Text of Senator Spector Draft Proposed NSA Surveillance Bill

balkin.blogspot.com ^ | February 26, 2006 | Arlen Spector

[Cboldt]

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

SECTION 1. SHORT TITLE.

This Act may be cited as the “National Security Surveillance Act of 2006”.

SEC. 2. FINDINGS.

Congress finds the following:

(1) After the terrorist attacks of September 11, 2001, President Bush authorized the National Security Agency to intercept communications between people inside the United States, including American citizens, and terrorism suspects overseas.

(2) One of the lessons learned from September 11, 2001, is that the enemies who seek to greatly harm and terrorize our Nation utilize technologies and techniques that defy conventional law enforcement practices.

(3) The Commander in Chief requires the ability and means to detect and track an enemy that can master and exploit modern technology.

(4) Although it is essential that the President have all necessary means to protect us against our enemies, it is equally essential that, in doing so, the President does not compromise the very civil liberties that the President seeks to safeguard. As Justice Hugo Black observed, “The President’s power, if any, to issue [an] order must stem either from an Act of Congress or from the Constitution itself.”. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black, J.).

(5) In 2004, Justice Sandra Day O’Connor explained in her plurality opinion for the Supreme Court in Hamdi v. Rumsfeld: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587, 72 S.Ct. 863. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”. Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted).

(6) Similarly, as Justice Jackson famously observed in his Youngstown concurrence: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.... When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility... When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject.”. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).

(7) The Constitution provides Congress with broad powers of oversight over national security and foreign policy, under article I, section 8 of the Constitution of the United States, which confers on Congress numerous powers, including the powers—

(A) “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”;

(B) “To raise and support Armies”;

(C) “To provide and maintain a Navy”;

(D) “To make Rules for the Government and Regulation of the land and naval Forces”;

(E) “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”; and

(F) “To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States”.

(8) It is in our Nation’s best interest for Congress to use its oversight power to establish a system to ensure that electronic surveillance programs do not infringe on the constitutional rights of Americans, while at the same time making sure that the President has all the powers and means necessary to detect and track our enemies.

(9) While Attorney General Alberto Gonzales explained that the executive branch reviews the electronic surveillance program of the National Security Agency every 45 days to ensure that the program is not overly broad, it is the belief of Congress that approval and supervision of electronic surveillance programs should be conducted outside of the executive branch, by the Article III court established under section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803). It is also the belief of Congress that it is appropriate for an Article III court to pass upon the constitutionality of electronic surveillance programs that may implicate the rights of Americans.

(10) The Foreign Intelligence Surveillance Court is the proper court to approve and supervise classified electronic surveillance programs because it is adept at maintaining the secrecy with which it was charged and it possesses the requisite expertise and discretion for adjudicating sensitive issues of national security.

(11) In 1975, then-Attorney General Edward Levi, a strong defender of executive authority, testified that in times of conflict, the President needs the power to conduct long-range electronic surveillance and that a foreign intelligence surveillance court should be empowered to issue special warrants in these circumstances.

(12) This Act clarifies and definitively establishes that the Foreign Intelligence Surveillance Court has the authority to review electronic surveillance programs and pass upon their constitutionality.  Such authority is consistent with well-established, longstanding practices.

(13) The Foreign Intelligence Surveillance Court already has broad authority to approve surveillance of members of international conspiracies in addition to granting warrants for surveillance of a particular individual under sections 104, 105, and 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804, 1805, 1842).

(14) Prosecutors have significant flexibility in investigating domestic conspiracy cases. Courts have held that broad warrants comply with the Fourth Amendment when they relate to complex, far reaching, and multi-faceted criminal enterprises like drug conspiracies and money laundering rings. The courts recognize that applications for search warrants must be judged in a common sense and realistic fashion, and they permit broad warrant language where, due to the nature and circumstances of the investigation and the criminal organization, more precise descriptions are not feasible.

