I 

109TH CONGRESS 

2D SESSION H. R. 5223 

To establish the National Commission on Surveillance Activities and the 

Rights of Americans. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 27, 2006 

Mr. CONYERS (for himself, Mr. WEXLER, Mr. GRIJALVA, Mr. SANDERS, Mr. 

MCDERMOTT, Ms. SCHAKOWSKY, Mr. STARK, Mr. CAPUANO, Ms. 

MCCOLLUM of Minnesota, Ms. BALDWIN, Mr. HONDA, Mrs. MALONEY, 

Mr. VAN HOLLEN, Mr. FARR, and Ms. LEE) introduced the following bill; 

which was referred to the Select Committee on Intelligence (Permanent 

Select), and in addition to the Committee on the Judiciary, 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 establish the National Commission on Surveillance 

Activities and the Rights of Americans. 

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

3 SECTION 1. SHORT TITLE. 

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

5 Commission Act of 2006’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 


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

2 Commission on Surveillance Activities and the 

3 Rights of Americans established under section 3; 

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

5 same meaning as in section 101 of the Foreign In6 telligence Surveillance Act of 1978 (50 U.S.C. 

7 1801); 

8 (3) the term ‘‘Foreign Intelligence Surveillance 

9 Court’’ means the court established under section 

10 103(a) of the Foreign Intelligence Surveillance Act 

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

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

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

14 3127 of title 18, United States Code; 

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

16 meaning as in section 301 of the Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 1821); 

18 (6) the term ‘‘surveillance’’ means any elec19 tronic surveillance, physical search, use of a pen reg20 ister or trap and trace device, order for the produc21 tion of any tangible item, or surveillance activity for 

22 which a Federal or State government agent is re23 quired to obtain a warrant, before or after engaging 

24 in the activity; and 


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1 (7) the term ‘‘warrantless surveillance pro2 gram’’ means a program of warrantless surveillance 

3 conducted inside the United States by any Federal 

4 or State agency. 

5 SEC. 3. ESTABLISHMENT OF COMMISSION. 

6 There is established in the legislative branch the Na7 tional Commission on Surveillance Activities and the 

8 Rights of Americans to conduct an investigation and to 

9 study governmental operations with respect to warrantless 

10 surveillance conducted inside the United States and intel11 ligence activities, and the extent, if any, to which illegal, 

12 improper, or unethical activities were engaged in by any 

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

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

15 SEC. 4. PURPOSES. 

16 The purposes of the Commission are to— 

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

18 and use of executive authority relating to any 

19 warrantless surveillance conducted inside the United 

20 States that occurred after September 11, 2001, by 

21 the National Security Agency or any other Federal 

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

23 improper, or unethical activities were engaged in by 

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1 ually or in combination with others, in carrying out 

2 any surveillance activities; 

3 (2) examine the origin and operation of any 

4 warrantless surveillance conducted inside the United 

5 States, including the collection, processing, analysis, 

6 dissemination, and retention of intelligence informa7 tion; 

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

9 regulatory basis for any warrantless surveillance pro10 gram, including all presidential orders and author11 izations, and all opinions, instructions, or guidance 

12 concerning any warrantless surveillance program 

13 provided by the Department of Justice, the Director 

14 of Central Intelligence, the Director of National In15 telligence, the Director of the National Security 

16 Agency, the Department of Defense, or any depart17 ment, office, or agency of the Federal Government, 

18 and any of their subordinate offices or officials, ei19 ther in writing or verbally; 

20 (4) examine any periodic reviews of any 

21 warrantless surveillance program, including all re22 views conducted by the National Security Agency In23 spector General, the Department of Justice, or any 

24 other Federal agency; 


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1 (5) gather any information regarding questions 

2 raised by any judge of the Foreign Intelligence Sur3 veillance Court regarding any warrantless surveil4 lance program or the utilization of intelligence col5 lected under such program, and any response by the 

