II

Calendar No. 701

106TH CONGRESS

2D SESSION S. 2089

[Report No. 106–352]

To amend the Foreign Intelligence Surveillance Act of 1978 to modify procedures relating to orders for surveillance and searches for foreign intelligence purposes, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 24, 2000

Mr. SPECTER (for himself, Mr. TORRICELLI, Mr. THURMOND, Mr. BIDEN, Mr.

GRASSLEY, Mr. FEINGOLD, Mr. HELMS, Mr. SCHUMER, Mr. SESSIONS,

and Mr. LEAHY) introduced the following bill; which was read twice and

referred to the Committee on the Judiciary

MAY 23, 2000

Reported by Mr. HATCH, with an amendment

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

MAY 23, 2000

Referred to the Select Committee on Intelligence, pursuant to section 3(b) of

Senate Resolution 400, 94th Congress, for a period not to exceed 30 days

of session

JULY 20, 2000

Reported by Mr. SHELBY, with amendments

[Omit the part in boldface brackets and insert the part in bold roman]

A BILL

To amend the Foreign Intelligence Surveillance Act of 1978

to modify procedures relating to orders for surveillance
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and searches for foreign intelligence purposes, 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,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Counterintelligence Re5 form Act of 2000’’.

6 SEC. 2. CIRCUMSTANCES ESTABLISHING PROBABLE CAUSE

7 FOR ISSUANCE OF ORDERS FOR ELECTRONIC

8 SURVEILLANCE UNDER FOREIGN INTEL9 LIGENCE SURVEILLANCE ACT OF 1978.

10 (a) PAST ACTIVITIES.—Section 105 of the Foreign

11 Intelligence Surveillance Act of 1978 (50 U.S.C. 1805) is

12 amended—

13 (1) by redesignating subsections (b), (c), (d),

14 (e), (f), and (g) as subsections (c), (d), (e), (f), (g),

15 and (h), respectively; and

16 (2) by inserting after subsection (a) the fol17 lowing new subsection (b):

18 ‘‘(b) In determining whether or not probable cause

19 exists for purposes of an order under subsection (a)(3),

20 a judge may consider past activities of the target, as well

21 as facts and circumstances relating to current or future

22 activities of the target.’’.

23 (b) CONFORMING AMENDMENT.—Subsection (d) of

24 that section, as redesignated by subsection (a)(1) of this
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1 section, is amended by striking ‘‘subsection (b)(1)’’ and

2 inserting ‘‘subsection (c)(1)’’.

3 SEC. 3. ORDERS FOR ELECTRONIC SURVEILLANCE UNDER

4 FOREIGN INTELLIGENCE SURVEILLANCE ACT

5 OF 1978.

6 (a) DESCRIPTION OF INTELLIGENCE OR LAW-EN7 FORCEMENT ACTIVITIES OF CERTAIN TARGETS.—Section

8 104 of the Foreign Intelligence Surveillance Act of 1978

9 (50 U.S.C. 1804) is amended—

10 (1) in subsection (a)—

11 (A) by redesignating paragraphs (8), (9),

12 (10), and (11) as paragraphs (9), (10), (11),

13 and (12), respectively; and

14 (B) by inserting after paragraph (7) the

15 following new paragraph (8):

16 ‘‘(8) in the case of an application covering a

17 target described in section 101(b)(2), a detailed de18 scription of—

19 ‘‘(A) any current relationship between the

20 target and any Federal intelligence, intelligence21 related, or law enforcement activity; and

22 ‘‘(B) any prior relationship between the

23 target and any Federal intelligence, intelligence24 related, or law enforcement activity that is rel-
4

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1 evant to a determination of probable cause

2 under section 105;’’; and

3 (2) in subsection (b), by striking ‘‘(8), and

4 (11)’’ and inserting ‘‘(9), and (12)’’.

5 (b) ADDITIONAL REQUIREMENTS REGARDING CER6 TAIN APPLICATIONS.—That section is further amended by

7 adding at the end the following new subsection:

8 ‘‘(e)(1)(A) Upon written request of the Director of

9 the Federal Bureau of Investigation, the Secretary of De10 fense, the Secretary of State, or the Director of Central

11 Intelligence, the Attorney General shall personally review

12 under subsection (a) an application under that subsection

13 for a target described in section 101(b)(2).

14 ‘‘(B) An official referred to in subparagraph (A) may

15 not delegate the authority to make a request referred to

16 in that subparagraph.

17 ‘‘(2)(A) If as a result of a request under paragraph

18 (1) the Attorney General determines not to approve an

19 application under the second sentence of subsection (a) for

20 purposes of making the application under this section, the

21 Attorney General shall provide written notice of the deter22 mination to the official making the request for the review

23 of the application under that paragraph. The Attorney

24 General may not delegate the responsibility set forth in

25 the preceding sentence.
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1 ‘‘(B) Notice with respect to an application under sub2 paragraph (A) shall set forth the modifications, if any, of

3 the application that are necessary in order for the Attor4 ney General to approve the application under the second

5 sentence of subsection (a) for purposes of making the ap6 plication under this section.

