FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000400010001-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 121
• Document Creation Date: December 19, 2016
• Document Release Date: September 14, 2005
• Sequence Number: 1
• Publication Date: June 8, 1978
• Content Type: REPORT

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Rd Session 1283, Pt. I
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
Mr. BOLAND, from the Permanent Select Committee on Intelligence,
submitted the following
REPORT
together with
SUPPLEMENTAL, ADDITIONAL, AND DISSENTING
VIEWS
[To accompany H.R. 7308 which on November 4, 1977, was referred jointly to the
Committee on the Judiciary and the Permanent Select Committee on Intelli-
gence]
The Permanent Select Committee on Intelligence, to whom was
referred the bill (H.R. 7308) to amend title 18, United States Code, to
authorize applications for a court order approving the use of elec-
tronic surveillance to obtain foreign intelligence information, having
considered the same, report favorably thereon with amendments and
recommend that the bill as amended do pass.
Strike all after the enacting clause and insert in lieu thereof :
That this act may be cited as the "Foreign Intelligence Surveillance Act of
1978".
TABLE OF CONTENTS
TITLE I-ELECTRONIC SURVEILLANCE WITHIN TIIE UNITED STATES FOR
FOREIGN INTELLIGENCE PURPOSES
Sec.
101.
Definitions.
Sec.
102.
Authorization for electronic surveillance for foreign intelligence purposes.
Sec.
103.
Special courts.
Sec.
104.
Application for an order.
See.
105.
Issuance of an order.
Sec.
106.
Use of information.
Sec.
107.
Report of electronic surveillance.
Sec.
108.
Congressional oversight.
See.
109.
Penalties.
See.
110.
Civil liability.
TITLE II-CONFORMING AMENDMENTS
Sec. 201. Amendments to chapter 119 of title 18, United States Code.
TITLE III--EFFECTIVE. DATE
Sec. 301. Effective date.
29--228
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TITLE I-ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES
FOR FOREIGN INTELLIGENCE PURPOSES
SEC. 101. As used in this title :
(a) "Foreign power" means-
(1) !a foreign government or any component thereof, whether or not rec-
ognized by the United States ;
(2) a faction of a foreign nation or nations, not substantially composed
of United 'States persons ;
(3) an entity that is openly acknowledged by a foreign government or
governments to be directed and controlled by such foreign government or
governments ;
(4) a group engaged in international terrorism or activities in prepara-
tion therefor ;
(.i) a foreign-based political organization, not substantially composed
of United States persons ; or
(6) an entity that is directed and controlled by a foreign government br
governments.
(b) "Agent of a foreign power" means=-
(1) any person other than a United States person who-
I(A) acts in the United States 'as an officer, member, or employee of a
foreign power; or
(B) acts for for on behalf of 'a foreign power whie'h engages in clan-
destine intelligence activities in the United (States contrary to the
interests oi' the United States, when the circumstances of such per-
son's presence in the United 'States indicate that such person may
engage in such activities in the United States, or when such person
knowingly aids or abets any person in the conduct of such activities
or knowingly conspires with any person to engage in such activities ; or
(2) any perskm who-
(A) knowingly engages in clandestine intelligence gathering activities
for or on behalf of a foreign power, which activities involve or may
involve a violation of the criminal statutes of the United States ;
(B) pursuant to the direction of an intelligence service or network
of a foreign power, knowingly engages in any other clandestine intelli-
gence activities for or on behalf of such foreign power, which activities
involve or are about to involve a violation of the criminal statutes of
the United States ;
(C) knowingly engages in sabotage or international terrorism, or
activities that are in preparation therefor, for or on behalf of a foreign
power; or
(D) knowingly aids or abets any person in the conduct of activities
described in subparagraph (A), (B), or (C) or knowingly conspires
with any person to engage in activities described in subparagraph (A),
(B), or (C).
(c) "International terrorism" means activities that-
(1) involve violent acts or acts dangerous to human life that are or may
he a violation of the criminal laws of the United States or of any State, or
that might involve a criminal violation if committed within the jurisdiction
of the United States or any State;
(2) appear to be intended-
(A) to intimidate or coerce a civilian population,
(B) to influence the policy of a government by intimidation or
coercion, or
(C) to affect the conduct of a government by assassination or kid-
napping ; and
(3) occur totally outside the United States, or transcend national
boundaries in terms of the means by which they are accomplished, the
persons they appear intended to coerce or intimidate, or the locale in which
their perpetrators operate or seek asylum.
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(d) "Sabotage" means activities that involve or may involve a violation of
chapter 105 of title 18, united States Code, or that might involve such a violation
if committed against the United States.
(e) "Foreign intelligence information" 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.
(f) "Electronic surveillance" means-
(1) the acquisition by, an electronic, mechanical, or other surveillance
device of the contents of any wire or radio communication sent by or in-
tended to be received by a particular, known United States person who is
in the United States, if the contents are acquired by intentionally targeting
that " United States person, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be required for law
enforcement purposes ;
(2) the acquisition by an electronic, mechanical, or other surveillance
device of the contents of any wire communication to or from a person in the
United States, without the consent of any party thereto, if such acquisition
occurs in the United States ;
(3) the intentional acquisition by an electronic, mechanical, or other
surveillance device of the contents of any radio communication, tinder cir-
cunistances in which a person has a reasonable expectation of privacy and
a warrant would be required for law enforcement purposes, and if bath the
sender and all intended recipients are located within the United States ; or
(4) the installation or use of an electronic; mechanical, or other surveil-
lance device in the United States for monitoring to acquire information,
other than from a wire or radio communication, under circumstances in
which a person has a reasonable expectation of privacy and a warrant would
be required for law enforcement purposes.
(g) "Attorney General" means the Attorney General of the United States (or
Acting Attorney General) or the Deputy Attorney General.
(h) "Minimization procedures" with respect to electronic surveillance means-
(1) specific procedures, which shall be adopted by the Attorney General,
that are reasonably designed in light of the purpose and technique of the
particular surveillance, to minimize the acquisition, retention, and dissemina-
tion of nonpublicly available information concerning unconsenting United
States persons consistent with the need of the United States to obtain, pro-
duce, and disseminate foreign intelligence information ;
(2) procedures that require that nonpublicly available information, which
is not foreign intelligence information, as defined in subsection (e) (1), shall
not be disseminated in a manner that identifies any individual United States
person, without such person's consent, unless such person's identity is nec-
essary to understand foreign intelligence information or assess its
importance ;
(3) Notwithstanding paragraphs (1) and (2), procedures that allow for
the retention and dissemination of information that is evidence of a crime
which has been, is being, or is about to be committed and that is to be re-
tained or disseminated for the purpose of preventing the crime or enforcing
the criminal law ; and
(4) notwithstanding paragraphs (1), (2), and (3), with respect to any
electronic surveillance approved pursuant to section 102(a), procedures that
require that no contents of any communication to which a United States
person is a party shall be disclosed, disseminated, or used for any purpose
or retained for longer than twenty-four hours unless a court order under
section 105 is obtained or unless the Attorney General determines that the
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information may indicate a threat of death or serious bodily harm to any
person.
(i) "United States person" means a citizen of the United States, an alien law-
fully admitted for permanent residence (as defined in section 101 (a) (20) of the
Immigration and Nationality Act), an unincorporated association a substantial
number of members of which are citizens of the United States or aliens lawfully
admitted for permanent residence, or a corporation which is incorporated in the
United States, but does not include a corporation or an association which is a
foreign power, as deflued in subsection (a) (1), (2), or (3).
(j) "United States", when used in a geographic sense, means all areas under
the territorial sovereignty of the United States and the Trust Territory of the
Pacific Islands.
(k) "Aggrieved person" means a person who is the target of an electronic
surveillance or any other person whose communications or activities were subject
to electronic surveillance.
(1) "Wire communication" means any communication while it is being carried
by a wire, 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 interstate or foreign communications.
(m) "Person" means any individual, including any officer or employee of the
Federal Government, or any group, entity, association, corporation, or foreign
power.
(n) "Contents", when used with respect to a communication, includes any
information concerning the identity of the parties to such communication or
the existence, substance, purport, or meaning of that communication.
AUTHORIZATION FOR rLFCTRONIC SURVEILLANCE FOR FOREIGN
INTELLIGENCE PURPOSES
SEC. 102. (a) (1) Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a court order
under this title to acquire foreign intelligence information for periods of up to
one year if the Attorney. General certifies in writing under oath that-
(A) the electronic surveillance is solely directed at-
(i) communications exclusively between or among foreign powers, as
defined in section 101(a) (1), (2), or (3) ; or
(ii) the acquisition of technical intelligence from property or premises
under the open and exclusive control of a foreign power, as defined in
section 101(a) (1), (2), or (3), and
(B) the proposed minimization procedures with respect to such surveil-
lance meet the definition of minimization procedures under section 101(h)
and
if the Attorney General shall report such minimization procedures and any
changes thereto to the House Permanent Select Committee on Intelligence and
the Senate Select Committee on Intelligence at least 30 days prior to their
effective date, unless the Attorney General determines immediate action is
required and notifies the committees immediately of such minimization proce-
dures and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may be conducted
only in accordance with the Attorney General's certification and the minimiza-
tion procedures adopted by him.
(3) With respect to electronic surveillance authorized by this subsection,
the Attorney General may direct a specified communication common carrier to-
(A) furnish all information, facilities, or technical assistance necessary
to accomplish the electronic 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
(B) maintain under security procedures approved by the Attorney Gen-
eral and the Director of Central Intelligence any records concerning the
surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for fur-
nishing such aid.
(b) Applications for a court order under this title are authorized if the Presi-
dent has, by written authorization, empowered the Attorney General to approve
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applications to the Special Court having jurisdiction under section 103, and a
judge to whom an application is made may, notwithstanding any other law, grant
an order, in conformity with section 105, approving electronic surveillance of a
foreign power or an agent of a foreign power for the purpose of obtaining for-
eign intelligence information, except that the Special Court shall not have juris-
diction to grant any order approving electronic surveillance directed solely as
described in paragraph (1) (A) of subsection (a) unless such surveillance may
involve the acquisition of communications of any United States person.
SEc. 103. (a) There is established a Special Court of the United States with
jurisdiction throughout the United States to carry out the judicial duties of this
title. The Chief Justice of the United States shall publicly designate at least one
judge from each of the judicial circuits, nominated by the chief judges of the
respective circuits, who shall be members of the Special Court and one of whom
the Chief Justice shall publicly designate as the chief judge. The Special Court
shall sit continuously in the District of Columbia.
(b) There is established a Special Court of Appeals with jurisdiction to
hear appeals from decisions of the Special Court and any other matter assigned
to it by this title. The Chief Justice shall publicly designate six judges, one of
whom shall be publicly designated as the chief judge, from among judges nom-
inated by the chief judges of the district courts of the District of Columbia, the
Eastern District of Virginia and the District of Maryland, and the United
'States Court of Appeals for the District of Columbia, any three of whom shall
constitute a panel for purposes of carrying out its duties under this title.
(c) The judges of the Special Court and the Special Court of Appeals shall
be designated for six-year terms, except that the Chief.Justice shall stagger
the terms of the members originally chosen. No judge may serve more than two
full terms.
'(d) The chief judges of the Special Court and the Special Court of Appeals
shall, in consultation with the Attorney General and the Director of Central
Intelligence, establish such document, physical, personnel, or communications
security measures as are necessary to protect information submitted to or pro-
ducted by the Special Court or Special Court of Appeals from unauthorized
disclosure.
(e) Proceedings under this title shall be conducted as expeditiously as pos-
sible. If any application to the Special 'Court is denied, the court shall record
the reasons for that denial, and the reasons for that denial shall, upon the mo-
tion of the party to whom the application was denied, be transmitted under
seal to the Special Court of Appeals.
(f) Decisions of the Special Court of Appeals shall be subject to review by
the Supreme Court of the United States in the same manner as a judgment of
a United States court of appeals as provided in section 1254 of title 28, United
States Code, except that the Supreme Court may adopt special procedures with
respect to security appropriate to the case.
\(g) The Chief Judges of the -Special Court and the Special 'Court of Appeals
may, in consultation with the Attorney General and Director of Central Intel-
ligence and consistent with subsection (d)-
(1) designate such officers or employees of the Government, as may be
necessary, to serve as employees of the Special Court and Special Court of
Appealsi; and
(2) promulgate such rules or administrative procedures as may be neces-
sary to the efficient functioning of the Special Court and Special Court of
Appeals.
Any funds necessary to the operation of the Special Court and the Special Court
of Appeals may be drawn from appropriations for the Department of Justice.
The Department of Justice shall provide such fiscal and administrative services
as may be necessary for the Special Court and Special Court of Appeals.
SEc. 104. (a) Each application for an order approving electronic surveillance
under this title shall be made by a Federal officer in writing upon oath or affirma-
tion to a judge having jurisdiction under section 103. Each application shall
require the approval of the Attorney General based upon his finding that it
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satisfies the criteria and requirements of such application as set forth in this
title. It shall include-
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the President
of the United States and the approval of the Attorney General to make the
application ;
(3) the identity, if known, or a description of the target of the electronic
surveillance ;
(4) a statement of the facts and circumstances relied upon by the
applicant to justify his belief that-
(A) the target of the electronic surveillance is a foreign power or an
agent of a foreign power ; and
(B) each of the facilities or places at which the electronic surveil-
lance is directed is being used, or is about to be used, by a foreign
power or an agent of a foreign power ;
(5) a statement of the proposed minimization procedures ;
(6) a detailed description of the nature of the information sought and
the type of communications or activities to be subjected to the surveillance;
(7) a certification or certifications by the Assistant to the President for
National Security Affairs or an executive branch official or officials
designated by the President from among those executive officers employed
in the area of national security or defense and appointed by the President
with the advice and consent of the Senate-
(A) that the certifying official deems the information sought to be
foreign intelligence information ;
(B) that the purpose of the surveillance is to obtain foreign Intel-
ligence information ;
(C) that such information cannot reasonably be obtained by normal
investigative techniques ;
(D) that designates the type of foreign intelligence information being
sought according to the categories described in section 101(e) ; and
(E) including a statement of the basis for the certification that-
(i) the information sought is the type of foreign intelligence
information designated ; and
(ii) such information cannot reasonably be obtained by normal
investigative techniques ;
(8) a statement of the means by which the surveillance will be affected;
(9) a statement of the facts concerning all previous applications that
have been made to any judge under this title involving any of the persons,
facilities, or places specified in the application, and the action taken on each
previous application ;
(10) a statement of the period of time for which the electronic surveil-
lance is required to be maintained, and if the nature of the intelligence
gathering is such that the approval of the use of electronic surveillance
under this title should not automatically terminate when the described type
of information has first been obtained, a description of facts supporting
the belief that additional information of the same type will be obtained
thereafter ; and
(11) whenever more than one electronic, mechanical, or other surveil-
lance device is to be used with respect to a particular proposed electronic
surveillance, the coverage of the devices involved and what minimization
procedures apply to information acquired by each device.
(b) Whenever the target of the electronic surveillance is a foreign power, as
defined in section 101(a) (1), (2), or (3), and each of the facilities or places
at which the surveillance is directed is owned, leased, or exclusively used by
that foreign power, the application need not contain the information required
by paragraphs (6), (7) (E), (8), and (11) of subsection (a), but shall contain
such information about the surveillance techniques and communications or other
information concerning United States persons likely to be obtained as may be
necessary to assess the proposed minimization procedures.
(c) The Attorney General may require any other affidavit or certification
from any other officer in connection with the application.
(d) The judge may require the applicant to furnish such other information
as may be necessary to make the determinations required by section 105.
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ISSUANCE OF AN ORDER
Szo. 105. (a) Upon an application made pursuant to section 104, the judge
shall enter an ex parte order as requested or as modified approving the electronic
surveillance if he finds that-
(1) the President has authorized the Attorney General to approve applica-
tions for electronic surveillance for foreign intelligence information ;
(2) the application has been made by a Federal officer and approved by
the Attorney General;
(3) on the basis of the facts submitted by the applicant there is probable
cause to believe that-
(A) the target of the electronic surveillance is a foreign power or
an agent of a foreign power : Provided, That no United States person
may be considered a foreign power or an agent of a foreign power solely
upon the basis of activities protected by the first amendment to the
Constitution of the United States ; and
(B) each of the facilities or places at which the electronic surveil-
lance is directed is being used, or is about to be used, by a foreign power
or an agent of a foreign power ;
(4) the proposed minimization procedures meet the definition of minimi-
zation procedures under section 101(h) ; and
(5) the application which has been filed contains all statements and cer-
tifications required by section 104 and, if the target is a United States per-
son, the certification or certifications are not clearly erroneous on the basis
of the statement made ender section 104(a) (7) (E) and any other informa-
tion furnished under section 104(d).
(b) An order approving an electronic surveillance under this section shall-
(1) specify-
(A) the identity, if known, or a description of the target of the elec-
tronic surveillance ;
(B) the nature and location of each of the facilities or places at
which the electronic surveillance will be directed ;
(C) the type of information sought to be acquired and the type of
communications or activities to be subjected to the surveillance ;
(D) the means by which the electronic surveillance will be effected;
(E) the period of time during which the electronic surveillance is ap-
proved; and
(F) whenever more than one electronic, mechanical, or other surveil-
lance device is to be used under the order, the authorized coverage of
the devices involved and what minimization procedures shall apply to
information subject to acquisition by each device; and
(2) direct--
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified communica-
tion or other common carrier, landlord, custodian, or other specified
person furnish the applicant forthwith any and all information,
facilities, or technical assistance necessary to accomplish the electronic
surveillance in such manner as will protect its secrecy and produce a
minimum of interference with the services that such carrier, land-
lord, custodian, or other person is providing that target of electronic
surveillance ;
(C) that such carrier, landlord, custodian or other person maintain
under security procedures approved by the Attorney General and the
Director of Central Intelligence any records concerning the surveillance
or the aid furnished that such person wishes to retain ; and
(D) that the applicant compensate, at the prevailing rate, such
carrier, landlord, custodian, or other person for furnishing such aid.
(c) Whenever the target of the electronic surveillance is a foreign power, as
-defined in section 101(a) (1), (2), or (3), and each of the facilities or places
at which the surveillance is directed is owned, leased, or exclusively used by
that foreign power, the order need not contain the information required by sub-
paragraphs (C), (D), and (F) of subsection (b) (1), but shall generally describe
the information sought the communications or activities to be subjected to the
surveillance, and the type of electronic surveillance involved, mending whether
physical entry is required.
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(d) (1) An order issued under this section may approve an electronic surveil-
lance for the period necessary to achieve its purpose, or for ninety days, which-
ever is less, except that an order tinder this section shall approve an electronic
surveillance targeted against a foreign power, as defined in section 101 (a) (1),
(2), or (3), for the period specified in the application or for one year, whichever
is less.
(2) Extensions of an order issued under this title may be granted on the same
basis as an orignal order upon an application for an extension and new findings
made in the same manner as required for an original order, except that an exten-
sion of an order under this chapter for a surveillance targeted against a foreign
power, as defined in section 101(a) (4), (5), or (6), may be for a period not to
exceed one year if the judge finds probable cause to believe that no communica-
tion of any individual United States person will be acquired during the period.
(3) At the end of the period of time for which electronic surveillance is ap-
proved by an order or an extension, the judge may assess compliance with the
minimization procedures by reviewing the circumstances under which informa-
tion concerning United States persons was acquired, retained, or disseminated.
(e) Notwithstanding any other provision of this title, when the Attorney
General reasonably determines that-
(1) an emergency situation exists with respect to the employment of
electronic surveillance to obtain foreign intelligence information before an
order authorizing such surveillance can with due diligence be obtained, and
(2) the factual basis for issuance of an order under this title to approve
such surveillance exists,
he may authorize the emergency employment of electronic surveillance if a judge
designated pursuant to section 103 is informed by the Attorney General or his
designee at the time of such authorization that the decision has been made to
employ emergency electronic surveillance and if an application in accordance
with this title is made to that judge as soon as practicable, but not more than
twenty-four hours after the Attorney General authorizes such surveillance. If
the Attorney General authorizes such emergency employment of electronic sur-
veillance, he shall require that the minimization procedures required by this title
for the issuance of a judicial order be followed. In the absence of a judicial order
approving such electronic surveillance, the surveillance shall terminate when
the information sought is obtained, when the application for the order is denied,
or after the expiration of twenty-four hours from the time of authorization by
the Attorney General, whichever is earliest. In the event that such application for
approval is denied, or in any other case where the electronic surveillance is ter-
minated and no order is issued approving the surveillance, no information ob-
tained or evidence derived from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other proceeding in or before any
court, grand jury, department, office, agency, regulatory body, legislative com-
mittee, or other authority of the United States, a State or political subdivision
thereof, and no information concerning any United States person acquired from
such surveillance shall subsequently be used or disclosed in any other manner
by Federal officers or employees without the consent of such person, except with
the approval of the Attorney General if the information may indicate a threat
of death or serious bodily harm to any person. A denial of the application
made under this subsection may be reviewed as provided in section 103.
(f) Notwithstanding any other provision of this title, officers, employees, or
agents of the United States are authorized in the normal course of their official
duties to conduct electronic surveillance not targeted against the communications
of any particular person or persons, under procedures approved by the Attorney
General, solely to-
(1) test the capability of electronic equipment, if-
(A) it is not reasonable to -obtain the consent of the persons inciden-
tally subjected to the surveillance ;
(B) the test is limited in extent and duration to that necessary to
determine the capability of the equipment ; and
(C) the contents of any communication acquired are retained and
used only for the purpose of determining the capability of the equipment,
are disclosed only to test personnel, and are destroyed before or immedi-
ately upon completion of the test;
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(2) determine the existence and capability of electronic surveillance equip-
ment being used by persons not authorized to conduct electronic surveil-
lance, if-
(A) it is not reasonable to obtain the consent of persons incidentally
subjected to the surveillance ;
(B) such electronic surveillance is limited in extent and duration to
that necessary to determine the existence and capability of such equip-
ment ; and
(0) any information acquired by such surveillance is used only to
enforce chapter 119 of title 18, United States Code, or section 605 of the
Communications Act of 1934, or to protect information from unauthorized
surveillance ; or
(3) train intelligence personnel in the use of electronic surveillance equip-
ment, if-
(A) It is not reasonable to-
(i) obtain the consent of the persons incidentally subjected to the
surveillance ;
(ii) train persons in the course of surveillance otherwise author-
ized by this title ; or
(iii) train persons in the use of such equipment without engaging
in electronic surveillance ;
(B) such electronic surveillance is limited in extent and duration to
that necessary to train the personnel in the use of the equipment ; and
(C) no contents of any communication acquired are retained or dis-
seminated for any purpose, but are destroyed as soon as reasonably
possible.
(g) Certifications made by the Attorney General pursuant to section 102(a)
and applications made and orders granted under this title shall be retained in
accordance with the security procedures established pursuant to section 103
for a period of at least ten years from the date of the application.
Sac. 106. (a) Information acquired from an electronic surveillance conducted
pursuant to this title concerning any United States person may be used and dis-
closed by Federal officers and employees without the consent of the United States
person only in accordance with the minimization procedures required by this
title. No otherwise privileged communication obtained in accordance with, or
in violation of, the provisions of this title shall lose its privileged character. No
information acquired from an electronic surveillance pursuant to this title may
be used or disclosed by Federal officers or employees except for lawful purposes.
(b) No information acquired pursuant to this title shall be disclosed for law
enforcement purposes unless such disclosure is accompanied by a statement that
such information, or any information derived therefrom, may only be used in a
criminal proceeding with the advance authorization of the Attorney General.
(c) Whenever the Government intends to enter into evidence or otherwise
use or disclose in any trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other authority of the United
States, against an aggrieved person, any information obtained or derived from
an electronic surveillance of that aggrieved person pursuant to the authority
of this title, the Government shall, prior to the trial, hearing, or other proceeding
or at a reasonable time prior to an effort to so disclose or so use that information
or submit it in evidence, notify the aggrieved person and the court or other
authority in which the information is to be disclosed or used that the Govern-
ment intends to so disclose or so use such in eormation.
(d) Whenever any State or political subdivision thereof intends to enter into
evidence or otherwise use or disclose in any trial, hearing, or other proceeding
in or before any court, department, officer, agency, regulatory body, or other
authority of a State or a political subdivision thereof, against an aggrieved
person any information obtained or derived from an electronic surveillance of
that aggrieved person pursuant to the authority of this title, the State or politi-
cal subdivision thereof shall notify the aggrieved person, the court or other
authority in which the information is to be disclosed or used, and the Attorney
General that the State or political subdivision thereof intends to so disclose or
so use such information.
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(e) Any person against whom evidence obtained or derived from an electronic
surveillance to which he is an aggrieved person is to be, or has been, introduced
or otherwise used or disclosed in any trial, hearing, or other proceeding in or
before any court, department, officer, agency, regulatory body, or other authority
of the United States, a State or a political subdivision thereof, may move to sup-
press the evidence obtained or derived from such electronic surveillance on the
grounds that--
(1) the information was unlawfully acquired; or
(2) the surveillance was not made in conformity with an order of au-
thorization or approval.
Such a motion shall be made before the trial, hearing, or other proceeding unless
there was no opportunity to make such a motion or the person was not aware
of the grounds of the motion.
(f) Whenever a court or other authority is notified pursuant to subsection
(c) or (d), or whenever a motion is made pursuant to subsection (e) and the
Government concedes that information obtained or derived from an electronic
surveillance pursuant to the authority of this title as to which the moving party
is an aggrieved person is to be, or has been, introduced or otherwise used or
disclosed in any trial, hearing, or other proceeding, the Government may make
a motion before the Special Court to determine the lawfulness of the electronic
surveillance. Unless all the judges of the Special Court are so disqualified, the
motion may not be heard by a judge who granted or denied an order or extension
involving the surveillance at issue. Such motion shall stay any action in any
court or authority to determine the lawfulness of the surveillance. In determining
the lawfulness of the surveillance, the Special Court shall, notwithstanding any
other law, if the Attorney General files an affidavit under oath with the Special
Court that disclosure would harm the national security of the United States or
compromise foreign intelligence sources and methods, review in camera the ap-
plication, 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 Special
Court may disclose to the aggrieved person, under appropriate security proce-
dures and protective orders, portions of .the application, order, or other materials
if there is a reasonable question as to the legality of the surveillance and if
disclosure would likely promote a more accurate determination of such legality,
or if such disclosure would not harm the national security.
(g) Except as provided in subsection (f), whenever any motion or request
is made pursuant to any 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 surveillance pursuant
to the authority of this title or to discover, obtain, or suppress any information
obtained from electronic surveillance pursuant to the authority of this title, and
the court or other authority determines that the moving pary is an aggrieved
person, if the Attorney General files with the Special Court of Appeals an affi-
davit under oath that an adversary hearing would harm the national security or
compromise foreign intelligence sources and methods and that no information
obtained from electronic surveillance pursuant to the authority of this title, and
this title has been or is about to be used by the Government in the case before
the court or other authority, the Special Court of Appeals shall, notwithstanding
any other law, stay the proceeding before the other court or authority and review
in camera and ex parte the application, order, and such other materials as may
be necessary to determine whether the surveillance of the aggrieved person was
lawfully authorized and conducted. In making this determination, and the Spe-
cial Court of Appeals still disclose, under appropriate security procedures and
protective orders, to the aggrieved person or his attorney portions of the applica-
tion, order, or other materials relating to the surveillance only if necessary to
afford due process to the aggrieved person.
(h) If the Special Court pursuant to subsection (f) or the Special Court of
Appeals pursuant to subsection (g) determines the surveillance was not law-
fully authorized and conducted, it shall, in accordance with the requirements of
the law, suppress the evidence which was unlawfully obtained or derived from
electronic surveillance of the aggrieved person or otherwise grant the motion of
the aggrieved person. If the Special Court pursuant to subsection (f) or the Spe-
cial Court of Appeals pursuant to subsection (g) determines the surveillance
was lawfully authorized and conducted, it shall deny the motion of the aggrieved
person except to the extent that due process requires discovery or disclosure.
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(i) Orders granting or denying motions or requests under subsection (h), deci-
sions -under this section as to the lawfulness of electronic surveillance, and,
absent a finding of unlawfulness, orders of the Special Court or Special Court
of Appeals granting or denying disclosure of applications, orders, or other mate-
rials relating to a surveillance shall be final orders and binding upon all courts
of the United States and the ;several States except the Special Court of Appeals
and the Supreme Court.
(j) In circumstances involving the unintentional acquisition by an electronic;
mechanical, or other surveillance device of the contents of any radio com-
munication, under circumstances in which a person has a reasonable expectation
of privacy and a warrant would be required for law enforcement purposes, and if
both the sender and all intended recipients are located within the United States,
such contents shall be destroyed upon recognition, unless the Attorney General.
determines that the contents may indicate a threat of death or serious bodily
harm to any person.
(k) If an emergency employment of electronic surveillance is authorized under
section 105(e) and a subsequent order approving the surveillance is not obtained,
the judge shall cause to be served on any United States person named in the
application and on such other United States persons subject to electronic
surveillance as the judge may determine in his discretion it is in the interest;
of justice to serve, notice, of-
(1) the fact of the application ;
(2) the period of the surveillance ; and
(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge the serving of the notice
required by this subsection may be postponed or suspended for a period not to
exceed ninety days. Thereafter, on a further ex parte showing of good cause,
the court shall forego ordering the serving of the notice required under this
subsection.
REPORT OF ELECTRONIC SURVEILLANCE
SEC. 107. In April of each year, the Attorney General shall transmit to the
Administrative Office of the United States Courts and to Congress a report setting
forth with respect to the preceding calendar year-
(a) the total number of applications made for orders and extensions of
orders approving electronic surveillance under this title ; and
(b) the total number of such orders and extensions either granted,
modified, or denied.
CONGRESSIONAL OVERSIGHT
SEC. 108. On a semiannual basis the Attorney General shall fully inform the
House Permanent Select Committee on Intelligence and the Senate Select Com-
mittee on Intelligence concerning all electronic surveillance tinder this title.
Nothing in this title shall be deemed to limit the authority and responsibility of
thosec ommittees to obtain such additional information as they may need to carry
out their respective functions and duties.
SEc. 109. (a) OFFENSE.-A person is guilty of an offense if he intentionally--
(1) engages in electronic surveillance under color of law except as author-
ized by statute ; or
(2) violates section 102(a)(2), 105(e), 105(f), 105(g), 106(a), 106(b),
or 106(j) or any court order issued pursuant to this title, knowing his con-
duct violates an order or this title.
(b) DEFENSE:--(1) It is a defense to a prosecution under subsection (a) (1.)
that the defendant was a law enforcement or investigative officer engaged in the
course of his official duties and the electronic surveillance was authorized by
and conducted pursuant to a search warrant or court order of a court of com-
petent jurisdiction.
(2) It is a defense to a prosecution under subsection (a) (2) that the defend-
ant acted in good faith belief that his actions did not violate any provisions of
this title or any court order issued pursuant to this title, under circumstances
where that belief was reasonable.
(c) PENALTY.-An offense described in this section is punishable by a fine of
not more than $10,000 or imprisonment for not more than five years, or both.
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(d) JURISDICTION.-There is Federal jurisdiction over an offense under this
.section if the person committing the offense was an officer or employee of the
United States at the time the offense was committed.
SEC. 110. CIvIL ACTION.-An aggrieved person, other than a foreign power or
an agent of a foreign power, as defined in section 101 (a) or (b) (1) (A), respec-
tively, who has been subjected to an electronic surveillance or whose communica-
tion has been disseminated or used in violation of section 109 shall have a cause
of action against any person who committed such violation and shall be entitled
to recover-
(a) actual damages, but not less than liquidated damages of $1,000 or
$100 per day for each day of violation, whichever is greater ;
(b) punitive damages; and
(c) a reasonable attorney's fees and other investigation and litigation
costs reasonably incurred.
AMENDMENTS TO CHAPTER 119 OF TITLE 18, UNITED STATES CODE
SEC. 201. Chapter 119 of title 18, United. States Code, is amended as follows :
(e) Section 2511(2) (a) (ii) is amended to read as follows:
"(ii) Notwithstanding any other law, communication common carriers, their
officers, employees, and agents, landlords, custodians, or other persons, are au-
thorized to provide information, facilities, or technical assistance to persons au-
thorized by law to intercept wire or oral communications or to conduct electronic
surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act
of 1978, if the common carrier, its officers, employees, or agents, landlord, cus-
todian, or other specified person, has been provided with-
"(A) a court order directing such assistance signed by the authorizing
judge, or
" (B) a certification in writing by a person specified in section 2518 (7) of
this title or the Attorney General of the United States that no warrant or
court order is required by law, that all statutory requirements have been
met, and that the specified assistance is required,
setting forth the period of time during which the provision of the information, fa-
cilities, or technical assistance is authorized and specifying the information, facil-
ities, or technical assistance required. No communication common carrier, officer,
employee, or agent thereof, or landlord, custodian, or other specified person shall
disclose the existence of any interception or surveillance or the device used to
accomplish the interception or surveillance with respect to which the person has
been furnished an order or certification under this subparagrap, except as may
otherwise be required by legal process and then only after prior notification
to the Attorney General or to the principal prosecuting attorney of a State or
any political subdivision of a State, as may be appropriate. No cause of action
shall lie in any court against any communication common carrier, its officers, em-
ployees, or agents, landlord, custodian, or other specified person for providing
information, facilities, or assistance in accordance with the terms of an order or
certification under this subparagraph.".
(b) Section 2511(2) is amended by adding at the end thereof the following new
provisions :
"(e) Notwithstanding any other provision of this title or section 605 or 606 of
the Communications Act of 1934, it shall not be unlawful for an officer, employee,
or agent of the United States in the normal course of his official duty to conduct
electronic surveillance, as defined in section 101 of the Foreign Intelligence Sur-
veillance Act of 1978, as authorized by that Act.
Act of 1934, shall be deemed to affect the acquisition by the United States
Government of foreign intelligence information from international or foreign
communications by a means other than electronic surveillance as defined in
section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures
in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be
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the exclusive means by which electronic surveillance, as defined in section 101
of such Act, and the interception of domestic wire and oral communications may
be conducted.".
(c) Section 2511(3) is repealed.
(d) Section 2518(1) is amended by inserting "under this chapter" after
"communication".
(e) Section 2518(4) is amended by inserting "under this chapter" after both
appearances of "wire or oral communication".
(f) Section 2518(9) is amended by striking out "intercepted" and inserting
"intercepted pursuant to this chapter" after "communication".
(g) Section 2518(10) is amended by striking out "intercepted" and inserting
"intercepted pursuant to this chapter" after the first appearance of
"communication".
(h) Section 2519(3) is amended by inserting "pursuant to this chapter" after
"wire or oral communications" and after "granted or denied".
TITLE III-EFFECTIVE DATE
EFFECTIVE DATE
SEC. 301. The provisions of this Act and the amendments made hereby shall
become effective upon the date of enactment of this Act, except that any electronic
surveillance approved by the Attorney General to gather foreign intelligence
information shall not be deemed unlawful for failure to follow the procedures
of this Act, if that surveillance is terminated or an order approving that sur-
veillance is obtained under title I of this Act within ninety days following the
designation of the chief judges pursuant to section 103 of this Act.
Amend the title so as to read :
A bill to authorize electronic surveillance to obtain foreign intelligence
information.
HISTORY OF THE BILL
In 1976, the Ford administration under the leadership of Attorney
General Levi took the revolutionary step of supporting legislation to
require a judicial warrant for foreign intelligence electronic surveil-
lances in the United States. While bills which would have created
such a requirement had been introduced in the House and Senate each
year since 1973, previous administrations' responses were emphatically
negative. As then Assistant Attorney General Henry Peterson testi-?
fled in 1974 before the House Judiciary Committee, "let me be very
brief. We oppose these bills. That is it." Attorney General Levi, how-
ever, working closely with leaders of the House and Senate, drafted
a bill which was introduced in both the House and Senate in 1976
with broad bipartisan support. That bill, as amended, was favorably
reported by the Senate Judiciary and Intelligence Committees in.
1976, but the session ended before the full Senate could act on the
legislation.
The Carter administration, and especially Attorney General Bell,
again working closely with House and Senate leaders, picked up where
the Ford administration left off, supporting the introduction of a new
bill, S. 1566 in the Senate and H.R. 7308 in the House, on May 18,
1977. The Senate bill was favorably reported with amendments by
the Senate Judiciary Committee on November 15, 1977, and by the
Senate Intelligence Committee on March 14, 1978. S. 1566 was passed
by the Senate on April 20, 1978, by a vote of 95-1. In the House, the
bill, H.R. 7308, was referred to the Committee on the Judiciary. With
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the creation of the Permanent Select. Committee on Intelligence, the
bill was referred by unanimous consent to this committee as well.
Four days of open hearings were held by the Subcommittee on Legis-
lation. One day of closed hearings was held to obtain classified infor-
mation concerning the subject area of the bill. Eighteen witnesses were
heard in open session, including Attorney General Griffin B. Bell;
Director of Central Intelligence, Stansfield Turner; John Shattuck
anad Jerry Berman of the American Civil Liberties Union; Prof. Lewis
II. Pollak, dean of the University of Pennsylvania Law School; Mor-
ton Halperin o f the Center for National Security Studies; Prof. Arthur
Miller of the. National Law Center of the George Washington Uni-
ver'sity; Philip Lacovara, former Assistant Special Prosecutor; John
S. Warner, Legal Adviser to the Association of Former Intelligence
Officers; and Carl II. Imlay, General Counsel of the Administrative
Office of the U.S. Courts. While most of these witnesses expressed
criticism of certain provisions of H.R. 7308, as introduced, and offered
proposed amendments, only three witnesses-Laurence Silberman, for-
mer Deputy Attorney General, Representaitive Robert F. Drinan, and
Representaitve Charles E. Wiggins-testified in total opposition to
II.R. 7308.
