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Order Code RL33669

 

CRS Report for Congress

 

Received through the CRS Web

 

Terrorist Surveillance Act of 2006: S. 3931 and


 

 Title II of S. 3929, the Terrorist Tracking,

 

 Identification, and Prosecution Act of 2006

 

September 25, 2006

 

Elizabeth B. Bazan

 

Legislative Attorney

 

American Law Division

 

Congressional Research Service ˜ The Library of Congress

 

 

 

Terrorist Surveillance Act of 2006: S. 3931 and Title II

 

 of S. 3929, the Terrorist Tracking, Identification, and

 

 Prosecution Act of 2006

 

Summary

 

On Friday, September 22, 2006, two bills were introduced by Senator Mitch

 

McConnell, for himself and Senator William H. Frist, that deal with foreign

intelligence surveillance: S. 3931, the “Terrorist Surveillance Act of 2006,” and S.

3929, the “Terrorist Tracking, Identification, and Prosecution Act of 2006,” Title II

of which parallels S. 3931.  The bills would create a new Title VII of the Foreign

Intelligence Surveillance Act of 1978, as amended (FISA), 50 U.S.C. § 1801 et seq.,

to address electronic surveillance programs.  In addition, the measures would amend

other provisions of FISA dealing with electronic surveillance without a warrant

pursuant to an Attorney General certification, applications for a Foreign Intelligence

Surveillance Court orders authorizing electronic surveillance for foreign intelligence

purposes, the contents of such orders, emergency electronic surveillance under FISA,

limitations on liability for those who aid the federal government in connection with

electronic surveillance to obtain foreign intelligence information, and applicable

congressional oversight.  The bills would repeal the current wartime authorities for

electronic surveillance without a warrant following a congressional declaration of

war.  Changes would be made to the FISA definitions of “electronic surveillance”

and  “agent of a foreign power,” among others.  Other provisions would modify the

criminal provisions of FISA and the exclusivity clause 18 U.S.C. § 2511(2)(f).  Still

other provisions amend FISA to address those who engage in the development or

proliferation of weapons of mass destruction and to accommodate the international

movements of targets of electronic surveillance under FISA.

 

This report discusses the provisions of S. 3931 and Title II of S. 3929, and notes

 

the changes to existing law that these measures would make if enacted.

 

 

 

Contents

 

Introduction ......................................................1

 

Summary of Changes to Existing Law..................................2

 

New Title VII of the Foreign Intelligence Surveillance Act (FISA) —


 

Electronic Surveillance Programs .............................2

Foreign Intelligence Surveillance Court (FISC) Jurisdiction .........2

Mandatory transfer of certain cases ............................3

Applications for approval of electronic surveillance programs .......5

Approval of electronic surveillance programs by the FISC ..........6

Congressional oversight of electronic surveillance programs


 

authorized under new Title VII of FISA ....................7

 

Clarification of the Foreign Intelligence Surveillance Act of 1978 ........8

 

Repeal of wartime authorities under FISA ......................8

Clarifying amendments to 18 U.S.C. §§2511(2)(e) and (f) and to


 

criminal provisions in Section 109 of FISA .................8

 

Modernizing Amendments to FISA ................................9

 

Definitions ...............................................9

Electronic surveillance without a court order to acquire


 

foreign intelligence information pursuant to Attorney

General certification...................................12

 

Acquisition of foreign intelligence information for up


 

to one year concerning persons outside the United

States upon Attorney General certification .................14

 

Limitation on liability .....................................16

Use or disclosure of information acquired under Attorney


 

General authorization under Section 102 of FISA ............16

 

Procedures for use or disclosure against an aggrieved person in


 

a federal, state, or local proceeding of information obtained

or derived from an acquisition under Section 102 of FISA  ....16

 

Authority for federal officers who acquire foreign intelligence


 

information under Section 102 of FISA to consult with

federal or state law enforcement .........................17

 

Retention of Directives and Orders ...........................18

Designation of FISC judges .................................18

Applications for FISC orders under Sec. 104 of FISA ............18

Issuance of FISC order under Sec. 105 of FISA .................20

Use of information acquired by electronic surveillance under FISA . . 23

Congressional oversight under Sec. 108 of FISA regarding


 

a document management system for applications for

FISC orders authorizing electronic surveillance .............24

 

Amendments to FISA, Title I, Relating to Weapons of Mass


 

Destruction..........................................24

 

Conforming Amendments to Titles I and III of FISA to


 

Accommodate International Movements of Targets ..........26

 

Conforming Amendment to Table of Contents of FISA ...............27

 

 

 

Terrorist Surveillance Act of 2006: S. 3931

 

 and Title II of S. 3929, the Terrorist

 