7 ‘‘(C) Upon review of any modifications of an applica8 tion set forth under subparagraph (B), the official notified

9 of the modifications under this paragraph shall modify the

10 application if such official determines that such modifica11 tion is warranted. Such official shall supervise the making

12 of any modification under this subparagraph. Such official

13 may not delegate the responsibility set forth in the pre14 ceding sentence.’’.

15 SEC. 4. ORDERS FOR PHYSICAL SEARCHES UNDER FOR16 EIGN INTELLIGENCE SURVEILLANCE ACT OF

17 1978.

18 (a) DESCRIPTION OF INTELLIGENCE OR LAW-EN19 FORCEMENT ACTIVITIES OF CERTAIN TARGETS.—Sub20 section (a) of section 303 of the Foreign Intelligence Sur21 veillance Act of 1978 (50 U.S.C. 1823) is amended—

22 (1) by redesignating paragraphs (8) and (9) as

23 paragraphs (9) and (10), respectively; and

24 (2) by inserting after paragraph (7) the fol25 lowing new paragraph (8):
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1 ‘‘(8) in the case of an application covering a

2 target described in section 101(b)(2), a detailed de3 scription of—

4 ‘‘(A) any current relationship between the

5 target and any Federal intelligence, intelligence6 related, or law enforcement activity; and

7 ‘‘(B) any prior relationship between the

8 target and any Federal intelligence, intelligence9 related, or law enforcement activity that is rel10 evant to a determination of probable cause

11 under section 304;’’.

12 (b) ADDITIONAL REQUIREMENTS REGARDING CER13 TAIN APPLICATIONS.—That section is further amended by

14 adding at the end the following new subsection:

15 ‘‘(d)(1)(A) Upon written request of the Director of

16 the Federal Bureau of Investigation, the Secretary of De17 fense, the Secretary of State, or the Director of Central

18 Intelligence, the Attorney General shall personally review

19 under subsection (a) an application under that subsection

20 for a target described in section 101(b)(2).

21 ‘‘(B) An official referred to in subparagraph (A) may

22 not delegate the authority to make a request referred to

23 in that subparagraph.

24 ‘‘(2)(A) If as a result of a request under paragraph

25 (1) the Attorney General determines not to approve an
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1 application under the second sentence of subsection (a) for

2 purposes of making the application under this section, the

3 Attorney General shall provide written notice of the deter4 mination to the official making the request for the review

5 of the application under that paragraph. The Attorney

6 General may not delegate the responsibility set forth in

7 the preceding sentence.

8 ‘‘(B) Notice with respect to an application under sub9 paragraph (A) shall set forth the modifications, if any, of

10 the application that are necessary in order for the Attor11 ney General to approve the application under the second

12 sentence of subsection (a) for purposes of making the ap13 plication under this section.

14 ‘‘(C) Upon review of any modifications of an applica15 tion set forth under subparagraph (B), the official notified

16 of the modifications under this paragraph shall modify the

17 application if such official determines that such modifica18 tion is warranted. Such official shall supervise the making

19 of any modification under this subparagraph. Such official

20 may not delegate the responsibility set forth in the pre21 ceding sentence.’’.
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1 SEC. 5. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES

2 OF INFORMATION ACQUIRED UNDER FOR3 EIGN INTELLIGENCE SURVEILLANCE ACT OF

4 1978.

5 (a) REGULATIONS RELATING TO DISCLOSURE.—Not

6 later than 180 days after the date of the enactment of

7 this Act, the Attorney General shall prescribe in regula8 tions the following:

9 (1) The circumstances under which information

10 acquired pursuant to title I of the Foreign Intel11 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et

12 seq.) shall be disclosed for law enforcement purposes

13 under section 106(b) of that Act (50 U.S.C.

14 1806(b)).

15 (2) The circumstances under which information

16 acquired pursuant to title III of the Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 1821 et

18 seq.) shall be disclosed for law enforcement purposes

19 under section 305(c) of that Act (50 U.S.C.

20 1825(c)).

21 (3) The circumstances under which information

22 acquired pursuant to title IV of the Foreign Intel23 ligence Surveillance Act of 1978 (50 U.S.C. 1841 et

24 seq.) shall be disclosed for law enforcement purposes

25 under section 405(b) of that Act (50 U.S.C.

26 1845(b)).
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1 (b) SUBMITTAL TO CONGRESS.—The Attorney Gen2 eral shall submit to the Committees on the Judiciary of

3 the Senate and House of Representatives the regulations

4 prescribed by the Attorney General under subsection (a).

5 SEC. 6. COORDINATION OF COUNTERINTELLIGENCE WITH

6 THE FEDERAL BUREAU OF INVESTIGATION.

7 (a) TREATMENT OF CERTAIN SUBJECTS OF INVES8 TIGATION.—Subsection (c) of section 811 of the Intel9 ligence Authorization Act for Fiscal Year 1995 (50 U.S.C.