6 Department of Justice to any such inquiries, includ7 ing any temporary cessation of such surveillance ac8 tivities; 

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

10 the facilities or personnel of, United States elec11 tronic communications providers in warrantless sur12 veillance conducted inside the United States, includ13 ing the origin of certifications or representations 

14 provided to such providers concerning the legal au15 thority for their cooperation; 

16 (7) ascertain, evaluate, and report on the evi17 dence developed by all relevant governmental agen18 cies regarding any facts or circumstances that may 

19 have violated the separation of powers enumerated 

20 in the Constitution of the United States, including— 

21 (A) article I, sections 1 and 8 of the Con22 stitution of the United States; and 

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

24 Constitution of the United States; 


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1 (8) ascertain and evaluate any potential viola2 tions, including violations of the first, fourth, and 

3 fourteenth amendments to the Constitution of the 

4 United States; 

5 (9) investigate and report on any violation of 

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

7 1801 et seq.), or any other applicable law; 

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

9 all Members of Congress regarding warrantless sur10 veillance of United States citizens conducted inside 

11 the United States; 

12 (11) build upon the investigations of other enti13 ties, and avoid unnecessary duplication, by reviewing 

14 the findings, conclusions, and recommendations of— 

15 (A) any investigation by a Committee of 

16 the Senate or the House of Representatives; 

17 and 

18 (B) other executive branch, congressional, 

19 or independent commission investigations into 

20 the warrantless surveillance conducted inside 

21 the United States; 

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

23 circumstances surrounding warrantless surveillance 

24 conducted inside the United States, including an asVerDate Aug 31 2005 18:10 Apr 30, 2006 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5223.IH H5223

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1 sessment of its effectiveness in protecting the United 

2 States from terrorism; 

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

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

5 or local government agency or any person employed 

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

7 out warrantless surveillance; and 

8 (14) investigate and report to the President and 

9 Congress on its findings, conclusions, and rec10 ommendations for corrective measures that should 

11 be taken regarding any violations of any law dealing 

12 with intelligence gathering, and to prevent future 

13 violations. 

14 SEC. 5. COMPOSITION OF COMMISSION. 

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

16 of 14 members, of whom— 

17 (1) 1 member, who shall serve as Chairman of 

18 the Commission, shall be appointed by the Majority 

19 Leader of the Senate, in consultation with the Ma20 jority Leader of the House of Representatives; 

21 (2) 1 member, who shall serve as Vice Chair22 man of the Commission, shall be appointed by the 

23 Minority Leader of the Senate, in consultation with 

24 the Minority Leader of the House of Representa25 tives; 


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1 (3) 1 member shall be appointed by the Chair2 man of the Committee on the Judiciary of the Sen3 ate; 

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

6 the Senate; 

7 (5) 1 member shall be appointed by the Chair8 man of the Select Committee on Intelligence of the 

9 Senate; 

10 (6) 1 member shall be appointed by the Vice 

11 Chairman of the Select Committee on Intelligence of 

12 the Senate; 

13 (7) 1 member shall be appointed by the Chair14 man of the Committee on the Judiciary of the 

15 House of Representatives; 

16 (8) 1 member shall be appointed by the Rank17 ing Member of the Committee on the Judiciary of 

18 the House of Representatives; 

19 (9) 1 member shall be appointed by the Chair20 man of the Permanent Select Committee on Intel21 ligence of the House of Representatives; 

22 (10) 1 member shall be appointed by the Rank23 ing Member of the Permanent Select Committee on 

24 Intelligence of the House of Representatives; 


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1 (11) 1 member shall be appointed by the Chair2 man of the Committee on Appropriations of the Sen3 ate; 

4 (12) 1 member shall be appointed by the Rank5 ing Member of the Committee on Appropriations of 

6 the Senate; 

7 (13) 1 member shall be appointed by the Chair8 man of the Committee on Appropriations of the 

9 House of Representatives; and 

10 (14) 1 member shall be appointed by the Rank11 ing Member of the Committee on Appropriations of 

12 the House of Representatives. 