The bill, as reported, reflects several major amendments to H.R.
;7308 as well as a number of less substantial amendments.
POSITION OF THE ADMINISTRATION
The Administration supported the enactment of H.R. 7308, as
introduced, in the strongest terms. As Attorney General Bell testified :
. .. I cannot stress too much the importance of the enact-
ment of this legislation . . . If enacted, the bill would stand
as a significant monument to our national commitment to
democratic control of intelligence functions and would spur
the completion of charter legislation.
As President Carter noted, when he announced this bill,
"one of the most difficult tasks in a free society like our own is
the correlation between adequate intelligence to guarantee our
nation's security on the one hand, and the preservation of
basic human rights on the other." It is a very delicate balance
to strike, but one which is necessary in our society.
In my view, this bill strikes the proper balance. It sacri-
rices neither our security nor our civil liberties, and assures
that the, dedicated and patriotic men and women who serve
this country in intelligence positions will have the affirma-
tion of Congress that their activities are proper and
necessary.'
The administration has noted objections to a small number of this
committee's amendments to H.R. 7308. Despite these objections, the
administration continues to support passage of the bill.
1 Hearings before the Subcommittee on Legislation of the House Permanent Select Com-
mittee on Intelligence, Hearings on the Foreign Intelligence Electronic Surveillance Bills,
95th Cong., 2d BSess. p. - (1978).
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GENERAL STATEMENT
I. BACKGROUND
The history and law relating to electronic surveillance for "national
security" purposes have revolved around the competing demands of
the President's constitutional. powers to gather intelligence deemed
necessary to the security of the nation and the requirements of the
fourth amendment. The U.S. Supreme Court has never expressly
decided the issue of whether the President has the constitutional
authority to authorize warrantless electronic surveillance for foreign
intelligence purposes. Whether or not the. President has an "inherent
power" to engage in or authorize warrantless electronic surveillance
and, if such power exists, what limitations, if any, restrict the scope
of that power, are issues that have troubled constitutional scholars for
decades.
In 1928, the Supreme Court, in Olmstead v. United States, held that
wiretapping was not within the coverage of the fourth amendment.
Three years later, Attorney General William D. Mitchell authorized
telephone wiretapping upon the personal approval of bureau chiefs of
.syndicated bootleggers and in "exceptional cases where the crimes
are substantial and serious, and the necessity is great and [the bureau
chief and the Assistant Attorney General] are satisfied that the per-
sons whose wires are to be tapped are of the criminal type." These
general guidelines governed the Department's practice through the
thirties and telephone wiretapping was considered to be an important
law enforcement tool.
Congress placed the first restrictions on wiretapping in the Federal
!Communications Act of 1934, which made it a crime for any person
."to intercept and divulge or publish the contents of wire and radio
.communications." 2 'The Supreme Court construed this section to apply
to Federal agents and hold that evidence obtained from the intercep-
tion of wire and. radio communications, and the fruits of that evidence,
were inadmissible in court.3 However, the Justice Department did not
interpret the Federal Communications Act or the Nardone decision
as prohibiting the interception of wire communications per se; rather
only the interception and divulgence of their contents outside the
Federal establishment was considered to be unlawful. Thus, the Jus-
tice Department found continued authority for its national security
wiretaps.
In 1940, President Roosevelt issued a memorandum to the Attorney
General stating his view that electronic surveillance would be proper
under the Constitution where "grave matters involving defense of the
nation" were involved. The President authorized and directed the
Attorney General "to secure information by listening devices [directed
at] the conversation or other communications of persons suspected of
subversive activities against the Government of the United States, in-
eluding suspected spies." The Attorney General was requested "to
limit these investigations so conducted to a minimum and to limit them
insofar as possible to aliens."
2 47 U.S.C. 00.3 (1964 ed.) 4R Stat. 110,.
3Nardone v. United States, 302 U.S. 379 (1937) ; 308 U.S. 338 (1939).
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This practice was continued in successive administrations. In 1946,
Attorney General Tom C. Clark ent President Truman a letter in-
forming him of President Roosevelt's directive. Clark's memorandum,
however, omitted the portion of President Roosevelt's directive limit-
ing wiretaps "insofar as possible to aliens." Instead, he recommended
that the directive "be continued in force" in view of the "increase in
subversive activities" and "a very substantial increase in crime." Presi-
dent Truman approved.`
In the early fifties, however, Attorney General J. Howard McGrath
took the position that he would neither approve nor authorize micro-
phone surveillances by means of trespass. This position was quickly
reversed by Attorney General Herbert Brownell in 1954 in a sweeping
memorandum to FBI Director Hoover instructing him that the Bu-
reau was indeed authorized to conduct such microphone surveillances
regardless of the fact of surreptitious entry and without the need to
first acquire the Attorney General's authorization. Such surveillance
was simply authorized whenever the Bureau concluded that the "na-
tional interest" so required. The Brownell memorandum is instructive :
It is my opinion that the department should adopt that
interpretation which will permit microphone coverage by the
FBI in a manner most conducive to our national interest.
I recognize that for the FBI to fulfill its important intel-
ligence function, considerations of internal security and the
national interest are paramount; and, therefore, may compel
the unrestricted use of this technique in the national interest.
From the relatively limited authorization of warrantless electronic
surveillance under President Roosevelt, then, the mandate for the FBI
was expanded to the point where the criterion was the FBI's judg-
ment that the "national interest" required the electronic surveillance.
The Practice of the Bureau during the. fifties was also described in
a memorandum from Director Hoover to the Deputy Attorney Gen-
eral on May 4, 1961:
[I]n the internal security field, we are utilizing micro-
phone surveillance on a restricted basis even though trespass
is necessary to assist in uncovering the activities of Soviet
intelligence agents and Communist party leaders. In the in-
terests of national safety, microphone surveillances are also
utilized on a restricted basis, even though trespass is neces-
sary, in uncovering major criminal activities. We are using
such coverage in connection with our investigations of the
clandestine activities of top hoodlums and organized crime.
From an intelligence standpoint, this investigative technique
has produced results unobtainable through other means. The
information so obtained is treated in the same manner as in-
formation obtained from wiretaps, that is, not from the
standpoint of evidentiary value but for intelligence purposes.
4 In Pre ident5cconider i returning tortheaterms ofet the original Incomplete 1940 authorization. However,
m
rn,
the ental 4On rations with Respect to rescinded. Activities c(ChurnchiCommittee), lFinal R
port, book II, Page 60.
e-
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The policy of the Department of justice was stated publicly in 1966
by the Solicitor General in a supplemental brief to the Supreme Court
in Black v. United States.5 Referring to the general delegation of au-
thority by Attorneys General to the Director of the Bureau, the Solic-
itor stated :
An exception to the general delegation of authority has
been prescribed, since 1940, for the interception of wire
communications, which (in addition to being limited to mat-
ters involving national security or danger to human life)
has required the specific authorization of the Attorney Gen-
eral in each instance. No similar procedure existed until 1965
with respect to the use, of devices such as those involved in
the instant case, although records of oral and written com-
munications within the Department of Justice reflect concern
by Attorneys General and the Director of the Federal Bu-
reau of Investigation that the use of listening devices by
agents of the Government should be confined to a strictly
limited category of situations.
Under departmental practice in effect for a period of years
prior to 1963, and continuing until 1965, the Director of the
Federal Bureau of Investigation was given authority to
approve the installation of devices such as that in question
for intelligence (and not evidentiary) purposes which were
required in the interests of internal security or national
safety, including organized crime, kidnappings and matters
wherein human life might be at stake. .
Present departmental practice, adopted in July 1965 in
conformity with the policies declared by the President on
June 30, 1965, for the entire Federal establishment, prohibits
the use of such listening devices (as well as the interception
of telephone and other wire communications) in all instances
other than those involving the collection of intelligence affect-
ang the national security. The specific authorization of the
Attorney General must be obtained in each instance when
this exception is invoked.
In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court
finally discarded the Olmstead doctrine and held that the fourth
amendment did apply to electronic surveillance. The Court explicitly
declined, however, to extend its holding that the fourth amendment
required a warrant for electronic surveillance to cases "involving the
national security." 389 U.S. at 358, n. 23. The next year, Congress
followed suit : responding to the Katz case, Congress enacted the
Omnibus Crime Control and Safe Streets Act.
Title III of that act established a procedure for the judicial author-
ization of electronic surveillance for the investigation and prevention
of specified types of serious crimes and the use of the product of such
surveillance in court proceedings. It prohibited wiretapping and elec-
tronic surveillance by persons other than duly authorized law enforce-
ment officers, personnel of the Federal Communications Commission,
or communication common carriers monitoring communications in the
normal course of their employment.
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Title. III, however, disclaimed any intention of legislating in the
national security area. The act contained a proviso in section 2511 (3)
stating :
Nothing contained in this chapter or in section 605 of the
Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605)
shall limit the constitutional power of the President to take
such measures as he deems necessary to protect the Nation
against actual or potential attack or other acts of a foreign
power, to obtain foreign intelligence information deemed
essential to the security of the United States, or to protect
national security information against foreign intelligence
activities. Nor shall anything contained in this chapter be
deemed to limit the constitutional power of the President to
take such measures as he deems necessary to protect the
United States against the overthrow of the Government by
force or other clear and present danger to the structure or
existence of the Government.
Against this background the Supreme Court decided the Keith
case in 1972. The issue there was narrowly drawn-"the delicate ques-
tion of the President's power, acting through the Attorney General,
to authorize electronic surveillance in internal security matters with-
out prior judicial approval." (emphasis added) 7
The Court took notice of the long-standing Justice Department
policy of warrantless electronic surveillance. It also recognized the
"elementary truth" that "unless Government safeguards its own ca-
pacity to function and to preserve the security of its people, society
itself could become so disordered that ill rights and liberties would
be endangered." 11 In balancing the constitutional rights involved
against the governmental objectives, the Court noted the "convergence
of first and fourth amendment values not ordinarily present in cases
of `ordinary' crime." 9 The Court went on to pose the issue :
If the legitimate need of the Government to safeguard
domestic security requires the use of electronic surveillance
the question is whether the needs of citizens for private and
free expression may not be better protected by requiring
a warrant 'before such surveillance is undertaken. We must
ask whether a warrant requirement would unduly frustrate
the efforts of Government to protect itself from acts of sub-
version and overthrow directed against it :10
In concluding that a warrant was required in domestic security
surveillance, cases, the 'Court emphasized the traditional reasons for
requiring a warrant :
Fourth amendment freedoms cannot properly be guaran-
teed if domestic security surveillances may be conducted
solely within the discretion of the executive branch. The
77nited States v. United States District Court, 407 U.S. 297 (1e72-).
407 U.S., at 301.
8 407 U.S., at 312.
1 407 U. S., at 313.
10 407 U. S., at 315.
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fourth amendment does not contemplate the executive officers
of the Government as neutral and disinterested magistrates.
Their duty and responsibility are to enforce the laws, to in-
vestigate, and to prosecute. But those charged with this in-
vestigative and prosecutorial duty should not be the sole
judges of when to utilize constitutionally sensitive means
in pursuing their tasks. The historical judgment, which the
fourth Amendments accepts, is that unreviewed executive
discretion may yield too readily to pressures to obtain. in-
criminating evidence and overlook potential invasions of pri-
vacy and protected speech." 11
The Court then went on to consider and reject the Government's
argument that the disclosure of information in a warrant applica-
tion posed the serious danger of leaks and the -Government's argument
that "internal security mutters are too subtle and complex for judicial
.evaluation." 12 The Court observed that "[c]ourts regularly deal with
the most difficult issues of our society. There is no reason to believe
the Federal judges will be insensitive to or uncomprehending of the
issues involved in domestic security cases." 1s As to the secrecy claim,
the Court observed the "[t]he investigation of criminal activity has
long involved imparting sensitive information to judicial officers who
have respected the confidentialities involved." 1-1
Finally, the Court rejected the distinction, stressed by the Govern-
ment, between surveillance for law enforcement purposes and surveil-
lance designed to obtain intelligence relating to domestic threats to
national security. The Court responded that official surveillance,
whether its purpose is criminal investigation or ongoing intelligence
gathering, risks infringement of constitutionally protected privacy and
'Speech.
However, the Court emphasized that "this case involves only the
domestic aspects of national security. We have not addressed, and
express no opinion as to, the issues which may be involved with respect
to activities of foreign powers or their agents." 15
And, in construing the effect of the Title III presidential disclaimer
the court wrote : 19
Section 2511(3) certainly confers no power, as the language
is wholly inappropriate for such a purpose. It merely provides
that the Act shall not be interpreted to limit or disturb such
power as the President may have tinder the Constitution. In
short, Congress simply left presidential powers where it
found them. . . [W]e there ore think the conclusion ines-
capable that Congress only intended to make clear that the
Act simply did not legislate with respect to national security
surveillances.
Since the Keith case, four circuit courts of appeals have addressed
the question the Supreme Court reserved. The fifth circuit in United
]1407 U.S., at 316--317. (Footnotes and citations omitted.)
12 407 U.S., at 320,
13 407 U. S., at 320.
14407 U.S., at 320-321.
1i 407 U.S., at 321-322.
407 U.S., at 303, 306.
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States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S.
960 (1974), upheld the legality of a surveillance in which the defend-
ant, an American citizen, was incidentally overheard as a result of a
warrantless wiretap authorized by the Attorney General for foreign
intelligence purposes. The court found that on the basis of
the President's constitutional duty to act for the United States
in the field of foreign affairs, and his inherent power to protect
national security in the conduct of foreign intelligence.:",
In United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en bane),
cert. denied sub nom. Ivanov v. United States, 419 U.S. 881 (1974), the
third circuit similarly held that electronic surveillance conducted with-
out a warrant would be lawful so long as the primary purpose was to
obtain foreign intelligence information. The court found that such sur-
veillance would be reasonable under the fourth amendment without a
warrant even though it might involve the overhearing of conversations.
However, in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975),
cert. denied, 425 U.S. 944 (1976), the Circuit Court of Appeals for
the District of Columbia, in the course of an opinion requiring that
a warrant must be obtained before a wiretap is installed on a domestic
organization that is neither the agent of, nor acting in collaboration
with, a foreign power, questioned whether any national security excep-
tion to the warrant requirement would be constitutionally permissible.
Although the holding of Zweibon was limited to the case of a
domestic organization without ties to a foreign power, the plurality
opinion of the court-in legal analysis closely patterned on Keith-
concluded "that an analysis of the policies implicated by foreign se-
curity surveillance indicates that, absent exigent circumstances, all
warrantless electronic surveillance is unreasonable and therefore
unconstitutional." 18
Finally, in United States v. Buck, 548 F.2d 871 (9th Cir. 1977), the
ninth circuit followed Brown and Butenko, referring to warrantless
surveillance of foreign powers and agents of foreign powers as a "rec-
ognized exception to the general warrant requirement."
On the basis of the three circuit court decisions upholding the power
of the President in certain circumstances to authorize electronic sur-
veillance without a warrant. and in the absence of any court holding
to the contrary, the Justice Department firmly maintains that in the
absence of legislation, such warrantless surveillances are constitu-
tional.
Thus, after almost 50 years of case law dealing with the subject of
warrantless electronic surveillance, and despite the practice of war-
rantless foreign intelligence surveillance sanctioned and engaged in
17 484 F.2d at 426.
'8 7)16 F.2d at 613-614. Neither Brown nor Butenko provide a systematic analysis of the
problem within the framework indicated by the Supreme Court decision in Keith i.e.,
whether the requirement of a warrant would unduly frustrate the exercise of the ''resi
dent's responsibility in the area of national security. The court's opinion in. Brown simply
confirmed the President's inherent power to authorize foreign intelligence collection
through, among other things, electronic surveillance without a warrant. The Butenko
opinion offers a slightly more extensive analysis of the problem. On the other hand, the
Zweihon opinion, insofar as it considered and rejected the arguments for the existence of
an inherent power by applying the analytical framework used by the Supreme Court in
Keith, was a plurality opinion.
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21
by nine administrations, constitutional ;imits on the President's
powers to order such surveillances remains an open question.
II. STATEMENT Or NEED
As the above indicates, the development of the law regulating elec-
tronic surveillance for national security purposes has been uneven and
inconclusive. This is to be expected where the development is left to
the judicial branch in an area where cases do not regularly come before
it.ls Moreover, the development of standards and restrictions by the
judiciary with respect to electronic surveillance for foreign intelli-
gence purposes accomplished through case law threatens both civil
liberties and the national security ~ecause that development occurs
generally in ignorance of the facts, circumstances, and techniques of
foreign. intelligence electronic surveillance not present in the particu-
lar case before the court.
Yet the circumstances which ultimately determine the reasonable-
ness of a search-the nature, circumstances, and purpose of the search,
the threat it is intended to address, and the technology involved-are
in this area largely hidden from the public view, and the tiny window
to this area which a particular case affords provides inadequate light
by which judges may be relied upon to develop case law which ade-
quately balances the rights of privacy and national security.
In the past several years, abuses of domestic national security sur-
veillances have been disclosed. This evidence alone should demon-
strate the inappropriateness of relying solely on executive branch dis-
cretion to safeguard civil liberties. This committee is well aware of the
substantial safeguards respecting foreign intelligence electronic sur-
veillance currently embodied in classified Attorney General proce-
dures, but this committee is also aware that over the past thirty years
there have been significant changes in internal executive branch proce-
dures, and there is ample precedent for later administrations or even
the same administration loosening previous standards. Even the crea-
tion of intelligence oversight committee should not be considered a
sufficient safeguard, for in overseeing classified procedures the coin-
mittees respect their classification, and the result is that the standards
for and limitations on foreign intelligence surveillances may be hidden
from public view. In such a situation, the rest of the Congress and the
American people need to be assured that the oversight is having its in-
tended consequences-tlie safeguarding of civil liberties consistent
with the needs of national security. While oversight can be, and the
committee intends it to be, an important adjunct to control of intelli-
gence activities, it cannot substitute for public laws, publicly debated
and adopted, which specify under what circumstances and under what
restrictions electronics surveillance for foreign intelligence purposes
can be conducted.
Finally, the decision as to the standards governing when and how
foreign intelligence electronic surveillances should be conducted is and
should. be a political decision, in the best sense of the term, because it
involves the weighing of important public policy concerns-civil liber-
's See generally T,aeovara, "Presidential Power to Gather Intelligence," 40 Law & Con-
temp. Prob. 106 (1976).
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22
ties and the national security. Such a political decision is one properly
made by the political branches of Government together, not adopted
by one branch on its own and with no regard for the other. Under our
Constitution legislation is the embodiment of just such political
decisions.
At least one witness before the Subcommittee on Legislation specifi-
cally raised the question of the need for electronic surveillance for for-
eign intelligence purposes at all. This committee has not assumed that
need. Rather, since its formation, the committee has become acquainted
with the various techniques that will be subject to this bill, their tar-
gets, their product, and the risks involved-both from civil liberties
and intelligence standpoint. On the basis of this knowledge, the com-
mittee is confident that a real and substantial need for foreign intelli-
gence electronic surveillance-at least under certain defined circum-
stances-exists. In drafting this bill, the committee has carefully
weighed the need against the privacy and civil liberties interests. In
some cases, the balance results in an absolute prohibition of surveil-
lance, for example, where a United States citizen is not an agent of a
foreign power. In others, surveillance is allowed but subject to strict
and rigorous approval and oversight mechanisms. In still others, the
need is so great and the privacy interests so small that substantially
more flexibiilty is called for. In each circumstance in which surveil-
lance is authorized by this bill, however the committee has determined
that a real need exists for surveillance in that circumstance, and that.
this need outweighs the privacy interests involved.
H.R. 7308, as amended, would enact a new law entitled the "Foreign
Intelligence Surveillance Act of 1978." The purpose of the bill is to
provide a statutory procedure authorizing the use of electronic sur-
veillance in the United States for foreign intelligence purposes. The
procedures in the bill would be the exclusive means by which electronic
surveillance, as defined, could be used for foreign intelligence purposes.
The following techniques of electronic surveillance would fall within
the bill's prescriptions:
(a) The acquisition of a wire or radio communication sent to or
from the United States by intentionally targeting a known United
States person in the United States under circumstances in which
the person has a reasonable expectation of privacy and a warrant
would be required for law enforcement purposes.
(b) A wiretap in the United States to intercept a wire com-
munication, such as a telephone or telegram communication;
(c) The acquisition of private radio tranmissions where all of
the communicants are located within the. United States: or
(d) The use in the United States of any electronic, mechanical.
or other surveillance device to acouire information other than
from a wire communication or radio communication under cir-
cumstances in which the person has a reasonable expectation of
privacy and a warrant would be required for law enforcement
purposes.
TT.R. 7308, as amended, creates a Special Court in Washington,
D.C., composed of at least one judge designated by the Chief Justice
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from each of the judicial circuits and a'Special Court of Appeals com-
posed of six judges designated by the Chief Justice from the greater
Washington, D.C., area.
The bill would require a prior judicial warrant for all electronic
surveillance for foreign intelligence purposes with three limited ex-
ceptions. First, where certain types of electronic surveillance are tar-
geted against certain types of foreign powers, under circumstances
where it is extremely unlikely that a United States person's com-
munication would be intercepted, no v: arrant is required. Instead,
Attorney General approval is required.. Second, emergency surveil-
lance without a warrant would be permitted in limited circumstances,
but a warrant would have to be obtained within 24 hours of the initia-
tion of the surveillance. Third, surveillance solely for the purposes of
testing equipment, training personnel, or "sweeps" to discover un-
lawful electronic surveillance are authorized without a warrant under
rigorous controls to insure that no information concerning United
States persons is improperly used, retained, or disseminated.
The bill would authorize the Attorney General to make applications
to the Special Court for a court order approving the use of electronic
surveillance. Approval of an application under the bill would require
a finding by a judge that the target of the surveillance is either a ` for-
eign power" or an "agent of a foreign power," terms defined in the bill,
and that the facilities or places at which the surveillance is directed are
being used or are about to be used by a foreign power or agent of a for-
eign power. A "foreign power" may include a foreign government, a
faction of a foreign government, a group engaged in international ter-
rorism, a foreign-based political organization, or an entity directed
and controlled by a foreign government or governments, An "agent
of a foreign power" includes non-resident aliens who act in the United
States as officers, members, or employees of foreign powers or who act
on behalf of foreign powers which engage in clandestine intelligence
activities in the United States contrary to the interests of this country.
U.S. persons meet the "agent of a foreign power" criteria if they en-
gage in certain activities on behalf of a foreign power which involve
or may involve criminal acts.
The court would also be required to find that procedures proposed in
the application adequately minimize the acquisition, retention, and dis-
semination of information concerning U.S. persons consistent with the
need of the United States to obtain, produce and disseminate foreign
intelligence information.
Every application for an order must contain a certification or certi-
fications made by the Assistant to the President for National Security
Affairs or an executive branch official or officials designated by the
President from among those executive officers with responsibilities for
national security or defense who are appointed by the President with
the advice and consent of the Senate. Those officials would be required
to certify that any information sought by the surveillance relates to,
and if concerning a U.S. person is necessary to, the national defense
or the conduct of foreign affairs of the United States or the ability
of the United States to protect against, grave hostile acts or the terror-
ist, sabotage, or clandestine intelligence activities of a. foreign power.
The court would be required to review each certification for surveil-
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lance of a U.S. person and to determine that the certification is not
clearly erroneous. 10
The court could approve electronic surveillance for foreign intelli-
gence purposes for a period of 90 days or, in the case of surveillance
of a foreign government, faction, or entity openly controlled by a for-
eign government, for a period of up to 1 year. Any extension of the
surveillance beyond that period would require a reapplication to the
court and new findings as required for the original order.
H.R. 7308 requires annual reports to the Administrative Office of the
U.S. Courts and to the Congress of statistics regarding applications
and orders for electronic surveillance. The Attorney General is also
required, on a semiannual basis, to inform the House Permanent Select
Committee on Intelligence and the Senate Select Committee on Intelli-
gence fully concerning all electronic surveillance under the bill; and
nothing in the bill restricts the authority of those committees to
obtain further information related to their congressional oversight
responsibilities.
The purpose of the Foreign Intelligence Surveillance Act is to
provide legislative authorization for and regulation of all electronic
surveillance conducted within the United States for foreign intelli-
gence purposes. In so doing, the bill does not recognize, ratify, or deny
the existence of any Presidential power to authorize warrantless sur-
veillances in the i-nited States in the absence of the legislation. It
would, rather, moot the debate over the existence or non-existence of
this power, because, no matter whether the President has this power,
few have suggested that his power would be exclusive. Rather, as two
Attorneys General have testified, Congress also has power in the for-
eign intelligence area. Given the fact that Congress created the Central
Intelligence Agency, delimiting its authorized functions and jurisdic-
tion, and appropriates funds for the entire intelligence community,
there can be little debate as to the fact that Congress has at least con-
current authority to enable it to legislate with regard to the foreign
intelligence activities of departments and agencies of this Government
either created or funded by Congress. Thus, even if the President has
the inherent authority in the absence of legislation to authorize war-
rantless electronic surveillance for foreign intelligence purposes,
Congress has the power to regulate the conduct of such surveillance by
legislating a reasonable procedure, which then becomes the exclusive
means by which such surveillance may be conducted. This analysis has
been supported by two successive Attorneys General and draws directly
from Justice Jackson's famous concurring opinion in the SteeZ Seizure
CCReR.2oa
A basic premise behind this bill is the presumption that whenever
an electronic surveillance for foreign intelligence purposes may in-
The committee bill contains no general requirement of subsequent notice to the sur-
veillance target, as does section 2518(8) (d) of title 18 for law enforcement surveillances.
Such notice is particularly inappropriate in the area of foreign intelligence surveillances,
where prosecution is rarely the objective or result. The mere knowledge of the existence
or target of a foreign intelligence surveillance would most likely alert foreign governments
and espionage services to ongoing U.S. Intelligence activities or investigations and com-
promise sensitive intelligence sources and methods.
21, Youngstown Sheet d Tube v. Sawyer, 343 U.S. 579 (1952).
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volve the fourth amendment rights of any U.S. person, approval for
such a surveillance should come from a neutral and impartial magis-
trate. This premise has not been adopted without debate and considera-
tion within the committee, as the Minority views will attest.
In approaching this issue, one must begin with the Constitution.
What does it mandate? As noted above, this is a question about which
reasonable men can certainly differ. While the weight of the case law
suggests that a judicial warrant may not be required in certain cases,
a plurality of the District of Columbia Circuit has suggested that a
warrant is required by the fourth amendment in all cases. Because
the Supreme Court has not addressed the issue, and indeed has taken
pains not to address the issue, the, question must be considered un-
resolved.
Beyond the, constitutional question, there is also a, question of proper
policy. The minority views reflect the belief that the judiciary should
not be involved in foreign intelligence surveillances. With all due re-
spect to those views, the committee's conclusion, shared by the, last two
administrations involving both political parties, is that a warrant
requirement for electronic surveillance for foreign intelligence pur-
poses will not pose unacceptable risks to national security interests and
will remove any doubt as to the lawfulness of such surveillance. By
requiring a judge ultimately to approve foreign intelligence electronic
surveillances, the bill would require the responsible officials in the
executive branch to consider and articulate the facts and their ap-
praisal of the facts. If the executive officials were the approving
authority, the same consideration and articulation would not be as
likely to occur. The experience under title III of the Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C., section 2510 et seq.,
is instructive. While few orders for law enforcement electronic surveil-
lances have been denied, the committee believes that the reason is the
care and scrutiny which applications receive before they ever go to a
judge. The institutional response to an outside approval authority,
then, is to make every effort that only good applications should go to
the approval authority.
Moreover, there is no validity to the assertion that judges will some-
how become involved under the bill in making foreign policy of for-
eign intelligence policy. The bill was carefully crafted to prevent such
an eventuality. The role of judges under the bill is the same as that of
judges under existing law enforcement warrant procedures. That is,
judges determine whether the facts presented to them, satisfy the statu-
tory criteria. They do not make substantive judgments as to the
propriety of or need for a particular surveillance; rather, Congress by
enacting this bill establishes the substantive standards as to what the
proper target of a surveillance is, what information sought justifies a
surveillance, and what standards apply to the retention and dissemi-
nation of information obtained. Judges, of course, assess the facts to
determine whether certain of the substantive standards have been met,
but this is the traditional role of a judge in passing on a warrant ap-
plication. And while certain of the determinations made by judges
under this bill are unique to this area, the same could have been said
with respect to title III when it was introduced. Indeed, as searches
differ in technique and purpose, differing determinations necessarily
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become involved, but it must be remembered that under this bill judges
only make determinations specified by Congress, reflecting these differ-
ent purposes, and those determinations are solely to apply facts to a
statutory standard.
This committee does not expect or desire the judges involved in these
determinations to become expert in foreign policy matters or foreign
intelligence activities; such expertise would be meaningless under the
bill, for there is no opportunity for its utilization.
Some have suggested that even if United States citizens should be
protected by a warrant requirement, this protection should not be
extended to aliens, non-resident aliens, or diplomatic personnel. Leav-
ing aside the constitutional question whether such persons are entitled
to the protection of a prior judicial warrant under the fourth amend-
ment, the purpose of requiring a warrant for the targeting of all elec-
tronic surveilance in the United States would not be primarily to
protect such persons but rather to protect U.S. citizens who may be
involved with their and to ensure that the safeguards inherent in a
judicial warrant cannot be avoided by a determination as to a person's
citizenship.
Notwithstanding the committee's conclusion that generally a ju-
dicial warrant should be required for foreign intelligence surveillances
in the United States, in the course of the committee's hearings and dis-
cussions it was determined that a certain narrow class of surveillances
did not affect the rights of U.S. citizens in any way. Moreover, this
class of surveillances is among the most sensitive and important class
of surveillances this Government conducts in the United States. These
factors led the committee to amend H.R. 7308 so as not to require a
judicial warrant in this class of surveillances. The fact that Ameri-
cans' civil and constitutional rights were not affected by these surveil-
lances, when weighed against even the incremental risk to security by
including courts in the approval process, suggested that the benefits
of a warrant requirement in such cases were outweighed by its poten-
tial risks.
The fact that a warrant is not required in this limited class of cases
does not mean, however, that Congress is recognizing or ratifying an
inherent power of the President to engage in warrantless electronic
surveillance for foreign intelligence purposes. Under H.R. 7308, as
amended, the authority of the President to engage in surveillance in
certain cases without a warrant will derive from statute, not the Con-
stitution, and it will be subject to the limitations and requirements of
the bill.
Some have wondered whether the judicial warrant requirement in
the bill would pose a threat to the national security. No administration
witness has suggested that it would, despite pointed and recurring
questions on the issue, both in the open and closed session; however,
they indicated that there may be risks in any new system of controlling
intelligence activities. These can be risks of impeding or barring
needed intelligence collection or risks of disclosure associated with con-
trols on the activities. These risks, however, are inherent in any new
control of intelligence activities and do not necessarily become greater
because the controls are legislative, rather than executive, in origin or
because judges are involved. Current Executive controls pursuant to
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E.O. 12036, for example, substantially increase both type of risks over
the situation that prevailed five or ten years ago. As to whether needed
intelligence collection will be frustrated by this bill or its warrant
requirement, Director of Central Intelligence, Stansfield Turner,
testified :
I cannot say that any proper or necessary government pur-
poses will be frustrated by these statutes, or that vital intelli-
gence information having such value as to justify electronic
surveillance as a method of collection will be lost.
Moreover, since his testimony, the committee has made a number
of amendments to the bill to assure that this is the case. No means of
collection are barred by the bill, and the circumstances justifying col-
lection are fully responsive to the intelligence agencies need as they
have been expressed to this committee.
As to risks of unauthorized disclosures, or "leaks," there is a "`rule"
in intelligence that all other things being equal, the more persons who
know of a secret, the more likely that it will be disclosed. Because
judges will be involved in the approval process, as they have not been
before, some have feared that the bill will be expanding the number of
persons with knowledge of surveillances, thereby making "leaks" more
likely. There are two answers to this. First, under the bill all other
things are not equal, so even an increase in numbers of persons with
knowledge, does not mean that "leaks" t re more likely. One need only
read the newspapers to realize that a primary cause of "leaks" is the
uncertainty as to the legality and propriety of various intelligence ac-
tivities. By eliminating that uncertainty with respect to foreign Intel
ligence electronic surveillances, this bill will go a long way to stem-
ming "leaks." Second, it is not even clear that this bill will increase the
number of persons with knowledge of surveillances. Certain aspects of
the bill, even where the warrant requirement is applicable, will result
in substantially less paperwork within the executive branch, making
possible a decrease in the number of persons with knowledge of the
surveillances. Also, the bill, by its provisions dealing with subsequent
challenges to the legality of surveillances, is likely to result in de-
creased numbers of persons to whom information concerning surveil-
lances will be disclosed.
The fact that two successive administrations have supported a bill
with a judicial warrant should be indicative of the fact that the bill
and its warrant requirement do not threaten our national security or
unnecessarily increase the risks to intelligence collection. Indeed,
knowledgeable officials in the intelligence agencies have earnestly sug-
gested to the committee that this bill will further our national security
by facilitating the electronic surveillance necessary for foreign intelli-
gence purposes.
Finally some witnesses before the Subcommittee on Legislation
noted that this bill would generally not apply to surveillances overseas
and expressed their concern about this area. The committee has ex-
plored the feasibility of broadening this legislation to apply overseas,
but has concluded that certain problems and unique characteristics
involved in overseas surveillance preclude the simple extension of this
bill to overseas surveillances. This is not to say that overseas surveil-
lance should not likewise be subject to legislative authorization and
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restriction, but the problems and circumstances of overseas surveillance
demand separate treatment, and this bill, dealing with the area where
most abuses have occurred, should not be delayed pending the develop-
ment of that separate legislation. The committee notes the administra-
tion's commitment to the development of a separate bill governing
overseas surveillances and expects to work closely with the administra-
tion on that bill.
SECTION-BY-SECTION ANALYSIS
Title I of the Foreign Intelligence Surveillance Act contains the
substantive provisions governing the conduct of electronic surveillance
for foreign intelligence purposes. Title II of the act contains certain
amendments to chapter 119 of title 18, United States Code, governing
the interception of wire and oral communications for law enforce-
ment purposes, title III of the act contains the effective date and
implementing provisions of the act.
As introduced, II.R. 7308 would have amended title 18 (Crimes and
Criminal Procedure), United States Code, by creating a new chapter
following chapter 119 which deals with law enforcement electronic
surveillance. In the committee's view, the placement of title I in title
18 would be misleading. Nothing in title I relates to law enforcement
procedures, and the one provision creating a criminal offense for in-
tentional violations of the other provisions is pendent to the other
provisions. Placing title I in title 18 would wrongly suggest either that
the bill's procedures deal with law enforcement or that the thrust of
the bill is to create a Federal crime. Because the bill instead establishes
authorities and procedures dealing with the collection of foreign intel-
ligence, the committee believes that its proper placement would be in
title 50 (War and National Defense), United States Code. Title 50
has traditionally been the title in which laws relating to this Nation's
intelligence activities have been placed, for example, the National
Security Act of 1947 and the CIA Act of 1949.
This change from the bill as introduced, however, is not intended
to affect in any way the jurisdiction of congressional committees with
respect to electronic surveillance for foreign intelligence purposes.
Rather, the purpose of the change is solely to allow the placement of
title I in that portion of the United States Code which most directly
relates to its subject matter.
Section 101
This section contains all the definitions of terms used in the bill. Be-
cause most of the substantive aspects of the bill derive from the defini-
tion of particular terms, this section is critical to the bill as a whole.
(a) "Foreign power"
Subsection (a) defines "foreign power" in six separate ways. These
definitions are crucial because surveillances may only be targeted
against foreign powers or agents of foreign powers.
It is expected that certain of the defined "foreign powers" will be
found in the United States and targeted directly; others are not likely
to be found in the United States but are included in the definition
more to enable certain persons who are their agents, and who may be
in the United States, to be targeted as "agents of a foreign power,"
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as defined. As will appear below, the six categories well may over-
lap, and an entity may well be found to be a "foreign power' under
more than one category. This is not improper. These categories are in-
tended to be all-encompassing, and clear lines cannot always be drawn
between different descriptions of the types of entities which justify
targeting electronic surveillance. The six categories are :
(1) "A foreign government or any component thereof,
whether or not recognized by the United States." This cate-
gory would include foreign embassies and consulates and
similar "official" foreign government establishments that are
located in the United States.
(2) "A faction of a foreign nation or nations, not substan-
tially composed of United States persons." This category is
intended to include factions of a foreign nation or nations
which are in a contest for power over, or control of the terri-
tory of, a foreign nation or nation-,. An example of such a
faction might be the PLO, the Eritrean Liberation Front, or
similar organizations. Specifically excluded from this cate-
gory is any faction of a foreign nation or nations which is
substantially composed of permanent resident aliens or citi-
zens of the United States. The word "substantially" means a
significant proportion, but it may be less than a majority.
(3) "An entity, which is openly acknowledged by a for-
eign government or governments to be directed and con-
trolled by such foreign government or governments." This
category is specifically delineated in order to treat entities
of this type in the same manner as the government they serve
by including them within those "official" foreign powers sub-
ject to surveillance under a less stringent standard. That
standard permits less information to be given to the judge,
allows surveillance to be continued for a longer period of time,
and in certain cases allows surveillance without a judicial
warrant. Only entities "openly acknowledged" by a foreign
government to beboth directed and controlled by it are subject
to this less strict standard.