10 402a) is amended—

11 (1) in paragraphs (1) and (2), by striking

12 ‘‘paragraph (3)’’ and inserting ‘‘paragraph (5)’’;

13 (2) by redesignating paragraphs (3), (4), (5),

14 and (6) as paragraphs (5), (6), (7), and (9), respec15 tively;

16 (3) by inserting after paragraph (2) the fol17 lowing new paragraph (3):

18 ‘‘(3)(A) The Director of the Federal Bureau of Inves19 tigation shall notify in writing the head of the department

20 or agency concerned of a finding by the Federal Bureau

21 of Investigation that the subject of an investigation under

22 paragraph (1) should be left in place for investigative pur23 poses.

24 ‘‘(B) Not later than 30 days after receiving written

25 notification under subparagraph (A), the head of the de-
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1 partment or agency so notified shall submit to the Direc2 tor a plan to minimize the unauthorized disclosure of clas3 sified information by the subject concerned.

4 ‘‘(C) A plan under this paragraph may be modified

5 if the Director and the head of the department or agency

6 concerned jointly determine that the modification is war7 ranted. A modification under this subparagraph may in8 clude a decision that the subject of an investigation no

9 longer be left in place for investigative purposes.

10 ‘‘(D) A disagreement regarding an element of a plan

11 under subparagraph (A), including a proposed modifica12 tion of the plan under subparagraph (C), shall be resolved

13 by the Board.’’; and

14 (4) in paragraph (5), as so redesignated, by

15 striking ‘‘paragraph (1) or (2)’’ and inserting ‘‘para16 graph (1), (2), or (3)’’.

17 (b) TIMELY PROVISION OF INFORMATION AND CON18 SULTATION ON ESPIONAGE INVESTIGATIONS.—Paragraph

19 (2) of that subsection is further amended—

20 (1) by inserting ‘‘in a timely manner’’ after

21 ‘‘through appropriate channels’’; and

22 (2) by inserting ‘‘in a timely manner’’ after

23 ‘‘are consulted’’.

24 (c) INTERFERENCE WITH FULL FIELD ESPIONAGE

25 INVESTIGATIONS.—That subsection is further amended by
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1 inserting after paragraph (3), as amended by subsection

2 (a) of this section, the following new paragraph (4):

3 ‘‘(4)(A) The Federal Bureau of Investigation shall

4 notify appropriate officials within the executive branch, in5 cluding the head of the department or agency concerned,

6 of the commencement of a full field espionage investiga7 tion with respect to an employee within the executive

8 branch.

9 ‘‘(B)(i) A department or agency may not conduct a

10 polygraph examination, interrogate, or otherwise take any

11 action that is likely to alert an employee covered by a no12 tice under subparagraph (A) of an investigation described

13 in that subparagraph without prior coordination with the

14 Federal Bureau of Investigation.

15 ‘‘(ii) Any examination, interrogation, or other action

16 taken under clause (i) shall be taken in consultation with

17 the Federal Bureau of Investigation.’’.

18 (d) COORDINATION OF INFORMATION ON ESPIONAGE

19 INVESTIGATIONS.—That subsection is further amended by

20 inserting after paragraph (7), as redesignated by sub21 section (a)(2) of this section, the following new paragraph

22 (8):

23 ‘‘(8) The Director of the Federal Bureau of Inves24 tigation shall be responsible for coordinating all informa25 tion relating to espionage investigations, including infor-
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1 mation on any prior or current relationship between the

2 subjects of such investigations and any Federal intel3 ligence or intelligence-related activity, within the intel4 ligence community and within and among Federal law en5 forcement agencies.’’.

6 (e) REQUESTS FOR TECHNICAL ASSISTANCE.—That

7 section is further amended by adding at the end the fol8 lowing new subsection (d):

9 ‘‘(d) REQUESTS FOR TECHNICAL ASSISTANCE.—The

10 Director of the Federal Bureau of Investigation and the

11 Director of the National Security Agency shall establish

12 procedures to ensure the timely evaluation and determina13 tions regarding requests from the Federal Bureau of In14 vestigation for technical assistance in counterintelligence

15 activities covered by this section.’’.

16 SEC. 7. SEVERABILITY.

17 If any provision of this Act (including an amendment

18 made by this Act), or the application thereof, to any per19 son or circumstance, is held invalid, the remainder of this

20 Act (including the amendments made by this Act), and

21 the application thereof, to other persons or circumstances

22 shall not be affected thereby.