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

14 Commission shall be appointed not later than the date 

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

16 (c) QUALIFICATIONS; INITIAL MEETING.— 

17 (1) NONGOVERNMENTAL APPOINTEES.—An in18 dividual appointed to the Commission may not be an 

19 officer or employee of the Federal Government or 

20 any State or local government. 

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

22 Congress that individuals appointed to the Commis23 sion should be prominent United States citizens, 

24 with national recognition and significant depth of exVerDate Aug 31 2005 00:37 May 02, 2006 Jkt 049200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5223.IH H5223

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1 perience in such professions as law, intelligence 

2 gathering, and foreign affairs. 

3 (3) INITIAL MEETING.—The Commission shall 

4 meet and begin the operations of the Commission as 

5 soon as practicable. 

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

7 the Commission shall meet upon the call of the Chairman 

8 or a majority of its members. Six members of the Commis9 sion shall constitute a quorum. Any vacancy in the Com10 mission shall not affect its powers, but shall be filled in 

11 the same manner in which the original appointment was 

12 made. 

13 SEC. 6. FUNCTIONS OF COMMISSION. 

14 The functions of the Commission are to— 

15 (1) conduct an investigation that— 

16 (A) investigates relevant facts and cir17 cumstances relating to all incidents of 

18 warrantless surveillance conducted inside the 

19 United States, including any relevant legisla20 tion, Executive order, regulation, plan, policy, 

21 practice, or procedure; and 

22 (B) may include relevant facts and cir23 cumstances relating to— 

24 (i) intelligence agencies and intel25 ligence gathering; 


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1 (ii) the Authorization for Use of Mili2 tary Force, (Public Law 107–40; 50 

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

4 warrantless surveillance conducted inside 

5 the United States; 

6 (iii) any use of appropriated funds in 

7 carrying out warrantless surveillance con8 ducted inside the United States in con9 tradiction of Federal law; 

10 (iv) the jurisdiction of the Foreign In11 telligence Surveillance Court, in issuing 

12 warrants for the purpose of surveillance 

13 conducted inside the United States; 

14 (v) the role of congressional oversight 

15 and resource allocation; 

16 (vi) possible legislative initiatives that 

17 could strengthen the use of lawful surveil18 lance conducted inside the United States in 

19 effectively protecting national security, 

20 while preserving constitutional checks and 

21 balances and liberties; and 

22 (vii) other areas of the public and pri23 vate sectors determined relevant by the 

24 Commission for its inquiry; and 


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1 (2) submit to the President and Congress such 

2 reports as are required by this Act containing such 

3 findings, conclusions, and recommendations as the 

4 Commission shall determine, including proposing or5 ganization, coordination, planning, management ar6 rangements, procedures, rules, and regulations. 

7 SEC. 7. POWERS OF COMMISSION. 

8 (a) IN GENERAL.— 

9 (1) HEARINGS AND EVIDENCE.—The Commis10 sion or, on the authority of the Commission, any 

11 subcommittee or member thereof, may, for the pur12 pose of carrying out this Act— 

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

14 such times and places, take such testimony, re15 ceive such evidence, administer such oaths; and 

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

17 by subpoena or otherwise, the attendance and 

18 testimony of such witnesses and the production 

19 of such books, records, correspondence, memo20 randa, papers, and documents, as the Commis21 sion or such designated subcommittee or des22 ignated member may determine advisable. 

23 (2) SUBPOENAS.— 

24 (A) ISSUANCE.— 


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1 (i) IN GENERAL.—A subpoena may be 

2 issued under this subsection only— 

3 (I) by the agreement of the 

4 Chairman and the Vice Chairman; or 

5 (II) by the affirmative vote of 8 

6 members of the Commission. 