(15) Federal agents investigating international terrorism by foreign enemies are entitled to tools at least as broad as those used by federal agents investigating domestic crimes by U.S. citizens. The Supreme Court, in the Keith Case, recognized that the standards and procedures used to fight ordinary crime may not be applicable to cases involving national security. The Court recognized that national “security surveillance may involve different policy and practical considerations from the surveillance of ordinary crime” and that courts should be more flexible in issuing warrants in national security cases. United States v. United States District Court for the Eastern District of Michigan, 407 US 297, 322 (1972).

(16) By authorizing the Foreign Intelligence Surveillance Court to review the electronic surveillance program, Congress preserves the ability of the Commander in Chief to use the necessary means to guard our national security, while also protecting the civil liberties and constitutional rights that we cherish.

SEC. 3. DEFINITIONS.

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

(1) by redesignating title VII as title VIII;

(2) by redesignating section 701 as section 801; and

(3) by inserting after title VI the following:

“TITLE VII—ELECTRONIC SURVEILLANCE

“SEC. 701. DEFINITIONS.

“As used in this title—

“(1) the terms ‘agent of a foreign power’, ‘Attorney General’, ‘foreign intelligence information’, ‘foreign power’, ‘international terrorism’, ‘minimization procedures’, ‘person’, ‘United States’, and ‘United States person’ have the same meaning as in section 101;

“(2) the term ‘Foreign Intelligence Surveillance Court’ means the court established under section 103(a);

“(3) the term ‘electronic communication’ means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of communications;

“(4) the term ‘electronic surveillance’ means the acquisition by an electronic, mechanical, or other surveillance device of the substance of any electronic communication sent by, received by, or intended to be received by a person who is in the United States, where there is a reasonable possibility that the surveillance will intercept communication in which a participant in the communication has a reasonable expectation of privacy.

“(5) the term ‘electronic surveillance program’ means a program to engage in electronic surveillance—

“(A) to gather foreign intelligence information or to protect against international terrorism or clandestine intelligence activities by obtaining the substance of or information regarding electronic communications sent by, received by, or intended to be received by a foreign power, an agent or agents of a foreign power, or a person or persons who have had communication with a foreign power or agent of a foreign power;

“(B) where it is not feasible to name every person and location to be subjected to electronic surveillance; and

“(C) where effective gathering of foreign intelligence information requires an extended period of electronic surveillance.

“(6) the term ‘intercept’ means the acquisition of the substance of any electronic communication by a person through the use of any electronic, mechanical, or other device; and

“(7) the term ‘substance’ means any information concerning the words, purport, or meaning of a communication, and does not include information identifying the sender, origin, or recipient of the communication or the date or time of its transmission.”.

SEC. 4. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 3, is amended by adding at the end the following:

“SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT JURISDICTION TO REVIEW ELECTRONIC SURVEILLANCE PROGRAMS.

“(a) In General.—The Foreign Intelligence Surveillance Court shall have jurisdiction to issue an order under this title, lasting not longer than 45 days, that authorizes an electronic surveillance program to obtain foreign intelligence information or to protect against international terrorism or clandestine intelligence activities.

“(b) Reauthorization.—In order to continue an electronic surveillance program after the period described in subsection (a), the Attorney General shall submit a new application under section 703. There shall be no limit on the number of times the Attorney General may seek approval of an electronic surveillance program.

“(c) Modifications in event application is denied.—In the event that the Foreign Intelligence Surveillance Court refuses to approve an application under subsection (a), the court shall state its reasons in a written opinion. The Attorney General shall be permitted to submit a new application under section 703 for the electronic surveillance program, reflecting modifications to address the concerns set forth in the written opinion of the Foreign Intelligence Surveillance Court. There shall be no limit on the number of times the Attorney General may seek approval of an electronic surveillance program.

“(d) Communications Subject to this Act. —

“(1) The provisions of this Act requiring authorization by the Foreign Intelligence Surveillance Court apply only to interception of the substance of electronic communications sent by, received by, or intended to be received by a person who is in the United States, where there is a reasonable possibility that a participant in the communication has a reasonable expectation of privacy.

“(2) The provisions of this Act requiring authorization by the Foreign Intelligence Surveillance Court do not apply to information identifying the sender, origin, or recipient of the electronic communication or the date or time of its transmission that is obtained without review of the substance of the electronic communication.