23 SECTION 1. SHORT TITLE.

24 This Act may be cited as the ‘‘Counterintelligence Re25 form Act of 2000’’.
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1 SEC. 2. ORDERS FOR ELECTRONIC SURVEILLANCE UNDER

2 THE FOREIGN INTELLIGENCE SURVEILLANCE

3 ACT OF 1978.

4 ø(a) DESCRIPTION OF INTELLIGENCE OR LAW-EN5 FORCEMENT ACTIVITIES OF CERTAIN TARGETS.—Section

6 104 of the Foreign Intelligence Surveillance Act of 1978 (50

7 U.S.C. 1804) is amended—

8 ø(1) in subsection (a)—

9 ø(A) by redesignating paragraphs (8), (9),

10 (10), and (11) as paragraphs (9), (10), (11), and

11 (12), respectively; and

12 ø(B) by inserting after paragraph (7) the

13 following new paragraph (8):

14 ø‘‘(8) in the case of an application covering a

15 target described in section 101(b)(2), a detailed de16 scription of—

17 ø‘‘(A) any current relationship between the

18 target and any Federal intelligence, intelligence19 related, or law enforcement activity; and

20 ø‘‘(B) any prior relationship between the

21 target and any Federal intelligence, intelligence22 related, or law enforcement activity that is rel23 evant to a determination of probable cause under

24 section 105;’’; and

25 ø(2) in subsection (b), by striking ‘‘(8), and

26 (11)’’ and inserting ‘‘(9), and (12)’’.
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1 ø(b) ADDITIONAL REQUIREMENTS REGARDING CER2 TAIN APPLICATIONS.—That section is further amended by

3 adding at the end the following new subsection:¿

4 (a) REQUIREMENTS REGARDING CERTAIN AP5 PLICATIONS.—Section 104 of the Foreign Intel6 ligence Surveillance Act of 1978 (50 U.S.C.

7 1804) is amended by adding at the end the fol8 lowing new subsection:

9 ‘‘(e)(1)(A) Upon written request of the Director of the

10 Federal Bureau of Investigation, the Secretary of Defense,

11 the Secretary of State, or the Director of Central Intel12 ligence, the Attorney General shall personally review under

13 subsection (a) an application under that subsection for a

14 target described in section 101(b)(2).

15 ‘‘(B) Except when disabled or otherwise unavailable

16 to make a request referred to in subparagraph (A), an offi17 cial referred to in that subparagraph may not delegate the

18 authority to make a request referred to in that subpara19 graph.

20 ‘‘(C) Each official referred to in subpara21 graph (A) with authority to make a request

22 under that subparagraph shall take appro23 priate actions in advance to ensure that dele24 gation of such authority is clearly established
15

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1 in the event such official is disabled or other2 wise unavailable to make such request.

3 ‘‘(2)(A) If as a result of a request under paragraph

4 (1) the Attorney General determines not to approve an ap5 plication under the second sentence of subsection (a) for

6 purposes of making the application under this section, the

7 Attorney General shall provide written notice of the deter8 mination to the official making the request for the review

9 of the application under that paragraph. Except when dis10 abled or otherwise unavailable to make a determination

11 under the preceding sentence, the Attorney General may not

12 delegate the responsibility to make a determination under

13 that sentence. The Attorney General shall take

14 appropriate actions in advance to ensure that

15 delegation of such responsibility is clearly es16 tablished in the event the Attorney General is

17 disabled or otherwise unavailable to make

18 such determination.

19 ‘‘(B) Notice with respect to an application under sub20 paragraph (A) shall set forth the modifications, if any, of

21 the application that are necessary in order for the Attorney

22 General to approve the application under the second sen23 tence of subsection (a) for purposes of making the applica24 tion under this section.
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1 ‘‘(C) Upon review of any modifications of an applica2 tion set forth under subparagraph (B), the official notified

3 of the modifications under this paragraph shall modify the

4 application if such official determines that such modifica5 tion is warranted. Such official shall supervise the making

6 of any modification under this subparagraph. Except when

7 disabled or otherwise unavailable to supervise the making

8 of any modification under the preceding sentence, such offi9 cial may not delegate the responsibility to supervise the

10 making of any modification under that preceding sentence.

11 Each such official shall take appropriate ac12 tions in advance to ensure that delegation of

13 such responsibility is clearly established in

14 the event such official is disabled or other15 wise unavailable to supervise the making of

16 such modification.’’.

17 ø(c)¿ (b) PROBABLE CAUSE.—Section 105 of that Act

18 (50 U.S.C. 1805) is amended—

19 (1) by redesignating subsections (b), (c), (d), (e),

20 (f), and (g) as subsections (c), (d), (e), (f), (g), and

21 (h), respectively;

22 (2) by inserting after subsection (a) the following

23 new subsection (b):

24 ‘‘(b) In determining whether or not probable cause ex25 ists for purposes of an order under subsection (a)(3), a judge
17

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1 may consider past activities of the target, as well as facts

2 and circumstances relating to current or future activities

3 of the target.’’; and

4 (3) in subsection (d), as redesignated by para5 graph (1), by striking ‘‘subsection (b)(1)’’ and insert6 ing ‘‘subsection (c)(1)’’.

