Summary and Background
Last summer, the Bush Administration came to Congress seeking emergency changes to the Foreign Intelligence Surveillance Act (FISA) to address a gap that had arisen in our intelligence collection capabilities, according to administration officials. Democrats support giving the Intelligence Community the tools it needs to protect the nation from terrorism. However, many Democrats opposed the rushed legislation that ultimately resulted from the Administration's push, the Protect America Act of 2007 (PAA). Before passage, Democrats succeeded in adding a six-month sunset to ensure the PAA would serve as only a temporary measure to address the intelligence gap while Congress considered longer-term amendments to the statute.
Over the past year, Senate and House Democrats have worked with their Republican counterparts, the Administration, the intelligence community, and privacy advocates to develop proposals for amendments to FISA that would give the intelligence community the flexibility it needs to safeguard our nation, while also providing strong protections for civil liberties.
On June 19, Senator Rockefeller, Chairman of the Senate Select Committee on Intelligence (SSCI), announced that a FISA amendments deal had been reached. On June 25, the Senate voted to proceed with consideration of that legislation, H.R. 6304, the FISA Amendments Act of 2008.
The bill would:
• Provide the Intelligence Community the tools it needs to target non-U.S. persons reasonably believed to be outside the United States;
• Increase the role of the Foreign Intelligence Surveillance Court (FISC) in reviewing and approving targeting and minimization procedures, ensure that traditional FISA warrant rules still apply for purely domestic communications, require the government to establish guidelines to protect Americans against reverse targeting, and require FISA Court orders prior to surveillance or physical searches of U.S. persons abroad;
• Grant the telecommunication companies immunity from civil liability, provided a federal district court determines that the Attorney General's certification that immunity applies is supported by substantial evidence;
• Provide Court review of procedures before surveillance begins unless there are exigent circumstances, in which case they must seek approval from the FISA Court within seven days.
• Require the Inspectors General of key agencies to conduct a retroactive review of the President's surveillance program and authorize them to investigate and audit surveillance authorized in this bill, require that additional data on surveillance be submitted to the Congress in semi-annual reports, and sunset the bill in four and a half years.
Major Provisions
Title I - Foreign Intelligence Surveillance
Additional Procedures Regarding Certain Persons Outside the United States. (Section 101).
Definition of electronic surveillance (Section 701). The bill would reestablish the original definition of "electronic surveillance" in FISA and add a construction paragraph to ensure that new procedures may be used notwithstanding the definition of electronic surveillance.
Procedures for targeting certain persons outside of the United States other than United States persons (Section 702).
• Authorization. H.R. 6304 would grant the Attorney General (AG) and the Director of National Intelligence (DNI) the authority to target persons reasonably believed to be outside of the United States for the purpose of collecting intelligence for a period of up to one year from the effective date of the authorization.
• Limitations. H.R. 6304 includes specific limitations and prohibitions regarding the collection of information on American citizens. The bill states that an acquisition: 1) may not intentionally target any person known at the time of acquisition to be located in the United States; 2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; 3) may not intentionally target a United States person reasonably believed to be located outside the United States; 4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and 5) shall be conducted in a manner consistent with the Fourth Amendment to the Constitution of the United States. The bill would require the AG to adopt guidelines to ensure that the government does not engage in any of this prohibited conduct and obtains individual court orders when required.
• Acquisition. H.R. 6304 provides for the involvement of the FISA Court in approving procedures for targeting foreigners outside of the U.S. that could involve U.S. persons (as outlined in the targeting and minimization procedures below). The legislation would require the court to approve targeting and minimization before collection begins unless the DNI and AG determine that exigent circumstances exist. Should the DNI and AG make this determination of exigent circumstances that intelligence important to U.S. national security may be lost or not timely acquired, an acquisition would be authorized to proceed prior to a court order. The AG and DNI would be required to submit procedures within seven days and the court would be required to make a determination within 30 days. The bill would require that all relevant minimization and reverse targeting guidelines would apply during this period.
