FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000500040005-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 38
• Document Creation Date: December 19, 2016
• Document Release Date: September 20, 2005
• Sequence Number: 5
• Publication Date: September 7, 1978
• Content Type: OPEN

,;eptember 7, I1S I8 ved For R 1J1W;..:[e-mail] ij 000500040005-0
FOREIGN INTELLIGENCE SUR-
VEILLANCE ACT OF 1978 .
Mr. MURPHY of Illinois. Mr. Speaker,
I move that the House resolve itself into
the Committee of the Whole House on
the State of the Union for the further
consideration of the bill (H.R. 7308) to
amend title 18, United States Code, to
authorize applications for a court order
approving the use of electronic surveil-
lance to obtain foreign intelligence infor-
l 1ation.
The SPEAKER. The question Is on the
motion offered. by the gentleman from
Illinois (Mr. MURPHY).
The motion was agreed to.
IN THE COMMITTEE OF THE WHOLE
Accordingly the House resolved itself
into the Committee of the Whole House
on the State of the Union for the fur-
ther consideration of the bill, H.R. 7308,
with Mr. MURTHA -(Chairman pro tem-'
pore) in the chair.
The Clerk read the title of the bill.
The CHAIRMAN pro tempore. When
the Committee rose on Wednesday, Sep-
tember 6, 1978, the Clerk had read
through line 25 on page 64.
Are there any further amendments to
title I?
AMENDMENT OFFERED BY MR. BUTLER
Mr. BUTLER. Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. BUTLER: Page
64, after line 25, add the following new
section:
CONSTITUTIONAL POWER Or THE PRESIDENT
SEC. 111. Nothing contained in chapter 119
of Title 18, United States Code, section 605 of
the Communications Act of 1934, or this Act
shall be deemed to affect the power vested
by the Constitution in the President to ac-
quire foreign intelligence information by
means of an electronic, mechanical, or other
surveillance device.
(Mr. BUTLER asked and was given
permission to revise and extend his re-
marks.)
Mr. BUTLER. Mr. Chairman, H.R.
7308 denies the existence of any in-
herent authority on the part of the
executive to coniduct warrantless elec-
tronic surveillance by vesting Federal
courts with the jurisdiction to author-
ize-or to refuse to authorize-through
a warrant procedure, foreign intelligence
gathering activities. The judicial war-
rant approach in the administration's
bill is premised on the proposition that
the fourth amendment. to the Constitu-
tion, presumptively requires a warrant
for every search.
The underlying reasoning for this as-
sertion is the Supreme Court's holding
in the Keith case, where they ruled that
a warrant is required for electronic sur-
veillance employed for domestic securi-
ty purposes. However, the warrant re-
quirement in the Keith case was limited
to domestic security oases, as the courts
made it clear that they were in no way
addressing, the issues involved in foreign
intelligence electronic surveillance.
Not only is there no existing case au-
thority for vesting the Federal courts
with jurisdiction to authorize or refuse
to authorize foreign Intelligence gather-
ing activities as proposed in H.R. 7308,
but the U.S. Supreme Court has ex-
plicitly rejected such authority in Chica-
go & Southern Air Lines Inc. v. Water-
man Steamship Corp., 333 U.S. 103, 111
(1948) holding:
It would be intolerable that courts,
without the relevant information, should re-
view and perhaps nullify actions of the Exec-
utive taken on information properly held
secret. Nor can courts sit in camera in order
to be taken into executive confidences. But
even if courts could require full disclosure,
the very nature of executive decisions as to
foreign policy is political, not judicial. Such
decisions are wholly confided by our Consti-
tution to the political departments of the
government, Executive and Legislative. They
are delicate, complex, and involve large ele-
ments of prophecy. They are and should be
undertaken only by those directly responsi-
ble to the people whose welfare they advance
or imperil. They are decisions of a kind for
which the Judiciary has neither aptitude, fa-
cilities nor responsibility and which has
long been held to belong in the domain of
political power not subject to judicial intru-
sion or inquiry.
Even the most recent espionage case
United States v. Humphrey & Troung,
Crim. No. 78-25-A, E. D. Va., May 19,
1978, stated:
It is not at all certain that a judicial officer,
even an extremely 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 persuaded that an initial war-
rant requirement (for foreign intelligence
electronic surveillance) would frustrate the
President's ability to conduct foreign affairs
in a manner that best protects the security
of our government.
All the Federal judicial circuits which
have considered the issue of the inherent
constitutional right of the President to
authorize warrantless electronic sur-
veillance have held that such power does
exist. (Third, fifth, and ninth circuits.)
In accordance with established case
law, I believe not only that the President
has the power under article II of the Con-
stitution to authorize warrantless elec-
tronic surveillance, but that we would be
in violation of article II by transferring
this executive power to the judiciary
under H.R. 7308. I, therefore, urge my
colleagues to support the amendment
that would continue to recognize the con-
stitutionally inherent power of the Exec-
utive to authorize warrantless electronic
surveillance In the area of foreign Intel-
ligence, a power which has been asserted
by every President at least since Frank-
lin D. Roosevelt.
Mr. McCLORY. Mr. Chairman,, will
the gentleman yield?
Mr. BUTLER. I yield to the gentleman
from Illinois.
Mr. McCLORY. Mr. Chairman, I thank
the gentleman for yielding to me. I want
to commend the gentleman on offering
this amendment.
I am sure that the gentleman would
agree that this amendment complies
with article II of the Constitution, which
vests in the President responsibility and
authority with regard to our national
security and our foreign affairs. It would
H 9237
be quite improper on our part to en-
deavor to undercut or deprive the Presi-
dent of his inherent constitutional power
in this legislation. Do I accurately
understand the gentleman's position on
this point?
Mr. BUTLER. The gentleman is cor-
rect. That Is a fair statement. We can-
not do legislative damage to the Consti-
tution. We have questions and problems
which should not exist, and therefore I
think we ought to make it perfectly clear
with regard to the existence of the Presi-
dent's inherent power In this area.
The CHAIRMAN pro tempore. The
time of the gentleman from Virginia
(Mr. BUTLER) has expired.
(On request of Mr. MCCLORY, and by
unanimous consent, Mr. BUTLER was al-
lowedto proceed for 1 additional min-
ute.)
Mr. MCCLORY. Mr. Chairman, will the
gentlema yield further?
Mr. BUTLER. I yield further to the
gentleman from Illinois.
Mr. McCLORY. Mr. Chairman, would
the gentleman not agree that It would
be improper, if not unconstitutional, for
the Congress to transfer this authority
which constitutionally belongs to the
President to the judiciary as far as the
decisionmaking is concerned?
Mr. BUTLER. The gentleman is cor-
rect. I appreciate bjs contribution.
Mr. MURPHY of Illinois. Mr. Chair-
man, I rise in opposition to the amend-
ment.
(Mr. MURPHY of Illinois asked and
was given permission to revise and ex-
tend his remarks.)
Mr. MURPHY of Illinois. Mr. Chair-
man, the immediate result of passage of
this amendment would be to make the
Congress look foolish and to announce to
the country that we have wasted 3 years
on this legislation.
The amendment negates the rest of
the bill's provisions. It eliminates the
standards the other provisions set up to
authorize and control electronic surveil-
lance and returns us, once again, to the
thrilling days of the pre-Watergate era.
Even the McOlory substitute affects the
so-called inherent power of the President
by legislating how foreign Intelligence in-
formation is collected.
The,amendment says to the Presi-
dent-any President-"here's a statute
that we have considered carefully for 3
years. It's the first piece of legislation in-
tended to deal with the problems facing
our Intelligence operations. We hope you
like it. If you don't, no sweat, just ignore
it.,,
Make no mistake about it-that is pre-
cisely what the amendment says.
This amendment'. can be read two
ways. Either the President has no in-
herent power to collect foreign intelli-
gence information, or this bill and all
its provisions are abrogated entirely.
Presuming the approach of the
amendment to be the latter, it eliminates.
all standards of any kind in the use of
electronic surveillance. It throws us right
back into the pre-Watergate era.
Voting for this amendment Is to ignore
the need for legislation to settle the law
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and collect needed intelligence. It Is to
Ignore the plight of Individual intelli-
gence agents.
Even the McClory bill affects the so-
called inherent power of the President by
legislating how foreign intelligence in-
formation is collected.
This amendment is dilatory. "Death
by delay," is what the New York Times
called this approach.
Again, voting for this amendment is
to ignore the need for legislation to settle
the law and to collect needed intelli-
gence. It Is to ignore the plight of the
individual intelligence agents.
I ask my colleagues to reject this
amendment.
Mr. McCLORY. Mr. Chairman, I rise
In support of the amendment.
Mr. Chairman, I recognize that there
has been a long period of time that has
elapsed since the first hearings were con-
ducted by the Subcommittee on the Judi-
ciary with respect to the whole subject
of requiring warrants for conducting
electronic surveillance in the field of for-
eign affairs, but I think that the debates
on the floor here yesterday and today in-
dicate that there is a great deal more
work that needs to be done and there
are many, many issues that need to be
carefully considered' and extensively
debated and ultimately resolved by this
Chamber and by the other body. And
to suggest that the mere fact that there
has been a lapse of time since this sub-
ject originally began and that therefore
it comes here in some sort of perfect
form or with an aura of perfection
around it is I think to misconceive what
the situation is at the present time.
As I understand this amendment, this
amendment is in existing. law. It is not
only in existing law but earlier Con-
gresses have recognized that they could
not restrict themselves from writing this
into the existing law because it is in the
basic law of our Nation, it is in the fun-
damental law of our country, it is in the
Constitution. And if the President has
that inherent power we cannot by any
legislation in this bill or any other bill
deprive the President of that authority.
So that it seems to me that if we omit
putting this into the legislation, while
we establish purportedly "exclusive" re-
quirements with respect to electronic
surveillance, we are ignoring our re-
sponsibility to adhere to the Constitu-
tion.
Mr. FOWLER. Mr. Chairman., will the
gentleman yield?
Mr. McCLORY. I yield to the gentle-
man from Georgia.
Mr. FOWLER. May I ask the distin-
guished gentleman from Illinois whether
or not the gentleman's substitute bill
would affect this so-called inherent
power of the President by setting
standards?
Mr. McCLORY. I would answer that
by saying no,, it does not. Actually what
my substitute bill does in effect is to'
translate the Executive orders, the Exec-
utive authority, into statutory form to
confirm in the President the inherent
and believe it means. So that really the
adoption of this amendment is entirely
consistent with that concept of what our
appropriate role here should be.
(Mr. McCLORY asked and was given
permission to revise and extend his
remarks.)
Mr. MAZZOLL Mr. Chairman, I move
to strike the requisite number of words,
and I rise in opposition to the amend-
ment.
(Mr. MAZZOLI asked and was given
permission to revise and extend his
remarks.)
Mr. MAZZOLI. Mr. Chairman, I dis-
cussed yesterday, with my friend the
gentleman from Virginia (Mr. BUTLER)
the author of the amendment, this mat-
ter. I told him I would think about it very
carefully to see if I could find it possi-
ble to support it.
The gentleman brings a thoughtful ap-
proach to all legislation in our commit-
tee, but, however, having thought about
it overnight and having read it thor-
oughly,, I am constrained to oppose the
gentleman's amendment:
I would like to ask the gentleman this
particular question..1 think the gentle-
man's amendment boils down to a value
judgment that we must make as to
whether' or not specifically writing :this
section into the bill would give a dec-
laration, or would send a signal or would
issue notice that Congress suggests that
the President has almost plenary power
in this area anyway and Congress is just
passing a bill for show but, in reality, by
adopting this amendment we are main-
taining the status quo.
I wonder if the gentleman could ad-
vise me: a person who looks at this bill
with this language, were it to be adopted,
could such a person look at it and say
really, Congress is trying to expand the
President's power rather than limit it?
Mr. BUTLER. Mr. Chairman, if the
gentleman will yield, I appreciate the
question very much, because I think the
gentleman has put his finger on it. The
Constitution of the United States is the
preeminent law of the United States and
that the Congress must not pass legis-
lation that does not conform with the
Constitution.
What we are trying to do here in this
legislation-we say the exclusive means
by which electronic surveillance Is en-
gaged in shall be under' this standard.
What concerns me is we are saying to the
President of the United States: If you
want to do what the Constitution tells
you to do-and that is that you are the
Commander in Chief of the Armed Forces
and you have got the responsibility for
protecting your country-if you want to
exercise your constitutional authority,
you do it at your peril.
I think that is a signal this legislation
sends, that my amendment would say no,
Mr. President, you have got the job, and
you have got the responsibility, and if a
crisis arises, you do not have to spend
all of your time rushing up to the courts
or asking the current Attorney General
with his current opinion how he feels
about it. What you have to do is to rec-
powers which he constitutionally has., _ ognize that you have this responsibility
So that It really reconfirms what the and the Congress of the United States
Constitution says, which I understand recognizes you have it.
What about war? If we had a war un-
der this bill the President has to go
through all this process.
Mr. MAZZOLI. Mr. Chairman, if I may
reclaim my time. I certainly think the
gentleman's observations are illustrative
of his concerns. The gentleman, by his
amendment, does not seek simply to re-
state the obvious. That is, Congress is not
taking any powers from the President
and his residual powers remain in his
hands.
What the gentleman is basically trying
to say, is that powers to surveill would be
conferred upon the Chief Executive him-
self and he can take certain actions in
connection with what he determines to
be essential needs of foreign intelligence.
Is that a fairly correct analysis of the
gentleman's feelings on this matter?
Mr. BUTLER. The gentleman's state-
ment is somewhat correct; but, of course,
we have an expression from the Con-
gress here as to the areas in which we
want the President to be cautious. Of
course, we have had some experience
with that area. We have "impeached" a
few people who have trespassed on con-
stitutional rights, so we have systemat-
ically, over the years-which is the
American system-defined just how far
the President can go.
However, all of a sudden, we come
along with a bill and say that the Con-
stitution does not -really mean anything
because we are saying that we have a
higher authority. That is not right. I do
not want our President, who is charged
with the responsibility of protecting our
country, to have to worry about just
exactly what the law says as opposed to
what the Judiciary says. That is not
what the Constitution wants him to do.
Mr. MAZZOLI. As always, the gentle-
man from Virginia makes an important
point. I share his concern about what
happens in the event of an emergency
which can, on its own terns, be clearly
determined to any thoughtful and any
alert person as an emergency.
My problem is, if I read the gentle-
man's language correctly, that he sug-
gests that certain powers are vested by
the Constitution in the President, yet
the courts have not spoken to such an
extent and with such particularity on
the issue of what constitutes an emer-
gency to which the President must re-
spond. Therefore, I am not really aware
of the precise situation at this point. If
the gentleman is, I would appreciate his
instruction.
The CHAIRMAN pro tempore (Mr.
MURTHA). The time of the gentleman
from Kentucky (Mr. MAZZOLI) has
expired.
(By unanimous consent, Mr. MAZZOLr
was allowed to proceed for 2 additional
minutes.)
Mr. MAZZOLI, Mr. Chairman, I would
ask the gentleman whether he can in-
struct me as to what are the particular
powers or what is the defined area of
powers which Is retained or held' by the
Chief Executive. The gentleman from
Kentucky only knows of the Keith case,
in which the court avoided the question
and put off for a later time the ques-
tion of the existence and extent of the
inherent power of the Chief Executive
in foreign intelligence matters.
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Mr. BUTLER. If the gentleman will
yield further, Mr. Chairman, that is a
very good question.
Of course, I cannot define that with
particularity. I might say to the gentle-
man one of the reasons I might have a
little difficulty in responding to the ques-
tion is that the Committee on the Judi-
ciary was not allowed an opportunity to
go into this bill. The subcommittee
denied us this %privilege; I am not sure
they did it wisely. But to the extent that
we have not explored all the details of
this matter, I do not think that is im-
portant at this moment.
What we are saying now is that the
Constitution of the United States
charges the President with these re-
sponsibilities, and he has to exercise
them. He Is guided somewhat by expe-
rience and precedent, so it is not all
case law. It is not all the Keith case.
Part is the impeachment case. Part of it
is previous circumstances; but whatever
it is, all this amendment really says is
that the President of the United States
has the constitutional responsibility. He
still has it, and we cannot take it away
from him.
Mr. MAZZOLI. I think the gentleman
has said it very clearly. That is the rea-
son I am constrained to oppose the gen-
tleman's amendment. Putting this lan-
guage in H.R. 7308, I think, would at best
muddy up the waters as to where the
line of demarcation is between Presi-
dential powers retains and Presidential
powers limited.
At worst, I think the language would
suggest to any reader of the statute that
basically what Congress had in mind is
this: "Mr. President, you are pretty much
on your own. We are saying a few things
Is H.R. 7398, basically if you want to do
something in foreign intelligence, the law
is not going to challenge you."
The CHAIRMAN pro tempore. The
time of the gentleman from Kentucky
(Mr. MAZZOLI) has again expired.
(On request of Mr. BUTLER and, by
unanimous consent, Mr. MAZZOLr was
allowed to proceed for 2 additional
minutes.)
Mr. BUTLER. Mr. Chairman, will the
gentleman yield further?
Mr. MAZZOLI. I am happy to yield to
the gentleman from Virginia.
Mr. BUTLER. Mr. Chairman, I thank
the gentleman for yielding.
On this point with respect to exactly
where the line is drawn, we had a very
learned colloquy yesterday between the
gentleman from. Wisconsin (Mr. KAS-
TENMEIER) and the gentleman from
California (Mr. EDWARDS). Unfortu-
nately, it was not printed in the RECORD
this morning, and I have not had a
chance to pull it out. Therefore, I am
drawing somewhat on my memory.
However, basically what the. gentle-
man from California (Mr. EDWARDS)
asked the gentleman from Wisconsin
was that he make it perfectly clear that
the President of the United States has
no authority, under any circumstance,
to authorize electronic surveillance. The
gentleman from Wisconsin (Mr. KAS-
TENMEIER) said absolutely yes, and then
he cited a section on page 67, one which
says that this legislation shall be the
exclusive means by which electronic
surveillance is carried out.
That does not leave a hazy line, does
it, because what that says is that the
President has no authority. How can
we-and I ask the gentleman this ques-
tion-arrogate to ourselves the author-
ity to say to the President of the United
States, this is the exclusive means we
have for you to exercise ybur constitu-
tional responsibility to see that the laws
are enforced, to be Commander in
Chief of our Armed Forces, and to pro-
tect our country. How can we arrogate
that?
The CHAIRMAN. The time of the gen-
tleman has expired.
Mr. KASTENMEIER. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in opposition to the
amendment. I regret that the colloquy
referred to by the gentleman from Vir-
ginia did not appear in the RECORD. I
trust that it will appear in the later REC-
ORD, and I do not know the explanation
for its failure to be there this morning.
This, I think, is a very dangerous
amendment. What it tends to do is invite
the President to exercise "constitutional
powers" outside of this bill, outside of
what we, the Congress, are doing. We
might as well not do anything at all if we
are to concede to this amendment and
to grant affirmatively constitutional
rights to the President to conduct this
type of operation in this country. That
is what the 3 years of work is all about.
Let me go back in time, if I may. I do
not at this point yield to the gentleman
from Illinois because I do want to make
my point. The Committee on the Judi-
ciary perhaps 10 years ago or so had a
question of whether or not in title II of
the Internal Security Act to terminate
the authorization for the detention
camps in America. Some people thought
of these as concentration camps. Over-
whelmingly the Congress decided against
further authorization of those camps,
and President Nixon signed it into law.
But before that happened there was a
very Interesting circumstance. The As-
sistant Attorney General, Mr. Mardian,
wanted a statutory recognition of a con-
stitutional authority for the President to
set up these so-called concentration
camps, if needed, and thought that we
should have a similar amendment in con-
nection with it. But we, the Congress, de-
cided no, that no person in this country
would be detained except pursuant to the
laws of the United States. Whether or
not the situation would ever arise in
which the President might round up
Americans and put them in detention
camps, nonetheless, he could not draw on
the statutes we enacted with reference
thereto, and so by analogy we ought not
here give the Executive a statutory dec-
laration of constitutional authority to
conduct national security wiretaps. If he
possesses such a power, he must assert it
independent of the statute because we
have provided the only authorized, the
statutory way of dealing with this ques-
tion. So it ought to remain, Mr. Chair-
man, and the gentleman's amendment
ought to be rejected.
Mr. BUTLER. Mr. Chairman, will the
gentleman yield?
Mr. KASTENMEIER. I yield to the
gentleman from Virginia.
Mr. BUTLER. I thank the gentleman
for yielding.
We are handicapped on our sido of the
aisle because we are so young and inex-
perienced in the Congress. I have not
been here for 10 years, but my recollec-
tion, having talked to staff, is that the
detention camp legislation was an
amendment to existing legislation. But
the detention camps existed under statu-
tory authority and not.under constitu-
tional authority. I pass that on as a sec-
ond-hand suggestion.
Mr. KASTENMEIER. I appreciate
that, and I would only comment that the
question, nonetheless, arose: Does the
President have constitutional authority,
and should we state a statutory dis-
claimer in recognition of such authority?
We declined to do so, and we ought not,
indeed, assert such authority here for
the President with regard to these wire-
taps.
Mr. McCLORY. Mr. Chairman, will the
gentleman yield to me for an observa-
tion?
Mr. KASTENMEIER. I yield to the
gentleman.
Mr. McGLORY. I thank the gentleman
for yielding.
The gentleman suggests that this leg-
islation would provide that the President
may not conduct foreign Intelligence
electronic surveillance. That is a miscon-
ception of what this bill is Intended to
do, as I understand it.
I think that we do not have the right
or authority to deprive the Executive of
the power to conduct electronic surveil-
lance. Now, what we are doing here is
saying that he conducts it, but he has to
have another branch, the judicial branch,
to pass on this. We are attempting to
pass the Executive authority to the
judiciary.
The CHAIRMAN. The time of the gen-
tleman from Wisconsin (Mr. KASTEri-
MEIER) has expired.
(By unanimous consent, Mr. KASTEN-
MEIER was allowed to proceed for 1 addi-
tional minute.)
Mr. KASTENMEIER. Mr. Chairman,
I appreciate the gentleman's comments.
We here give the President authority to
conduct foreign intelligence surveillance
pursuant to this statute. Now, if, in fact,
the President has constitutional author-
ity in some other capacity to conduct
wire tapping or surveillance on his own,
then he must find it and assert it. We
have given him the sole statutory au-
thority in this bill to open that sort of
thing.
Mr. McCLORY. Mr. Chairman, if the
gentleman will yield further, I think
what the legislation demonstrates is that
we do not have the authority to deprive
they President of his constitutional au-
thority.
Mr. KASTENMEIER. May I say to the
gentleman we do not affirmatively assert
that the President has no constitutional
authority. What we have is a situation
in which the extant President has said to
us gratuitously that he will not, indeed,
assert such power beyond the authority
within this bill.
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CONGRESSIONAL RECORD-HOUSE September 7, 1978
Mr. HYDE. Mr. Chairman, I move to I trust the President. I trust every Is a standard under which his actions
strike the requisite number of words. President, and I trust the self-cleansing are judged. We are not taking his powers
Mr. Chairman, I just want to comment mechanisms of the executive depart- away.
on this amendment and briefly on the ment, the judiciary, and this Congress We are dealing with a domestic scene.
entire legislation. to see that the abuses, when they occur, Within the borders of the United States,
I do think it is deplorable, and I am will be swiftly discovered and swiftly when we are dealing with foreign intelli-
sure there were reasons adequate to punished. gence wiretapping, we are concerned with
those who exercised them, that this bill But, Mr. Chairman, I just deplore fur- American citizens' fourth amendment
did not get a full hearing by the Com- ther encroachments on the powers of rights.
mittee on the Judiciary. If we have been Congress and the powers of the Execu- When the President deals with foreign
dealing with this for 3 years, we could tive by the judiciary, and I especially countries off the shores of the United
have found 3 weeks or 3 days or 3 hours deplore our helping that process along. States, what he does with national secu-
for the full Committee on the Judici- Mr. MURPHY of Illinois. Mr. Chair- rity, as it relates to the Marines, the
ary, a committee, on which I am proud man, will the gentleman yield? Army, the Navy, and the Air Force, is his
to serve and which has a distinguished Mr. HYDE. I yield to the gentleman business. This is not affected at all.
record for being punctilious in protect- from Illinois. = All we are saying is that "here is a
ing civil rights and the human rights and Mr. MURPHY of Illinois. Mr. Chair- statutory criteria, and when you go to tap
the constitutional rights of everybody man, I thank my colleague, the gentle- or interfere with the fourth amendment
concerned; so I think, No. 1, we are man from Illinois, for yielding, and I will rights of American citizens, you must
making a serious mistake by not let- say that I respect his viewpoint very follow these statutory standards."
ting the Committee on the Judiciary deal much. Mr. HYDE. Mr. Chairman, if I may
with this bill completely. I would like to say, however, that I reclaim my time, I suggest to the gentle-
No. 2, it is, of course, true that we can- note the gentleman refers to busing, the mark that nothing we do is going to im-
not divest the President of any constitu- medical profession, and other things in pinge on the President's constitutional
tional authority that the Constitution which the Federal courts have inter- authority, but we do put an obstacle in
has given him. It is there and there is vened. his way and we do restrain his free and
nothing this body can do to take it Mr. HYDE. And we could include flexible exercise of that authority at a
away; but, of course, we can put the school districts. and jails. very difficult time when he may not know
President in a position of confrontation Mr. MURPHY of Illinois. Yes, includ- if the person concerned is a citizen.
with this body if we are requiring him to ing school districts and jails. And I share How does one determine whether a
exercise his judgment that, notwith- the gentleman's apprehensions about an person is a citizen or not if one needs to
standing the strictures of this legisla- overactive judiciary. 'What we are asking make a tap Immediately, today or to-
tion, he Is going to act under his in- in this particular piece of legislation is night?
herent constitutional power. That is this: We are asking that a neutral arbi- Mr. MURPHY of Illinois. Mr. Chair-
something we ought to do with great trator, 'a Federal judge, be appointed as man, if the gentleman will yield, the
reluctance. a protection between U.S. citizens and gentleman knows that he can apply for
Third, you know, we are a coequal their fourth amendment rights and a a 24-hour emergency tap without a war-
branch of Government, the President, government that in the past has violated rant. The gentleman was here yesterday,
the Congress, and the courts. This Con- those fourth amendment rights. and he knows that.
gress in overreacting to the Watergate We are not alone in asking this. We Mr. HYDE. I understand that, but the
scandals insists on conferring on the have had two Presidents send up this gentleman assumes that he can get that
Judiciary more and more authority to message, and the philosophy underlying emergency tap in 24 hours.
make them the supreme authority in this bill: President Ford and now Presi- Mr. MURPHY of Illinois. That is not a
this country in terms of running our dent Carter. I can say to the gentleman consideration if he is a foreigner, a rep-
school districts, running our jails, run- that I cannot imagine President Ford or resentative of a foreign government or
ning our hospitals, and now they are President Carter trading away or ex- foreign embassy.
going to run the intelligence services of changing their inherent executive rights Mr. HYDE. I am simply saying this
this country. to defend this country. amendment is a statement of constitu-
Now, I have great respect for each and The CHAIRMAN. The time of the gen- tional fact that we ought not to eliminate
every Federal judge. I know how they are tleman from Illinois (Mr. HYDE) has from the bill.
appointed and how they are confirmed; expired. Mr. MAZZOLI. Mr. Chairman, will the
but I do not think their wisdom, individ- (On request of Mr. MURPHY of Illinois, gentleman yield?
ually or collectively, is superior to the and by unanimous consent, Mr. HYDE Mr. HYDE. I yield to the gentleman
wisdom of the Executive, with the checks was allowed to proceed for 3 additional from Kentucky.
and balances that are inherent In his minutes.) Mr. MAZZOLI. Mr. Chairman, I thank
office and in the press and in this body. Mr. MURPHY of Illinois. Mr. Chair- the gentlemann for yielding.
I think we are depriving the President man, will the gentleman yield further? The gentleman from Illinois (Mr.
of a necessary flexibility to face situa- Mr. HYDE. Yes, .( will yield, but let HYDE), for whom I have high respect, is
tions in terms of the national security me just comment first on what has been a member of our Judiciary Committee,
of this country, and he may need that said thus far. and I wish to ask the gentleman this
flexibility on short notice. He may need President Ford was reacting to a de- question:
to act immediately on the best advice plorable situation in which he found him- If ' it is the gentleman's feeling that
available. self following Watergate. As far as Presi- there is no way the Congress can im-
We are not defending Richard Nixon. dent Carter is concerned, I am really at pinge or limit or circumscribe the Presi-
We are defending an institution, and we a loss to understand his action except dent's constitutional power, then I
have so stripped away its powers and its that he campaigned against the White wonder why we should insert this lan-
constitutional authorities-we have at- House and against the "imperial Presi- guage at all if we are simply stating again
tempted to anyway-that I think the dency." I am certainly not defending the what the gentleman feels is already the
vital interests of this country are being "imperial Presidency," but I am defend- essence of the bill.
damaged. ing the institution. I think the President Mr. HYDE. Mr. Chairman, my an-
This amendment is certainly innocu- has constitutional duties that we ought swer to that question Is that we put our-
ous. All it says is that we read the Con- not to take away from him. selves in a position of confrontation with
stitution, too, and nothing we do here is Mr. MURPHY of Illinois. Mr. Chair- the President, because without this in
designed or intended to deprive the Pres- man, if the gentleman will yield, we are the law, the President may feel that he is
ident of his constitutional authority. I . not taking the President's inherent con- breaking the law that we have passed,
think it is a statement of sanity. I think stitutional powers away from him. We even though that part of it is constitu-
it is a statement that recognizes that we are extending the statutory standard or tional. I. just say that we ought to at
know the Constitution has given the criteria by which we will judge the Exec- least state that we know he is the
President some power that we cannot utive Department as a coequal branch, President and he has some inherent
deprive him of. to use the gentleman's own words, and it authority.
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The CHAIRMAN. The time of the
gentleman from Illinois (Mr. HYDE) has
again expired.
(On request of Mr. BUTLER, and _ by
unanimous consent, Mr. HYDE was al-
lowed to proceed for 2 additional
minutes.)
Mr. BUTLER. Mr. Chairman, will the
gentleman yield?
Mr. HYDE. I yield to the gentleman
from Virginia.
Mr. BUTLER. Mr. Chairman, I thank
the gentleman for yielding, and I appre-
ciate his contribution very much.
The gentleman, is, of course, entirely
correct in saying that what we are doing
by this legislation, without the amend-
ment I offered is, telling the President of
the United States, "You assert your con-
stitutional prerogatives and responsibil-
ities at your peril." And that is wrong.
The real language of this legislation
puts It in his context; that is, shall be
the exclusive means, and "exclusive" is
the key word in this legislation.
I do not think there can be any doubt
in the gentleman's mind about what the
people who wrote this bill had in mind,
and I do not think there could be any
doubt in the gentleman's mind, after the
colloquy we had yesterday between the
gentleman from Wisconsin (Mr. KASTEN-
MEIER) and others, about what the people
who wrote the bill and the intelligence
community had in mind. What is meant
here is that the President of the United
States has no constitutional authority,
and if he does have any, by God, he has
to prove it. That is a heck of a position
to put the President of the United
States in.
If the gentleman will yield further, I
am very much distressed that the impres-
sion is being left that this requirement
of exclusive legislative authority was in
President Ford's bill. There was no such
thing' at all. President Ford's bill ex-
pressly. included language substantially
in the language which I offer here today,
which was a recognition of the Presi-
dent's Inherent constitutional authority.
I quote from the Ford bill:
Nothing contained in this chapter than
limit the constitutional power of the Presi-
dent to order electronic surveillance for the
reasons stated in section 2511(3) ., .
I insist that what we are doing here
is what was done in the Ford bill, and
it is very clearly indicated in these cir-
cumstances.
Mr. HYDE. Mr. Chairman, I just do
not know what that hearing is going to
consist of when you go before the judge
and say, "I have a feeling in this ease,
and will Your Honor give us a warrant."
It is a charade and it is designed to sanc-
tify something that is essentially
meaningless,
Mr. ASHBROOK. Mr. Chairman, I
move to strike the requisite number of
words, and I rise in support of the
amendment.
Mr. Chairman, I have listened to this
debate, and go back to what we said
yesterday. We continually hear the-as-
sertion-and it is an incorrect assertion,
I believe-that we are really not trying
to go very far and we are really not try-
ing to impinge on the power of the Presi-
dent in this legislation.
The truth of the matter Is that what
we are trying to do is to change the posi-
tion of Congress expressed in the 1968
omnibus crime legislation.
Mr. Chairman, we clearly said in the
1968 legislation, in section 2511(3), that
we were not going to impinge on the
President's inherent power. Now we are
trying to go exactly the opposite and
saying the President does not have in-
herent power, he only has what we give
him.
The people who drafted the legislation,
those who appeared before the commit-
tee, those who testified, knew what they
were doing.
Let us take what Common Cause said
in their letter of August 7 to all of us.
It said that H.R. 7308 eliminated once
and for all the doctrine that the execu-
tive branch has inherent power to con-
duct national security wiretaps.
That is what the ACLU believes. That
is what Common Cause believes. That is
what people who will be going into court
and litigating believe.
I do not think we should, as we have
on page 67, indicate that the President
of the United States does not have the
authority that is inherent in the Con-
stitution. That is done by using the word
"exclusive."
I believe that he has certain inherent
powers. We cannot change them. It is
like saying tomorrow is Monday, al-
though it is ' still Friday. It is like 435
Members of Congress voting and saying
tomorrow is Monday, although it is still
Friday. The President has the inherent
power, regardless of what we say. But we
do try to muddy the water here and I
think that is why the language of my
colleague, the gentleman from Virginia,
Is absolutely essential. It puts us back in
the position we were in in 1968. It puts
us back in the same position we were in
in the Keith case. The President has
what powers he has, and the court will
uphold those powers. We should not at
this point try to countermand those
powers.
So the sponsors are not saying we are
going to impinge on the President's in-
herent powers but they are going to try
to cut it a little bit. That is the basis of
page 67 of this bill.
It may be that Mr. Carter does not
want to exercise his powers. There is
little counterintelligence now. We are
not talking, necessarily, about 1978, 1979,
or 1980. We are talking about future
Presidents. If Mr. Carter does not want
to engage in wiretapping that he has a
right in his constitutional power, that is
his business. But why should we say at
this point that future Presidents will be
limited to the narrow action President
Carter now wants to take in the vital
field of internal security?