Those entities which are clearly arms of a government or
governments meet this definition. This category would in-
clude, for example, a, legitimate commercial establishment
which is directed and controlled by a foreign government.
Such a legitimate commercial establishment might be a for-
eign government's airline, even though it was incorporated in
the United States. Also included in this definition would be
international organizations of states such as the Organization
of Petroleum Exporting Countries or the Organization for
African Unity. Where such organizations are involved, it is
not necessary to show that one or two countries control the
organization. Rather it is osufficient eientto sho tes at the collec-
nization is made up of gv
tively direct and control the organization. includes
It is recognized that this type of foreign power
corporations or organizations present in the United States
which may have man United States citizens as emp y
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or even officers. Nevertheless, this fact does: not detract from
the fact that the organization acts as an arm of a foreign gov-
ernment or governments and as such may engage in activities,
directly affecting our national interests or security. In such
circumstances a surveillance targeted against such an entity
should focus on the activities of the organization, not its
employees or members who are United States citizens, unless
the activities of such employees or members directly relate
to the activities of the organization. The minimization proce-
dures required by section 101 (h) will ensure that the sur-
veillance is so focused and will ensure that the surveillance
is not used for the purpose of gathering information con-
cerning United States citizens which is not necessary to a
legitimate foreign intelligence purpose. A focus on individ-
ual employees could be justified only by obtaining a separate
court order for them as individuals.
A law firm, public relations firm, or other legitimate con-
cern that merely represents a foreign government or its
interests does not mean it is an entity in this category. The
question whether a group, commercial enterprise, or orga-
nization comes within the scope of this definition is one for the
court to answer on the basis of a probable cause standard.
(4) "A group engaged in international terrorism or activi-
ties in preparation therefor." The term "international ter-
rorism" is a defined term, see section 101 (c), and includes
within it a criminal standard. A group under this category
must be engaged in the activities described in section 101 (c)
or be in preparation therefor. Such groups would include
Black September, the Red Army Faction, the Red Brigades,
and the Japanese Red Army. It would not include groups
engaged in terrorism of a purely domestic nature, which if
surveillance is in order, should be subjected to surveillance
under chapter 119 of title 18. Nevertheless, the citizenship
of the terrorist group or its members while relevant to the
determination of whether it is a "foreign power", is not
determinative. As introduced, H.R. 7308 required that the
group be "foreign-based," but in the world of international
terrorism a group often does not have a particular "base,"
or if it does, it may be nearly impossible to discern. Perhaps
more importantly, where its base is located is often irrelevant
to the foreign intelligence interest or concern with respect
to the group. While luckily the United States has heretofore
been spared from the worst cases of international terrorism,
a lack of intelligence concerning it may, as other countries
crack down, present the United States as an inviting target.
Even at this time, there are domestically based international
terrorist groups, which have engaged in acts overseas which
have resulted in deaths. Therefore, the committee has
changed this definition from a "foreign-based" group
engaged in undefined activities to a group engaged in crim-
inal terrorist activities, which are international in scope
or manner of execution, see section 101 (c).
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Generally, such groups will not be targeted in the United
States as "foreign powers," if only because such a group is
not likely to maintain an official presence here. Rather, mem-
bers of the group may be in the United States either singly or
in bunches, and they will be targeted as "agents of a foreign
power," to wit, agents of a group engaged in international
terrorism.
(5) "A foreign-based political organization, not substan-
tially composed of United (States persons." This category
would include foreign political parties. In some countries, both
totalitarian and parliamentary, ruling parties effectively con-
trol the government. Thus, information concerning the activ-
ities and intentions of these parties can directly relate to the
activities and intentions of their government. Moreover, the
intentions and positions of minorty parties can also be of
great importance to this nation because, although minorities,
they may affect the course of their government or they may
comef to power, in which case it would be important to have
prior knowledge of their positions and intentions. Finally,
this category is not limited to political parties ; there are other
foreign political organizations which exercise or have poten-
tial political power in it foreign country or internationally.
Because it can be important to this nation to have intelligence
concerning any organization which exercises or has potential
political power in a foreign country or internationally tar-
geting such organizations can be proper. On the other hand,
where it political organization is domestically based or is sub-
stantially composed of U.S. persons and does not otherwise
fall within the other definitions of "foreign power" or "agent
of it foreign power," the gathering of political information
concerning that organization by electronic surveillance
!won though desired or even important to this Government-
is improper and raises grave First Amendment questions. This
definition clearly does not include organizations comprised
of Americans of Greek, Irish, Jewish, Chinese, or other
extraction who have joined together out of interest in or con-
cern for the country of their ethnic origin.
(6) "An entity, which is directed and controlled by it for-
eign government or governments." This category is similar
to category (3) above, except that the entity need not be openly
acknowledged to be directed and controlled by a foreign gov-
ernment or governments. Such an entity must be acting as an
arm of the government with respect to activities that are of
foreign intelligence or counterintelligence significance. An
example would be an entity which appears to be it legitimate
commercial, establishment, but which is being utilized by a
foreign government as a cover for espionage activities. The
concerns set forth with respect to openly controlled entities
apply to this category as well. There is an added danger that
electronic surveillance of it covertly controlled entity, sub-
stantially composed of U.S. persons, would potentially offer it
means for evading the requirements for surveillance of indi-
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vidual U.S. persons. Therefore, it is important to emphasize
that the judge must find probable cause that the entity is
both "directed" and "controlled" by a foreign government
or governments. Merely following the directions of a foreign
government which wants a group to lobby or speak out pub-
licly on behalf of the government's interests, is not in itself
sufficient to place the group in this category. While direction
and control are separate elements to be established, the same
evidence can demonstrate both.
Again, a law firm, public relations firm, etc. that merely
represents a foreign mean government or its interests does
not mean it is an entity in this category. An entity which
ses its own interests as parallel to those of a foreign gov-
ernment and acts accordingly is not by this directed and
controlled by that foreign government. It is only when the
foreign government or its agents influence the entity to the
extent that the entity yields its independent judgments that
an entity becomes directed and controlled by a foreign
government. In particular cases, obviously, it may be diffi-
cult to discern the actual direction and control, and, of
course, circumstantial evidence may suffice in establishing
probable cause, but no entity which purports to be a U.S.
person should be considered directed and controlled by a
foreign government solely on the basis that its activities
are consistent with the desires of a foreign government.
(b) "Agent of a foreign power"
(1) Non-resident aliens in the United States.-There are
two separable categories of the definition "agent of a for-
eign power." The firsrt cannot be applied to United States
citizens and permanent resident aliens; it is, therefore, lim-
ited to aliens in the United States who are tourists, visiting
businessmen, exchange visitors, foreign seamen, diplomatic
and consular personnel, illegal aliens, etc.
It is the view of the Department of Justice, with which
the committee agrees, that most of the persons in this cate-
gory are protected by the fourth amendment when they
are in the United States. By requiring a judicial warrant
issued on the basis of statutory criteria, such persons'
fourth amendment protections have been increased from
their status under current operating procedures of the exec-
utive branch. On the other hand, the protections afforded
such persons are not as, great as those afforded United
States persons. The standard for targeting nonresident
aliens does not have a criminal standard ; there is no re-
quirement to minimize the acquisition, retention, and dis-
semination of information with respect to such persons;
no judge reviews the executive certification when such per-
sons are targeted; and certain forms of electronic collection
of communications would not require a warrant at all,
because of the definition of electronic surveillance, see sec-
tion 101 (f) (1), where they would if a United States person
was targeted. Some have questioned whether it is consti-
tutional to treat nonresident aliens differently from United
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States citizens in this context, either because the nonresident
aliens' fourth amendment rights are violated or because to
deny them protections afforded U.S. citizens denies them
equal protection under the laws. The committee is con-
vinced, however, that the protections afforded nonresident
aliens in the bill fully satisfy the Constitution.
The basic test under the fourth amendment is that a
search be reasonable. Reasonableness itself is determined
by weighing the Government's legitimate need for the infor-
mation sought against the invasion of privacy the search
entails. The findings of probable cause required to be made by
the judge as to nonresident aliens directly relate to the likeli-
hood of obtaining foreign intelligence information from
electronic surveillance of them. Such information by defini-
tion must directly and and substantially relate to important
foreign policy or national security concerns, and high Exec-
utive officials must certify that the purpose of the surveil-
lance is to obtain such information. On the other hand, Con-
gress has plenary authority over the admission of aliens to
the United States and can impose reasonable conditions to
entry. Given the likelihood, which this committee has found,
of obtaining foreign intelligence information from elec-
tronic surveillance of those nonresident aliens within the
definition of "agent of a foreign power," this limitation of
their privacy is in the committee's view reasonable under
the fourth amendment.
As to the "equal protection" question, the committee notes
that the Supreme Court has held that where there are com-
pelling considerations of national security, alienage distinc-
tions are constitutional.21. Those distinctions must, however,
be reasonable in light of the demonstrated need and not be
overly broad. With respect to those non-resident aliens who fit
within the two categories of agents of foreign powers in sec-
tion 101(b) (1), that need has teen demonstrated to this com-
mittee in testimony before, it, primarily in closed session, as
well as in public documents. Indeed, the committee has
amended the provisions of II.R. 7308, as introduced, to tailor
more specifically these categories in light of the demonstrated
need.
Subsection (b) (1) (A) includes in its definition of "agent of
a foreign power" those persons, who ark not U.S. persons, who
act in the United States as officers, members, or employees of
a foreign power. As introduced, H.R. 7308 did not include
non-U.S. persons who act as "members" of a foreign power in
the United States. It was pointed out, however, that some
"foreign powers," as defined, would not likely have "officers"
or "employees." This would especially be true of groups en-
gaged in international terrorism. Moreover, certain "foreign
powers," as defined, would have "members" of more intelli-
gence importance than mere employees. This could be espe-
n See, e.g. Hampton v. Mow Sun Wong, 426 U.S. 88, 116 (1976).
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cially true of some foreign political parties. The committee
finds ample evidence that non-resident aliens who act in the
United States as officers, members, or employees of a foreign
power are likely sources of foreign intelligence or counter-
intelligence information. The definition excludes persons who
serve as officers or employees or are members of a foreign
power in their home country, but do not act in that capacity
in the United States. The reference to employees of a foreign
power is meant to include those persons who have a normal
employee-employer relationship. It is not intended to encom-
pass such foreign visitors are professors, lecturers, exchange
students, performers or athletes, even if they are receiving
remuneration or expenses from their home government in such
capacity. The term "member" means an active, knowing mem-
ber of the group or organization which is a foreign power. It
does not include mere sympathizers, fellow-travelers, or per-
sons who may have merely attended meetings of the group or
organization. On the other hand, if a person has received ter-
rorist training from a group engaged in international terror-
ism or clandestine intelligence training from a foreign
organization, this would be substantial evidence that he was
a member of such an entity. Subsection (b) (1) (B) defines an
agent of a foreign power as a person who is not a. U.S. person
and who-
"Acts for or on behalf of a foreign power which engages in
clandestine intelligence activities in the United States con-
trary to the interests of the United States, when the circum-
stances of such person's presence in the United States indicate
that such person may engage in such activities in the United
States, or when such person knowingly aids or abets any per-
son in the conduct of such activities or knowingly conspires
with any person to engage in such activities."
This provision is substantially changed from H.R. 7308,
as introduced. The change was made in response to comments
voiced both by the FBI and some civil liberties groups. The
FBI felt that the need in H.R. 7308, as introduced, to show
that a foreign visitor was in fact engaged in clandestine intel-
ligence activities was too restrictive'
estrictive in that surveillance was
necessary with respect to certain foreign visitors, as to whom
it could be shown with a high degree of probability that they
would engage in clandestine intelligence activities, before suffi-
cient information could be established showing they were so
engaged. As a practical matter, less intrusive techniques may
not enable the Government to obtain sufficient information
about persons visiting the United States for only a limited
time and who do not have a history of activities in the United
States to show that they are indeed engaged in clandestine
intelligence activities.
On the other hand, some civil liberties groups voiced con-
cern over the fact that under H.R. 7308, as introduced, a non-
criminal standard, relying on an undefined term-"clandestine
intelligence activities", was being used as a basis for targeting
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foreign visitors from any nation. In response, these groups
suggested that the provision be narrowed only to apply to
foreign visitors acting on behalf of certain foreign powers as
to which it could be shown systematically engaged in clandes-
tine intelligence activities threatening the security of the
United States.
In light of these two legitimate concerns the committee has
adopted the current provision which does not require a show-
ing that the individual foreign visitor is himself currently
engaged in clandestine intelligence activities, but rather that
the circumstances of his presence here indicate that he may
engage in such activities which are contrary to this nation's
interests. In addition, it must be shown that he is acting for
or on behalf of a foreign power which engages in clandestine
intelligence activities in the United States which are contrary
to the interests of the United States. It is intended that the
Government show that the foreign power has demonstrated
some pattern or practice of engaging in clandestine intelli-
gence activities in the United States contrary to the interests
of the United States.
The phrase, "acts for or on behalf of a foreign power," is
here intended to require the Government to show a nexus
between the individual and the foreign power that suggests
that the person is likely to do the bidding of the foreign
power. For example, visitors from totalitarian countries pres-
ent in the United States under the auspices, sponsorship, or
direction of their government would satisfy this standard.
The term "interests" refers to important concerns or long-
term goals of the United States, including interests embodied
in law. It might be said that any country which engages in
clandestine intelligence activities in the U.S. ipso facto acts
contrary to this Nation's interests. This is clearly not intended
here.
Once the requisite facts with regard to the foreign power
are established, the question is whether the circumstances of
the person's presence in the United States indicate that the
person may engage in clandestine intelligence activities for
that foreign power contrary to the interests of the United
States. The answer to this question will vary according to
what is known about the intelligence operations of the par-
ticular foreign power. Among the factors that might be taken
into account are whether the foreign visitor engages in activi-
ties with respect to which there is evidence that other visitors
who engage in similar activities are officers, agents, or acting
on behalf of the intelligence service of that foreign power. If
the Government can show from experience that a particular
foreign power uses a certain class of visitors to this country
for carrying out secret intelligence assignments, this too
would indicate that a visitor in this class may engage in
clandestine intelligence activities.
The standard "may engage in such activities" means that
surveillance can be conducted to anticipate clandestine intelli-
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36
gence activities by such persons, rather than waiting until
after they have taken place. The additional standards for aid-
ing or abetting, and conspiracy, require probable cause that
the foreign visitor is knowingly assisting persons who are
already engaged in clandestine intelligence activities. The
"knowingly" requirements are the same as in the aiding or
abetting and conspiracy standard for U.S. persons. See sec-
tion 101(b) (2) (D), infra.
This provision does not treat nationals of certain coun-
tries differently from others solely on the basis of their
nationality. Instead, coverage of the nationals of other coun-
tries depends on the activities of the governments of those
countries and whether the individual is acting on behalf of the
government.
The term "clandestine intelligence activities" is intended
to have the same meaning as in section 101(b) (2) (A) and
(B) described infra.
(2) "Any person".-Under H.R. 7308, as introduced, there were
four categories under the definition of "agent of a foreign power"
which could apply to any person, e.g., a United States citizen. One
of these categories did not require any showing of possible criminal
activity. Another category was a conspiracy provision which, because
it referred to the non-criminal standard, could have authorized sur-
veillance of one "conspiring" with someone not engaged in criminal
activity. While the witnesses before the Subcommittee on Legislation
acknowledged that the activity described in the non-criminal stand-
ard was "tantamount to a crime," there was apprehension by some that
the bill was authorizing electronic surveillance of United States
citizens without any explicit showing of criminal activity.
New language was, therefore, developed by the Administration and
congressional leaders, with the participation of interested outside
parties, including the ACLU.
This Committee welcomed the spirit behind this compromise be-
cause it requires that whenever a United States person is to be the
target of a surveillance there must be showing that his activities at
least may involve a violation of law.
As a matter of principle, this Committee agrees that no United
States citizen in the United States should be targeted for electronic
surveillance by his government absent some showing that he at least
may violate the laws of our society. A citizen in the United States
should be able to know that his government cannot invade his privacy
with the most intrusive techniques if he conducts himself lawfully.
On the other hand, this committee recognizes full well that the sur-
veillance under this bill are not primarily for the purpose of gathering
evidence of a crime. They are to obtain foreign intelligence informa-
tion, which when it concerns United States persons must be necessary
to important national concerns. Combatting the espionage and covert
actions of other nations in this country is an extremely important na-
tional concern. Prosecution is one way, but only one. way and not al-
ways the best way, to combat such activities. "Doubling" an agent or
feeding him false or useless information are other ways. Monitoring
him to discover other spies, their tradecraft and equipment can be
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vitally useful. Prosecution, while disabling one known agent, may only
mean that the foreign power replaces him with one whom it may take
years to find or who may never be found.
The committee also recognizes that strict standards applicable to
the most intrusive techniques of investigation may not be appropriate
for other less intrusive techniques. In the course of considering charter
legislation for intelligence agencies, the proper standards for other
forms of investigation will have to be addressed, but the decision here
with respect to electronic surveillance does not mean the same stand-
ard must be applied to all techniques.
(A) Clandestine Intelligence Gathering
Paragraph (2) (A) allows survelliance of any person who is know-
ingly engaged in clandestine intelligence gathering activities for or on
behalf of a foreign power, which activities involve or may involve a
violation of the criminal statutes of the United States.
The first aspect of this definition is that the person is engaging in
such acts "Bowing ly." This does not mean that he must know, or
that the Government must show that he knows, that lie may be violat-
ing a Federal criminal law. It does mean that he must know that he
is engaging in clandestine intelligence gathering activities and that he
knows that he is doing so on behalf of a foreign power. It is often
difficult to prove what a person knows and what he does not know.
The committee intends that circumstantial evidence should be suffi-
cient to show the requisite knowledge. If, for example, a person is
transmitting classified defense secrets to the military attache of a.
fore' .rn embassy, this should be sufficient to show that he knows that he,
is acting for or on behalf of a foreign power. Similarly, if a person has
received training in or equipment for espionage, for example a micro-
dot camera or disguised radio device, this too should be sufficient to
show that he knows what he is doing. While this, and the other prod
visions under paragraph (2), are not intended to reach one who in
fact is ignorant as to the nature of what he is doing, the knowing
requirement is not intended to force the Government to disprove his
ignorance when a person engaged in such activities would reasonably
suspect that lie was acting for or on behalf of a foreign power.
Next, the person must be "engaged" in the proscribed activities.
Unlike the standard for foreign visitors, the fact that he "may engage"
in these activities some time in the future is not sufficient. For example,
if evidence shows that a person has recently engaged in the activities,
this would normally suffice to show probable cause that he is
"en- gaged" in such activities now.
On the other hand, evidence that a person engaged in the proscribed
activities six months or longer ago might well, depending on the cir-
cunlstances and other evidence, be sufficient to show probable cause
that he is still engaged in the activities. For instance, evidence that a
U.S. person was for years a spy for a power currently hostile to the
United States, but who had dropped out of sight for a few years,
would probably be sufficient to show "probable cause" that he was,
having now reappeared, continuing to engage in the clandestine in-
telligence activities.
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Probably the most critical term in this provision is "clandestine
intelligence gathering activities." It is anticipated that most clandes-
tine intelligence gathering activities will constitute .% violation of the
various federal criminal laws aimed at espionage either directly or
by failure to register, see e.g., 18 U.S.C. ?? 792-799, 951; 42 U.S.C.
?,? 2272-2278b; and 50 U.S.C. ? 855. The term "clandestine intelligence
gathering activities" is intended to have the same meaning as the word
espionage in normal parlance, rather than as a legal term denoting
a particular criminal offense. The term also includes those activities
directly supportive of espionage such as maintaining a "safehouse,"
servicing "letter drops," running an "accommodation address,"
laundering funds, recruiting new agents, infiltrating or exfiltrating
agents under cover, creating false documents for an agent's "cover," or
utilizing a radio to receive or transmit instructions or information by
"burst, transmission." "Clandestine intelligence gathering activities"
are intended to be activities which no reasonable person would engage
in without knowing that society would not condone it. As the words
indicate, the activities must be "clandestine," that is, efforts have been
taken to conceal the activities.
This does not necessarily mean that the information gathered by the
agent must itself be secret or nonpublic, although this would usually
be the case. It is possible that a spy may be tasked to obtain information
which is technically available to the public, but which a foreign power
would not like it known that it was seeking. If the spy, for instance,
used false identification or ruse to obtain the information and then
delivered the information by means of a microdot hidden in a magazine
left at it "dead drop," both the means by which he gathered and the
means by which he transmitted the information would be "clandestine,"
even though the information itself might not be secret. It can be proper
for the Government to monitor such a person, even if the information
he is collecting at that moment is not secret, because his activities
identify him as a spy. On the one hand, having done his job success-
fully he may be given a new assignment to collect secret information.
On the other hand, by monitoring his contacts in this enterprise, their
equipment, and modus operandi, the Government can learn valuable
information concerning the tactics, capabilities, and personnel of the
foreign intelligence service.
Obviously, gathering classified defense information, information
about intelligence sources and methods, and classified diplomatic in-
formation qualifies as clandestine intelligence gathering activities if
it is done in a clandestine manner. In addition, the committee is aware
that foreign powers also target their intelligence apparatus against
American technology and trade secrets, economic developments, polit-
ical information, and even personal information for purposes of black-
mail or other coercion. The gathering of any such information may be
within the term "clandestine intelligence gathering activities."
As noted above, "clandestine intelligence gathering activities" are
intended to be conduct of the nature associated with spies and espion-
age in its generic sense, but the term is supposed to be flexible with
respect to what is being gathered because the intelligence priorities
and requirements differ between nations and over time, and this bill
is intended to allow surveillance of different foreign powers' intelli-
gence activities well into the future.
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It is possible, although unlikely, that certain groups of Americans
might indeed come close to using espionage techniques for otherwise
lawful. purposes. Thus, the provision requires as a separate element of
proof that the person be engaged in clandestine intelligence gathering
activities "for or on behalf of a foreign power." This means that the
Government will have to show probable cause to believe that the person
is not only engaged in clandestine intelligence gathering activities, but
also that those activities are for or on behalf of a foreign power. Thus,
if all that can be shown is that a person is stealing defense secrets and
using a "dead drop" to pass them on, the Government will have to
show" more, that is, probable cause to believe that he is doing this for
a foreign power.
Similarly, the fact that a person gathers information and transmits
it to a foreign power by itself does not satisfy the standard of this def-
inition. Americans for personal or commercial reasons may legiti-
mately gather information for foreign powers, as indeed registered
lobbyists often do, but their activity, if legitimate, does not utilize the
tradecraft of espionage.22 Thus, there seems little likelihood that a
person would be engaged in clandestine intelligence gathering activ-
ities for or on behalf of a foreign power and not in fact be engaged in
reprehensible conduct of substantial concern to this Nation's security.
As an added safeguard, however, the Government must also show
that there is probable cause to believe that the person is engaged in ac-
tivity that at least may violate the Federal criminal law. As noted
above, it is expected that most persons under this definition would be
likely to violate laws directed against espionage. In addition, there are,
other laws which might be violated, for example, 18 U.S.C. section
2514 which proscribes the interstate transportation of stolen property;
and 50 U.S.C. section 2021-2032, the Export Administration Act.
The words "may involve" as used in this subparagraph are not in-
tended to encompass individuals whose activities clearly do not violate
Federal law. They are intended to encompass individuals engaged in
clandestine intelligence gathering activities which may, as an integral
part of those activities, involve a violation of Federal law. They cover
the situation where the Government cannot establish probable cause
that the foreign agent's activities involve a specific criminal act, but
where. there are sufficient specific and articulable facts to indicate that
a crime may be involved.
This "may involve" standard replaces the noncriminal standard
which appeared in H.R. 7308,,as introduced. Both the former provi-
sion, and the "may involve" standard, address the same problem. The
committee has concluded that it is necessary in order to permit the
Government to investigate adequately in cases such as those where
Federal agents have witnessed "meets' or "drops" between a foreign
intelligence officer and a citizen who might have access to highly classi-
fied or similarly sensitive information; information is being passed, but
the Federal agents have been unable to determine precisely what in-
formation is being transmitted. Such a lack of knowledge would of
course disable the Government from establishing that a crime was
involved or what specific crime was being committed. Nevertheless, the
za The Committee does not intend that "clandestine intelligence gathering activities"
must necessarily include the use of espionage tradecraft, but its use is significant.
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committee believes that the circumstances might be such as to indicate
that the activity may involve a crime. The crime involved might be one
of several violations depending, for example, upon the nature of the
information being gathered.
In applying this standard, the judge is expected to take all the
known relevant circumstances into account-for example, who the per-
son is, where he is employed, whether he has access to classified or other
sensitive information, the nature of the clandestine meetings or other
clandestine activity, the method of transmission, and whether there are
any other likely innocent explanations for the behavior. It is intended,
moreover, that the circumstances must not merely be suspicious, but
must be of such a nature as to lead a reasonable man to conclude that
there is probable cause to believe the activity may involve a Federal
criminal violation.
The term "may involve" not only requires less information regard-
ing the crime involved, but also permits electronic surviellance at some
point prior to the time when a crime sought to be prevented, as for
example, the transfer of classified documents, actually occurs. There
need not be a current or imminent violation if there is probable cause
that criminal acts may be committed. The committee recognizes that
an argument can be made that a person could be surveilled for an in-
ordinate period of time. That is clearly not the intention. Indeed, even
upon an assertion by the Government that an informant has claimed
that someone has been instructed by a foreign power to go into "deep
cover" for several years before actually commencing his espionage
activities, such facts would not necessarily be encompassed by the
phrase "may involve." Surveillance cannot be justified unless there is
probable cause to believe that the person is engaged in such activities,
even though the relationship of those activities to a specific violation
of law may be more uncertain or likely to occur in the future.
It should be clear from the foregoing, but for the sake of explicit-
ness the committee wishes to make perfectly clear that surveillance
would not be authorized under this, or any other definition of agent of
a foreign power against an American reporter merely because he
gathers information for publication in ,a newspaper, even if the infor-
mation was classified by the Government. Nor would it be authorized
against a Government employee or former employee who reveals
secrets to a reporter or in a book for the purpose of informing the
American people. This definition would not authorize surveillance of
ethnic Americans who lawfully gather political information and per-
haps even lawfully share it with the foreign government of their na-
tional origin. It obviously would not apply to lawful activities to
lobby, influence, or inform Members of Congress or the administration
to take certain positions with respect to foreign or domestic concerns.
Nor would it apply to lawful gathering of information preparatory to
such lawful activities.
In the case of an organization whose leaders are engaged in clandes-
tine intelligence gathering activities, such activity cannot be attributed
to every member of the group. There must be probable cause that a
particular member is himself engaged in such activity before electronic
surveillance targeted against him may be authorized under this
subparagraph.
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In short. for a person to be an agent of a foreign power under this
definition he must be knowingly engaged in clandestine intelligence
activities, like espionage, for or on behalf, of a foreign power, and
those activities must be such that they at least "may involve" a viola-
tion of Federal. criminal law.
A particularly difficult problem may arise where a person is "turned"
or "doubled;" that is, having started as an agent for a foreign power,
he is persuaded instead to work for this Government. The standard
under this paragraph requires that a person knowingly engage in ac-
tivities for or on behalf of a foreign power. If the person is in fact
working for this Government and not for the foreign power, this
standard is obviously not met and he could not be surveilled under this
paragraph. Often, however, there may be substantial doubt whether
he is acting under this Government's control or under the control of a
foreign power. It may well. be unclear which side is deceiving which.
The committee recognizes that the fact that a supposedly "doubled"
agent indeed does carry out his assignments and instructions from this
Government does not mean that he has stopped carrying out his
assignments and instructions from the foreign power contrary to this
Government's interest. It is not the committee's intent that a surveil-
lance, once authorized, need be discontinued when the agent may have
been "doubled". Rather, it is the committee's intent that, until such
time as the "doubled" agent is trusted enough to seek his consent to
surveillance, he may continue to be surveilled as acting for or on behalf
of a foreign power.
(B) "Other clandestine intelligence activities"
Paragraph (2) (B) defines agent of a foreign power as a person
who pursuant to the direction of an intelligence service or network of
a foreign power, knowingly engages in "any other clandestine intel-
ligence activities" for or on behalf of such foreign power, which activi-
ties involve or are about to involve a violation of the criminal statutes
of the United States.
The term "any other clandestine intelligence activities" is intended
to refer to covert actions by intelligence services of foreign powers.
Not only do foreign powers engage in spying in the United States to
obtain information, they also engage in activities which are intended
to harm the Nation's security by affecting the course of our Govern-
ment, the course of public opinion, or the activities of individuals.
Such activities may include political action (recruiting, bribery or
influencing of public officials to act in favor of the foreign power),
disguised propaganda (including the planting of false or misleading
articles or stories), and harassment, intimidation, or even assassina-
tion of individuals who oppose the foreign power. Such activity can
undermine our democratic institutions as well as directly threaten the
peace and safety of our citizens.
On the other hand, there may often be a narrow line between covert
action and lawful activities undertaken by Americans in the exercise
of their first amendment rights. Because of this, whereas H.P. 7308, as
introduced, did not distinguish between "clandestine intelligence gath-
ering activities" and "any other clandestine intelligence activities," a
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stricter standard has been created-stricter than that applicable to
"clandestine intelligence gathering activities" and stricter than that
applicable in H.R. 7308, as introduced-which must be satisfied before
a person may be targeted as an agent of a foreign power under this
definition.
First, the person must be shown to be acting "pursuant to the
direction of an intelligence service or network of a foreign power."
No such showing is required for any of the other definitions of agent
of a foreign power. Americans may well communicate with non-
intelligence personnel from the government of a country about which
they have an interest to gain information or to engage in efforts on
behalf of that country, but this is not covert action and it is not in-
tended to be covered by this definition.
Second, the activities engaged in must presently involve or be about
to involve a violation of Federal criminal law. Again, this is a higher
standard than is found in the other definitions, where the activities
"may" involve a violation of law. In this area where there is close
line between protected First Amendment activity and the activity
giving rise to surveillance, it is most important that where surveil-
lance does occur the activity be such that it involves or is about to
involve a violation of a Federal criminal statute.
There are a number of crimes that might be involved in covert
actions, for example, bribery of public officials, campaign law viola-
tions, foreign agent registration requirements, denial of civil rights,
et cetera. It is important to note, however, that the fact of a criminal
violation does not establish or even necessarily suggest, that a person
is engaged in "any other clandestine intelligence activity." Americans
through ignorance or inadvertence may well technically violate cam-
paign law requirements or foreign agent registration requirements,
and such violations do not even justify surveillance for law enforce-
ment purposes, see 18 U.S.C. section 2516. Under this definition it is
necessary to show separately from the criminal violation that the facts
support a probable cause to believe that the person is, pursuant to the
direction of an intelligence service or network of a foreign power,
knowingly engaged in any other clandestine intelligence activities for
or on behalf of such foreign power.
The intent of this provision is to enable surveillance of those hard-
core agents who are witting as to what they are doing and who are
intentionally carrying out the bidding of a foreign power's intelligence
service to engage in covert action in the United States.
(C) Sabotage or Terrorism
Paragraph (2) (C) allows surveillance of any person, including a
U.S. person, who knowingly engages in sabotage or international ter-
rorism, or activities which are in preparation therefor, for or on behalf
of a foreign power. The terms "sabotage" and "international terror-
i sin" are defined separately and require a showing of criminal activity.
Again, in no event is more sympathy for, identity of interest with, or
vocal support for the goals of a foreign group, even a, foreign 'based
terrorist group, sufficient to justify surveillance under this subpara-
graph. The term "activities which are in preparation" for sabotage or
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international terrorism is intended to encompass activities supportive
of acts of serious violence-for example, purchase or surreptitious
importation into United States of explosives, planning for assassina-
tions or financing of or training for such activities. Of course, other
activities supportive of terrorist acts could in other circumstances like-
wise satisfy this standard. The circumstances must be such as would
lead a reasonable man to conclude that there is probable cause to
believe the person is knowingly engaged in activities which are in
preparation for sabotage or terrorism.
The term "preparation" does not require evidence of preparation for
one specific terrorist act, because the definition of "international ter-
rorism" speaks of "activities which involve violent acts" and means a
range of acts, not just a single act. Here, the term "preparation"
acquires its meaning in the context of the special definition of "inter-
national terrorism," which could reasonably be interpreted to cover,
for example, providing the personnel, training, funding, or other
means for the commission of acts of terrorism, rather than one par-
ticular bombing. The committee has also adopted the "preparation"
provision in order to permit electronic surveillance at some point
before the danger sought to be prevented-for example, a kidnaping,
bombing, or hijacking-actually occurs. This standard is in no way
intended to dilute the requirement of knowledge, or the requisite con-
nection with a "foreign power" as defined in 1801(a) .
Concern has been expressed from some quarters that this subpara-
graph could permit surveillance solely on the basis of information that
someone might commit acts of international terrorism or sabotage in
the distant future. This is clearly not the intent of the committee.
There must be a showing that the person is currently engaged in
activities which are in preparation for the commission of such acts.
The "preparation" standard would allow surveillance where the
Government cannot establish probable cause that an individual has
already knowingly engaged in sabotage or terrorism, but where. there
are sufficient specific and articulable facts to indicate that the indi-
vidual's activities are. in preparation for sabotage or international
terrorism. The judge is expected to take all the known circumstances
into account. The circumstances must be such as would lead a reason-
able man to conclude that there is probable cause to believe the. person
is knowingly engaged in activities which are in preparation for
sabotage or terrorism.
It should be noted that the "preparation" standard only need apply
where there is insufficient evidence, to show that the person is in fact
a terrorist. Where the. Government can show that the person is a
known international. terrorist, like the notorious "Carlos," or that the
person has been engaging in international terrorism for or on behalf
of a group engaged in international terrorism, there is no need to
show that the person is in the act of preparing for further terrorist
acts. One might wonder why the Government would not immediately
arrest such persons. In some cases they may not have violated U.S.
law, even though they may have murdered hundreds of persons abroad.
In other cases it may be more fruitful in terms of combatting inter-
national terrorism to monitor the activities of such persons in the
United States to identify otherwise unknown terrorists here, their
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international support structure, and the location of their weapons or
'explosives. If a person who has engaged in international terrorism
visits the United States or resides in the United States, the Govern-
ment should be able to utilize electronic surveillance to monitor his
activities, whether or not there is evidence to show he is presently
planning some particular violent act.
Finally, any person targeted for surveillance under this paragraph
must be shown to have a knowing connection with the "foreign power"
for whom he is working. In the case of international terrorism, it is
anticipated that in most cases this connection will be shown to exist
with a group engaged in international terrorism. The case may arise
where a U.S. person is acting for or on behalf of such a group that
is substantially composed of U.S. persons. In such a case, the judge+
must examine the circumstances carefully in order to determine
whether the organization is "a group engaged in international ter-
rorism," as defined, and not a purely domestic group engaged in do-
mestic terrorism. In the latter cases, the Government must rely on the
domestic law enforcement surveillance procedures of title III of the
Omnibus Crime Control Act of 1968, contained in chapter 119, of title
is, United States Code, if it wishes to engage in surveillance.
(D) Aiding, Abetting and Conspiracy
Paragraph (2) (D) allows surveillance of any person, including a
U.S. person, who knowingly aids or abets any person in the conduct
,of activities described in subparagraphs (2) (Ay-(C) above, or know-
ingly conspires with any person to engage in such activities. The
knowledge requirement is applicable to both the status of the person
being aided by the proposed subject of the surveillance and the nature
of the activity being promoted. This standard requires the Govern-
ment to establish probable cause that the prospective target knows
both that the person with whom he is conspiring or whom he is aiding
or abetting is engaged in the described activities as an agent of a for-
eign power and that his own conduct is assistiug or furthering such
activities. The innocent dupe who unwittingly aids a foreign intelli-
gence officer cannot be targeted under this provision. In the case of
It person alleged to be knowingly aiding or abetting those engaged
in international terrorism on behalf of a foreign power, such a person
might be assisting a group engaged in both lawful political activity
and unlawful terrorist acts. In such a case, it would be necessary to
establish probable cause that the individual was aware of the terrorist
activities undertaken by the group and was knowingly furthering
them, and not merely that he was aware of and furthering the group's
lawful activity.
An illustration of the "knowing" requirement is provided by the
case of Dr. Martin. Luther King. Dr. King was subjected to electronic
surveillance on "national security grounds" when he continued to
associate with two advisers whom the Government had apprised him
were suspected of being American Communist Party members and
by implication, agents of a foreign power. Dr. King's more continued
association and consultation with those advisers, despite the Govern-
ment's warnings, would clearly not have been a sufficient basis under
this bill to target Dr. King as the subject of electronic surveillance.
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45
Indeed, even if there had been probable cause to believe that the
advisers alleged to be Communists were engaged in criminal clandes-
tine intelligence activity for a foreign power within the meaning of
this section, and even if there were probable cause to believe Dr. King
was aware they were acting for a foreign power, it would also have
been necessary under this bill to establish probable cause that Dr. King
was knowingly engaged in furthering his advisers' criminal clandes-
tine intelligence activities. Absent one or more of these required show-
ings, Dr. King could not have been found to be one who knowingly
aids or abets a foreign agent.
As was noted above, however, the "knowing" requirement can be
satisfied by circumstantial evidence, and there is no requirement for
the Government to disprove lack of knowledge where the circum-
stances were such that a reasonable man would know what he was
doing.