• Targeting procedures. H.R. 6304 would require the AG, in consultation with the DNI, to adopt targeting procedures that are designed to ensure that any acquisition is limited to targeting persons reasonably believed to be located outside of the United States and prevent the acquisition of purely domestic communications. It also would require the AG and DNI to submit these targeting procedures to the FISA Court for review and approval.
• Minimization procedures. H.R. 6304 would require the AG, in consultation with the DNI, to adopt minimization procedures used to address any incidental acquisition, retention or dissemination of U.S. person information, in order to protect the privacy of any Americans who might be in contact with a foreign target. The bill requires that these procedures be approved by the FISA Court.
• Judicial review of certifications and procedures. H.R. 6304 would require prior FISA Court review of minimization and targeting procedures, as specified above, and require that judicial review of procedures be completed within 30 days.
• Assessments and reviews. H.R. 6304 would require that the AG and DNI assess compliance with targeting and minimization procedures semiannually, and submit each assessment to the FISA court and congressional intelligence and judiciary committees.
Electronic surveillance of United States persons outside the United States (Section 703). H.R. 6304 would require the FISA Court to make an individual determination of probable cause before a U.S. person outside the United States may be targeted for electronic surveillance. It specifies that each court order would valid for no longer than 90 days.
Foreign intelligence collection on United States persons outside the United States (Section 704). H.R. 6304 would require the FISA Court to make an individual determination of probable cause before a U.S. person overseas may be targeted for any foreign intelligence collection. This court order also would be valid for no longer than 90 days.
Provisions included in Sections 703 and 704 are intended to ensure that Americans traveling or working abroad are entitled to the same protections from surveillance and search that they would have if located in the United States.
Congressional Oversight (Section 707). H.R. 6304 includes a provision that would require the AG to submit a semiannual report to congressional intelligence committees and the Committees on the Judiciary of the Senate and House of Representatives regarding compliance and noncompliance with the provisions of section 702. The bill also provides that the report must include the number of applications made, granted, modified, denied, as well as emergency acquisitions authorized by the AG under Sections 703 and 704.
Exclusivity (Section 102). H.R. 6304 restates the 1978 FISA exclusivity provision and strengthens language to ensure that domestic electronic surveillance can be done using only FISA, criminal wiretap statues, or future statutes that expressly authorize electronic surveillance. This provision effectively prevents the use of Authorizations for Use of Military Force as the statutory basis for circumventing FISA. The bill also provides that criminal and civil penalties can be imposed for any electronic surveillance that is not conducted in accordance with FISA or specifically listed criminal intercept laws.
Submittal to Congress of certain court orders under the Foreign Intelligence Surveillance Act of 1978 (Section 103). H.R. 6304 would require the Attorney General to submit in its semiannual reports to congressional Intelligence and Judiciary committees a copy of any decision, order, or opinion issued by the FISA Court or FISA Court of Review that provide a significant construction or interpretation of any provision of this Act and any pleadings, applications, or memoranda of law associated with this decision, order, or opinion, no later than 45 days after its issuance as well as those issued during the five-year period ending on the date of the FISA Amendments Act of 2008 and not previously submitted in a report.
Weapons of Mass Destruction (Section 110). H.R. 6304 would amend FISA to allow foreign intelligence collection against proliferators of weapons of mass destruction (WMD). The bill would narrow the definition of WMD to ensure that only weapons capable of causing serious bodily injury to a significant number of persons are included.