7 SEC. 3. ORDERS FOR PHYSICAL SEARCHES UNDER THE

8 FOREIGN INTELLIGENCE SURVEILLANCE ACT

9 OF 1978.

10 ø(a) DESCRIPTION OF INTELLIGENCE OR LAW-EN11 FORCEMENT ACTIVITIES OF CERTAIN TARGETS.—Sub12 section (a) of section 303 of the Foreign Intelligence Surveil13 lance Act of 1978 (50 U.S.C. 1823) is amended—

14 ø(1) by redesignating paragraphs (8) and (9) as

15 paragraphs (9) and (10), respectively; and

16 ø(2) by inserting after paragraph (7) the fol17 lowing new paragraph (8):

18 ø‘‘(8) in the case of an application covering a

19 target described in section 101(b)(2), a detailed de20 scription of—

21 ø‘‘(A) any current relationship between the

22 target and any Federal intelligence, intelligence23 related, or law enforcement activity; and

24 ø‘‘(B) any prior relationship between the

25 target and any Federal intelligence, intelligence-
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1 related, or law enforcement activity that is rel2 evant to a determination of probable cause under

3 section 304;’’.

4 ø(b) ADDITIONAL REQUIREMENTS REGARDING CER5 TAIN APPLICATIONS.—That section is further amended by

6 adding at the end the following new subsection:¿

7 (a) REQUIREMENTS REGARDING CERTAIN AP8 PLICATIONS.—Section 303 of the Foreign Intel9 ligence Surveillance Act of 1978 (50 U.S.C.

10 1823) is amended by adding at the end the fol11 lowing new subsection:

12 ‘‘(d)(1)(A) Upon written request of the Director of the

13 Federal Bureau of Investigation, the Secretary of Defense,

14 the Secretary of State, or the Director of Central Intel15 ligence, the Attorney General shall personally review under

16 subsection (a) an application under that subsection for a

17 target described in section 101(b)(2).

18 ‘‘(B) Except when disabled or otherwise unavailable

19 to make a request referred to in subparagraph (A), an offi20 cial referred to in that subparagraph may not delegate the

21 authority to make a request referred to in that subpara22 graph.

23 ‘‘(C) Each official referred to in subpara24 graph (A) with authority to make a request

25 under that subparagraph shall take appro-
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1 priate actions in advance to ensure that dele2 gation of such authority is clearly established

3 in the event such official is disabled or other4 wise unavailable to make such request.

5 ‘‘(2)(A) If as a result of a request under paragraph

6 (1) the Attorney General determines not to approve an ap7 plication under the second sentence of subsection (a) for

8 purposes of making the application under this section, the

9 Attorney General shall provide written notice of the deter10 mination to the official making the request for the review

11 of the application under that paragraph. Except when dis12 abled or otherwise unavailable to make a determination

13 under the preceding sentence, the Attorney General may not

14 delegate the responsibility to make a determination under

15 that sentence. The Attorney General shall take

16 appropriate actions in advance to ensure that

17 delegation of such responsibility is clearly es18 tablished in the event the Attorney General is

19 disabled or otherwise unavailable to make

20 such determination.

21 ‘‘(B) Notice with respect to an application under sub22 paragraph (A) shall set forth the modifications, if any, of

23 the application that are necessary in order for the Attorney

24 General to approve the application under the second sen-
20

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1 tence of subsection (a) for purposes of making the applica2 tion under this section.

3 ‘‘(C) Upon review of any modifications of an applica4 tion set forth under subparagraph (B), the official notified

5 of the modifications under this paragraph shall modify the

6 application if such official determines that such modifica7 tion is warranted. Such official shall supervise the making

8 of any modification under this subparagraph. Except when

9 disabled or otherwise unavailable to supervise the making

10 of any modification under the preceding sentence, such offi11 cial may not delegate the responsibility to supervise the

12 making of any modification under that preceding sentence.

13 Each such official shall take appropriate ac14 tions in advance to ensure that delegation of

15 such responsibility is clearly established in

16 the event such official is disabled or other17 wise unavailable to supervise the making of

18 such modification.’’.

19 ø(c)¿ (b) PROBABLE CAUSE.—Section 304 of that Act

20 (50 U.S.C. 1824) is amended—

21 (1) by redesignating subsections (b), (c), (d), and

22 (e) as subsections (c), (d), (e), and (f), respectively;

23 and

24 (2) by inserting after subsection (a) the following

25 new subsection (b):
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1 ‘‘(b) In determining whether or not probable cause ex2 ists for purposes of an order under subsection (a)(3), a judge

3 may consider past activities of the target, as well as facts

4 and circumstances relating to current or future activities

5 of the target.’’.

6 øSEC. 4. DISCLOSURE FOR LAW ENFORCEMENT PURPOSES

7 OF INFORMATION ACQUIRED UNDER THE

8 FOREIGN INTELLIGENCE SURVEILLANCE ACT

9 OF 1978.

10 ø(a) REGULATIONS RELATING TO DISCLOSURE.—Not

11 later than 180 days after the date of the enactment of this

12 Act, the Attorney General shall prescribe in regulations the

13 following:

14 ø(1) The circumstances under which information

15 acquired pursuant to title I of the Foreign Intel16 ligence Surveillance Act of 1978 (50 U.S.C. 1801 et

17 seq.) shall be disclosed for law enforcement purposes

18 under section 106(b) of that Act (50 U.S.C. 1806(b)).