I certainly urge the support and the
adoption of the amendment offered by
the gentleman from Virginia (Mr.
BUTLER), and I applaud him for offering
the amendment.
[Mr. FOWLER addressed the Commit-
tee. His remarks will appear hereafter
In the Extensions of Remarks.]
Mr. LATTA. Mr. Chairman, I move to
strike the requisite number of words, and
I rise In support of the amendment.
. Mr. BUTLER. Mr. Chairman. will the
gentleman yield?
Mr. LATTA. I yield to the gentleman
from Virginia.
Mr, BUTLER. Mr. Chairman, I thank
the gentleman from Ohio for yielding.
I just want to clarify one point which
the gentleman from Wisconsin, in the
course of his references to the proposed
legislation, has referred to time after
time.
Mr. Chairman, If I could have the at-
tention of the gentleman from Illinois
(Mr. MURPHY), perhaps we could solve
the problem which my amendment ad-
dresses. By inserting on page 67, line 11,
the word "statutory," we could make per-
fectly clear that this legislation is the
exclusive statutory means by which elec-
tronic surveillance is to be permitted. We
will have solved the problem; and my
amendment would be unnecessary.
Mr. Chairman, I wonder whether the
gentleman from Illinois (Mr. MURPHY),
the manager of the bill, would agree to
that amendment. If so, we could avoid
further discussion of the amendment in
question.
Mr. MURPHY of Illinois. If the gen-
tleman will yield, Mr. Chairman, would
the gentleman repeat that statement
again. I am sorry.
Mr. BUTLER. Yes. The amendment
which I would ask the gentleman to con-
sider would obviate the problem to which
my amendment is addressed would be on
page 67, line 11. At that point I would
suggest inserting after the third word,
and before the word, "means," one word,
"exclusive." At that point I would insert
the word "statutory" so that the legis-
lation shall read the "exclusive statu-
tory means."
Mr. MURPHY of Illinois. Mr. Chair-
man, if the gentleman will, withdraw his
amendment, we will accept that word
"statutory" at that point In the bill.
Mr. BUTLER. Mr. Chairman, I Vhank
the gentleman from Illinois (Mr.
MURPHY).,
Mr. Chairman, I ask unanimous con-
sent to withdraw my amendment.
The CHAIRMAN pro tempore. Is there
objection to the request of-the gentleman
from Virginia?
There was sip objection.
The CHAIRMAN pro tempore. The
amendment offered by the gentleman
from Virginia (Mr. BUTLER) is with-
drawn.
Does the gentleman propose another
amendment?
Mr. BUTLER. Yes, Mr. Chairman. If I
may, I ask unanimous consent that I may
offer an amendment not in writing and
not published In the RECORD, which would
insert the word "statutory" on page 87,
line 11.
The CHAIRMAN pro tempore. Is there
objection to the request of the gentle-
man from Virginia?
Mr. MURPHY of Illinois. Reserving
the right to object, Mr. Chairman, I
would like to hear the amendment first.
Mr. BUTLER. All right.
AMENDMENT OFFERED BY MR. BUTLER
Mr. BUTLER. Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
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CONGRESSIONAI. RECORD-HOUSE September 7, 1978
Amendment offered by Mr. BVTLEf: On
page 67, line 11, after the word "exclusive"
insert the word "statutory".
Mr. MURPHY of Illinois. Mr. Chair-
man, I withdraw my reservation of ob-
jection.
The CHAIRMAN pro tempore. Is there
objection to the request of the gentle-
man from Virginia?
There was no objection.
Mr. MURPHY of Illinois. Mr. Chair-
man, we will accept the amendment.
The CHAIRMAN pro tempore. The
question Is on the amendment offered by
the gentleman from Virginia (Mr.
BUTLER).
The amendment was agreed to.
PARLIAMENTARY INQUIRY
Mr. BUTLER. Mr. Chairman, I have a
parliamentary inquiry.
The CHAIRMAN pro tempore. The
gentleman will state his parliamentary
inquiry.
Mr. BUTLER. Mr. Chairman, Is my
amendment now accepted in the bill?
The CHAIRMAN pro tempore. The
Chair will state that the gentleman's
amendment is accepted.
Mr. BUTLER. As part of the bill, Mr.
Chairman?
The CHAIRMAN pros tempore. As part
of the bill.
Mr. BUTLER. I thank the Chair.
AMENDMENT OFFERED BY MR. LATTA
Mr. LATTA. Mr. Chairman, I offer an
amendment.
The CHAIRMAN pro tempore. Is the
gentleman offering an amendment which
appears in the RECORD?
Mr. LATTA. That is correct, Mr.
Chairman.
The CHAIRMAN pro tempore. The
Clerk will report the amendment.
The Clerk read as follows:
Amendment offered by Mr. LATTA: Page 40,
after line 4, insert the following new sub-
paragraph and redesignate subparagraphs
(2) and (3) accordingly:
(2) Notwithstanding any other law, the
President, through the Attorney General,
may authorize electronic surveillance with-
out a court order under this title to acquire
foreign intelligence information for periods
up to one year-
(A) during a period of war declared by the
Congress; or
(B) during a period of national emerg-
ency, declared by the President in accord-
ance with the National Emergencies Act,
with specific reference to this Act, and upon
the transmittal to the Permanent Select
Committee on Intelligence of the House of
Representatives and the Select Committee on
Intelligence of the Senate of a statement
by the President setting forth the facts and
circumstances giving rise to the need for
such declaration.
Mr. LATTA (during the reading). Mr.
Chairman, I ask unanimous consent
that the amendment be considered as
read and printed in the RECORD.
The CHAIRMAN pro tempore. Is
there objection to the request of the
gentleman from Ohio?
There was no objection.
Mr. LATTA. Mr. Chairman, I ask
unanimous consent to substitute a modi-
fied amendment by reason of the fact
that the McClory amendment has
changed the page number into which
this amendment would fit, and we have
had to redraft the amendment to pro-
vide for a new section.
Mr. Chairman, this matter has been
discussed with both sides, both man-
agers of the bill.
The CHAIRMAN pro tempore. Is
there objection to the request of the
gentleman from Ohio?
There was no objection.
The CHAIRMAN pro tempore. The
Clerk will report the amendment, as
modified.
The Clerk read as follows:
On page 64, after line 25, add the following
new section:
"AUTHORIZATION DURING TIME OF WAR
"Notwithstanding any other law, the Pres-
ident, through the Attorney General, may
authorize electronic surveillance without a
court order under this title to acquire for-
eign intelligence information for periods up
to one year during a period of war declared
by the Congress".
Mr. LATTA. Mr. Chairman, I believe
my amendment is needed to correct an
oversight or an omission in this bill. At
the time this matter came before the
Committee on Rules, I raised the ques-
tion of the need for the President to
act in times of war without being re-
quired to take the time to secure a court
order. There certainly would be no
desire on the part of the proponents of
this legislation to tie the hands of the
President during such a period and to
possibly put the security of the country
in jeopardy. During. such a period we
ought to give the President of the United
States all the discretion he needs to pro-
tect the best interests of the country.
Therefore, I have proposed this amend-
ment to give him that needed authority.
I have discussed this amendment with
the managers on both sides of the
aisle and I believe they will accept it as
a necessary amendment to the bill.
Mr. MURPHY of Illinois. Mr. Chair-
man, will the gentleman yield?
Mr. LATTA. I yield to the gentleman
from Illinois.
Mr. MURPHY of Illinois. I thank the
gentleman for yielding..
The gentleman from Ohio brought this
to our attention when the committee ap-
peared before the Committee on Rules. I
think it is a pertinent amendment, and
this side of the aisle will accept it.
The CHAIRMAN pro tempore. The
question is on the amendment, as
modified, offered by the-gentleman from
Ohio (Mr. LATTA).
The amendment, as modified, was
agreed to.
AMENDMENT OFFERED BY MR, ERTEL
Mr. ERTEL. Mr. Chairman, I offer
an amendment that has been published
in the RECORD.
The Clerk read as follows:
Amendment offered by Mr. ERTEL: Page 63,
line 2, insert "(a)" after "Sec. 108.".
Page 63, after line 9, insert the following
new subsection:
(b) The Permanent Select Committee on
Intelligence of the House of Representatives
and the Select committee on Intelligence of
the Senate shall periodically review the in-
formation provided under subsection (a). If
either such committee determines that an
electronic surveillance of a United States per-
son under this title has produced no foreign
intelligence information and that the dis-
closure of the fact of such surveillance to
such United States person would not harm
the national security, such committee shall
inform such person of the fact of such sur-
veillance and that no foreign intelligence
information was derived from such surveil-
lance.
Mr. ERTEL (during the reading). Mr.
Chairman, I ask unanimous consent that
the amendment be considered as read
and printed in the RECORD.
The CHAIRMAN pro tempore. Is there
objection to the request of the gentle-
man from Pennsylvania?
Ms. HOLTZMAN. Reserving the right
to object, Mr. Chairman, will the gen-
tleman from Pennsylvania explain the
amendment?
Mr. ERTEL. Yes, I will, Mr. Chairman.
Ms. HOLTZMAN. Mr. Chairman, I
withdraw my reservation of objection.
The CHAIRMAN pro tempore. Is
there objection to the request of the
gentleman from Pennsylvania?
There was no objection.
(Mr. ERTEL asked and was given per-
mission to revise and extend his
remarks.)
Mr. ERTEL. Mr. Chairman, prior to
discussing the amendment, I ask unani-
mous consent that one word in the
amendment as printed in the RECORD be
changed, that Is, that the word in the
third line of section (b) be changed from
"shall" to "may."
The CHAIRMAN pro tempore. Is
there objection to the request of the
gentleman from Pennsylvania?
There was no objection.
The CHAIRMAN pro tempore. The
Clerk will report.the modification.
The Clerk read as follows:
In the third sentence of section (b) of
the Ertel amendment following the word
"Senate" strike the word "shall" and insert
in lieu thereof the word "may".
Mr. ERTEL. Mr. Chairman, this
amendment is basically an amendment
for oversight by the Select Committee
on Intelligence of the House of Repre-
sentatives and the Select Committee on
Intelligence of the Senate. It provides
that In the event there has been elec-
tronic surveillance, whether it be by a
wiretap or any other type of electronic
surveillance, if the committee of the
House or the Senate determines, one, that
no foreign intelligence information has
been obtained and, two, that there Is no
threat to the national security, then that
committee should inform the target of
that investigation that he has been un-
der surveillance. It advises the person
what has been done in regard to his par-
ticular activities by the intelligence com-
munity.
I point out that this is an oversight
amendment. It gives the Select Commit-
tees on Intelligence a right. They do not
,have to, but they may disclose to the in-
dividual, but only after they make an
affirmative determination there Is no
threat to the national security or, sec-
ond, that no foreign intelligence infor-
mation was obtained. The reason for the
amendment is to hold over the intelli-
gence agencies the threat that their ac-
tivities if they are improperly done will
be disclosed. There are criminal sanc-
tions within this bill which are to be
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 September 7, . proved Fob? n Aijg j EBQ 1, A000500040005-0 119243
used against Intelligence agencies if they
act in bad faith, but there is no. way to
know it they act in-bad faith unless there
is a disclosure.
We cannot provide a disclosure unless
we know that there is no threat to the
national security, and further, that there
is no national security Information ob-
tained; so really what it is, is an over-
sight amendment to make sure that the
agencies act properly.
Mr. MURPHY of Illinois. Mr. Chair-
man, will the gentleman yield?
Mr. ERTEL. I yield to the gentleman
from Illinois.
Mr. MURPHY of Illinois. Mr. Chair-
man, I appreciate the gentleman bring-
ing this to the committee's attention. I
have talked with the gentleman, as have
other members of our committee and
the chief counsel, and with the change
from "shall" on the third line to the
word "may", this side will accept the
amendment.
Mr. McCLORY. Mr. Chairman, will the
gentleman yield?
Mr. ERTEL. I yield to the gentleman
from Illinois.
Mr. McCLORY. Mr. Chairman, I do
mot know that I haves any objection to the
amendment; but I would Just like to ask
this question. How do you determine
whether or not information has been ob-
tained; who would make that determina-
tion?
Mr. ERTEL. The Select Committee on
Intelligence; either of the House or of
the Senate, they would make that deter-
mination under their oversight. Under
the bill it is required that the Select
Committee have oversight on a semian-
nual basis.
Mr. McCLORY. Mr. Chairman, we
have no objection to the amendment.
The CHAIRMAN pro tempore. The
question is on the amendment, as modi-
fied, offered by the gentleman from
Pennsylvania (Mr. ERTEL).
The alxiendment, as modified, was
agreed to. -
AMENDMENTS OFFERED BY MR. M'CLORY
Mr. McCLORY. Mr. Chairman, I offer
two conforming amendments.
The Clerk read as follows:
Amendments offered by Mr. McCtoay: Page
50, strike out line 22 and, all that follows
down through line 6 on page 51, and re-
designate subsections (d) through (g) ac-
cordingly. -
Page 51, line 9, strike out ", except that"
and all that follows down through line 13
and insert in lieu thereof: ".".
Page 51, line 17, strike out ", except that
an" and all that follows down through line
23 and insert in lieu thereof : ".".
In section 102(a) (as amended by the
amendment offered by Mr. McCLoeY), strike
out "the Special Court" and insert in lieu
thereof "a court".
In section 105(e) (as amended by the
amendment offered by Mr. MCOLORY), strike
out "designated pursuant to" and insert in
lieu thereof "having jurisdiction under".
Mr. McCLORY (during the reading).
Mr. Chairman, I ask unanimous consent
that the amendments be considered as
read and printed in the RECORD.
The CHAIRMAN pro tempore. Is there
objection to the request of the gentleman
from Illinois?
Mr. MURPHY of Illinois. Mr. Chair-
man, reserving the right to object, I wish
the gentleman would explain.the amend-
ments.
Mr. McCLORY. Mr. Chairman, these
are amendments which have been dis-
cussed by counsel on both sides.
Mr. MURPHY of Illinois. Mr. Chair-
man, reserving the right to object, I
would insist on the amendments being
read. Therefore, I object.
The CHAIRMAN pro tempore. Objec-
tion is heard.
The Clerk will read.
(The Clerk concluded the reading of
the amendments.)
Mr. McCLORY. Mr. Chairman, I ask
unanimous consent that the amendments
be considered en bloc.
The CHAIRMAN pro tempore. Is
there objection to the request of the gen-
tleman from Illinois?
Mr. MURPHY of Illinois. Mr. Chair-
man, reserving the right to object, now
that the amendments have been read,
we have no objection on this side.
Mr. Chairman, I withdraw my reserva-
tion of objection.
The CHAIRMAN pro tempore. Is
there objection to the request of the gen-
tleman from Illinois?
There was no objection.
The CHAIRMAN pro tempore. The
question is on the amendments offered
by the gentleman from Illinois (Mr.
MCCLORY) -.
The amendments were agreed to.
AMENDMENT OFFERED BY MR. M'CLORY
Mr. McCLORY. Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. McCLowv: Page
4b, line 9, strike out "or" and insert in lieu
thereof "and-.
(Mr. McCLORY asked and was given
permission to revise and extend his
remarks.)
Mr. McCLORY. Mr. Chairman, this
amendment really does nothing more
than to add to the accountability of the
Executive with regard to exercise of for-
eign intelligence electronic surveillance.
In the foreign intelligence requirements
in H.R. 7308 there is provision that the
court application shall include a detailed
certification.
It states that the certification should
contain statements that the information
sought was from intelligence informa-
tion-gathering agencies, including a jus-
tification for the statement, and that
the information cannot reasonably be
obtained by normal investigative tech-
niques. It states also that the certifica-
tion should be approved by a senior
executive branch official or the Assistant
to the President for National Security
Affairs.
What this amendment does is to
require that the Assistant to the Presi-
dent for National Security Affairs and a
senior executive official who is confirmed
by the Senate shall make this certifica-
tion. It merely assures that we can call
before our body for purposes of oversight
somebody also will be involved In this
certification procedure. it affords us a
better chance at oversight. It Imposes a
greater responsibility and puts greater
restrictions on the Executive.
Mr. MURPHY of Illinois. Mr. Chair-
man, will the gentleman yield?
Mr. McCLORY. I yield to the gentle-
man from Illinois.
Mr. MURPHY of Illinois. Mr. Chair-
man, I have talked to the gentleman
from Illinois (Mr. MCCtoRY) with 're-
gard to this amendment, and we are will-
ing to accept it on this side.
The CHAIRMAN pro tempore. The
question is on the amendment offered by
the ? gentleman from Illinois (Mr.
MCCLORY).
The amendment was agreed to.
AMENDMENT OFFERED BY Wr.. M'CLORY
Mr. McCLORY. Mr. Chairman, I offer
an amendment that is referred to as
"amendment number 11 "
The Clerk read as follows:
Amendment offered by Mr. MCCLORY.: Page
63, line 2, strike out "semiannual" and Insert
in lieu thereof "quarterly".
Mr. McCLORY. Mr. Chairman, all this
amendment does 3s require that the At-
torney General shall report quarterly not
semiannually to the House and Senate
Intelligence Committees. It seems to me.
particularly since we are going to be re-
porting with regard to electronic sur-
veillance on U.S. persons, that we should
have that kind of reporting.
The Attorney General, as I recall, said
that this would not be too great a hard-
ship on his part to provide for this
quarterly report. It would give us in-
creased oversight and enable the Con-
gress to protect further the rights of
persons who are subjected to electronic
surveillance.
Mr. Chairman, it seems to me that this
amendment is likewise a very desirable
amendment, and I urge its adoption.
Mr. MURPHY of Illinois. Mr. Chair-
man, I rise in opposition to the amend-
ment.
Mr. Chairman, the committee spent
considerable time and thought in delib-
erations over the congressional oversight
provisions. We considered requiring
quarterly reporting. The administration
opposed it and gave convincing argu-
ments against it.
It was decided that the advantages of
more frequent reporting were ot;tweighed
by the administrative burdens and secu-
rity risks involved in the proliferation of
the paperwork that would ensue. It 'was
also felt that the content of the report
would be more thorough and substan-
tive if it were developed over a 6-month
period.
This is the view of the Director of the
FBI, the Attorney General, and the heads
of the NSA and the CIA. .
On those grounds, Mr. Chairman; I
reluctantly oppose the gentleman's
amendment.
Mr. BOLAND. Mr. Chairman, will the
gentleman yield?
Mr. MURPHY of Illinois. I am happy
to yield to the chairman of the com-
mittee.
Mr. BOLAND. Mr. Chairman, I thank
the gentleman for yielding.
Mr. chairman. as the distinguished
chairman of the subcommittee indicated.
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the administration opposes this partic-
ular amendment because it does impose
an administrative burden upon the
administration.
But beyond that, it is going to impose
an administrative burden upon this com-
mittee, and we have sufficient burdens
right now. We have a difficult enough
time now reading the voluminous reports
that come to us and getting all the
briefings from the Intelligence agencies.
I hope. we are not impacted with yet
another report.
The 6-month report is clearly sufficient
to do the job that ought to be done by
the administration and by the committee.
Mr. Chairman, I would hope that this
particular nitpicking amendment would
be rejected by the committee.
The CHAIRMAN pro tempore. The
question is on the amendment offered by
the gentleman from Illinois (Mr.
MCCLORY).
The amendment was rejected.
AMENDMENT OFFERED BY MR. ASHBROOK
Mr. ASHBROOK. Mr. Chairman, I of-
fer an amendment, entitled "amendment
number 10," which appeared in the REC-
ORD on August 2, 1918.
The Clerk read as follows:
Amendment offered by Mr. ASHBROOK:
Page 63, strike out lines 11 through 18 and
insert in lieu thereof the following:
SEC. 109. (a) OFFENSE.-A person is guilty
of an offense if he intentionally engaged in
electronic surveillance under color of law ex-
cept as authorized by statute.
Page 63, line 19, strike out "(1)".
Page 63, line 20, strike out "(1)
Page 63, strike out line 25 and all that fol-
lows down through line 4 on page 64.
Mr. ASHBROOK (during the reading).
Mr. Chairman, I ask unanimous consent
that the amendment be considered as
read and printed in the RECORD.
The CHAIRMAN pro tempore. Is there
objection to the request of the gentle-
man from Ohio?
There was no objection.
Mr. ASHBROOK. Mr. Chairman, this
amendment was requested by the Justice
Department in a letter to Chairman Bo-
LAND of the House Permanent Select
Committee on Intelligence dated April
17, 1978, and signed by John M. Harmon,
Assistant Attorney General, Office of
Legal Counsel. I have worked with my
colleague, the gentleman from Arizona,
Mr. RUDD, in developing this amendment.
The statement of the Justice Depart-
ment on this section is:
The Administration objects to this sec-
tion, which was added by Subcommittee
amendment. The penalty section in the Sen-
ate version of this bill makes It a crime
to willfully engage in an unauthorized sur-
veillance or to willfully disclose informa-
tion derived from an unauthorized surveil-
lance. That is acceptable. This section in B.R.
7308, however, would cover unauthorized sur-
veillances and a violation of any other pro-
vision of the chapter. Thus, it would be
criminal to violate the minimization re-
quirements of this bill.
As the Committee is aware, this is a very
complicated legislation and the minimization
procedures required by the bill will often be
long and involved. We do not believe it is
necessary to ensure that the bill's provi-
sions are properly implemented to impose
possible criminal violations on an of those
employees who will have to deal with such
minimization procedures on a daily basis.
There are no comparable provisions in con-
nection with Title III. We see no need to
treat individual employees In the intelli-
gence community substantially different
than their colleagues involved primarily in
law enforcement.
In this matter I find myself in agree-
ment with the administration.
Under this section, if an FBI agent
intentionally kept one piece of informa-
tion he was supposed to destroy, or inten-
tionally disseminated one conversation
within the FBI to a person who was. not
supposed to receive it, he could be sent
to jail. If an FBI agent intentionally
violates the minimization procedures, he
should be subject perhaps to disciplinary
measures within the Bureau, but it is
not a violation sufficient to justify crimi-
nal prosecution. Even more important,
where he does not Intentionally violate
the procedures, but l the press of busi-
ness makes a human mistake, he may
fear that a prosecutor is going to be
breathing down his neck, expecting the
agent to-prove that it was not inten-
tional. Such a threat will impede the in-
telligence collection of this country and
runs counter to one of the avowed pur-
poses of the bill--to protect these agents
and give them confidence that they will
not be prosecuted for acting under the
bill.
In addition, if this provision is not
deleted, the ACLU will be encouraged to
undertake additional civil suits to harass
the FBI agents.
Mr. MURPHY of Illinois. Mr. Chair-
man, will the gentleman yield?
Mr. ASHBROOK. I yield to the gen-
tleman from Illinois.
Mr. MURPHY of Illinois. I thank the
gentleman for yielding.
Mr. Chairman., the gentleman from
Ohio (Mr. ASHBROOx) and I have dis-
cussed this. The chief counsel and other
members of the committee have reviewed
it, and we will accept the amendment.
Mr. ASHBROOK. I thank my col-
league.
Mr. RUDD. Madam Chairman, I move
to strike the requisite number of words.
I would like to engage the distin-
guished gentleman from Illinois in a
colloquy, if I may, and perhaps the gen-
tleman from Ohio in a colloquy concern-
ing the Ashbrook amendment which was
passed. I have a couple questions that I
would like to ask.
In the debate yesterday, I expressed
concern about what might happen in the
case of a subordinate, a loyal subordi-
nate, the agent bn the street, and I am
wondering if this amendment will actu-
ally protect the person against prosecu-
tion while acting under legal guidelines
and under authority of the President
and the Attorney General in conducting
surveillances. prior to the time a warrant
might be issued. Is that spelled out in
this amendment?
Mr. McCLORY. Mr. Chairman, will
the gentleman yield?
Mr. RUDD. I will yield to anyone who
can answer the question.
I yield to the gentleman from Illinois
(Mr. MCCLORY).
Mr. McCLORY., Madam Chairman, the
subject of protection of FBI agents and
law enforcement personnel is addressed
by the Federal Torts Claims Act amend-
ments pending before the Committee on
the Judiciary. That bill would be com-
prehensive with regard to all Federal
agents and would substitute the United
States as the party defendant in suits
alleging that Federal agents have acted
unlawfully.
This legislation would absolve Federal
agents of defending against challenges to
their activities performed under color of
law and would guarantee to plaintiffs
that their successful grievances will be
fully remedied. This legislation is a mat-
ter of high priority with the administra-
tion and will, I believe, be considered In
the Judiciary Committee next week.
Mr. RUDD. Madam Chairman, I thank
the gentleman.
I yield to the gentleman from Ohio,
Mr. ASHBROOK. Madam Chairman,
I thank the gentleman for yielding.
As I pointed out in my statement, the
reason that John Harmon, Assistant At-
torney General of Counsel, addressed a
letter to Chairman BOLAND stating, in ef-
fect, the administration's opposition to a
provision that was in the House bill, but
not in the Senate bill, was for the precise
purpose that my amendment was offered.
As Mr. Harmon said, there was no com-
parable provision in title III of the Sen-
ate bill and he went on to say, and I
think this will answer the question:
We see. no need to treat individual em-
ployees of the intelligence community sub-
stantially different than their colleagues in-
volved in law enforcement.
The thrust of my amendment, which
was agreed to by both the majority and
the minority side, was to delete the House
provision, which in the case of mini-
mization procedures would possibly make
an FBI agent or a CIA agent guilty or
subject to criminal prosecution for vio-
lation of a regulation.
Madam Chairman, we all agree that
they should be guilty and found guilty if
they willfully violate the law. I do not
think there is any question about that.
I do not think the FBI agents or the
CIA agents disagree with that..
But what Mr. Harmon is saying and
what my amendment attempted to
clarify is that in those situations where
we have good faith performances and
cumbersome minimization procedures,
the agent in the field should not be held
criminally liable or stand a chance of
facing criminal prosecution if by chance
or in some way there is a name he forgot
to turn in from his file or he did not
comply with some procedures that was
laid out in minimization.
My amendment precisely addressed it-
self to that problem. It did not relieve
him of criminal liability in cases where
he violated the law. It simply said that
as far as minimization procedures and
good faith performances are concerned,
he has the same rights that other law
enforcement officers have, and that
counterintelligence officers and intelli-
gence community officers should also
have those rights. That is the only thrust
of my amendment.
Mr. RUDD. Madam Chairman, I am
sure the agent himself or anyone else
would want to bo so assured. If he is
acting in good faith, he is protected, and
I assume this piece of legislation also
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does the same thing civilly. That would
derive also from the criminal action, Is
that correct?
Mr. ASHBROOK. Yes. If the gentle-
man will yield further, if an FBI agent
intentionally violates the law, I think
all of us agree, of course, that he can be
subject to criminal prosecution. But
where he might make some human error
or unintentionally violate guidelines or
procedures that would be handed down-
and many times, as we all know, they are
nebulous, particularly as they concern
the man out in the field-he would not be
subject to prosecution.
The CHAIRMAN pro tempore. The
time of the gentleman from Arizona (Mr.
RUDD) has expired.
(By unanimous consent, Mr. RUDD was
allowed to proceed for 2 additional min-
utes.)
Mr. ASHBROOK. Madam Chairman,
if the gentleman will yield further, my
point was that the agent could and prob-
ably should be subject to discipline
within the agency, within the FBI or
CIA, for violation of minimization pro-
cedures, but he should not have the fear
that some prosecutor or some court
might be looking over his shoulder and
saying, "You are guilty or you may be
guilty of a criminal violation, and we
are going to prosecute you."
Mr. RUDD. Madam Chairman, I
wanted to be assured, of course, that an
agent acting in good faith is properly
protected, and after all, we want to
guarantee to our intelligence agents they
may operate without fear of reprisal for
doing the job they may be ordered to do
in a competent manner.
Mr. ASHBROOK. I do not completely
agree with all the provisions of the bill,
but the bill does not change the com-
mon law provisions, of course, and it
protects the agents who are actinge in
good faith.
Mr. MURPHY of Illinois. Madam
Chairman, will the gentleman yield?
Mr. RUDD. I yield to the gentleman
from Illinois.
Mr. ,MURPHY of Illinois. Madam
Chairman, I agree with the remarks of
the gentleman from Ohio (Mr. ASH-
BROOK). We have entered into a colloquy
about this matter on a number of oc-
casions.
There is a good faith defense in com-
mon law.
When an FBI agent does his job pur-
suant to a warrant or a court order and
he goes out and he does it in good faith,
he has a good faith common law defense.
The only time' I think they could bring
a criminal action is for:a conscious, open
disregard of the law. The standard would
be almost beyond a reasonable doubt.
This is the problem we addressed.
I appreciate the gentleman's bringing
this point to our attention.
The testimony before our subcom-
mittee and the full committee by the
head of the FBI, Mr. Webster, and the
Attorney General was that we are having
a hard time getting agents to execute
orders today for conducting surveillance
of foreign spies in this country, and there
is a wealth of intelligence material that
Is undetected. That was not the fact in
the past, because in the old days under
Director Hoover orders were given to
conduct surveillance, and the job was
done.
The CHAIRMAN pro tempore. The
time of the gentleman from Arizona (Mr.
RUDD) has again expired.
(By unanimous consent, Mr. RUDD was
allowed to proceed for 2 additional min-
utes.)
Mr. MURPHY of Illinois. Madam
Chairman, if the gentleman will yield
further, under Director Hoover,, the
agents were sent out into the field to
conduct surveillance, and there was no
memorandum or there were no written
orders given. Mr. Hoover is now dead,
and these agents stand naked in the "hall
of justice" trying to defend themselves
against criminal charges brought against
them for their behavior.
What this bill does is to try to protect
those agents, and I think it does it well.
Madam Chairman, I thank the gentle-
man for yielding.
Mr. RUDD. Madam Chairman, I thank
the gentleman from Illinois (Mr. MUR-
PHY) for clarifying this issue, and I am
sure this legislation does protect the em-
ployees.
I hope the mention of Mr. Hoover's
name will not be taken as disparaging or
that anyone thinks we are disparaging in
any way the name of this great Ameri-
can. Mr. Hoover was a great American,
and he did a fine job for our country.
The CHAIRMAN pro tempore. The
question is on the amendment offered
by the gentleman from Ohio (Mr.
AsHBRooK).
The amendment was agreed to -
AMENDMENT OFFERED BY MR. BUTLER
Mr. BUTLER. Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. BUTLER: Page
31, line 11, strike out "and controlled".
Mr. BUTLER. Mr. Chairman, section
101 (a) provides 6 definitions of the term
"foreign power".
The sixth definition defines "foreign
power" as an entity that is directed and
controlled by a foreign government or
governments.
This amendment would simply strike
the words "and controlled," so that it
would be sufficient if an entity is directed
by a foreign government rather than
directed and controlled. If an entity is
directed by a foreign government, this
should be more than adequate to allow
our intelligence agents to target such
entity for electronic surveillance to
gather foreign intelligence information.
To burden the Government with the
additional requirement that a showing
also be made to the court that the entity
is also controlled by a foreign govern-
ment is entirely inappropriate, and the
amendment would strike the words "and
controlled".
Mr. FOWLER. Mr. Chairman, will the
gentleman yield?
Mr. BUTLER. I yield to the gentleman
from Georgia.
Mr. FOWLER. I thank the gentleman
for yielding, and I have just one question
of clarification that I would like to ask
of the gentleman from Virginia. .
How would this affect a foreign air-
line? Would the gentleman have an opin-
ion as to whether or, not a government
airline would be directed and controlled,
or simply directed and not controlled?
Mr. BUTLER. I would assume, under
those circumstances, that an airline is
both directed and controlled.
Mr. FOWLER. If it were a govern-
ment-owned airline?
Mr. BUTLER. Right.
Mr. FOWLER. I thank the gentleman.
Mr. MURPHY of Illinois. Mr. Chair-
man, I rise in opposition to the amend-
ment.
Mr. Chairman, any domestic group
which would receive some direction from
a foreign government could be targeted
under this amendment. A law firm or
public relations firm representing a for-
eign government falls into this category.
Former CIA Director William Colby's
firm is one such law firm. The majority
of the American banking institutions
and Madison Avenue firms also would
be covered. They all receive some direc-
tion from foreign governments. I might
say to my colleagues that the subcom-
mittee, under the able leadership of the
gentleman from North Carolina (Mr.
RosE), is considering starting hearings
on terrorist groups, and this committee
will in the future deal with domestic
terrorist groups that I think the gentle-
man from Virginia is directing his
amendment at. I might say that we re-
cently in Chicago had a terrorist group
take over the embassy or the German
legation in Chicago,. The gentleman
from North Carolina (Mr. Rost) is
bringing down those officials who were
involved in the peaceful settlement of
those terrorists occupying the German
legation office, and we are presently tak-
-ing testimony on this. I would ask the
gentleman to defer this amendment so
that when this committee comes out with
legislation-and I can assure the gentle-
man that as chairman of the subcom-
mittee I will be working closely with the
gentleman from North Carolina (Mr.
RosE)-in the not-too-distant future we
will begin to discuss thoroughly this
question. I feel it would be better not to
deal with it today under this amend-
ment.
Mr. BUTLER. Mr. Chairman, I ask
unanimous consent to withdraw the
amendment.
The CHAIRMAN pro tempore. Is there
objection to the request of the gentleman
from Virginia?
There was no objection.
AMENDMENT OFFERED BY MR. BUTLER
Mr. BUTLER. Mr. Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. BUTLER: Page
81, beginning on line 20, strike out "contrary
to" and all that follows through page 22, line
3, and insert in lieu thereof "; or".