Title II - Protections for Electronic Communication Service Providers
Procedures for implementing statutory defenses under the Foreign Intelligence Surveillance Act of 1978 (Section 202). H.R. 6304 would amend FISA to permit civil liability protection for electronic communication service providers who participated in the President's post-9/11 surveillance program, provided the district court finds that the Attorney General's certification that liability protection should apply is supported by "substantial evidence." The certification must include a showing that the companies' cooperation was in connection with a program authorized between September 11, 2001 and January 17, 2007, and designed to detect or prevent a terrorist attack, and the company received a written request or directive from the Attorney General or the head of an element of the Intelligence Community that indicated the program was authorized by the President and determined to be lawful. In making the "substantial evidence" determination, the district court will have the opportunity, in camera and ex parte if necessary, to examine these highly classified communications between the Administration and the companies.
H.R. 6304 would also amend FISA to provide a mechanism for the court to assess whether individuals who assisted the government pursuant to court order, statutory certifications, or Protect America Act directives should be entitled to immunity, even if those orders, certifications or directives are classified.
H.R. 6304 would further require that plaintiffs and defendants have the opportunity to file public briefs on legal issues and that the court include in any public order a description of the legal standards that govern the order.
NOTE: The immunity provision of the Act does not apply to any actions against the government for any alleged injuries caused by government officials, nor does the immunity provision involve any statement by the Congress on the legality or illegality of the President's program.
Title III - Review of Previous Actions
Inspector General review (Section 301). H.R. 6304 would require the Inspectors General of the Department of Justice, the Office of the Director of National Intelligence, the National Security Agency, and the Department of Defense to complete a comprehensive review of the President's surveillance program within one year and submit an unclassified report to Congress, with a classified annex, if necessary. This review would provide comprehensive facts about the program to Congress and the public.
Title IV - Other Provisions
Repeals (Section 403). H.R. 6304 would repeal the Protect America Act of 2007 (PAA). Existing orders, authorizations, and directives under the PAA, however, would remain in effect until their expiration.
H.R. 6304 would sunset on December 31, 2012, to allow the next administration to evaluate how the new authorities are carried out and to ensure that abuses do not occur before authorities are further extended.
Legislative History
In August 2007, Congress passed the Protect America Act of 2007 (PAA), which provided temporary amendments to the Foreign Intelligence Surveillance Act of 1978 while Congress considered longer-term amendments. Congress spent the next several months negotiating a bill in the Senate Select Committee on Intelligence (SSCI) and the Senate Committee on the Judiciary. On October 26, 2007, SSCI favorably reported S. 2248, the FISA Amendments Act of 2007, by a vote of 13 to 2. On November 15, 2007, the Senate Judiciary Committee reported the measure with an amendment in the nature of a substitute by a vote of 10 to 9. This vote was ratified the following day.
After an agreement was reached to return to the bill during the second session of the 110th Congress, the Senate resumed consideration of S. 2248, with the Judiciary Committee's substitute as the pending amendment on January 23, 2008. The substitute was later tabled. On February 12, the Senate passed the bill and incorporated its text in H.R. 3773, the House version of the FISA Amendments Act, entitled the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act of 2007, as an amendment.
Since that time, House and Senate leaders have sought to negotiate compromise legislation. On June 19, Senator Rockefeller, Chairman of the Senate Select Committee on Intelligence (SSCI), announced that a deal had been reached. On June 20, the House passed H.R. 6304, the FISA Amendments Act of 2008 on a vote of 293 to 129. On June 25, the Senate agreed to the motion to invoke cloture on the motion to proceed to the legislation on a 80 to 15 vote.
Statement of Administration Policy
On June 19, the Attorney General and Director of National Intelligence submitted a letter of support for H.R. 6304 to Speaker of the House Pelosi.
Possible Amendments
Amendments are expected to H.R. 6304, including:
• An amendment to strike Title II;
• A substitute amendment that includes Titles I, III, and IV, but does not include Title II;
• An amendment to stay all pending cases against the telecommunications companies and delay the effective date of Title II until 90 days after Congress receives the Inspectors General report regarding the President's surveillance program; and
• An amendment to require the district court to make a determination as to whether the telecommunication companies' participation in the President's surveillance program was constitutional.
As it becomes available, the DPC will distribute additional information on amendments.
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