(c) International terrorism
Subsection (c) defines the term "international terrorism" by re-
quiring three separate aspects of activities to be shown. The first
aspect describes the nature of the acts involved in the activity; the
activities must involve "violent acts or acts dangerous to human life"
which are or may be a violation of either State or Federal law, or
which, if committed in the United States, would likely violate either
State or Federal law. The committee intends that terrorists and sabo-
teurs acting for foreign powers should be subject to surveillance under
this bill when they are in the United States, even if the target of
their violent acts has been within a foreign country and therefore
outside actual Federal or State jurisdiction. This departure from a
strict criminal standard is justified by the international responsibility
of governments to prevent their territory from being used as a base
for launching terrorist attacks against other countries as well as to
aid in the apprehension of those who commit such crimes of violence.
We demand that other countries live up to this responsibility and
it is important that in our legislation we demonstrate a will to do
so ourselves.
The second aspect of this definition relates to the purpose to which
the activities are directed. The purpose of the terrorist activities must
be either the intimidation of the civilian population, the intimidation
of national leaders in order to force a significant change in govern-
ment policy, or the, affecting of government conduct by assassination
or kidnapping. Examples of activities which in and of themselves
would meet these requirements would be : the detonation of bombs in
a metropolitan area, the kidnapping of a high-ranking government
official, the hijacking of an airplane in a deliberate and articulated
effort to force the government to release a certain class of prisoners or
to suspend aid to a particular country, the deliberate assassination of
persons to strike fear into others to deter them from exercising their
rights or the destruction of vital governmental facilities. Of course
other violent acts might also satisfy these requirements if the requisite
purpose is demonstrated.
The third aspect of this definition relates to the requirement that the
terrorist activities be international or foreign in scope. In H.R. 7308,
as introduced, this aspect was not present in the definition of terrorism.
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46
The committee has amended the original language of the bill to re-
quire that the terrorist activities must occur totally outside the United
States or otherwise be international in character. Thus, if a member of
the Baader-Meinhof Group or the Japanese Red Army, who has en-
gaged in terrorist acts abroad, comes to the United States, he or she
may be immediately placed under surveillance. If the activities have
not occurred totally outside the United States, then it must be shown
that the activities transcend national boundaries in terms of the means
by which they are accomplished, the persons they appear intended to
,coerce or intimidate, or the locale in which their perpetrators operate
or seek asylum. Remembering that this is a definition of "international
terrorism," there must be a substantial international character with
respect to these considerations. The fact that an airplane is hijacked
while flying over Canada between Alaska and Chicago does not by
itself make the activity international terrorism. A domestic terrorist
group which explodes a bomb in the international arrivals area of a
U.S. airport does not by this alone become engaged in international
terrorism. However, if a domestic group kidnaps foreign officials in
the United States or abroad to affect the conduct of that foreign gov-
,ernment this would constitute international terrorism. If a domestic
group travels abroad and places a bomb in a foreign airplane, this too
would be international terrorism. Finally, if a domestic terrorist
group receives direction or substantial support from a foreign govern-
ment or foreign terrorist group, its terrorist activities made possible
by that support or conducted in response to that direction could be in-
ternational terrorism. It is important, however, to recognize that this
substantial support or direction must already have been established
before. surveillance could be authorized. This definition does not allow
for electronic surveillance of Americans merely to determine if they
are receiving foreign support or direction. Moreover, support is not
intended to include moral or vocal support. It must be material, tech-
nical, training, or other substantive support, and the support must be
of the acivities involving the terrorist acts, not just general support to
a group which may engage in both terrorist activities as well as other
lawful activities. Direction means direction and does not mean
suggestions.
Activities parallel to or consistent with the desires of a foreign
power do not by themselves satisfy the requirement that the foreign
power is directing the domestic group.
Finally, the fact that particular members of a domestic group en-
gage in international terrorism does not mean that all members of that
group are similarly engaged.
(d) Sabotage
Subsection (d) defines sabotage as activities which involve or may
involve crimes under chapter 105 of title 18,, United States Code, if
conducted against the United States. By its terms, chapter 105 makes
criminal only acts of sabotage against U.S. Government facilities.
This bill expands the definition of sabotage to include similar acts
when committed against a State or another nation's facilities and ma-
terials relating to defense. Thus, sabotage directed against state and
local police facilities and equipment, or against the defense facilities
of foreign nations, would constitute sabotage under this definition. Of
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course, electronic surveillance under this chapter could be undertaken
only if such sabotage was knowingly conducted for or on behalf of a
"foreign power" as defined and the information sought constituted for-
eign intelligence as defined. Where persons have knowingly engaged in
sabotage of State or foreign facilities for or on behalf of a foreign
power, such persons should be subjected to foreign intelligence elec-
tronic surveillance in this country even in the absence of probable
cause to believe that they will engage in sabotage against Federal
facilities.
(e) Foreign intelligence information
As introduced, I-I.R. 7308 defined foreign intelligence information
as information which was "necessary" for the United States to protect
against foreign attack, terrorism, sabotage, or clandestine intelligence
activities or was "essential" to the national defense or security or to
the successful conduct of this nation's foreign affairs. The committee
found two faults with this formulation. First, the distinction between
"essential" and "necessary" seemed strained and more likely to con-
fuse than to clarify the issues. Second, the committee agreed with the
testimony of the Defense Department that the "necessary"/"essen-
tial" standard was too strict where the information did not concern
U.S. persons.
The primary thrust of this bill is to protect Americans both from
improper activities by our intelligence agencies as well as from hostile
acts by foreign powers and their agents. Any information which
relates to these general security and foreign relations concerns can
help protect 'Americans and their interests from hostile activities
of foreign powers. Where this information does not concern U.S.
persons, the countervailing privacy considerations militating against
seeking such information through electronic surveillance are out-
weighed by the need for the information. Therefore, the committee
has adopted it definition of foreign intelligence information which
includes any information relating to these broad security or foreign
relations concerns, so long as the information does not concern U.S.
persons. Where U.S. persons are involved, the definition is much
stricter; it requires that the information be "necessary" to these
security or foreign relations concerns.
Where the term "necessary" is used, the committee intends to
require more than a showing that the information would be useful
or convenient. The committee intends to require a showing that the
information is both important and required. The use of this standard.
is intended to mandate that a significant need be demonstrated by
those seeking the surveillance. For example, it is often contended.
that a counterintelligence officer or intelligence analyst, if not the
policyinaker himself, must have every possible bit of information.
about a subject because it might provide an important piece of the
larger picture. In that sense, any information relating to the specified
purposes might be called "necessary" but such a reading is clearly
not intended.
Subparagraph (e) (1.) (A) of this subsection defines foreign intel-
ligence information as information which relates to, and if concerning
it U.S. person, is necessary to, the ability of the United States to pro-
tect against actual or potential attach or other grave hostile acts of it
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foreign power or its agents. This category is intended to encompass in-
formation which relates to foreign military capabilities and intentions,
as well as acts of force or aggression which would have serious adverse
consequences to the national security of the United States. The term
"hostile acts" must be read in the context of the subparagraph which
is keyed to actual or potential attack.
Thus, only grave types of hostile acts would be envisioned as falling
within this provision.
Subparagraph (e) (1) (B) of this subsection includes information
which relates to, and if concerning a U.S. person, is necessary to, the
ability of the United States to protect against sabotage or terrorism
by a foreign power or foreign agent. It is anticipated that the type
of information described in this subparagraph will be the type sought
when an electronic surveillance is instituted against the type of for-
eign power defined in section 101(a) (4), or against the type of for-
eign agent defined in section 101(b) (2) (C).
Subparagraph (e) (1) (C) of this subsection includes information
which relates to, and if concerning a U.S. person, is necessary to, the
ability of the United States to protect against the clandestine intel-
ligence activities by an intelligence service or network of a foreign
power or by a foreign agent. This subparagraph encompasses classic
counterintelligence information.
This subsection is not intended to encompass information sought
about political activity by U.S. citizens allegedly "necessary" to deter-
mine the nature and extent of any possible involvement in those
activities by the intelligence services of foreign powers. Such a drag-
net approach to counterintelligence has been the basis for improper
investigations of citizens in the past and is not intended to be a per-
niissible avenue of "foreign intelligence" collection under this sub-
paragraph. Nor does this subparagraph include efforts to prevent
"newsleaks" or to prevent publication of such leaked information in
the American press, unless there is reason to believe that such leaking
or publication is itself being done by an agent of a foreign intelligence
service to harm the national security.
Information about a U.S. person's private affairs is not intended to
be included in the meaning of "foreign intelligence information" un-
less it may relate to his activities on behalf of a foreign power. For
example, the Government should not seek purely personal informa-
tion about a U.S. citizen or permanent resident alien, who is a sus-
pected spy, merely to learn something that would be "compromising."
This restriction might not be applicable to agents of foreign powers as
defined in section 101(b) (1), because compromising information
about their private lives may itself be foreign intelligence information.
It should be noted that under paragraph (e) (1) there is no require-
ment that the attack, grave hostile act, sabotage, terrorism, or clandes-
tine intelligence activities be directed against the United States in
order for information to constitute "foreign intelligence information",
as defined. Obviously, armed attacks and similar grave hostile acts
against any nation in this interdependent world more often than not
directly affect the security and foreign relations of all countries. War
in the Mideast or in the Horn of Africa, for example, inevitably in-
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wolves this nation's security and foreign relations. Sabotage and inter-
national terrorism also, even if confined to one foreign country, may
indeed affect the interests and security of the United States. The kid-
naping of a high official of an allied nation can affect the course of
government and security of that nation, thereby affecting this nation's
security and foreign relations. Finally, clandestine intelligence activi-
ties of one nation directed against another can easily affect this nation.
This occurred in West Germany where Soviet spies in the German
Defense Ministry compromised NATO secrets, which included Ameri-
can secrets. It can also occur when other nations engage in clandestine
intelligence activities against one another in the United States.
Finally, the term ":foreign intelligence information," especially as
defined in subparagraphs (e) (1) (B) and (c) (1) (C), can include evi-
dence of certain crimes relating to sabotage, international terrorism,
or clandestine intelligence activities. With respect to information con-
cerning U.S. persons, foreign intelligence information includes in-
foi-mation necessary to protect against clandestine intelligence activi-
ties of foreign powers or their agents. Information about a spy's es-
pionage activities obviously is within this definition, and it is most
likely at the seine time evidence of criminal activities. Ilow this in-
formation may be used "to protect." against clandestine intelligence
activities is not prescribed by the definition of foreign intelligence in-
formation, although, of course, how it is used may be affected by
minimization procedures, see section 101(h), infra. And no informa-
tion acquired pursuant to this bill could be used for other than law-
ful purposes, see section 106(a). Obviously, use of "foreign intelli-
gence information" as evidence in a criminal trial is one way the
Government can lawfully protect against clandestine intelligence
activities, sabotage, and international terrorism. The bill, therefore,
explicitly recognizes that. information which is evidence of crimes in-
volving clandestine intelligence activities, sabotage, and international
terrorism can be sought, retained, and used pursuant to this bill.
Paragraph (e) (2) of this subsection includes information which
relates to, and if concerning a U.S. person, is necessary to, (A) the
national defense or the security of the Nation or (B) the conduct of
the foreign affairs of the United States. This also requires that the
information sought involve information with respect to foreign powers
or territories, and would therefore not include information solely
about the views or planned statements or activities of Members of
Congress, executive branch ofricia.ls, or private citizens concerning the
foreign affairs or national defense of the United States.
It is anticipated that the types of "foreign intelligence information"
defined in subparagraph (e) (1) (A) and (e) (2) (A) and (B) will be
the types most often sought when an electronic surveillance is insti-
tuted against a foreign power as defined in section 101(a) (1)-(3) and
(1), or against most foreign agents as defined in section 101 (b)
Consideration was given to a standard of "important," rather than
"relates to," for information concerning foreign powers and foreign
persons collected to serve these more nebulous national defense, na-
tional security, and foreign affairs interests. However, the committee
did not wish to impose a standard under which responsible executive
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branch officials could not honestly certify that entirely proper and
appropriate activities were conducted to produce "foreign intelligence
information,'' as defined here. Certain other limitations are, present.
The information must pertain to a, foreign power or foreign territory;
and thus it cannot simply be information about a citizen of a foreign
country who is visiting the United States unless the information
would contribute to meeting intelligence requirements with respect
to a foreign power or territory. With these limitations, the committee
believes that the adoption of a "relates to" standard would not author-
ize improper treatment. In this regard, the committee fully intends
that the vigorous exercise of its oversight authority will provide an-
other valuable check.
(f) Electronic surveillance
Subsection (f) defines electronic surveillance to include four
separate types of activities.
(1) Intentionally targeting.-Paragraph (1) protects U.S. persons
who are located in the United States from being targeted in their
domestic or international communications without a court order no
matter where the surveillance is being carried out. The paragraph
covers the acquisition of the contents of a wire or radio communication
of a U.S. person by intentionally targeting that particular, known
U.S. person, provided that the person is located within the United
States. Thus, for example, any watchlisting activities of the National
Security Agency 24 conducted in the future, directed against the inter-
national communications of particular U.S. persons who are in the
United States, would require it court order under this provision.
Only acquisition of the contents of those wire or radio communi-
cations made with a reasonable expectation of privacy where a warrant
would be required for law enforcement purposes is covered by para-
graph (1). It is the committee's intent that acquisition of the contents
of a wire communication, without the consent of any party thereto,
would clearly be included.
The term "intentionally targeting" a particular, known U.S. person
who is in the United States includes the deliberate use of a surveillance
device to monitor a specific channel of communication which would
not be surveilled but for the purpose of acquiring information about
a party who is a particular, named U.S. person located within the
United States.25 It also includes the deliberate use of surveillance tech-
niques which can monitor numerous channels of communication among
numerous parties, where the techniques are designed to select out from
among those communications the communications to which a particu-
lar U.S. person located in the United States is a party, and where the
communications are selected either by name or by other information
which would identify the particular person and would select out his
communications.
This paragraph does not apply to the acquisition of the contents
of international or foreign communications, where the contents are not
24 See Church committee hearings, vol. 5, esp. pp. 5-24; Church Committee Report, book
II, pp. 58--60, 108 and 308--311, and book III, pp. 733-783.
25 This would include wiretapping a foreign official when the Intent and purpose of the
Wire tap is to hear the conversations of a particular U.S. person with that foreign. official,
if the foreign official would not otherwise have been wiretapped for different purposes.
Such a case has occurred in the past. 'See "Church Committee Report," book II, p. 228.
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acquired by intentionally targeting a particular known U.S. person
who is in the United States. Therefore, this bill does not afford pro-
tections to U.S. persons who are abroad, nor does it regulate the ac-
quisition of the contents of international communications of U.S. per-
sons who are in the United States, where the contents are acquired
unintentionally. The committee does not believe that this bill is the
appropriate vehicle for addressing this area. The standards and pro-
cedures for overseas surveillance may have to be different than those
provided in this bill for electronic surveillance within the United
States or targeted against, U.S. persons who are in the United States.
The fact that this bill does not bring the overseas surveillance ac-
tivities of the U.S. intelligence community within its purview, how-
ever, should not be viewed as congressional authorization of such ac-
tivities as they affect the privacy interests of Americans. The commit-
tee merely recognizes at this point that such overseas surveillance
activities are not covered by this bill. In any case, the requirements
of the fourth amendment would, of course, continue to apply to this
type of communications intelligence activity.26 Of., Berlin Democratic
Club v. Rum88felcl, 410 F. Supp. 144 (DDC 1976).
(2) Wire cow/nwnication.s.-Paragraph (2) includes the, acquisition,
by an electronic, mechanical, or other surveillance device, of the con-
tents of a wire communication to or from a person in the United
States without the consent of any party thereto when such acquisition
occurs in the United States. As this subdefinition makes clear, one
party to the wire communication may be outside the United States
if the acquisition occurs within the United States. Thus, either a wholly
domestic telephone call or an international telephone call can be the
subject of electronic surveillance under this subdefinition if the ac-
quisition of the content of the call takes place in this country.
The surveillance covered by paragraph (2) is not limited to the
acquisition of the oral or verbal contents of a wire communication.
It includes the acquisition of any other contents of the communica-
tion, for example, where computerized data is transmitted by wire.
Therefore, it includes any form of "pen register" or "touch-tone de-
coder" device which is used to acquire, from the contents of a wire
:communication, the identities or locations of the parties to the com-
municati_on. Examination of telephone billing records in documentary
form is not covered. The committee is concerned about the need to
protect the privacy of such confidential. records of the Provision of
telecommunications services, but does not believe that this bill is the
appropriate measure in which to do so.
(3) Radio communicationa.-Paragra h (3) includes the intentional
acquisition by an electronic, mechanical, or other surveillance device
of the contents of a totally domestic radio communication, without the
consent of any party thereto, made with a reasonable expectation of
privacy and tinder circumstances where a warrant would be required
for law enforcement purposes, where both the sender and all intended
recipients are located within the United States. This part of the def-
R6 The Committee notes with approval that electronic surveillance of American citizens
while abroad has been limited in part both by the President's Executive Order applicable
to the U.S. Intelligence community and by procedures approved by the Attorney General.
See Executive Order 12036, Jan. 24, 1578 ; testimony of Attorney General Edward H. Levi,
.Church committee hearings, vol. 2, p. 66 if.
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inition would reach not only the acquisition of communications made.
wholly by radio but also the acquisition of communications which
are carried in part by wire and in part by radio, where the radio,
transmitted portion of those communications are intercepted. The ter-
ritorial limits of this subdefinition are not dependent on the point
of acquisition, as is the case with subdefinition (2), but on the loca-
tions of the sender and intended recipients of the communication.
Thus, the acquisition of radio communications outside the territorial'
limits of the United States would be covered if all of the parties were
located within the United States. Only acquisition of those domestic
radio communications made with a reasonable expectation of privacy
where a warrant would be required for law enforcement purposes
would be included in the term "electronic surveillance." This would
exclude for example, commercial broadcasts, as well as ham radio
and citizen band radio broadcasts (cf. 47 U.S.C. section 605) ; United
States v. Hall 488 F.2d 193 (9th Cir. 1973).
It is the committee's intent that the intentional acquisition of the
contents of a communication being transmitted by common carrier
radio microwave, without the consent of any party thereto and where
all parties to the communication are located in the United States,.
would clearly be included here. The intentional acquisition of such
contents is not limited to the intentional acquisition of oral or verbal
contents. It includes the intentional acquisition of any other comments,,
as described with respect to paragraph (2) .
Only "intentional" acquisitions of private domestic radio communi-
cations are within this subdefinition because, by their very nature,
radio transmissions may be intercepted anywhere in the world, even
though the sender and all intended recipients are in the United States.
Thus, intelligence collection may be targeted against foreign or in-
ternational communications but accidentally and unintentionally ac-
quire the contents of communications intended to be totally domestic-
s amended by this committee, the bill would require the destruction
of such contents in almost all circumstances. See Sec. 106 (j), infra.
(4) Other monitoring.-paragraph (4) brings within the definition
of "electronic surveillance" the installation or use of an electronic,
mechanical, or other surveillance device for monitoring in the United
States under circumstances in which a person has a reasonable expecta-
tion of privacy and a warrant would be required for law enforcement
purposes. This is intended to include the acquisition of oral communi-
cations made by a person exhibiting an expectation that such utter-
ances are not subject to acquisition, under circumstances justifying
such expectation. In addition, it is meant to include the installation of
"beepers" and "transponders," if a warrant would be required in the
ordinary criminal context. United States v. Holmes, 537 F.2d 227 (5th
Cir. 1976). It could also include miniaturized television cameras and
other sophisticated devices not aimed merely at communications.
This part of the definition is meant to be broadly inclusive, because
the effect of including a particular means of surveillance is not to pro-
hibit it but to subject it to the statutory procedures. It is not meant to
include, however, the acquisition of those international radio trans-
missions which are not acquired by targeting a particular U.S. person
in the United States. Nor, as earlier indicated, is it meant to require a
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.court order in any case where a search warrant would not be required
in an. ordinary criminal context.
It has been held, for example, that fourth amendment protections
do not extend to activities undertaken in the open where a participant
could reasonably anticipate that his activities might be observed.27 But
two persons in a public park, far from any stranger, should not reason-
ably anticipate that their conversations could be overhead from afar
through a directional microphone, and so would retain their right of
privacy.
The definition of "electronic surveillance" applying to wire com-
munications has an explicit exception where any party has consented
to the interception. This is intended to be consistent with existing law
regarding consensual interceptions found in 18 U.S.C. section 2511
(2) (c) and in the case law interpreting 47 U.S.C. section 605.'$ Such
consent need not be explicit, but whether consent may be inferred in a
particular case will depend on the facts a.nd circumstances. The other
definitions of "electronic surveillance" require that the acquisition of
information be under circumstances in which a person has a constitu-
tionally protected right of privacy. There may be no such right in
situations where the acquisition is consented to by at least one party
to the communication or conversation. For instance, a body microphone
placed on an informer with his consent is an installation of a device
to acquire information, but a person speaking to the informant may
have no justifiable expectation that the informant will not repeat,
record, or even transmit by a miniature- transmitter what the person
voluntarily tells the informant.229
The committee does not intend the term "surveillance device" as used
in paragraph (4) to include devices which are used incidentally as part
of a physical search, or the, opening of mail, but which do not con-
stitute a device for monitoring. Lock picks, still cameras, and similar
devices can be used to acquire information, or to assist in the acquisi-
tion of information, by means of physical search. So-called chamfering
devices can be used to open mail. This bill does not bring these ac-
tivities within its purview. Although it may be desirable to develop
legislative controls over physical search techniques, the committee has
concluded that these practices are sufficiently different from electronic
surveillance so as to require separate consideration by the Congress.
The fact that the bill does not cover physical searches for intelligence
purposes should not be viewed as congressional authorization for such
activities. In any case, any requirements of the fourth amendment
would, of course, continue to apply to this type of activity. 30
The provisions that "a warrant: would be required for law enforce-
ment purposes" do not mean that a court must previously have re-
quired a warrant for the particular type of surveillance activity car-
ried out under paragraph (1), (3), or (4). The techniques involved
may not have come before a court for a determination as to whether
a warrant is required. Nevertheless, the surveillance activity is in-
7 Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 361 (1974). The Com-
anittee's intent is not to have this definition apply to overhead surveillance.
Topes V. United States, 373 U.S. 427 (1963) ; Rathbun v. United States, 355 U.S. 197
(1671. but see the dissenting opinion of Mr.
United States v. White, 401 U.S. 745 (1971) ;
Justice Harlan for a contrary view.
"G It should be noted that Executive Order 12036, Jan. 24, 1978, places limits on physical
searches and the opening of mail.
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tended to be covered if a warrant would be required for law enforce-
ment purposes, as determined on the basis of an assessment of the
similarity with other surveillance activities which the courts have
ruled upon, and the reasonableness of the expectation of privacy that
a U.S. person would have with respect to such activity.
In response to questions from the committee, the Department of
Justice opined that foreign governments-and in some circum-
stances their diplomatic agents have no fourth amendment rights under
the Constitution, see footnote 34, infra. Whether the Department of
Justice is correct in its opinion, on an issue which has never been ad-
dressed by any court, the coverage of the definition of "electronic sur-
veillance" is not intended-by the use of the words "a warrant would
be required for law enforcement purposes"-to exclude surveillances
merely because they are targeted against an entity or person not en-
titled to protection under the fourth amendment. Rather, the phrase is
intended to exclude only those surveillances which would not require a
warrant even if a U.S. citizen were the target. The committee expects
that, if an agency wishes to use a new surveillance technique, it will
seek a ruling from the Attorney General as to whether the technique
requires a court order. The intelligence committees should be advised
of such rulings.
Law enforcement officials may, if they wish, continue to obtain an
ordinary search warrant or chapter 119 court order if the facts and
circumstances justify it.
(g) "Attorney General"
Subsection (g) defines "Attorney General" to mean the Attorney
General of the United States, the Acting Attorney General, or the
Deputy Attorney General. H.R. 7308, as introduced, permitted a spe-
cially designated Assistant Attorney General to approve such applica-
tions. The administration saw a need to lessen the administrative
burden on the Attorney General which would be perpetuated even
after this bill has established the safeguards of a court order
procedure.
Relying on the assurance of Attorney General Bell in his testimony
before the Senate Judiciary Committee on S. 1566 that he would per-
sonally continue to approve applications under the bill until standards
of review have been well established, the committee has adopted a
modified version of the Administration's proposal. It provides au-
thority for the Attorney General (or the Acting Attorney General)
or the Deputy Attorney General-rather than a specially designated
Assistant Attorney General-to approve. applications for an electronic
surveillance order under this chapter. The Deputy Attorney General
is appropriate because, as the second-ranking official in the Justice
Department, he would most often be the Acting Attorney General in
the Attorney General's absence.
(ii) "Minimization procedures"
The minimization procedures of the bill provide vital safeguards
because they regulate the acquisition, retention, and dissemination of
information about U.S. persons, including persons who are not the
authorized targets of surveillance. For example, an entirely innocent
American might use a telephone that is tapped to target someone else.
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Or an American might talk on the phone to a foreign official who is
under surveillance for purposes unrelated to the particular conver-
sation. The procedures also protect Americans who are not parties to
a communication, but who are referred to in the communication; such
information has in the past been disseminated for improper purposes.
Paragraph (1) of subsection ('h) defines "minimization procedures"
as specific procedures reasonably designed to minimize the acquisition,
retention, and dissemination of any non-publicly available informa-
tion concerning unconsenting U.S. persons consistent with the need of
the United States to obtain, produce, and disseminate foreign intelli-
gence information.
The definition begins by stating that the minimization procedures
must be specific procedures. This is intended to demonstrate that the
definition is not itself a statement of the minimization procedures but
rather a general statement of principle which will be given content by
the specific procedures which will govern the actual surveillances. It
is also intended to suggest that the actual procedures be as specific as
practicable in light of the technique of the surveillance and its
purposes.
The definition then states that the procedures must be "reasonably
designed in light of the purpose and technique of the particular sur-
veillance." It is recognized that minimization procedures may have
to differ depending on the technique of the surveillance. For instance,
minimization with respect to essentially physical surveillance tech-
niques such as closed-circuit TV and "beepers" would not be com-
parable to minimization of intercepted communications.
In. addition, in many cases it may not be possible for technical
reasons to avoid acquiring all information. In these situations, the rea-
sonable design of the procedures must emphasize the minimization of
retention and dissemination. The procedures may also differ given. the
purpose of the surveillance. Where the purpose of a surveillance is to
obtain foreign intelligence information as defined in section 101 (c)
(2), the procedures may be able to be very strict with respect to what
may be retained or disseminated concerning U.S. persons, and on
what basis. This is reflected in. paragraph (2) of this subsection, see
infra. Where the purpose of a surveillance is to gather foreign intel-
ligence information as defined in section 101 (e) (1) (B) or (C), how-
ever, some flexibility must be provided with respect to the retention
of information concerning U.S. persons. Innocuous-sounding conver-
sations may in fact be signals of important activity; information on its
face innocent when analyzed or considered with other information
may become critical. Nevertheless, strict controls to preclude improper
dissemination may be found necessary.
The definition of minimization speaks in terms of acquisition, re-
tention and dissemination.
By minimizing acquisition, the committee envisions, for example,
that in a given case, where A is the target of a wiretap, after deter-
mining that A's wife is not engaged with him in clandestine intel-
ligence activities, the interception of her calls on the tapped phone, to
which A was not a party, probably ought to be discontinued as soon
as it is realized that she rather than A was the party. Or, where a
switchboard line is tapped but only one person in the organization is
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56
the target, the interception should probably be discontinued where the
target is not a party. In other cases, however, it may not be possible
or reasonable to avoid acquiring all conversations. It is recognized that
given the nature of intelligence gathering, minimizing acquisition
should not be as strict as under chapter 119 of title 18 with respect to
law enforcement surveillances. For this very reason, while chapter 119
does not require mini mizing retention and dissemination, this bill does.
By minimizing retention, the committee intends that information
acquired, which is not necessary for obtaining producing, or dis-
seminating foreign intelligence information, be destroyed where
feasible. For example, after determining that A's wife is not engaged
with her husband in clandestine intelligence activities, her communi-
cations, acquired and retained in order to make this determination,
might be able to be destroyed. Indeed, even A's communications which
are clearly not relevant to his clandestine intelligence activities could
be destroyed. In certain cases destruction might take place almost
immediately, while in other cases the information might be retained
for a reasonable period in order to determine whether it did indeed
relate to one of the approved purposes. Procedures governing mini-
mization-particularly how long information should be retained and
how it should be destroyed once it is deemed irrelevant-are normally
approved by the court and subject to judicial supervision.
The committee recognizes that it may not be feasible to cut and paste
files or erase part of tapes where some information is relevant and
some is not. Therefore, minimizing retention can also include other
measures designed to limit retention of such irrelevant material to an
essentially non-usable form.
Under dissemination requirements information being held to deter-
mine its usefulness should not be disseminated until that determina-
tion was made (or would only if disseminated to those who could
determine its usefulness). Even with respect to information needed
for an approved purpose, dissemination should be restricted to those
officials with a need for such information. And, again, the judge, in
approving the minimization procedures, could require specific restric-
tions on the retrieval of such information.
There are a number of means and techniques which the minimiza-
tion procedures may require to achieve the purpose set out in the
definition. These may include, where appropriate, but are not lim-
ited to :
(A) destruction of unnecessary information acquired;
(B) provisions with respect to what may be filed and on what
basis, what may be retrieved and on what basis, and what may be
disseminated, to whom, and on what basis;
(C) provision for the deletion of the identity of United States
persons where not necessary to assess the importance or under-
stand the information ;
(D) provisions relating to the proper authority in particular
cases to approve, the retention or dissemination of the identity
of United States persons;
(E) provisions relating to internal review of the minimiza-
tion process; and
(F) provisions relating to adequate accounting of informa-
tion concerning United States persons used or disseminated.
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. Minimization, however, is not required with respect to all informa-
tion which may be acquired by electronic surveillance. First, publicly
available information need not be minimized. By publicly available,
the Committee means information which in fact is generally available
to the public. Such information can include generally published infor-
mation or information in the public record which is generally avail-
able to the public, e.g., statements of incorporation on file in state
offices. Also included would be trade names such as a Xerox copier, a
Boeing 747, etc. Second, where a person has consented to waive minimi-
zation with respect to the acquisition, retention, or dissemination of
information about him through electronic surveillance, no minimiza-
tion is required. The committee intends that this consent be explicit
and informed. A general authorization to obtain information about
him, such as may be made by a person seeking Government employ-
ment, is not sufficient. As here used, consent to waive minimization
must be specific with respect to the acquisition, retention, and dissemi-
nation of information concerning the person acquired by electronic
surveillance. There is not, however, any requirement that the person
know the time, manner, purpose, or target of any particular surveil-
lance. It is expected that this allowance will be used rarely and then
with respect to high ranking Government officials. Obviously, refusal
to consent should not in any sense be held against a person.
Finally, only information concerning a United States person need be
minimized. This includes both communications to which a United
States person is a party as well as communications to which he is not
a party but which mention him. The Supreme Court has held that
persons have no constitutionally protected right of privacy with re
spect to what others say about them. See Alderman v. United States,
394 U.S. 165 (1968). Nevertheless, the use of such information in the
past has been abused, and the Executive Branch in its own procedures
has demonstrated that it can minimize the retention and dissemination
of such information consistent with legitimate foreign intelligence
needs. Recognizing the less substantial privacy interest in such infor
mation, however, the "reasonably designed" procedures may take ac-
count of the differences between information in which persons have
a constitutionally protected interest and that in which they do not..
Therefore, more flexibility in the procedures may be afforded with
respect, to information concerning U.S. persons obtained from com-
munications of others. Of course, information concerning U.S. per-
sons may come from other than communications which are intercepted,
yet under circumstances where their privacy is invaded; in such situa-
tions the person subjected to the surveillance either as the target or
incidentally has had his privacy interests invaded and minimization
procedures are required.
Because minimization is only required with respect to information
concerning U.S. persons, where communications are encoded or other-
wise not processed, so that the contents of the communication are un-
known., there is no requirement to minimize the acquisition, retention,
or dissemination of such communications until their contents are
known. Nevertheless, the minimization procedures can be structured
to apply to other agencies of the Government, so that,if any agency
different from the intercepting agency decodes or processes the com-
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munication, it could be required to minimize the retention and dissemi-
nation of information therein concerning U.S. persons.
It is recognized that parties to communications are unlikely to state
at the outset that they are or are not U.S. persons. Intelligence officers
and analysts therefore must use their judgment as to when the proce-
dures apply. While not suggesting that the procedures require the
following, as a general rule, the committee believes that persons in the
United States might be presumed to be U.S. persons unless there is
some reason to believe otherwise, as may well be the case depending on
certain possible targets. Intelligence personnel might indicate in re-
ports or logs that persons are not U.S. persons, therefore making self-
explanatory why the information is not minimized.
The committee does not intend or expect, however, that interceptors
will delete or destroy possibly meaningful information merely because
there is a question whether a person is a U.S. person.
The definition states that the minimization procedures must mini-
mize the acquisition, retention, and dissemination of information sub-
ject to minimization "consistent with the need of the United States io
obtain, produce, and disseminate foreign intelligence information".
"Foreign intelligence information" is, of course, a defined term, and
with respect to information concerning U.S. persons, it must be "neces-
sary" to the listed security and foreign relations purposes. However,
the definition of "minimization procedures" does not state that only
"foreign intelligence information" can be acquired, retained, or dis-
seminated. The committee recognizes full well that bits and pieces of
information, which taken separately could not possibly be considered
"necessary," may together or over time take on significance and become
"necessary." Nothing in this definition is intended to forbid the reten-
tion or even limited. dissemination of such bits and pieces before their
full significance becomes apparent.
An example would be where the Government is wiretapping a
known spy, who is a U.S. person. It is "necessary" to identify anyone
working with him in his network, feeding him his information, or to
whom he reports. 'T'herefore, it is necessary to acquire, retain and
disseminate information concerning all his contacts and acquaintances
and his movements. Among his contacts and acquaintances, however,
there are likely to be a large number of innocent persons. Yet, infor-
mation concerning these persons must be retained at least until it is
determined that they are not involved in the clandestine intelligence
activities and may have to be disseminated in order to determine their
innocence. Where after a reasonable period of time, which may in
fact be an extended period of time, there is no reason to believe such
persons are involved in the clandestine intelligence activities, there
should be some effort, for example, either to destroy the information
concerning such persons, or seal the file so that it is not normally
avialable, or to make the file not retrievable by the name of the in-
nocent person. It is recognized that the failure to gather further
incriminating information concerning the contacts or acquaintances
of the spy does not necessarily mean they are in fact innocent-
instead, they may merely be very sophisticated and well-versed in their
espionage tradecraft. Therefore, for an extended period it may be
necessary to have information concerning such acquaintances re-
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trievable, for a tap on another spy may indicate the same acquaint-
ance, which may justify more intensive scrutiny of him, which then
may result in breaking his cover.31
It is disconcerting to some that mere association with an alleged spy
may be enough to cast suspicion on a person such that his innocence
must be established. It seems contradictory to one of our basic tenets
that a person is presumed innocent in the eyes of the law until proven
guilty. However, in intelligence as in law enforcement, leads must
be followed. Especially in counterintelligence cases where often
trained professional foreign intelligence personnel are involved, a lead
which initially ends in a "dry hole" can hardly be considered a dead
issue, although it may be temporarily shelved to divert limited re-
sources to other leads. Therefore, this committee intends that a
significant degree of latitude be given in counterintelligence and
counterterrorism cases with respect to the retention of information
and the dissemination of information between and among counter-
intelligence components of the Government.
On the other hand, given this degree of latitude the committee
believes it imperative that with respect to information concerning
U.S. persons which is retained as necessary for counterintelligence or
counterterrorism purposes, rigorous and strict controls be placed
on the retrieval of such identifiable information and its dissemination
or use for purposes other than counterintelligence or counter-
terrorism.
In this regard, the committee believes it is important to note two
points governing dissemination. First, the procedures should recog-
nize that use within an agency may be subject to minimization.
Many agencies have widely disparate functions themselves, or are
subordinate elements of departments which have functions totally
unrelated to intelligence. It is the intent of the committee that use
within an agency is potentially subject to minimization. While re-
strictions on use within all agency need not necessarily be the same
as the restrictions on interagency dissemination, it is clear that some
controls on intraagency use are appropriate.
Second, some might consider that any derogatory information con-
cerning a person holding a security clearance or concerning a person
who in the future might be considered for a security clearance would
be information disseminable as being for "counterintelligence" pur-
poses. This is not intended.
The latitude the committee intends to afford counterintelligence
components with respect to retention and dissemination between them
of information for counterintelligence and counterterrorism purposes
is not designed or intended to allow the same latitude for general per-
sonnel security purposes.
Where the purpose of a surveillance is not counterintelligence or
counterterrorism, there probably is not the same compelling need for
latitude in the retention of information concerning U.S. persons. The
committee is aware of classified procedures now in effect which mini-
mize the acquisition, retention, and disclosure of information concern-
slit bears repeating that electronic surveillance could not be targeted against such ac-
quaintances until it could be shown that they were in fact an agent of a foreign power, as
defined.
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60
ing U.S. persons in such cases and believes they are fully responsive
to the definition in this subsection.
With respect to the unclassified dissemination procedures currently
governing the FBI, the committee expects that they will be reviewed
and appropriately modified in light of the requirements of this bill.
