S. 3874 (109th): Terrorist Surveillance Act of 2006

109th Congress, 2005–2006. Text as of Sep 08, 2006 (Placed on Calendar in the Senate).

Status & Summary | PDF | Source: GPO

II

Calendar No. 597

109th CONGRESS

2d Session

S. 3874

IN THE SENATE OF THE UNITED STATES

September 7 (legislative day, September 6), 2006

introduced the following bill; which was read the first time

September 8, 2006

Read the second time and placed on the calendar

A BILL

To provide in statute for the conduct of electronic surveillance of suspected terrorists for the purposes of protecting the American people, the Nation, and its interests from terrorist attack while ensuring that the civil liberties of United States citizens are safeguarded, and for other purposes.

1.

Short title

This Act may be cited as the Terrorist Surveillance Act of 2006.

2.

Terrorist Surveillance Program

(a)

In general

Notwithstanding any provision of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), chapter 119 of title 18, United States Code, or any other provision of law related to the interception or collection of communications, the President, through the Attorney General, may authorize a program of electronic surveillance without a court order for periods of up to 45 days if—

(1)

the President determines that the surveillance is necessary to protect the United States, its citizens, or its interests, whether inside the United States or outside the United States;

(2)

there is probable cause to believe that one party subject to the surveillance is an agent or member of a group or organization, affiliated with a group or organization, or working in support of a group or organization on the list established under section 3;

(3)

the surveillance is initiated and conducted in a manner reasonably designed to acquire only communications to or from the United States where—

(A)

at least one party to such communications is reasonably believed to be physically located outside the United States; or

(B)

such communications appear to originate or terminate outside the United States;

(4)

there is not a substantial likelihood that the surveillance will acquire the substance of any communication where every party to such communication is physically located within the United States;

(5)

a significant purpose of the surveillance is to obtain foreign intelligence information; and

(6)

minimization procedures are in place with respect to the surveillance which meet the standards for minimization procedures under section 101(h) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(h)).

(b)

Scope

(1)

Basis

Electronic surveillance carried out pursuant to the authority in subsection (a) shall not be conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States.

(2)

Targeting decisions

The President may rely on intelligence community professionals to make targeting decisions during the course of electronic surveillance carried out pursuant to the authority in subsection (a) based on all lawfully collected information available to such professionals at the time of such decisions.

(c)

Designation of program

Electronic surveillance carried out pursuant to the authority in subsection (a) shall be known as the Terrorist Surveillance Program.

(d)

Minimization procedures

(1)

Initial procedures

The Attorney General shall establish the minimization procedures required by subsection (a)(6) not later than 30 days after the date of the enactment of this Act.

(2)

Updates

The Attorney General shall update the minimization procedures under this subsection at such times as the Attorney General considers appropriate, but not less often than annually.

(e)

Support of surveillance

With respect to any electronic surveillance authorized by subsection (a), the Attorney General may direct a specified provider of communication services or common carrier to—

(1)

furnish all information, facilities, or technical assistance necessary to accomplish the surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and

(2)

maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or assistance furnished that such carrier determines to retain.

(f)

Use of information

(1)

Disclosure of information on united states persons

Information acquired from electronic surveillance conducted pursuant to this section concerning any United States person may be used or disclosed by Federal officers or employees without the consent of the United States person only in accordance with the minimization procedures required by subsection (a)(6).

(2)

Uses of information

No information acquired from electronic surveillance conducted pursuant to this section may be used or disclosed by Federal officers or employees except for lawful purposes, including the provision of a factual predicate for an order for electronic surveillance under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804), dissemination to appropriate authorities consistent with the minimization procedures required by subsection (a)(6), and use as evidence in a criminal proceeding consistent with section 106 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1806).

3.

Terrorist Surveillance List

(a)

In general

The President shall establish and maintain for purposes of this Act a list of groups and organizations that are subject to electronic surveillance authorized under the Terrorist Surveillance Program. The list shall be known as the Terrorist Surveillance List.

(b)

Requirements for listing

A group or organization may be placed on the list under this section only if the President determines that there is a reasonable likelihood that the group or organization, as the case may be—

(1)

has engaged in an act of international terrorism against the United States, its citizens, or its interests, whether inside the United States or outside the United States;

(2)

intends to engage in an act of international terrorism against the United States, its citizens, or its interests, whether inside the United States or outside the United States; or

(3)

is engaged in activities in preparation for an actual or potential act of international terrorism against the United States, its citizens, or its interests, whether inside the United States or outside the United States.