Mr. BUTLER. Mr. Chairman, this
amendment would broaden the definition
of "agent of a foreign power" as it applies
to non-U.S. persons by deleting from the
foreign visitor provision the requirement
that the circumstances of the visitor's
presence in the United States would indi-
cate that he was likely to engage in
espionage. It would also delete the re-
quirement that any espionage conducted
by the visitor's country of origin by
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A RECORD-HOUSE September 7, 1978
"contrary to the interests of the United thing. I think the gentleman adequately United States" means. We are not talk-
States" before the visitor could fall under makes the point, and I thank him very ing here about the national defense or
the definition of "agent of a foreign much. security position of the United States. We
power." Mr. BUTLER. I thank the gentleman. are talking about something much
The requirement that the circum- Mr. MURPHY of Illinois. 1VIr Chair- broader.
stances of the visitor's presence in the man, I rise in opposition to the amend- I am concerned that this term would
United States indicate that he is likely, ment. authorize surveillance of a U.S. citizen
to engage in espionage creates inflexi- Mr. Chairman and my colleagues, most in the United States who might be en-
bility and denies positive intelligence- of the arguments made against the gen- gaged In a perfectly peaceful activity.
gathering opportunities. The principal tleman's previous amendment are equally For instance, If a group of Americans
responsibility of our intelligence services compelling here. organizes to protest the arms sale to Tur-
is to learn and understand the politi- The overriding point that wants to be key, obviously that relates to the for-
cal, strategic, economic, and sociological noted is that the U.S. Government does eign affairs of the United States. Or sup-
forces of other countries. As former CIA not, cannot, and should not engage in the pose a group organizes to protest arms
Director William Colby pointed out in kind of indiscriminate electronic surveil- sale to Saudi Arabia or another nation.
testimony before the Subcommittee on lance that the amendment would au- Are those groups of Americans now sub-
Courts, Civil Liberties and the Adminis- thorize. jected to surveillance?
tration of Justice: The amendment will not contribute Foreign affairs is a subject of very
. When people with this kind of background one iota toward the achievement of any grave concern to many Americans who
Disney, have me lver here even if they considerable a intelligence goal that the intelligence participate in expressing their views in a
co
knowledge to that effect. In their side bee people have suggested is necessary. The perfectly peaceful manner, and I am con-
knowledge their conversations In t with ere FBI does not seek this amendment. They cerned that we may be authorizing sur-
marks
colleagues and communications homeward have asked for nothing more than the veillance of them when they engage in
they can be communicating information current provision contained in H.R. 7308, these activities.
which, putting those bits of pieces together, which was inserted in committee to re- Mr. MURPHY of Illinois. Mr. Chair-
c
Ing In an give us a unique view of what is happen- spond to the Bureau's concerns. man, if the gentlewoman will do ~e foreign country. It has nothing The FBI participated directly in draft- would say the type of group she desyield, Ir
cribes
protecting us in the narrow sense ing the existing language that the gen- would not be the type of group that
of that man doing something here, but it has tleman would amend. The existing ]an- would come under observation. In other
a great deal to db with protecting us by guage gives the Bureau the full author- words, it- is not the type of group the
understanding another country's politics. ity It asked for to target specific classes FBI and the National Security Agency
It is clear that the requirement that of individuals from specific foreign coun- or the counterintelligence or the CIA
the circumstances of the visitor's pres- tries. had in mind when we drafted this lan-
ence in the United States indicate that The gentleman's amendment would lay guage.
he is likely to engage in espionage would hidden like a bomb with a long fuse wait- Ms. HOLTZMAN. They might not have
undermine this general intelligence gath- ing to be fired. If some future President had these groups in mind at that time
ering activity that has proven so useful or FBI wanted to utilize It-and the fact but I want to be sure that they never
to the United States in the past. were made known--the political and ?dip- have them in mind and are never able
The additional requirement that any lomatic repercussions would be explosive. to subject them to electronic surveil-
espionage conducted by the visitor's The amendment would authorize the lance, because the gentleman and I both
country of origin be contrary to the in- wiretapping of any foreigner who comes agree that this kind of activity Is peace-
terests of the United States is equally to our shores in a representative capacity. ful and perfectly In accordance with our
restrictive and unnecessary. When a for- All that would need to be documented democratic system. I am concerned about
eign power is conducting intelligence ac- to a judge .is that the foreigner comes the breadth of this term "foreign af-
tivities In secret in the United States it is from a country that engages in intelli- fairs of the United States" and what
highly inconceivable that the purpose of gence activities In the United States. Pre- surveillance activities It would trigger.
such activities is benevolence toward sumably, that is about any country with Mr. MURPHY of Illinois. It was not
the United States. the money to support an intelligence intended to prohibit a first amendment
Therefore, I d ge my colleagues to' service. activity. I do not know whether that
support the amendment which would I oppose such wasteful and indiscrimi- would help the gentlewoman or not.
strike these two overly restrictive and nate surveillance,. as does the intelligence
unnecessary - Would it subject
ecessary standards which would community, and I oppose the gentle- ,
greatly undermine foreign intelligence man's amendment. American citizens or U.S. persons-I
guess that Is the term used in the bill-
activities conducted by the United States. The CHAIRMAN, pro tempore. The to surveillance if, In 'a peaceable man-
Mr. ASHBROOK. Mr. Chairman, will question is on the amendment offered ner, they engaged in activities that re-
the gentleman yield? by thel gentleman from Virginia (Mr. late to the conduct of foreign affairs of
Mr. BUTLER. I yield to the gentleman the United States?
from Ohio. The amendment was'rejected. Mr. MURPHY of Illinois. If the were
Mr. ASHBROOK. Mr. Chairman, I Ms. HOLTZMAN. Mr. Chairman, I they
certainly would agree 100 percent with move to strike the requisite number of exercising their first amendment rights,
what my. colleague has said. I have v'ow' U.S. Persons would not be the subject of
brought up some of these precise paints Mr. Chairman, I ask for this time solely this type of surveillance as the lady en-
in committee before, and this is an area to clarify some of the language in the visions.
that concerns me very much. bill. Ms. HOLTZMAN. I thank the gentle-
The thing that bothers me the most (M. HOLTZMAN asked and was given man for his assurance.
about this bill, a a others to creating s Permission to revise and extend her re- Mr. DRINAN. W. Chairman, if the
many cracks that I think inte') gentlewoman will yield, why should we
can fall through, is that it is almost a Ms. HOLTZMAN. Mr. Chairman, I not drop lines 17 and 18? I know that was
"Catch
"Catch 22" in some cases. Our intelli_ would like to direct to the attention of - in the Senate bill, and the Senate bill
agencies almost have to show w full the distinguished chairman of the sub- read at one time the successful conduct
control they agencies have surveillance one committee to the language on page 34 of U.S. foreign affairs.
c
sect
ont th just discussed. which gives the definition of "foreign in- - The gentleman from Illinois (Mr.
One ewe Jutelly discussed.
that without first telligence information." The definition MURPHY) says there is no intention
says that foreign intelligence informa- against American citizens who may be
having some investigation. We have tion means "information with respect to protesting, so why do we not just drop
many, many examples where it took long, a foreign power or foreign territory that lines 17 and 18 seeing the bill relates
hard investigation with some surveil- relates to and, if concerning a U.S. per- only to the security of the United States.
lance to prove the case. son, is necessary to .. the conduct of Mr. MURPHY of Illinois. I can say to
There are too many cases where we the foreign affairs of the United States." the gentleman from Massachusetts (Mr.
almost have to prove the end result be- I am concerned by what the term "the DRINAN) that this language was sug-
fore the intelligence agncies can do any- conduct of the foreign affairs of the gested by the administration when they
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 September 7, 1 roved FoC MMI(MM3ftH MPgMIMA000500040005-0 H 9247
testified before the committee, as the
type of activity they were referring to.
The gentlewoman from New York (Ms.
HOLTZMAN) brought up the fact it does
not apply to this particular section. The
gentleman from Massachusetts (Mr.
DRINAN) says why should we not strike
that out? The answer is no because there
are circumstances under which the coun-
ter-intelligence divisions of the FBI and
the NSA consider important, and would
bring in under that definition.
Mr. DRINAN. But this is relating- to
the national defense or security of the
United States so that that does broaden
the vast powers that are vested in the
CIA and the FBI, and they simply can
state that it is necessary to have surveil-
lance on certain American citizens be-
cause the information to be obtained is
necessary for the United States to con-
duct the foreign affairs of the United
States, they do not have to say it is nec-
essary to the national defense.
The CHAIRMAN pro tempore. The
time of the gentlewoman has again ex-
pired. '
(On request of Mr. MURPHY of Illinois,
and by unanimous consent, Ms. HOLTZ-
MAN was allowed to proceed for 2 addi-
tional minutes.)
Mr. MURPHY of Illinois. Mr. Chair-
man, will the gentlewoman yield further?
Ms. HOLTZMAN. I yield further to the
gentleman from Illinois.
Mr: MURPHY of Illinois. I would sug-
gest that the gentleman turn to page 30
and read the definition of "foreign pow-
er" and what we mean by foreign power
under that definition.
Mr. DRINAN. This section is speaking
only, on page 13 and 14, that if-this op-
eration, that is a U.S. person, who wishes
to demonstrate, so that it is necessary to
obtain this surveillance because the in-
formation to beobtained is necessary to
the conduct of the foreign affairs of the
United States, that is far and above, it
is much wider than just relating to na-
tional defense or security.
- Mr. MAZZOLI. Mr. Chairman, if the
gentlewoman would yield, in answer to
the last question of the gentleman from
Massachusetts (Mr. DRXNAN) I would
refer him to page 32 of our bill, at line 4,
which protects the kind of person who
would be targeted. I think tJiis is a very
important distinction because, in answer
to what the gentlewoman also brought
up, in order for a U.S. person, that is an
American citizen or a resident alien, to
be targeted, that person has to fit into
the category on page 32. There is a crimi-
nal standard that that person has to
measure up to. So, taking part in some
activity relating to the arms sale to Tur-
key, or the embargo thereof, is not a
criminal violation.
Ms. HOLTZMAN. Mr. Chairman, if I
might refine my question a little, would
this bill, let us say, allow a wiretap on 'a
foreign power or its agent solely for the
purpose of getting information about
Americans who are engaging in a per-
fectly peaceful conduct? For example,
would it permit wiretapping an agent of
the Greek Government in order to find
out whether or not Americans were going
to engage in a protest against the arms
sale to Turkey? I am very concerned that
we in no way permit any such surveil-
lance.
Mr. FOWLER. Mr. Chairman, If the
gentlewoman will yield, the answer is an
unequivocable no under the committee
bill. It may be questionable now that the
McClory amendment has been adopted.
The CHAIRMAN pro tempore. The
time of the gentlewoman has again ex-
pired.
(On request of Mr. MAZZOLI and by
unanimous consent, Ms. HOLTZMAN was
allowed to proceed for 2 additional min-
utes.)
Ms. HOLTZMAN. I thank the gentle-
man for yielding and I yield further to
the gentleman from Georgia.
Mr. FOWLER. I appreciate that very
much.
Under the committee bill, the answer
is no.
Now that we have no warrant to pro-
tect U.S. citizens from the very kind of
abuse that might occur under the
McClory substitute or under the McClory
amendment which was adopted last
night, we have to be even more vigilant
that that does not occur.
However, I asked the gentleman from
Kentucky to yield to me so that I could
answer the original question which he
has just elaborated upon.
First of all, when we have a U.S. per-
son involved, the criminal standard has
to apply that that person is either en-
gaging in criminal activity or is likely
to engage in criminal activity.
Ms. HOLTZMAN. I understand that
would be the case if the U.S. person were
the target of the surveillance; but what
if the U.S. person is not the nominal
target, but is the real target? Would this
bill nonetheless authorize the intelli-
gence agencies to obtain a warrant to
snoop on foreign powers or persons for
the purpose solely or primarily of getting
information about Americans and Amer-
ican conduct? That is really my question.
Mr. FOWLER. If I may respond, the
gentlewoman from New York undoubt-
edly knows about the Pike committee
and the Church committee, on both of
which the gentleman from Illinois (Mr.
MURPHY), as subcommittee chairman,
served. They have documented those
abuses where a foreign agency or a for-
eign organization was targeted just to
collect information on Americans.
Ms. HOLTZMAN. Yes_ ; that - is my
point.
Mr. FOWLER. Therefore, we wrote
into this bill the judicial protection that
in an application for a tap, the magis-
trate should evaluate the reason for that
tap In order to afford protection. Un-
fortunately, the McClory amendment
knocked out that provision.
The CHAIRMAN pro tempore. The
time of the gentlewoman from New
York (Ms. HOLTZMAN) has again ex-
pired.
(On request of Mr. MAZZOLI and by
unanimous consent, Ms. HOLTZMAN was
allowed to proceed for 2 additional
minutes.)
Mr. MAZZOLI. Mr. Chairman, will the
gentlewoman yield?
Ms. HOLTZMAN. I yield to the gen-
tleman from Kentucky.
Mr. MAZZOLI. Mr. Chairman, I thor-
oughly concur with what my friend, the
gentleman from Georgia (Mr. FOWLER),
has said.
I think that that protection which
our bill, in the original form H.R. 7308,
provided did protect the American citi-
zen who is the incidental subject of a
targeted search or surveillance, let us
say, of the Turkish Embassy or of some
foreign power.
Last night on this very floor I sug-
gested that the committee bill did pro-
tect against that by requiring minimiza-
tion procedures to be in effect and ap-
proved by the judge before the tap was
put on. Further, if the judge, after in-
quiring into the matter, determined that
this was an indirect effort to really tar-
get American citizens by going through
this facade of targeting some foreign
power solely to get this information, the
original bill-now it is changed-would
have said that there are minimization
procedures as to this, and those minimi-
zation procedures would be periodically
reviewed by the court.
When, this committee goes back into
the House, I hope we will have a chance
to take another look at the McClory
amendment. That is why I opposed it
last night. While I am sure it is well-in-
tended', I think it has a pernicious effect.
Ms. HOLTZMAN. I thank the gentle-
man from Kentucky for his assurance.
Let me just ask again under the orig-
inal bill, not as amended by the gen-
tleman from Illinois if the courts were
to find that the objective of the wire-
tap or of the surveillance was solely or es-
sentially to get information about
American people or the conduct of
American citizens here in the United
States or U.>S. persons, even though the
matter were related to foreign affairs
in some way, that surveillance would not
be authorized in the bill?
Mr. MAZZOLI. Absolutely not. The
gentlewoman from New York is correct.
Ms. HOLTZMAN. I thank the gentle-
man for his assurance.
Mr. McCLORY. Mr. Chairman, will the
gentlewoman yield?
Ms. HOLTZMAN. I yield to the gentle-
man from Illinois.
Mr. McCLORY. Mr. Chairman, I would
like to point out that with or without
the McClory amendment, we have
minimization procedures which are pre-
scribed and must be adhered to.
If we had the abuses to which the
gentleman from Kentucky (Mr.
MAZZOLI) makes reference, then we
have abuses which we can take care of
both the congressional oversight and by
appropriate action against anybody who
is abusing the authority.
Mr. MAZZOLI. If the gentlewoman
will yield, Mr. Chairman, one of the 'im-
portant distinctions of those minimiza-
tion procedures to which the gentleman
refers would then involve solely an ex-
ecutive function, reviewed by nobody.
Mr. BOB WILSON. Madam Chair-
man, I move to strike the requisite num-
ber of words.
I would like to clarify the colloquy
which occurred here with respect to the
McClory amendment. -
The McClory amendment does not af-
fect U.S. persons as far as the warrant
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119248 CONGRESSIONAL RECORD-HOUSE September 7, 1978
requirement is concerned. The state-
ment made by the gentleman from
Georgia (Mr. FOWLER) is completely in-
accurate in that respect.
Mr. FOWLER. Madam Chairman, will
the gentleman yield?
Mr. BOB WILSON. I yield to the gen-
tleman from Georgia.
Mr. FOWLER. Madam Chairman, I
would like the gentleman to specify in
what way my statement was inaccurate.
Mr. BOB WILSON. The McClory
amendment removes the warrant re-
quirement for non-U.S. persons only; is
that not correct? And U.S. persons are
not only subjected to a warrant require-
ment in order for them to be surveilled,
but also, they are protected through the
minimization procedures.
Both the gentleman from Georgia and
the other gentleman said that the Mc-
-Clory amendment took this right away
from U.S. citizens,,and that is completely
unfair and wrong.
Mr. FOWLER. Madam Chairman, if
the gentleman will yield further, I will
be delighted, of course, to let the author
of the amendment correct me If I make
any inaccurate statements. First how-
ever, I would like to have an opportunity
to respond.
First of all, the question which the
gentlewoman from New York (Ms.
HoLTZMAx) asked was whether or not
there was judicial protection for Amer-
ican citizens who are surveilled through
a tap which was placed on a foreign
entity.
I am sure the gentleman from Illinois
(Mr. MCCLORY) will agree that under his
amendment there is no judicprotec-
tion under that circumstance and that
he inserts minimization protection which
are, as the gentleman from Kentucky
(Mr. MAZZOLI) pointed out, solely under
the control of the Executive Branch.
The whole thrust of our legislation was
to try to keep this government, or any
subsequent government, from tapping a
foreign power under the ruse of collect-
ing foreign intelligence information
when it is really trying to collect non-
intelligence information about Ameri-
cans. The amendment offered by the gen-
tleman from Illinois would not give judi-
cial protection in that instance.
Mr. McCLORY. If the gentleman will
yield, I would like to point out that if
there is abuse of the authority which is
granted, if there is some ruse employed,
the guilty person is going to be subjected
to criminal penalties under the McClory
amendment or without the McClory
amendment. So the question is as to
whether or not we are going to require
a judicial warrant when we want to tar-
get a foreign power or.a foreign agent.
It could be a foreign spy.
Let me point out that the minimiza-
tion procedures are minimization pro-
cedures which are developed and put In
place by the Executive. The judiciary
does not have anything to do with either
developing or promulgating these mini-
mization procedures, and they should
not. I am fearful that with the interven-
tion of the courts they may try to usurp
authority that is not granted to them in
this legislation. But to suggest that the
court Is going to review the minimization
procedures, then, this it seems to me is
an abberation. It is an irrelevant ex-
planation of this legislation. The court
Is supposed to be there presumably to
protect the Attorney General or those
who are exercising authority under his
direction. They claim that they want
this for the Attorney General and
for the FBI agents, and so on, who have
been sued or who are not going to be
sused any more, and it may be that this
legislation may discourage some of the
suits. But let me say that if the Attorney
General or others are abusing their au-
thority, whether they have a court order
or they do not have a court order, there
is a right to sue and to recover, and the
bill provides for it.
Mr. BOB WILSON. Madam Chairman,
I yield back the remainder of my time.
AMENDMENT OFFERED BY MR. RAILSBACK
Mr. RAILSBACK. Madam Charman, I
ask unanimous consent to offer a clarify-
ing amendment not previously printed in
the RECORD, but which I have discussed
with both sides and which I believe to be
acceptable.
The CHAIRMAN (Mrs. MEYNER). IS
there objection to the request of the gen-
tlemen from Illinois?
Mr. MURPHY of Illinois. Reserving the
right to object, I would just say, Madam
Chairman, if we could have the amend-
ment read for the benefit of all of the
members of the Committee, It would
clarify it.
The CHAIRMAN pro tempore. The
Clerk will report the amendment.
The Clerk read as follows:
Amendment offered by Mr. RAILSBACK: In
the amendment offered by Mr. McCLORY, sec-
tion 102(b) (4) (A) (1) is amended by adding
the words "unobtrusively and" before the
words "in such a manner"; and on page 50,
lines 8 and 9, add the words "unobtrusively
and" before the words "in such a manner".
Mr. MURPHY of Illinois. Madam
Chairman, I withdraw my reservation of
objection.
The CHAIRMAN pro tempore. Is there
objection to the request of the gentle-
man from Illinois (Mr. RAILSBACK) ?
There was no objection.
Mr. RAILSBACK. Madam Chairman,
I offer this amendment to insure that
H.R. 7308 will not impose new and oner-
ous burdens of compliance on those tele-
phone companies called upon to assist
in the establishment of electronic
surveillances.
Currently, I am told, telephone com-
pany assistance (pursuant to. court order
in criminal proceedings, authorizations
of the U.S. Attorney General in national
security cases) is limited to providing
line access information and, when re-
quested, a private line from the source of
the tap to the listening post. All physical
connections to the intercepted telephone
line, however, are made by law enforce-
ment personnel who also provide, con-
nect, and operate :listening or recording
devices.
Language contained in this measure
has been interpreted by some as opening
the door to greater demands for tele-
phone company involvement such as: the
furnishing of monitoring equipment, the
use of telephone company employee
identification cards to gain access to cus-
tomer premises, or even the use of tele-
phone company personnel for access and
listening device placement in customer
premises. Such a direct role in electronic
surveillance by the telephone companies
would, in my opinion, be inappropriate.
It would seriously conflict with the re-
sponsibility of these companies to safe-
guard the privacy of their customers.
The amendment which I am proposing
is quite simple. It would merely replace
the uncertain language contained in H.R.
7308 with the judicially tested and de-
fined language found in the Federal
Omnibus Crime Control Act. Found at
18 U.S.C. section 2518(4) this language
provides that telephone companies will
provide the technical assistance neces-
sary to accomplish the interception "un-
obtrusively". This language is preferable
over that found in the legislation cur-
rently under consideration because it has
proven workable over a number of years,
it is compatible with the responsibility
owed by telephone companies to their
customers, and its meaning has been
clearly refined by judicial interpretation.
I urge my colleagues on both sides of
the aisle to support this simple
amendment.
Mr. McCLORY. Madam Chairman,
will the gentleman yield?
Mr. RAILSBACK. I yield to the gentle-
man from Illinois.
Mr. McCLORY. I thank the gentleman
for yielding.
I am familiar with the gentleman's
amendment, and I see no objection to the
amendment.
Mr. MURPHY of Illinois. Madam
Chairman, will the gentleman yield?
Mr. RAILSBACK. I - yield to the gen-
tleman from Illinois.
Mr. MURPHY of Illinois. I thank the
gentleman for yielding.
I would say to my colleague, the gen-
tleman from Illinois, that we have dis-
cussed this amendment. The amendment
that he offers makes it clear that the
statute does not authorize the Govern-
ment to request cooperation from a com-
mon carrier that is not authorized under
title III of the Omnibus Crime Control
Act of 1968. I made this point yesterday
in colloquy with the gentleman from
Wisconsin (Mr. KASTENMEIER) and the
gentleman from Ohio (Mr. AsuaaooK)
on the floor. We are not requiring any-
thing other than what is required now
under title III of the act I just men-
tioned.
Mr. RAILSBACK. I want to thank the
gentleman very much.
Mr. MURPHY of Illinois. I will support
the amendment, and I appreciate the
gentleman's bringing it to our attention.
(Mr. RAILSBACK asked and was
given permission to revise and extend
his remarks.)
The CHAIRMAN pro tempore. The
question is on the amendment offered by
the gentleman from Illinois (Mr. RAILS-
BACK).
The amendment was agreed to.
AMENDMENT OFFERED BY MR. REMP
Mr. KEMP. Madam Chairman, I offer
an amendment.
The Clerk read as follows:
Amendment offered by Mr. KEMP: Page 62,
after line 15, insert the following new sub-
section:
(1) (1) Notwithstanding any other pro-
vision of this title, whenever the President
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has reason to believe that, based upon In- stitutions. and perhaps even the press, subject of protecting U.S. citizens
formation obtained through an electronic - universities and other centers of in- against intrusion by electronic surveil-
surveillance under this title or other)viae, an formation and research concentration. lance of a foreign power right in our
individual who has diplomatic immunity
conferred by the United States is, within the It would appear that the Soviets midst, in this city, and perhaps in other
carefully plan for this activity by de- cities and other areas of our country. To
means the states, Intercepting
means
communications o of Individuals in s ei termining tLe routes of communications, the extent that these reports are or may
the United States and that such intercepting so as to optimize. intercept capability, be true, it seems to me that the very least
of communications is being conducted on Further, it appears that the locations we can do is to adopt this amendment.
behalf of a foreign power and in violation of for new consulates and trade missions It is, of course, a further protection
the laws of the United States, the President have been carefully selected to provide to U.S. citizens. In part of the debate we
shall- even greater opportunities for the So- have had here, we talked about protect-
minority meorm tor, cha airman ndtion,king viets to intercept personal information, Ing the incidental rights of American
members, of the Permanent Select Commit- and business and monetary secrets of our citizens whose communications are inci-
tee on Intelligence of the House of Repre- citizens and corporations. This situa- dentally listened into-that is, not inten-
sentatives and the Select Committee on tiop could grow more serious In the near tionally, but just because they happen to
Intelligence of the Senate; future as new consulates and trade get overheard accidentally or inciden-
(B) except as provided under paragraph missions are opened. Further, the tech- tally. What this amendment would do
(2), so inform any individual believed to be a niques involved In electronic surveil- would be to attack that type of electronic
particular target of such intercepting of lance are neither technologically diti- surveillance which is directly or deliber-
communications in order that such indl- cult, nor expensive. There is no guaran- ately imposed upon American citizens, so
victual may take such precautions as such
individual considers advisable; and tee that other foreign governments, and I cannot see that there is any reason for
(C) except as provided under paragraph their intelligence organizations, will not this body not to support this.
(2), so inform the Ambassador or Charge similarly invade the rights to privacy The bill that the gentleman has spon-
d'Affairs or other principal representative of guaranteed under the provisions of the sored and that is sponsored in the other
such foreign power to the United States and fourth amendment. body by Senator MOYNIHAN goes a long
demand that such intercepting of communi- The bill under consideration would way and deals precisely with this subject.
cations be ceased immediately. provide protection to those few U.S. I might say that the amendment was
(2) The. President shall not be required to persons who were subjected to electronic drafted very carefully in order to be sure
comply with the provisions of subparagraph surveillance by our intelligence organi- that it was germane and was not objec-
(B) or (C) of paragraph (1) in any case in zations and, under the
which the President certifies in writing to provisions o$ Ex- tionable from a parliamentary stand-
the Permanent Select Committee on Intelli- ecutive Orders 11905 and 12036, only a point. It seems to me that it is entirely
gene of the House, of Representatives and few U.S. persons have been subjected to appropriate that we should adopt it.
the select Committee on intelligence of the electronic eavesdropping. It is ironic Mr. STRATTON. Madam Chairman,
senate that to comply with the provisions that, during this same period, millions will the gentleman yield?
of such subparagraph would cause serious of American citizens have had their pri- Mr. McCLORY. I Yield. to the gentle-
damaze to the national security of the
11rca 1 1 WIN. ariauem ';iaauznan, 1
Mr. KEMP (during the reading). The House in dealing with this legis- would just like to join the gentleman
Madam Chairman, I ask unanimous lation has a responsibility to the Ameri- from Illinois in support of the amend--
consent that the amendment be con- can people to do all in its power to pro- ment of my colleague from New York
sidered as read and printed in the, tect their right to privacy. Apparently, (Mr. KEMP). As a matter of fact, I have
RECORD. the fourth amendment provisions of our an amendment that bears on this same
The CHAIRMAN pro tempore. Is there Constitution do not apply to acts of for- situation, which Senator MOYNIHAN has
objection to the request of the gentle- eign governments, but are limited to acts recently brought to the attention of all
man from New York? of the Government of the United States. Of us.
There was no objection. In view of the activities of the intelli- I think the gentleman's amendment is
Mr. KEMP. Madam Chairman, my gence services of foreign governments a very valuable addition to the bill, and
amendment would require the President operating' against U.S. persons within at the proper time in title III I shall be
to take the following actions when it - our territory, I believe we must provide offering my own amendment which will,
became apparent that electronic com- statutory protection to limit these crimi- I believe, further provide some restric-
munications of U.S. persons were being nal actions. Adoption of my amendment tions in connection with the same situa-
intercepted and monitored by foreign would accomplish these objectives by tion as the amendment of the gentleman
governments or their agents. First, the warning U.S. persons of the fact, and from New York (Mr. KEMP). -
President - would be requred to notify notifying foreign governments to cease Mr. McCLORY. I thank the gentleman.
such person that his communications and. desist, unless the President per- Mr. MURPHY of Illinois. Madam
were being subjected to electronic sur- sonally determined that to do so would . Chairman, I rise in opposition to the
veillance by the foreign government.- cause grave harm to the national secu- amendment. It serves no useful purpose
Second, the President would be required rity interests of the United States. here In furthering the dialog on H.R.
to notify the foreign government to cease Madam Chairman, I urge support for 7308 or in protecting Americans from
and desist such surveillance, since the this amendment. unlawful foreign surveillances. The
act is in violation of U.S. law. The Presi- Mr. McCLORY. Madam Chairman, I President, the intelligence agencies, and
dent would be relieved of this respon- rise in support of the amendment. the congressional intelligence commit-
sibility in the event that he notify the Madam Chairman, I want to commend tees share the gentleman's concern and
House Permanent Select Committee on the gentleman from - New York (Mr. are fully aware of the intrusive activi-
Intelligence and the Select Committee KEMP) on the amendment that is being ties that some governments engage in
on Intelligence of the other body that to offered. I think at a time when we are within our borders.
comply would cause grave harm to the seeking to protect the privacy of U.S. It is a sensitive and. complex problem
national security Interests of the United citizens through our own efforts and with sweeping intelligence and diplo-
States` through actions of our executive branch, matic ramifications.
Information has been reported recent- and to the extent that we may be also I suggest to the gentleman that I
ly in the press that millions of Ameri- involving the courts In this matter of think any further discussion here of the
cans are having their telephone calls- protecting the privacy interests of U.S. sensitive issues involved can only serve
monitored and recorded by the KGB persons, to ignore the fact that Ameri- to aggravate the underlying problem
from various locations in the United cans' privacy is being violated in a whole- which has nothing to do with the merits
States. Further, the press reports that sale way, as Is reported to us through of H.R. 7308.
the Soviets are engaged in electronic the press and through the debates that . I assure the gentleman and my col-
surveillance of Government activities- were carried on in the other body at the leagues in the House that this Member
and defense contractors, private busi- time this measure was debated there, and the Intelligence- Committee will
nesses, stock and commodity exchanges, seems to- me to be quite unthinkable. maintain the closest possible scrutiny of
national and international banking in- This is a very modest approach to the this delicate issue.
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 H 9250 Approved For ReMlV(s`KER181 ATC SO > 00500040099pgember 7, 1978
I think that on the floor of the House
with our visitors and guests in the House
is no place to discuss the sensitive is-
sues involved.
Mr. KEMP. Madam Chairman, will the
gentleman yield?
Mr. MURPHY of Illinois. I yield to the
gentleman from New York.
Mr. KEMP. Madam Chairman, .I re-
spect the gentleman's position. The gen-
tleman knows I am not about to reveal
anything that would hurt this Nation or
its relations with other countries or the
privacy of U.S. citizens. So I share that
belief as far as the gentleman is con-
cerned. I give him credit for that. I only
bring it out because there have been re-
ports about it. It was related in the
Rockefeller report to the American p9o-
ple. So I apprecate the gentleman's at-
tempts to deal with this quietly and in a
proper forum, and I regret to having to
bring it up, but it seems to me it is a
legitimate concern to the American peo-
ple, not by virtue of a KEMP or a MoYNI-
HAN bringing it up, but it was the sub-
ject of the Rockefeller report.
But if it is simply a matter of codifying
what the gentleman has suggested, I can-
not understand the gentleman's opposi-
tion to the amendment, thus making it a
bigger issue.
It is just that it seems that this has
been going on for quite some time? That
is my only concern.
Mr. MURPHY of Illinois. Let me say
that the methods the gentleman speaks
about are very sensitive and sophisti-
cated.
I just think now that, to go any fur-
ther today with this dialog would be
ill-advised.
Mr. ASHBROOK. Mr. Chairman, I
move to strike the last word and I rise
in support of the amendment offered by
the gentleman from New York (Mr.
KEMP).
(Mr. ASHBROOK asked and was given
permission to revise and extend his re-
marks.)
Mr. ASHBROOK. Mr. Chairman, this
amendment seems to present several of
the arguments that I have heard on
many amendments. For instance, I have
heard it said a number of times, against
amendments that I bring in that, well, a
previous President agrees with the Car-
ter administration on this bill so that
makes it pass the litmus paper test.
Here it has been said that it would be
premature to tread in this area. Let us
be fair about it, Soviet eavesdropping
was done in a previous administration
and little was done, if anything. We have
had the best part of 2 years of the new
administration and little is done if any-
thing. So it is not a partisan issue. I think
there was a degree of allowing this to be
the victim of detente, of looking the
other way in both administrations. So
it is not a' partisan matter.
Mr. MURPHY of Illinois. Will the gen-
tleman yield?
Mr. ASHBROOK. I yield to the gentle-
man from Illinois.
'Mr. MURPHY of Illinois. The gentle-
man says nothing has been done. I do
not know if the gentleman was present
in the hearings, but definite moves have
been made by the executive branch and the fourth amendment rights of Amer-
the Secretary of the State in this matter. scan citizens, basic rights under the Bin
They are in the midst of bearing fruit. of Rights.
Also the fact that protective measures Let me say, further, that the junior
are being directed at those individuals - Senator from New York that brought
that have been conducting it. this up in the Senate, after he made his
The gentleman is fully aware of what point, he withdrew the amendment
those moves are without my describing which you can see if you read the debate.
them today. Mr. KEMP. I have.
Mr. ASHBROOK. That is right, and Mr. MURPHY of Illinois. That the
the gentleman indicated that some peo- Senate committee was working on this,
ple have been contacted, but the sheer too, and they have the same information
multitude of eavesdropping indicates if that we have.
there are tens of thousands of American Mr. ASHBROOK. Mr. Chairman, let
conversations being monitored, nobody me reclaim my time to say that my col-
is making an effort to contact tens of league, the gentleman from New York
thousands of people. (Mr. KEMP), is not becoming involved in
Mr. MURPHY of Illinois. I will say to sensitive apparatuses. He is not becom-
the gentleman that the most sensitive, ing involved in foreign policy. He is not
the people that have the most to lose becoming involved in intrigue. All he is
have been contacted. saying is that this foreign surveillance is
Mr. ASHBROOK. Then let us not get going on on a massive scale and it de-
caught in that trap. All the arguments serves some attention. We know that to
I have heard have been made, the gen- be a fact.
tlewoman from New York (Ms. HoLTZ- Mr. Chairman, there is no reason that
MAN) presented them, And I have heard the Congress should not at least recog-
them any number of times. We are sup- nize that fact in what we are doing, not
posedly vigilant for all Americans' rights. with respect to countermeasures, not
How many times have I heard it said in with respect to sensitive equipment, but
this debate that we must make sure to emphasize the knowledge of this in-
we protect the rights of Americans? vasion of privacy, indeed, criminal inva-
I think the Kemp amendment is a sion of privacy of the American people
pretty good test of whether Congress by the Soviet Union, to escalate that
wants to show it is zealous to protect knowledge of something which is at least
Americans' rights against our Govern- known by the public. Countermeasures
ment and against actions directed by or what is being done to protect us has
Communist agents against Americans. nothing to do with the Kemp amend-
Mr. MURPHY of Illinois. I am sure ment.
the gentleman recognizes the fact that Mr. BOLAND. Mr. Chairman, I move
we gave the counterintelligence division to strike the requisite number of words,
$10 million in the last appropriation and I rise in opposition to the amend-
here for this very purpose. ment.