One of the results of minimizing retention and dissemination under
this bill is that much information will be destroyed, retained in a
non-identifiable manner, or sealed in a manner to prevent dissemina-
tion. This is a substantial change from the treatment of wiretap
product under chapter 119 of title 18. There, section 2518 (a) requires,
that all interceptions be recorded, if possible, and that the tapes not
be edited or destroyed for 10 years. In a criminal context the main-
tenance of such tapes and files under court seal insures that the inter-
ceptions will be retained in their original state so that when criminal!
prosecutions are undertaken it is clear that the evidence is intact and
has not been tampered with. Although there may be cases in which
information acquired from a foreign intelligence surveillance will
be used as evidence of a crime, these cases are expected to be relatively
few in number, unlike chapter 119 interceptions, the very purposes
of which is to obtain evidence of criminal activity. The committee
believes that in light of the relatively few cases in which information
acquired under this chapter may be used as evidence, the better
practice is to allow the destruction of information that is not foreign
intelligence information or evidence of criminal activity. This course
will safeguard the privacy of individuals more effectively, insuring
that irrelevant information will not be filed. The committee believes
that existing criminal statutes relating to obstruction of justice will
deter any efforts to tamper with evidence acquired under this chapter.
Such destruction should occur, of course. only pursuant to the
minimization procedures.
Destruction insures that the information cannot be used to "taint"'
a civil or criminal proceeding; accordingly, there is no requirement to
index, for purposes of 18 U.S.C. section 3504, information which is
destroyed or otherwise not used or disseminated.
I .'he definition of minimization procedures states that the Attorney
General shall adopt appropriate procedures. In most cases, of course,
these procedures will be reviewed and approved, modified, or dis-
approved by the judge approving the surveillance. In those cases where
no warrant is required, where there is little or no likelihood that
Americans will be intercepted, no judge will review the procedures,
and it is important that it is the Attorney General, as the chief law
enforcement officer, who ultimately approves them. It is expected
that the procedures adopted by the Attorney General will have been,
thoroughly coordinated with the affected agencies in the executive
branch.
The committee has learned in the course of its consideration of mini-
mization procedures that in. certain circumstances problems could be
caused if different minimization procedures were to be imposed on dif
ferent surveillances. In some cases, for instance, individuals responsi-
ble, for minimizing might not even know which particular surveillance
resulted in a particular piece of information. In other cases, it simply
would be unreasonable to require an interceptor manning several dif-
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ferent wiretaps to keel) straight which procedures apply to which tap.
Therefore, the committee wishes to express its intent that where these
or other factors militate in favor of uniformity, to the maximum de-
gree possible the minimization procedures be kept as uniform as pos-
sible. This does not mean, however, that judges should not fully scru-
tinize proposed minimization procedures just because the same pro-
cedures have been approved by another judge in another case. Not only
might the earlier judge have overlooked something, but also it is criti-
cal to determine at the least that factors militating in favor of uni-
formity are not outweighed by other considerations. For instance,
certain factors might favor uniformity in minimization procedures
governing wiretaps of both an embassy and a foreign spy acting as a
newspaper reporter, but the. committee expects that the minimization
procedures with respect to the latter would be more strict to assure that
information unrelated to his spy activities was not misused. If the
judge believes a modification is called for, he should require it. If the
Government finds the change unacceptable, it may, of course, appeal
the decision to the Special Court of Appeals, see section 103(b).
Paragraph (2) of the definition requires that all minimization pro-
cedures contain a requirement that any information acquired which is
not foreign intelligence information as defined in section 101(e) (1) not
be disseminated in a manner which identifies an individual United
States person, without his consent, unless the identity is necessary to
understand foreign intelligence information or to assess its impor-
tance. The purpose of this special dissemination standard is to protect
individual United States persons from dissemination of information
which identifies them in those areas where the Government's need for
their identity is the least established and where abuses are most likely
to occur. This special dissemination proviso is a safeguard against
such abuses. Two exceptions to this prohibition on dissemination exist.
The first allows dissemination where a U.S. person's identity is
"necessary to understand" foreign intelligence information. The per
son's identity must be needed to make the information fully intelli-
gible. If the information can be understood without identifying the
person, it should be disseminated that way. However, sometimes it
might be difficult, or impossible to make sense, out of the information
without a U.S. person's identity. One example would be the identity
of a person who is the, incumbent of an office of the executive branch
-of the U.S. Government having significant responsibility for the con-
duct of U.S. defense or foreigii policy, such as the Secretary of State
or the State Department country desk officer. The identities of such
persons would frequently satisfy the "necessary to understand" re-
quirement, especially when such person is referred to in the communi-
cations of foreign officials. This example does not mean, however, that
all the conversations of a particular executive branch official with for-
eign officials who are under surveillance should be automatically or rou-
tinely reported to the U.S. official's superior without his knowledge
or consent.
The second exception allows dissemination where a U.S. person's
identity is necessary to "assess [the] importance" of foreign intelli-?
gene information. The word "importance" means important in terms
.of the interests set out in the definition of foreign intelligence infor-
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nation. For example, if a foreign government is negotiating with an
American business firm to purchase nuclear materials, it might be im-
portant to the national defense or security-in a military sense--or to
the successful conduct of the Government's nonproliferation policy, to
know the identity of the business firm involved. That might be the only
way the State Department could determine whether a deal is likely
to be made. On the other hand, the information may turn out not to be
important. The question under the bill is whether the identity of the
person or entity is needed to assess that importance.
Paragraph (3) of the definition relates to information which is evi-
dence of a crime. In H.R. 7308, as introduced, no provision was made
in the minimization procedures themselves for retaining or disseminat-
ing evidence of a crime. Instead, in another part of the bill, there was
a general statement that the minimization procedures did not bar re-
tention and dissemination of information which is evidence of a crime.
The committee felt that this arrangement was slightly confusing and
that it should be recognized in the definition of the minimization pro-
cedures and the procedures themselves that the procedures do not bar
retention and dissemination of evidence of a crime. As noted above, sec
section 101 (e), evidence of certain crimes like espionage would itself
constitute "foreign intelligence information," as defined, because it
is necessary to protect against clandestine intelligence activities by
foreign powers or their agents. Similarly, much information concern-
ing international terrorism would likewise constitute evidence of
crimes and also be "foreign intelligence information," as defined. This
paragraph does not, relate to information, even though it constitutes
evidence of a crime, which is also needed by the United States in order
to obtain, produce or disseminate foreign intelligence information.
Rather this paragraph applies to evidence of crimes which otherwise
would have to be minimized because it was not needed to obtain, pro-
duce, or disseminate foreign intelligence information. For example,
in the course of a surveillance evidence of a serious crime totally un-
related to intelligence matters might be incidentally acquired. Such
evidence should not be required to be destroyed. Where the informa-
tion is not foreign intelligence information, however, retention and
dissemination of such evidence is allowed only to prevent the crime or
to enforce the criminal law. Thus, this paragraph is not a loophole by
which the Government can generally keep and disseminate derogatory
information about individuals which may be a technical violation of
law, where there is no intent actually to enforce the criminal law. On
the other hand, where the evidence also constitutes "foreign intelli-
gence information," as defined, this paragraph does not apply, and
the information may be disseminated and used for purposes other than
en forcing the criminal law.
Paragraph (4) is responsive to the committee's amendment allowing
certain surveillance:; of certain foreign powers to be conducted without
judicial authorization. See section 102 (a). As is expained infra, the
reason for this amendment is the extreme sensitivity of these special
surveillances weighed against the extreme unlikelihood of intercepting
any U.S. Person's communications even incidentally. Because, however,
the balance against extending the number of persons with knowledge
of these surveillances, even to a small number of judges, relies on the
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fact that U.S. persons will not be intercepted, it is necessary that the
minimization procedures contain an extremely tough provision with
respect to U.S. person communications to assure that the nonwarrant
procedure is not used in fact to intercept Americans. This paragraph
requires the destruction of an intercepted communication to which a
U.S. person is a party unless within 24 hours a court order is obtained
where the judge is fully apprised as to the surveillance and where he
approves the minimization procedures. An exception to this rule is
provided only where the information may indicate death or serious
bodily harm to any person.
(i) U.S. person
Section 101 (i) defines a "United States person" to include a citizen
of the United States, a permanent resident alien, an unincorporated
association of which a substantial number of its members are citizens
of the U.S. or permanent resident aliens, or a corporation incorporated
in the United States. However, unincorporated associations or cor-
porations which are "foreign. powers," as defined in section 101(a) (1)-
(3), cannot be "United States persons," no matter what their mem-
bership or place of incorporation.
The bill is designed to afford primary protection to "United States
persons." Thus, minimization is only required with respect to infor-
mation concerning U.S. persons; only when U.S. persons are targeted
does a judge review the Executive certification, see section 105 (a) (5) ;
the definition of "foreign intelligence information" is much broader
where non-U.S. persons are involved ; and surveillance of international
communications is generally only within the. definition of "electronic
surveillance" if a "United States person" is the target, see section
101(f) (1). Under II.R. 7308, as introduced, however, associations and
corporations which would otherwise be within the definition of "United
States person" and entitled to the consequent protections were ex-
cluded from the definition if they were within the definition of "foreign
power." The committee has amended the definition of "United States
person" so as to exclude associations or corporations, which would
otherwise be United States persons, only if they are also within the
first three subdefinitions of "foreign power," see section 101 (a) (1) - (3).
The effect of this change is to treat as "United States persons" groups
allegedly engacred in international terrorism, see section 101 (a) (4),
and entities allegedly covertly directed and controlled by a foreign
government or governments, see section 101 (a) (6), if they are sub-
stantially composed of U.S. citizens or permanent resident aliens or
incorporated in the United States, and foreign-based political orga-
nizations if they are incorporated in the United States. This change
does not in any way prohibit surveillance of such associations or cor-
porations if they meet the definition of "foreign power." What it does
is assure that the intentional surveillance of the international com-
munications of such entities in the United States, by intentionally tar-
geting them, will require a court under the bill and a judicial deter-
mination that the entity is in fact a "foreign power." Absent this
change, intelligence agencies would be free to target the international
communications of any entity they felt was a "foreign power;" there
would be no requirement for minimization; and no judicial determina-
tion or review of anything-because the activity would not be regu-
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fated by the bill at all. Such an exclusion from the bill would create
potential for abuse, because large numbers of U.S. corporations or
dissident groups could be targeted in their international communica-
tions without any judicial oversight and without any minimization of
information concerning U.S. citizens, whether connected with the
targeted entity or not.
This change in the definition of "United States person" also has an
important effect where a U.S. corporation or an association substan-
tially composed of Americans is targeted for surveillance under the bill
as a "foreign power" as defined in section 101(a) (4)-(6). Under
H.R. 7308, as introduced, a warrant would be required for surveillance
of other than international communications, but the executive certifi-
cation would only need to assert that the information sought "related
to" broad national security or foreign relations concerns, and the judge
would not be able to review that certification at all. 'This change would
require in these circumstances that the executive certification assert
that the information. is "necessary" to the national security or foreign
relations concerns, and would require that the judge review that cer-
tification on a "clearly erroneous" basis. This is critical where the tar-
get of a surveillance is "an entity directed and controlled by a foreign
government or governments," see section 101 (a) (6). Such an entity
may be entirely composed of U.S. citizens; it may also be engaged in
totally lawful and proper activities. The committee has been persuaded
that there may be a legitimate need for surveillance of such an entity
where it is directed and controlled by a foreign government or govern-
ments, but the committee feels that this non-criminal standard can only
be supported so long as such entities, which are either incorporated in
the United States or substantially composed of U.S. citizens or per-
manent resident aliens, are treated as United States persons. The added
scrutiny that results from a certification that the information is
"necessary" and judicial review of the certification is the minimum
which the committee feels can justify such a broad targeting standard
with respect to an entity composed of Americans or incorporated in the
United States.
Finally, this change also mandates that information concerning
entities which are incorporated in the U.S. or which are substantially
composed of Americans be subject to minimization even if the entities
also might be foreign powers, as defined in section 101 (a) (4)-(6).
Under H.R. 7308, as introduced, U.S. citizens and permanent resident
aliens who might be members of such entities would be protected by
minimization but the entities would not. Where a judge has approved
the targeting of such an entity and reviewed the executive certification
that the information sought is necessary, it is not expected that much
minimization would be required as to the entity. For instance, if a
group of Americans is a group engaged in international terrorism, it is
expected that almost all information about the group would be "neces-
sary" to the United States to protect against international terrorism.
However, a domestic political group might be found by a judge to be
covertly directed and controlled by a foreign government, and infor-
mation concerning that direction and control might be found necessary
to protect the United States against clandestine intelligence activities.
But that entity might also engage in legitimate political activities not
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relating to the foreign government's direction and control. In such a
circumstance the committee believes minimization is both appropriate
and important.
The committee does not believe the special protections afforded
U.S. persons are appropriate, where an association or corporation is a
"foreign: power" as defined in section 101(a) (1) - (3). The entities cov-
ered by these subdefinitions are not subject to much doubt. They are
all "official" foreign powers more likely than not flying a foreign flag
outside their door. Thus, there is little opportunity for error or abuse
by intelligence agencies.
The term "unincorporated association" in the definition of "United
States person" is meant to include any group, entity, or organization
which is not incorporated under the laws of the United States or of
any State. The term "members" here, as opposed to its use in section
101(b) (1) (A), is not intended, of course, to be limited to formal,
card-carrying members. For instance, an unincorporated commercial
establishment's employees would be members under this definition.
The committee intends the reference to "a substantial number of mem-
bers" to be equivalent to the term "substantially composed of" used
in parts (2) and (5) of the definition of "foreign power." In both con-
texts the words "substantial" or "substantially" require that there be
a significant proportion, but less than a majority. The judge is ex-
pected to take all the known circumstances into account in determining
whether an association is a "United States person."
(j) United States
Section 101(j) defines the term "United States" when it is used in
a geographic sense, see section 101(f). As defined, the United States
includes all areas under the territorial sovereignty of the United
States whether incorporated or not, e.g., Puerto Rico, Guam, the
Virgin Islands, and American Samoa. The Trust Territory of the
Pacific Islands is not, at this time, under the territorial sovereignty of
the United States. It is, however, included in the term "United States"
for purposes of this bill, so long as it is under the trusteeship of the
United States. As trustee for the people of these islands, the United
States has a duty to include those islands under the umbrella of the
protections afforded the rest of the United States. Revelations of
CIA electronic surveillance activities in Micronesia make such a duty
all the more important. At such time as all or part of the Trust Ter-
ritory enters into a Commonwealth relationship with the United
States, it is intended that any such part be considered under the ter-
ritorial sovereignty of the United States. If the trusteeship is ended
with parts or all of the islands becoming independent, this bill would
not apply to those parts.
The term "territorial sovereignty" in the definition does not include
U.S. embassies, consulates, military or other U.S. flag vessels outside
the United States, etc.; it does include land in the United States occu-
pied by foreign embassies, consulates, missions, etc. Despite the fact
that foreign missions are sometimes referred to as being "extrater-
ritorial," all nations maintain territorial sovereignty over foreign
missions and may expel, as persona non grata, persons therein and
condemn the property by right of eminent domain. Military bases and
areas under military occupation abroad (e.g. the United States sector
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in Nest Berlin) are not under the territorial sovereignty of the
United States.
In the bill terms such as "foreign-based" and "foreign territory"
refer to places outside the "United States," as defined here.
(76) Aggrieved person
Section 101(k) defines the term "aggrieved person" as a person who
has been the target of an electronic surveillance or any other person
who, although not a target, has been incidentally subjected to electronic
surveillance. As defined, the term is intended to be coextensive, but no
broader than, those persons who have standing to' raise claims under
the Fourth Amendment with respect to electronic surveillance. See
Alderman v. United States, 394 U.S. 316 (1968).
The term specifically does not include persons, not parties to a com-
munication, who may be mentioned or talked about by others. The
Supreme Court has specifically held in Alderman that such persons
have no fourth amendment privacy right in communications about
them which the Government may intercept. While under this bill mini-
mization procedures require minimization of communications about
U.S. persons, even though they are not parties to the communication,
there is no intent to create a statutory right in such persons which
they may enforce. Suppression of relevant criminal evidence and civil
suit are particularly inappropriate tools to insure compliance with this
part of minimization. Review by judges pursuant to section 105(d),
Executive oversight and congressional oversight by the Senate and
House Intelligence Committees are intended to be the exclusive means
by which compliance with minimization procedures governing minimi
zation of "mentions of" U.S. persons is to be monitored under this or
any other law.
(1) Wire communication
Section 101 (1) defines "wire communication" to mean any commu-
nication (whether oral, verbal, or otherwise) while it is being carried
by a wire, cable, or other like connection furnished or operated by a
communications common carrier. This definition of wire communica-
tion differs from the definition of the same term in chapter 119 of title
1S, United States Code. There the term is defined to include any
communication carried in whole or in part by a wire furnished by a
common carrier. This has led to anomalous results such as where a
woman listening to an ordinary FM radio has intercepted radio-tele-
phone communications and thereby technically violated chapter 119.
See United States v. Hall, 488 F. 2d 193 (9th Cir. 1973). Also, ordi-
nary marine band communications, which do not have a 'reasonable
expectation of privacy or require a warrant for law enforcement in-
terception, can be "patched into" telephone systems, becoming a "wire
communication" under chapter 119.
The definition here makes clear that communications are "wire
communications" under the bill only while they are carried by a wire
furnished or operated by a common carrier. The term "common car-
rier" means a U.S. common carrier and not a common carrier in a
foreign country. Moreover, the word "furnished" means furnished
in the ordinary course of the common carrier's provision of communi-
cations facilities. It does not refer to equipment sold outright to a
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person. The effect of this is to require a tap on the wire, an induction
coil or like device to acquire the communication from the wire fur-
nished by the common carrier for the activity to be electronic sur-
veillance under section 101(f) (2). Interception of microwave commu-
nications carried by common carriers, by intercepting the radio signal,
is electronic surveillance under .section 101(f) (3) , not section 101(f )
(2), involving acquisition of a radio communication, not a wire com-
inunication. A radio signal is not within the term, a "like connection,"
in this definition.
(m) Person
Section 101(m) defines "person" in the broadest sense possible. It
is intended to make explicit that entities can be persons, where the
term "person" is used. For example, while it is expected that most
entities would be targeted under the "foreign power" standard (which
cannot be applied to individuals), it is possible that entities could be
targeted under certain of the "agent of a foreign power" standards,
see section 101(b) (2) (A)-(D). Where it is intended that only natural
persons are referred to, the term "individual" U.S., person or "indi-
vidual" person is used.
(n) Contents
Section 101(n) defines the term "contents", when used with respect
to any communication, in broad terms. Specifically, it includes any
information concerning the identities of the parties or the existence,
substance, purport, or meaning of a communication. This broad phras-
ing is meant to assure that the scope of the bill is sufficient to protect
legitimate privacy interests. Inasmuch as three of the four subdefini-
tions of electronic surveillance, which in fact define the coverage of
the bill, turn on the acquisition of "contents" it is necessary to assure
that devices such as pen registers are included.
In a recent decision,32 the Supreme Court suggested that a pen
register did not acquire "contents" of a "wire communication" as those
terms are defined in chapter 119 of title 18, United States Code.33 It is
the intent of this committee that pen registers do acquire "contents" of
"wire communications" as those terms are defined in this bill. The term
"contents" specifically mentions the identity of parties and "identity"
includes a person's phone number, which can as effectively identify
him as the mention of his name. Moreover, the definition of "contents"
includes information concerning the "existence" of a communication.
When a person dials another person's telephone number, whether or
not the other person answers the phone, this is a communication under
this bill. This is especially true in the intelligence, field where signals to
a spy may be conveyed merely by having the phone ring a designated
number of times. The fact that the target of the pen registers has at-
tempted to, communicate with another person at a particular phone is
information concerning the "existence" of the communication.
Of course, acquiring knowledge of the "existence" of communica-
tions in general, as opposed to acquiring knowledge of the "existence"
of a particular communication or communications is not within the
32 United States V. N.Y. Telephone Co., - U.S. - (1977).
33 This adpect of the decision seems fratuitous because the Court noted that pen registers
do not result in the "aural acquisition' of anything, which would be required, to bring them
under chapter 119.
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term "contents." For example, acquiring knowledge that a common
carrier microwave channel is in use establishes that communications
"exist" on the channel but, absent any other knowledge about those
communications, this would not be acquisition of "contents".
Because a major purpose of the bi]1 is to protect privacy, nothing in
the definition of "contents" is intended to preclude the retention of
technical information for collection avoidance purposes. This is not
inconsistent with the definition of "contents," which is intended to
mean any information which may invade the privacy of a person's
communications. Where information concerning the existence of com-
munications generally, and not with respect to any particular person
or group of persons or to any subject matter, is used to protect the
privacy of persons' particular communications by avoiding, for ex
ample, certain radio frequencies, this furthers the privacy protec-
tions of the bill.
Section 102
Subsection (a) of this section authorizes the President, acting
through the Attorney General, to approve electronic. surveillances for
foreign intelligence purposes without a judicial warrant in certain
circumstances. As introduced, H.R. 7308 required a judicial warrant
for all electronic surveillances to gather foreign intelligence. In part
IV of the Committee's General Statement, supra, it was noted that the
issue of judicial involvement in foreign intelligence surveillances was
hotly debated within the committee. Some members agreed with the
approach of the bill as introduced, that a warrant should be required
across-the-board. Others felt that a judge should never be involved.
The consensus, however, was that a judicial warrant should be re-
quired whenever the fourth amendment rights of Americans might be
involved. Based on testimony taken in closed session, the committee
determined that there was a class of surveillances, otherwise within
the scope of the bill, where there was little or no likelihood that
Americans' fourth amendment rights would be involved in any way.
The committee also determined that this class of surveillances included
some of the most sensitive surveillances which this Government con-
ducts in the United States. The extreme sensitivity of those surveil-
lances plus the fact that Americans are not involved led the com-
mittee to the decision that in this narrow class of. surveillances the
dangers posed to the security of these surveillances by a judicial war-
rant requirement were not outweighed by any competing interest
of protecting the rights of Americans, because Americans were not
involved. The balance was a close one, however, because other meas-
ures could minimize the dangers posed to security, while exemptions
from the warrant requirement theoretically could provide a loop-hole
for abuse. Accordingly, the committee has been careful to hedge this
exemption from the warrant requirement with a number of strictures
designed to preclude abuse, see for example, section 101 (h) (4).
As was noted in part IV of the General Statement, the fact that a
warrant is not required in this limited class of surveillances does not
suggest congressional ratification or acknowledgement of an inherent
Presidential power in the absence of legislation to conduct electronic
surveillances for foreign intelligence purposes without a court order.
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The authority of the President to authorize electronic surveillances
without a court order in the limited class of surveillances covered
by subsection (a) of this section does not derive from his powers
under Article II of the Constitution, but rather from the legislation
itself. The committee is of the opinion that, even if this class of sur-
veillances involves any person's fourth amendment rights at all,34 it is
within the power of Congress to legislate a reasonable procedure for
such surveillances which does not require a judicial warrant. See,
e.g., United States v. Riswell, 406 U.S. 311 (1972) ; Collonade Cater-
ing Corp. v. United States, 397 U.S. 72 (1970).
Paragraph (1) of subsection (a) states that the President, through
the Attorney General, may authorize electronic surveillance to gather
foreign intelligence information without a court order under certain
circumstances. It is intended that the President delegate to the Attor-
ney General the day-to-day authority to approve these surveillances
according to procedures adopted by the President and consistent
with this bill. No particular surveillance authorized pursuant to this
paragraph may continue for a period longer than 1 year without
being reapproved by the Attorney General acting under the Presi-
dent's authorization.
To insure that only the limited class of surveillances which were
brought to the attention of this committee would be authorized with-
out a, warrant, the Attorney General is required to certify in writing
under oath with respect to each separate surveillance that it is solely
directed at one of two different objectives. The first objective is
communications exclusively between or among foreign powers as
defined in section 101(a) (1), (2), or (3). The second objective is
the acquisition of technical intelligence from property or premises
under the open and exclusive, control of a foreign power as defined
in section 101(a) (1), (2), or (3). Because of the sensitive nature
of these operations, the committee cannot elaborate upon the activities
covered by paragraph (1) (A) of subsection (a). Through the over-
sight required by section 108 of the bill, the committee will insure
that the activities conducted under subsection (a) without a warrant
will be limited to those. intended.
Parargraph (1) (B) requires the Attorney General to certify that the
minimization procedures governing these surveillances meet the defi-
nition of "minimization procedures" in section 101(h). These proce-
dures must require the destruction of any communications to which
United States persons are parties and m.ust forbid the use or disclo-
sure of such communications, unless a court order is obtained for the
surveillance or the Attorney General determines that a person's life or
physical .safety is endangered. See section 101 (h) (4). As noted above,
as a practical. matter Americans' fourth amendment rights are not
involved in these surveillances, but to make certain that this remains
the case, this destruction requirement is made. This arrangement en-
sures that whenever Americans' fourth amendment rights may be in-
volved, a court order will be required.
' By letter of April 18, 1978, the Department of Justice responded to the committee's
questions by opining that foreign states and their official agents, to the extent that they
are not subject to our laws, are not protected by the Pourth Amendment. Letter from John
Harmon, Assistant Attorney General, Office Legal Counsel, to Chairman Boland.
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70
As a further protection, paragraph (1) requires that the proposed
minimization procedures be forwarded to the Senate and House intel-
ligence committees at least 30 days prior to their going in effect, unless
an emergency requires their immediate effect.
Paragraph (2) makes clear that surveillance authorized under this
subsection without a warrant must be conducted in accordance with
the Attorney General's certification and the minimization procedures
approved by him. An intentional violation of this requirement would
be subject to criminal penalty, see section 109.
Paragraph (3) provides for the Attorney General to direct a. speci-
fied communication common carrier to render assistance so as to enable
the surveillance to be successfully conducted. It parallels a like pro-
vision in chapter 119 with respect to law enforcement surveillances,
see 18 U.S.C. ? 2518 (4), and in section 105 (b) (2) of H.R. 7308 with
respect to court ordered surveillances under the bill.
Subsection (b) of section 102 authorizes submission of applications
to the special court (established by section 103) for an order approv-
ing the use of electronic surveillance under this title. Applications may
be submitted only if the President has, by prior written authorization,
empowered the Attorney General to approve the submission. This
section does not require the President to authorize each specific appli-
cation. He may authorize the Attorney General generally to seek appli-
cations under this title or upon such terms and conidtions as the
President wishes, so long as the terms and conditions are consistent
with this title. The reference to Presidential authorization does not
mean that the President has independent, or "inherent," authority to
authorize electronic surveillance in any way contrary to the provisions
of H.R. 7308. The procedures of this bill are the exclusive means by
which electronic surveillance, as defined in section 101(f), may be
conducted.
Subsection (b) also authorizes a judge to whom an application is
made to grant an order for electronic surveillance, "notwithstanding
any other law." Administration witnesses testified that, in their view,
the activities authorized by the bill are not prohibited by the Vienna.
Convention on Diplomatic Relations. The committee is of the same
view. It is recognized, however, that this view is one about which
reasonable persons may harbor some doubt. Therefore, the "notwith-
st,anding any other law" language is intended to make clear that, not-
withstanding the Vienna Convention, the activities authorized by this
bill may be conducted.
The `"notwithstanding any other law" wording also deals with the
contention that 28 U.S.C. section 1251, which grants the Supreme
Court exclusive original jurisdiction over all actions against am-
bassadors of foreign states, would prevent a lower court from ap-
proving a surveillance directed. at a foreign ambassador.
Subsection (b) however, makes clear that the special court does not
have jurisdiction to grant orders under the circumstances described in
subsection (a), unless some United States person's communication
may be involved. Again, unless some United States person's com-
munications may be involved, the Committee has determined that the
balance between security and civil liberties mandates that there be no
prior judicial involvement in this limited class of sensitive surveil-
lances.
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il.
Section' 103
Section 103 is a major revision of the bill's provision dealing with
selection of judges who will hear applications for electronic surveil-
lance orders. Under H.R. 7308, as introduced, seven district court
judges selected by the, Chief Justice would exercise, nationwide
jurisdiction to hear such application and three other Federal judges,
similarly selected, would review denials of applications.
Subsection (a) would establish a special court with nationwide
jurisdiction composed of at least one judge from each of the eleven
judicial circuits nominated by the chief judges of the circuits and des-
ignated by the Chief Justice. The court would sit continuously in the
District of Columbia to hear applications for electronic surveillances
and exercise the duties assigned to it 1 by section 106 (f) .
The creation of a special court was recommended by the General
Counsel of the Administrative Office of the U.S. Courts to eliminate
the jurisdictional question posed by allowing an individual Federal
judge to exercise authority extending beyond his or her district. Staff-
ing of the court with at least one judge from each circuit will provide
geographical diversity, and bringing the chief judges into the selec-
tion process will promote ideological balance. Requiring the special
court to sit continuously in the District of Columbia will facilitate
necessary security procedures and, by ensuring that at least one judge
is always available, will ensure speedy access to it by the Attorney
General when timeliness is essential for intelligence purposes. ThP
committee anticipates that only one or two judges would be in Wash-
ington, on a rotating basis, at any given time. Such a procedure would
minimize judge shopping and would. make it unlikely that an applin. -
tion for the extension of an order would be heard by the same judge
who granted the original order.
Subsection (b) establishes a special court of appeals to be com-
posed of six judges drawn. from Federal courts in the vicinity of the
District of Columbia who would be nominated by the chief judges
of such courts and designated by the Chief Justice. The. court would
hear appeals from the special court; and perform the duties assignedl
to it by section 106 (g). Any three of the judges would constitute a
panel for such purposes.
The committee has provided for six judges in order to insure that
a panel of three will always be available. There is no requirement
that the special court of appeals sit continuously as it is anticipated
that the exercise of its functions will be rare. When it must act, how-
ever, the proximity of the judges to the District of Columbia will
enable the court to convene quickly.
Subsection (e) provides for 6-year terms for the judges of both
courts, with the terms of the judges initially designated to be stag-
gered. A judge may only serve two full terms.
Subsection (d) requires the chief judges of each of the special
courts, in consultation with the Attorney General and the Director of
Central Intelligence, to establish a wide range of security measures
to protect information submitted to or produced by the courts from
unauthorized disclosure. I-I.11. 7308, as introduced, required non-spe-
cific security measures, applicable only to the "record of proceedings".
The committee's expansion of this provision reflects its concern for
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the sensitivity of the intelligence information involved. Thus, con-
sistent with the dictates of judicial independence, the committee an-
ticipates that the document, physical, personnel, and communications
security measures established by the chief judges 35 will meet the
legitimate needs of the intelligence agencies.
The security provisions could include the use of executive branch
personnel to perform the duties normally exercised by a court's own
reporter, stenographer, or bailiff-measures suggested by the Court
in the Keith case 3o and by the General Counsel of the Administrative
Office of the United States Courts.,'
Such provisions could also provide that responsibility for the stor-
age of documents be undertaken by the executive branch on behalf
of the court, a measure also suggested by Mr. Imlay.
Subsection (e) provides that a judge of the special court who denies
an application for electronic surveillance shall record the reasons for
the denial, and, upon the motion of the Government, transfer the rea-
sons to the special court of appeals. Appeal to the special court of
appeals is intended to be the exclusive means by which the Govern
ment can further pursue an application that has been denied by a
judge of the special court. If, however, the Government discovers new
information on which to base a new application against the same
target, it may file a new application with the special court.
Subsection (f) provides that a decision of the special court of
appeals shall be subject to review by the Supreme Court in the same
manner as a judgment of a U.S. Court of Appeals as provided in 28
V.S.C. section 1254. The 'Supreme Court would be authorized to
adopt special security procedures.
Subsection (g) relates to certain housekeeping details of the special
courts. Specifically, it authorizes the chief judges of the special courts
to designate officers or employees of the executive or judicial branches
to serve as employees of the special courts. The committee, believes
that the work of the special courts will be of small magnitude and
irregular so that there will be no need for full-time employees of the
special courts. Rather designated personnel can be called upon from
time to time. This subsection also authorizes the chief judges to pro-
mulgate necessary rules or administrative procedures, for example,
relating to rotation of judges. The funds necessary to the special
courts, which primarily should be the travel and per diem expenses
of the judges, are to be drawn from Department of Justice appropri-
ations. No change is intended with respect to what entities pay the
salaries of judges and personnel designated to serve on the special
courts. Finally, the Department of Justice should offer such fiscal
and administrative services to the special courts as necessary, filling
the role of the Administrative Office of U.S. Courts with respect to
the special courts.
vs The eommittee hag designated the chief judges, rather than the Chief Justice as in
U.R. 7308. as introduced, to establish the security measures to comport with the panel
practice of iudicial administration, The Chief Justice does not establish rules for Federal
courts. See footnote 37.
.90 "Whatever security dangers clerical and secretarial personnel may pose can be mini-
mized by proper adminLsirative measures, nossibly to the point of allowing the Government
itself to provide the necessary clerical assistance." United States v. United States District
Court, 407 U.S. 297. 323 (1972).
.17 Testimony of Carl H. Imlay, General Counsel. Administrative Office or the U.S. Courts,
before the Subcommittee on Legislation of the House Permanent Select Committee on In-
telligence, January 10, 1978.
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Section 104
This section is patterned after 18 U.S.C. section 2518 (1) and (2)
and specifies what information must be included in the application for
a court order. Applications must be made, by a Federal officer in writ-
ing and under oath or affirmation. If the officer making the applica-
tion is unable to verify the accuracy of the, information or representa-
tions upon which the application is based, the application should
include affidavits by other officers who are able to provide such personal
verification. Thus, for example, if the applicant was an attorney in
the Department of Justice who had not personally gathered the infor-
mation contained in the application, it would be necessary that the
application also contain an affidavit by an officer personally attesting
to the status and reliability of any informants or other covert sources
of information. By this means the source of all information contained
in the application and its accuracy will have been sworn to by a named
official of the U.S. Government and a chain of responsibility estab-
lished for judicial review.
Each application must be approved by the Attorney General, who
may grant such approval if he finds that the appropriate procedures
have been followed. The Attorney General's written approval must
indicate his belief that the facts and circumstances relied upon for the
application would justify it judicial finding of probable cause that the
target is a foreign power or an agent of a foreign power and that the
facilities or place at which the electronic surveillance, is directed are
being used, or about to be used, by 'a foreign power or an agent of a
foreign power, and that all other statutory criteria have been met. In
addition, the Attorney General must personally be satisfied that the
certification has been made pursuant to statutory requirements.
Paragraph (1) of subsection (a.) requires that the application iden-
tify the Federal officer making the application; that is, the name of
the person who actually presents the application to the judge.
Paragraph (2) requires that the application contain evidence of the
authority to make this application. This would consist of the Presi-
dential authorization to the Attorney General and the Attorney Gen-
eral's approval of the particular application.
Paragraph (3) requires the identity, if known, or description of
the person who is the target of the electronic surveillance. The words
"if known" were not in H.R. 7308, as introduced, and the question
was raised whether, if the Government knew the identity of the tar-
get of the surveillance, it was required to identify him. To make clear
that such was required, the committee added the words "if known".
The word "person" is used in its juridical. sense to mean the individual
or entity that is the target of the surveillance.
The word "target" is nowhere defined in the bill although. it is a key
term because the standards to be applied differ depending on whom
or what is targeted. The. committee intends that the target of a sur-
veillance is the individual or entity about whom or from whom infor-
ination is sought. In most cases this would be the person or entity at
whom the surveillance is physically directed, see section 104(a) (4)
(13), infra, but this is not necessarily so.
Generally, under the bill, targeting foreign powers may be accom-
plished on a less strict basis than targeting agents of foreign powers..
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74
An individual, of course, cannot be a foreign power, only an agent of
a foreign: power. Therefore, if a surveillance is to be directed at an
individual about whom information is sought, that individual is the
target and must be shown to be an "agent of a foreign power." Where
two or three individuals are associated with one another, it might be
argued that they are an "association" or an "entity," which, if the
proper showing is made could be considered a "foreign power." as This
does not mean, however, that each of these individuals can then be
individually surveilled merely upon a showing that together they
are a "foreign power." Rather, to surveil each individually would
require showing that each was an "agent of a foreign power," with its
higher standard.
Often, however, associations or entities will act or communicate in
a "corporate" capacity, as distinguished from the acts or communica-
tions of an individual in the association or entity. For example, cor-
porations lease phones, enter into contracts, communicate, and other-
wise act as an. entity distinct from the individuals therein. The fact
that an individual officer or employee, acting in his official capacity,
may sign the contract or communicate with a client on behalf of the
corporation does not vitiate the fact that it is the corporation rather
than the individual who is acting or communicating. Thus, it is possible
to target a "foreign power" in such circumstances. For instance, a cor-
poration may lease a phone, line and install a switchboard, or otherwise
route the call within the organization. Assuming the corporation was
It "foreign power" and the Government was seeking foreign intelli-
gence information about the corporation itself, it could obtain an
order naming the corporation as the target of a surveillance involving
a wiretap of that corporation's telephone line. The committee also con-
templates that it will be possible under the bill to target a "foreign:
power", in certain rare cases, where the facility targeted, while leased
to or under the control of the entity, is in fact dedicated to the use of
one particular member of the entity, for instance, where there is no
switchboard but each officer has his own line with its own number.
Again, however, in order to justify the target as a "foreign power"
rather than as an "agent of a foreign power," the information sought
must be concerning the entity, not the individual.