(c)

Updates

The President shall update the list under this section at such times as the President considers appropriate, but not less often than annually, including determining whether a group or organization placed on the Terrorist Surveillance List should be removed from the list.

4.

Program review and reauthorization

(a)

In general

Not later than 45 days after the commencement of the Terrorist Surveillance Program and 45 days after the continuation of the Terrorist Surveillance Program pursuant to a determination under subsection (b), the Attorney General shall review the conduct of the program in order to determine the following:

(1)

Whether the surveillance under the program met the requirements of section 2(a) during the period covered by the review.

(2)

Whether to recommend the continuation of the program for another 45 days.

(b)

Continuation of the Terrorist Surveillance Program

(1)

Determination on continuation

Upon completion of the review of the Terrorist Surveillance Program by the Attorney General under subsection (a), the President shall determine the following:

(A)

Whether the Terrorist Surveillance Program remains necessary to protect the United States, its citizens, or interests, whether inside the United States or outside the United States.

(B)

Whether to continue the Terrorist Surveillance Program.

(2)

Continuation

If the President determines under paragraph (1) to continue the Terrorist Surveillance Program, the President, through the Attorney General, may continue the program for an additional period of 45 days, subject to the requirements of section 2(a).

(3)

Discontinuation

If the President determines under paragraph (1) to discontinue the Terrorist Surveillance Program, the President shall discontinue the program in a prompt manner.

(4)

Recommencement of program

At any time after the discontinuation of the Terrorist Surveillance Program under paragraph (3), the President may recommence the program or any other program of electronic surveillance under this Act if the President determines that the requirements of section 2(a) are met.

(c)

Certification

Following completion of any review of a program of surveillance under this section, the Attorney General shall certify in writing and under oath, to the congressional intelligence committees, whether the program of surveillance, during the period covered by the review, met the requirements of section 2(a).

(d)

Review

The Attorney General shall conduct review of the Terrorist Surveillance Program under this section pursuant to such procedures as the Attorney General shall establish for purposes of this section.

5.

Review of surveillance of individual targets

(a)

In general

When conducting a 45-day review under section 4, the Attorney General shall also review the surveillance of individual targets within the United States under the program during the period covered by the review. During such review, the Attorney General shall determine the following:

(1)

Whether the known facts and circumstances relating to any target within the United States—

(A)

met the requirements of section 2(a) during the period covered by the review; and

(B)

satisfy the criteria for an application under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for an order for electronic surveillance of the target under section 105 of that Act (50 U.S.C. 1805).

(2)

Whether to terminate surveillance on the target.

(3)

Whether to continue surveillance under section 2(a).

(b)

Continued surveillance under FISA

(1)

In general

(A)

Determination

If, at any time (including through a review of electronic surveillance under section 4), the Attorney General determines that the known facts and circumstances relating to any target within the United States satisfy the criteria for an application under section 104 of the Foreign Intelligence Surveillance Act of 1978 for an order for electronic surveillance of the target under section 105 of that Act, the Attorney General, at the direction of the President, shall—

(i)

discontinue the surveillance of the target under section 2(a); or

(ii)

continue the surveillance of the target under section 2(a), subject to the requirements of subparagraph (B).

(B)

Continuation of surveillance

(i)

In general

The Attorney General may continue surveillance of a target under section 2(a) as specified in subparagraph (A)(ii) only if the Attorney General makes an application under section 104 of the Foreign Intelligence Surveillance Act of 1978 for an order for electronic surveillance of the target under section 105 of that Act as soon as practicable after the date on which the Attorney General makes the determination to continue surveillance of the target under subparagraph (A)(ii), but in no event later than seven days after the date of such determination.

(ii)

Period

The period during which the Attorney General may continue surveillance of a target under section 2(a) as specified in subparagraph (A)(ii) shall be limited to the period during which the application of the Attorney General under section 104 of the Foreign Intelligence Surveillance Act of 1978 for an order for electronic surveillance of the target under section 105 of that Act is pending under that Act, including during any period in which appeal from the denial of the application is pending under the court of review or the Supreme Court under section 103(b) of that Act (50 U.S.C. 1803(b)).

(c)

Discontinuation of surveillance

If the Attorney General determines through a review of electronic surveillance under this section that the known facts and circumstances relating to any target within the United States do not meet the requirements of section 2(a) and do not satisfy the criteria for an application under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for an order for electronic surveillance of the target under section 105 of that Act (50 U.S.C. 1805), the Attorney General shall discontinue the surveillance of the target under section 2(a).