Mr..ASHBROOK. I would add one Let me suggest to my very good
point to my colleague, the gentleman friend-and he is my friend-why does
from Illinois, ' and that is that I do not he not perform an act of statesmanship
see that the Kemp amendment does any- here, as was done by the junior Senator
thing that would be adverse to our na- from New York? He has made his point
tional security or to our intelligence in offering the amendment. Why does he
gathering effort. It merely requires the not withdraw it?
President of the United States to indi- One of the reasons I suggest that he
cate what is going to be done on this do it is that as intelligent as he is, as
subject. It is not going to tresliass into smart and as persuasive as he is, he
the intelligence field. knows that this is a matter with ramifi-
Mr. KEMP. Mr. Chairman, if the gen- cations which really travel beyond the
tleman would yield, I would say, just to matter which we are discussing today in
enter into this colloquy, that this issue this foreign intelligence surveillance bill.
was fully aired and discussed on April The gentleman from New York (Mr.
20 in the other body. KEMP) knows that.,
I can understand the gentleman's con- He also knows that those ramifications
cerns, and they are shared by me, but I do embrace other agencies of the Gov-
want to remind the gentleman that the ernment such as the State Department
article pubulished in the New York and the Department of Commerce.
Times, which suggests that the admin- Mr. Chairman, it would occur to me
Istration is, mapping a secret plan to that this is really not the place in which
counteract Soviet activity is kind of, in- to accept this amendment.
teresting, because here we are mapping The gentleman from New York (Mr.
out a public plan, a congressional plan KEMP) has his own bill. He knows that
to take care of domestic surveillance, he will get a hearing on that bill be-
and yet we are working on a secret plan, cause it is a matter which the Congress
according to the New York Times, to is very interested in. He knows that he
deal with the activities of the Soviets. is going to get a hearing on the bill. He
Why are we so sensitive about that can bring that matter to the attention
and less sensitive about the intelligence of the Congress at that time; and I am
gathering agencies of the U.S. Govern- sure that with the persuasiveness of
ment. It seems to me to be a little bit which he is so capable, we will get a bill
counterproductive. which will answer the problems that he
Mr. MURPHY of Illinois. We are talk- and the junior Senator from New York
ing about a sensitive apparatus and sen- are so interested, in.
sitive methods. We are not talking about Furthermore, the gentleman from
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 September 7, Ao8oved For lWWA" 8 N1 B :1114 B"10Z ,4000500040005-0 H 9251
New York (Mr. KEMP) knows that the
President is worrying about this matter
and that the Congress is getting a. look
at it, as this committee, is, and as are
outer committees, incidentally, of the
House and Senate,. too. He also knows
that the President and the administra-
tion are engaged in the study of this very
difficult problem; and hopefully, it will
be resolved.
Again, why does not the gentleman
perform that act of statemanship at this
point? Why does he not withdraw his
amendment? He is going to get a lot of
credit for it anyhow.
Mr. KEMP. Mr. Chairman, will the
gentleman yield?
Mr. BOLAND. I yield to the gentleman
from New York.
Mr. KEMP. Mr. Chairman, I am sorry
that the gentleman from Massachusetts
(Mr. BOLAND) suggests that I might be
doing this simply to get credit.
I am doing it to get the Soviets to
cease and desist their electronic surveil-
lance of American citizens, which now
mounts into the tens of thousands or
more. This. fact has already been con-
firmed by the gentleman as well as by
our friend, the gentleman from Illinois
(Mr. MURPHY).
My point Is. that if we knew about
this, why was not something done in
conjunction with bringing this bill to
the flooiC? Why am I now being asked
to remove the amendment from. con-
sideration and to be a statesman and
lower the profile of our concern for the
rights of American citizens?
Why was not this matter brought to
the attention. of the committee at an
earlier time so that we could have had
a bill that would have dealt with both
of these problems, not only the surveil-
lance of American citizens, by domestic
Intelligence agencies, but also that of
foreign intelligence agencies?
Mr. BOLAND. That is a good ques-
tion, and it deserves an answer.
Let me say emphatically to the gen-
tleman from New York that I do not
think the gentleman offered his amend-
ment for the purpose of getting public-
ity. I am aware of his intense Interest
In this matter as well as of the interest
of a lot of Members of Congress, a lot
of members of this committee, and a lot
of members of the New York delega-
tion.
One of the reasons I presume-at
least,-it is my judgment-that we did not
include this matter in this bill is that
we are not the only committee involved
here. The International Affairs Com-
mittee would be Involved in this matter;
there is no doubt about it. There are
some' diplomatic ramifications. Let me
indicate to the gentleman, we had
enough difficulty with the foreign sur-
veillance intelligence bill without im-
pacting with something that might give
us additional trouble. That Is my re-
sponse to the gentleman from New
York.
Mr. KEMP. Will my friend, the gentle-
man from Massachusetts, yield again?
Mr. BOLAILD. I yield to the gentleman.
Mr. KEMP. I thank the gentleman for
yielding.
This act creates or amends all of the
applicable law on electronic surveillance,
and it seems, therefore, that any elec-
tronic surveillance undertaken by an
intelligence-gathering source, domestic
or foreign, in this `country, is a violation
of the specific provisions of this bill. I
cannot understand why the Congress
ought not make clear our concern for
these violations and force the Soviets to
cease and desist. I personally would like
to make them persona non grata, but I
understand that might not be germane.
We worked, as the gentleman from
Illinois (Mr. MCCLORY) said, with the
Parliamentarian in trying to work out
something that would be acceptable. It
seems to me a reasonable attempt to as-
sure the people of this country that we
are concerned as much about their rights
vis-a-vis foreign intelligence services, as
we are about their rights vis-a-vis our
own agencies. So I rest my case and hope
that the gentleman will support it.
Mr. BOLAND. Mr. Chairman, I think
this is the wrong place and.the wrong
time for this particular amendment, and
I would hope that the committee would
reject it.
The CHAIRMAN pro tempore (Mr.
MURTHA). The question is on the amend-
ment offered by the gentleman from
New York (Mr. KEMP).
The question was taken;. and the
Chairman pro tempore announced that
the noes appeared to have it.
Mr. KEMP. Mr. Chairman; I demand
a recorded vote, and pending that, I
make the point of order that a quorum
is not present.
The CHAIRMAN pro tempore. Evi-
dently a quorum is not present.
The Chair announces that pursuant
to clause 2, rule XXIII, he will vacate
proceedings under the call when a
quorum of the Committee apears.
Members will record their presence
by electronic device.
The call was taken by electronic
device.
The CHAIRMAN pro tempore. A
quorum of the Committee of the Whole
has not appeared.
The Chair announces that a regular
quorum call will now commence.
Members who have not already re-
sponded under the noticed quoruil call
will have a minimum of 15 minutes to re-
port their presence. The call will be
taken by electronic device.
The call was taken by electronic de-
vice, and the following `Members failed
to respond:
Abdnor
Conyers
Guyer
Ambro
Crane
Hagedorn
Ammerman
Danielson
Hansen
Andrews,
Davis
Harrington
N. Dak.
Delaney
Harsha
Archer
Dellums
Hawkins
Armstrong
Dent
Holt
Beilenson.
Diggs
Holtzman
Bingham
Duncan, Oreg.
Huckaby
Booker
Emery
Kasten
Brodhead
Erlenborn
Krueger
Burke, Calif.
Evans, Ga.
Leggett
Burke, Fla.
Fary
Lehman
Long, La.
Byron
Flowers
Lundine
Cederberg
Forsythe
McCloskey
Chisholm
Fraser
McCormack
Clawson, Del
Frey
McDonald
Clay
Gibbons
,
McFall
Cochran
Goldwater
Madigan
Mahon
Rinaldo
Treen
Mathis
Risenhoover
Tsongas
Meeds
Roncallo
Tucker
Mikva
Rooney
Waggonner
Miller, Calif.
Runnels
Waxman
Murphy, N.Y.
Santini
Whitten
Neal
Schauer
Wiggins
Ottinger
Shipley
Winn
Pepper
Sisk
Wright
Pettis
Skubitz
Yatron
Pike
Solarz
Young, Alaska
Pressler
Staggers
Young, Tex.
Quayle
Steed
Zablocki
Quie
Symms
Zeferetti
Quillen
Teague
Rangel
Thone
Accordingly the Committee rose; and
the Speaker having resumed the chair,
Mr. MURTHA, chairman pro tempore of
the Committee of the Whole House on
the State of the Union, reported that that
Committee, having had under consider-
ation the, bill H.R. 7308, and finding
itself without a quorum, he had directed
the Members to record their presence by
electronic device, whereupon 327 Mem-
bers recorded their presence, a quorum,
and he submitted herewith the names
of the absentees to be spread upon the
Journal.
The Committee resumed its sitting.
RECORDED VOTE
The CHAIRMAN pro tempore. The
pending business is the demand of the
gentleman from New York (Mr. KEMP)
for a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic de-
vice, and there were-ayes 154, noes 230;
not voting 48, as follows:
[Roll No. 733]
AYES-154
Anderson, in. Forsythe Moorhead,
Andrews, Frenzel ? Calif.
N. Dak. Gammage Mottl.
Applegate Gaydos Myers, Gary
Archer Gilman Myers, John
Ashbrook Goldwater Nichols
AuCoin Goodling Nowak
Bafalis Gore O'Brien
Bauman Grassley Oberstar
Beard, Tenn. Green Pritchard
Bennett Hammer- Purcell
Biaggi Schmidt Quayle
Bowen Harsha Rausback
Breaux Heckler Regula
Brinkley Hulls Rhodes
Broomfield Holt Rinaldo
Brown, Mich. Holtzman Robinson
Brown, Ohio Horton Rousselot
Broyhill Hyde Rudd
Buchanan Ichord Runnels
Burgener Jeffords Ruppe
Butler Johnson, Colo, Santini
Caputo Kemp Sarasin
Carter Kildee Satterfield
Cederberg Kindness . Sawyer
Clausen, LaFalce Schulze
Don H
Lagomarsino Seb
. e
lius
Cleveland Latta Shuster
Cohen Leach Smith, Nebr.
Coleman Leggett Snyder
Collins, Tex. Lent Spence
Conable Levitas Stangeland
Conte Livingston Stanton
Corcoran Lott Steiger
Coughlin Lujan Stockman
Cunningham McClory Stratton
Daniel, Dan McDade Stump
Daniel, R. W. McDonald Taylor
Davis McEwen Treen
Derwinski McKinney Trible
Devine Madigan Vander Jagt
Dickinson Maguire Walker
Doman Markey Walsh
Drinan Marks Wampler
Duncan, Tenn. Marlenee Watkins
Edwards, Ala. Marriott Weiss
Edwards, Okla. Martin Whalen
Emery Mathis Whitehurst
Evans, Del. Michel Wilson, Bob
Evans, Ind. Mikulski Winn
Fenwick Miller, Ohio Wylie
Findley Mitchell, N.Y. Young, Fla.
Flowers Moore
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 Approved For COy
ae 2?RJ1NAL :1%RDS80IQ62W00050004 eptember 7, 1978
NOES-230
Addabbo Fountain
Nedzi
Akaka Fowler
Nix
Alexander Fuqua
Nolan
Ambro Garcia
Oakar
Anderson, Gephardt
Obey
Calif. Giaimo
Ottinger
Andrews, N.C. Ginn
Panetta
Annunzio Glickman
Patten
Ashley Gonzalez
Patterson
Aspin Gradison
Pattison
Baldus Gudger
Pease
Barnard Hall
Pepper
Baucus Hamilton
Perkins
Beard, R,I. Hanley
Pickle
Bedell Hannaford
Pike
Benjamin Harkin
Poage
Bevill Harrington
Preyer
Bingham Harris
Price
Blanchard Hefner
Rahall
Blouin Heftel
Rangel
Boggs Hightower
Reuss
Boland Holland
Richmond
Bolling Hollenbeck
Risenhoover
Bonior Howard
Roberts
Banker Hubbard
Rodin
Brademas Hughes
Roe
Breckinridge Ireland
Rogers
Brodhead Jacobs
Roncalio
Brooks Jenkins
Rose
Brown, Calif. Jenrette
Rosenthal
Burke, Mass.
Johnson, Calif. Rostenkowski
Burleson, Tex.
Jo11es, N.C.
Roybal
Burleson, Mo.
Jones, Okla.
Russo
Burton, John
Jones, Tenn.
Ryan
Burton, Phillip Jordan
Scheuer
Byron
Kastenmeier
Schroeder
Carney
Kazen
Seiberling
Carr
Cavanaugh
Keys
Sikes
Chappell
Kostmayer
Simon
Chisholm
Krebs
Skelton
Clay
Le Pants
Slack
Collins, Ill.
Lederer
Smith, Iowa
Conyers
Lloyd, Calif.
Solarz
Corman
Lloyd, Tenn.
Spellman
Cornell
Long, La.
St Germain
Cornwell
Long, Md.
Stark
Cotter
Luken
Steed
D'Amours
Lundine
Steers
Danielson
McCloskey
Stokes
de la Garza
McCormack
Studds
Delaney
McFall
Thompson
Dellums
McHugh
Thornton
Derrick
McKay
Traxler
Dicks
Mahon
Tucker
Dingell
Mann
Udall
Dodd
Mattox
Ullman
Downey
Mazzoli
Van Deerlin
Early
Meeds
Vanik
Eckhardt
Metcalfe
Vento
Edgar
Meyner
Volkmer
Edwards, Calif.
Milford
Walgren
Ellberg
Mineta
Waxman
English
Minish
Weaver
Ertel
Evans, Colo.
Moakley
Whitley
Evans, Ga.
Moffett
Whitten
Fascell
Mollohan
Wilson, C. H.
Fisher
Montgomery
Wilson, Tex.
Fithian
Moorhead, Pa.
Wirth
Flippo
Moss
Wolff
Flood
Murphy, 111.
Wright
Florio
Murphy, N.Y.
Wydler
Flynt
Foley
Myers, Michael
Young, Mo.
Ford, Mich.
Natcher
Young, Tex.
Ford, Tenn.
Neal
Zablocki
NOT VOTING-48
Quie
Ammerman
Frey
Quillen
Armstrong
Gibbons
Rooney
Badham
Beilenson
Hagedorn
Sisk
Burke, Calif.
Hansen
Skubitz
Burke, Fla.
Hawkins
Staggers
Clawson, Del
Huckaby
Symms
Cochran
Kasten
Teague
Crane
Krueger
Thone
Dent
Lehman
Tsongas
Diggs
Mikva
Waggoner
Duncan, Oreg.
Miller, Calif.
Wiggins
Erlenborn
Murphy, Pa.
Yatron
Fary
Pettis
Young, Alaska
Fish
Pressler
Zeferetti
Mr. ROBERTS changed his vote from Surveillance Act of 1978 shall be the exclu-
"aye" to "no." sive means by which electronic surveillance,
as defined in section. 101 of such Act, and
Mr. MAGUIRE changed his vote from the interception of domestic wire and oral
"no" to "aye. " communications may be conducted.".
So the amendment was rejected. (c) Section 2511(3) is repealed.
(d) Section 2518(l) Is amended by insert-
ing "under this chapter" after "communica-
tion".
(e) Section 2518(4) is amended by insert-
ing "under this chapter" after both appear-
ances of "wire or oral communication".
(f) Section 2518(9) is amended by strik-
ing out "intercepted" and inserting "inter-
cepted pursuant to this chapter" after "com-
munication".
(g) Section 2518(10) is amended by strik-
ing out "intercepted" and inserting "inter-
cepted pursuant to this chapter" after the
first appearance of "communication".
(h) Section 2519(3) is amended by insert-
ing "pursuant to this chapter" after "wire
or oral communications" and after "granted
or denied".
Mr. MURPHY of Illinois (during the
reading). Mr. Chairman, I ask unani-
mous consent that title II be considered
as read, printed in the RECORD, and open
to amendment at any point.
The Chairman pro tempore. Is there
objection to the request of the gentle-
man from Illinois?
There was no objection.
The CHAIRMAN pro tempore. Are
there amendments to title II?
The Clerk will read.
The Clerk read as follows: '
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
surveillance is obtained under title I of this
Act within ninety days following the desig-
nation of the chief judges pursuant to sec-
tion 103 of this Act.
The CHAIRMAN pro tempore. Are
there amendments to title III?
AMENDMENT OFFERED BY MR. STRATTON
Mr. STRATTON. Mr. Chairman, I
offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. STRATTON:
Page 68, strike out line 5 and all that
follows down through "of this Act," on line
8 and insert in lieu thereof, the following:
EFFECTIVE DATE
SEC. 301. The provisions of this Act and
the amendments made by this Act shall not
take effect unless the President certifies to
the Congress that no individual who. has
diplomatic immunity conferred by the
United States is, within the United States,
intercepting by electronic means the com-
munications of individuals in the United
States on behalf of a foreign power and in
violation of the laws of the United States.
If the President makes such a certification,
the provisions of this Act and the amend-
ments made by this Act shall take effect
upon the date of such certifications.
(Mr. STRATTON asked and was given
permission to revise and extend his
remarks.)
Mr. STRATTON. Mr. Chairman, the
previous amendment referred to a sit-
uation which is also at the heart of my
amendment, but for different reasons.
The House was unwilling to accept the
amendment of the gentleman from New
York (Mr. KEMP) because of the possi-
bility that it might lead to discussions
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The result of the vote was announced
as above recorded.
The CHAIRMAN pro tempore. Are
there any further amendments to title I?
The Clerk will read.
The Clerk read as follows:
TITLE II-CONFORMING AMENDMENTS
AMENDMENTS TO CHAPTER 119 OF TITLE 18,.
UNITED STATES CODE
States Code, is amended as follows:
(a) Section 2511(2) (a) (ii) is amended to
read as follows:
"(ii) Notwithstanding any other law, com-
munication common carriers, their officers,
employees, and agents, landlords, custodians,
or other persons, are authorized to provide
information, facilities? or technical assist-
ance to persons authorized by law to inter-
cept wire or oral communications or to con-
duct electronic surveillance, as defined in
section 101 of the Foreign Intelligence Sur-
veillance Act of 1978, if the common carrier,
its officers, employees, or agents, landlord,
custodian, or other specified person, has
been provided with-
"(A) a court order directing-such assist-
ance signed by the authorizing judge, or
"(B) a certification in writing by a person
specified in section 2618(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, facilities,
or technical assistance is authorized and
specifying the information, facilities, or tech-
nical 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 de-
vice used to accomplish the interception or
surveillance with respect to which the per-
son has been furnished an order or certifi-,
cation 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 prose-
cuting attorney of a State or any political
subdivision of a State, as may be appropri-
ate. 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 pro-
viding 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 provi-
sions:
"(e) Notwithstanding any other provision
of this ttile or section 605 or 606 of the Com-
munications Act of 1034, it shall not be un-
lawful for an officer, employee, or agent of
the United States in the normal course of
his official duty to conduct electronic sur-
veillance, 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 Communications Act of
1934, shall be deemed to affect the acquisi-
tion by the United States Government of for-
eign intelligence information from interna-
tional 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
 September 7, AfF914'thved For FIM OVA3.: BECGBESGMCMU000500040005-0
H 9253
and disclosures about the extent of our going voluntarily to restrict our own What I was referring to were the fair-
information. ability to protect ourselves against that ly successful intelligence operations go-
My amendment also is premised on the kind of surveillance or insist on com- ing on in this country during World War
news we have received in the press lately Parable intelligence to protect our own II and even before World War II. I be-
about the intelligence activities of cer- security. lieve we can all be grateful that those
tain foreign governments operating here Mr. Chairman, I will be glad to yield operations were not embargoed by the
in the United States, and even in the now to the gentleman from Illinois (Mr. very restrictions we are instituting in this
city of Washington. McCLORY). bill.
This bill, essentially, places limitations Mr. McCLORY. Mr. Chairman, I Mr. FOWLER. Mr. Chairman, I rise in
on the operation of United States Intel- thank th gentleman for yielding. opposition to the amendment.
ligence. It provides restrictions so that we As I understand the gentleman's Mr. Chairman, speaking on behalf of
do not get into the errors and abuses of amendment, it only relates to the effec- the committee, if we adopt the Stratton
the past and It requires various things- tive date of this legislation. amendment as it is proposed, including
or did until the amendment of the gen- The CHAIRMAN pro tempore (Mr. that language that requires that we
tleman from Illinois and the gentleman MURTHA). The time of the gentleman postpone the effective date of this act
from Pennsylvania were adopted on yes- from New York (Mr. STRATTON) has ex- until the President certifies to Congress
terday-to be performed before intelli- Aired. that no individual with diplomatic im-
gence collection can begin. (On request of Mr. MCCLORY, and by munity conferred by the United States
In effect this legislation is based on the unanimous consent, Mr. STRATTON was is engaging In electronic surveillance in
philosophical concept enunciated, I think allowed to proceed for 2 additional min the United States, that would require us
it was by Mr. Justice Holmes, that "it is utes.) to reveal-and I stress the hypothetical
better that one guilty man go free than Mr. McCLORY. Mr. Chairman, will nature of my example-that if we de-
that the Government play an ignoble the gentleman yield further? . termine that friendly governments such
role." Mr. STRATTON. I yield to the gentle- as the Government of New Zealand, for
That kind of Marquis of Queensberry man from Illinois. instance, was using electronic surveil-
approach to intelligence might have been Mr. McCLORY. Mr. Chairman, the ling in this country against the Govern-
all right back in the easy-going early legislation we are discussing here relates ment of Australia, then this would cause
days of the 20th century or the last part to restrictions and restraints which cir- this act not to go into effect.
of the 19th century; but the world that cumscribe our exercise of electronic sur- In other words, the Stratton language
we live in today is a different world,, as veillance of foreign agents and foreign is so broad that, if our Government gains
It was made clear yesterday In the de- powers for foreign intelligence. So all the knowledge of any electronic surveillance
bate. No other nation, either In the free gentleman Is asking in this amendment by any government against any other
world or the Communist world or the is that the effective date of this legisla- government within the borders of this
third world, operates by the type of sys- ' lation be postponed, and that these re- country, then this would vitiate the en-
tern that we are proposing to place upon straints and guidelines be Imposed at tire act under the Stratton amendment.
our intelligence services in this bill. Cer- such time as we are assured that similar Also, as if that were not reason enough
tainly not our number one competitor, electronic surveillance of American citi- to defeat this amendment, let me say
the Union of Soviet Socialist Republics; zens by foreign agents or foreign powers this. First, I might say that I know the
so It Is obvious that if we are going to has been discontinued. Position of the gentleman from New York
place these limitations on our own in- In other words, we do not want to (Mr. STRATTON), because I heard what he
telligence activities, we are going to be leave ourselves open to their electronic referred tows his "deathless prose" last
operating at a distinct disadvantage in a surveillance while we are preventing our- night. We are trying to protect the abil-
tough, competitive real world where in- selves from engaging in that kind of In- ity of this country to preserve the finest
teuigence operations are sometimes mat- telligence gathering. intelligence surveillance system in the
ters of life and "death. Mr. STRATTON. Exactly. The gentle- world, and if we are to certify to the
It is a little bit as though you went to man from Illinois (Mr. MCCLORY) has Congress or to the Executive or to any-
a football game and one team was al- expressed it very clearly. body else that we know everything about
lowed to tackle wthe other twas We are living in a real world in which what our enemies or-our allies are doing
only allowed le while il "Please other team
down." people are zeroing in on us, and we would in the electronic surveillance field, we
only a the kind of ." be foolish, it seems to me, to impose these are in the old Western position of reveal-
Obviou sly, that
we want tI nobet t the far as our na- restrictions, which everybody acknowl- ing how our ambush Is better than their
tio anol security is concerned toaayu edges do limit the effectiveness of our in- ambushes, and immediately our enemies
t
telligence, at a time when we are going will have ways of targeting on us to find
Senator MOYNIHAN has already in- to be hard pressed to maintain our own out how we know what we know from
dicated the extent to which these intel- operations. That is all that is involved what we must reveal if the Stratton
ligence activities are going on in Wash- here. amendment passes.
ington today. I do not want to say more Mr. SEIBERLING. Mr. Chairman, will it is overly broad, it is completely un-
about them, because, as the distinguished the gentleman yield? workable, It would work against our allies
chairman of the subconunittee, the gen- Mr. STRATTON. I am glad to yield to as much as it would work against our
tleman from Illinois (Mr. MURPHY) has the gentleman from Ohio. enemies, and I urge rejection of the
said, we are indeed getting into a sensi- Mr. SEIBERLING. Mr. Chairman, amendment.
tive area. But we ought to be aware of it. there are, of course, various constitu- Mr. STRATTON. Mr. Chairman, will
So It seems to me that it is a little ridicu- tional restrictions in the Bill of Rights the gentleman yield?
lous for us to enact this legislation under on our Government, such as the fourth Mr. FOWLER. I yield to the gentle-
these circumstances, because we would amendment itself, man from New York.
be in effect adopting the Unilateral In- The argument the gentleman is mak- Mr. STRATTON. Mr. Chairman, I
telligence Disarmament Act of 1978.
tag would require that we suspend the would point out to the gentleman that.
We are going to be "good guys," we Bill of Rights until all the other coun- the text of my amendment says that-
are going to be clean, we are going to tries In the world Impose similar restric- '. intercepting by electronic means the
play by Marquis of Queensberry rules, tions on their governments. I do not communications of individuals in the United
but we are operating. in a world in which really see that that Is practical. States on behalf of a foreign power and in
nobody else follows that same procedure. violation of the laws of the United States.
Mr. McCLOR.Y: Mr. Chairman, will Mr. STRATTON. Mr. Chairman, I do
the gentleman yield? not think the gentleman from Ohio (Mr. It is the interception on behalf of a
STRATTON. I will was here last night when I foreign power in violation of our laws
Mr. l yield in just a had the oppoz tunity to address the com- that we are asking be certified as nonex-
moment. mittee. I find that my remarks somehow istent before we will adopt these proce-
Mr. Chairman, my amendment simply never got Into the RECORD, and so the dures ourselves.
says that until American citizens are not gentleman may unfortunately be pre- In other words, the gentleman appears
being surveilled and "intelligenced" and vented from ever reading that "death- to be suggesting that we allow activities
spied upon in our country, we are not less prose." in violation of our laws, and I do not
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think he really would want that to hap-
pen.
Mr. FOWLER. Mr. Chairman, the only
place I will agree with the gentleman
from New York (Mr. STRATTON) is that
the basis of spying is nasty business. We
are talking about spying. We are violat-
ing laws, both of this country and of
others by spying, laws that are protected
by the first and fourth amendments to
the Constitution. What this legislation
attempts to do is to set precise standards
so that we balance that need for collec-
tion; that is, spying, and at the same
time protect the rights of American citi-
zens when those rights do not have to be
violated.
Mr. MAZZOLI. Mr. Chairman, will the
gentleman yield?
Mr. FOWLER. I yield to the gentleman
from Kentucky.
Mr. MAZZOLI. I thank the gentle-
man for yielding.
Mr. Chairman, I think the gentleman
makes a very good point. I am against
the amendment, and I join the gentle-
man in opposition to it.
I would ask the gentleman one further
question. Theadministration of this, the
handling, the mechanics of putting the
Stratton amendment into play just com-
pletely befuddle me. If I understand the
language, if the millennium ever arrives
and nobody is spying on anybody, the
Stratton amendment goes into effect.
And what happens on the day when the
spying resumes? Would the gentleman
suggest that the Stratton amendment
ceases to be in effect?
Mr. FOWLER. First of all, I cannot
conceive of the scope of the administra-
tive bureaucracy that would have to be
set up in order for the President to make
this determination.
Mr. MAZZOLI. That is right.
:Mr. FOWLER. And, of course, every-
thing the legislation is trying to protect
would have to be held in abeyance.
Mr. KASTENMEIER. Mr. Chairman,
will the gentleman yield?
.Mr. FOWLER. I yield to the gentle-
man from Wisconsin.
Mr. KASTENMEIER. I thank the
gentleman for yielding.
Mr. Chairman, would not the gentle-
man from Georgia concede that the en-
actment of the Stratton amendment
would in effect make the President a
prisoner, literally, of persons beyond
Presidential control because of diplo-
matic immunity? It makes a mockery
of the whole process, in effect.
Mr. FOWLER. I certainly agree with
the distinguished gentleman.
Mr. KASTENMEIER. Certainly the
amendment ought to be rejected. I agree
with the gentleman.
The CHAIRMAN pro tempore. The
question is on the amendment offered,
by the gentleman from New York (Mr.
STRATTON).
The, amendment was rejected.
AMENDMENT OFFERED BY MR. DBINAN
Mr. DRINAN. Mr. Chairman, I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. DRINAN: Page
68 after line 15, add the following new
section:
SUNSET PROVISSON we have seen its results. The only way to
Svc. 302. The provisions of this Act and make absolutely certain that we have the
the amendments made by this Act shall ex- opportunity to conduct such a review is
pire at the end of the five-year period be- > by adopting a sunset provision.
ginning on the date of enactment of this Mr. McCLORY. Mr. Chairman, will
Mr. DRINAN. Mr. Chairman, in gen-
eral I do not favor the adoption of sun-
set provisions, calling for positive action
by Congress to reenact a bill by a date
certain. H.R. 7308, however, breaks so
much new ground, contains so many pro-
visions which are subject to differing in-
terpretations, and deals to such a large
extent with so many of our most funda-
mental rights, including the fourth
amendment, that I believe it is essential
that we reconsider this bill in its en-
tirety after we have had an opportunity
to study its implementation.
The amendment which I propose is a
simple one. It states that the terms of
this act shall expire 5 years after the
date of its enactment. This will provide
us with the time to consider the actual
impact of this bill and also provide
answers to the many questions which
H.R. 7308 raises. How will the unprece-
dented three-judge special courts func-
tion? Will warrants be granted almost
as a matter of course, as some fear, or
will the intelligence agencies be denied
the opportunity to conduct surveillance
which is needed, as others believe? Can
we depend upon rigid adherence to the
rule of secrecy? Precisely how broadly
will the intelligence agencies define the
terms "foreign power" and "agent of a
foreign power"? To what extent will some
law enforcement agencies abuse the priv-
ileges granted by H.R. 7308 to obtain in-
formation about a, wide range of indi-
viduals and activities not subject to the
surveillance authorization?
One of the most :important distinctions
drawn by H.R. 7308 is between citizens
and resident aliens on the one hand and
all other persons within the United States
on the other. Insofar as I am aware, there
is little constitutional support for such
a distinction, especially when it is a cen-
tral concept of legislation which deals
directly with the bill of rights. Many peo-
ple in the United States are neither citi-
zens, nor resident aliens, nor engaged in
espionage of any kind. Tourists, lec-
turers, businessmen, scholars and others
all visit the United States regularly. Yet
these individuals are not accorded the
same protections as citizens and resident
aliens. The first and fourth amendments
refer to people, not just citizens. To
what extent will we, by passing this
measure, diminish the scope of these
amendments and subject our guests to
eavesdropping? To this question, as to
the others, we have no answer.
In a more general sense, a sunset pro-
vision will insure that, after a reason-
able period of time! within which to eval-
uate the act, we will be able to balance
the amount and the importance of the
intelligence information collected under
the terms of this bill against its intru-
sions on our first and foul'th amendment
rights. The important respects in which
this bill departs from our existing intelli-
gence gathering methods mandate a
comprehensive review of the act after
the gentleman yield?
Mr. DRINAN. I will be happy to yield
to the gentleman from Illinois.
Mr. McCLORY. Mr. Chairman, it
seems to me that this is most appropri-
ate legislation in which to have a
so-called sunset amendment. We are
venturing into ground that has been un-
charted.It is an unprecedented piece of
legislation. Many aspects of this legisla-
tion are really without precedent, and
consequently I think a 5-year limitation
on the legislation is highly desirable.
Mr. Chairman, I am happy to support
the gentleman's amendment.
Mr. DRINAN. I thank the gentleman
for his support.
Mr.,MURPHY of Illinois. Mr. Chair-
man, I rise in opposition to the amend-
ment.
Mr. Chairman, the purpose of this bill
is to assure Americans that their rights
are being protected and to provide a
sound legal basis for the continuation
of vital foreign intelligence programs.
Having it expire in 5 years' time puts
both those principles in jeopardy.
If there were to be a delay in the legis-
lative process and the bill was not passed
again on time, the status of protection
of individual rights and the legality of
surveillances would be endangered.
The Senate has announced that it will
take a hard look at this statute on an
annual basis to determine if it needs to
be modified on the basis of experience.
That seems a far sounder approach
where such important issues are at stake
and the committee will certainly pledge
to do that also.
The CHAIRMAN pro tempore. The
question is on the amendment offered by
the gentleman from Massachusetts (Mr.
DRINAN).
The question was taken, and on a divi-
sion (demanded by Mr. DRrNArr) there
were-ayes 21; noes 28.
Mr. DRINAN. Mr. Chairman. I de-
mand a recorded vote.
A recorded vote was refused.
So the amendment was rejected.
Mr. McCLORY. Mr. Chairman, will
the gentleman yield.
Mr. BOLAND. Mr. Chairman, I move
to strike the requisite number of words.
Mr. Chairman, I yield to the distin-
guished gentleman from North Carolina
(Mr. PREYER).
Mr. PREYER. Mr. Chairman, I thank
the distinguished gentleman from Mass-
achusetts for yielding to me. I wish to
ask the chairman of the committee at
this time if I am correct in my under-
standing that in accordance with section
2, 2(c) of House Resolution 658, juris-
diction to study and review intelligence
activities other than those dealing ex-
clusively with the Central Intelligence
Agency is to be shared concurrently with
the committee by other committees that
have exercised jurisdiction over these
activities in the past.