The judge in considering the application, wherever the Government
claims the target is a "foreign power," and especially where U.S.
persons are members, officers, or employees of the "foreign power,"
must scrutinize the description of the information sought, and the
communications to be subjected to the surveillance, see section 104
(a) (6), infra, to determine whether the target is really the "foreign
power" or rather an "agent of a foreign power." The judge must
also closely scrutinize the minimization procedures to assure that
where the target is a "foreign power," that individual U.S. persons
who may be members or employees of the power are properly pro-
tected. In most cases it would seem possible., where a "foreign power"
is the target, that individual U.S. persons who are members or em-
ployees could be protected by deleting their identities from information
retained or disseminated.
"This would especially be true if the individuals engaged in "international terrorism"
and thereby might be a group engaged in international terrorism which is a defined "for-
eign power."
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!5
Paragraph (4) of section 104 (a) requires a statement of the facts
and circumstances justifying the applicant's belief that the target
of the. electronic surveillance is a foreign power or an agent of a for-
eign power and that each of the facilities or places at which the
surveillance is directed is being used or is about to be used by that
power or agent. These requirements generally parallel existing law
on surveillances for law enforcement purposes (18 U.S.C. 2518(1) (b)
(ii) and (iv) ).
Paragraph (5) requires a statement of the proposed minimization
procedures. The statement of procedures required under this para-
graph should be full and complete and normally subject to close
judicial review.
It is the intention of the committee that minimization procedures
be as uniform as possible for similar surveillances. The committee
recognizes that certain types of surveillance operations may involve
essentially identical concerns with respect to protecting U.S. persons'
rights. This makes possible the adoption of -uniform minimization
procedures for essentially identical surveillance operations. The ap-
plication of uniform procedures to identical surveillances will result
in a more consistent implementation of the procedures, will result in
an improved capability to assure compliance with the procedures,
and ultimately means a higher level of protection for the rights of
U.S. persons.
Paragraph (6) calls for a factual description of the nature of the
information sought by the electronic surveillance and the type of com-
munications or activities to be subjected to the surveillance. The
description should be as specific as possible and sufficiently detailed
so as to state clearly what sorts of information the Government seeks.
A simple designation of which subdefinition of "foreign intelligence
information" is involved will not suffice. In addition, the description
should-detail what type of communications and activities will be both
intentionally and likely to be incidentally subjected to surveillance.
Such specifics are necessary if the judge is meaningfully to assess the
sufficiency and appropriateness of the minimization procedures.
Paragraph (7) requires a certification or certifications by the As-
sistant to the President for National Security Affairs or by another
appropriate executive official appointed by the President with the ad-
vice and consent of the Senate. The certification would be made by an
official having responsibility in the area of national security or foreign
relations-if not the Assistant to the President, then normally the Di-
rector of Central Intelligence, the Director of the Federal Bureau of
Investigation, the Secretary of Defense or such other officer, appointed
with the advice and consent of the Senate, who has the appropriate
knowledge to make the certification.
The possibility of additional certification is provided to insure that,
a detailed and complete certification is presented to the judge. The
judge may, of course, require the applicant to furnish further infor-
mation regarding the basis for the certification. See subsection (d).
and section 105 (a) (5) , infra. tile 'he certification
ought to be foreignlintelligence information, that the pit
formations b
pose of the surveillance is to obtain foreign intelligence information,
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and that such information cannot feasibly be obtained by normal in-
vestigative techniques. It shall include a designation what type of for-
eign intelligence information is sought and a reasoned statement of
the basis for certifying that the information sought is foreign intelli-
gence information and that such information cannot feasibly be ob-
tained by other investigative techniques.
The requirement that the information sought be deemed "foreign
intelligence information" is designed to insure that a high-level official
with responsibility in the area of national security will review and ex-
plain the executive branch determination that the information sought
is in fact foreign intelligence information. The requirement that this
judgment be explained is to insure that those making certifications
consider carefully the cases before them and avoid the temptation
simply to sign off on, certifications that consist largely of boilerplate
la.nguiage. The committee does not intend that the explanations be
vague generalizations or standardized assertions. The designated offi-
cial must similarly explain that the purpose of the surveillance is to
obtain the described foreign intelligence information. This require-
ment is designed to prevent the practice of targeting, for example, a
foreign power for electronic surveillance when the true purpose of the
surveillance is to gather information about an individual for other
than foreign intelligence purposes. It is also designed to make explicit
that the sole purpose of such surveillance is to secure "foreign intelli-
gence information", as defined, and not to obtain some other type of
information. The. designated official must similarly explain in his affi-
(lavit why the information cannot be obtained through less intrusive
techniques. This requirement is particularly important in those cases
when U.S. citizens or resident aliens are the target of the surveillance.
Paragraph (8) requires the application to contain a statement of
the means by which the surveillance will be. effected. This statement
should be as detailed and specific as possible in light of the need for
the judge in his order to specify what activities and techniques are in
fact authorized. For instance., where physical entry will be required,
the application should so state indicating generally the circumstances
involved.
Paragraph (9) parallels 18 U.S.C. 2518(1) (e) and requires a state-
ment concerning all previous applications dealing with the same per-
sons, facilities, or places, and the disposition of each such previous
application.
Paragraph (10) parallels 18 U.S.C. 2518(1) (d) and requires a
statement as to the period of time for which the surveillance is neces-
sary. If the surveillance order is not to terminate automatically when
the particular information sought has been obtained, the applicant
must provide facts supporting his belief that additional information
of the same type will be obtained thereafter. The committee recog-
nizes that it will be a rare case where the surveillance should termi-
nate upon obtaining a specific set of information. Ordinarily, the
information sought will not be of a type that at a given time all of it
can be said to have been obtained.
Paragraph (11) was not in H.R. 7308, as introduced. The com-
mittee added it in the belief that the judge could not adequately assess
the minimization procedures and assure himself that persons other
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than the target identified in paragraph (3) are not in fact targets
of the surveillance without a knowledge, of the breadth and scope of
the surveillance. For instance, one surveillance under the bill could
authorize several devices or different kinds of devices placed in or
directed against various different locations, all directed at the same
target. Where this occurs? the judge must indeed be witting of the
scope of the privacy invasion involved in order to assess properly the
minimization procedures. If there are different procedures or different
devices, he must also know which minimization procedures are to
apply to which devices so that the order can make that clear.
As introduced, H.R. 7308's application and order requirements were
divided into two separable categories, one where "foreign powers" as
defined in section 101 (a) (1) - (3) were the target and one where any
other foreign power or any agent of a foreign power was the target.
In cases involving the former category, the information provided the,
judge in the apprication and the information contained in the order
were considerably abbreviated. The administration's justification for
this distinction was that with respect to the "official" foreign powers
in section 101(a) (1)-(3) the surveillances were much more sensitive
and privacy concerns were not as great.
The committee subjected this justification to searching scrutiny.
What the committee learned was that not all surveillances targeted
against these "official" foreign powers were equally sensitive. Moreover.,
it learned that in many cases, despite the fact that the target of the
surveillance was rightfully an "official" foreign power, the communi-
cations of U.S. persons generally were expected to be intercepted and
that these communications were in many cases in fact sought, retained,
and used. The committee is convinced that in many of these cases the
acquisition, retention, dissemination, or use of such U.S. persons' com-
munications is proper and justified. However, the committee recog-
nized that given the limited information present in the application
where "official" foreign powers were the target, the judge would not
be able to have sufficient knowledge to insure that the minimization
procedures adequately protected innocent U.S. persons whose com-
munications would be intercepted.
In order to protect those surveillances which are of the utmost sen-
sitivity, while at the same time insuring that when U.S. persons com-
munications are involved the judge has sufficient information to make
his review of minimization procedures meaningful, the committee
further divided the category of surveillances targeted against "official"
foreign dowers into two subcategories--those in which U.S. person
communications are likely to occur and where they may be retained and
used, and those in which U.S. person communications are unlikely, and
in any event will not be retained or used. The latter category, as ex-
plained supra, will not require a judicial warrant at all. In the first
category, however, because U.S. persons will be involved, more infor-
mation will be required to be given to the judge than was provided in
H.R. 7308, as introduced, when "official" foreign powers were the
target.
While section 104(a) delineates what must be in an application
whenever the target of the surveillance is an "agent of a foreign
power" or a "foreign power", as defined in section 101(a) (4), (5), or
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(6), Section 104(b) applies only when the target of the surveillance
is a "foreign power", as defined in section 101(a) (1), (2), or (3), and
each of the facilities or places at which the surveillance is directed
is owned, leased, or exclusively used by that foreign power.In these
circumstances, under section 104(b), the application need not contain:
the detailed description of the information sought and the type of
communications or activities to be subjected to the surveillance; the
statement of the basis for the Executive certification that the informa-
tion sought is the type of foreign intelligence information designated
and that the information cannot be reasonably "obtained. by normal
techniques; the statement of the means by which the surveillance will
be effected; or the information required where more than one device
is involved. Instead, under section 104(b), the application must con-
tain such information about the surveillance techniques and com-
munications or other information concerning U.S. persons likely to
be obtained as may be necessary for the judge to assess the, proposed
minimization procedures. This insures that despite the lack of
information otherwise required by subsection . (a) for these' surveil-
lances, the judge will be provided with sufficient information to be
able to fully assess the proposed minimization procedures. At the same
time this provision protects the security of very sensitive information.
Subsection (c) of section 104 allows the Attorney General to. require
other executive officers to provide information to support the applica-
tion.
Subsection (d) enables the judge to require the applicant to furnish
further information as may. be necessary to make the required deter-
minations. It parallels existing law, 18 U.S.C. 2518(2). Such addi-
tional proffers would, of course, be made part of the record and would
be subject to the security safeguards applied to the application and
order.
Section 105
Subsection (a) of this section is patterned after 18 U.S.C. 2518(3)
and specifies the findings the judge must make before he grants an
order approving the use of electronic surveillance for foreign intel-
ligence purposes. While the issuance of an order is mandatory if the
judge finds that all of the requirements of this section are met, the
judge has the discretionary power to modify the order sought, such
as with regard to the period of authorization (except where the
"official" foreign powers are the target) or the minimization procedures
to be followed.
Modifications in the minimization procedures should take into
account the impact of inconsistent procedures on successful imple-
mentation.
Paragraph (1) of this subsection requires the judge to find that the
President has authorized the Attorney General to approve such
applications.
Paragraph (2) requires the judge to find that the Attorney General
has approved the application being submitted and that the application
has been made by a Federal officer.
Paragraph (3) requires a finding that there is "probable cause" to
believe that the target of the electronic surveillance is a foreign power
or an agent of a foreign power and that each of the facilities or
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places at which the surveillance is directed is being used or is about to
be used by that power or agent.
In determining whether "probable. cause" exists under this. section,
the court should keep in mind that this standard is not the ordinary
"probable cause" that a crime is being committed, applicable to
searches and seizures for law enforcement purposes. Where a U.S. per--
son is believed to be an "agent of a foreign power," for example, there
must be "probable cause" that he is engaged in certain activities, but
the criminality of these activities need not always be demonstrated to
the same degree. The key words--"involve, or may involve"-indicate
that the ordinary criminal probable cause standard does not apply
with respect to the showing of criminality. For example, the activity,
identified by the Government may not yet involve the criminality,,
but if a reasonable person would believe that such activity is likely
to lead to illegal activities, this would suffice. It is not intended that the
Government show probable cause as to each and every element of the
crime likely to be committed.
The determination by the court as to probable cause whether the
person is engaging in certain activities or, for example, whether an,
entity is directed and controlled by a foreign government or govern-
ments, should include consideration of the same aspects of the reliabil-
ity of the Government's information, as is made in. the ordinary crim-
inal context-for example, the reliability of any informant, the cir-
cumstances of the informant's knowledge, the age of the information
relied upon. On the other hand, all of the same strictures with respect
to these matters which have developed in the criminal context may
not be appropriate in the forei n intelligence context. That is, in the
criminal context certain "rules" have developed or may develop for
judging reliability of information. See, for example, Spinelli v. United
States, 393 U.S. 410 (1969). It is not the Committee's intention that
these "rules" necessarily be applied to consideration of probable cause
under this bill. Rather it is the Committee's intent that in judging the
reliability of the information presented by the Government, the court
look to the totality of the information and consider its reliability on a
case-by-case basis.
In. addition, in order to find "probable cause" to believe the subject
of the surveillance is an "agent of a foreign power" under subsection
101(b), the judge must, of course, find that each and every element
of thhat status exists. For example, if a U.S. citizen or resident alien
is alleged to be acting on behalf of a foreign entity, the judge must
first find probable cause to believe that the entity is a "foreign power"
as defined in section 101(a) . There must also be probable cause to
believe the person is acting for or on behalf of that foreign power and
probable cause to believe that the efforts undertaken by the person on
behalf of the foreign power constitute sabotage, international terror-
ism, or clandestine intelligence activities.
Similar findings of probable cause are required for each element
necessary to establish that a U.S. citizen is conspiring with or aid-
ing and abetting someone engaged in sabotage, international terror-
____ - _-----
ism, or ciauue 1 1o --?~.-f-.
Finally, a proviso has been added to paragraph (3) (A) which states
that no U.S. person may be considered a foreign power or an agent
--
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of a foreign power solely upon the basis of activities protected by the
first amendment to the Constitution of the United States. This pro-
vision is intended to reinforce the intent of the committee that lawful
political activities should never be the sole' basis for a finding of prob-
able cause to believe that a U.S. person is a foreign power or an agent
of a foreign power. For example, the advocacy of violence falling
short of indictment is protected by the first amendment, under the
Supreme Court's decision in Brandenburg v. Olio, 395 U.S. 444
(1969). Therefore., the pure advocacy of the commission of terrorist
acts would not, in and of itself, be sufficient to establish probable
cause that an individual or group may be preparing for the commis-
sion of such acts. However, one cannot cloak himself in first amend-
ment immunity by advocacy where he is engaged in clandestine in-
telligence activities, terrorism, or sabotage.
Paragraph (4) requires the judge to find that the procedures de-
scribed in the application to minimize the acquisition, retention, and
dissemination of certain information or communications relating to
U.S. persons fit the definition of minimization procedures. The Com-
mittee contemplates that the court would give these procedures most
careful consideration. If it is not of the opinion that they will be
effective, the procedures should be modified.
'Paragraph (5) requires that the judges find that the application
contain the statements and certifications required by section 104. If
the statements and certifications conform to the requirements of sec-
tion 104 (a) (7), the court is not permitted to substitute, its judgment
for that of the executive branch officials, except where a U.S. per-
son is the target of a sivrveillaice. In such a case, the judge must
review the certifications to determine whether they are clearly erron-
eous. The "clearly erroneous" standard of review is not, of course,
comparable to a probable cause finding by the judge. Nevertheless,
this bill does provide a workable procedure for judicial review (and
possible rejection) of executive branch certifications for surveillances
of U.S. persons.
II.R. 7308, as introduced, has been amended to clarify the point
that the judge may base his review of the certification regarding U.S.
persons not only, on the statement initially submitted to him but also
on any other information required by the judge to be furnished as
necessary for him to determine whether or not the certification is
clearly erroneous, see section 104 (d) supra. The judge must find that
the determination by the certifying official that information sought
concerning a U.S. person is "foreign intelligence information" was not
a clearly erroneous determination.
Despite the fact that the court is not allowed to "look behind" the
certification in cases not involving U.S. persons there are several
checks against the possibility of arbitrary executive action.. First, the
court, not the executive branch, makes the finding whether probable
cause exists that the target of surveillance is a foreign power or its
agent (except under section 102 (a)). Second, the certification proce-
dure assures written accountability within the executive branch for
the decision made to engage in such surveillance. This constitutes an
internal check on executive branch arbitrariness.
Moreover, it should, be noted that if the statement and certification
do not comply fully with section 104(a) (7), they. can and must be
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rejected by the court. Thus, the court could invalidate the certification
if it were not properly signed by the President's designee, did not
designate the type of information sought, or did not state that the
information sought is deemed to be foreign intelligence information,
that the purpose of the surveillance is to obtain foreign intelligence
information, and that such information cannot feasibly be obtained
by normal investigative techniques. Further, if the certification did
not present an explanation of why the information sought is foreign
intelligence information which cannot reasonably be obtained through
normal investigative techniques, the judge could (if the surveillance
was not targeted against a foreign power as defined in section 101
(a) (1), (2), or (3)) reject the application or defer approval until an
:adequate certification was supplied.
Subsection (b) specifies what the order approving the electronic
surveillance must contain. It must include the identity, if known, or
.a description of the person or persons targeted by the electronic sur-
veillance. The order must specify each of thepplaces or facilities against
-which the surveillance is directed. The order must also specify the
type of information sought and the type of communications or activi-
ties to be subjected to the surveillance. These requirements are designed
in light of the Fourth Amendment's requirements that warrants
.describe with particularity and specificity the person, place, and
objects to be searched or seized. The order must, in addition, specify
the means by which the surveillance will be effected. In addition, the
.order must specify the period of time during which the surveillance
is approved. Finally, where more than one surveillance device is
involved, the order must specify the authorized coverage of the devices
and which minimization procedures apply to which evices.
Paragraph (2) of subsection (b) details what the court directs in the
.order. The order shall direct that minimization procedures will be
followed. The order inay also direct that a common carrier, landlord,
custodian, or other specified person furnish information, facilities or
technical assistance necessary to accomplish the electronic surveillance
successfully and in secrecy and with a minimum of interference to the
services provided by such person to the target of the surveillance.
.,If this is done, the court shall direct that the person rendering the
-assistance maintain under security procedures approved by the, Attor-
ney General and the Director of the Central Intelligence Agency any
records concerning surveillance which the person wishes to retain. If
-the judge directs such assistance, he shall also direct that the applicant
.compensate the person for such assistance. These provisions generally
parallel 18 U.S.C. 2518(4).
This directive provision must be read in conjunction with the bill's
conforming amendment to 18 U.S.C. 2511(2) (a) (ii), contained in
Title II of this bill. That amendment requires that before any person
provides such information, facilities or technical assistance to persons
authorized by law to conduct electronic surveillance, that officer is
required to furnish to the person rendering the assistance either an
order signed by the authorizing judge directing. such assistance or, in
the caso of surveillance undertaken under chapter 119 or the Foreign
Intelligence Surveillance Act in which a prior order is not required,
such as an emergency surveillance, certification under oath by a person
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specified in chapter 119 or the Attorney General that any applicable
statutory requirements have been met.
The order presented to the person rendering the assistance need not
be the entire order approved by the judge under this chapter. Rather
only that portion of the order described in section 105(b) (2) (B)-(D),
signed by the judge need be given to the specified person. This portion
of the order should specify the person directed to give assistance, the
nature of the assistance required, and the period of time during which
such assistance is authorized.
Subsection (c) is the parallel provision to section 104(b), which
makes special allowance for surveillances targeted against foreign
powers as defined in section 101(a) (1), (2), or (3), where each of
the facilities or places at ,which the surveillance is directed is owned,
leased, or exclusively used by such powers. When the judge has found
that this is the case pursuant to section 105 (a) (3), the order need
not specify the type of information sought or the type of communica-
tions or activities to be subjected to the surveillance; the means by
which the surveillance is to be effected; or any information with
respect to whether more than one device is involved. Instead, the order
must generally describe the information sought, the communications
or activities to be subjected to the surveillance, and the type of elec-
tronic surveillance involved, including whether physical entry is
required. Since even where "official" foreign powers are the target,
American communications are intentionally sought, retained, and dis-
semina;ted, the Committee wishes to emphasize that though less detail
is required in an order containing a "general description," that descrip-
tion should delineate what information is authorized to be sought,
-vhat types of communications or activities are authorized to be sub-
jected to surveillance, and what means of electronic surveillance are
authorized to be used. The test which the judge must use to deter-
mine what a "general description" means in a particular case is what
description is necessary to make clear what is authorized and not
authorized. For instance, a mere designation that electronic surveil-
lance as defined in section 101 (f) (4) is authorized would be too broad,
because it would authorize a wide variety of techniques, each of which
might require different sorts of minimization. On the other hand, a
description such as "hidden microphones to acquire oral conversations
in the entire target premises" would probably suffice to generally
describe the means of the surveillance and the type of communications
to be subjected to the surveillance.
Subsection (d) allows an order approving electronic surveillance
under this chapter against any person or entity other than an "official"
foreign power as deed in section 101(a) (1), (2), or (3) to be effec-
tive for the. period necessary to achieve its purposes or for 90 days,
whichever is less. In the committee's view 90 days is the maximum
length of time during which a surveillance of these persons or entities
for foreign intelligence purposes should continue without renewed
judicial scrutiny. This period of time is not as long as some have wished
but longer than others desired. It is considered to be a reasonable con-
dition in the foreign intelligence context.40
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When the special class of "official" foreign powers is targeted, how-
ever, the surveillance may last as long as one year. Moreover, the execu-
tive determines the necessary length of the surveillance of these special
foreign powers (not to exceed 1 year without reauthorization), and
this determination is not subject to the court's review or approval.
There are considerable arguments for this distinction between "official"
foreign powers and other targets: First, the determination that an
entity is within the definition of section 101(a) (1), (2), or (3) is not
likely to be erroneous. Unlike a person suspected of being a foreign
agent, whether an entity fits one of the three special classes of foreign
powers-such as a foreign embassy or consulate-will usually be self-
evident. Second, the likelihood of obtaining valuable foreign intelli-
gence information from these entities is very high. Third, surveillance
against such official powers, because of their continuing presence in the
United States, is likely to be required for much longer periods of time.
Although such surveillance could be accomplished by successive 90 day
court renewals, the increased possibility of a security compromise as
well as the administrative burden which would result, are, reasons for
exempting these foreign powers from the 90-day limitation. Given
these considerations and the unique status of the targets involved, the
committee believes that 1 year is not an excessive period of time.
As under chapter 119 of title 18, extensions of an order may be
sought and granted on the same basis as the original order. A new
application including a new certification pursuant to section 104
(a) (7), would therefore be required, updating the information pro-
vided previously. Before the extension should be granted, however, the
court would again have to find probable cause that the target is a
foreign power or its agent.
The committee has added a proviso to the extension provision allow-
ing for an extension to be for a period not to exceed 1 year in the
unique circumstance where the target of the surveillance is a "non-
official' foreign power-those powers defined in section 101(a)2)_
(6)--and the judge finds probable cause to believe that no indivi al
U.S. person's communications will be intercepted during the period.
Where a nonofficial foreign power is the target and no individual U.S.
person's communications are to I )e intercepted, the Committee has
determined that the factors which justify a period longer than 90 days
for official foreign powers are equally present. The initial order in
such circumstances can only be for 90 days, during which period if no
American communications are intercepted, there is likely to be prob-
able cause that no American's communications will be intercepted in
the future, thereby justifying a 1 year period for the extension.
In H.R. 7308, as introduced, there was provision for the judge in
considering an application for an extension to require the Govern-
ment to submit information obtained under the original order or
previous extensions as might be necessary for the judge to determine
whether there was probable cause that the target was a foreign power
or agent thereof and that the facilities or places at which the surveil-
]ance is directed was being used or was about to be,used by a foreign
power or agent thereof. The committee believes that if information
obtained from the prior surveillance corroborates the findings already
made, the Government will wish of its own volition to tell the judge
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of this to justify the extension. If there is contrary information, of
course, the Government should bring this to the judge's attention,
whether it was obtained by the earlier surveillance or other techniques
of investigation.
It is simply unrealistic to expect the judge to review 90 days of
material searching for something that may not be there. Moreover, no
comparable provision exists in cliapter 119 of title 18 with respect to
law enforcement surveillances. Clearly, the judge has a right to in-
formation as may be necessary to his required findings, but this is
already provided for in section 104(d). For these reasons, the com-
mittee has deleted the provision as it appeared in H.R. 7308, as
introduced.
On the other hand, in order to make clear the scope of the judge's
authority to review compliance with the minimization procedures,
a provision has been added at the end of subsection (d). It provides
that at the end of the period of time for which an electronic surveil-
lance is approved by an order or an extension issued under this
section, the judgc may assess compliance with the minimization
procedures by reviewing the circumstances under which informa-
tion concerning U.S. persons was acquired, retained, or disseminated.
This provision is not intended to require that the judge assess such
compliance, nor is it intended to limit such assessments to any par-
ticular intervals. The committee believes, however, that it is use-
ful to spell out the judge's authority explicitly so that there will
be no doubt when a judge may review the manner in which infor-
mation about U.S. persons is being handled. This specifically includes
information about. U.S. persons acquired from electronic surveil-
lance of a foreign power, as defined in section 101(a) (1), (2), or
(3), except when it is a surveillance approved pursuant to section
102a) ; then the judge has no authority to review the minimization
under the procedures approved by the Attorney General and reported
to the Senate and House Intelligence Committees.
Subsection (e) authorizes the Attorney General to approve an
emergency electronic surveillance prior to judicial authorization
under certain limited circumstances. First, the Attorney General
must determine that an emergency situation exists which requires
the employment of electronic surveillance before an order author-
izing such surveillance can with due diligence be obtained. In addi-
tion, the factual basis for the issuance of an order under this title
must be present.
The procedures under which such an emergency surveillance is
authorized are considerably stricter than those of the comparable
provision in chapter 119, 18 U.S.C. 2518(7). First, only the Attorney
General-as defined-may authorize such emergency surveillance,
whereas in 18 U.S.C. 2518 (7) the Attorney General may designate
any investigative or law enforcement officer to authorize emergency
interceptions under that subsection. Second, the Attorney General
or his designee must contemporaneously notify one of the designated
judges that an emergency surveillance has been authorized. There is
no comparable requirement in 18 U.S.C. 2518 (7). Third, an appli-
cation for an order approving the surveillance must be made to that
judge within 24 hours; 18 U.S.C. 2518 (7) requires the application
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85
to be made within 48 hours. Fourth, the emergency surveillance can-
not continue beyond 24 hours without the issuance of an order;
under 18 U.S.C. 2518 (7) the emergency surveillance may continue
indefinitely until the judge denies the application. Fifth, the Attor-
ney General must order that minimization procedures required by
this title for the issuance of a judicial order be followed during the
period of the emergency surveillance. There is no comparable pro-
vision under 18 U.S.C. 2518(7). This last provision is designed to
insure that as much as possible be done to eliminate the acquisition,
retention, and dissemination of information which does not relate
to foreign intelligence purposes. The committee's intent is to place
the Attorney General in the role of the court during the 24-hour
emergency period. He must examine the minimization procedures as
the court would normally do under paragraph (a) (4) of this section,
and ensure that the appropriate procedures are followed.
The committee wishes to emphasize that the application must be
made for judicial approval even if the surveillance is terminated
within the 24-hour period and regardless of whether the information
sought is obtained. This requirement insures that all emergency sur-
veillance initiated pursuant to this title will receive judicial review
and that judicial approval or denial will be forthcoming nuns pro
tune. Thus, the termination of an emergency surveillance before the
expiration of the 24-hour period shall not be a basis for the court fail-
ing to enter an order approving or disapproving the subsequent ap-
plication. It is necessary for both the Department of Justice and con-
gressional intelligence committees to have available a complete record
both of the bases for such emergency surveillance authorization and
of the judicial determinations of their legality under the statutory
standard.
This provision for emergency authorization of surveillance by the
Attorney General may not be utilized pending an appeal under section
103, following the denial of an application for a judicial order. Under
such circumstances, the Attorney General could not reasonably deter-
mine that the factual basis for the issuance of an order under this title
to approve such surveillance exists, as required by this subsection.
If the application is subsequently denied, or if the surveillance is
terminated without an order eventually being obtained, no informa-
tion obtained or evidence derived from the surveillance shall be re-
ceived, used or disclosed by the Government in any trial hearing or
other proceeding before any court, grand jury, department, office,
agency, regulatory body, legislative committee or other Federal, State,
or local authority. This exclusionary provision is designed to be
absolute.
In addition, no information concerning any U.S. person acquired
from a disapproved emergency surveillance may subsequently be used
or disclosed in any other manner by Federal officers or employees
without the consent of such person, except with the approval of the
Attorney General where the information indicates a threat of death
or serious bodily harm. The fact that an emergency surveillance was
conducted improperly should not disable the Government from using
the information to protect the life or physical safety of a person.
A denial of the application may be reviewed in the same manner as
a denial of an original application under section 103.
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Subsection (f) creates statutory authorization for three types of
activities which, under certain circumstances, may technically involve
"electronic surveillance," as defined in section 101(f) These three ac-
tivities are the testing of electronic equipment, the conducting of
"sweeps" to discover illegal taps or bugs, and the training of personnel
on electronic surveillance equipment.
No warrant is required for these activities given the fact that they
are not targeted against any particular person or persons and the fact
that the bill's restrictions on these activities are so strict that there is
no reasonable possibility of abuse.
Under H.R. 7308, as introduced, a similar provision was, by a
conforming amendment, placed in chapter 119 of title 18 rather than
in this title. The committee believes, however, that inasmuch as the
need for this provision was the result of the limitations of this title
and that intelligence agencies will be the primary, if not the sole, users
of this authorization, this provision should be in this title rather than
chapter 119 which deals with law enforcement surveillances.
Several changes have been made to the comparable provision in
H.R. 7308, as introduced. First, no provision was made in H.R. 7308,
as introduced, for training. Second, consistent with E.O. 12036, Janu-
ary 24, 1978, tests, "sweeps," and training must be conducted pursuant
to procedures approved by the Attorney General.-" Second, no test,
"sweep", or training may be targeted against the communications
of a particular person or persons.42 Third, tests, "sweeps", and training
under this provision are only authorized if it is not reasonable to
obtain the consent of the persons who might be incidentally inter-
cepted. In certain situations it may be possible to obtain the consent
of at least one party, such that the activity would no longer be "elec-
tronic surveillance" as defined in section 101(f) . Obtaining such con-
sent is preferred.
For example, where certain telephone lines are to be "swept" to
check for "taps," it may be possible to obtain the consent of the persons
whose lines these are. Finally, there are strict limitations on the use
of information which might be acquired by surveillance authorized
by this subsection. Specifically, the information must be used only to
determine the capability of the equipment tested, or to enforce the law
against unlawful surveillance or protect information from unauthor-
ized surveillance, as appropriate. Where training is involved, there
are further restrictions that the authority of this subsection may not
be used either where it is reasonable to train the persons in the course
of surveillance otherwise authorized by the bill, for example, during
testing or during a court ordered surveillance, or where it would be
reasonable to train the persons in a manner which would not involve
"electronic surveillance," as defined, for example, outside the United
States or in laboratory conditions. The committee recognizes that it
would be unreasonable to require persons to be trained in using equip-
ment under circumstances where a slip-up might result in their arrest
by foreign police or the disclosure of their sophisticated equipment.
si This eliminates the need for Attorney General approval of tests that continue longer
than 90 days.
42 This does not mean that a test, "sweep", or training cannot be aimed at communica-
tions carried by a particular common carrier. Here, "communications of" a particular per-
son means communications to which a particular person is a party.
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The committee also recognizes that training in laboratory conditions
may not be sufficient; field training in almost all areas of endeavor is
considered necessary. Finally, communications acquired in the course
of training personnel are barred from being retained or disseminated.
There is no need for anyone other than the trainees and their in-
structor to have any knowledge of what might or might not have been
intercepted.
The authorization in this subsection is a narrow one made necessary
by the broad definition of "electronic surveillance." It is not intended
to authorize electronic surveillances to gather foreign intelligence
information generally. Thus the provision is phrased in terns of the
purpose being "solely to test the capability of electronic equip=
ment . . . , determine the existence and capability of electronic sur-
veillance equipment being used by persons not authorized to conduct
electronic surveillance . . . or training intelligence personnel in the
use of electronic surveillance equipment." Where, for example, the
existence and capability of unauthorized electronic surveillance equip-
ment has been established, this provision does not authorize further
surveillance to determine the targets of the surveillance or the informa-
tion being acquired by the unauthorized surveillance.
All tests, "sweeps" and training conducted pursuant to this provi-
sion must be in the normal course of official business by the Govern-
ment agent conducting the test, sweep, or training. The committee
contemplates that such testing, "sweeps," and training will be approved
by a senior official prior to the commencement of the activity.
Subsection (g) was not in H.R. 7308, as introduced. Its effect is self-
explanatory. It's purpose is to assure accountability by requiring that
applications and orders be maintained for 10 years. Under chapter
119 of title 18, U.S.C., there is a similar 10 year recordkeepmg
requirement.
Section 106
This section places additional constraints on Government use of in-
formation obtained from electronic surveillance and establishes de-
tailed procedures under which such information may be received in
evidence, suppressed, or discovered.
Subsection (a) requires that information concerning U.S. persons
acquired from electronic surveillance pursuant to this title may be used
and disclosed by Federal officers and employees, without the consent
of the U.S. person, only in accordance with the minimization pro-
cedures defined in section 101(h). This provision ensures that the use
of such information is carefully restricted to actual foreign intelli-
gence or law enforcement purposes.
This subsection also notes that no otherwise privileged communica-
tion obtained in accordance with or in violation of this chapter shall
lose its privileged character. This provision is identical to 18 U.S.C.
2517(4) and is designed, like its title III predecessor, to change exist-
ing law as to the scope and existence of privileged communications
only to the extent that it provides that otherwise privileged communi-
cations do not lose their privileged character because trey are inter-
cepted by a person not a party to the conversation.
Subsection (a) further states that no information (whether or not
it concerns a U.S. person) acquired from an electronic surveillance
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pursuant to this title may be used or disclosed except for lawful pur-
poses. This provision did. not appear in H.R. 7308, as introduced. It
was added by the committee to insure that information concerning.
foreign visitors and other non-U.S. persons, the use of which is not
restricted to foreign intelligence or law enforcement purposes, is not
used for illegal purposes.
There is no specific restriction in the bill regarding to whom Fed-
eral officers may disclose information concerning U.S. persons ac-
quired pursuant to this title although specific minimization pro-
cedures might require specific restrictions in particular cases. First,
the committee believes that dissemination should be permitted to State
and local law enforcement officials. If Federal agents monitoring a-
foreign intelligence surveillance authorized under this title were to
overhear information relating to a violation of State criminal law,
such as homicide, the agents could hardly be expected to conceal such
information from the appropriate local officials. Second, the commit-
tee can conceive of situations where disclosure should be made, outside
of Government channels. For example, Federal agents may learn of a
terrorist plot to kidnap a business executive. Certainly in such cases
they should be permitted to disclose such information to the executive.
and his company in order to provide for the executive's security.
Finally, the committee believes that foreign intelligence informa-
tion relating to crimes, espionage activities, or the acts and intentions
of foreign powers may, in some circumstances, be appropriately dis-
seminated to cooperating intelligence services of other nations. So,
long as all the procedures of this title are followed by the Federal of-
ficers, including minimization and the limitations on dissemination,.
this cooperative relationship should not be terminated by a blanket
prohibition on dissemination to foreign intelligence services. The com-
mittee wishes to stress, however, that any such dissemination be re-
viewed carefully to ensure that there is a sufficient reason why dis-
closure of information to foreign intelligence services is in the inter-
ests of the United States.
Disclosure, in compelling circumstances, to local officials for the
purpose of enforcing the criminal law, to the targets of clandestine,
intelligence activity or planned violence, and to foreign intelligence
services under the circumstances described above are generally the,
exceptions to the rule that dissemination should be limited to
Federal officials.
It is recognized that these strict requirements only apply to infor--
mation known to concern U.S. persons. Where the information in
the communication is encoded or otherwise not known to concern U.S.
persons, only the requirement that the information be disclosed for
lawful purposes app] ies. There is no reauirement that before disclosure
can be made information be decoded or otherwise processed to deter--
mine whether information concerning U.S. persons is indeed present..
Of course, the restrictions on use and disclosure still apply, so that
if any Government agency received coded information from the in-
tercepting agency, were it to break the code, the limitations on use
and disclosure would apply to it.
Subsection (b) requires that disclosure of information for law en-
forcement purposes must be accompanied by a statement that such
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evidence, or any information derived therefrom, may be used in a crim-
inal proceeding only with the advance authorization of the Attorney
General. This provision is designed to eliminate circumstances in which
a local prosecutor has no knowledge that evidence was obtained
through foreign intelligence electronic surveillance. In granting. ap-
proval of the use of evidence the Attorney General would alert the
prosecutor to the, surveillance and he, in turn, could alert the court in
accordance with subsection (c) or (d .
Subsections (c) through (i) set orbh the procedures under which
information acquired by means of electronic surveillance may be re-
ceived in evidence or otherwise used or disclosed in any trial, hearing
or other Federal or State proceeding. Although the primary purpose
of electronic surveillance conducted pursuant to this chapter is not
likely to be the gathering of criminal evidence, it is contemplated that
such'evidence will be acquired and these subsections establish the pro-
cedural mechanisms by which such information may be used in formal
proceedings.
At the outset the committee recognizes that nothing in these subsec-
tions abrogates the rights afforded a criminal defendant under Brady
v. Maryland,4' and the Jencks Act. 44 These legal principles inhere in
any such proceeding and are wholly consistent with the procedures
detailed here. Furthermore, nothing contained in this section is in-
tended to alter the traditional principle that the Government cannot
use material at trial against a criminal defendant, and then withhold
from him such material at trial.4?
Subsection (c) states that no information acquired from an elec-
tronic surveillance (or any fruits thereof) may be used against an ag-
grieved person, as defined, unless prior toi the trial, hearing, or other
proceeding, or at a reasonable time prior to an effort to disclose the
information or submit it in evidence, the United States notifies the
court or other authority and the aggrieved person of its intent.
Subsection (d) places the same requirements upon the states and
their political subdivisions, and also requires notice to the Attorney
General..