 Tracking, Identification, and Prosecution

 

Act of 2006


 

Introduction

 

Th e “Terrorist Surveillance Act of 2006” was introduced by Senator  Mitch

 

McConnell, for himself and Senator William H. Frist, on Friday, September 22,

2006, as a free-standing bill, S. 3931.  On the same day, Senator McConnell, for

himself and Senator Frist, introduced S. 3929, the “Terrorist Tracking, Identification

and Prosecution Act of 2006,”1 Title II of which is the “Terrorist Surveillance Act of

2006.”  These are the latest in a series of Senate bills addressing the authorization,

review, and oversight of electronic surveillance programs designed to acquire foreign

in telligence or to provide information to assist in detecting and preventing

international terrorist threats to the United States.

 

S. 3931 and Title II of S. 3929 would create a new Title VII of the Foreign

 

Intelligence Surveillance Act of 1978, as amended (FISA), 50 U.S.C. § 1801 et seq.,

to address electronic surveillance programs.  In addition, the measures would amend

other provisions of FISA dealing with electronic surveillance without a warrant

pursuant to an Attorney General certification, applications for a Foreign Intelligence

Surveillance Court orders authorizing electronic surveillance for foreign intelligence

purposes, the contents of such orders, emergency electronic surveillance under FISA,

 

1 S. 3931 and Title II of S. 3929 appear to be substantively identical, but for differences in

section numbers, with one exception.  In Sec. 205 of S. 3929, new Section 703 of the

Foreign Intelligence Surveillance Act of 1978, as amended (FISA), which sets out the

requirements for an application for Foreign Intelligence Surveillance Court (FISC)

authorization of electronic surveillance programs, there are two identical new subsections

703(a)(9) of FISA.  Each indicates that such an application shall “include a statement of the

proposed minimization procedures[.]” Sec. 5 of S. 3931 does not have this duplication of

the subsection.  In S. 3929, the  “Terrorist Surveillance Act of 2006” was combined with

Title I of that bill, the “Military Commission Act of 2006.”  The “Military Commission Act

of 2006” was also introduced on September 22, 2006, as a free-standing measure, S. 3930.

For further information on military commission and detainee issues, see CRS Report

RL31600,  The Department of Defense Rules for Military Commissions: Analysis of

Procedural Rules and Comparison with Proposed Legislation and the Uniform Code of

Military Justice, by Jennifer K. Elsea; CRS Report RL33180, Enemy Combatant Detainees:

Habeas Corpus Challenges in Federal Court, by Jennifer K . Elsea and Kenneth Thomas;

CRS Report RL33655, Interrogation of Detainees: Overview of the McCain Amendment,

by Michael John Garcia; and CRS Report RL33662, The War Crimes Act: Current Issues,

by Michael John Garcia. 


 

 

 

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limitations on liability for those who aid the federal government in connection with

electronic surveillance to obtain foreign intelligence information, and applicable

congressional oversight.  The bills would repeal the current wartime authorities for

electronic surveillance without a warrant following a congressional declaration of

war.  Changes would be made to the FISA definitions of “electronic surveillance”

and  “agent of a foreign power,” among others.  Other provisions would modify the

criminal provisions of FISA and the exclusivity clause 18 U.S.C. § 2511(2)(f).  Still

other provisions amend FISA to address those who engage in the development or

proliferation of weapons of mass destruction and to accommodate the international

movements of targets of electronic surveillance under FISA.  This report will discuss

th e sub stantive provisions of the “Terrorist Surveillance Act of 2006” and their

impact on existing law.

 

Summary of Changes to Existing Law

 

New Title VII of the Foreign Intelligence Surveillance Act

(FISA) — Electronic Surveillance Programs

 

Foreign Intelligence Surveillance Court (FISC) Jurisdiction.  Sec. 3

 

of S. 3931, Sec. 203 of S. 3929, creates a new Title VII2 in FISA, which deals with

electronic surveillance programs.  “Electronic surveillance program” is defined under

the new Section 701 of FISA to mean “a program to engage in electronic

surveillance”:

 

(A) that has as a significant purpose the gathering of foreign intelligence

information3  or protecting against international terrorism;

(B) where it is not feasible to name every person, address, or location to be

subjected to electronic surveillance;

 

2 The current Title VII of FISA would then be redesignated Title VIII.

 

3 “Foreign intelligence information” is defined in new Sec. 701(4) of FISA to have “the

same meaning as in section 101(e) of FISA [current 50 U.S.C. § 1801(e),], and includes

information necessary to protect against international terrorism.”  Currently, under FISA,

the term means:

 

(1) information that relates to, and if concerning a United States person is

necessary to, the ability of the United States to 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 or international terrorism 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; or

 

(2) information with respect to a foreign power or foreign territory that relates

to, and if concerning a United States person is necessary to —


 

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.