The Government Information and In-
dividual Rights Subcommittee, which I
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ception of nonverbal communications by (4) a group engaged in international ter- vl (2) information with respect to a foreign
Federal intelligence agencies and the rorism or activities in preparatidn therefor; power or foreign territory that relates to and,
notification to victims of improper the (5) a foreign-based political organization, if concerning a United States person, is nec-
notificati actvicti For this r per in- I not substantially composed of United States essary to-tel think the subcommittee's jurisdiction persons; or (A) the national defense or the security of
in the area of intelligence surveillance troled by entity fore gnagove nmentdorn the United States; or
has been established. ments. govern- the the conduct of the foreign affairs of
I would appreciate the comments of Such term shall not apply to any United th(f) "Electronic surveillance" means-
the gentleman from Massachusetts (Mr. States person solely upon the basis of activi- (1) the acquisition by an electronic, me-
BOLAND) regarding this matter. ties protected by the first amendment of the chanical, or other surveillance device of the
Mr.. BOLAND. Mr. Chairman, in res- Constitution. contents of any wire or radio communication
pones to the question propounded the (b) "Agent of a foreign power" means- sent by or intended to be received by a par-
pnse to t the let lstion say thou his under by the (1) any person other than a United States ticular, known United States person who is
standing of House Resolution 658, -stab- person who- in the United States, if the contents are ac-
(A) acts in the U
it
n
ed States as an officer, quired by intentionally targeting that United
fishing the House Permanent Select member, or employee of a foreign power; or States person, under circumstances i Which
Committee on Intelltrenne nn.i hie (B1 A'ta r,' v
zerence to section 2, 2(c) of that resolu-
tion conferring jurisdiction to study and
review intelligence activities other than
those dealing exclusively with the CIA,
is to be shared concurrently with the
committee by other committees that have
exercised jurisdiction over these activi-
ties in the past is correct. Those com-
mittees that have exercised jurisdiction
of these activities in the past will con-
tinue to have that jurisdiction.
And as he has indicated, his Subcom-
mittee on Government Information and
Individual Rights has actually dealt with
some of the matters we are dealing with,
and we will continue to share that juris-
diction with his subcommittee and the
full committee.
. Mr. PREI'ER. I thank the gentleman.
AMENDMENT IN THE NATURE Of A SUBSTITUTE
OSFERED BY MR. M'CLORY
Mr. McCLORY. Mr. Chairman, I of-
fer an amendment in the nature of a
b
su
stitute.
The Clerk read as follows:
Amendment in the nature of a substi.
tute offered by Mr. MCCLORY:
Strike out all after the enacting clause
and insert in lieu thereof the following:
That this Act may be cited as the "Foreign
Intelligence Electronic Surveillance Act of
1978".
TABLE OF CONTENTS
TITLE I-ELECTRONIC SURVEILLANCE
WITHIN THE UNITED STATES FOR
FOREIGN INTELLIGENCE PURPOSES
Sec. 101. Definitions,
Sec. 102. Authorization for electronic sur-
veillance for foreign intelligence
purposes.
Sec. 103. Use of Information.
Sec. 104. Congressional oversight.
Sec. 105. Penalties.
Sec. 106. Civil liability.
Sec. 107. Retention of records.
TITLE II-CONFORMING AMENDMENTS
Sec. 201. Amendments to chapter 119. of
title 18, United States Code.
TITLE III-,EFFECTIVE DATE
See. 301. Effective date.
TITLE I-ELECTRONIC SURVEILLANCE
WITHIN THE UNITED STATES FOR
FOREIGN INTELLIGENCE PURPOSES
DEFINITIONS
SEC. 101. As used In this title:
(1) a foreign government or any com-
ponent thereof, whether or not recognized
by the United States;
(2) a faction of a foreign nation or na-
tions, not substantially composed of United
States persons;
(3) an entity that is openly acknowl-
edged by a foreign government or govern-
which engages -- I?? `--- ' `" "`4911?A?uae expectation or
in clandestine intelligence privacy and a warrant would be required for
activities in the United States contrary to the law enforcement purposes;
foreign policy or security interests of the (2) the acquisition by an electronic, me-
United States
whe
th
,
n
e circumstances 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 person in
the conduct of such activities or knowingly
conspires with any person to engage in such
activities; or
(2) any person who-
(A) knowingly engages in clandestine in-
telligence activities for or on behalf of a
foreign power under circumstances which
indicate that such activities are contrary to
the foreign policy or security interests of the
United States;
(B) knowingly engages in sabotage or inter-
national terrorism, or activities that are In
preparation therefor, for or on behalf. of a
foreign power; or
-~(C) conspires with or knowingly aids or
contents of any wire communication to or
from a person in the United States, without
the consent of any party thereto;
(3) the intentional 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 lo-
cated within the United States; or
(4) the installation or use of an electronic,
mechanical, or other surveillance 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.
Such term shall not apply to any United spect to a particular electronic surveillance,
States person solely upon the basis of activi- signed In vght means slight the purpose tec reasonably de-
ties protected by the first amendment of the of the nc and techniqu-
Constitution, of the surveillance, to minimize the aequisi-
(c) "International terrorism" means ac_ tion, retention, and dissemination of non-
tivities that- publicly available information concerning
to human life that are or may be 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 kidnapping; 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 per-
petrators operate or seek asylum.
(d) "Sabotage" means activities that in-
volve 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 neces-
sary to the ability of the United States to
protect against
sistent with the need of the United States
to obtain, produce, and disseminate foreign
intelligence information. To achieve such
minimization the Attorney General shall
adopt procedures which shall include, where
appropriate-
necessary information the
acquired through the
surveillance;
(2) provisions with respect to what infor-
mation may be filed and on what basis, what
Information may be retrieved and on what
basis, and what information may be dissemi-
nated, to whom, and on whet basis;
(3) provisions for the deletion of the
identity of any United States citizen ac-
quired tfirough the surveillance if such
identity is not necessary to assess the im-
portance of or to understand the informa-
tion;
(4) provisions relating to the proper au-
thority in particular cases to approve the
retention or dissemination of the identity
of any United States citizen acquired
through the surveillance;
(6) provisions relating to internal review
of the minimization process; and
(6) provisions relating to adequate ac-
counting of information concerning United
States citizens that is used or disseminated.
(A) actual or potential attack or other In addition, the procedure shall include pro-
grave hostile acts of a foreign power or an visions that require that nonpublicly avail-
agent of a foreign power, able information that is not foreign intelli-
gence information, as defined in subsection
(B) sabotage or international terrorism (e) (1), shall not be disseminated In a manner-
by a foreign power on an agent of a foreign which identifies any individual United
power; or States citizen, without such person's con-
(C) clandestine intelligence activities by' sent, unless such person's identity is neces-
an intelligence service or network of a for-, sary to understand foreign intelligence in-
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H 9256 CONGRESSIONAL RECODN~.~
in the course of surveil-
formation or to assess its importance; and Deputy Attorney General determines that- (ii) train persons
shall allow for the retention and dissemina- (A) an emergency situation exists with re- lances otherwise authorized by this title; or
tion of information that is evidence of a spect to the employment of electronic cur- (iii) train persons in the use of such
crime that has been, is being, or is about veillance to obtain foreign intelligence in- equipment without engaging in electronic
to be committed and that is to be retained formation before the requirements of sub- surveillance;
or disseminated for the purpose of prevent- section (a) can be followed; and (B) such electronic surveillance is limited
ing the crime or of enforcing the criminal (B) the factual bases exist for the issuance in extent and duration to that necessary to
law. of a surveillance certificate under subsection train the personnel in the use of the equip-
(h) "United States person" means a citi- (h) to approve such surveillance, ment; and
zen of the United States, an alien lawfully the Attorney General or Deputy Attorney (C) no contents of any communication
admitted for permanent residence (as de- General, as the case may be, may authorize acquired are retained or disseminated for
fined in section 101(a) (20) of the Immigra- the emergency employment of electronic sur- any purpose, but are destroyed as soon as
tion and Nationality Act), an unincorpo- veillance if, as soon as is practicable, but reasonably possible.
rated association a substantial number of not more than forty-eight hours after the (g) (1) Upon the issuance of a surveillance
members of which are citizens of the United Attorney General or Deputy Attorney Gen- certificate under this section, the Attorney
States or aliens lawfully admitted for per- eral authorizes such surveillance, the re- General may direct a specified communica-
manent residence, or a corporation which quirements of subsection (a) are met as they tion or other common carrier, or a landlord,
is incorporated in the United States, but would have been. custodian or other specified person, to-
does not include a corporation or an associa- (2) If the target is a United States citizen, (A) furnish any information, facility, or
tion which is a foreign power, as defined in the Attorney General or Deputy Attorney technical assistance necessary to accomplish
subsection (a) (1), (2), or (3). General Shall notify the President at the the electronic surveillance in such a manner
(1) "United States", when used in a geo- time of such authorization that the decision as will protect the secrecy of such surveil-
graphic sense, means all areas under the ter- has been made to employ emergency elec- lance and will produce a minimum of inter-
ritorial sovereignty of the United States and tronic surveillance. ference with the services that such common
the Trust Territory of the Pacific Islands. (3) If the Attorney General or Deputy At- carrier or person provides Its customers; and
(J) "Aggrieved person" means a person torney General authorizes such emergency (B) maintain any records concerning such
who is the target of an electronic surveil- employment of electronic surveillance, he surveillance or the assistance' furnished by
lance or any other person whose communl- shall require that the minimization proce- such common carrier or person that such
cations or activities were subject to elec- dures required by this title be followed. common carrier or person wishes to retain
tronic surveillance. (4) If electronic surveillance is authorized under security procedues approved by the
(k) "Wire communication" means any under this subsection, it shall terminate Attorney General and the Director of Central.
communication while It is being carried by when the informatipn'sought is obtained or Intelligence.
a wire, cable, or other like connection fur- after the expiration of forty-eight hours from (2)' Any direction by the Attorney General
niched or operated by any person engaged the time of authorization, whichever is under paragraph (1) shall be in writing.
as a common carrier in providing or oper- earliest. in the event that the requirements (3) The Government shall compensate any
ating such facilities for the transmission of of subsection (a) are not met, all informa- common carrier, landlord, custodian, or other
interstate or foreign communications. tion obtained or evidence derived from elec- specified person at the prevailing rate for
(1) "Person" means any individual, in- ironic surveillance authorized under this assistance furnished pursuant to a direc-
cluding any officer or employee of the Fed- subsection shall be destroyed within forty- tion under paragraph (1).
easel Government, or any group, entity, as- eight hours of such determination, except (4) Any individual may, for reasons of con-
sociation, corporation, or foreign power. that a record of the facts surrounding the science, refuse to comply with a direction
(m) "Contents", when used with respect Attorney General's or Deputy Attorney Gen- from the Attorney General under para-
to a communication, includes any informa- eral's authorization and the failure to meet graph (1).
tion concerning the identity of the parties the requirements subsection (a) shall be (h) A surveillance certificate issued under
to such communication or the existence, made and preserved with all other records subsection (a) shall be issued in writing
substance, purport, or meaning of that com- which under this title are required to be and under oath by the Attorney General and
munication. retained. an executive branch official or officials des-
(n) "State" means any State of the United (f) Notwithstanding any other provision ignated by the President from among those
States, the District of Columbia, the Com-. of this title, officers, employees, or agents of officials employed in the area of national
monwealth of Puerto Rico, any territory or the United States are authorized in the nor- security or national defense who were ap-
possession of the United States, and the nal course of their official duties to conduct pointed by the President by and with the
Trust Territory of the Pacific Islands, electronic surveillance not targeted -,against advice and consent of the Senate, and shall
AUTIuORIzATION OF ELECTRONIC SURVEILLANCE the communications of any particular per- include-
TO OBTAIN FOREIGN INTELLIGENCE INFORMA- son or persons, under procedures approved (1) astatement-
TION by the Attorney General, solely to- (A) identifying or describing the target
SEc. 102, (a) Electronic surveillance of a (1) test the capability of electronic equip- of. the electronic surveillance, including a
foreign power or an agent of a foreign power ment, if- certification of whether or not the target is
for the purpose of obtaining foreign intelli- (A) it is not reasonable to obtain. the a United States citizen;
gence information may be authorized by the consent of persons incidentally being sub- (B) certifying that the target of the our-
issuance of a surveillance certificate in ac- jeoted to the surveillance; veillance is a foreign power or an agent of a
cordance with subsection (h). If the target (B) the test is limited in extent and dura- foreign power: and
of the electronic surveillance is a United tion to that necessary to determine the capa- (C) certifying that each of the facilities or
States citizen, the issuance of a certificate bility of ;the equipment; and places at which the surveillance is directed
under oath and signed by the President stat- (C) the contents of any communication is being or may be used by a foreign power
ing that such,electronic surveillance would acquired ate retained and used only for the or an agent of a foreign power;
be in accordance with the criteria and re- purpose of determining the capability of the (2) a statement of'the basis for the cer-
quirements of this title shall also be re- equipment, are disclosed only to test person- tification under paragraph (1) that-
quired. nel, and are destroyed before or immediately (A) the target of the surveillance is or is
(b) Electronic surveillance authorized upon completion of the test; not a United States citizen;
under subsection (a) may only be performed (2) determine the existence and capability (B) the target of the surveillance Is a for
according to the terms of a surveillance cer- of electronic surveillance equipment being eign power or an agent of a foreign power,
tificate issued in accordance with subsection used by persons not authorized to conduct and
(h). electronic surveillance, if- (C) each of the facilities or places at which
(c) Electronic surveillance may be author- (A) it is not reasonable to obtain the con- the surveillance Is directed is being used or
ized under this section for the period neces- sent of persons incidentally subjected to the may be used by a foreign power or an agent
sary to achieve Its purpose, except that- surveillance; of a foreign power;
(1) if the target of the surveillance is not (B) such electronic surveillance is limited (3) a statement of the proposed minimiza-
a, foreign power, the period of the surveil- in extent and duration to that necessary tion procedures;
to determine the existence and capability of
lance may not exceed ninety days; and (4) a statement that the information
(2) if the target of the surveillance is a such equipment; and sought is foreign intelligence information;
foreign power, the period of the surveillance (C) any information acquired by such a statement that the purpose of the
surveillance a es obtain the purpose of the
may not exceed one year. surveillance is used only to enforce chapter (5)
(d) An electronic surveillance authorized 119 of title 18, United States Code, or section information;
under this section may be reauthorized In 605 of the Communications Act of 1934, or
the same manner as an original authoriza- to protect information from unauthorized (6) If the target of the surveillance is a
surveillance; or United States person, a statement that the
under d, but all subsection (h) statements required
Iasi i to made information sought cannot reasonably be ob-tial of surveillance fctthe shall be shall be based ssuance on of (3) electronic train intelligence surveillance equipment, personnel ent, , iff- use tamed by normal investigation techniques;
naeW findings. certificate (A) ) i It is is not reasonable to- (7) if the target of the surveillance is not
(e) (1) Notwithstanding any other provi- (I) obtain the consent of the persons in- a foreign power, a statement of the basis, for
sion of this title, it the Attorney General or ciden-tally subjected to the surveillance; the certification under paragraph (4) that
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 September 7, .1974$proved F MGNALREC DPU%T3T$Po8A000500040005-0 119257
the information sought Is foreign intelligence
information;
(8) a statement of the period of time for
which the surveillance is required to be
maintained;
(9) a statement of the means by which the
surveillance will be effected;
(10) If the nature of the Intelligence gath-
ering is such that the approval of an elec-
tronic surveillance under subsection (b)
should not automatically terminate when
the described type of information has first
been obtained, a statement of the facts indi-
cating that additional information of the
same type will be obtained thereafter;
(11) a statement indicating whether or
not an emergency authorization was made
under subsection (e) ; and
(12) if more than one electronic, mechan-
ieal, or other surveillance device Is to be in-
volved with respect to such surveillance, a
statement specifying the types of devices in-
volved, their coverage, and the minimization
procedures that will apply to information ac-
quired by each type of device.
'USE OF INFORMATION
SEC. 103. (a) Information acquired from
an electronic surveillance conducted pur-
suant to this title concerning any United
States person may be used and disclosed by
Federal officers and employees without the
consent of the United States, person only in
accordance with the minimization proce-
dures required by this title. No otherwise
privileged communication obtained in ac-
cordance with, or in violation of, the provi-
sions 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 enforce-
ment purposes unless such discloure is ac-
companied by a statement that such infor-
mation, or any information derived there-
from, may only be used for or disclosed in
any proceeding with the advance authoriza-
tion of the Attorney General.
(e) Whenever the Government intends to
enter into evidence or otherwise use or dis-
close in any trial, hearing, or other proceed-
ing 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 ag-
grieved 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 dis-
close 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 Government intends to so disclose
or so use such information.
(d) Before any State or political subdivi-
sion thereof may 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 politi-
cal subdivision thereof, against an aggrieved
person any information obtained or derived
from an electronic surveillance of that ag-
grieved person pursuant to the authority of
this title, the State or political subdivision
thereof must receive from the Attorney Gen-
eral an authorization to so use such Infor-
mation. Upon receiving such authorization,
the State or political subdivision thereof shall
notify the, aggrieved person and the court
or other authority in which the information
is to be disclosed or used that the State or
political subdivision thereof intends to so
disclose or so use such information.
(e) Any person against whom evidence
obtained or derived from an electronic sur-
veillance 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, de-
partment, officer, agency, regulatory body, or
other authority of the United States, a State,
or a political subdivision thereof, may move
to suppress the evidence obtained or derived
from such electronic surveillance on the
grounds that-
(1) the information was unlawfully ac-
quired; or
(2) the surveillance was not made In con-
formity with an order of authorization 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 dis-
closed in any trial, hearing, or other pro-
ceeding, the Government may make a mo-
tion before the court, or if the case is before
a court of a State or a subdivision thereof,
then before the United` States district court
of the judicial district in which the case is
pending, to determine the lawfulness of the
electronic surveillance. Such motion shall
stay any action in any court or authority to
determine the lawfulness of the surveillance.
In determining the lawfulness of the sur-
veillance, the court shall, nowithstanding
any other law, if the Attorney General files
an affidavit under oath with the court that
disclosure would harm the national security
of the United States or compromise foreign
intelligence sources and methods, review in
camera the surveillance- certificate 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 mak-
ing such determination, the court may dis-
close to the aggrieved person, under appro-
priate security procedures and protective
orders, portions of the application, order, or
other materials if there is a reasonable ques-
tion as to the legality of the surveillance and
if disclosure would likely promote a more
accurate determination of such legality.
(g) Except as provided in subsection (f),
whenever any motion or request is made pur-
suant 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 surveillance certificates
or other materials relating to surveillance
pursuant to the authority Qf this title, or to
discover, obtain, or suppress any informa-
tion obtained from electronic surveil-
lance pursuant to the authority of this
title, and the court or other authority de-
termines that the moving party Is an ag-
grieved person, if the Attorney General
files with the court of appeals of the cir-
cuit in which the case is-pending an affi-
davit under oath that an adversary hearing
would harm the national security or com-
promise foreign intelligence sources and
methods and that no information obtained
or derived from an electronic surveillance
pursuant to the authority of this title has
been or is about to be used by the Govern-
ment In the case before the court or other
authority, the court of appeals shall, not-
withstanding any other law, stay the pro-
ceeding before the other court or authority
and review in camera and ex parte the sur-
veillance certificate and such other materials
as may be necessary to determine whether
the surveillance of the aggrieved person was
lawfully authorized and conducted, In mak-
ing this determination, the court of appeals
shall disclose, under appropriate security
procedures and protective orders, to the ag-
grieved person or his attorney, portions of
the surveillance certificate or other materials
relating to the surveillance only if necessary
to afford due process to the aggrieved person.
(h) If the court pursuant to subsection
(f) or the court of appeals pursuant to sub-
section (g) determines the surveillance was
not lawfully authorized and conducted, it
shall, in accordance with the requirements of
the law, suppress the evidence which was
unlawfully obtained or derived from elec-
tronic surveillance of the aggrieved person
or otherwise grant the motion of the ag-
grieved person. If the court pursuant to sub-
section (f) or the court of appeals pursuant
to subsection (g) determines the surveillance
was lawfully authorized and conducted, it
shall deny the motion of the aggrieved per-
son except to the extent that due process
requires discovery or disclosure.
(I) Orders granting motions or requests
under subsection (h), decisions under this
section as to the lawfulness of electronic
surveillance, and, absent a finding of un-
lawfulness, orders of the court or court of
appeals granting disclosure of surveillance
certificates or other materials relating to a
surveillance shall be binding upon all courts
of the United States and the several States
except the courts of appeals and the Su-
preme Court, and shall be final orders for
purposes of appeal.
(j) In circumstances involving the unin-
tentional acquisition by an electronic, me-
chanical, or other surveillance device of the
contents of any radio communication, un-
der circumstances in which a person has a
reasonable expectation of privacy and a
warrant would be required for law enforce-
ment 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 At-
torney General determines that the contents
may indicate a threat of death or serious
bodily harm to any person.
CONGRESSIONAL OVERSIGHT
SEC. 104, On a semiannual basis the At-
torney General shall fully inform the Perma-
nent Select Committee on Intelligence of
the House of Representatives and the Select
Committee on Intelligence of the Senate
concerning all electronic surveillance under
this title. Nothing in this chapter shall be
deemed to limit the authority and respon-
sibility of those committees to Obtain such
additional information as they may need to
carry out their respective functions and
duties.
PENALTIES
SEC. 105. (a) OFFENsE.-A person is guilty
of an offense if he intentionally-
(1) engages in electronic surveillance un-
der color of law except as authorized by stat-
ute; or
(2) violates section 102(a), 102(b), 102(d),
102(e), 103(a), 103(b) 103(j), or 107 or any
order Issued pursuant to this chapter, know-
Ing his conduct violates such section or such
order.
(b) DEFE'NSE,-(1) It is a defense to a
prosecution under subsection (a) (1) that
the defendant was a law enforcement or in-
vestigative officer engaged in the course of
his official duties and the electronic sur-
veillance was authorized by and conducted
pursuant to a search warrant or court order
of a court of competent jurisdiction;
(2) It is a defense to a prosecution under
subsection (a) (2) that the defendant acted
in a good faith belief that his actions were
authorized by and taken pursuant to a sur-
veillance certificate or otherwise did not vio-
late any provision of this title, under circum-
stances where that belief was reasonable.
(c) PENALTY.-An offense described in this
section Is punishable by a fine of not more
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than $10,000 or imprisonment for not more
than five years, or both.
(d) JURISDICTION.-There is Federal juris-
diction over an offense in this section if the
person was an officer or employee of the
United States at the time the offense was
committed.
CIVIL LIABILITY
SEC. 106. CIVIL ACTION.-An aggrieved per-
son, other than a foreign power or an agent
of a foreign power as defined in section 101
(a) or (b) (1) (A), respectively, who has been
subjected to an electronic surveillance or
whose communication has been disclosed or
used in violation of section 105 of this chap-
ter shall have a cause of action against any
such person who committed such violation
and shall be entitled to recover-
(1) actual damages, but not less than liq-
uidated damages of $1,000 or of $100 per day
for each day of violation, whichever is
greater;
(2) punitive damages, where appropriate;
and
(3) reasonable attorney's fees and other
investigation and litigation costs reasonably
incurred.
RETENTION OF RECORDS
SEC. 107. All surveillance certificates and
all documents used to support the issuance of
surveillance certificates shall be retained for
a, period of not less than twenty years and
shall be stored at the direction of the Attor-
ney General under security procedures ap-
proved by the Director of Central Intelli-
gence.
TITLE II-CONFORMING AMENDMENTS
AMENDMENTS TO CHAPTER 119 OF TITLE 18,
UNITED STATES CODE
SEC. 201. Chapter 119 of title 18, United
States Code, is amended as follows:
(a) Section 2511(2) (a) (ii) is amended to
read as follows:
"(ii) Notwithstanding any other law, com-
munication common carriers, their officers,
employees, and agents, landlords, custodians,
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 Electronic
Surveillance Act of 1978, if the common car-
rier, its officers, employees, or agents, land-
lord, custodian, or other specified person has
been provided with-
"(A) a court order directing such assist-
ance signed by the authorizing judge, or -
"(B) a certification under oath and signed
by a person specified in section 2518(7) of
this title of the Attorney General of the
United States that no warrant or court order
is required by law, that all statutory require-
ments 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, facilities, or
technical assistance required. No communica-
tion common carrier, officer, employee, or
agent thereof, or landlord, custodian, or
other specified person shall disclose the ex-
istence of any interception or surveillance
or the device used to accomplish the inter-
ception or surveillance with respect to which
the person has been furnished an order or
certification under this subparagraph, ex-
cept 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 ap-
propriate. No cause of action shall lie in any
court against any communication common
carrier, its officers, employees, or agents,
landlord, custodian, or other specified per-
eon for providing information, facilities, or
assistance in accordance with the terms of signatures of 21 Democratic Members
an order or certification under this sub- and 1 a or in
saa,,ubli. a *
b
e
e
r (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 sur-
veillance, as defined in section 101 of the
Foreign Intelligence Electronic Surveillance,
Act of 1978, as authorized by that Act.
"(f) Nothing contained in this chapter,
or section 605 of the Communications Act
of 1934, shall be deemed to affect the ac-
quisition. 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 in-
telligence Electronic Surveillance Act of
1978, and procedures in this chapter and the
Foreign Intelligence Electronic Surveillance
Act of 1978 shall be the exclusive means by
which electronic surveillance, as defined in
section 101 of such Act, and the intercep-
tion of domestic wire and oral communica-
tions may be conducted.".
(c) Section 2511(3) is repealed.
(d) Section 25113(l) is amended by in-
serting "under this chapter" after "com-
munication".
(e) Section 2518(4) is amended by in-
serting "under this chapter" after "wire or
oral communication" both places it appears
therein.
(f) Section 2518(9) is amended by strik-
ing out "intercepted" and by inserting "in-
tercepted pursuant to this chapter" after
"communication".
(g) Section 2518(10) is amended by strik-
ing out `intercepted' and by inserting "in-
tercepted pursuant to this chapter" after
"communication" the first place it appears
therein.
(h) Section 2519(3) is amended by insert-
ing "pursuant to this chapter" after "wire
or oral communications" and after "granted
or denied".
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 a surveillance certificate
authorizing that surveillance is obtained
under title I of this Act within ninety days
following such date of enactment.
Mr. McCLORY (during the reading).
Mr. Chairman, I ask unanimous consent
that the amendment in the nature of a
substitute be considered as read, printed
in the RECORD, and open to amendment
at any point.
The amendment has been printed in
the RECORD previously.
The CHAIRMAN pro tempore. Is there
objection to the request of the gentle-
man from Illinois?
There was no objection.
Mr. McCLORY. Mr. Chairman, this is
the substitute amendment about which
there has been a great deal of informa-
tion circulated. As, a matter of fact, this
is the substitute measure which has the
support of a large number of Members
on both sides of the aisle. A "Dear Col-
league" letter.was circulated bearing the
ing that this substitute was the prefer-
able procedure for handling the subject
of foreign intelligence and electronic
surveillance.
What the substitute amendment does
In essence, is to translate the existing
Presidential guidelines issued formerly
by President Ford and more recently by .
President Carter, into statutory form.
Let me say that the guidelines and re-
strictions are more circumscribed than
are the provisions in the committee bill.
For one thing there is a requirement that
in order to engage in electronic surveil-
lance of any foreign agent, foreign
power, or a U.S. person, it has to be au-
thorized by an executive department offi-
cial who has been confirmed by the Sen-
ate. This is someone over whom we can
exercise oversight. '
If it relates to the exercise of elec-
tronic surveillance of a U.S. citizen, then
it requires action by the President of
the United States himself.
I do not think that there is any
greater imposition on the executive de-
partment or Presidential responsibility
contained in the substitute amendment.
Nor is there any better way in which we
can have executive department account-
ability. It seems to me that is where we
want the accountability to be. The rea-
son we have oversight committees is so
that we can oversee what the executive
does. If there are abuses, then we can
take some appropriate action against
them.
It is only the political personnel, the
executive department officials, and the
Members of Congress over whom the pub-
lic has any control. We are the political
entities in this great system of govern-
ment, that we have and we are the ones
that can be called to account for any
abuses of our authority. And so it seems
to me that this substitute is far superior
to one which delegates to the judicial
branch the authority to decide whether
or not we shall have electronic surveil-
lance.
If the judiciary abuses its authority,
or serves as a patsy to the executive
branch, and we find persons subjected
to electronic surveillance who were not
previously subjected, are we going to be
able to discipline the court? Certainly
not.
Or, if the judiciary denies the execu-
tive the opportunity to engage in elec-
tronic surveillance for our national se-
curity and defense purposes, are we go-
ing to be able to discipline the court?
Certainly not.
If, for instance, the court decides that
something that comes to its attention
should be made public when, in fact, it
should not be made public, is there any
way to discipline the court? None what-
soever.
The only way we can discipline those
charged with the responsibility regard-
ing electronic surveillance of foreign in-
telligence;is to repose that responsibility
and accountability in the executive
branch of the Government.
So, Mr. Chairman, in a sense, that Is
what my amendment does.
It is supported by all of the former
intelligence officers, and by their entire
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association. It is supported by virtually
all of the former leaders in the intelli-
gence community. If you. wonder why
we have support for the bill from those
who have more recently been appointed,
you will find that what they are saying,
in effect, is that they can support the
administration's bill. They can go along
with it. They can live with it. And, of
course, they are responding il; a- very
obedient way to the demands of the exec-
utive.
- The Washington Star has commented
very favorably on this amendment.
Former Deputy Attorney General Law-
rence Silverman has commented favor-
ably on this amendment.
The CHAIRMAN pro . tempore. The
time of the gentleman has expired.
(By unanimous consent, Mr. McCLORY
was allowed to proceed for 1 additional
minute.)
Mr. McCLORY. This is the last amend-
ment. If this substitute can be adopted
I can assure you that we will have effec-
tive electronic surveillance of foreign in-
telligence gathering while not experienc-
ing any abuses. I can say under the exist-
ing executive guidelines that there is no
evidence before our Committee on the
Judiciary of any abuses, and I see none
forthcoming. However, if any occur, we
can find far more effective ways of tak-
ing care of them than the proposed bill.
(Mr. McCLORY asked and was given
permission to revise and extend his re-
marks.)
Mr., MURPHY of Illinois. Mr. Chair-
man, I rise In opposition to the amend-
ment in the nature of. a substitute of-
fered by the gentleman from Illinois (Mr.
MCCLORY).
(Mr. MURPHY of Illinois asked and
was given permission to revise and ex-
tend his remarks.)
Mr. MURPHY of Illinois. Mr.- Chair-
inan and my colleagues, the McClory
substitute Is opposed by the administra-
tion and every intelligence agency.
It will not clear up the overriding legal
issue of whether warrants are or are not
required. It will not change the existing
situation In which fiield agents are hesi-
tant to rely on the Attorney General's
orders. It sets no standard of proof to
guide the executive officials In approving
surveillances. Even the current executive
branch guidelines require the Attorney
General to find probable cause to believe
that the target is an agent of a foreign
power.
It allows electronic surveillance of
American citizens with no showing of any
connection with any criminal activity
required.
The substitute allows common carriers
and others to refuse to provide assist-
ance to the government in the conduct
of foreign intelligence surveillances.
Mr. Chairman, the gentleman from
Illinois talked about the editorial of the
Washington Star in support of his sub-
stitute. We have editorials from the New
York Times, the Washington Post, the
Chicago Tribune, the American Bar As-
sociation, all in support of ,the commit-
tee's well-thought-out legislation.
We have a letter from former Presi-
dent Ford.
I have talked personally with former
Attorney General Levi, the present At-
torney General, the President of the
United States and they are all in favor
of this legislation.
This legislation is the result and the
work product of 3 years of intensive
study of hearings and reports of over Six
committees. To scrap It now after all
this work would appear to me to be the
height of irresponsibility.
I respectfully urge my colleagues to
oppose the amendment in the nature.of
a substitute offered by the gentleman
from Illinois (Mr. MCCLORY).
Mr. WRIGHT. Mr. Chairman, I hope
my colleagues will reject this additional
attempt to alter and redirect the entire
thrust of this carefully drafted bill.
Rarely in the years that I have spent
in the Congress have I seen a bill which
was the product of so many labors.
Rarely have I seen one which has
brought together often disparate
thoughts into. one well-crafted piece of
legislation supported by practically all
of the thinking elements of our society.
It Is a shame that we have failed, appar-
ently, to recognize the care and preci-
sion with which this particular legisla-
tion has been drafted.
Not only do I hope that we will reject
the total McClory substitute; I hope that
when a separate vote Is requested in the
House, we will reflect very carefully upon
what was done in haste yesterday and
will reject the McClory amendment
which does away with the requirement
of a warrant.
The requirement of a warrant was
asked for by the FBI Director, Mr. Web-
ster, when he appeared before the com-
mittee. It was asked for by the Director
of the CIA, Admiral Turner. It was asked
for by Chief Hinman of the National
Security Agency. It was agreed to by all
of those people as a protection for the
agents of the United States against the
jeopardy they otherwise might face with
respect to criminal prosecution or civil
suits.
President Carter wants this committee
bill passed. President Ford wants this
committee bill passed. Civil liberties
groups have embraced and endorsed the
committee bill. The distinguished chair-
men of the Intelligence Committee of
the House, the International Relations
Committee of the House, the Judiciary
Committee of the House, and of the
Armed Services, Appropriations, and
Budget Committees of the House all want
this committee bill passed. The 95 U.S.
Senators who voted for its companion
measure want this bill passed.
Most important of all, perhaps, the
Directors of the Central Intelligence
Agency, the National Security Agency,
and the Federal Bureau of Investigation
want this committee bill passed. They be-
lieve that it will strengthen .and assist
them and give them tools which they
have needed for a long time, and that it
will clarify their rights and remove the
jeopardy in which their agents some-
times are presently placed.
Mr. Chairman, I do hope the Members
will recognize the enormous amount of
time that has gone into the crafting of
this particular piece of legislation, will
respect its carefully balanced provisions,
and will reject the McClory substitute;
and when the time comes, on a separate
vote, will reverse the narrow margin by
which yesterday, In haste, the House
adopted an ill-considered amendment.
Mr. RUDD. Mr. Chairman, I move to
strike the requisite number of words.
Mr. Chairman, as a former FBI special
agent for 20 years who spent many of
those years in the foreign intelligence
area, I would implore this body to adopt
the McClory substitute as an alternative
to H.R. 7308.