Subsection (e) provides a separate statutory vehicle by which an
aggrieved person against whom evidence derived or obtained from
an electronic surveillance is to be or has been introduced or otherwise
used or disclosed in any trial, hearing or proceeding may move to
suppress the information acquired by electronic surveillance or evi-
dence derived therefrom. The grounds for such a motion would be
that (1) the information was unlawfully acquired, or (2) the sur-
veillance was not made in conformity with the order of authorization.
or approval.
A. motion under this subsection must be made before the trial, hear-
ing, or proceeding unless there was no opportunity to make such a mo-
tion. or the movant was not aware of the grounds for the motion.
It should be noted that the term "aggrieved person", as defined in
section 101 (k) does not include those who are mentioned in an inter-
cepted communication. The committee wishes to make it clear that
48.473 U.S. 83 (1963).
44'18 U.S.C. 8300 et seq.
+e united States v. Ando1scheTe. 142 F.2d 808 (2nd Cir. 1944).
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such persons do not have standing to file a motion under section 106
or under any other provision. The minimization procedures do apply
to such persons and, to the extent that such persons lack standing, the
committee recognizes that it has created a right without a remedy.
However, it is felt that the Attorney General's regulations concerning
the minimization procedures, judicial review of such procedures, and
criminal penalties for intentional violation of them, will provide suf-
ficient protection.
Section (f) sets out special judicial procedures to be followed when
the Government concedes that it intends to use or has used evidence
obtained or derived from electronic surveillance. Where, in any trial
or proceeding, the Government concedes, either pursuant to the no-
tification 4e requirements of subsection (c) and (d) or after a motion
is filed by the defendant pursuant to subsection (e), that it intends to
use or has used evidence obtained or derived from electronic surveil-
lance, it may make a motion before the special court to determine the
lawfulness of the surveillance. The special court must then determine
whether the surveillance was lawful or not. In so doing, no judge who
granted an order or extension involving the surveillance at issue could
make the determination, unless all the judges of the special court
would be so disqualified.
The determination would be made in camera if the Attorney Gen-
eral certifies under oath that disclosure would harm the national
security or compromise foreign intelligence sources and methods.47
IIowever, when the special court determines that there is a reasonable
question as to the legality of the surveillance and disclosure would
likely promote a more accurate determination thereof (or when the
court, determines that disclosure would not harm the national security)
the defendant should be provided relevant portions of the application,
order, or other materials. Whenever there is a reasonable question of
legality, it is hoped that disclosure, with an in camera adversary hear-
ing, will be the usual practice. The committee considered requiring an
adversary hearing in all cases, but was persuaded by the Department
of Justice that in those instances where there is no reasonable question
as to the legality of the surveillance security considerations should
prevail. In ordering disclosure, the special court must provide for
appropriate security procedures and protective orders.
Subsection (f), outlined above, deals with those rare situations in
which the Government states it will use evidence obtained or derived
from an electronic surveillance.
Subsection (g) states in detail the procedures to be followed when,
in any court or other authority of the United States or a state, a
motion or request is made to discover or obtain applications or orders,
or other materials relating to surveillance under this title, or to dis-
46 It should be emphasized that notification by the Government triggers the special court
procedures whether or not the defense has filed a suppression or discovery, motion. Thus,
if, before the filing of such motions, the Government concedes use of evidence obtained
from electronic surveillance, and the Court determines that the surveillance was lawful,
a discovery or suppression motion would be moot because of the, requirements of subsection
(h).
47 In many, if not most cases, the Attorney General's affidavit will have to be based on
Attorney i General supplied making hisya lother Executive offirs. It davi to rely on cconclus ons sanderfectly , beliefs heelde by fothers
in the Executive Branch who are responsible for national security or intelligence sources
and methods.
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cover, obtain or suppress any information obtained from electronic
'surveillance, and the Government certifies that no information ob-
tained or derived from an electronic surveillance has been or is about
to be used by the Government before that court or other authority.
When such a motion or request is made, it will be heard by the
'Special Court of Appeals if :
The court or other authority in which the motion is filed de-
termines that the moving party is an aggrieved person, as defined;
The Attorney General certifies to the Special Court of Appeals
that an adversary hearing would harm the national security or
compromise intelligence sources or methods; and;
The Attorney General certifies to the Special Court of Appeals
that no information obtained or derived from an electronic sur-
veillance has been or is to be used.
If the above findings and certifications are made, the special court
,of appeals will stay the proceedings before the court or other authority
and conduct an ex party, in camera inspection of the application, order
or other relevant material to determine whether the surveillance was
lawfully authorized and conducted.
The subsection further provides that in making such a determina-
tion, the court may order disclosed to the person against whom the evi-
dence is to be introduced the court order or accompanying application,
or portions thereof, or other materials relating to the surveillance, only
if it finds that such disclosure is necessary to afford due process to the
aggrieved person.
It is to be emphasized that, although a number of different proce-
dures might be used to attack the legality of the surveillance, it is the
procedures set out in subsections (f) and (g) "notwithstanding any
other law" that must be used to resolve the question. The committee
wishes to make very clear that these procedures apply whatever the
underlying rule or statute referred to in the motion. This is necessary
to prevent these carefully drawn procedures from being bypassed by
the inventive litigant using a new statute, rule or judicial construction..
Subsections (f) and (g) effect substantial changes from H.R. 7308.,
as introduced. The committee has adopted a suggestion of the General
Counsel of the Administrative Office of the U.S. Courts in providing
that judicial determinations with respect to challenges to the legality
of foreign intelligence surveillances and motions for discovery concern-
ing such surveillances, where the Government believes that adversary
hearings or disclosure would harm the national security, will be made
by the special court or the special court of appeals. Given the sensitive
nature of the information involved and the fact any judge might other-
wise be involved in situations where there would be no mandated
security procedures, the committee feels it appropriate for such mat-
ters to be considered solely by the special courts.
Moreover, judges of the special courts are likely to be able to put
claims of national security in a better perspective and to have greater
confidence in interpreting this bill than judges who do not have occa.-
sion to deal with the surveillances under this bill, and the Government
is likely to be less fearful of disclosing information even to the judge
where is knows there are special security procedures and the judge
already is cognizant of other foreign intelligence surveillances. These
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considerations, it is believed, suggest that-given the in camera pro-
cedure-the private party will be more thoroughly protected by hav-
ing the special courts determine the legality of the surveillances under
the bill.
'The most significant change is contained in the subsection (f) provi-
sion authorizing disclosure and an adversary hearing in certain cir-
cumstances. This provision has been adopted only after lengthy
discussion within the committee and a careful consideration of the
suggested risk to security involved. The narrow reach of the provision
should be emphasized : the adversary hearing procedures can arise only
in those instances where the Government concedes that it intends to use
evidence obtained or derived from an electronic surveillance (which
the Government had not done in the last 10 years until the case of U.S.
Y. Hwnmphrey, trim. no. 78-25-A, E.D. Va.).'
Furthermore, the decision to remove a proceeding to one of the
special courts (under subsection (f) or (g)) , is entirely up to the Gov-
'ernment in the first instance, as, of course, is the decision to prosecute.
With these limitations, the committee believes that the adversary hear-
ing provision is fully protective of those legitimate security interests
which the Congress, no less than the executive branch, has a duty to
;safeguard.
The Congress has an equally compelling duty to insure that trials
are conducted according to traditional American concepts of fair play
and substantial justice. In this context, the committee believes that
when the Government intends to use information against a criminal
defendant obtained or derived from an electronic surveillance, and
there is a reasonable question as to the legality of a surveillance, simple
justice dictates that the defendant not be denied the use of our tradi-
tional means for reaching the truth-the adversary process.49
Where the Government states under oath that it does not intend to
use evidence or information obtained or derived from electronic sur-
veillance, the case for an adversary hearing is less persuasive and the
bill does not provide for it. In such cases, however, in order to provide
additional protection to the defendant, the: bill (if the case is removed
from the trial court) states that the matter be heard by three judges of
the special court of appeals, rather than by a single judge of the special
court.
It should be emphasized that in determining the legality of a surveil -
lance under subsection (f) or (g), the judges of the special courts (or
the trial judge if the matter is not removed to the special courts) are.
not to make determinations which the issuing judge is not authorized
to make. Where the bill specifies the scope or nature of judicial review
in the consideration of an application, any review under these subsec:
tions is similarly constrained. For example, when reviewing the certi-
fications required by section 104(a) (7), unless there is a prima facie
as The committee is aware that the Supreme Court has never decided that an adversary
hearing is constitutionally. required to determine the legality of a surveillance. See Alder-
man v. United States, 394 U.S..165 (1968) ; United States v. Butenko, 494 F.2d 593
(3d Cir. 1974) (en bane), cert. denied sub nom. Ivanov v. United States, 419 U.S. 881
Just ce Stewart.) This States, lessen the importance (1968) of ancadversary opinion of
in
searching for the truth and assuring a fair trial, and if the court should so decide, the
procedures for an adversary hearing would already be in place. It should also be noted
that in neither Alderman nor Butenko did the Government concede use of information
obtained or derived from a surveillance.
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showing of a fraudulent statement ''by a certifying officer, procedural
regularity is the only determination to be made iT a non-U.S. person
is the target, and the "clearly erroneous" standard is to be.used where a
U.S. person is targeted. Of course, the judge is also free to review the
constitutionality of the law itself.
Subsection (h) states what procedures the special courts are to fol-
r low after a determination of legality or illegality is made pursuant to
subsection (f) or (g). The committee wishes to emphasize that its
intent in this provision is not to legislate new procedures or in any
other manner alter existing procedures with respect to what should be
ordered after a finding of illegality is made. In such circumstances, the
judge is directed to suppress the evidence or otherwise grant the motion
"in accordance with the requirements of law." Existing. case law re-
quires the 'Government, in the case of an illegal surveillance, to sur-
render to the defendant all the information illegally acquired in order
for the defendant to make an intelligent motion on the, question of
taint. The Supreme Court in Alderman v. United States, supra, held
that once a defendant claiming evidence against him was the fruit of
unconstitutional electronic surveillance has established the illegality
of such surveillance (and his "standing" to object), he must. be given
those materials illegally acquired in the Government's files to assist
him in establishing the existence of "taint." TheCourt rejected the
Government's contention that the trial court could be permitted to
screen the files in camera and give the defendant only material which
was "arguably relevant" to his claim, saying such screening would be,
sufficiently subject to error to interfere with the effectiveness of adver-
sary litigation of the question of "taint." The 'Supreme 'Court has re-
fused to reconsider the Alderman rule and, in fact reasserted its
validity in its Keith decision. (United States v. U.S. District Court,
supra, at 393) .
As the language of the bill makes clear, only that evidence which was
obtained unlawfully or derived from information obtained unlawfully
would be suppressed. If, for example, some information should have
been minimized but was not, only that information should be sup-
pressed; the other information obtained lawfully should not be sup-
pressed.
A decision of illegality may not always arise in the context of sup-
pression; rather it may, for example, arise incident to a discovery
motion in a civil trial. Here, again, the bill. does not specify what the
court should order. Again, the court should grant the motion only "in
accordance with requirements of law." Here, however, the require-
ments of law would be those respecting civil discovery. In other words,
once the surveillance is determined to be unlawful, the intent of this
section is to leave to otherwise existing law the resolution of what, if
anything, is to be disclosed. For instance, under the Freedom of In-
formation Act, other defenses against disclosure may be able to be
made.
Where the court determines pursuant to subsections (f) or (g) that
the surveillance was lawfully authorized and conducted, it would, of
course, deny any motion to suppress. In addition, once a judicial de-
termination is made that the surveillance was lawful, any motion or
request to discover or obtain materials relating to a surveillance must
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94
be denied unless disclosure or discovery is required by (].tie process.60
Subsection (i) states for purposes of appeal that orders or deci-
sions of the special courts granting or denying motions, deciding the
lawfulness of a surveillance or ordering or denying disclosure shall be
final orders, and shall be binding upon all courts of the United States
and the States except the special court of appeals and the Supreme
Court. As final orders they will be immediately appealable, by the
private party or the government. The committee recognizes that the
usual practice is to consider such orders interlocutory and not immedi-
ately appealable.
In the particular circumstances of cases handled pursuant to sub-
sections (c)-(i), however, the committee believes that substantial con-
siderations militate in favor of immediate appeal. Requirements to dis-
close certain information, whether before or after a finding of illegal-
ity, might force the Government to dismiss the case (or concede the
case, if it were a civil suit against it) to avoid disclosure it thought not
required. This is not the situation in normal cases, and therefore it is
appropriate here to allow immediate appeal of such an order. Sim
ilarly, given the in camera and to a greater or lesser extent ex parte
proceedings tinder subsections (f) and (g), it is appropriate to afford
a more expeditious form of appeal for the private litigant. Because
cases under these subsections are not expected to occur often, there is
no meaningful added burden placed on the courts by allowing such
interlocutory orders.
New subsection. (j) has been added to the bill for the purpose of re-
strictin the use of unintentionally acquired private domestic radio
coins-amications. The new subsection is needed because "electronic sur-
veillance" as defined in 101 (f) (3) covers only the intentional acquisi-
tion of the contents of private domestic radio communications. Such
communications may include telephone calls and other wire communi-
cations transmitted by radio microwaves. Concern has been expressed
that unless the use of such unintentionally acquired communications is
restricted, there would be a potential for abuse if the Government ac-
quired those kinds of domestic communications, even without, inten-
tionally targeting any particular communication. The amendment
-forecloses this possibility by restricting the use of any information ac-
quired in this man.n.er.
In circumstances involving the unintentional acquisition, by an elec-
tronic, mechanical, or other surveillance device of the contents of any
radio communication, where a persons has a reasonable. expectation of
privacy and a warrant would be required for law enforcement pur-
poses, and where both the sender and all intended recipients are located
within the United States, the contents must be destroyed upon recog-
nition. The only exception is with the approval of the Attorney Gen-
eral where the contents indicate a threat of death or serious bodily
harm to any person. This restriction is not intended to prevent the
Government from maintaining a record of the radio frequency of the
communication for later collection avoidance purposes.
GO The committee recognizes that this provision alters existing law and is a limitation
on existing discovery practice. It is felt that where the special court has determined that
the surveillance is lawful, security considerations should preclude any disclosure unless
due process requires disclosure.
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Subsection (k) provides for notice to be served on U.S. citizens and
permanent resident aliens who were targets of an emergency surveil-
lance and, in the judge's discretion, on other citizens and resident aliens
who are incidentally overheard, where a judge denies an application
for an order approving an emergency electronic surveillance. Such no-
tice shall be limited to the fact that an application was made, the
period of the emergency surveillance, and the fact that during the
period information was or was not obtained. This notice may be post-
poned for a period of up to 90 days upon a showing of good cause to
the judge. Thereafter the judge may forego the requirement of notice
upon a second shoving of good cause.
The fact which triggers the notice requirement-the failure to ob-
tain approval of an emergency surveillance-need not be based on a
determination by the court that the target is not an agent of a foreign
power engaged in clandestine intelligence activities, sabotage, or ter-
rorist activities or a person aiding such agent. Failure to secure acourt
order could be based on a number of other factors, such as an improper
certification. A requirement of notice in all cases would have the poten-
tial of compromising the fact that the Government has focused an in-
vestigation on the target. Even where the target is not, in fact, an
agent of a foreign power, giving notice to the person may result in
compromising an ongoing foreign intelligence investigation because
of the logical inferences a foreign intelligence service might draw from
the targeting of the individual. For these reasons, the Government is
given the opportunity to present its case to the judge for initially post-
poning notice. After 90 days, during which time the Government may
be able to gather more facts, the Government may seek the elimination
of the notice requirement altogether.
It is the intent of the committee that if the Government can in-
itially show that, there is a reason to believe that notice might coin-
promise an ongoing investigation, or confidential sources or methods,
notice should be postponed. Thereafter, if the Government can show
a likelihood that notice would compromise, an ongoing investigation,
or confidential sources or methods, notice should not be given.
Section 107
Section 107 requires the submission of annual reports to both the
Congress and the Administrative Office of the U.S. Courts containing
statistical information relating to electronic surveillance under this
title. The reports must include the total number of applications made
for orders and extensions and the total number of orders or extensions
granted, modified, and denied, The statistics in these reports should
present a quantitative indication of the extent to which surveillance
under this title is used. The committee intends : that such statistics
will be public.
Section 108
Congressional oversight. is particularly important in monitoring
the operation of this statute. By its very nature, foreign intelligence
surveillance must be conducted in secret. The bill reflects the need for
such secrecy : judicial review is limited to a select panel and routine
notice to the target is avoided. In addition, contrary to the premises
which underlie the provisions of title III of the Omnibus Crime Con-
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96
trol Act of 1968, it is contemplated that few electronic surveillances
conducted pursuant to this title will result in criminal prosecution.
For these reasons, the committee has added a new section to the bill
dealing With the information to be furnished to the appropriate con-
gressional committees. Section 108 requires the Attorney General to
inform fully the House Permanent Select Committee on Intelligence
and the Senate Select Committee on Intelligence concerning all elec-
tronic surveillance. under this title. He must do so at least.semiannually.
As interpreted by the committee, the word "fully" means that the
committee 'must be given enough information to understand the ac-
tivities of, but does not mean that the Attorney General must set forth
each and every detailed item of information relating to, all electronic
surveillances. For example, the committee would not ordinarily wish
to now the identities of particular individuals. The committee and
the Department of Justice have had lengthy discussions, concerning
this provision and are in general agreement as to what information
will be' provided. To preserve the Intelligence Committees' right to
seek further information, when necessary, section 108 makes clear
that nothing in this title shall be deemed to limit the authority of
those committees to obtain such additional information as they may
need to carry out their respective functions and duties. In the case
of the House Permanent Select Committee on Intelligence, that au-
thority is set forth in House Resolution 658, 95th Congress, 1st session.
Section 109
Section 109(a) (1) carries forward the criminal provisions of chap-
ter 119 and makes it a criminal offense for officers or employees of the
United States to intentionally engage in electronic surveillance under
color of law except as specifically authorized in tchapter 119 of title
III and this title. Since certain technical activities-such as the use of
a pen register-fall within the definition of electronic surveillance
under this title, but not within the definition of wire or oral communi-
cations under chapter 119, the bill provides an affirmative defense to
a law enforcement or investigative officer who engages in such an
activity for law enforcement purposes in the, course of his official
duties, pursuant to a search warrant or court order.51 Section 109 (a)
(2), is 'a new provision (not found in chapter 119 or H.R. 7308
as introduced) which makes it a criminal offense for any officer or em-
ployee of the United States to intentionally violate any order issued
pursuant to this title or to intentionally violate the sections specified,
knowing that his conduct violates such order or title. The sections
covered are generally those pertaining to the use and disclosure of
information obtained from electronic.
Section 109 (a) (2) generated considerable debate within the com-
mittee and was adopted only after full consideration was given to its
suggested deleterious effect on the morale of intelligence personnel.
One of the important purposes of the bill is to afford security to in-
telligence personnel so that if they act in accordance with the statute
and the court order, they -will be insulated from liability; it is not to
afford them immunity when they intentionally violate the law.
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Absent this criminal provision, intelligence agency personnel-
agents and supervisors alike-could intentionally and totally ignore
the minimization procedures and .be immune from. criminal or civil
liability. Moreover, they could intentionally destroy records required
by the bill to be retained for oversight purposes without fear of lia-
bility. While chapter 119, dealing with law enforcement surveillances,
does contain a penalty for violations of use and disclosure restrictions
on information lawfully obtained, the committee feels that the strict
probable cause standard for a chapter 119 surveillance ? lessens the
importance of minimization and restrictions on disclossure as a safe-
guard against abuse. On the other hand, the lesser showing required
for a foreign intelligence surveillance warrant makes the, aniniiniza-
tion and other procedures dealing with disclosure of information ex-
tremely important, and thus sanctions should apply to intentional
violations of such provisions.
The word "intentionally" was carefully chosen. It is intended to
reflect the most strict standard, for criminal culpability. What is
proscribed is an intentional violation of an order or one of the speci-
fied provisions, not just intentional conduct. The Government would
have to provide beyond a reasonable doubt both that the. conduct en-
gaged in was in fact a violation, and that it was engaged in with "a
conscious objective or desire" 52 to commit a violation. The phrase
"knowing his ? conduct violates such an order or this title" is intended
to emphasizothis point. To further insure that intelligence personnel
are protected in the proper performance of legitimate duties, the bill
provides ,,t "good faith" defense.
Theoretically, because the definition of electronic surveillance in this
title includes most activities encompassed within the term "intercep-
tion of wire or oral communication" in chapter 119, a single offense
could violate both 109 (a) (1) and the criminal provision of chapter
1.19. The committee intends that in such cases the Government pro-
ceed under only one of the provisions, not both.
In addition to making an intentional violation of the disclosure
and minimization provisions a criminal offense the reported bill differs
from H.R. 7308 (as introduced) by including the criminal (and civil)
liability provisions in the body of this title rather than amending
chapter 119. The purpose of this change is to minimize the multiplic-
ity of cross references to chapter 1119 and to alleviate the confusion
caused by having 'chapter 119's criminal provisions apply to this title
and to minimize the effects of this title on chapter 119 law enforce-
ment surveillances. For example, under II.R. 7308, as introduced, it
would have been a federal crime for a State law enforcement 'officer to
use a pen register without a warrant. While such action may be un-
constitutional, it is not made a criminal offense by chapter 119 and
should not be by this title.
(For the same reasons, section 110 makes the civil liability provi-
sions a part of this title.)
The methodology of the criminal provision of section 109 reflects
the committee's efforts to conform to the methodology of the pend-
ing criminal code reform legislation (I-I.R. 6869/S. 1437).
Qe The phrase "conscious objective or desire" is taken from the definition of "intentional"
contained in section 302 of S. 1437 (the Criminal Code Reform Act of 1978) as passed by
the Senate on January 30, 1978.
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Section 110
This section iinposes civil liability for violations of section 109 (a)
(1) and section 109(a) (2), and authorizes an "aggrieved person", as
defined in. section 1.01(k), to recover actual damages, punitive dam-
ages, and reasonable attorney's fees and costs. Since the civil cause
,of action only arises in connection with a violation of the criminal
,provision, the statutory good faith defense, though applicable, does not
have to be restated. Although included in the definition of "aggrieved
person", foreign powers and non-U.S. persons who act in the United
States as officers or employees of foreign powers would be prohibited
from bringing actions under section 110.
The agent of a foreign power exclusion of section 110 is narrower
than the corresponding provision of H.R. 7308, as introduced. The
exclusion only applies to those who come within the definition of
agent of a foreign power because they act, in the United States as
an officer, member or employee of a foreign power, see section
110(b) (1) (A). The foreign visitors covered by the second part of
the defintion, see section 110(b) (1) (B) would have a cause of action
under the provision. The original bill excluded both of these classes
of agents of a foreign power. The committee believes that the lesser
exclusion is more appropriate. As regards the first category those
barred from the civil remedy will be primarily those persons who
are themselves immune from criminal or civil liability because of
their diplomatic status. In regard to the second category it is difficult
to see what would be gained by denying the civil remedy in practical
terms. In proving that the exclusion applied the Government would
more than likely be forced to make the same showing that it would
make in proving that the surveillance was lawful.
Title II contains the conforming amendments necessary to integrate
the Foreign Intelligence Surveillance Act into the existing provisions
of chapter 119 of title 18. In adopting its other amendments, one of
the committee's purposes has been to produce legislation that can
be read and understood (and thus complied with) easily, without
excessive cross reference to other statutes. Thus, for example, the
committee has expanded the definition section and provided the bill
with its own criminal and civil liability and testing and counter-
measures provisions. As a result, most of the conforming amend-
ments contained in II.R. 7308, as introduced, have been eliminated.
&etion 001 (a)
This provision rewrites existing section 2511(2) (a) (ii) of title 18.
United States Code, which states that "it shall. not be unlawful under
this chapter" for a communications common carrier to assist law en-
forcement and investigative officers in performing surveillance activi-
ties pursuant to title 18. Section 201 (a) would restate this provision
in terms of an authorization, rather than an exemption from criminal -
ity, and would include "landlords, custodians, or other persons" in
the authorization, extend its scope to cover foreign intelligence elec-
tronic surveillance, require the Government to provide a copy of the
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Attorney General certification or portions of the court order and
other information to the person rendering assistance, relieve such
person from all civil liability for actions in conformance with the court
order or certification, and prohibit such person from divulging the
existence of a surveillance or the device involved (unless required by
legal process and after notice has been given to the Attorney General
or oppropriate state official) ,63
Section 2511(2) (a) (ii) was added to chapter 119 in 1970 in response
to the telephone company's refusal to provide assistance to officers
engaged in court ordered wiretaps on the theory that such assistance
would constitute a violation of the Communications Act of 1934 and
chapter 119, At the same time, section 2518 (4) (e) was added, authoriz-
ing the judge issuing the warrant to order a "communication common
carrier, landlord, custodian, or other person" to provide assistance.
The committee has made the two provisions consistent in terms of
those who are authorized to provide assistance and those whom a judge
can order to provide assistance.
The provision prohibiting the disclosure of the existence of a sur-
veillance or the surveillance technique was added by the committee.
It is necessary in light of the practice of some telephone companies to
inform customers who request a line check that there is a wiretap on
their phone, whether or not the tap was lawfully authorized.
Where a court order is required to initiate a surveillance, a copy of
the order must be provided to the party providing assistance. Where
a court order is not required, a copy of the relevant Attorney General
certificate must be provided. Examples of the latter would be emer-
gency surveillances under section 105(c), surveillances conducted
under the special circumstances of section 102(a), and surveillances
conducted pursuant to the testing, counter-measures and training pro-
visions of section 105 (f) .
Requiring the court order or certification to be presented before the
assistance is rendered serves two purposes. It places an additional
obstacle in the path of unauthorized surveillance activity, and, coupled
with the provision relieving the third party from liability if the
order or certification is complied with, it provides full protection to
such third parties. In the past, phone companies have been subjected
to civil suits for rendering assistance to the Government, whether or
not a court order was involved. The, committee provision is intended
to hold harmless the phone company and others so long as the assist-
ance is in accordance with the terms of the order or certification, even
if the surveillance is later found to be unlawful.
The court order or certification must indicate the period of time
during which the provision of information, facilities or technical
assistance is authorized and must specify the information, facilities
or technical assistance required. These requirements are more detailed
than the corresponding provision of II.R. 7308, as introduced. They
will eliminate any doubts the party providing assistance might harbor
concerning what is required of him and what are the limits of his
authority.
sa The notice provision is intended to provide sumcient time for the Government to inter-
vene to quash a subpoena or otherwise take legal action to prevent disclosure if it so
desires.
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A further change from H.R. 7308, as introduced, is contained in the-
provision empowermg the specified third parties to provide assistance
to "persons authorized by law to intercept wire or oral communi-
cations or to conduct electronic surveillance . . .". H.R. 7308, as intro-
duced; would not have changed the existing language, of chapter 119,
which authorizes third party assistance to "law enforcement or in-
vestigative.officers." The latter phrase is a defined term in chapter 119
and is not appropriate to designate those who will conduct electronic
surveillance under the Foreign Intelligence Surveillance Act of 1978.
'I'le language selected by the committee is intended to include only
those individuals empowered by chapter 119 to intercept wire or oral
communications for law enforcement purposes and those empowered
by the Foreign Intelligence Surveillance Act of 1978 to engage in
electronic surveillance for foreign intelligence purposes, and should
not be subject to any broader interpretation.
Section 201(b )
This provision adds two subsections to section 2511(2) of title 18.
New subsection (e) makes explicit that the criminal penalties of
chapter 119 of title 18 and the prohibitions of the Communications Act
of 1934 do not apply to those engaging in electronic surveillance pur-
suant to title I of the Foreign Intelligence Surveillance Act.
New subsection (f) must be read in conjunction with the conform-
ing amendment contained in section 201(c) which repeals section
2511(3) of title 18. The effect of these two conforming amendments
is to establish the Foreign Intelligence Surveillance Act as the exclu-
sive legislative statement on the question of the Executive's power to
order electronic surveillance.
Subsection (f) begins by stating that nothing contained in chapter
119 or section 605 of the Communications Act of 1934, shall be deemed
to affect the acquisition of foreign intelligence information from in-
ternational or foreign communications by a means other than electronic
surveillance, as defined in the Foreign Intelligence Surveillance Act
of 1978.
This provision is designed to make clear that the legislation does
not deal with certain international signals intelligence activities cur-
rently engaged in by the National Security Agency and electronic
surveillance conducted outside the United States.
The second part of new subsection (f) is a directive to Govern-
ment officials. It states that with respect to the interception of domestic
wire and oral communications, and to electronic surveillance, as defined
in section 101(f), the procedures of chapter 119 and of the Foreign
Intelligence Surveillance Act of 1978 shall be the exclusive means by
which such activities may be conducted.54
54 As noted earlier, the use of pen registers and similar devices for law enforcement
purposes is not covered by chapter 119 or this Act and new subsection (f) is not intended.
to prohibit it. Rather, because of the criminal defense provision of section 109(b) (1),
the "procedures" referred to in subsection (f) include acquiring a court order for such
activity. It Is the Committee's intent that neither this nor any other provision of the
legislation have any effect on the holding in United States v. New York Telephone, -
IT.S. - (1977), 46 r,w 4033 that rule 41 of the Federal Rules of Criminal Procedure
empowers federal judges to authorize the installation of pen registers for law enforce-
ment purposes.
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Article I, section 8, of the Constitution states :
The Congress shall have Power * * * To make all laws
which shall be necessary and proper for carrying into Execu-
tion the foregoing power, and all other Powers vested by
this Constitution in the Government of the United States, or
in any Department or Officer thereof.
It is clear that the Supreme Court has recognized that Congress may
legislate in areas, where absent such legi.slation,, a constitutional power
of the executive may be found to exist (Youngstown Skeet and Tube
v. Sawyer, 343 U.S. 579 (1952) ). In that landmark case, the Supreme
Court rejected President Truman's argument that he had inherent
constitutional authority to seize the steel mills to prevent strikes
and insure continued steel production needed for the war effort. The
decision was influenced in large measure by the fact that Congress,
by passing the Taft-Hartley Act, had expli.city rejected seizure of the
steel mills and enacted a legislative alternative to curb labor unrest.
In his concurring opinion, Justice Jackson wrote :
When a President, takes measures incompatible with the
express or implied will of Congress, his power is at the lowest
ebb, for then he can rely only upon his own constitutional
power minus any constitutional power 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. (343 U.S. at 637).
Thus, despite any inherent power of the President to authorize war-
rantless electronic surveillances in the absence, of legislation, by this
bill and chapter 119 of title 18, Congress will have legislated with
regard to electronic surveillance in the United States, that legislation
with its procedures and safeguards prohibit the President, notwith-
standing any inherent powers, From violating the terms of that
legislation.
Section 201(c)
This amendment would repeal 18 U.S.C. ? 2511(3), which states that
nothing in chapter 119 or section 605 of the Communications Act of
1934 shall limit the constitutional power of the President to gather
necessary intelligence to protect the national security. In the Keith
case the Supreme Court held that this section was not a congressional
recognition or affirmance of an inherent Presidential power to engage
in warrantless surveillance for intelligence purposes to safeguard the
national security. Rather, "it merely provided that [chapter 119 and
section 605] shall not be interpreted to limit or disturb such power as
the President may have under the Constitution. In short, Congress sim-
ply left presidential powers where it found them." 407 U.S. at 303.
The Foreign Intelligence Surveillance Act, however, does not simply
leave Presidential powers where it finds them. To the contrary, this bill
would substitute a clear legislative authorization pursuant to statu-
tory, not constitutional, standards. Thus, it is appropriate to repeal
this section, which otherwise would suggest that, perhaps the statutory
standard was not the exclusive authorization for the surveillances in-
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102
eluded therein. Because, however, 18 U.S.C. ? 2511(3) was not a recog-
nition or affirmance of presidential power to authorize warrantless sur-
veillances in the absence of legislation, the repeal of this section is
equally not a denial of such a power.
Section 201(d)
This amendment makes explicit that the requirements for an appli-
cation contained in section 2518(l) apply only to surveillance con-
ducted pursuant to chapter 119, since the Foreign Intelligence
Surveillance Act of 1978 contains its own requirements.
Section 201 (e)
This amendment makes explicit that the necessary elements for an
order set forth in section 2518 (4) apply only to surveillance conducted
pursuant to chapter 119, since the Foreign Intelligence Surveillance
Act of 1978 contains its own requirements.
Section 201(f )
This amendment makes explicit that the procedures for disclosure
of the court order and accompanying application under section 2518
(9) apply only to surveillance conducted pursuant to chapter 119,
since the Foreign Intelligence Surveillance Act of 1978 contains its
own requirements.
Section 201 (g)
This amendment makes explicit that the provision for a statutory
suppression motion contained in section 2518(10) applies only to sur-
veillances conducted pursuant to chapter 119, since the Foreign In-
telligence Surveillance Act of 1978 contains its own requirements.
Section 201(h)
This amendment makes explicit that the reporting requirements of
the Administrative Office of the U.S. Courts contained in section
2519(3) apply only to surveillance conducted pursuant to chapter
119, since the Foreign Intelligence Suurveillance Act of 1978 contains
its own requirements.
TITLE III
Title III essentially delays the effective date of the act until 90 days
following the designation of the chief judges pursuant to section 103.
The purpose of this delay is to allow time for the development of the
applications required under this bill and of security measures govern-
ing the submission of these applications to the court. Under H.R. 7308
(as introduced), the 90 days would begin to run after the first judge
was appointed. The change is necessary to insure that the necessary
security procedures, which must be implemented by the chief Judges of
the Special Court and the Special Court of Appeals, are in effect when
the first applications are submitted.
COMMITTEE POSITION
The Permanent Select Committee on Intelligence, a quorum being
present, voted 8-2 to amend H.R. 7308 and report it favorably on May
17, 1978.
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03
FIVE YEAR COST PROJECTION
The Permanent Select Committee on Intelligence has determined
that the only costs which will be incurred by the Government in the
administration of H.R. 7308 will be appropriate travel and per diem
costs :for judges of the Special Court and Special Court of Appeals.
The committee is unable to estimate what these costs will be, however,
although it feels certain that they will be nominal in nature.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
As, of the filing date of this report, the Committee had received
no estimate from the Congressional Budget Office pursuant to Sec-
tion 4:03 of the Congressional Budget Act.. However, the committee
notes that the Congressional Budget Office did submit an estimate
on S. 1566, the companion Senate measure to II.R. 7308, to the Senate
Committee on the Judiciary on October 13, 1977. The conclusion of
the Congressional Budget; Office on that occasion was that no addi-
tional. cost to the Government would result from enactment of S. 1566.
The 'comm'ittee repeats its earlier statement that the only possible
budget impact that it foresees will be in travel and per diem expenses
of judges of the Special Court or Special Court of Appeals (institu-
tions not mentioned in S. 1566).
EXECUTIVE BRANCH ESTIMATE
The committee has received numerous comments from various Goy--
ernment agencies whose activities would be affected by 11-R. 7308.
However, the committee has never received any cost estimates from
the Government and is therefore unable to compare the Government's
costs to its own estimate pursuant to clause 7(a) (2) of rule XIII.
INFLATION IMPACT STATEMENT
The committee has examined H.R. 7308 to determine if there is a
possible inflationary impact on the national economy. Consistent with
the committee's earlier determinations as to the cost of H.R. 7308
and pursuant to clause 2 (1) (4) of rule XI the committee finds that
enactment of H.R. 7308 will have no significant effect on the national
economy.
OVERSIGHT FINDINGS
The committee had not received a report from the Comrittee on
Government Operations pursuant to clause 2 (1) (3) (D) of rule XI
as of the time of the filing of this report.
CHANGES IN EXISTING LAW
In compliance with subsection (3) of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be omitted
is enclosed in black brackets, new matter is in italic, and existing
law in which no change is proposed is shown in roman) :
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104
UNITED STATES CODE
TITLE 18-CRIMES AND CRIMINAL PROCEDURE
CHAPTER 119-WIRE INTERCEPTION OR INTERCEP-
TION OR ORAL COMMUNICATIONS
? 2511. Interception and disclosure of wire or oral communica-
tions prohibited
2(a) (ii) [It shall. not be unlawful under this chapter for an officer,
employee, or agent of any communication common carrier to provide
information, facilities, or technical assistance to an investigative or
law enforcement officer who, pursuant to this chapter, is authorized
to intercept a wire or oral communication.]
"(ii) Notwithstanding any other law, communication common
carriers, their officers, employees, and agents, landlords, cus-
todians, or other persons, are authorized to provide information,
facilities, or technical assistance to persons authorized by law to
intercept wire or oral communications or to conduct electronic
surveillance, as defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978, if the common carrier, its officers, em-
ployees, or agents, landlord, custodian, or other specified person,
has been provided with-
"(1) a court order directing such assistance signed by the
authorizing judge, or
"(2) a certification in writing by a person specified in sec-
tion 2518(7) of this title or the Attorney General of the
United States that no warrant or court order is required by
law, that all statutory requirements have been met, and that
the specified assistance is required,
setting forth the period of time during which the provision of the in-
formation, facilities, or technical assistance is authorized and specify-
ing the information, facilities, or technical assistance required. No
communication common carrier, officer, employee, or agent thereof, or
landlord, custodian, or other specified person shall disclose the exist-
ence of any interception or surveillance or the device used to accom-
plish the interception or surveillance with respect to which the person
has been furnished an order or certification under this subparagraph,
except as may otherwise be required by legal process and then only
after prior notification to the Attorney General or to the principal
prosecuting attorney of a State or any political subdivision of a State,
as may be appropriate. No cause of action shall lie in any court against
any communication common carrier, its officers, employees, or agents,
landlord, custodian, or other specified person for providing informa-
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tion, facilities, or assistance in accordance with the terns of an order
or certification under this subparagraph.".
