I 

109TH CONGRESS 

2D SESSION H. R. 5371 

To reiterate that the Foreign Intelligence Surveillance Act of 1978 and 

title 18, United States Code, are the exclusive means by which domestic 

electronic surveillance may be conducted, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 11, 2006 

Ms. HARMAN (for herself, Mr. CONYERS, Mr. HASTINGS of Florida, Mr. BOSWELL, Mr. REYES, Mr. CRAMER, Ms. ESHOO, Mr. RUPPERSBERGER, Mr. 

BOUCHER, Mr. NADLER, Mr. SCOTT of Virginia, Ms. ZOE LOFGREN of 

California, Ms. JACKSON-LEE of Texas, Mr. WEXLER, and Ms. HOOLEY) 

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 reiterate that the Foreign Intelligence Surveillance Act 

of 1978 and title 18, United States Code, are the exclusive means by which domestic electronic surveillance may 

be conducted, and for other purposes. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Lawful Intelligence 

3 and Surveillance of Terrorists in an Emergency by NSA 

4 Act’’ or the ‘‘LISTEN Act’’. 

5 SEC. 2. FINDINGS. 

6 Congress finds the following: 

7 (1) Conducting electronic surveillance of al 

8 Qaeda and other international terrorist groups is in9 tegral to protecting people in the United States from 

10 terrorism. Electronic surveillance can assist in the 

11 detection and prevention of terrorist plots. 

12 (2) Electronic surveillance may, at times, in13 volve surveillance of persons in the United States. 

14 Such electronic surveillance is lawful if conducted in 

15 accordance with the Fourth Amendment to the Con16 stitution and the Foreign Intelligence Surveillance 

17 Act of 1978 or chapters 119 or 121 of title 18, 

18 United States Code. 

19 (3) It is essential that in protecting the United 

20 States from enemies, the President does not com21 promise the civil liberties that the President is 

22 charged with safeguarding. In 2004, Justice Sandra 

23 Day O’Connor explained in a plurality opinion for 

24 the Supreme Court in Hamdi v. Rumsfeld, ‘‘We have 

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


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1 blank check for the President when it comes to the 

2 rights of the Nation’s citizens’’. 

3 (4) Section 8 of article I of the Constitution of 

4 the United States provides that ‘‘Congress shall have 

5 the Power . . . to make all Laws which shall be nec6 essary and proper for carrying into Execution the 

7 foregoing Powers and all other Powers vested in this 

8 Constitution in the Government of the United 

9 States, or in any Department or Officer thereof’’. 

10 (5) In passing the Foreign Intelligence Surveil11 lance Act of 1978, Congress expressly determined 

12 that the Foreign Intelligence Surveillance Act of 

13 1978 and chapters 119 and 121 of title 18, United 

14 States Code, are the exclusive means by which sur15 veillance can be conducted in the United States. 

16 (6) The Foreign Intelligence Surveillance Act of 

17 1978 (50 U.S.C. 1801 et seq.) authorizes the Fed18 eral Government to conduct electronic surveillance of 

19 persons in the United States for purposes of gath20 ering intelligence and counterintelligence. The Act 

21 contains emergency procedures under which elec22 tronic surveillance may begin up to 72 hours before 

23 the Federal Government presents to the Foreign In24 telligence Surveillance Court an application for a 

25 court order approving electronic surveillance. 


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1 (7) The Fourth Amendment to the Constitution 

2 of the United States declares that ‘‘The right of the 

3 people to be secure in their persons, houses, papers, 

4 and effects, against unreasonable searches and sei5 zures, shall not be violated, and no Warrants shall 

6 issue, but upon probable cause, supported by Oath 

7 or affirmation, and particularly describing the place 

8 to be searched, and the persons or things to be 

9 seized’’. 

10 (8) A determination of reasonableness under 

11 the Fourth Amendment must ultimately be made by 

12 an independent magistrate, not by an executive 

13 branch official. 

14 (9) The Authorization for Use of Military Force 

15 (Public Law 107–40), passed by Congress on Sep16 tember 14, 2001, does not constitute legal authoriza17 tion for electronic surveillance not authorized by 

18 chapters 119 or 121 of title 18, United States Code, 

19 or the Foreign Intelligence Surveillance Act of 1978 

20 (50 U.S.C. 1801 et seq.). 


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1 SEC. 3. REITERATION OF CHAPTERS 119 AND 121 OF TITLE 

2 18, UNITED STATES CODE, AND THE FOREIGN 

3 INTELLIGENCE SURVEILLANCE ACT OF 1978 

4 AS THE EXCLUSIVE MEANS BY WHICH DO5 MESTIC ELECTRONIC SURVEILLANCE MAY BE 

6 CONDUCTED. 

7 Notwithstanding any other provision of law, chapters 

8 119 and 121 of title 18, United States Code, and the For9 eign Intelligence Surveillance Act of 1978 (50 U.S.C. 