(d)

Continued surveillance under section 2(a)

(1)

Presumption

In reviewing the electronic surveillance of a target in the United States under this section, the Attorney General shall presume that electronic surveillance of a target shall be conducted under the Foreign Intelligence Surveillance Act of 1978 or be terminated.

(2)

Rebuttal of presumption

The presumption under paragraph (1) with respect to a target can be rebutted, and the Attorney General may continue the surveillance of a target under section 2(a), if—

(A)

the Attorney General determines, based on the known facts and circumstances relating to such target, that—

(i)

the surveillance of the target during the previous 45-day period satisfied the requirements of section 2(a); and

(ii)

there is a good faith belief that continued surveillance will result in the acquisition of foreign intelligence information; and

(B)

the President determines that continued surveillance of the target is necessary to protect the United States, its citizens, or interests, whether inside the United States or outside the United States.

(e)

Certification

If the Attorney General decides to continue surveillance of a target under section 2(a), not later than 72 hours after the Attorney General conducts the applicable review under subsection (a), the Attorney General shall certify in writing and under oath to the terrorist surveillance subcommittees that—

(1)

the surveillance of the target during the previous 45-day period satisfied the requirements of section 2(a);

(2)

the known facts and circumstances relating to the target do not satisfy the criteria for an application under section 104 of the Foreign Intelligence Surveillance Act of 1978 for an order for electronic surveillance of the target under section 105 of that Act;

(3)

the President has determined that continued surveillance of the target without a court order is necessary to protect the United States, its citizens, or interests; and

(4)

continued surveillance is being undertaken in a good faith belief that it will result in the acquisition of foreign intelligence information.

(f)

Submitting certification to FISA court

Section 104(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804(a)) is amended—

(1)

in paragraph (10), by striking and at the end;

(2)

in paragraph (11), by striking the period at the end and inserting ; and; and

(3)

by adding at the end the following:

(12)

if applicable, each certification under section 5(e) of the Terrorist Surveillance Act of 2006 relating to the continued surveillance of the target of the electronic surveillance that is the subject of the application.

.

6.

Regular and ongoing oversight by congress

(a)

Senate terrorist surveillance subcommittee

The Select Committee on Intelligence of the Senate shall designate the creation of a Subcommittee, in accordance with the Rules of the Senate, with the exclusive jurisdiction to oversee and monitor all matters relating to surveillance conducted by the President under the Terrorist Surveillance Program. The Subcommittee shall be authorized to employ staff members, as needed, with the technical and subject matter expertise necessary to assist the Subcommittee in conducting regular, ongoing oversight of any surveillance conducted by the President under the Terrorist Surveillance Program. The staff members shall work exclusively for, and report exclusively to, the Subcommittee.

(b)

House terrorist surveillance subcommittee

The Permanent Select Committee on Intelligence of the House of Representatives shall designate the creation of a Subcommittee, in accordance with the Rules of the House of Representatives, with the exclusive jurisdiction to oversee and monitor all matters relating to surveillance conducted by the President under the Terrorist Surveillance Program. The Subcommittee shall be authorized to employ staff members, as needed, with the technical and subject matter expertise necessary to assist the Subcommittee in conducting regular, ongoing oversight of any surveillance conducted by the President under the Terrorist Surveillance Program. The staff members shall work exclusively for, and report exclusively to, the Subcommittee.

(c)

Submittals to full intelligence committees

(1)

Terrorist surveillance list

(A)

In general

Not later than 60 days after the date of the enactment of this Act, and annually thereafter, the President shall submit to the congressional leadership and the congressional intelligence committees a current version of the list established under section 3.

(B)

Updates

Not later than 72 hours after any update or modification of the list established under section 3, the President shall submit to the congressional intelligence committees a current version of the list, showing such update or modification.

(2)

Review procedures

(A)

In general

The Attorney General shall submit to the congressional intelligence committees the review procedures established under section 4(d).

(B)

Updates

Not later than 72 hours after any update or modification of the review procedures established under section 4(d), the Attorney General shall submit to the congressional intelligence committees a current version of the procedures, showing such update or modification.

(3)

Notice of surveillance

Not later than 72 hours after the commencement of a program of electronic surveillance under section 2(a) or the continuation, discontinuation, or recommencement of a program of electronic surveillance under section 2(a), the President shall provide notice of such action to the congressional intelligence committees.

(4)

Minimization procedures

(A)

In general

The Attorney General shall submit to the congressional intelligence committees the minimization procedures established under section 2(d).