Mr. Chairman, one of the benefits of
this substitute over the committee's pro-
posal Is that it will accomplish the ob-
jective of tightening up the procedures
for conducting electronic surveillance for
foreign intelligence purposes without
compromising essential speed In emer-
gency and other special situations.
The McClory proposal does not open
up the Pandora's box of judicial involve-
ment in the intelligence process. How-
ever, It does insure public accountability
of the executive branch in its conduct of
intelligence operations by requiring a
much greater involvement by Congress
and particularly of the special intelli-
gence committees which we have estab-
lished for that purpose.
I sincerely believe that the McClory
substitute adequately meets all of the
concerns which have been raised about
former intelligence surveillance without
compromising the essential speed and
confidentiality of the intelligence activi-
ties which would occur under the co m=
mittee bill.
Mr. Chairman, I urge passage of the
McClory substitute.
Mr. McCLORY. Mr. Chairman, will
the gentleman yield?
Mr. RUDD. I yield to the gentleman
from Illinois.
Mr. McCLORY, Mr. Chairman, I thank
the gentleman for yielding.
I just want to point out that former
President Ford, in his speech at the Uni-
versity of South Carolina, stated in part
as follows:
The Carter Administration has asked the
Congress to pass much of that responsibility
to the courts. The conduct of foreign policy
is not a judicial function. Moreover, after
this responsibility is split, it will no longer
be possible for the American people to hold
the President, his political appointees, and
any involved Members of Congress responsi-
ble for misdeeds in this area.
President Ford's position has been
made clear there that he does not sub-
scribe to this business of passing the re-
sponsibility on to the courts. I would
like to point out, too, that while it is true.
that the ACLU has tremendous input in-
sofar as this legislation is concerned, this
is merely a foot in the door. This is.
merely a foot in the door. What they
really want to get a warrant requirement -
with regard to informants and informers
of the FBI, and that is well known. Of
course, the New York Times editorial of
July 26 pointed out that in their opinion
electronic surveillance was less offensive
than an informant who intrudes on in-
dividuals and organizations and then in-
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forms the law enforcement agencies of
the information that he has gathered.
So I think that we should be very, very
cautious before we venture into this area
of a warrant requirement for foreign in-
telligence surveillance. I am hopeful that
on a rollcall vote we can have a favorable
vote on this substitute and then move on
by in effect translating the very valid
guidelines that the Executive has estab-
lished into statutory form for permanent
control of foreign intelligence electronic
surveillance.
I thank the gentleman for yielding.
Mr.'RUDD. No intelligence agency, no
police agency can operate very long
without dependable sources, and that is
why this McClory substitute is a neces-
sary'substitute for H.R. 7308.
Mr. Chairman, I yield back the re-
mainder of my time.
,Mr. MAZZOLI. Mr. Chairman, I move
to strike the requisite number of words,
and I rise in opposition to the amend-
ment.
(Mr. MAZZOLI asked and was given
permission to revise and extend his re-
marks,)
Mr. MAZZOLI. Mr. Chairman, I would
Just take a brief few seconds to endorse
what was recently said by the majority
leader of the House, who I think elo-
quently stated in the well of the House
the reasons why this McClory amend-
ment, as well as the McClory amendment
which was adopted by the House last
night in haste, which will be revoted on
in a few minutes, ought to be defeated.
H.R. 7308, which came out of the com-
mittee headed by the able gentleman
from New Jersey (Mr. RODINO) and came
out of the committee headed by the able
gentleman from Massachusetts (Mr.
BOLAND) is a very carefully developed
bill which satisfies he unique and some-
times desperate needs of all of the intel-
ligence community, those organizations
and groups dealing with civil liberties in
America, and those groups dealing with
law enforcement. Mr. Chairman, it seems
that if we deprive, take away-we strip
away that protection. We strip away
that device which gives security to those
people and to all individuals, and then
it seems to me that we have gutted the
bill. I think instead of . having the best
of both worlds, we have the worst of both
worlds.
Mr. McCLORY. Mr. Chairman, will
the gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
man from Illinois.
Mr. McCLORY. I thank the gentleman
for yeilding.
We have differences of opinion as to
what a good foreign intelligence surveil-
lance bill should provide, but I merely
want to point out that the Committee on
the Judiciary did not consider this legis-
lation. As a matter of fact, what hap-
pened there was that there was a motion
to table. The motion to table succeeded,
and the matter remains in the Commit-
tee on the Judiciary right now, which
in effect means that the bill is really not
on the floor from the Committee on the
Judiciary in any sense at all.
Mr. MAZZOLI. I appreciate the gentle-
man's comments. I think we spoke last
night to the very point that the distin-
guished chairman of the subcommittee,
the gentleman from Wisconsin (Mr.
KASTENMEIER) conducted 3 days of very
complete hearings and very vigorous
debate, and I would say that probably
in those 3 days this bill got as much
attention as it might have gotten in
many other committees of the House in
perhaps weeks. It was a serious-minded
effort, Mr. Chairman. I would hope that
the Committee of the Whole House on
the State of the Union would reject the
gentleman's statement.
The McClory substitute and his
amendment of yesterday would harm-
not help-the Government's future abil-
ity to conduct surveillance of foreign
persons in the United States.
First, it leaves a cloud of legal uncer-
tainty over the surveillance of foreigners
in the United States. There are grave
doubts about the constitutionality of dis-
criminating against all nonresident
aliens simply on the basis of their being
"foreigners." The Constitution requires
reasonable grounds for any discrimina-
tion against aliens. The Supreme Court
might easily find that there are no rea-
sonable grounds for the blanket exclu-
sion of all nonresident aliens from the
fourth amendment warrant protection.
Second, this risk means that FBI,
agents and other intelligence officials will
continue to act at their peril. Anyone who
proceeds with the Attorney General's
approved only-and no judicial war-
rant-has no certainty that his acts are
constitutional. This is likely to keep in-
telligence agents from acting vigorously
because their conduct might still, in the
future, be considered illegal.
Third, the Attorney General himself
will surely be reluctant to approve sur-
veillances of nonresident aliens as long
as these doubts persist. Without a war-
rant, he is left where he is now. He needs
the support of legislation that includes
a warrant to resolve any serious consti-
tutional doubts in this area.
The purpose of the bill is to assure that
the legality of surveillance is as clear as
possible. Limiting the warrant to U.S.
persons or having no warrants at all does
not achieve that goal. Instead, it raises
new constitutional questions that will in-
hibit intelligence gathering.
AMENDMENT OFFERED BY MR. GONZALEZ
TO THE AMENDMENT IN THE NATURE OF
A SUBSTITUTE OFFERED BY MR. M'CLORY
Mr. GONZALEZ. Mr. Chairman, I offer
an amendment to the amendment in the
nature of a substitute.
POINT OF ORDER
Mr. MURPHY of Illinois. Mr. Chair-
man, a point of order.
The CHAIRMAN pro tempore. The
gentleman will state it.
Mr. MURPHY of Illinois. `Mr. Chair-
man, this amendment is not germane in
that it is not timely printed in the
RECORD. The gentleman came up to us
just a few minutes ago and said the
gentleman had printed it in the RECORD
yesterday; but the rule issued July 12
requires it be reported 3 legislative days
prior to consideration.
The CHAIRMAN pro tempore. The
Chair will rule that the rule applies to
amendments to the bill and not to
amendments to amendments. In this case
we have an amendment to a substitute
amendment, so the rule does not apply.
The Clerk will report the amendment.
The Clerk read as follows:
Amendment offered by Mr. GONZALEZ to
the amendment in the nature of a substi-
tute offered by Mr. MCCLORY: On page 24,
line 24, after "SEc. 104" insert "(a) ".
On page 25, after line 6 insert:
(b) 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-
(1) the total number of applications made
for orders and extensions of orders approv-
ing electronic surveillance under this title;
and
(2) the total number of such orders and
extensions either granted, modified, or de-
nied.
(c) And in April of each year the Attorney
General shall transmit a report to the ap-
propriate Member of Congress or Congres-
sional Committee on any information gath-
ered by virtue of this act regarding any
foreign government's attempt to improperly
influence Congress, suborn individual Mem-
bers or to threaten a Member.
Mr. GONZALEZ. Mr. Chairman, I
offer this amendment to the amendment
in the nature of a substitute offered
by the gentleman from Illinois (Mr.
MCCLORY) because it is the only oppor-
tunity that I have a chance to bring up
a matter that I thought had been prop-
erly taken care of in other sections of
the bill; but after looking at the bill and
making a reading of the bill, I find that
every consideration seems to have been
given to the executive branch of the
Government, to the FBI, to the CIA and
the other surveillance agencies, but
nothing safeguarding the basic rights of
Members of Congress.
Let us suppose that in the course of a
foreign intelligence, wiretap or micro-
phone surveillance, information is gath-
ered that indicates some foreign power
is attempting to bribe or otherwise
suborn a Member of Congress. This is
information that the Congress needs to
know in order that we may protect our
integrity, but the bill does not require,
nor does the substitute amendment, that
reports bearing on the integrity of the
Congress be made available to us.
My experience has been that most
statutes, such as those in title XVIII
that make it mandatory for the FBI to
investigate any threats of violence
against the Congress, the FBI interprets
that to mean they should investigate,
but never report to the Congressman
involved.
I have had three cases in which I
have been unable to this day to get a
written report from the FBI concerning
information pursuant to threats that
the FBI investigated; so that is the
interpretation these agencies have given
the statutes we have written for our
protection.
Now, let us continue here and say that
we. have this. hypothetical situation. A
foreign intelligence gathering system
reflects after our surveillance agencies
have found out by virtue of the powers
we give them in this act that a Member
or Members of Congress are involved.
The Executive can sit back with this
information. He does not have to impart
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 September 7,A4~Pved For R&QAQ196?1L (RA0&MO$,8100500040005-0 H 9261
it to the Members or other Members of sidual Powers-previously undefined. knows of
Congress. These are but poorly charted constitu- the existence of a rule, since one
is not a member of the committee, he is
Let us suppose further that a surveil-
lance indicates some dishonest tional grounds, and none of us should going to have to wait for the full general
behavior mistake the fact that we are in fact debate and get the fine nuances of the
on the part of a Member. Does the bill creating new powers here, in the name facts before offering an amendment.
require that a complete and immediate of confining quasi-legal practicles to Mr. MURPHY of Illinois. There have
investigation be undertaken, and that some definable procedural law. in the
the House be informed? It does not. In- . This is why this bill is embraced by Rbeen ov 50 amendments ECORD and I would imagine hheere have
stead, such information can be held at the administration; It assures that the been over 100 "Dear Colleague" letters
the leisure and the pleasure of the Execu- powers it now exercises only in legal circulated,
tive, the President, who may use it in any peril can hereafter be exercised with im- Mr. GONZALEZ. Mr. Chairman, al-
way he pleases. Can we imagine what punity. We are confining nothing; we though, as I said, I admit that maybe we
would have happened just a few years are confiding wholly new powers in- should have acted sooner, I want to get
ago with that power? stead, to the merits and the sufficiency of this
Let us suppose that one of our col- The CHAIRMAN pro tempore. The amendment.
le
agues has in some way become en- time of the genteman from Texas (Mr. If the gentleman will bear with me a ALE
tangled
pire Should we winot kno reams? gAnd should G Mrr.. MURPHYxof Illinois. Mr. Chair- little further, tge amendment encom-
we not know if some foreign power is at- man, I rise in opposition to the now ac eptt the last four lines, min which
tempting to sway our actions one way or amendment. I provide for a report to be made in a
another? But the bill does not require Mr. Chairman, the gentleman from case involving an individual Member of
that we be informed, Texas (Mr. GONZALEZ) brings an amend- the committee or of the House, and it
These are not hypothetical problems. ment to us late in the day. This bill has provides that he will be informed. That
There have been occasions In the past been under consideration for, over 3 is the only thing involved,
In which I have some good reason to years. At least during the last 6 or 7 Will a Member have an opportunity
know that there has been some forbear- months or during the whole session of to be informed that surveillance has dis-
ance in the case of Members who feared this Congress it has been thoroughly covered that he is involved? He may, be
some retaliation on the part of the execu- considered, and the gentleman brings an unwitting victim. Yet we are saying
tive branch or who feared prosecution, this amendment to us at this late date. I the executive branch ought to be the sole
If the Speaker or the Ethics Committee am not saying that what the gentleman and exclusive judge as to his comport-
had known of any investigations in- has to say is not meritorious, but this is ment and it is under no obligation to
volving these Members, there could have not the manner to bring it up and dis- convey that information to him.
been some actions taken to disqualify at cuss it in the waning moments of the Mr. MURPHY of Illinois. Mr. Chair-
least the votes rendered in that case, if consideration of the bill. man, let me say to the gentleman that
the House had been informed of the ac- I urge my colleagues to reject this the intelligence agencies have to report
Lion of other governments in the past, amendment. Then we will invite the gen- to this committee on a semiannual basis,
For instance, let us take the case of the tieman from Texas (Mr. GONZALEZ) be- and they have to report all warrants or
Korean Government. We could have fore our committee. i would be happy to wiretaps taking place.
averted scandal and tragedy. As it is, we have the gentleman testify before the The. counterintelligence division of the
do not know what actions might have committee and bring any information in FBI talks to us constantly about the na-
been taken to protect individual Mem- that he has. The gentleman talks about ture of the Soviet involvement within this
bers from being suborned, to protect the a Member of Congress who might have country. I can assure the gentleman,
integrity of the House, and, as I have been involved in the Korean scandal, speaking as chairman of the Legislative
said, to cause even Members influenced My understanding of the situation is Committee, and, I am sure, the gentle-
by actions of Korean agents to disqualify that the Member who pleaded guilty in man from Massachusetts (Mr. BOLAND),
themselves from voting on issues involy- that matter was engaged actively in the as chairman of this committee, that we
ing that country. The existence of such bribery that came about, so I do not would be glad to inquire of the FBI; and
a system to help assure our own integrity imagine that if he was told about it when we get that information I can as-
would have caused that government ahead of time, it would have made much sure the gentleman that we would inform
never to have attempted to play its game difference. any Member if any foreign government
of influence. Mr. GONZALEZ. Mr. Chairman, will were attempting to influence Members of
This bill does not address such cues- the distinguished chairman of the sub- this House. The gentleman has my word.
Lions. Because of the fact that the rule committee yield? Mr. GONZALEZ. I know the gentleman
made it impossible to offer any amend- Mr. MURPHY of Illinois. I yield to'the is very sincere in that.
ment after the discovery of the need for gentleman from Texas. Let me just add one thought, in addi-
it during the debate and because of the Mr. GONZALEZ. Mr. Chairman, my tion. Let us look what we are doing now
8-day legislative rule, the only chance i amendment has been offered at a late in the case of Korea. We are actually
have had to offer this amendment for date, for which I have apologized, but be- providing that Members be exposed, un-
consideration is under these circum- cause of the fact of the narrowness of der no protection of our traditional con-
stances as an amendment to the amend- the rule accompanying this bill, I believe stitutional rights, in the case of the In-
ment offered by the gentleman from Ills- that had we been untrammeled in our terrogation of the former Korean ambas-
nois (Mr. MCCLORY). consideration of the bill,?I could have of- sador. He could involve in his testimony
It is certainly true that intelligence fered the amendment in a timely fashion, an innocent Member who is. wholly and
gathering is in the national interest. I M. MURPHY of Illinois. Mr. Chair- completely vulnerable to the whims of a
am not certain that civil rights are best man, does the gentleman realize that the particular foreign agent.
protected by legitimizing what amounts rule was granted on July 12? - Mr. MURPHY of Illinois. The gentle-
to warrantless search. I am even less cer- Mr. GONZALEZ. Right. man has me at a disadvant I am not
tain that a special court has any more Mr. MURPHY of Illinois. The rule was a member of the Ethics Committteee that
competence to protect individual rights granted on July 12, and the gentleman undertook the investigation into the Ko-
than any other court. _ had from July 12 until last week to put rean scandal. I do not think this is the
This bill has profound importance, his amendment into the RECORD, forum or the time to discuss this. I know
because it establishes in law practices Mr. GONZALEZ. That is correct. Members of Congress have been accused,
that heretofore have been of at best Mr. MURPHY of Illinois. Does the I would like to afford any'Member his
questionable legality, and confirms in law gentleman say that is not enough time? day in court which is his due. I do not
Presidential powers that have hereto- Mr. GONZALEZ. Mr. Chairman, it is a wish to discuss it on the floor. I have
fore only been claimed to exist, never question of the sufficiency of that kind of no information with relation to that.
really legitimized. We are dealing here a rule and the fact that this ought to be The CHAIRMAN pro tempore. The
with questions that affirm-ii we pass a body that should be untrammeled in time of the gentleman from Illinois (Mr.
this bill-powers that Presidents have the free flow of debate, because there are MURPHY) has expired.
claimed they had, implicit powers or re- many things involved, and even if one (On request of Mr. CHARLES H. WILSON
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 H 13262
Approved For R6 i R e M4 : JjJtfWWDSft1JW00050004QW-Anber 7, 1978
of California and by unanimous consent,
Mr. MURPHY of Ilh'lnols was allowed to
proceed for 1 additional minute.)
Mr. CHARLES H. WILSON of Cali-
fornia. Mr. Chairman, if the gentleman
will yield, I do not want to discuss Korea,
especially; but I was a little concerned,
though, that the principal argument the
gentleman had against the Gonzalez
amendment was that it was submitted at
a late hour in the day. When is a good,
time to submit an amendment? Would
the gentleman tell me, please? What
time of the day should we put in our
amendments?
Mr. MURPHY of Illinois. If the gen-
tleman will yield, a rule was granted on
July 12. We had hearings for a year and
one-half prior to that. This bill has been
under consideration for 3 years.-
Mr. CHARLES H. WILSON of Cali-
fornia. Is there some rule that we have
that prohibits a Member from putting in
an amendment or that says when to put
in amendments?
Mr. MURPHY of Illinois. We live by
and go by the Rules of the House. The
gentleman is aware of the open and
closed rules. We do not need to get into
that now.
I would like to say that I can assure
the gentleman from Texas, as chairman
of the Legislative Subcommittee, I will
make inquiry into all of the intelligence
in-
an
th h
ev
a
y ,
agencies as to whether ey ve
formation about any foreign government The question was taken; and the Cohen
Chairman pro tempore announced that Collins, ill
attempting to influence legislators. Conte
The CHAIRMAN pro tempore. The the noes appeared to have it. Conyers
time of the gentleman from Illinois (Mr. RECORDED VOTE Corman
Cornell
MURPHY) has again expired. Mr. McCLORY. Mr. Chairman, I de- Cornwell
(On request of Mr. BOLAND and by mand a recorded vote. Cotter
unanimous consent, Mr. MURPHY of A recorded vote was ordered. D'Amours
Illinois was allowed to proceed for 1 ad- Danielson
The vote was taken by electronic de- Davis
ditional minute.) vice, and there were-ayes 128, noes 249, de is Garza
Mr. BOLAND. Mr. Chairman, if the not voting 55, as follows: Delaney
gentleman will yield, in response to the Dellums
[Roll No. 734] Derrick
{.IuGJ.61Vla yivyvui?~cw ,..a. ???a '--"--"?
distinguished gentleman from California
(Mr. CHARLES H. WILSON), frankly, I do
not think either the gentleman from
Illinois (Mr. MURPHY) or myself can give
a very sound answer when amendments
are to be offered. My only suggestion is
you do not offer them after 9 o'clock at
night because nobody seems to get any
amendments adopted at that time. And
I think the gentleman from California
understands the response of the gentle-
man from Illinois (Mr. MURPHY) With
reference to the rule itself which was
granted on July 12. We then had 3 leg-
islative days prior to consideration of
this bill for any amendments to be
printed in the RECORD. As the gentleman
indicated, we have had something like
50 amendments, and maybe even more
than that.
I think we have a reasonable rule. I do
not think anybody can quarrel with that
rule. I can understand the concern of the
gentleman from Texas about this par-
ticular matter and, so far as this Com-
mittee is concerned, the assurance that
&I,-
b th
dlas MULL g1YC11ye ...=w+?--=w-- ~- ----
Legislative Subcommittee I would agree
with, and this is a matter which ought
to be looked at a little bit more carefully.
'I do not think this is the time to do it.
Mr. Chairman, I oppose the amend-
merit.
Mr. KAZEN. Mr. Chairman, I move to
strike the requisite number of words,
Mr. Chairman, i Just want to remind Addabbo
my good friend, the gentleman from Ilia- Adams
nois, concerning the question of time Alexander
limits on amendments this is the very Ambro
first opportunity that the gentleman Anderson, Gaydos
from Texas has had to offer this amend- Calif. Gephardt
Anderson, EL Giaimo
ment, since it would not have been in Andrews, N.C. Gilman
order under the rule before this time, Annunzio Ginn
Ashley Glickman
until the gentleman from Illinois (Mr.
MCCLORY) offered his amendment. This Au6oin
n amendment to the McClory amend- Baldus
i a
Derwinski
Dicks
Diggs
Dingell
Dodd
Downey
s
merit. If the Gonzalez amendment is too Barnard Gudger
Baucus Hamilton
late, the McClory amendment is too late. Beard, R.L Hanley
But so far as the timeliness is concerned, Bedell Hannaford
this is the earliest opportunity in the en- Benjamin Harkin
'tire debate, in the entire consideration of Bennett Harrington
Biaggi Harris
this bill, that the gentleman from Texas Bingham Heckler
had to offer his amendment. - Blanchard Hefner
I am not debating the merits of the Blouln Heftel
Boggs Holland
amendment. I am questioning the point Boland Hollenbeck
that the gentleman from Illinois has Bolling Holtzman
made on the procedure in this matter. Bonior Horton
Booker Howard
The CHAIRMAN pro tempore. The Brademas Hubbard
question is on the amendment. offered by Breckinridge Hughes
the gentleman from Texas (Mr. GON- Brodhead Ireland
Brooks Jacobs
ZAL=) to the amendment in the nature Brown Calif. Jeffords
Ford, Tenn.
Fowler
Frenzel,
Garcia,
Gonzales
Gore
Green
of a substitute offered by the gentleman Burke, Mass. Jenrette Rosenthal
from Illinois (Mr.:UleCLORY) . Burleson, Mo. Johnson, Galif. Rostenkowski
John Jones, Okla. Roybat
Burton
,
The amendment to the amendment in Burton, Phillip Jones, Tenn. Russo
the nature of a substitute was rejected. Byron Kastenmeler Ryan
Kazan Santini
Keys Sarasin,
question is on the amendment in the na- Cavanaugh Kildee Schauer
ture of a substitute offered by the gen- Chisholm Kostmayer Schroeder
tleman from Illinois (Mr. MCCLORY). Clay Krebs Seiberling
eland LaFalce Sharp
Cl
the
AYES-128
Andrews.
Flynt
Myers, John
Desk.
Forsythe
Nadu
Applegate
Fountain
Nichols
Archer
Gammage
O'Brien,
Ashbrook rook
Goodling
Poagell'
Pur
Bauman
Gradison
Quayle
Beard
Tenn.
Grassley
Regula
,
Bevill
Hall
Rinaldo
Bowen
Hammer-
Roberts.
Breaux
schmidt
Robinson
Brinkley
Harsha
Rousselot
Broomfield
Hightower.
Rudd
Brown, Mich.
HMIs
Runnels
Brown, Ohia
Holt
Ruppe
Broyhill
Hyde
Satterfield
Buchanan
chord
Schulze
Burgener
Jenkins
Sebelius
Burleson, Tex.
Jones, N.C.
Shuster
Butler
Kelly!
Sikes
Carter
Kindness
SkubitS
Cederberg
Lagomarsino
Smith, Nebr.
Chappell
Latta
Snyder
Clausen,
Lent
Spence
Don H.
Livingsto11
Stangeland
Coleman
Lott
Stanton
Collins, Tex.
Luian
Steiger
Conable
McClory
Stockman
Corcoran
McDonald
Stratton
Coughlin
McEwen
Stump
Cunningham
Madigan
Taylor
Daniel, Dan
Mallon
Treen
Daniel, it. W.Marriott
Trible
Devine
lurertn
i
Vander Jagt
Dickinson
Mathis
Walker
Dornan
Michel
Walsh
M
W ampler
Edwards, Ala.
Miller, Ohio
Watkins
English
Mitchell, N.Y.
Whitehurst
Erlenborn rn
Moorhead,
Whitley
Wilson, Bob
Fish
Calif.
Wydler
Flippo
Murphy, N.Y.
Wylie
flowers
Myae, Qer7
Young, FLa.
The The CHAIRMAN pro tempore. The Carr
Leach Simon
Lederer Skelton
Le Pan-to Slack
Leggett Smith, Iowa
Levitas Solara
Lloyd, Calif. Spellman
Lloyd, Tenn.. St Germain
Long, La. Staggers
Long. Add. Stark:
Luken Steed
Lundine Steers
McCloskey Stokes
McCormack Studds
McDade Thompson
McFall Thornton
McHugh Traxler
McKay Tucker
McKinney Udall
Maguire Ullman
Mann Van Deerlin
Markey Vanik
Early Marks
Eckhardt Marlene,
Edgar Mattox
Edwards, Calif. Mazzola
Edwards, Okla. Meeds
Eilberg Metcalfe
Emery Mikulski
Murtha
Myers, Michael
Natcher
Neal
Nix
Nolan
Nowak
Oskar
Oberstar
Obey
Ottinger
Panetta
Patten
Patterson
Pattleon
Pease
Pepper
Perkins
Pickle
Pike
Preyer
Price
Pritchard
RahalL
Railsbaok
Ranget
Reuss
Risenhoover
Rodin
Roe
Rogers
Roncalio
Rose
Vents
V olkmer
Walgren
Waxman,
Weaver
Weiss
Whalen
Ertel . Mineta White
Evans, Colo. Minish Whitten
Evans, Ga. Mitchell, Md. Wilson, C. H.
Evans, Ind. Moakley Wilson, Tax.
Fascell Moffett Wirth
Fenwick Mollohan Wolff
Findley Montgomery Wright
Fisher Moorhead, Pa. Yates
Fithian Moss Young, Mo-
Flood Mottl Zablocki
Florio Murphy, El.
Ford, Mich. Murphy, Pa-
NOT VOTING-55
Abdnor Gibbons RhodM
Ammerman: Guyer Richmond
Armstrong Hagedorn Rooney
Badham Hansen Sawyer
Beilenson Hawkins Shipley
Burke, Calif. Huckaby Sisk
Burke, Fla. Johnson, Colo. Symms
Clawson, Del Kasten
Cochran Kemp
Crane: Krueger.
Dent Lehman
?i none
Tsongas
waggonner
Wiggins
Drinan Meyner Winn,
Duncan, Oreg. Mikva. Yatron
Fury . Miller,. Calif. Young, Alaska
Foley
Fraser
Frey
Fuqua
Pettis Young, ea,
Pressler Zeferettt
Quie
Quillen
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 September 7,AW&ved For T? K4l ,: _MbWf1 000500040005-0 H 9263
The Clerk announced the following rity wiretaps, but also because of the arate vote on that amendment after we
pairs political and legal uncertainties which return to the House. I am hopeful that
On this vote: surround the use of electronic surveil- the Members will hold the line and will,
Mr. Teague for, with 'Mr. Richmond lance. Indeed, support this, important amend-
against. Clearly, it seemed to me, our intelli- ment. I do not want any confusion as to
Mr. Kasten for, with Mr. Zeferetti against. gence agents need legislation to au- the substitute that we just voted upon.
So the amendment in the nature of a thorize and legitimize their activities; The substitute was, indeed, my legisla-
substitute was rejected. and other American citizens need tion. It was my view that we should
The result of the vote was announced legislation to protect their legitimate establish clear statutory guidelines for
as above recorded. privacy rights. conducting foreign intelligence surveil-
Mr. BURLISON of Missouri. Mr. So, the question then became one of lance. But my proposal would have elim-
Chairman, I move to strike the last word. deciding whether H.R: 7308, with its inated the warrant requirement with re-
(Mr. BURLISON ' of Missouri asked judicial warrant requirement, was the gard to all foreign intelligence surveil-
and was given permission to revise and proper legislation. lance. It would have eliminated the court
extend his remarks.) Having been a county prosecuting at- proceedings from the entire picture, and
Mr. BURLISON of Missouri. Mr. torney for several years, I was familiar it would have done other things that I
Chairman, I believe that legislation is with warrants and the concepts behind felt were desirable.
needed to clear up the existing confusion them. I know the protections warrants The amendment that I offered yester-
and uncertainty surrounding the use of afford, and that activities engaged in day, which was favorably acted upon,
electronic surveillance, and that H.R. pursuant to a judicial warrant were was an amendment which would elim-
7308, as reported, is best calculated to more readily accepted as proper by the inate the warrant requirement for all
achieve this purpose. people of the community. except U.S. persons. In other words, there
For the past year I have had the pri- But I was also skeptical. I wondered would be no need to go to a judge and
vilege and responsibility of chairing the if the bill's standards and procedures have a judge decide whether or not the
Intelligence Committee's Subcommittee went too far. Was there an overreaction executive branch could conduct foreign
on Program and Budget Authorization. that would thwart our intelligence col- intelligence surveillance. We are only
I also serve on the Appropriations Sub- lection efforts? talking about foreign powers and foreign
committee on Defense. As a result, I have I talked to some intelligence officials. agents and we are only talking about
spent a good deal of my time meeting I read their statements. I listened to that insofar as national security is con-
with intelligence officials. I have at- their testimony given in executive cerned. We are only talking about tar-
tempted to use these meetings, the re- session. geting foreign agents and foreign pow-
sources of the committee, and the budget I heard the Director of Central In- ers that will be defined in this bill. So
authorization process itself, to obtain a telligence say that H.R. 7308 was good the only change that would result from
useful understanding of the workings legislation that would not unduly burden my amendment is that we would not
and complexities of our intelligence intelligence collection. have to go to a judge when we want to
agencies. I heard the Director of the National engage in foreign intelligence, national
In so doing, I have come to a few basic Security Agency state his unqualified security intelligence, when these foreign
conclusions: support for H.R. 7308, as reported by powers or foreign agents are involved.
The people working in our intelligence the Intelligence Committee. With regard to U.S. persons, we would
services are competentmen and women I heard the Director of the FBI say still have this requirement. We know,
of good faith, dedicated to serving the that the bill and its warrant require- that after the adoption of my amend-
national interest. ment, including a warrant for embassies- went; we adopted overwhelmingly an
- Occasionally, their view of what is in and other official foreign powers, would amendment that will eliminate the
the national interest is clouded by their facilitate the work of and improve the special court, so that in the situation we
very dedication. morale of his agents. are in now with no special court, unless
In its programmatic and budget con" I also heard Director Webster state we retain the McClory amendment, is
cerns the Intelligence community be- that the bill's compromise version of a that we will have a large barrage of ap-
haves like any other Government bu- criminal standard for surveilling Ameri- plicants for warrants, which would be
reaucracy that must seek funding from cans was fully supported by him, because very burdensome for the district courts
the Congress. it was not the criminal standard re- throughout the entire country.
These conclusions are not by any quired for law enforcement warrants. In my opinion, the House acted very
means novel or the result of any partic- Finally, I heard the Attorney General wisely in eliminating the special courts.
ular insight. But they did aid me in, say that both he and the, field agent This unprecedented provision for aape-
thinking through my position on H.R. needed the protections that could best cial court with special prerogatives, spe-
7308 when it came to the full committee be provided by a warrant, and that pas- cial tenure, and all that sort of thing was
from the Subcommittee on Legislation. sage of H.R. 7308 would facilitate, not appropriately eliminated from the bill;
I do support this measure but, as my hinder, intelligence collection. but without that and with a warrant re-
colleagues on the committee know, I had In summary, I have become convinced quirement that would be so far reaching
to be convinced. that electronic surveillance is a.means of as to reach every foreign agent and every
The first question I had to answer for intelligence collection that must be foreign power it seems unthinkable to
myself was whether electronic surveil- tilized; that it is susceptible to abuse if me that we would want to restore such a
myself
was a necessary y and rvilnot regulated by statute; and that H.R. provision.
method of obtaining taining needed 7308, as reported is carefully balanced I might say that the committee did
method o information. So ed I spoke foreign efficient foreign in- legislation that will authorize needed adopt an amendment in the committee,
te ignc ce formal listened to their, intelligence activities while protecting which was my amendment No. 9, which
intelligence a both open and closed to their the legitimate interest of our intelligence excludes a large part of the foreign in-
etstimony the budget open agents and our people. I hope the House telligence surveillance from the warrant
t
ings
and made myself aware Justification
of some of books, the will overturn the McClory amendment in requirement, where foreign powers are
the full House and pass the bill. communicating with each other.
product of electronic surveillance activ- Mr. McCLORY. Mr. Chairman, I move It seems to me appropriate that we
ities. As a result, I concluded that such to strike the last word. should also eliminate the warrant re-
activities are, indeed, an essential part Mr. Chairman, it is my understanding quirement when we want to target in
of our intelligence operations. that a separate vote will be requested on foreign agents or foreign powers, by
My next endeavor was to determine with regard to amendment No. 2, the radio, telephone, even by' television.
if legislation was needed to authorize, McClory amendment that was adopted Without my amendment you could not
regulate, or control such activities. It yesterday by a very narrow margin. I televise the Soviet Embassy unless you
soon became readily apparent that the know there has been a great deal of ac- first got a court order. Now, how absurd
answer was "yes"-not only because of tivity undertaken to try to switch votes can you get?
the well known excesses and abuses in order to try to change the outcome of It seems to me the McClory amend-
committed pursuant to national secu- that vote result when we get to the sep- ment makes a lot of sense. It makes a
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 H 9264 Approved For ,vW itrl tR :1 805 , ' -00050004gppfe9nber 7, 1978
much better bill than the bill that the we going to vote on when we ask for a same. protection under the fourth
committee reported. separate vote on the McClory amend- amendment as U.S. persons who are per-
Mr. ASHBROOK. Mr. Chairman, will ment. That amendment would delete the manent resident-alien.
the gentleman yield? warrant requirements for all targets-all Mr. Chairman, it would be a disaster
Mr. McCLORY. I yield to the gentle- targets, except U.S. persons. for this committee to accept the amend-
man from Ohio. I join with my distinguished friend, the ment offered by the gentleman from 11li-
Mr. ASHBROOK. Mr. Chairman, first gentleman from Ohio (Mr. ASHBROOK) nois (Mr. MCCLORY). We would then
of all, I want to commend my colleague, In commending the gentleman from Ills- bring this bill to conference, and do we
the gentleman from Illinois. I know often nois (Mr. MCCLORY) for the gentleman's think that the other body is going to
work is done around this Chamber that continual and persistent work on this cave in on this amendment? This is a
is not appreciated by all of us; but I can- particular bill. It has not been easy. We disastrous amendment. It ought to be
not express my appreciation enough for started at 3 o'clock yesterday afternoon, rejected. I hope it is soundly defeated
what the gentleman has done. The gen- wound up after 9 o'clock last night. We when we get back into the House and
tleman from Illinois has been diligent started at some time around 2 o'clock to- vote on it.
and worked hard and been on the right day and it is now 6 o'clock in the even- The CHAIRMAN pro tempore. The
track. ing; so we have spent considerable time question ' is on the committee amend-
Let me repeat what the gentleman on it. ment in the nature of a substitute, as
said. I think the McClory amendment is Let me also say to the members of this- amended.
absolutely necessary to this legislation. committee that we have accepted a num- The committee amendment in the
I am one who over the time we have been ber of amendments that have been of- nature of a substitute, as amended,, was
hearing this legislation gradually de- fered by Members on the other side of agreed to.
veloped the view that we probably ought the aisle and also some offered by Mein- The CHAIRMAN pro tempore. Under
to wait until next year'until the charter hers on this side. We have to go to con- the rule, the Committee rises.
legislation comes up and tie this all to- ference on this bill. That is going to be a Accordingly the Committee rose; and
gether. But if this bill is necessary I very difficult conference. The Senate bill the Speaker having resumed the chair,
think we should at least have the Mc- is a bill which was not acceptable to a lot Mr. MURTHA, Chairman pro tempore of
Glory amendment as a part of it. of the Members on both sides of this the Committee of the Whole House on
In a lighter vein, let me say to my col- aisle, and because It was not accepted, the State of the Union, reported that
league that I have been the author of some of the Members on both sides of the that Committee having had under con-
four amendments in the last session that aisle, and to the members of the Select sideration the bill (H.R. 7308) to amend
have been rejected when we went into Committe on Intelligence, we perfected title 18, United States Code, to authorize
the House. Those who were listening to the Senate bill and brought the bill that applications for a court order approv-
the debate voted for them and then when we are now discussing to the floor and ing the use of electronic surveillance to
we go back in the Whole House in a sep- adopted the McClory amendment that obtain foreign intelligence information.'
arate vote, quite often the good intelli- we hope will be knocked out when we pursuant to House Resolution 1266, he
gence and good sense of the Members come to a separate vote on that particu- reported the bill back to the House with
have been reversed for some mysterious lar amendment. an amendment adopted by the Commit-
reason. Mr. Chairman, all the intelligence tee of the Whole.