10 1801 et seq.) shall be the exclusive means by which elec11 tronic surveillance may be conducted. 

12 SEC. 4. COMPLIANCE WITH FISA REQUIREMENTS. 

13 (a) ENSURING COMPLIANCE.—The President shall 

14 ensure that all electronic surveillance of persons in the 

15 United States is conducted in accordance with chapters 

16 119 or 121 of title 18, United States Code, or title I of 

17 the Foreign Intelligence Surveillance Act of 1978 (50 

18 U.S.C. 1801 et seq.). 

19 (b) PROCEDURES.—The President shall ensure that 

20 the procedures for applying for an order for electronic sur21 veillance under title I of the Foreign Intelligence Surveil22 lance Act of 1978 continue to be adequate for the timely 

23 and efficient electronic surveillance of appropriate targets. 

24 (c) REPORT.— 

25 (1) IN GENERAL.—If at any time the President 

26 determines that the procedures described in subVerDate Aug 31 2005 00:21 May 16, 2006 Jkt 049200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5371.IH H5371

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1 section (b) are not adequate for the timely and effi2 cient electronic surveillance of appropriate targets in 

3 accordance with title I of the Foreign Intelligence 

4 Surveillance Act of 1978, the President shall submit 

5 to the relevant congressional committees a report 

6 containing findings and recommendations with re7 spect to emergency applications and, to the extent 

8 deemed necessary by the President, routine applica9 tions for an order under such title on— 

10 (A) the level of resources and personnel 

11 needed at the National Security Agency and the 

12 Department of Justice to handle such applica13 tions to the Foreign Intelligence Surveillance 

14 Court; 

15 (B) the need for new information tech16 nology systems to facilitate the near real-time 

17 approval of such applications to the Foreign In18 telligence Surveillance Court; 

19 (C) how to streamline the processing of in20 formation that must be presented to the For21 eign Intelligence Surveillance Court for such an 

22 application; 

23 (D) how to expedite review within the Na24 tional Security Agency, the Department of Jus25 tice, or other appropriate agencies or departVerDate Aug 31 2005 00:21 May 16, 2006 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5371.IH H5371

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1 ments of such applications before such an appli2 cation is submitted to the Attorney General; 

3 (E) whether a senior official reporting to 

4 the Attorney General, such as the Deputy At5 torney General or the Assistant Attorney Gen6 eral for National Security, should be authorized 

7 to approve such applications; and 

8 (F) the need for any legislative changes to 

9 improve such procedures. 

10 (2) DATE OF SUBMISSION.—The report under 

11 paragraph (1) shall be submitted to the relevant 

12 congressional committees not later than 30 days 

13 after the date on which the President determines 

14 under such paragraph that the procedures described 

15 in subsection (b) are not adequate for the timely 

16 electronic surveillance of appropriate targets in the 

17 United States. 

18 (d) RULE OF CONSTRUCTION.—Nothing in this sec19 tion shall be construed to authorize the President to con20 duct electronic surveillance other than in accordance with 

21 title I of the Foreign Intelligence Surveillance Act of 1978 

22 or chapters 119 or 121 of title 18, United States Code. 


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1 SEC. 5. AUTHORIZATION FOR INCREASED RESOURCES TO 

2 PROCESS FOREIGN INTELLIGENCE SURVEIL3 LANCE ACT APPLICATIONS. 

4 There are authorized to be appropriated to the Na5 tional Security Agency and the Department of Justice for 

6 the activities of the Office of Intelligence Policy and Re7 view such sums as may be necessary to meet the increased 

8 personnel and information technology demands to ensure 

9 the timely and efficient processing of applications to the 

10 Foreign Intelligence Surveillance Court. 

11 SEC. 6. DEFINITIONS. 

12 In this Act: 

13 (1) ELECTRONIC SURVEILLANCE.—The term 

14 ‘‘electronic surveillance’’ has the meaning given the 

15 term in section 101(f) of the Foreign Intelligence 

16 Surveillance Act of 1978 (50 U.S.C. 1801(f)). 

17 (2) FOREIGN INTELLIGENCE SURVEILLANCE

18 COURT.—The term ‘‘Foreign Intelligence Surveil19 lance Court’’ has the meaning given the term in sec20 tion 301(3) of the Foreign Intelligence Surveillance 

21 Act of 1978 (50 U.S.C. 1821(3)). 

22 (3) RELEVANT CONGRESSIONAL COMMIT23 TEES.—The term ‘‘relevant congressional commit24 tees’’ means the Permanent Select Committee on In25 telligence and the Committee on the Judiciary of the 

26 House of Representatives and the Select Committee 


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1 on Intelligence and the Committee on the Judiciary 

2 of the Senate. 

Æ 


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