"(e) Noty ithstanding any other provision of this title or section
605 or 601; of the Communications Act of 1.934, it shall not be unlawful
for an officer, employee, or agent of the United States in the normal
course of his official duty to conduct electronic surveillance, as defined,
in section 101 of the Foreign Intelligence Surveillance Act of 1978,
as authorized by that Act.
"(f) Nothing contained in this chapter, or section 605 of the Com--
m,.u:naications Act of 1931. (47 U.S.C. 605) shall be deemed to affect the
acq,aisition by the United States Government of foreign intelligence
information from international or f oreign communications by a means
other than electronic surveillance as defined in section 101 of the For-
eign Intelligence Surveillance Act of 1978; and procedures in this
chapter and the Foreign Intelligence Surveillance Act of 1.978 shall
be the exclusive means by which electronic surveillance, as defined in
section 101 of the Act and the interception of domestic wire and oral
communications may be conducted.".
[(3) Nothing contained in this chapter or in section 605 of the
Communications Act of 1934 (48 Stat. 1143, 47 U.S.C. 605) shall
limit the constitutional power of the President to take such measures
as he deems necessary to protect the Nation against actual or potential
attack or other hostile acts of a foreign power, to obtain foreign
intelligence information deemed essential to the security of the United
States, or to protect national security information against foreign
intelligence activities. Nor shall anything contained in this chapter
be deemed to limit the constitutional power of the President to take
such measures as he deems necessary to protect the United States
against the overthrow of the Government by force or other unlawful
means, or against any other clear and present danger to the structure
or existence of the Government. The contents of any wire or oral
communication intercepted by authority of the President in the
exercise of the foregoing powers may be received in evidence in any
trial, hearing, or other proceeding only where- such interception was
reasonable, and shall not be otherwise used or disclosed except as is
necessary to implement that power.]
? 2518. Procedure for interception of wire or oral communica-
tions
(1) Each application for an. order authorizing or approving the
interception of a wire or oral communication under this chapter shall
be made in writing upon oath or affirmation to. a judge of competent
jurisdiction and shall state the applicant's authority to make such
application. Each application shall include the following information :
(4) Each order authorizing or approving the interception of any
wire or oral communication under this chapter shall specify-
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An order authorizing the interception of a wire or oral, conlInunica-
tion under this chapter shall, upon request of the applicant, direct that
a communication common carrier, landlord, custodian or other person
shall furnish the applicant forthwith all information, facilities, and
technical assistance necessary to accomplish the interception unob-
trusively and with a minimum of interference with the services that
such carrier, landlord, custodian, or person is according the person
whose communications are to be intercepted. Any communication
common carrier, landlord, custodian, or other person furnishing such
facilities or technical assistance shall be compensated.therefor by
the applicant at the prevailing rates.
(9) The contents of any [intercepted] wire or oral communication
intercepted pursuant to this chapter or evidence derived therefrom
shall not be received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in a Federal or State court unless each
party, not less than ten days before the trial, hearing, or proceeding,
has been furnished with a copy of the court order, and accompanying
application, under which the interception was authorized or: approved
(10(a) Any aggrieved person in any trial, hearing, or proceeding
in or before any court, department, officer, agency) regulatory body,
or other authority of the United States, a State, or a political subdivi-
sion thereof, may move to suppress the contents of any [intercepted]
wire or oral communications intercepted pursuant to this chapter, or
evidence derived therefrom, on the grounds that-
(i) the communication was unlawfully intercepted.;
(ii) the order of authorization or approval under which it was
intercepted is insufficient on its face ; or
(iii) the interception was not made in conformity with the order
of authorization or approval.
? 2519. Reports concerning intercepted wire or oral communica-
tions
(3) In April of each year the Director of the Administrative Office
of the United States Courts shall transmit to the Congress a full and
complete report concerning the number of applications for orders
authorizing or approving the interception of wire or oral communica-
tions pursuant to this chapter and the number of orders and exten-
sions granted or denied pursuant to this chapter during the preceding
calendar year.
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SUPPLEMENTAL VIEWS OF REPRESENTATIVE
ROMANO L. MAZZOLI
In joining the House Intelligence Committee in August of 1977, I
did so with full awareness of the difficulty and the magnitude of the
task which faced it.
I -view the basic mission of our committee as one to reconcile the
sometimes competing interests of national security and civil liberties.
Nowhere is this reconciliation more difficult than in the area of for-
eign intelligence electronic surveillance.
Electronic surveillance, by its very nature, intrudes upon someone's
privacy-the basic right to be left alone. At the same time, our Gov-
ernment must necessarily engage in electronic surveillance activities
to carry out its foreign intelligence mission.
To maintain a proper balance here, all foreign intelligence electronic
surveillance must be conducted pursuant to official authorization and
subject to clear and enforceable guidelines.
Our recent history leads to the inescapable conclusion that the execu-
tive branch of government cannot be left to police itself in this area.
Congress, by statute, must provide the necessary authorizations, and
regulations for foreign intelligence electronic surveillance.
In doing so, Congress must be guided by several factors : the basic
civil liberties of the people must be protected; the nation's legiti-
mate intelligence activities must not be impeded; the public's confi-
dence in the U.S. intelligence community must be restored; and, in-
dividual intelligence agents must be protected from law suits stem-
ming from official duties faithfully performed.
Since H.R. 7308, as reported by the house Intelligence Committee,
generally speaks to these factors, I support the measure and urge its
prompt passage by the House.
However, I could have supported H.R. 7308 with much more vigor
had it provided for an across-the-board judicial warrant for all. foreign
intelligence electronic surveillance conducted in the United 'States.
This was the way the measure read as it was reported by the Subcom-
mittee on Legislation, on which I am privileged to serve.
However, after thoughtful debate, the full committee redrafted the
bill to eliminate the warrant requirement for two classes of electronic
surveillance directed at certain foreign powers.
I voted against this change and remain firmly of the opinion that a
judicial warrant should be obtained for all foreign intelligence elec-
tronic surveillances.
In. this position, I share the view of Attorney General Griffin Bell.
He states that the warrant process is the traditional means utilized
by our legal system to assure citizens that their government adheres to
strict legal process when it must engage in intrusive activities.
The judicial. warrant process is the legal process most people under-
stand and in which they have confidence.
(107)
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Of equal importance, it is a process which protects the individual
field agent. Too often intelligence agents face "after-the-fact" criminal
or civil liability for engaging in activities which apparently were au-
thorized and ordered by their superiors. The result is low morale
within the intelligence community and an understandable reluctance to
carry out intelligence-related activities.
The committee's decision to provide a narrow exception to the
warrant requirement places a field agent in a predicament. The agent
mist evaluate a superior officer's order to decide whether it is lawful
and can be followed without exposing the agent to a lawsuit some-
where down the road.
Only a judicial warrant-issued by a court after a convincing show-
ing of need by the Government-provides the protection needed by
the intelligence agent in the field.
Noting these reservations, I reiterate my strong support for H.R.
7:308. It evidences the I-louse Intelligence Committees thoughtful
discharge of the delicate task assigned it..
In striking an essentially proper balance between the interests of
national security and the privacy rights of individuals, H.R. 7308
demonstrates the mature belief that a democratic government can
protect itself from its enemies while at the same time honoring the
liberties of its citizens.
ROMAN o L. MAZZOLI.
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ADDITIONAL VIEWS OF REPRESENTATIVES MORGAN
F. MURPIIY AND CHARLES ROSE
Though we fully support the committee reported bill, we feel com-
pelled to pen these additional views in order to correct some of the mis-
conceptions contained in the dissenting views of our colleagues.
Nowhere, for instance, is it mentioned in the dissenting views that
the Attorney General and the Director of the FBI have not only stated
that the committee bill will not impede intelligence collection, but have
also noted that the bill will in fact foster necessary intelligence activ-
ities and protect intelligence agents in the conduct of their legitimate
activities.
Nowhere is it mentioned in the dissenting views that the Attorney
General and the Director of the FBI prefer the "criminal standard" of
the committee bill over the so-called non-criminal standard that is con-
tained in the McClory substitute.
Nowhere is it mentioned that in a written opinion submitted to the
committee the Justice Department concluded that judicial considera-
tion of warrant applications comports fully with the "case of contro-
versy" requirement of article III of the Constitution.
Finally, nowhere is it mentioned that at the present time a civil suit
is pending against the Attorney General and several intelligence per-
sonnel for activities authorized and conducted under existing execu-
tive guidelines, which activities the judge in the Truong/IIumphrey
case found to be unconstitutional because they were not conducted pur-
suant to a judicial warrant.
When we turn to what is mentioned in the dissenting views, it be-
comes reasonable to ask if we are commenting on the same bill, testi-
mony and report..
For example, as the majority report notes in detail, the committee
bill is not premised on the proposition that the fourth amendment re-
quires a warrant for every search.
Nor did any intelligence community personnel, in either open or
closed session, state or imply that a warrant requirement "would pose
serious threats to the two most important elements in effective intelli-
gence gathering: (1) speed and (2) security." Indeed, the only intelli-
gence collection activity about which any reservation was expressed
has been exempted by the committee bill from a warrant requirement.
Philip Lacovara is cited in the dissenting views as stating that the
most effective way of preventing abuses is fixing record responsi-
bility, suggesting that he would support a nonwarrant proposal.
In fact, Mr. Lacovara in both his law review article and testimony
supported a warrant requirement and specifically opposed a non-
warrant approach. The fixing of record responsibility was only one,
and not the most important, reason for his support of a warrant.
The Attorney General is cited as noting that there is substantial
question whether the fourth amendment protects foreigners in the
(109)
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United States. The dissenters ignore the Department of Justice let.
ter written to the committee specifically in response to a question by
the committee. That letter unequivocally states that foreigners in
the United States are protected by the fourth amendment, if they
do not enjoy diplomatic privileges.
The dissenters claim that .a steady stream of sensitive information
will go to "at least 17 judges (and their clerks, reporters, and bail-
iffs)." They ignore the fact that the bill specifically provides that
court support personnel may be provided by the Executive,. as the
Supreme Court suggested in Keith. They ignore the fact that an
application is made to only 1 judge, not to 17, and that. 6 of the 17
judges are on the Special Court of Appeals. They also ignore the
parallel experience in the law enforcement field where, over. a period
of 10 years, no wiretap application has ever been appealed.
Finally, the dissenters refer to the bill as having.an across-the-
board warrant requirement. They ignore the fact that the bill specifi-
cally authorizes the most sensitive class of surveillances without a
warrant requirement and specifically provides for warrantless emer-
gency surveillances where there is insufficient time to get to the
court (so much for the alleged threat to security posed by the need
for speed). And nowhere do the dissenters acknowledge that only
where U.S. citizens may be involved is a warrant required by the
One unassailable point emerges from the committee's consideration
of H.R. 7308: Every intelligence community witness that has testified
before this committee supports passage of the committee reported
bill.
MORGAN F. MURPHY.
CHARLIE ROSE.
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DISSENTING VIEWS ON ILR. 7308 ,
The President, both as Commander-in-Chief and as the
Nation's organ for foreign affairs, has available intelligence
services whose reports are not and ought not to be published
to world. It would be intolerable that courts, without, the
relevant information, should review and perhaps nullify
actions of the Executive taken on information properly held
secret. Nor can courts sit in camera in order to betaken into
.executive confidences. But even if courts could require full
disclosure, the very nature of executive decisions as- to "for
eign policy is political, not judicial. Such decisions are
wholly confided by our Constitution to the political, depart-
ments of the government, Executive and Legislative. They
are delicate, complex, and involve large elements of `proph-
ecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they
advance or imperil. They are decisions of a kind for which
the Judiciary has neither aptitude, facilities nor -responsi-
bility and which has long been held to belong in the domain
.of political power not subject to judicial intrusion or
inquiry.
't'hese words are as true today as they were when Justice Jackson
wrote them. for the Supreme. Court in 1948. Unfortunately, the
committee ignored this lesson in constitutional law. By re hiring a
judicial warrant to authorize the use of electronic surveillance to
gather oreign intelligence information, H.R. 7308 would thrust the
judicial branch into the arena of foreign affairs and. thereby
improperly subject "political" decisions to `judicial intrusion."
No one can deny that abuses of electronic surveillance have taken
place in the past under the claim of "national security.". The action
taken by the, committee to amend and then approve H.R. 7308 is
intended as an answer to those abuses. But, it ignores the experience
of the past few years under Executive orders issued by Presidents
Ford and Carter. These guidelines were designed to regulate the use
of electronic surveillance for foreign intelligence purposes, and all
of the evidence received by the committee indicates that they have
served their purpose of making this method of intelligence gathering
abuse-free.
The .committee bill would pack up all of the problems involved in
this sensitive and complex area of foreign intelligence electronic
surveillance and ship them to a specially established Federal court.
Here are some of the things H.R. 7308 would do :
iChicago cE Southern Air Linea, Inv. v. Waterman Steamship Corp? 333 U.S. 103, 111
(1948) (citations omitted).
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It would give to a single judge the power to deny the President the
use of electronic surveillance of an individual-despite the fact that
the court may have found the individual to be a spy working for a
foreign government against the interests of the United States. 2
It would give to a single judge the authority and responsibility to
order (or refuse to order) our intelligence agencies to engage in for-
eign intelligence electronic surveillance-despite the fact that all of
the court decisions which have dealt with the issue clearly establish
that the fourth amendment does not require a judicial warrant to
authorize surveillance of foreign powers or their agents.
Finally, it would give to a special. court the primary responsibility
of oversight of the executive branch's use of electronic surveillance
for foreign intelligence purposes-despite the fact that the Consti-
tution reposes such responsibility in the Congress. This is not simply a case of overkill. It is-in addition-as former
Deputy Attorney General Laurence Silberman declared before the
committee's Legislation Subcommittee, "an enormous and fundamen-
tal mistake which the Congress and the American people would have
reason to regret."
Because our Government needs accurate information to protect our
country from the hostile acts of foreign powers, it is necessary to en-
gage, in electronic surveillance of the agents of such powers. This is
true if the agents are foreigners, as well as in the rare situation that
a traitorous American citizen is working clandestinely for a foreign
power. It would plainly be inappropriate to go. beyond the fourth
hmendment mandate by requiring a warrant to authorize such activi-
ties, for as Judge Bryan stated in his recent opinion in the Ilttart-
phrepy/Tro ung espionage case:
It is not at all certain that a judicial officer, even an ex-
tremely well-informed one, would be in a position to evaluate
the threat posed by certain actions undertaken on behalf of
or in collaboration with a foreign state . . . The Court is per-
suaded that an initial warrant requirement [for foreign in-
telligence electronic surveillance] would frustrate the Presi-
dent's ability to conduct foreign affairs in a manlier that best
protects the security of our government.a
It is contended that, nothing in the judicial warrant procedure in
this bill threatens the national security. For support, it is noted that
"If the proposed surveillance target is a U.S. citizen or permanent resident alien,
a senior executive branch official must certify that the information. sought is "necessary"
to certain defined security or foreign policy Interests of the United States. Even after
finding the target to be working clandestinely for a foreign power, the court can deny an
Ipplication for authorization of surveillance if it finds that the information is not
"necessary."
., United States V. Burk, 548 F.2d 871 (9th Cir. 1977) ; United States v. Butenko, 494
1.2d 871 (3rd Or. 1974) (en bane), cert. den. sub nom., Ivanou v. United States, 419 U.S.
!;R1 (1974) ; United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. den., 415
U.S. 960 (1974) ; United States v. Humphrey and Troung, Crim. No. 78-25-A (E.D. Va.,
mem. opinion March 30, 1978).
411,11. 7308, Section 105(d).
r Hearings before the Subcommittee on Legislation of the House Permanent Select Com-
mittee on Intelligence, Hearings on the Foreign Intelligence Electronic Surveillance Bills,
95th Cong., 2d Sess. (1978) [hereinafter. Hearings].
United States v. Humphrey and Troung, Crim. No. 78-25-A (E.D.Va.. mem. opinion
lurch 30, 1978). The defendants were convicted In a jury trial on May 19, 1978 on espion-
age and other charges.
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no administration official testified that the bill would frustrate our
intelligence .gathering operations.
These senior members of the intelligence community were testifying
publicly on II.R. 7308 its introduced-that is, to a bill that required a
a judicially- authorized warrant in all cases. They were carrying the
administration banner in full support of the bill.
However, as time went on some administration officials broke ranks
to support an exception to the across-the-board warrant requirement.
Despite strong pressures from administration leaders outside of the
intelligence community, these highly knowledgeable operating intelli-
gence personnel conceded that a warrant requirement, by mandating
prior disclosure to judges of the most sensitive intelligence informa-
tion, would pose serious threats to the two most important elements in
effective intelligence gathering: (1) speed and (2) security.
The real possibilities of delay and disclosure of classified information
are risks the intelligence community should not be required to take.
For example, the threat of disclosure is obvious when it is remembered
that H.R. 7308 requires that it steady stream of extremely sensitive
written information flow to at least 17 judges (and their clerks, report-
ers, and bailiffs), all of whom are ill-equipped. to provide the required
security procedures. Clearly, the more people who become involved in
intelligence activities, the greater the risk of disclosure. As the Direc-
tor of Central Intelligence, Adm. Stansfield Turner, has often indi-
cated :
Minimizing the number of people who have to have access
to this information is a basic security principle.'
In short, the committee bill represents the very kind of interference
with Executive authority that frustrates effective foreign policy and
national security actions by a responsible chief executive.
Fortunately, the committee took heed of these warnings and adopted
an amendment, offered by Mr. McClory, which exempted certain
highly technical. surveillance activities from the warrant requirement.'
Without the pressures which were applied, we are confident that
these same officials would have candidly expressed other reservations
about the legislation. Suffice it to say that many in the intelligence
community regard this bill as a serious threat to our country's na-
tional security by opening to compromise the security of our intelli-
gence-gathering operations.
TIIE CONSTITUTION AND FOREIGN INTELLIGENCE GATHERING
Article II of the Constitution provides that the President shall "pre-
serve, protect and defend the Constitution of the United States." s
He is he Commander-in-Chief of the Armed Forces of this country
and has primary responsibility for the conduct of our foreign affairs.
In the execution of these duties, and as head of state, he therefore
exercises powers to protect the national security.
Among such powers is the power to authorize Intelligence-gathering
activities aimed at efforts of foreign governments or their agents which
Hearings.
This was referred to as McClory Amendment Ix.
0 Article II, section 1, clause 7.
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are inimical to the security of the United States. While statutory reg-
ulation of this technique seems proper, it is clearly inappropriate to
inject` the Judiciary into this realm of foreign affairs and national
defense which is constitutionally delegated to the President. and to
the Congress.
The committee bill rests on the proposition that the fourth amend-
ment to the Constitution presumptively requires a warrant for every
search, and particularly electronic searches because of their sweeping
character. The underlying reasoning for this assertion was that in
view of the Supreme Court's decision. in the Keith. 10 case (which ruled
that a warrant is required for electronic surveillances employed for
domestic security purposes-that is, where no involvement of a, for-
eign power is shown), it would be appropriate to require a warrant
for foreign intelligence purposes.
Such an argument overlooks the clear reservation in Keith that the
court was in no way addressing the issues involved in foreign intelli-
gence electronic surveillance.11 This argument also ignores the weight
of circuit court cases upholding the inherent constitutional right of
the President to authorize warrantless electronic searches for foreign
intelligence purposes. Just last year, the ninth circuit declared, "For-
eign security wiretaps are a recognized exception to the general war-
rant requirement [of 'the fourth amendment]." 12
It should be noted that the only strong support for the argument
that the fourth amendment mandated a warrant in the area of foreign
intelligence gathering came from the bill's strongest proponent-the
American Civil Liberties Union (ACLU). Actually, the ACLU con-
tends that even with a warrant there is inadequate protection of pri-
vacy, urging that all electronic surveillance-for whatever purpose-
is unconstitutional in that it violates the fourth amendment.
Let us hope that no judge ever agrees with that position. But, if only
one judge of the special court established by this bill should so find,
he could for an uncertain and critical period virtually paralyze vital
intelligence-gathering activities.
Most of those who testified before the subcommittee-even propon-
ents of the bill's warrant provision-argued that a warrant is not con-
stitutionally required. This, indeed, is the very position put forward
by the Justice Department, and sustained by the court, in the Hum,-
phrey/Trounq case.
In this regard, it is interesting, and somewhat ironic, that the At-
torney General now voices strong support for the bill's warrant pro-
vision. When sitting on the Fifth Circuit Court of Appeals, Judge
Bell expressed, in United States v. Brown, a diametrically opposite
view :
In United States v. Clay, the case, referred to in the
Supreme Court's footnote 20 [to the Keith case], we con-
cluded that the President had [the authority to engage in
foreign intelligence electronic surveillance] over and above
the Warrant Clause of the Fourth Amendment.
to United States v. United States District Court, 407 U.S. 297 (1972). The Honorable
Damon J. Keith, of the Pastern District of Michigan, was the district judge whose orders
the government was challenging.
11 407 U.S. at 308, 321-22.
13 United States v. Buelc, 548 F. 2d 871, 875 (9th Cir. 1977). See cases cited, supra,
note 3.
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We'- found that authority in the inherent power of the
President with respect to conducting foreign affairs. We took
our'titfrom Chicago cC Southern Air Lines v. Waterman
S.S. Camp., where the Supreme Court stated :
"[T]he President, both as Commander-in-Chief and as the
Nation's organ for foreign affairs, has available intelligence
services whose reports are not and ought not to be published
to the world. It would be intolerable that courts, without the
relevant information, should review and perhaps nullify
actions of the Executive taken on information properly held
secret."
As [the Keith case] teaches, in the area of domestic security,
the President may not authorize electronic surveillance with-
out some form of prior judicial approval. However, because
of the President's constitutional duty to act for the United
States in the field of foreign relations, and his inherent power
to protect national security in the context of foreign affairs,
we reaffirm what we held in United States v. Clay, supra, that
the President may constitutionally authorize warrantless
wiretaps for the purpose of gathering foreign intelligence.
Our holding in Clay is buttressed by a thread which runs
through the Federalist Papers : that the President must take
care to safeguard the Nation from possible foreign encroach-
ment, whether in its existence as a, nation or in its intercourse
with other nations.13
Because the Constitution does not demand a warrant in this area,
the issue as to whether or not a warrant should be required presents A
question of policy. The policy called for is the one which will best
serve the interests of the American people, for these are the people
referred to in the Preamble to our Constitution-"We the pco--
ple ..."-and in the fourth amendment-"The Right of the People
to be secure . . . against unreasonable Searches and Seizures shall
not be violated." Yet, as the Attorney General has publicly indicated,
based on existing guidelines during the past 18 months only one
American citizen 14 has been subject to electronic surveillance. There-
Tore, from a practical standpoint, by enacting the administration bill,
we would be establishing a cumbersome procedure involving the un-
precedented injection of judicial discretion into foreign intelligence
decision-making, all to add incrementally, if at all, to the protections
which already exist.
Judicial authorization of electronic surveillance for national secu-
rity purposes poses another constitutional question: There is serious
doubt as to whether the Constitution even permits judicial consider-
ation of such warrant applications as MR. 7308 contemplates, for
article III limits Federal courts to "cases" and "controversies."
This requirement is clearly met in situations where the government
contemplates prosecution. Where this is unlikely at all-and where
18 United States v. Brown, 484 F. 2d 418, 426 (5th Cir. 1973), cert. den., 415 U.S. 960
D74) (citations omitted) (emphasis added).
(1(
14 Ronald Louls Humphrey. See United States v. Humphrey and Troung, supra, note 6.
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Presidential conduct of foreign affairs is involved-it becomes a very
real question as to whether any case will ever develop for a court to
hear. There might never be an adversary proceeding in which the Judi-
ciary could play its impartial role. Rather, by involvement in the
authorization process of foreign intelligence gathering by electronic
surveillance, judges can actually become involved in the operation of
intelligence activities. It will likely be rarely considered that an adver-
sary hearing is the inevitable result of electronic surveillance under
H.R. 7308. Dictates of security have always (with only one excep
tion) ' militated against prosecutions in the past. Based on this expe-
rience, it requires a severe straining of Article III to view the activities
which the bill seeks to authorize as constitutionally sufficient to allow
judicial. involvement-..
In addition to the constitutional provisions which, we believe, allow
for warrantless electronic surveillance for foreign intelligence pur-
poses, there are substantial practical and policy considerations which
militate against involving the Judiciary in foreign intelligence matters
of this kind.
To begin with, Federal judges are for the most part unequipped,
either by training or experience, to make the subtle political .and oper-
ational decisions that must be made, daily by intelligence personnel.
Judges are simply not selected in order that they might pass on the
merits of foreign intelligence gathering just as they are not called
upon to draft treaties or negotiate trade agreements-and this is how
it should be.
To say that the judges will be engaged solely in the normal judicial
role of applying statutory criteria to a set of facts is to beg the ques-
tion, for the criteria themselves involve intelligence-related judgments.
As pointed out by Laurence Silberman in his testimony before the
Subcommittee on Legislation :
The scope of judicial review for targeted United States
persons under the Administration bill clearly propels the
judiciary into policy determinations of breathtaking scope.1e
For example, in reviewing the certification that the information
sought is foreign intelligence information under the "clearly errone-
ous" standard'17 the judge must consider what information "is neces-
sary to the ability of the United States to protect against actual or
potential attack or other grave hostile acts," 18 and what information
with respect to a foreign power "is necessary to the national defense" is
or the successful "conduct of foreign affairs." 20
Finally, even if the bill does carefully establish strict guidelines for
the special court to follow, judges apparently cannot be compelled to
limit their roles within legislative restraints. One need only note recent
ib I7nited ,States v. Humphrey and Troung, supra, note 6.
to I3earinas.
'7 TLR. 7308, section 105 (a) (5).
18 H.R. 7308, Section 101 (e) (1).
11 Fi.R. 7308, Section 101(3) (2) (A).
-ro TT,R. 7308, Section 101 (e) (2) (B).
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court decisions in the field of environmental law to find support for
this assertion. Likewse, let there be no question in anyone's mind that
judges, if assigned the prerogatives in the committee bill, will under-
take and expand upon any such role granted to them by this legislation.
CONGRESSIONAL OVERSIGHT
r The use of electronic surveillance to gather foreign intelligence
information is important to our relations with foreign governments.
As it effects the conduct of our foreign affairs it can be seen to involve
political decisions. These decisions-in the first instance-are prop-
erly made by the Executive. But history shows that the Executive
cannot .he given unbridled discretion in directing intelligence activi-
ties. Thus. comes into play the need for congressional oversight.
It is the .Congress which can best assure the proper functioning-
without abuse-of our intelligence gathering operations by exercising
its constitutionally assigned role of a political check on the Executive.
Aggressive oversight will let the Executive know that, should abuses
occur, they will not go undiscovered, undisclosed, or unpunished. In-
deed, the reason that select committees on intelligence were estab-
lished in both Houses was to facilitate effective congressional over-
sight of intelligence community operations.
H.P. 7308 would not only require a judge to give prior judicial
sanction to each use of foreign intelligence electronic surveillance,
but it also would empower the court to look into the day-to-day opera-
tions of this activitv.21 After the warrant was issued, the court would
be allowed: to gain access to all information obtained by the surveil-
lance to see that intelligence personnel did not improperly obtain,
use, or disseminate such information.
By giving the primary oversight function to a special court, Con-
gress could easily be lulled into laziness, feeling that the court was
adequately reviewing the situation. But the judges of this court-who
each will only be serving perhaps one or two months out of the year-
will be ill-equipped to meet the task.
The operations, in total secrecy, of 17 judges who are politically
unresponsive to the American people can do little to further the goal
of restoring public trust in our intelligence agencies. This is a job
requiring the resources--and the political sensitivity and account-
le ability-of the Congress.
Beyond the obvious folly of vesting broad powers in judges who
may thereby consider themselves qualified to second guess both the
President and his Cabinet officers, the bill would open a Pandora's box
of other issues.
One such issue created by H.R. 7308, as amended by the committee,
would be involved where the person to be targeted for foreign intelli-
gence electronic survellance is a "United States person." In such
cases the court may approve such surveillance only where the person
targeted may be involved in some criminal activity. The concept that
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national security electronic surveillance must be linked to a criminal
standard is nowhere to be found in the Constitution.22 The fourth
amendment provides protection against unreasonable searches and
seizures. When the government seeks evidence to support a prosecu-
tion, it may be reasonable to require that the probable cause standard
apply to the issue of criminality itself. Where, however, the object of
the government is to gather intelligence relating to national security
or defense of the country, the situation is very different.
Whether the activities which the President may wish to scrutinize
are illegal or not is not of primary importance, for the goverument-
does not seek the information to prosecute. While prosecution may
prove to be a viable option, the main thrust of our efforts in this area
are to protect against foreign intelligence activities which threaten our
security. Prosecution may be, as most often has been the case, inap-
propriate or harmful to that effort. To impose a criminal standard,
therefore, adds a requirement, not mandated by the Constitution, which
could in fact inhibit powers reserved to the Executive.23
FIXING RECORD RESPONSIBILITY IS KEY TO PREVENTING ABUSE
A primary lesson that has been learned from the disclosures of
abuses by past administrations is the need to insure high level execu-
tive branch responsibility and accountability for particular actions
taken in the name of national security. Yet, ILR. 7308, as amended,
will surely have the opposite effect.
It should be seen that by shifting from the President to the judiciary
the responsibility to authorize foreign intelligence electronic surveil-
lance, the courts become a buffer to Executive accountability. The
decision as to whether a surveillance may be undertaken will be the
judge's, not the President's. If an intelligence agency wants to use
electronic surveillance for an improper purpose, an application can
be made to a court for authorization. In this secret proceeding the
strongest response a judge can make to the application is to deny it.
But, it appears inevitable that some judges-perhaps by granting
too much deference to the intelligence community-might give ap-
proval to abusive actions. In the face of an abusive surveillance, the
Executive would be able to wash its hands of the whole matter by
passing the buck to the judge that approved it. Furthermore, knowing
that responsibility for the final decision rests elsewhere, government
officials would be inclined to refer all doubtful or particularly difficult
cases to the judge.
It is even more likely that executive branch scrutiny will wane
over time if, as proponents of the warrant requirement concede, ap-
Even the plurality opinion in Zweibon v. Mitchell, 516 F. 2d 594 (D.C. Cir. 1975)-
which held that a warrant is required in domestic security cases, and which in dicta indi-
cated that the fourth amendment mandates a warrant for all electronic surveillances-
found no need for a criminal standard.
es To mandate a judicial finding of criminal conduct before a warrant may be Issued to
search for foreign intelligence information can be seen as particularly onerous in light of
the recent Supreme Court decision in Zarcher v. Stanford Daily, 46 USLW 4546 (MIay 31,
1978). There, the Court held 5-3 that in a law enforcement context-where one might ex-
poet the restrictions on government actions to be greater than in foreign intelligence mat-
ters-a search warrant may properly be Issued to obtain information even from a totally
innocent person If there is probable cause to believe that such information relates to a
criminal violation.
Nee also Marshall v. Barlow's, Inc., 46 USLW 4483 (May 23, 1978), a case striking down
warrantless OSHA searches, in which the Court held that fourth amendment warrants may
be issued without a probable cause determination that a crime has been committed.
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plications for warrants will be rarely, if over, denied. If such a "rubber
stamp" procedure is the likely result, it is difficult to perceive how
the American people will thereby regain confidence in our intelligence
agencies.
As former Solicitor General and Acting Attorney General Robert
Bork, now a Yale law professor, commented :
When an Attorney General must decide for himself, with-
out the shield of a warrant, whether to authorize surveil-
lance, and must accept the consequences if things go wrong,
there is likely to be more care taken. The [Administration
bill], however, has the effect of immunizing everyone, and
sooner or later that, fact will be taken advantage of. It would
riot be the first time a regulatory scheme, turned out to benefit
the regulated rather than the public.24
Under the current guidelines of Executive Order 12036,. it is the
Attorney General who individually passes judgment on each use of
foreign intelligence electronic surveillance. It is unpersuasive, indeed,
for the Attorney General to seek to renounce a responsibility he now
has by urging that a special court should make decisions for h.im when
foreign intelligence surveillance is needed in behalf of our country's
national security.
In reviewing the abuses of the past, it can be seen that the method
used by senior executive branch officials to try to escape responsibility
was by establishing "plausible deniability." As noted by Philip La-
covara, the former Counsel to Watergate Special Prosecutors Archi-
bald Cox and Leon Jaworski, the most effective way to prevent these
abuses would be to fix record responsibility on those who authorize
foreign intelligence electronic surveillance.25
It appears doubtful that anyone would abuse this authority if a
statute provided that:
(1) all authorizations of surveillance be made in writing.
(2) all written records be maintained and be subject to later
inspection by the duly constituted House and Senate intelligence
committees.
(3) any abuse would subject the guilty party to civil and crimi-
nal liability.
This three-part solution represents the foundation for the substitute
measure offered in the committee by Congressman McClory. The Mc-
Clory substitute would strike the most realistic balance between our
necessary foreign intelligence and national security needs and the
liberties which are bound to defend through such activities. It would
retain within the Executive--where it should be-the authority to
approve foreign intelligence electronic surveillance. Such activities
would require the approval in writing of the Attorney General and
a confirmed senior executive branch official. In addition, when the
target is an American citizen, the President's approval would also be
needed. These duties would be nondelegable. By requiring the con-
24 "Reforming Foreign Intelligence," Wall Street Journal, March 19, 1978.
Lacovara. "Presidential Power to Gather Intelligence," 40 Law & Contemporary Prob.
106 (1976) ; Bearings.
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census of the President and the two highest national security officials
to approve.a surveillance, it is clear that the proposed statutory author-
ity would only be used when truly required by the national interest.
Furthermore, such a consensus requirement would provide a true
measure of Executive accountability.
Some who support the committee's bill assert that only a law man-
dating a warrant will put to rest the concerns over fourth amend-
ment requirements. This is nonsense. All of the witnesses heard by the
subcommittee who addressed the McClory substitute-including those
who favor a warrant provision-attest to its constitutionality. Even
Morton Halperin, who strongly aligns himself with the ACLU, so
testified :
I think it is also clear that [the McClory bill] would make
it much more likely that the courts would accept warrantless
wiretaps because they would then be done on the basis of
both Congressional and Executive Branch authorization.26
Clearly, the McClory substitute would pass constitutional muster.
Those who prefer H.R. 7308 to the substitute also argue that while
the former would prevent abuses by interposing the judiciary between
the expressed desire to engage in surveillance itself, the substitute
would provide only an after-the-fact discovery mechanism. This anal-
ysis is patently erroneous. The substitute bill would establish strict
statutory guidelines-with civil and criminal penalties for their viola-
tion-along with the requirement that authorizations be made in
writing. Thus, the. substitute would provide a completely adequate
deterrance to abuse.
No matter what the law, if an executive branch official chooses to
engage in abusive electronic surveillance, he need only ignore the
statutory requirements, whatever they may be. However, under the
provisions of either H.R. 7308 or the substitute, ignoring the statute
would be a criminal violation.
With this in mind, it can be seen that the McClory substitute pro-
viding for oversight by the House and Senate Intelligence Committees
represents a sufficient statutory solution to a complex problem. This
being so, there appears to be no compelling reason to go further by
providing for a judicial role in intelligence matters, especially when
to do so is historically unprecedented and constitutionally suspect.
Assuming, arguendo, that a judicial warrant for foreign intelligence
electronic surveillance will somehow act as a talisman under which
abuses and the doubts of the American people will disappear, it is
nevertheless suggested that the across-the-board warrant requirement
of H.R. 7308 is unnecessary and unwise. If at all. justified, it is only so
where U.S. citizens are involved. Perhaps, in this limited area, the
sense of protection of civil liberties perceived to be gained by a war-
rant requirement would outweigh the many ill effects that would
result therefrom. IIowever, it is unlikely that foreign embassies, gov-
ci_nments, or visitors have a legitimate or reasonable expectation of
privacy under the fourth amendment or that the American people are
demanding that our intelligence agencies provide more protection to
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foreign agents. As Attorney General. Bell noted in his testimony,
before the Subcommittee on Legislation, there is substantial doubt
as to whether the, fourth amendment applies to foreigners and their
governments.27 And, even if it does apply, it is certainly "reason-
able"-as the fourth amendment requires-for the President to order
surveillance of foreigners and foreign embassies without judicial
approval.
While the committee did not adopt this view, it must be noted that
a compromise amendment that would have extended the warrant only
to United States persons failed on a six-to-six tie vote.28 Therefore,
any assertion that the committee overwhelmingly supports the across-
the-board warrant provision of II.R. 7308 is quite incorrect-and
misleading.
If ]'resident Carter feels that the Congress has already tied his hands
in such a manner as to thwart his conduct of foreign affairs-he should
be doubly apprehensive of this measure (H.R. 7308) under which the
Congress could well frustrate his ability to secure, by electronic means,
foreign intelligence essential to the protection of our national security.
We urge the rejection of H.R. 7308 and the approval of an amendment
in the nature of a substitute which will be offered by Congressman
McClory.
BOB WILSON.
ROBERT MCCLORY.
J. KENNETH ROBINSON.
JOHN M. ASHBROOK.
21 Hearings.
=s This was referred to as McClory Amendment H.
O
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