I hope this does not happen to the committee agents and all the agents of The SPEAKER. Under the rule, the
gentleman from Illinois, but it has hap- our intelligence communities oppose the previous question is ordered.
pened to me four times in the last year. McClory amendment. It would be open Is a separate vote demanded on any
Mr. Chairman, I had hoped that this season, it seems to me, on all foreign vis- amendment to the committee amend-
bill could be amended enough so it could itors. Tradesmen, athletes, teachers- ment in the nature of a substitute
be supported by those of us who are con- you name them-anybody coming to the adopted by the Committee of the Whole?
cerned about the state of our Nation's United States, whether they are from Mr. BOLAND. Mr. Speaker, I demand
security. Russia, France, England, or any nation, a separate vote en bloc on the McClory
H.R. 7308 has been recommended to if they are foreigners, they would be amendments agreed to on September 6,
us as both a bill to authorize surveillance subject to surveillance without a war- and I demand a separate vote on the
in foreign espionage and terrorism cases, rant under the terms of the McClory conforming McClory amendments
and, as a protection} for the American amendment. agreed to on today.
people. The bill as It now stands does Need I recall for the Members the The SPEAKER. Is a separate vote de-
not do enough of either. The protections abuses that have occurred in the past, mended on any other amendment to the
for foreign agents are too broad while in years gone by? Committee amendment? The Clerk will
the authorization to surveil them is too All of these abuses or the majority of report the amendments en bloc on which
narrow. The only effect this bill will have them that were detailed by the Church a separate vote has been demanded.
on the freedom of the American people committee, detailed by the Pike commit- PARLIAMENTARY INQUIRIES
is to weaken the defenses we have tee, or detailed by any committee that Mr. BAUMAN. Mr. Speaker, I have a
against foreign agents and terrorists. If has looked into this particular matter parliamentary inquiry.
we cannot protect our country, we will have been made known. These abuses The SPEAKER. The gentleman will
really lose our freedoms. occurred, because there was surveillance state it.
During the next session Congress will
be considering charter legislation for'
the intelligence agencies. The argument
for such legislation is that it will provide
"a carrot and a stick" for the intelligence
community. "A carrot" in the sense that
it will protect them by spelling out their
of foreign embassies and foreigners, and Mr. BAUMAN. Mr. Speaker, is it
American names became involved. Then proper for the gentleman from Massa-
the names of those Americans were chusetts (Mr. BOLAND) to demand a
turned over to someone else in the ad- separate vote en bloc on the amend-
ministration that was in power at that ments, or must he ask for a vote on each
time, be it a Republican administration one of these amendments?
or a Democratic administration. The SPEAKER. The Chair will state
that is what we are that the rule provides that it shall be
Chairman
Mr
,
.
the sense that it will spell out restric- trying to get rid of here. We are trying in order to consider the amendments en
tions. H.R. 7308 will upset that balance to get rid of the abuses. This bill was bloc, so under the rule the vote on the
by placing some of the restrictions on in submitted by President Ford and by At- amendments would be considered as on
advance. Foreign intelligence wiretaps torney General Levi, and it was resub- the amendments en bloc.
are clearly part of the charter package. mitted by President Carter and Attor- Mr. BAUMAN. The amendments were
In fact, this bill, or its equivalent, ap- ney General Bell. Their position is that considered en bloc?
pears as title III in the proposed charter this bill is a well-balanced bill, one that The SPEAKER. Yes, under the rule.
bill, protects the national interests and the Mr. BAUMAN. Mr. Speaker,. am I car-
Mr. BOLAND.' Mr. Chairman,. I move national security. It also protects, as I rect that the original McClory amend-
to strike the requisite number of words. say, the constitutional rights of Ameri- ment was considered separately and that
Mr. Chairman, let the members of this can citizens and foreigners who are in the several others were adopted subse-
committee understand precisely what we this land. and who are entitled to the quently?
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 September
7, W11poved
For FfAWQRTt R : $ " @SUMSAt0.00500040005-0
Mr. McCLORY. Mr. Speaker, if the
gentleman will yield, I might inform the
gentleman that the conforming amend-
ments were considered separately, and
the other amendments were considered
en bloc.
Mr. BAUMAN. Mr. Speaker, may I in-
quire, on which amendment is it that
the gentleman from Massachusetts (Mr.
BOLAND) demands a separate vote? I wish
the Chair would let the House know so
we will know what we are voting on.
The SPEAKER. The Chair will state
that the amendments offered by the gen-
tleman from Illinois (Mr. MCCLORY) that
were agreed to yesterday will be voted
on en bloc today. That is in conformance
with the demand made by the gentle-
man from Massachusetts (Mr. BOLAND).
Mr. BAUMAN. A further parliamen-
tary inquiry, Mr. Speaker.
The gentleman mentioned the Mc-
Clory amendment and all amendments
agreed to, en bloc. So do we now face
three or four separate votes?
The SPEAKER. The McClory amend-
ment agreed to today is a separate
amendment.
The Clerk will report the amendment
on which a separate vote has been de-
manded.
The Clerk read as follows:
Amendment: Page 39, strike out line 1 and
all that follows down through line 12 on
page 41 and insert in lieu thereof the fol-
lowing:
AUTHORIZATION FOR ELECTRONIC SURVEILLANCE
FOR FOREIGN INTELLIGENCE PURPOSES
SEC. 102. (a) An application for a court
order under this title is authorized if the
President has, in writing, authorized the At-
torney General to approve applications to
a court having jurisdiction under section 103.
A judge to whom such an application is made
may, notwithstanding any other law, grant an
order in accordance with section 105 approv-
Ing electronic surveillance of a United States
person who is a foreign power or an agent of
a foreign power for the purpose of obtaining
foreign intelligence information.
(b) (1) If the target of electronic sur-
veillance for the purpose of obtaining for-
eign intelligence Information is not a United
States person, such electronic surveillance
may be authorized by the issuance of a sur-
veillance certificate in accordance with sub-
section (c).
(2) Electronic surveillance authorized
under this subsection may be authorized for
the period necessary to achieve Its purpose,
except that
(A) if the target of the surveillance is not
a foreign power, the period of the surveil-
lance may not exceed ninety days; and
(B) if the target of the surveillance is a
foreign power, the period of the surveillance
may not exceed one year.
(3) Electronic surveillance authorized
under this subsection may be reauthorized
In the same manner as an original authori-
zation, but all statements required to be
made under subsection (c) for the initial
issuance of a surveillance certificate shall
be based on new findings.
(4) (A) Upon the issuance of a surveil-
lance certificate under- this suisection, the
Attorney General may direct a specified
communication common carrier-
(1) to furnish any information, facility,
or technical assistance necessary to ac-
complish the electronic surveillance unob-
trusively and in such a manner as will pro-
tect the secrecy of such surveillance and
will produce a minimum of interference with
the services that such common carrier pro-
vides Its customers; and
(ii) to maintain any records concerning
such surveillance or the assistance furnished
by such common carrier that such common
carrier wishes to retain under security pro-
cedures approved by the Attorney General
and the Director of Central Intelligence.
(B) Any such direction by the Attorney
General shall be in writing. .
(C) The Government shall compensate any
communication common carrier at the pre-
vailing rate for assistance furnished by such
common carrier pursuant to a direction of
the Attorney General under this paragraph.
(c) A surveillance certificate issued under
subsection (b) (1) shall be issued in writing
and under oath by the Attorney General and
an executive branch official or officials desig-
nated by the President from among those
officials employed in the area of national
security or national defense who were ap-
pointed by the President by and with the
advice and consent of the Senate, and shall
include-
(1) a statement-
(A) identifying or describing the target
of the electronic surveillance, including a
certification of whether or not the, target is
a foreign power or an agent of a foreign
power; and
(B) certifying that each of the facilities
or places at which the surveillance is directed
is being used or may be used by a foreign
power or an agent of a foreign power;
(2) a statement of the basis for the certi-
fication under paragraph (1)-
(A) that the target of the Surveillance is
a foreign power or an agent of a foreign
power; and
(B) that each of the facilities or places
at which the surveillance Is directed Is being
or may be used by a foreign power or an
agent of a foreign power;
(3) a statement of the proposed minimi-
zation procedures;
(4) a statement that the information
sought is foreign intelligence information;
(5) a- statement that the purpose of the
surveillance Is to obtain foreign intelligence
information;'
(6) if the target of the surveillance is not
a foreign power, a statement of the basis for
the certification under paragraph (4) that
the information sought is foreign intelli-
gence information;
(7) a statement of the period of time for
which the surveillance is required to be
maintained;
(8) a statement of the means by which the
surveillance will be effected;
(9) if the nature of the Intelligence gath-
ering is such that the approval of electronic
surveillance under subsection (b) should
not automatically terminate when the de-
scribed type of information has first been
obtained, a statement of the facts indicating
that additional Information of the same type
will be obtained thereafter;
(10) a statement indicating whether or
not an emergency authorization was made
under section 105 (e) ;.and
(11) if more than one electronic, mechan-
ical,' or other surveillance device is to be in-
volved with respect to such surveillance, a
statement specifying the types of devices in-
volved, their coverage, and the minimization
procedures that - will apply to information
acquired by each type of device.
Page 47, strike out lines 4 through 14 and
redesignate the succeeding subsections ac-
cordingly.
Page 48, line 24, strike out ", if the target
is a United States person,".
Page 50, strike out line 22 and all that
follows down through line 6 on page 51, and
redesignate subsections (d) through (g) ac-
cordingly.
Page 51, line 9, strike out ", except that"
and all that follows down through line 13
and Insert in lieu thereof: ".".
Page 51, line 17, strike out ",'ex`cept that
H 9265
an" and all that follows down through line
23 and insert in lieu thereof: ":'.
Page 52, strike out lines 11 and 12 and
insert in lieu thereof the following:
(2) the factual basis exists for the author-
ization of such electronic surveillance;
Page 52, beginning on line 14, strike out
"if a judge" and all that follows through
the period on line 20 and Insert in lieu thereof
the following: "if the otherwise applicable
procedures of this title are followed as soon
as practicable, but not more than twenty-
four hours after the Attorney General
authorizes such surveillance. In addition, if
the target of such electronic surveillance is a
United States person, the Attorney -General
or his designee shall at the time of such
authorization inform a judge having juris-
diction under section 103 that the decision
has been made to employ emergency elec-
tronic surveillance.".
Page 52, beginning on line 23, strike out
"for the issuance of a judicial order".
Page 52, line 24, insert "or surveillance
certificate" after "a judicial order".
Page 53, line 5, strike out "such" and in-
sert in lieu thereof "an".
Page 53, line 5, insert "or a surveillance
certificate is not issued" after "approval is
denied". - -
Page 53, line 6. insert "or surveillance
certificate" after "order".
Page 59, line 3, strike out "application,
order," and insert In lieu thereof "applica-
tion and order or the surveillance certif-
icate".
Page 59, line 18, strike out "applications
or orders" and insert in lieu thereof "appli-
cations, orders, or surveillance certificates".
Page 60, line 8, strike out "application,
order," and insert in lieu thereof "applica-
tion and order or surveillance certificate".
Page 60, line 14, insert "surveillance cer-
tificate," after "order,".
Page 68, line 12, insert "or surveillance
certificate" after "order".
Mr. BOLAND (during the reading).
Mr. Speaker, I ask unanimous consent
that the amendment be considered as
read and printed in the RECORD.
The SPEAKER. Is there objection to
the request of the gentleman from Mas-
sachusetts?
Mr. BAUMAN. Mr. Speaker, reserving
the right to object, I do so only to ask the
gentleman from Illinois (Mr. McCLORY)
a question.
The pending amendment now to be
voted on is not a series of amendments
en bloc, but only the amendment which
was adopted yesterday in the Committee
of the Whole; is that correct?
Mr. McCLORY. If the gentleman will
yield, that is correct. The only thing that
has occurred since the adoption of the
McClory amendment yesterday was the
adoption today by unanimous consent of
two conforming amendments. -
We had attempted to have those con-
forming amendments embodied in the bill
yesterday, but that request was refused;
so we did offer those conforming amend-
ments today. -,
Mr. BOLAND._ Mr. Speaker, if the
gentleman will yield, in response to the
question of the gentleman from Mary-
land; let me say that the amendment that
we will be voting on is the McClory
amendment No. 2, which deletes the war-
rant requirements of U.S. persons. The
other amendments which were offered
and accepted today by the Committee
were accepted en bloc. But they are con-
forming amendments which will conform
to the amendment that was offered yes-
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 H 9266 Approved For Rvj RU AL C tt(f .( M?@00500040,qg~tQmber 7, 1978
terday by the gentleman from Illinois and
accepted by the Committee.
Mr. McCLORY. Mr. Speaker, if the
gentleman will yield further, I would say
that there is this aspect involved, too:
There was the Raiisback amendment to
my amendment which was adopted today,
and I do not see how we can have a
separate vote on that by putting them
all en bloc. I think that what we require
is separate votes, a separate vote on my
amendment, and, if you wish to have a
separate vote on other amendments, to
request them separately.
Mr. BAUMAN. Mr. Speaker, further
reserving the right to object, I just want
the assurance of the Chair that we are
voting on nothing but the McClory
amendment adopted last night by the
Committee. Is that correct?
The SPEAKER. The Chair must say, as
modified today by the Raiisback amend-
ment.
Mr. BAUMAN. I thank the gentleman,
Mr. Speaker, I withdraw my reserva-
tion of objection.
The SPEAKER. Is there objection to
dispensing with further reading of the
amendment?
There was no objection.
The SPEAKER. The question -is on the
amendment.
The question was taken; and the
Speaker announced that the noes ap-
peared to have it.
Mr. McCLORY. Mr. Speaker, on that
I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic de-
vice, and there were-yeas .176, nays 200,
not voting 56, as follows:
[Roll No. 7851
YEAS-176
Alexander
Dickinson
Leach
Ambro
Dingell
Lent
Anderson, nl.
Dornan
Livingston
Andrews,
Duncan, Tenn.
Lloyd, Tenn.
N. Dak.
Edwards, Ala.
Lott
Applegate
Edwards, Okla.
Lujan
Archer
Emery
Luken
Ashbrook
English
McClory ;
Bafalls
Erlenborn
McCormack
Bauman
Ertel
McDade
Beard, Tenn.
Evans, Del.
McDonald
Bennett
Evans, Ind.
McEwen
Bevill
Fish
McKay
Blanchard
Flippo
McKinney
Bowen
Flowers
Madigan
Breaux
Flynt
Marlenee
Brinkley
Forsythe
Marriott
Brooks
Fountain
Martin
Broomfield
Frenzel
Mathis
Brown, Mich.
Gammage
Michel
Brown, Ohio
Gilman
Milford
Broyhill
Goldwater
Miller, Ohio
Buchanan
Goodling
Mitchell, N.Y.
Burgener
Gradison
Mollohan
Burleson, Tex.
Grassley
Montgomery
Butler
Gudger
Moore
Carter
Hall
Moorhead,
Cederberg
Hammer-
Calif.
Chappell
Schmidt
Mottl
Clausen,
Harsha
Murphy, N.Y.
Don H.
Heckler
Myers, Gary
Cleveland
Hightower
Myers, John
Cohen
Hillis
Nedzi
Coleman
Holt
Nichols
Collins, Tex.
Horton
O'Brien
Conable
Hubbard
Poage
Conte
Hyde
Pritchard
Corcoran
Ichord
Pursell
Coughlin
Jeffords
Quayle
Cunningham
Jenkins
Regula
D'Amours
Jones, N.C.
Rinaldo
Daniel, Dan
Jones, Tenn.
Risenhoover
Daniel, R. W.
Kazen
Roberts
Davis
Kelly
Robinson
de la Garza
Kindness
Rousselot
Derwinski
Lagomarsino
Rudd
Devine
Latta
- Runnels
Ruppe Stangetand Wampler
Sarasin Stanton Watkins
Satterfield Steiger White
Sawyer Stockman Whitehurst
Schulze Stratton Whitley
Sebelius I Stump Whitten
Shuster Taylor Wilson, Bob
Sikes Treen Wilson, C. H.
Slack Trible Winn
Smith, Nebr. Vander Jagt Wolff
Snyder Walgren Wydler
Spence Walker Wylie
Staggers Walsh Young, Fla.
NAYS-200
Akaka Gaydos
Anderson, Gephardt
Calif. Giatmo
Andrews, N.C. Ginn
Annunzio Glickman
Ashley Gonzalez
Aspin Gore
AuOOin
Baldus
Barnard
Baucus
Beard, R.I.
Bedell
Benjamin
Biaggi
Bingham
Blouin
Boggs
Boland
Bolling
Bonior
Bonker
Brademas
Breckinridge
Brodhead
Brown, Calif.
Burke, Mass.
Burlison, Mo.
Burton, John
Nix
Nolan
Nowak
Oakar
Oberstar
Obey
Ottinger
Green Panetta
Hamilton Patten
Hanley Patterson
Hannaford Pattison
Harkin Pease
Harrington Pepper
Harris Perkins
Hefner
Heftel
Holland
Hollenbeck
Holtzman
Howard
Hughes
Ireland
Jacobs
Pickle
Pike
Preyer
Price
Rahall
Railsback
Reuss
Rodino
Roe
Jenrette Rogers
Johnson, Calif. Roncalio
Jones, Okla. Rose
Kastenmeier Rosenthal
Keys Rostenkowski
Kildee' Roybal
Burton, Phillip Kostmayer
Carney Krebs
Carr
Cavanaugh
Chisholm
Clay
Collins, Ill.
Conyers
Corman
Cornell
Cornwell
Cotter
Danielson
Delaney
Dellums
Derrick
Dicks
Dodd
Downey
LaFalce
Le Pants
Lederer
Leggett
Levitas
Lloyd, Calif.
Long, La.
Long, Md.
Lundine
McCloskey
McFall
McHugh
Maguire
Mahon
Mann
Markey
Marks,
Russo
Ryan
Santini
Schauer
Schroeder
Seiberling
Sharp
Simon
Skelton
Smith, Iowa
Solari
Spellman
St Germain
Stark
Steed
Steers
Stokes
Studds
Thompson
Early Mattox Traxler
Eckhardt Mazzoli Tucker
Edgar - Meeds Udall .
,Edwards, Calif. Metcalfe Ullman
Eilberg Meyner Van Deerlin
Evans, Colo. Mikulski Vanik
Evans, Ga. Mineta Vento
Fascell Minish Volkmer
Fenwick Mitchell, Md. Waxman
Findley Moakley Weaver
Fisher Moffett Weiss
Fithian Moorhead, Pa. Whalen
Flood Moss Wilson, Tex.
Florio Murphy, Ill. Wirth
Foley Murphy, Pa. Wright
Ford, Mich. Murtha Yates
Ford, Tenn. Myers, Michael Young, Mo.
Fowler Natcher Zablocki
Abdnor
Ammerman
Armstrong
Badham
Beilenson
Burke, Calif.
Burke, Fla.
Byron
Caputo
Clawson, Del
Cochran
Crane.
Dent
Fuqua
Gibbons
Guyer
Hagedorn
Hansen
Hawkins
Huckaby
Johnson, Colo.
Jordan
Kasten
Kemp
Krueger
Lehman
Diggs Mikva
Drinan Miller, Calif.
Duncan, Oreg. Pettis
Vary Pressler
Fraser, Quis
Frey Quillen
Rangel
Rhodes
Richmond
Rooney
Shipley
Sisk
Skubitz
Symms
Teague
Thone
Thornton
Tsongas
Waggonner
Wiggins
Yatron
Young, Alaska
Young Tex.
Zeferetti
The Clerk announced the following
pairs :
On this vote:
Mr. Waggonner for, with Mr. Richmond
against.
Mr. Teague for, with Mr. Zeferetti against.
Mr. Kasten for, with Mrs. Burke of Cali-
fornia against.
Mr. Symms for, with Mr. Dent against.
Mr. Hagedorn for, with Mr. Diggs against.
Mr. Fuqua for, with Mr. Yatron against.
Mr. Guyer for, with Mr. Drinan against.
Mr. Kemp for, with Mr. Hawkins against.
Mr. Rhodes for, with Mr. Mikva against.
Mr. Badham for, with W. Miller of Cali-
fornia against.
Mr. Hansen for, with Mr. Fary against.
Until further notice:
)Mr. Byron with Mr. Abdnor.
Mr. Duncan of Oregon with Mr. Burke of
Florida.
Mr. Fraser with Mr. Cochran of Mississippi.
Mr. Gibbons with Mr. Johnson of Colorado.
Mr. Ammerman with Mr. Caputo.
Mr. Huckaby with Mr. Armstrong.
Miss Jordan with Mr. Krueger.
Mr. Lehman with Mrs. Pettis.
Mr. Rangel with Mr. Del Clawson.
Mr. Rooney with Mr. Thone.
Mr. Shipley with Mr. Crane.
Mr. Sisk with Mr. Pressler.
Mr. Thornton with Mr. Wiggins.
Mr. Tsongas with Mr. Young of Alaska.
Mr. Frey with Mr. Quie.
Mr. Skubitz with Mr. Quillen.
So the amendment was rejected.
The result of the vote was announced
as above recorded.
The SPEAKER pro tempore (Mr.
EVANS of Colorado). The Clerk will re-
port the conforming amendments upon
which a separate vote has been de-
manded.
The Clerk read as follows:
Conforming amendments: Page 50, strike
out line 22 and all that follows down
through line, 13 and insert in lieu
thereof:
Page 51, line 17, strike out ", except that
an" and all that follows down through line
23 and insert in lieu thereof : ". .
The SPEAKER pro tempore. The ques-
tion is on the conforming amendments.
The conforming amendments were
rejected.
The SPEAKER pro tempore. The ques-
tion is on the committee amendment in
the nature of a substitute, as amended.
The committee amendment in the na-
ture of a substitute, as amended, was
agreed to.
The SPEAKER pro tempore. The ques-
tion is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed
and read a third time, and was read the
third time.
MOTION TO RECOMMIT OFFERED BY MR. M'CLORY
Mr. McCLORY. Mr. Speaker, I offer
a motion to recommit.
The SPEAKER pro tempore. Is the
gentleman opposed to the bill?
Mr. McCLORY. I am, Mr. Speaker.
The SPEAKER pro tempore. The Clerk
will report the motion to recommit.
The Clerk read as follows:
Mr. MCCLORY moves to recommit the bill,
H.R. 7308, to the Select Committee on In-
telligence with the instructions to report
back the same to the House forthwith with
the following amendments:
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 H
September f~~NA CARD-HOUSE
ptmber 7, iroved Fo?IeasefCf5/'fTCIA-RDP80S01268A000500(4005-0
Page 39, strike out line 10 and all that intended to be offered by our colleague, Sarasin S n n Watkins
Satterfield Steiger White
follows down through line 17 and insert in the gentleman from Louisiana (Mr. Sawyer Stockman Whitehurst
lieu thereof: "at a foreign power as defined WAGGONNER), if he were here. I know Schulze Stratton Whitley
in section 101 (a) (1), (2), or (3);"and". that the gentleman from Texas (Mr. Sebelius Stump Wilson, Bob
Page 47, strike out line 4 and all that fol- Shuster Taylor Wilson, C. H.
lows down through line 14, and redesignate HALL), is also supporting this position, Sikes Treen Wilson, Tex.
subsections (c) and (d) accordingly. and I hope that the Members will vote Skubita Trible Winn
Page 50, strike out line 22 and all that favorably on this motion to recommit. Sn Smith, Nebr. Walker, Jagt WWolff
ydler
follows down through line 6 on page 51, and (Mr. McCLORY asked and was given Spence Walsh Wylie
redesignate subsections (d) through (g) ac- permission to revise and extend his re- Stangeland Wampler Young, Fla.
cordingly. marks.) NAYS-207
Page 51, line 9, strike out ", except that" Mr. BOLAND. Mr. Speaker, I rise in Addabbo Garcia Nix
and all that follows down through line 13 opposition to the motion to recommit Alaka Gaydos Nolan
and insert In lieu thereof " " ? with instructions. Alexander Gephardt Nowak
Gialmo - Oakar
Anderson
Mr. McCLORY (during the reading).
Mr. Speaker, I ask unanimous consent
that the motion to recommit be consid-
ered as read and printed in the RECORD.
The SPEAKER pro tempore. Is there
objection to the request of the gentle-
man from Illinois?
There was no objection.
The SPEAKER pro tempore. The gen-
tleman from Illinois (Mr. McCLORY) is
recognized for 5 minutes in support of
his motion to recommit.
Mr. McCLORY. Mr. Speaker, this mo-
tion to recommit with instructions would
impose much narrower restrictions with
respect to the elimination of a warrant
requirement. In other words, it is par-
rower than the so-called McClory
amendment which would have eliminated
all foreign agents and all foreign powers
from the requirement that the intelli-
gence agencies would have to go to court
t
6..,, ..... ?" r__. Speaker pro VCrrmp ore ann
ed
o
ounc
.
Mr. Speaker, I cannot say with surety calif. Ginn Oberstar
that the gentleman from Louisiana (Mr. Annunzio Glickman Obey
WAG(;ONNER) wdUld be offering this Applegate Green Ottinger Panetta
amendment or would propose it in the Ashley
Asp Hamilton Patten
motion to recommit. The gentleman from Aucoin Hanley Patterson
Illinois (Mr. McCLORY) would prob- Baldus Hannaford Patttson
ably have better knowledge of that than Barnard Harkin Pease
I. But be that as it may, the same argu- Baucus Harrington Pepper
Beard, R.I. Harris Perkins
ments that prevailed with respect to the Bedell Heftel Pickle
McClory amendment prevail in this, too. Benjamin Holland Pike
So, Mr. Speaker, without delaying the Biaggi Holt ff an Prier
time of this House-they have been aw- Blanchard Howard Pursell
fully patient-this motion to recommit Blouin Hubbard Rahall H ought to be rejected, just as the McClory Boollaaand IIre a d RReuss
amendment was rejected in the separate Bolling Jacobs Roe
vote. Bontor Johnson, Calif. Rogers
The SPEAKER pro tempore. Without Bonker Jones, N.C. Ronoalio
Brademas Jones, Okla.. Rose
objection, the previous question is Breckinridge Jones, Tenn. Rosenthal
ordered on the motion to recommit. Brodhead Calif. iK$es enmeier Ro kowski
There was no objection. Burke, Mass. Kildee Russo
The SPEAKER pro tempore. The ques- Burn J JMo. ohn Kostmayer Santini
Lion is on the motion to recommit. Burton, Phillip LaFalce Scheuer
The question was taken; and the Carney Lederer Schroeder
* - -.-+. Seiberling
,,...,........,
This would merely eliminate the war- noes appeared to have it. ' Cavanaugh Leggett
rant requirement with regard to a for- Chisholm L
Mr. McCLORY. Mr. Speaker, on that clay Lloyd, , Calif.
eign government or a component there= I demand the yeas and nays. Collins, Ill. Long, La,
of-an embassy, for instance-or to a Conyers Long, Md.
faction. of a foreign government-the The yeas and nays were ordered. Gorman Lundine
Eritrean Liberation Front, or the PLO- The vote was taken by electronic de- Cornwell McFallkey
or an entity openly directed and con- vice, and there were-yeas 164, nays 207, Cotter McHugh
trolled by a foreign government-such not voting 61, as follows: D'Amours McKay
Danielson Maguire
that is operating here in our country but
is owned and controlled by a foreign
government. In other words, it seems to
me for us to impose upon ourselves a
requirement that we go and get a judi-
cial warrant to engage in electronic sur-
veillance of the Soviet Embassy means
that we would be required to get a war-
rant if we wanted to be there with radio
interception, or television surveillance,
or whatever it might be, and that just
seems to me to be completely absurd.
When I talk to individuals about this,
they wonder what in the world we are
getting ourselves into that we want our
intelligence agencies to go to a court
and get a judge to decide whether or not
we should have electronic surveillance
of foreign powers and foreign agents in
power such as this.
When I say "foreign agents," I mean
foreign spies who might be in this coun-
try, and yet we could not engage in elec-
tronic surveillance of that foreign spy
under this legislation unless we first go
to a court and get a court order. To what
absurd length must we go in order to
cleanse ourselves of some abuses that
took place some years ago? The evidence
before our committee is without question
that there have been no abuses, no
abuses of any rights of any American,
during the period that we have had
executive guidelines. The amendment
embodied in the motion to recommit was
[Roll No. 736]
YEAS-164
Ambro
Dingell
Lagomarsino
Anderson, Ill.
Dornan
Latta
Andrews, N.C.
Duncan in
Leach
Andrews,
Edwards, Ala.
Lent
N. Dak.
Edwards, Okla.
Livingston
Archer
Emery
Lloyd, Tenn.
Ashbrook
English
Lott
Bafalls
ri b r
en o n
Luian
Bauman -
Ertel
McClory
Beard, Tenn.
Evans, Del.
McCormack
Bennett
Evans, Ind.
McDade
Bevill
Fish
McDonald
Bowen
Flippo
McEwen
Breaux
Flowers
McKinney
Brinkley
Flynt
Madigan
Broomfield
Forsythe
Marriott
Brown, Mich.
Fountain
Martin
Brown, Ohio
Frenzel
Mathis
Broyhill
Gammage
Michel
Buchanan
Gilman
Milford
Burgener
Goldwater
Miller, Ohio
Burleson, Tex.
Butler
Goodling
Carter
Gradison
Montgomery
Oederberg
Grassley
Moore
Chappell
Gudger
Moorhead,
Clausen,
Hall
Calif.
Don H.
Hammer-
Myers, Gary
Cleveland
schmidt
Myers, John
Cohen
Harsha
Nedzl
Coleman
Heckler
Nichols
Collins, Tex.
Hefner
O'Brien
Conable
Hightower
Poage
Conte
Hillis
Pritchard
Corcoran'
Holt
Quayle
Coughlin
Horton
Regula
Cunningham
Hyde
Rinaldo
Dan
Daniel
Ichord
Risenhoover
,
Daniel, R. W.
Jeffords
Roberts
Davis
Jenkins
Robinson
de 18, Garza
Jenrette
Rousselot
Derwinski
Kasen
Rudd
Devine
Kelly
Runnels
Dickinson
Kindness
Rupps
Delaney Mahon
Dellums Mann
Derrick Markey
Dicks Marks
Diggs Mattox -
Dodd Mazzolt
Downey Mpeds
Early Metcalfe
Eckhardt Meyner
Edgar Mikutski
Edwards Calif. Mineta
.
Sharp
Simon
Skelton
Slack
Smith; Iowa
Solarz
Spellman
St Germain
Staggers
Stark
Steed
steers
Stokes
Studds
Thompson
Traxler
Tucker.
Udall
Ullman
Van Deerlin
Vanik
Vento
Ellberg Minish Volkmer .
Evans, Colo. Mitchell, Md. Walgren
Evans, Ga. Moffett Waxman
Fascell Moorhead, Pa. Weaver
Fenwick Moss Weiss
Findley Mottl Whalen
Fisher Murphy, 111. Wirth
Fithian Murphy, N.Y. Wright
Flood Murphy, Pa. , Yates
Florio Murtha Young, MO.
Ford, Mich. Myers, Michael Zablocki
Ford. Tenn. Natcher
Fowler Neal
Abdnor
Ammerman
Armstrong Hagedorn Richmond
Badham Hansen Rodino
Bellenson Hawkins Rooney
Brooks Huckaby Shipley
Burke, Calif. Johnson, Colo. Sisk
Burke, Fla. Jordan Symms
Byron Kasten Teague
Caputo Kemp Thone
Clawson, Del Krueger Thornton
Cochran Lehman Tsongas
Crane Luken Waggonner-
Dent Marlenee Whitten
Drinan Mikva Wiggins
Duncan, Oreg. Miller, Calif. Patron
Fary Moakley Young, Alaska
Foley Pettis Young, Tex.