19 ø(2) The circumstances under which information

20 acquired pursuant to title III of the Foreign Intel21 ligence Surveillance Act of 1978 (50 U.S.C. 1821 et

22 seq.) shall be disclosed for law enforcement purposes

23 under section 305(c) of that Act (50 U.S.C. 1825(c)).

24 ø(3) The circumstances under which information

25 acquired pursuant to title IV of the Foreign Intel-
22

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1 ligence Surveillance Act of 1978 (50 U.S.C. 1841 et

2 seq.) shall be disclosed for law enforcement purposes

3 under section 405(b) of that Act (50 U.S.C. 1845(b)).

4 ø(b) SUBMITTAL TO CONGRESS.—The Attorney Gen5 eral shall submit to the Committees on the Judiciary of the

6 Senate and House of Representatives the regulations pre7 scribed by the Attorney General under subsection (a).¿

8 SEC. 4. DISCLOSURE OF INFORMATION ACQUIRED UNDER

9 THE FOREIGN INTELLIGENCE SURVEIL10 LANCE ACT OF 1978 FOR LAW ENFORCEMENT

11 PURPOSES.

12 (a) INCLUSION OF INFORMATION ON DISCLO13 SURE IN SEMIANNUAL OVERSIGHT REPORT.—Sec14 tion 108(a) of the Foreign Intelligence Surveil15 lance Act of 1978 (50 U.S.C. 1808(a)) is

16 amended—

17 (1) by inserting ‘‘(1)’’ after ‘‘(a)’’; and

18 (2) by adding at the end the following

19 new paragraph:

20 ‘‘(2) Each report under the first sentence

21 of paragraph (1) shall include a description

22 of—

23 ‘‘(A) each criminal case in which in24 formation acquired under this Act has

25 been passed for law enforcement pur-
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1 poses during the period covered by such

2 report; and

3 ‘‘(B) each criminal case in which in4 formation acquired under this Act has

5 been authorized for use at trial during

6 such reporting period.’’.

7 (b) REPORT ON MECHANISMS FOR DETER8 MINATIONS OF DISCLOSURE OF INFORMATION FOR

9 LAW ENFORCEMENT PURPOSES.—(1) The Attor10 ney General shall submit to the appropriate

11 committees of Congress a report on the au12 thorities and procedures utilized by the De13 partment of Justice for determining whether

14 or not to disclose information acquired under

15 the Foreign Intelligence Surveillance Act of

16 1978 (50 U.S.C. 1801 et seq.) for law enforce17 ment purposes.

18 (2) In this subsection, the term ‘‘appro19 priate committees of Congress’’ means the fol20 lowing:

21 (A) The Select Committee on Intel22 ligence and the Committee on the Judici23 ary of the Senate.

24 (B) The Permanent Select Committee

25 on Intelligence and the Committee on the
24

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1 Judiciary of the House of Representa2 tives.

3 SEC. 5. COORDINATION OF COUNTERINTELLIGENCE WITH

4 THE FEDERAL BUREAU OF INVESTIGATION.

5 (a) TREATMENT OF CERTAIN SUBJECTS OF INVES6 TIGATION.—Subsection (c) of section 811 of the Intelligence

7 Authorization Act for Fiscal Year 1995 (50 U.S.C. 402a)

8 is amended—

9 (1) in paragraphs (1) and (2), by striking

10 ‘‘paragraph (3)’’ and inserting ‘‘paragraph (5)’’;

11 (2) by redesignating paragraphs (3), (4), (5),

12 and (6) as paragraphs (5), (6), (7), and ø(9)¿ (8),

13 respectively;

14 (3) by inserting after paragraph (2) the fol15 lowing new paragraph (3):

16 ø‘‘(3)(A) The Director of the Federal Bureau of Inves17 tigation shall notify in writing the head of the department

18 or agency concerned of a finding by the Federal Bureau

19 of Investigation that the subject of an investigation under

20 paragraph (1) should be left in place for investigative pur21 poses.

22 ø‘‘(B) Not later than 30 days after receiving written

23 notification under subparagraph (A), the head of the de24 partment or agency so notified shall submit to the Director
25

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1 a plan to minimize the unauthorized disclosure of classified

2 information by the subject concerned.

3 ø‘‘(C) A plan under this paragraph may be modified

4 if the Director and the head of the department or agency

5 concerned jointly determine that the modification is war6 ranted. A modification under this subparagraph may in7 clude a decision that the subject of an investigation no

8 longer be left in place for investigative purposes.

9 ø‘‘(D) A disagreement regarding an element of a plan

10 under subparagraph (A), including a proposed modifica11 tion of the plan under subparagraph (C), shall be resolved

12 by the Board.’’; and¿

13 ‘‘(3)(A) The Director of the Federal Bureau

14 of Investigation shall submit to the head of

15 the department or agency concerned a writ16 ten assessment of the potential impact of the

17 actions of the department or agency on a

18 counterintelligence investigation.

