

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26Dan Eggen, Bush Thwarted Probe into NSA Wiretapping, Wash. Post, July 19, 2006, at A4 

(referring to testimony of Attorney General Alberto Gonzales before the Senate Judiciary Committee). 27 H. Res. 819, 109th Cong., 2d Sess. 28Letters from Democratic Members, U.S. House Comm. on the Judiciary, to Robert Deitz, 

General Counsel, NSA (Sept. 12, 2006). 29Markup of H.R. 5825, the ‘‘Electronic Surveillance Modernization Act,’’ House Comm. on the 

Judiciary, 109th Cong., 2nd Sess. (Sept. 20, 2006). Once debate began on the amendment, Representative Conyers asked that the amendment be withdrawn until the Members had time to 

digest its contents. Mr. Conyers acknowledged the possibility that Democrats might agree with 

the substance of the amendment but that more time was needed to review it. He also noted 

that there were changes to at least 6 sections of the underlying bill, that the amendment was 

25 pages long, and that staff for the Minority had not been consulted about any of these 

changes. He stated that it was ‘‘impossible for this Member to gain any appreciation of the significant changes the Gentleman has attempted’’ and asked that it be withheld until Democrats 

had the ‘‘opportunity to examine it with the care that is required.’’ Id. Representative Schiff also 

asked for cooperation in light of the fact that he and Representative Flake had been working 

on a bipartisan substitute to the underlying bill. He noted that there was no way to know how 

the changes from the Lungren amendment affected the carefully drafted substitute. Id. Representative Conyers moved to table the Lungren amendment but the Chairman prohibited the 

motion from being offered. Representative Nadler then moved to adjourn the Committee meeting 

until the following day so that the Members could have a chance to review the amendment. On 

a party-line vote, this motion was defeated 14–17. The amendment eventually passed the committee by a vote of 17–2. 

vestigators security clearances.26 Furthermore, the Department has 

completely ignored the numerous questions posed by this Committee and the Wexler Resolution of Inquiry the Judiciary Committee previously adopted requesting copies of Administration documents concerning surveillance activities.27

Second, Members of the Committee have never been briefed on 

the nature and extent of the President’s warrantless surveillance 

program. Although, the Justice Department did conduct a briefing 

for House Judiciary Committee Members on September 12, 2006, 

that briefing was limited to the tech neutrality portion of the Wilson bill. The NSA failed to honor or even respond to a request 

made by sixteen Democratic Members of the Judiciary Committee 

for even a classified briefing on the entirety of the NSA program.28

Third, the process by which the markup was conducted was both 

haphazard and unfair, as the Majority substantially altered the bill 

without providing Minority Members any notice or opportunity to 

review the 25 pages of changes. Dispensing with the usual practice 

of alternating between Majority and Minority amendments, after 

offering his own amendment, Chairman Sensenbrenner recognized, 

over Democratic protestations, Representative Dan Lungren (R–

CA) to offer an amendment that substantially altered the underlying bill. By virtue of its scope, the Majority’s amendment precluded numerous additional Democratic amendments. Representative Conyers raised a ‘‘point of procedure,’’ recalling that the normal practice is to alternate between Majority and Minority Members. Chairman Sensenbrenner responded by saying ‘‘Well, the 

Gentleman from California is very pushy so he’s been recognized.’’ 29 It is also notable and unfortunate that the Chairman 

ruled Representative Cannon’s amendment which provided that 

notwithstanding any other law precludes court review of ‘‘any alleged intelligence program involving electronic surveillance’’ to be 

in order, again over Democratic objections. In point of fact, such an 

amendment falls outside the jurisdiction of the Judiciary Committee’s jurisdiction should not have been considered at our markup. 


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CONCLUSION

We believe that every communication to and from an al Qaeda 

member should be subject to government surveillance and support 

Congress providing the President with the tools needed to accomplish that goal. In doing so, however, Congress must not abdicate 

its responsibility or negate the role of the courts to act as a check 

against unilateral presidential powers. We dissent from the legislation before us because it fails to rein in the president’s warrantless 

surveillance program, expands the NSA’s authority to expose millions of innocent Americans to warrantless surveillance, jeopardizes 

the privacy rights of American citizens and raises serious and significant constitutional concerns. The American people deserve better than this bill and this ill-conceived process of legislating. 

JOHN CONYERS, Jr. 

RICK BOUCHER. ROBERT C. SCOTT. ZOE LOFGREN. MAXINE WATERS. BILL DELAHUNT. ANTHONY D. WEINER. LINDA T. SA ́ NCHEZ. DEBBIE WASSERMAN SCHULTZ. HOWARD L. BERMAN. JERROLD NADLER. MELVIN L. WATT. SHEILA JACKSON LEE. MARTIN T. MEEHAN. ROBERT WEXLER. ADAM B. SCHIFF. CHRIS VAN HOLLEN. 


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ADDITIONAL VIEWS 

We could not support H.R. 5825, the ‘‘Electronic Surveillance 

Modernization Act,’’ because of the wholesale changes the legislation would make to our existing regime of domestic electronic surveillance and the impact these changes would have on the expectations of privacy shared by each United States citizen. 

Instead, we offered a bipartisan amendment in the nature of a 

substitute to ensure that the Government has all the tools necessary and all the authority required to pursue al Qaeda and other 

terrorists who would seek to harm our country. Our amendment 

also stood for the principle that administrative burden and load, as 

we use all the tools available to fight terrorism, should not supersede devotion to the Constitution and the expectation of privacy of 

each United States citizen. 

While the President possesses the inherent authority to engage 

in electronic surveillance of the enemy outside the country, Congress possesses the authority to regulate foreign intelligence surveillance within the United States. Congress has indeed spoken in 

this area through the Foreign Intelligence Surveillance Act (FISA). 

When Congress passed FISA, it intended to provide the sole authority for such surveillance on American soil. Our amendment 

would have reinforced this existing law—that the government must 

obtain a court order when U.S. persons are targeted or surveillance 

occurs in the United States. 

Our bipartisan substitute also responded to the issues that have 

been raised by officials at the NSA and the Department of Justice 

over the last several months in testimony to Congress. First, the 

proposal made clear that foreign-to-foreign communications are 

outside of FISA and don’t require a court order. If a communication 

to which a U.S. person is a party is inadvertently intercepted, minimization procedures approved by the AG should be followed. 

Second, our amendment provided an extension of the FISA emergency exception from 72 hours to 168 hours, or seven days. This 

permits law enforcement to initiate surveillance in an emergency 

situation before going to the FISA court for a warrant. If the current 72 hours has been sufficient in the 5 years since September 

11th, surely 7 days can be considered a significant improvement. 

Importantly, this authority can be used to thwart imminent attacks. 

Third, our amendment expanded the FISA ‘‘wartime exception’’ to provide that in addition to a ‘‘declaration of war’’ by Congress, 

that an ‘‘authorization for the use of military force’’ can also trigger 

the FISA ‘‘wartime exception’’ for purposes of allowing 15 days of 

warrantless surveillance if there is an explicit provision authorizing electronic surveillance under that FISA provision. 

Finally, our amendment streamlined the FISA application process, provided authorization to appoint additional FISA judges and 


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additional personnel at DOJ, the FBI, and the NSA, to ensure 

speed and agility in the drafting and consideration of FISA order 

applications. 

Electronic surveillance of al Qaeda operatives and others seeking 

to harm our country must continue; it simply can and should comply with FISA. We believe our substitute accomplished these joint 

goals. 

ADAM B. SCHIFF. 

JEFF FLAKE. 

Æ 


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