7 (ii) SIGNATURE.—Subject to clause 

8 (i), subpoenas issued under this subsection 

9 may be issued under the signature of the 

10 Chairman or any member designated by a 

11 majority of the Commission, and may be 

12 served by any person designated by the 

13 Chairman or by a member designated by a 

14 majority of the Commission. 

15 (B) ENFORCEMENT.—In the case of contu16 macy or failure to obey a subpoena issued the 

17 United States district court for the judicial dis18 trict in which the subpoenaed person resides, is 

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

20 is returnable, may issue an order requiring such 

21 person to appear at any designated place to tes22 tify or to produce documentary or other evi23 dence. Any failure to obey the order of the 

24 court may be punished by the court as a con25 tempt of that court. 


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

2 extent and in such amounts as are provided in appropria3 tion Acts, enter into contracts to enable the Commission 

4 to discharge its duties under this Act. 

5 (c) INFORMATION FROM FEDERAL AGENCIES.— 

6 (1) IN GENERAL.—The Commission is author7 ized to secure directly from any executive depart8 ment, bureau, agency, board, commission, office, 

9 independent establishment, or instrumentality of the 

10 Federal Government, information, suggestions, esti11 mates, and statistics for the purposes of this Act. 

12 Each department, bureau, agency, board, commis13 sion, office, independent establishment, or instru14 mentality shall, to the extent authorized by law, fur15 nish such information, suggestions, estimates, and 

16 statistics directly to the Commission, upon request 

17 made by the Chairman, the Chairman of any sub18 committee created by a majority of the Commission, 

19 or any member designated by a majority of the 

20 Commission. 

21 (2) RECEIPT, HANDLING, STORAGE, AND DIS22 SEMINATION.—Information shall only be received, 

23 handled, stored, and disseminated by members of 

24 the Commission and its staff consistent with all ap25 plicable statutes, regulations, and Executive orders. 


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1 (d) ASSISTANCE FROM FEDERAL AGENCIES.— 

2 (1) GENERAL SERVICES ADMINISTRATION.— 

3 The Administrator of General Services shall provide 

4 to the Commission on a reimbursable basis adminis5 trative support and other services for the perform6 ance of the Commission’s functions. 

7 (2) OTHER DEPARTMENTS AND AGENCIES.—In 

8 addition to the assistance prescribed in paragraph 

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

10 may provide to the Commission such services, funds, 

11 facilities, staff, and other support services as they 

12 may determine advisable and as may be authorized 

13 by law. 

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

15 the United States mails in the same manner and under 

16 the same conditions as departments and agencies of the 

17 United States. 

18 SEC. 8. NONAPPLICABILITY OF FEDERAL ADVISORY COM19 MITTEE ACT. 

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

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

22 (b) PUBLIC MEETINGS AND RELEASE OF PUBLIC

23 VERSIONS OF REPORTS.—The Commission shall— 

24 (1) hold public hearings and meetings to the ex25 tent appropriate; and 


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1 (2) release public versions of the reports re2 quired under subsections (a) and (b) of section 12. 

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

4 Commission shall be conducted in a manner consistent 

5 with the protection of information provided to or developed 

6 for or by the Commission as required by any applicable 

7 statute, regulation, or Executive order. 

8 SEC. 9. STAFF OF COMMISSION. 

9 (a) IN GENERAL.— 

10 (1) APPOINTMENT AND COMPENSATION.—The 

11 Chairman, in consultation with the Vice Chairman 

12 and in accordance with rules agreed upon by the 

13 Commission, may appoint and fix the compensation 

14 of a staff director and such other personnel as may 

15 be necessary to enable the Commission to carry out 

16 its functions, without regard to the provisions of 

17 title 5, United States Code, governing appointments 

18 in the competitive service, and without regard to the 

19 provisions of chapter 51 and subchapter III of chap20 ter 53 of such title relating to classification and 

21 General Schedule pay rates, except that no rate of 

22 pay fixed under this subsection may exceed the 

23 equivalent of that payable for a position at level V 

24 of the Executive Schedule under section 5316 of title 

25 5, United States Code. 