19 ‘‘(B) The head of the department or agen20 cy concerned shall—

21 ‘‘(i) use an assessment under subpara22 graph (A) as an aid in determining

23 whether, and under what circumstances,

24 the subject of an investigation under
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•S 2089 RS

1 paragraph (1) should be left in place for

2 investigative purposes; and

3 ‘‘(ii) notify in writing the Director of

4 the Federal Bureau of Investigation of

5 such determination.

6 ‘‘(C) The Director of the Federal Bureau of

7 Investigation and the head of the department

8 or agency concerned shall continue to con9 sult, as appropriate, to review the status of an

10 investigation covered by this paragraph and

11 to reassess, as appropriate, a determination of

12 the head of the department or agency con13 cerned to leave a subject in place for inves14 tigative purposes.’’; and

15 (4) in paragraph (5), as so redesignated, by

16 striking ‘‘paragraph (1) or (2)’’ and inserting ‘‘para17 graph (1), (2), or (3)’’.

18 (b) TIMELY PROVISION OF INFORMATION AND CON19 SULTATION ON ESPIONAGE INVESTIGATIONS.—Paragraph

20 (2) of that subsection is further amended—

21 (1) by inserting ‘‘in a timely manner’’ after

22 ‘‘through appropriate channels’’; and

23 (2) by inserting ‘‘in a timely manner’’ after ‘‘are

24 consulted’’.
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•S 2089 RS

1 (c) INTERFERENCE WITH FULL FIELD ESPIONAGE IN2 VESTIGATIONS.—That subsection is further amended by in3 serting after paragraph (3), as amended by subsection (a)

4 of this section, the following new paragraph (4):

5 ‘‘(4)(A) The Federal Bureau of Investigation shall no6 tify appropriate officials within the executive branch, in7 cluding the head of the department or agency concerned,

8 of the commencement of a full field espionage investigation

9 with respect to an employee within the executive branch.

10 ‘‘(B)(i) A department or agency may not conduct a

11 polygraph examination, interrogate, or otherwise take any

12 action that is likely to alert an employee covered by a notice

13 under subparagraph (A) of an investigation described in

14 that subparagraph without prior coordination with the

15 Federal Bureau of Investigation.

16 ‘‘(ii) Any examination, interrogation, or other action

17 taken under clause (i) shall be taken in consultation with

18 the Federal Bureau of Investigation.’’.

19 ø(d) COORDINATION OF INFORMATION ON ESPIONAGE

20 INVESTIGATIONS.—That subsection is further amended by

21 inserting after paragraph (7), as redesignated by subsection

22 (a)(2) of this section, the following new paragraph (8):

23 ø‘‘(8) The Director of the Federal Bureau of Investiga24 tion shall be responsible for coordinating all information

25 relating to espionage investigations, including information
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•S 2089 RS

1 on any prior or current relationship between the subjects

2 of such investigations and any Federal intelligence or intel3 ligence-related activity, within the intelligence community

4 and within and among Federal law enforcement agencies.’’.

5 ø(e) REQUESTS FOR TECHNICAL ASSISTANCE.—That

6 section is further amended by adding at the end the fol7 lowing new subsection (d):

8 ø‘‘(d) REQUESTS FOR TECHNICAL ASSISTANCE.—The

9 Director of the Federal Bureau of Investigation and the Di10 rector of the National Security Agency shall establish proce11 dures to ensure the timely evaluation and determinations

12 regarding requests from the Federal Bureau of Investigation

13 for technical assistance in counterintelligence activities cov14 ered by this section.’’.¿

15 SEC. 6. ENHANCING PROTECTION OF NATIONAL SECURITY

16 AT THE DEPARTMENT OF JUSTICE.

17 (a) AUTHORIZATION FOR INCREASED RESOURCES TO

18 FULFILL NATIONAL SECURITY MISSION OF THE DEPART19 MENT OF JUSTICE.—There are authorized to be appro20 priated to the Department of Justice for the activities of

21 the øOffice of Intelligence and Policy Review¿ Office of

22 Intelligence Policy and Review to help meet the

23 increased personnel demands to combat terrorism, process

24 applications to the Foreign Intelligence Surveillance Court,

25 participate effectively in counter-espionage investigations,
29

•S 2089 RS

1 provide policy analysis on national security issues, and en2 hance secure computer and telecommunications facilities—

3 (1) $7,000,000 for fiscal year 2001;

4 (2) $7,500,000 for fiscal year 2002; and

5 (3) $8,000,000 for fiscal year 2003.