“(e) Programs Subject to this Act.—

“(1) In General.— All electronic surveillance programs to obtain foreign intelligence information or to protect against international terrorism or clandestine intelligence activities must be submitted for judicial authorization to the Foreign Intelligence Surveillance Court.

“(2) Existing programs.— Not later than 45 days after the date of enactment of this title, the Attorney General shall submit an application under section 703 for approval of the electronic surveillance program sometimes referred to as the ‘Terrorist Surveillance Program’ and discussed by the Attorney General before the Committee on the Judiciary of the United States Senate on February 6, 2006. Not later than 120 days after the date of enactment of this title, the Attorney General shall submit applications under Foreign Intelligence Surveillance Act (18 U.S.C. 1801 et. seq.) for approval of any other electronic surveillance programs in existence on the date of enactment of this title that have not been submitted to the Foreign Intelligence Surveillance Court.

SEC. 5. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 4, is amended by adding at the end the following:

“SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

“(a) In General.—Each application for approval of an electronic surveillance program under this title shall—

“(1) be made by the Attorney General;

“(2) include [a statement of] the authority conferred on the Attorney General by the President of the United States;

“(3) include a statement setting forth the legal basis for the conclusion by the Attorney General that the electronic surveillance program is consistent with the requirements of the Constitution of the United States;

“(4) certify that the information sought cannot reasonably be obtained by conventional investigative techniques or through an application under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804);

“(5) include the name, if known, identity, or description of the foreign power or agent of a foreign power the electronic surveillance program seeks to monitor or detect;

“(6) include a statement of the means and operational procedures by which the surveillance will be executed and effected;

“(7) include a statement of the facts and circumstances relied upon by the Attorney General to justify the belief that at least one of the participants in the communications to be intercepted by the electronic surveillance program will be the foreign power or agent of a foreign power specified in subsection 5, or a person who has had communication with the foreign power or agent of a foreign power specified in subsection 5;

“(8) include a statement of the proposed minimization procedures;

“(9) include a detailed description of the nature of the information sought and the type of communication to be intercepted by the electronic surveillance program;

“(10) include an estimate of the number of communications to be intercepted by the electronic surveillance program during the requested authorization period;

“(11) specify the date that the electronic surveillance program that is the subject of the application was initiated, if it was initiated before submission of the application;

“(12) certify that any continuous surveillance of a person in the United States under this title shall cease after 90 days, unless the government has obtained judicial authorization for continued surveillance of the person in the United States under section 104 of the Foreign Intelligence Surveillance Act (18 U.S.C. 1804) or another federal statute;

“(13) include a statement of the facts concerning all previous applications that have been made to the Foreign Intelligence Surveillance Court under this title involving the electronic surveillance program in the application, including the minimization procedures and the means and operational procedures proposed, and the Foreign Intelligence Surveillance Court’s decision on each previous application; and

“(14) include a statement of the facts concerning the implementation of the electronic surveillance program described in the application, including, for any period of operation of the program authorized at least 45 days prior to the date of submission of the application—

“(A) the minimization procedures implemented;

“(B) the means and operational procedures by which the surveillance was executed and effected;

“(C) the number of communications intercepted by the electronic surveillance program;

“(D) the identity, if known, or a description of the United States persons whose communications sent or received in the United States were intercepted by the electronic surveillance program;

“(E) a description of the foreign intelligence information obtained through the electronic surveillance program.

“(b) Additional Information.—The Foreign Intelligence Surveillance Court may require the Attorney General to furnish such other information as may be necessary to make a determination under section 704.”.

SEC. 6. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 5, is amended by adding at the end the following:

“SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

“(a) Necessary Findings.—Upon receipt of an application under section 703, the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested, or as modified, approving the electronic surveillance program if it finds that—

“(1) the President has authorized the Attorney General to make the application for electronic surveillance for foreign intelligence information;

“(2) approval of the electronic surveillance program in the application is consistent with the duty of the Foreign Intelligence Surveillance Court to uphold the Constitution of the United States;

“(3) there is probable cause to believe that the electronic surveillance program will intercept communications of the foreign power or agent of a foreign power specified in the application, or a person who has had communication with the foreign power or agent of a foreign power specified in the application;

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

“(5) the application contains all statements and certifications required by section 703; and

“(6) an evaluation of the implementation of the electronic surveillance program, as described in subsection (b), supports approval of the application.