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1 (2) PERSONNEL AS FEDERAL EMPLOYEES.— 

2 (A) IN GENERAL.—The executive director 

3 and any personnel of the Commission who are 

4 employees shall be employees under section 

5 2105 of title 5, United States Code, for pur6 poses of chapters 63, 81, 83, 84, 85, 87, 89, 

7 89A, 89B, and 90 of that title. 

8 (B) MEMBERS OF COMMISSION.—Subpara9 graph (A) shall not be construed to apply to 

10 members of the Commission. 

11 (b) DETAILEES.—Any Federal Government employee 

12 may be detailed to the Commission without reimbursement 

13 from the Commission, and such detailee shall retain the 

14 rights, status, and privileges of his or her regular employ15 ment without interruption. 

16 (c) CONSULTANT SERVICES.—The Commission is au17 thorized to procure the services of experts and consultants 

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

19 Code, but at rates not to exceed the daily rate paid a per20 son occupying a position at level IV of the Executive 

21 Schedule under section 5315 of title 5, United States 

22 Code. 

23 SEC. 10. COMPENSATION AND TRAVEL EXPENSES. 

24 (a) COMPENSATION.—Each member of the Commis25 sion may be compensated at not to exceed the daily equivaVerDate Aug 31 2005 18:10 Apr 30, 2006 Jkt 049200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6201 E:\BILLS\H5223.IH H5223

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1 lent of the annual rate of basic pay in effect for a position 

2 at level IV of the Executive Schedule under section 5315 

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

4 that member is engaged in the actual performance of the 

5 duties of the Commission. 

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

7 homes or regular places of business in the performance 

8 of services for the Commission, members of the Commis9 sion shall be allowed travel expenses, including per diem 

10 in lieu of subsistence, in the same manner as persons em11 ployed intermittently in the Government service are al12 lowed expenses under section 5703(b) of title 5, United 

13 States Code. 

14 SEC. 11. SECURITY CLEARANCES FOR COMMISSION MEM15 BERS AND STAFF. 

16 The appropriate Federal departments or agencies 

17 shall cooperate with the Commission in expeditiously pro18 viding to the Commission members and staff appropriate 

19 security clearances to the extent possible under the rel20 evant procedures and requirements, except that no person 

21 shall be provided with access to classified information 

22 under this Act without the appropriate security clearances. 

23 SEC. 12. REPORTS OF COMMISSION; TERMINATION. 

24 (a) INTERIM REPORTS.—The Commission shall sub25 mit to the President and Congress interim reports conVerDate Aug 31 2005 18:10 Apr 30, 2006 Jkt 049200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H5223.IH H5223

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1 taining such findings, conclusions, and recommendations 

2 for corrective measures as have been agreed to by a major3 ity of Commission members. 

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

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

6 submit to the President and Congress a final report con7 taining such findings, conclusions, and recommendations 

8 for corrective measures as have been agreed to by a major9 ity of Commission members. 

10 (c) CLASSIFIED INFORMATION.—Each report sub11 mitted under subsection (a) or (b) shall be in unclassified 

12 form, but may include a classified annex. 

13 (d) TERMINATION.— 

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

15 authorities of this Act, shall terminate 60 days after 

16 the date on which the final report is submitted 

17 under subsection (b). 

18 (2) ADMINISTRATIVE ACTIVITIES BEFORE TER19 MINATION.—The Commission may use the 60-day 

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

21 of concluding its activities, including providing testi22 mony to committees of Congress concerning its re23 ports and disseminating the final report. 


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1 SEC. 13. FUNDING. 

2 (a) AUTHORIZATION OF APPROPRIATIONS.—There 

3 are authorized to be appropriated such sums as are nec4 essary to carry out this Act. 

5 (b) DURATION OF AVAILABILITY.—Amounts made 

6 available to the Commission under subsection (a) shall re7 main available until the termination of the Commission. 

Æ 


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