 

 

 

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(C) where effective gathering of foreign intelligence information requires the

flexibility to begin electronic surveillance immediately after learning of suspect

activity; and

(D) where effective gathering of foreign intelligence information requires an

extended period of electronic surveillance.

 

Under Sec. 4 of S. 3931, Sec. 204 of S. 3929, a new Section 702(a) of  FISA

 

would vest jurisdiction in the FISC to review, authorize, and reauthorize such

electronic surveillance programs to obtain foreign intelligence information or to

protect against international terrorism.  Under this subsection, an initial authorization

of an electronic surveillance program may be for up to 90 days, while a

reauthorization may be for a period of time not longer than the FISC determines to

be reasonable.  If the FISC denies an application for authorization or reauthorization

of an electronic surveillance program, the Attorney General may submit an unlimited

number of new applications seeking approval of the program or, in the alternative,

may appeal the decision of the FISC to the Foreign Intelligence Surveillance Court

of Review (FIS Court of Review).

 

If, at any time, the Attorney General determines that the known facts and

 

circumstances relating to any target within the United States who is being surveilled

under Title VII of FISA satisfy the criteria for an application for electronic

surveillance of that target under Section 104 of Title I of FISA, 50 U.S.C. § 1804,

then the Attorney General would be required to discontinue the surveillance of that

target under the electronic surveillance program authorized under Title VII of FISA,

unless certain conditions are met. The Attorney General could continue surveillance

under Title VII only if, as soon as he determines practicable after he makes the

determination to continue the surveillance of the target under Title VII, he makes an

application under Section 104 of FISA for an FISC order author izing electronic

surveillance of the target under Section 105 of FISA, 50 U.S.C. § 1805.  New Section

702(a)(4) of FISA, Sec. 4(a) of S. 3931, Sec. 204(a) of S. 3929.

 

Mandatory transfer of certain cases.  The bills also authorize the transfer

 

from any other court of cases involving a challenge to the legality of classified

communications intelligence activity relating to a foreign threat, including an

electronic surveillance program, or cases in which the legality of any such activity or

program is at issue.  Such a transfer would be triggered by the filing by the Attorney

General of an affidavit under oath that the case should be transferred to the FIS Court

of Review, because further proceedings in the originating court would harm the

national security of the United States.  Under the proposed language in new Section

702(b)(1) of FISA, Sec. 4(a) of S. 3931, Sec. 204(a) of S. 3929, when such an

affidavit is filed, originating court must transfer the case.   While the implication of

the Attorney General’s affidavit may be that the transfer from the originating court

would be to the FIS Court of Review, this is not clear from the language of proposed

subsection 702(b)(1), which states “the originating court shall transfer the case of the

Foreign Intelligence Surveillance for further proceedings under this subsection.”  As

written, it appears that some words may be missing from this clause.

 

This uncertainty is increased by the language in proposed subsection 702(b)(2)

 

of FISA, entitled “Procedures for Review.”  In this subsection, the FISC, rather than

the FIS Court of Review, is given jurisdiction as appropriate to determine standing

 

 

 

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and to determine the legality of the program to the extent necessary for resolution of

the underlying case.4  If the FISC determines, in the contex t of a criminal proceeding,

that the U.S. Constitution would require disclosure of national security information,

any such disclosure would be governed by the Classified Information Procedures Act,

18 U.S.C. App. 3, or, if applicable, 18 U.S.C. § 2339B(f).5   Under proposed

subsection 702(b)(3), entitled, “Appeal, Certiorari, and Effects of Decisions,” any

decision of the FISC under proposed subsections 702(b)(1) and (2) would be subject

to review by the FIS Court of Review under section 103(b) of FISA, 50 U.S.C. §

103(b).6  Under new subsection 702(b)(3), the United States may seek review of

 

4 Subsection 702(b)(2) indicates that “all proceedings under this paragraph” are to be

conducted in accordance with the procedures set forth in Section 106(f) of FISA, 50 U.S.C.

§ 1806(f), which currently provides:

 

(f) In camera and ex parte review by district court

 

Whenever a court or other authority is notified pursuant to subsection (c) or (d)

of this section, or whenever a motion is made pursuant to subsection (e) of this

section, or whenever any 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 to discover or obtain

applications or orders or other materials relating to electronic surveillance or to

discover, obtain, or suppress evidence or information obtained or derived from

electronic surveillance under this chapter, 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 Ge neral 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 the surveillance as may be necessary to determine whether the surveillance of

the aggrieved person was lawfully authorized and conducted. In making this

determination, the court may disclose to the aggrieved person, under appropriate

securit