“(b) Evaluation of the Implementation of the Electronic Surveillance Program.—In determining whether the implementation of the electronic surveillance program supports approval of the application for purposes of subsection (a)(6), the Foreign Intelligence Surveillance Court shall consider the performance of the electronic surveillance program for at least three previously authorized periods, to the extent such information is available, and shall—

“(1) evaluate whether the electronic surveillance program has been implemented in accordance with the proposal by the Federal Government by comparing—

“(A) the minimization procedures proposed with the minimization procedures implemented;

“(B) the nature of the information sought with the nature of the information obtained; and

“(C) the means and operational procedures proposed with the means and operational procedures implemented;

“(2) consider the number of communications intercepted by the electronic surveillance program and the length of time the electronic surveillance program has been in existence; and

“(3) consider the benefits of the electronic surveillance program, as reflected by the foreign intelligence information obtained.

SEC. 7. CONGRESSIONAL OVERSIGHT.

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 6, is amended by adding at the end the following:

“SEC. 705. CONGRESSIONAL OVERSIGHT.

“(a) In General.—Not less often than every 45 days, the Attorney General shall submit to the chairman and the ranking member of the Select Committee on Intelligence of the Senate and the chairman and the ranking member of the Permanent Select Committee on Intelligence of the House of Representatives, a written report on the activities during the previous authorized period under any electronic surveillance program authorized under this title.

“(b) Contents.—Each report described in subsection (a) shall provide, with respect to the previous authorized period—

“(1) the number of communications intercepted by the electronic surveillance program

“(2) a description of the means and operational procedures by which the surveillance was executed and effected;

“(3) a description of the minimization procedures implemented; and

“(4) a description of the foreign intelligence information obtained through the electronic surveillance program.

“(c) Rule of Construction.—Nothing in this title shall be deemed to limit the authority or responsibility of any committee of either House of Congress to obtain such information as such committee may need to carry out its respective functions and duties.”.

SEC. 8. CONFORMING AMENDMENT.

The table of contents for the Foreign Intelligence Surveillance Act of 1978 is amended by striking the items related to title VII and section 701 and inserting the following:

“TITLE VII—ELECTRONIC SURVEILLANCE

“Sec.701.Definitions.

“Sec.702.Foreign Intelligence Surveillance Court jurisdiction to review electronic surveillance programs.

“Sec.703.Applications for approval of electronic surveillance programs.

“Sec.704.Approval of electronic surveillance programs.

“Sec.705.Congressional oversight.

“TITLE VIII—EFFECTIVE DATE

“Sec.801.Effective date.”.

[Cboldt]

Converted to HTML from http://balkin.blogspot.com/NSA%20Specter%20Draft.doc

Discussion (FWIW) at http://talkleft.com/new_archives/014141.html. There may be other links to the draft bill, I just found this one, and confess to reformatting and posting it without reading it to the extent I can compose a sensible comment.

[Tarpon]

Good thing the President isn't bound by this lunacy. Someone has to fight the enemy.

[golfisnr1]

The President should not sign this piece of garbage. Another instance of Congress trying yo limit the Executive and undermining the consitution.

[Marine_Uncle]

Thanks for the effort. Hope you are not bombarded. I'll spare you.

[boomop1]

Spector thinks he is president, your tax money at work, kick his ass off the judiciary committee.

[boomop1]

Spector thinks he is president, your tax money at work, kick his ass off the judiciary committee.

[Eric in the Ozarks]

I wouldn't count of a presidential veto. W lost the veto pen when he took office.

[Txsleuth]

Looks like ole Arlen is mad about not being "in the know"...hence the Congressional Oversight,

"any Committee of either House of Congress to obtain such information as such committee may need to carry out its respective functions and duties".

[Cboldt]

Reference link to Senator DeWine's proposed statutory language ...

http://www.freerepublic.com/focus/f-news/1599363/posts