6 ø(b) AVAILABILITY OF FUNDS.—Funds made available

7 pursuant to subsection (a), in any fiscal year, shall remain

8 available until expended.¿

9 (b) AVAILABILITY OF FUNDS.—(1) No funds

10 authorized to be appropriated by subsection

11 (a) for the Office of Intelligence Policy and

12 Review may be obligated or expended until 30

13 days after the later of the dates on which the

14 Attorney General submits the reports re15 quired by paragraphs (2) and (3).

16 (2)(A) The Attorney General shall submit

17 to the committees of Congress specified in

18 subparagraph (B) a report on the manner in

19 which the funds authorized to be appro20 priated by subsection (a) for the Office of In21 telligence Policy and Review will be used by

22 that Office—

23 (i) to improve and strengthen its

24 oversight of Federal Bureau of Investiga25 tion field offices in the implementation of
30

•S 2089 RS

1 orders under the Foreign Intelligence

2 Surveillance Act of 1978 (50 U.S.C. 1801 et

3 seq.); and

4 (ii) to streamline and increase the ef5 ficiency of the application process under

6 that Act.

7 (B) The committees of Congress referred

8 to in this subparagraph are the following:

9 (i) The Select Committee on Intel10 ligence and the Committee on the Judici11 ary of the Senate.

12 (ii) The Permanent Select Committee

13 on Intelligence and the Committee on the

14 Judiciary of the House of Representa15 tives.

16 (3) In addition to the report required by

17 paragraph (2), the Attorney General shall also

18 submit to the Select Committee on Intel19 ligence of the Senate and the Permanent Se20 lect Committee on Intelligence of the House of

21 Representatives a report that addresses the

22 issues identified in the semiannual report of

23 the Attorney General to such committees

24 under section 108(a) of the Foreign Intel25 ligence Surveillance Act of 1978 (50 U.S.C.
31

•S 2089 RS

1 1808(a)) that was submitted in April 2000, in2 cluding any corrective actions with regard to

3 such issues. The report under this paragraph

4 shall be submitted in classified form.

5 (4) Funds made available pursuant to sub6 section (a), in any fiscal year, shall remain

7 available until expended.

8 (c) REPORT ON COORDINATING NATIONAL SECURITY

9 AND INTELLIGENCE FUNCTIONS WITHIN THE DEPARTMENT

10 OF JUSTICE.—The Attorney General shall report to the

11 øCommittees on the Judiciary of the Senate and the

12 House of Representatives¿ Select Committee on In13 telligence and the Committee on the Judici14 ary of the Senate and the Permanent Select

15 Committee on Intelligence and the Committee

16 on the Judiciary of the House of Representa17 tives within 120 days on actions that have been or will

18 be taken by the Department to—

19 (1) promote quick and efficient responses to na20 tional security issues;

21 (2) centralize a point-of-contact within the De22 partment on national security matters for external

23 entities and agencies; and

24 (3) coordinate the dissemination of intelligence

25 information within the appropriate components of the
32

•S 2089 RS

1 Department and the formulation of policy on na2 tional security issues.

3 øSEC. 7. SEVERABILITY.¿

4 SEC. 7. COORDINATION REQUIREMENTS RELATING TO THE

5 PROSECUTION OF CASES INVOLVING CLASSI6 FIED INFORMATION.

7 The Classified Information Procedures

8 Act (18 U.S.C. App.) is amended by inserting

9 after section 9 the following new section:

10 ‘‘COORDINATION REQUIREMENTS RELATING TO

11 THE PROSECUTION OF CASES INVOLVING

12 CLASSIFIED INFORMATION

13 ‘‘SEC. 9A. (a) BRIEFINGS REQUIRED.—The

14 Assistant Attorney General for the Criminal

15 Division and the appropriate United States

16 Attorney, or the designees of such officials,

17 shall provide briefings to the senior agency

18 official, or the designee of such official, with

19 respect to any case involving classified infor20 mation that originated in the agency of such

21 senior agency official.

22 ‘‘(b) TIMING OF BRIEFINGS.—Briefings

23 under subsection (a) with respect to a case

24 shall occur—

25 ‘‘(1) as soon as practicable after the

26 Department of Justice and the United
33

•S 2089 RS

1 States Attorney concerned determine

2 that a prosecution or potential prosecu3 tion could result; and

4 ‘‘(2) at such other times thereafter as

5 are necessary to keep the senior agency

6 official concerned fully and currently in7 formed of the status of the prosecution.

8 ‘‘(c) SENIOR AGENCY OFFICIAL DEFINED.—In

9 this section, the term ‘senior agency official’

10 has the meaning given that term in section 1.1

11 of Executive Order No. 12958.’’.

12 SEC. 8. SEVERABILITY.

13 If any provision of this Act (including an amendment

14 made by this Act), or the application thereof, to any person

15 or circumstance, is held invalid, the remainder of this Act

16 (including the amendments made by this Act), and the ap17 plication thereof, to other persons or circumstances shall not

18 be affected thereby.
Calendar No. 701

106TH CONGRESS

2D SESSION S. 2089

[Report No. 106–352]

A BILL

To amend the Foreign Intelligence Surveillance Act

of 1978 to modify procedures relating to ordersfor surveillance and searches for foreign intelligence purposes, and for other purposes.

JULY 20, 2000

Reported with amendments