(B)

Updates

Not later than 72 hours after any update to or modification of the minimization procedures established under section 2(d), the Attorney General shall submit to the congressional intelligence committees the updated or modified version of the minimization procedures.

(5)

Form of submittals

Any matter submitted under this subsection shall be submitted in classified form.

(d)

Submittals to subcommittees

(1)

In general

The President shall submit to the terrorist surveillance subcommittees a report on the management and operational details of the Terrorist Surveillance Program generally and on any specific surveillance conducted under the Terrorist Surveillance Program whenever requested by either of the terrorist surveillance subcommittees.

(2)

Semi-annual reports

(A)

In general

In addition to any reports required under paragraph (1), the President shall, not later than 6 months after the date of the enactment of this Act and every 6 months thereafter, fully inform the terrorist surveillance subcommittees on all electronic surveillance conducted under the Terrorist Surveillance Program.

(B)

Contents

Each report under subparagraph (A) shall include the following:

(i)

A complete discussion of the management, operational details, effectiveness, and necessity of the Terrorist Surveillance Program generally, and of the management, operational details, effectiveness, and necessity of all electronic surveillance conducted under the program, during the six-month period ending on the date of such report.

(ii)

For any target located within the United States subject to surveillance under the Terrorist Surveillance Program for more than 45 days—

(I)

an explanation why continued surveillance of the subject is necessary to protect the United States, its citizens, or interests; and

(II)

an explanation why the Attorney General has not sought an order for the approval of electronic surveillance of the subject under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).

(iii)

The total number of targets of electronic surveillance within the United States during the preceding 6-month period either commenced or continued under the Terrorist Surveillance Program.

(iv)

The total number of United States persons targeted for electronic surveillance during the preceding 6-month period under the Terrorist Surveillance Program.

(v)

The total number of targets of electronic surveillance within the United States during the preceding 6-month period under the Terrorist Surveillance Program for which, an application was made under section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) for an order under section 105 of that Act (50 U.S.C. 1805) approving electronic surveillance under that Act, and, of such applications, the total number either granted, modified, or denied.

(vi)

Any other information specified, in writing, to be included in such report by either of the terrorist surveillance subcommittees.

(vii)

A description of the nature of the information sought under the Terrorist Surveillance Program, the types of communications subjected to such program, and whether the information sought under such program could be reasonably obtained by less intrusive investigative techniques in a timely and effective manner.

(3)

Form of reports

Any report or information submitted under this subsection shall be submitted in classified form.

(e)

Annual reports by subcommittees

The terrorist surveillance subcommittees shall prepare separate annual reports on the Terrorist Surveillance Program, including the program’s effectiveness, its management, its operational details, and any other matters that the subcommittees consider appropriate. Each report shall be prepared in a classified form.

7.

Sunset

This Act and the amendments made by this Act are repealed effective on the date that is 5 years after the date of enactment of this Act.

8.

Criminal penalties for unauthorized disclosure of information on surveillance programs

(a)

Establishment of offense

Chapter 37 of title 18, United States Code, is amended by inserting after section 798A the following new section:

798B.

Unauthorized disclosure of information on surveillance programs

(a)

In general

Any covered person who intentionally discloses information identifying or describing, whether in whole or in part, electronic surveillance authorized by section 2 of the Terrorist Surveillance Act of 2006, or any other information relating to the Terrorist Surveillance Program under that Act or any program of surveillance under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) to any individual not authorized to receive such information shall be fined not more than $1,000,000, imprisoned not more than 15 years, or both.

(b)

Definition

In this section, the term covered person means any person authorized to receive information under the Terrorist Surveillance Act of 2006, or the Foreign Intelligence Surveillance Act of 1978.

.

(b)

Clerical amendment

The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 798A the following new item:

798B. Unauthorized disclosure of information on surveillance programs.

.

9.

Definitions

In this Act—

(1)

the term congressional intelligence committees means—

(A)

each member of the Select Committee on Intelligence of the Senate; and

(B)

each member of the Permanent Select Committee on Intelligence of the House of Representatives;

(2)

the term congressional leadership means—

(A)

the Speaker of the House of Representatives and the Minority Leader of the House of Representatives; and

(B)

the Majority Leader and Minority Leader of the Senate;

(3)

the terms international terrorism, electronic surveillance, foreign intelligence information, and United States person have the meaning given such terms in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and

(4)

the term terrorist surveillance subcommittees means the subcommittees of the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives created under section 6(a) and (b).

September 8, 2006

Read the second time and placed on the calendar