Fraser Pressler Zeferetti
Frey Quie
Fuqua Quillen -
NOT VOTING-61
Gibbons Rangel
Guyer Rhodes
9267
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 H 9268 Approved For ReleC-ON MEBMWtll gtIR@ 0.1 50004000q- tember
The Clerk announced the following
pairs :
On this vote:
Mr. Waggonner for, with Mr. Richmond
against.
Mr. Teague for, with Mr. Zeferetti against.
Mr. Kasten for, with Mr. Dent against,
Mr. Symms for, with Mr. Drinan against.
Mr. Hagedorn for, with Mr. Hawkins
against.
Mr. Guyer for, with Mr. Fary against.
Mr. Kemp for, with Mr. Rangel against.
Mr. Rhodes for, with Mrs. Burke of Cali-
fornia against.
Mr. Badharn for, with Mr. Mikva against.
Mr. Hansen for, with Mr. Moakley against.
Mr. Abdnor for, with Mr. Yatron against.
Until further notice:
Mr. Beilenson with Mr. Armstrong.
Mr. Brooks with Mr. Burke of Florida.
Mr. Huckaby with Mr. Caputo.
Mr. Sisk with Mrs. Pettis.
Mr. Shipley with Mr. Prey.
Mr. Rooney with Mr. Del Clawson.
Mr. Rodino with Mr. Pressler.
Miss Jordan with Mr. Johnson of Colorado.
Mr. Krueger with Mr. Thone.
Mr. Whitten with Mr. Young of Alaska.
Mr. Ammerman with Mr. Cochran of
Mississippi.
Mr. Byron with Mr. Luken.
Mr. Duncan of Oregon with Mr. Wiggins.
Mr. Foley with Mr. Crane.
Mr. Fraser with Mr. Marienee.
Mr. Gibbons with Mr. Quie. .
Mr. Teongas with Mr. Thornton.
Mr. Lehman with Mr. Quillen.
Mr. Fuqua with Mr. Miller of California.
So the motion to recommit was
rejected.
The result of the vote was announced
as above recorded.
The SPEAKER pro tempore. The
question is on the passage of the bill.
The question was taken; and the
Speaker pro tempore announced that the
ayes appeared to have it.
Mr. BAUMAN. Mr. Speaker, on that
I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic de-
vice, and there were-yeas 246, nays 128,
not voting 58, as follows:
[Roll No. 737]
YEAS-246
Addabbo Burton, John Evans, Ga.
Akaka Burton, Phillip Evans, Ind.
Alexander Carney Fascell
Ambro Carr Fenwick
Anderson, Cavanaugh Findley
Calif. Chisholm Fisher
Anderson, Ill- Clay Fithian
Annunzio Cleveland Flood
Applegate
Ashley
AAuuCoin
Baldus
Barnard
Baucus
Beard, R.I.
Bedell
Benjamin
Biaggi
Bingham
Blanchard
Blouln
Boggs
Boland
Bolling
Bonior
Bonker
Brademas
Brinkley
Brooks
Broomfield
Brown, Calif.
Burke, Mass.
Burlison, Mo,
Collins, Ill.
Conte
Conyers
Corman
Cornell
Cornwell
Cotter
D'Amours
Danielson
de Is Garza
Delaney
Dellums
Derrick
Derwinski
Dicks
Dingell
Dodd
Downey
Florio
Foley
Ford, Mich.
Ford, Tenn.
Fowler
Gammage
Garcia
Gaydos
Gephardt
Giaimo
Gilman
Ginn
Glickman
Gore
Green
Gudger
Hall
Hamilton
Hanley
Eckhardt Harrington
Edgar Harris
Edwards, Calif. Heckler
Eilberg Hefner
Evans, Colo. Heftel
Holland
Hollenbeck
Horton
Howard
Hubbard
Hughes
Ireland
Jacobs
Jeffords
Jenkins
Johnson, Calif. Murphy, In. Simon
Jones, N.C. Murphy. N.Y. Skelton
Jones, Okla. Murphy, Pa. Smith, Iowa
o
nes, enn. Murtha Solarz
Kastenmeier Myers, Michael Spellman
Kazea Natcher . St Germain
Keys
Kildee
Kostmayer
Krebs
LaFalce
Leach
Lederer
Le Pants
Leggett
Levitas
Lloyd, Calif.
Long, La.
Long, Md.
Luken
Lundine
McCloskey
McDade
McFall
McHugh
McKay
McKinney
Madigan
Maguire
Mahon
Mann
Markey
Marks
Marlenee
Mathis
Mattox
Mazzola
Meads
Metcalfe
Meyner Roybal
Mikulski Russo
Mineta Ryan
Minish Santini
Mitchell, Md. Sarasin
Moakley Sawyer
Moffett Schauer
Montgomery Schroeder
Moorhead, Pa. Seiberling
Neal Staggers
Nix Stanton
Nolan Stark
Nowak Steed
Oberstar Steers
Obey Stokes
Ottinger Studds
Panetta Thompson
Patten Traxler
Patterson Tucker
Pattison Udall
Pease Ullman
Pepper Van Deerlin
Perkins Vanik
Pickle Vento
Pike Volkmer
Preyer Walgren
Price Waxman
Pritchard Weaver
Pursell Weiss
Quayle Whalen
Rahall White
Railsback Whitten
Reuss Wilson, Tex.
..Rinaldo Wirth
Risenhoover Wolff
Roberts Wright
Roe Wydler
Rogers - Yates
Roncalio Young, Mo.
Rose Zablocki
Rosenthal
Rostenkowski
Andrews, N.C. Fish Myers, John
Andrews, Flippo Nedzi
N. Dak. Flowers Nichols
Archer Flynt O'Brien
Ashbrook Forsythe Oakar
Bafalis Fountain Poage
Bauman Frenzel Regula
Beard, Tenn. Goldwater Robinson
Bennett Gonzalez Rousselot
Bevill Goodling Rudd
Bowen Gradison Runnels
Breaux Grassley Ruppe
Brodhead Hammer- Satterfield
Brown, Mich. schmidt Schulze
Brown, Ohio Harsha Sebelius
Broyhill Hightower Shuster
Buchanan Hillis- Sikes
Burgener Holt Skubitz
Burleson, Tex. Holtzman Slack
Butler Carter Hyde Smith, Nebr.
Ichord Snyder
Cederberg Jenrette Spence
Chappell Kelly Stangeland
Clausen, Kindness Steiger
Don H. Lagomarsino Stockman
Coleman Latta Stratton
Collins, Tex. Lent Stump
Conable Livingston Taylor
Corcoran Lloyd, Tenn. Treen
Coughlin Lott Trible
Cunningham Lujan Vander Jagt
Daniel, Dan McClory Walker
Daniel, R. W. McCormack Walsh
Davis McDonald Wampler
Devine McEwen Watkins
Dickinson Marriott Whitehurst
Dornan Martin Whitley
Duncan, Tenn. Michel Wilson, Bob
Edwards, Ala. Miller, Ohiq Wilson, C. H.
Edwards, Okla. Mitchell, N.Y. Winn
Emery Mollohan Wylie
English Moore Young, Fla.
Erlenborn ' Moorhead,
Ertel Calif.
Evans, Del. Myers, Gary
NOT VOTING.-.58.
Abdnor Breckinridge Clawson, Del
Ammerman Burke, Calif. Cochran
Armstrong Burke, Fla, Crane
Badham Byron Daft
Beilenson Caputo Orman
7,.1975
Duncan, Oreg.
Krueger
Shipley
Fary
Lehman
Sisk
Fraser
Mikva
Symms
Frey
Milford
Teague
Fuqua
Miller, Calif.
Thone
Gibbons
Moss
Thornton
Guyer
Pettis
Tsongas
Hagedorn
Pressler
Waggonner
Hansen
Quie
Wiggins
Hawkins
Quillen
Yatron
Huckaby
Rangel
Young, Alaska
Johnson, Colo.
Rhodes
Young, Tex.
Jordan
Richmond
Zeferetti
Kasten
Rodino
Kemp
Rooney
The Clerk announced the following
pairs:
On this vote:
Mr. Richmond for, with Mr. brinan
against.
Mr. Zeferetti for, with Mr. Kasten against.
Mr. Fary for, with Mr. Symms against.
Mr. Rooney for, with Mr. Abdnor against.
Mr. Fuqua for, with Mr. Hansen against.
Mrs. Burke of California for, with Mr.
Hagedorn against.
Mr. Rangel for, with Mr. Rhodes against.
Mr. Mikva for, with Mr. Del Clawson
against.
Mr. Yatron for, with Mr. Crane against.
Mr. Rodino for, with Mr. Kemp against.
Mr. Dent for, with Mr. Guyer against.
Mr. Hawkins for, with Mr. Teague against.
Mr. Miller of California for, with Mr.
Waggonner against.
Mr. Lehman for, with Mr. Wiggins against.
Mr. Shipley for, with Mr. Badham against.
Until further notice:
Mr. Ammerman with Mr. Armstrong.-
Mr. Bellenson with Mrs. Pettis.
Mr. Gibbons with Mr. Pressler.
Mr. Sisk with Mr. Thone.
Mr. Tsongas with Mr. Burke of Florida.
Mr. Krueger with Mr. Frey.
Miss Jordan with Mr. Qule.
Mr. Huckaby with Mr. Quillen.
Mr. Breckinridge with Mr. Caputo.
Mr. Byron with Mr. Duncan of Oregon.
Mr. Milford with Mr. Thornton.
Mr. Moss with Mr. Young of Alaska.
Mr. BROWN of Michigan changed his
vote from "yea" to "nay."
So the bill was passed.
The result of the vote was announced
as above recorded.
The title was amended so as to read:
"A bill to authorize electronic surveil-
lance to obtain foreign intelligence in-
formation.".
A motion to reconsider was laid on the
table.
The SPEAKER pro tempore (Mr.
FOLEY). Pursuant to the provisions of
House Resolution 1266, the Committee
on the Judiciary is discharged from the
further consideration of the Senate bill
(S. 1566) to amend title 18, United
States Code, to authorize applications
for a court order approving the use of
electronic surveillance to obtain foreign
intelligence information.
The Clerk read the title of the Senate
bill.
MOTION OFFERED BY MR. BOLAND
Mr. BOLAND. Mr. Speaker, I offer a
motion.
The Clerk read as follows:
Mr. BOLAND moves to strike out all after
the enacting clause of the Senate bill S.
1566 and to insert. in lieu thereof the provi-
sions of H.R. 7808, as passed by the House,
as follows:
That this Act may be cited as the "Foreign
Intelligence Surveillance Act of 1978".
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H 9269
TABLE OF CONTENTS ? (c) "International terrorism" means ac- (h) "Minimization procedures", with re-
TITLE I-ELECTRONIC SURVEILLANCE tivities that- spect to electronic surveillance, means-
WITHIN THE UNITED STATES FOR FOR- (1) involve violent acts or acts dangerous (1) specific procedures, which shall be
EIGN INTELLIGENCE PURPOSES to human life or property that are or may adopted by the Attorney General, that are
Sea 101. Definitions. be a violation of the criminal laws of the reasonably designed in light of the pur-
Sec. 102. Authorization for electronic sur- United States or of any State, or that might pose and technique of the particular surveil-
veiliance for foreign intelligence involve a criminal violation if committed lance, to minimize the acquisition, retention,
purposes. within the jurisdiction of the United States and dissemination of nonpublicly available
Sec. 103. Special courts, or any State;. information concerning unconsenting United
Sec. 104. Application for an order. (2) appear to be intended- States persons consistent with the need of the
Sec. 105. Issuance of an order. (A) to intimidate or coerce a civilian popu- United States to obtain, produce, and disk
Sec. 106: Use of information. lation; seminate foreign intelligence information;
Sec. 107. Report of electronic surveillance. (B) to influence the policy of a govern- (2) procedures that require that nonpub-
Sec. 108. Congressional oversight. ment by intimidation or coercion; or licly available information which is not for-
Sec. 109. Penalties. (C) to affect the conduct of & 'government eign intelligence informat ion, as defined in
Sec. 110. Civil liability. by assassination or kidnapping; and subsection (e) (1), shall not be disseminated
-- "`` or transcend national boundaries in terms of united States person, without such person's
AMENDMENTS the means by which they are accomplished, consent, uless such person's identity is neces-
Sec. 201. Amendments to chapter 119 of title the persons they appear intended to coerce sary to understand foreign intelligence infor-
18, United States Code. or intimidate, or the locale in which their mation or assess its importance;
TITLE III-EFFECTIVE DATE perpetrators operate or seek asylum. (3) notwithstanding paragraphs (1) and
Sec. 301. Effective date. (d) "Sabotage" means activities that in- (2), procedures that allow for the retention
volve or may involve a violation of chapter and dissemination of information that is evi-
TITLE I-ELECTRONIC SURVEILLANCE 105 of title 18, United States Code, or that dence of a crime which has been, is being, or
WITHIN THE UNITED STATES FOR FOR- might involve such a violation if committed is about to be committed and that is to be re-
EIGN INTELLIGENCE PURPOSES against the. United States. tained or disseminated for the purpose of
DEFINrrzoNS (e) "Foreign intelligence information" preventing the crime or enforcing the crimi-
SEC. 101. As used in this title: means- nal law; and
(a) "Foreign power" means- (1) information that relates to and, if (4) notwithstanding paragraphs (1), (2).
(1) a foreign government or any component concerning it United States person, is neces- and (3), with respect to any electronic sur-
thereof, whether or not recognized by the sary to the ability of the United States to veillance approved pursuant to section 102
United States; protect against- (a) procedures that require that no con-
(2) a faction of a foreign nation or na- (A) actual or potential attack or other tents of any communication. to which a
tions, not substantially composed by United grave hostile acts of a foreign power or an United States person is a party shall be dis-
States persons; agent of a foreign power; closed, disseminated, or used for any purpose
(3) an entity that is openly acknowledged (B) sabotage or international terrorism or retained for longer than twenty-four hours
by a foreign government or governments to by a foreign power or an agent of a foreign unless a court order under section 105 is ob-
be directed and controlled by such foreign power; or tailed or unless the Attorney General deter-
government or governments; (0) clandestine intelligence activities b mines that the information may indicate a
(4) a group engaged in international ter- an intelligence service o rnetwork of a for- threat of death or serious bodily harm to any
rorism or activities in preparation therefor; eign power or by an agent of a foreign person.
(5) a foreign-eased organization, not sub- power; or (2) information with respect to a (1) "United States person" means a citizen
stantially composed of United States per- foreign power or foreign territory that relates of the United States, an alien lawfully ad-
sans: or to and, if concerning a United States person, muted for permanent residence (as defined in
(6) an entity that is directed and con- is necessary to- section Nat101 (a) ionality ityAct), of the number Immigration o of ted and
trolled by a foreign government or govern- (A) the national defense or the security of ton a substantial an unincorporated ass s of
ments. the United States; or which a are citizens ns of the United members of
(b) "Agent of a foreign power" means- (B) the conduct of the oresgn affairs of w States or
resi-
who- person other than a United States the United States. aliens dente, or a lawfully
corporation. admitted whic for hais incorporated
(1) any incorporated
person, (f) "Electronic surveillance" means- in the United States, but does not include
(A) acts in the United States as an officer, (1) the acquisition by an electronic, me- a corporation or an association which Is a
member, or employee of a foreign power; or chanical, or other surveillance device of the foreign power, as defined in subsection (a)
(B) acts for or on behalf of a foreign contents of any wire or radio communica- (1), (2),or (3).
power which engages in' clandestine intelli- tion sent by or intended to be received by a (j) "United States", when used in a geo-
gence activities in the United States con- particular, known United States person who graphic sense, means all areas under the ter-
trary to the interests of the United States, is in the United States, if the contents are ritorial sovereignty of the United States and
when the circumstances of such person's acquired by intentionally targeting that the Trust Territory of the Pacific islands.
presence in the,United States indicate that United States person, under circumstances (k) "Aggrieved person" means a person
such person may engage in such activities in in which a person has a reasonable expecta- who is the target of an electronic surveillance
the United States, or when such person tion of privacy and a warrant would be or any other person whose communications
knowingly aids or abets any p~raon in the required for law enforcement purposes; or activities were subject to electronic sur-
conduct. of such activities or knowingly con- (2) the acquisition by an electronic, me- veiliance.
spires with any person to engage in such ac- chanical, or other surveillance device of the (1) "Wire communication" means' any
tivities; or contents of any wire communication to or communication while it is being carried by a
(2) any person who- from a person in the United States, without wire, cable, or other like connection furnished
(A) knowingly engages in clandestine in- the consent of any party thereto, if such or operated by any person engaged as a com-
telligence gathering activities for or on be- acquisition occurs in the United States; mon carrier in providing or operating such
half of a foreign power, which activities (3) the intentional acquisition by an elec- faclities for the transmission of interstate or
involve or may involve a violation of the tronic, mechanical, or other surveillance de- foreign communications.
criminal statutes of the United Svice of the contents of any radio communica- (m) "Person" means any individual, in-
(B) pursuant to the direction of States; o intel- tion, under circumstances in which a per- cluding any officer or employee of the Fed-
pursuant
service or the fpower, son has a reasonable expectation of privacy eral Government, or any group, entity, as-
ligence o network of a foreign o clandestine and a warrant would be required for law sociation, corporation, or foreign power.
Intelligence engages
enforcement, purposes, and if both the sender (n) "Contents", when used with respect to
e activities for or on behalf of
such foreign power, which activities in- and all intended recipients are located with- a communication, includes any information
in the United States;
valve or are about to involve a violation of or concerning the identity of the parties to such
the criminal statutes.of the United States (4) the installation or Ilse of an electronic, communication or the existence, substance,
(C) knowingly g in- the United States for monitoring to acquire
ternational terrorism, or activities that are information, other than from a wire or ra- (0) "State" means any State of the United
in preparation therefor, for or on behalf of dio communication under circumstances in States, the District of Columbia, the Com-
a foreign power; or monwealth of Puerto Rico, the Trust Terri-
which a person has a reasonable expecta-
purugrapn (X), (13), or (0) Or knowingly (g) "Attorney General" means the Attor- AUTHORYZATION FOR ELECTRONIC SURVEILLANCE
conspires with any person to engage in ac- ney General of the United States (or Acting FOR FOREIGN INTELLIGENCE PURPOSES
tivities described in subparagraph (A), (B), Attorney General) or the Deputy Attorney SEC. 102. (a) (1) Notwithstanding any
or, (0). General, other law, the President, through the At-
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 H 9270
Approved For RftMIRMMbQM 9SIBJ(26M~MD0050004 nber 7, 1978
torney General, may authorize electronic sur- title shall be made by a Federal officer in
veillance without a court order under this writing upon oath or affirmation to a judge
title to acquire foreign intelligence informs- having jurisdiction under section 103. Each
tion for periods of up to one year if the At- application shall require the approval of the
torney General certifies in writing under Attorney General based upon his finding that
oath that- it satisfies the criteria and requirements of
(A) the electronic surveillance is solely such application as set forth in this title.
directed at- It shall include-
(s) communications exclusively between (1) the identity of the Federal officer mak-
or among foreign powers, as defined in sec- ing the application;
tion 101(a) (1), (2), or (3); or (2) the authority conferred on the Attor-
(ii) the acquisition of technical intelli- ney General by the President of the United
gence from property or premises under the states and the approval of the Attorney
open and exclusive control of a foreign General to make the application;
power, as defined in section 101(a) (1), (2), (3) the identity, if known or a description
or (3); and of the target of the electronic surveillance;
(B) the proposed minimization procedures (4) a statement of the facts and circum-
with respect to such surveillance meet the stances relied upon by the applicant to just-
definition of minimization procedures under 'ify his belief that-
section 101(h); and (A) the target of the electronic surveil-
if the Attorney General shall report such lance is a foreign power or an agent of a
minimization procedures and any changes foreign power; and
thereto to the House Permanent Select Com- (B) each of the facilities or places at which
mittee on Intelligence and the Senate Select the electronic surveillance is directed is being
b f i
re
b
d
days prior to their effective date, unless the
Attorney General determines immediate ac-
tion is required and notifies the committees
immediately of such minimization proce-
dures and the reason for their becoming ef-
fective immediately.
(2) An electronic surveillance authorized
by this subsection may be conducted only
in accordance with the Attorney General's
certification and the minimization proce-
dures adopted by him.
(3) With respect to electronic surveillance
authorized by this subsection, the Attorney
General may direct a specified communica-
tion 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 mini-
mum of interference with the services that
such carrier is providing its customers; and
(B) maintain under security procedures
approved by the Attorney General and the
Director of Central Intelligence any records
concerning the surveillance or the aid fur-
nished which such carrier wishes to retain.
The Government shall compensate, at the
prevailing rate, such carrier .for furnishing
such aid.
(b) Applications for a court order under
this title are authorized if the President has,
by written authorization, empowered the At-
torney General to approve applications to a
United States district court having jurisdic-
tion 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 sur-
veillance of a foreign power or an agent of
a foreign power for the purpose of obtain-
ing foreign intelligence information, except
that the court shall not have jurisdiction to
grant any order approving electronic surveil-
lance directed solely as described in para-
graph (1) (A) of subsection (a) unless such
surveillance may involve the acquisition of
communications of any United States person.
, y a o
e use
used, or is about to
5-
power or an agent of a foreign power;
(5) a statement of the proposed minimi-
zation 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 Secu-
rity Affairs and 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 intelli-
gence information;
(B) that the purpose of the surveillance
is to obtain foreign intelligence information;
(C) that such information cannot reason-
ably be obtained by normal investigative
techniques;
(D) that designates the type of foreign
intelligence information being sought ac-
cording 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 tech-
niques;
(8) a statement of the means by which
the surveillance will, be effected;
(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 speci-
fied in the application, and the action taken
on each previous application;
(10) a statement of the period of time for
which the electronic surveillance is required
to be maintained, and if the nature of the
intelligence gathering is such that the ap-
proval of the use of electronic surveillance
SURISDICTION
SEC. 103. (a) The United ed States district under this title should not automatically
shall have The Unit tore district a terminate when the described type of infor-
courts EC
j p- mation has first been obtained, a description
plications for court orders under this title of facts supporting the belief that additional
and to issue orders under section 105 of this information of the same type will be obtained
title. thereafter; and
(b) Proceedings under this title shall be (11) whenever more than one electronic,
conducted as expeditiously as possible. If any mechanical or other surveillance device is to
application to the United States district used with respect to a particular proposed
court is denied, the court shall record the electronic surveillance, the coverage of the
reasons for that denial, and the reasons for devices involved and what minimization pro-
that denial shall, upon the motion of the cedures apply to information acquired by
party to whom the application was denied, each device.
be transmitted under seal to the United (b) Whenever the target of the electronic
States court of appeals. surveillance is a foreign power, as defined in
APPLICATION FOR AN ORDER section 101(a) (1), (2), or (3), and each of
SEC. 104. (a) Each application for awarder the facilities or places at which the sur-
approving electronic surveillance under this veillance is directed is owned, leased, or ex-
elusively used by that foreign power, the ap-
plication 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 tech-
niques and communications or other infor-
mation concerning United States persons
likely to be obtained as may be necessary
to assess the proposed minimization pro-
cedures.
(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 re-
quired by section 105.
ISSUANCE OF AN ORDER
SEC. 105. (a) Upon an application made
pursuant to section 104, the judge shall enter
an ex parts order as requested or as modified
approving the electronic surveillance if he
finds that-
(1) the President has authorized the At-
torney General to approve applications for
electronic surveillance for foreign intelli-
gence 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 be-
lieve that-
(A) the target of the electronic surveil-
lance 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 surveillance is directed is
being used, or is about to be used, by a for-
eign power or an agent of a foreign power;
(4) the proposed minimization procedures
meet the definition of minimization proce-
dur~~ees under section 101 (h); and
(5) the application which has been filed
contains all statements and certifications re-
quired by section 104 and, if the- target is a
United States person, the certification or
certifications are not clearly erroneous on
the basis of the statement made under sec-
tion 104(a) (7) (E) and any other informa-
tion furnished under section 104(d)..
(b) An order approving an electronic sur-
veillance under this section shall-
(1) specify-
(A) the identity, if known, or a descrip-
tion of the target of the electronic surveil-
lance;
(B) the nature and location of each of the
facilities or places at which the electronic
surveillance will be directed;
(Cl) 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 approved; and
(F) whenever more than one electronic,
mechanical, or other surveillance device is to
be used under the order, the authorized cov-
erage of the devices involved and what mini-
mization procedures shall apply to informa-
tion subject to acquisition by each device;
and
(2) direct-
(A) that the minimization procedures be
followed;
(B) that, upon the request of the ap-
plicant, a specified communication or other
common carrier, landlord, custodian, or other
specified person furnish the applicant forth-
with any and all information, facilities, or
technical assistance necessary to accomplish
the electronic surveillance unobtrusively and
in such manner as will protect its secrecy
and produce a minimum of interference
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with the services that such carrier, land- when the application for the order is denied, of the Attorney General under security pro-
lord, custodian, or other person is providing or after the expiration of twenty-four hours cedures approved by the Director of Central
that target of electronic surveillance; from the time of authorization by the Attor- Intelligence.
(C) that such carrier, landlord, custodian, ney General, whichever. is earliest. In the ' USE OF INFORMATION
or other person maintain under security event that such application for approval is SEC. 106. (a) Information acquired from
procedures approved. by the Attorney Gen- denied, or in any other case where the elec- an electronic surveillance conducted pursu-
eral and the Director of Central Intelli- tronic surveillance is terminated and no or- ant to this title concerning any United States
gence any records concerning the surveil- der is issued approving the surveillance, no person may be used and disclosed by Fed-
lance or the aid furnished that such person Information obtained or evidence derived eral officiers and employees without the con-
wishes to retain; and from such surveillance shall be received in sent of the United States person only in
(D) that the applicant compensate, at evidence or otherwise disclosed in any trial, accordance with the minimization proce-
the prevailing rate, such carrier, landlord, hearings, or other proceeding in or before any dures required by this title. No otherwise
custodian, or other person for furnishing court, grand jury, department, office, agency, privileged communication obtained in ac-
such aid. regulatory body, legislative committee, or cordance with, or in.violation of, the provi-
(c) Whenever the target. of the electronic other authority of the United States, a State, sions of this title shall lose its privileged
surveillance is a foreign power, as defined or political subdivision thereof, and no in- character. No information acquired from an
in section 101(a) (1), (2), or (3), and each formation concerning any United States per- electronic surveillance pursuant to this title
of the facilities or places at which the sur- son acquired from such surveillance shall may be used or disclosed by Federal officers
veillance is directed is owned, leased,-or ex- subsequently be used or disclosed in any or employees except for lawful purposes.
clusively used by that foreign power, the other manner by Federal officers or employees (b) No information acquired pursuant to
order need not contain the information re- without the consent of such person, except this title shall be disclosed for law enforce-
quired by subparagraphs (C), (D), and (F) with the approval of the Attorney General if ment purposes unless such disclousre is ac-
of subsection (b) (1), but shall generally de- the information may indicate a threat of companied by a statement that such infor-
scribe the information sought, the eom- death or serious bodily harm to any person. mation, or any information derived there-
municatiorfs or activities to be subjected to A denial of the application made under this from, may only be used in a criminal pro-
the surveillance, and the type,of electronic subsection may be reviewed as provided in ceeding with the advance authorization of
surveillance involved, including whether section 103.
physical entry is required. (f) Notwithstanding any other provision the Attorney When General.
the elGovernment intends
(d) (1) An order issued under this section of this title, officers, employees, or agents of enter into to evidence or
dis-
may approve an electronic surveillance for the United States are authorized In the nor- close lose trial, otherwise use o dis-
in any ore any y hearing oour d , other proceed-
the period necessary to achieve its purpose, mal course of their official duties to conduct Ing In or before a
the for ninety days, whichever is less, except electronic surveillance not targeted against agency, regulatory , or de other her , authority
that an order under this section shall ap- the communications of any particular person of the United States, against an ty
prove an electronic surveillance targeted or persons, under procedures approved by the , aga aggrieved
derived
against a foreign power, as defined in sec- Attorney General, Solely to- from person do many electronic information surveillance
tion 101(a) (1), (2), or. (3), for the period (1) test the capability of electronic equip- grieved pursuant tnce obtained of or that ao-
specified in the application or for one year, ment, if- grieved person puernnt to tae authori ty o
whichever is less. (A) it is not reasonable to obtain the this title, the Government shall, or to the
time ing, or other proceeding at a
st
(2) Extensions of an order issued under consent of the persons incidentally subjected reasonable hearing,
this title may be granted on the same basis to the surveillance; close e or sinformation prior rn effort
or submit
as an original order upon an application for (B) the test is limited in extent and dura- close
evidence, notify the aggrieved person It In h
an extension and new findings made in the tion to that necessary to determine the ca- and the court or notify
other authority in which
same manner as required for an original pabuity of the equipment; and the e Information is to be disclosed cor used
the order, except that'an extension of an order (C) the contents of any communication
so use the such informGovernmentationintends to so disclose
under this chapter for a surveillance targeted acquired are retained and used only for the or that
oWhenever information.
against a foreign power, as defined in sec- purpose of determining the capability of the (d)
sub-
tion 101(a) (4), (6), or (6), may be for a equipment, are disclosed only to test per- division thereof of any intends State o enter political sub-
period not to exceed one year if the judge sonnel, and are destroyed before or immedi- deente or theii
in any
finds probable cause to believe that no com- ately upon completion of the teat; dence otherwise use or r disclose in any
municatfon of any individual United States (2) determine the existence and capability fore foe het , , other pe, offi gcerin o,
person will be acquired during the period. of electronic surveillance equipment being any c couou rt, department, offi, age enccyy,
(3) At the end of the period of time for used by persons not authorized to conduct regulatory body, or other authority of a
which electronic surveillance is. approved by electronic surveillance, If- State or a political subdivision thereof,
an order or an extension, the judge may - (A) it is not reasonable to obtain the obtained d an or derived from person an any information
electronic sort
assess compliance with the minimization consent of persons incidentally subjected to aggrieved
procedures by reviewing the circumstances the surveillance; veillance of that aggrieved person pursuant
under which information concerning United (B) such electronic surveillance is limited to the e authority of this title, the State or
au-
States persons was acquired, retained, or in extent and duration to that necessary to the political , the e thereof court shall other notify
disseminated. determine the existence and capability of the aggrieved ed person, rsoonn, information is to be
(e) Notwithstanding any other provision such equipment; and discloysed in used, a the
of this title, when the Attorney General rea- disclosed and the he Attorney General
sonably determines that-. (C) any information acquired by such sur- that the State or political subdivision thereof
- veillance is used only to enforce chapter 119 intends to so disclose or so use such infor-
(1) an emergency situaion exists with re- of title 18, United States Code, or section 805 mation.
spect to the employment of electronic sur- of the Communications Act of 1934, or to
veillance to obtain. foreign intelligence in- protect information from unauthorized sur- (e) Any person against whom evidence
obtained or derived from an electronic sur-
formation before an order authorizing such veillance; or
veilla he
introduced aggrieved person
surveillance can with due diligence be ob- (3) train intelligence personnel is in the use is to nee to which , is an
tamed; and be, or has been, or otherwise
of electronic surveillance equipment, if- used or disclosed in any trial, hearing, or
(2) the factual basis for issuance of an or- (A) it is not reasonable to-
der under this. title to approve such surveil- (i) obtain the consent of the persons in- other proceeding in or before any court,
lance exists; cidentally subjected to the surveillance; department, officer, agency, regulatory body,
he may authorize the emergency employment (ii) train persons in the course of surveil- or other authority of the United States, a
of electronic surveillance if a judge having lances otherwise authorized by this title; or moveaet to , or a eb t may political ,
jurisdiction under section 103 is informed by (Iii) train persons in the use of such equip- move suppress press the e evide videnc ce o obtaain intb ed or
electronic surveillance on
such
the Attorney General or his designee at the ment without engaging in electronic surveil- de
the grounds from that-
that-
time of such authorization that the decision lance; the derived
(1) the information was unlawfully ac-
has been made to employ emergency elec- (B) such electronic surveillance is limited quired; or
tronic surveillance and if an application in in extent and duration to that necessary to (2) the surveillance was not made in con-
accordance with this title is made to that train the personnel in the use of the equip-. fortuity with an order of authorization or
judge as soon, as practicable, but not more ment; and approval.
than twenty-four hours after the Attorney (C) no contents of any communication ac-
General authorizes such surveillance. If the quired are retained or disseminated for any Such a motion shall be made before the
Attorney General authorizes such emergency purpose, but are destroyed as soon as'rea- trial, hearing, or other proceeding unless
employment of electronic surveillance, he sonably possible. there was no opportunity to make such a
shall require that the minimization proce- (g) Certifications made by the Attorney motion or the person was not aware of the
dures required by this title for the issuance General pursuant to section 102(a) and ap- grounds of the. motion.
of a judicial order be followed. In the absence plications made and orders granted under (f) Whenever a court or other authority
of a judicial order approving such electronic this title shall be retained for a period of is notified pursuant to subsection (c) or
surveillance, the surveillance shall terminate at least ten years from the date of the ap- (d), or whenever a motion is made pursu-
when the information sought is obtained, plication and shall be stored at the direction ant to subsection (e) and the Government
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eOnoedes that information obtained or
derived from an electronic surveillance pur-
suant to the authority of this title as to
which the moving party Is an aggrieved per-
eon is to be, or has been,, introduced or
otherwise used or disclosed in any trial,
hearing, or other proceeding, the Govern-
ment may make a motion before the 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 surveil-
lance. In determining the lawfulness of the
surveillance, the Court shall, notwithstand-
ing any other law, if the Attorney General
files an affidavit under oath with the court
that disclosure would harm the national
security of the United States or compromise
foreign intelligence sources and methods, re-
view in camera the application, order, and
such other materials relating to the surveil-
lance as may be necessary to determine
whether the surveillance of the aggrieved
person was lawfully authorized and con-
ducted. In making this determination, the
court may disclose to the aggrieved person,
under appropriate security procedures and
protective orders, portions of the applica-
tion, 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 informa-
tion obtained from electronic surveillance
pursuant to the authority of this title, and
the court or other authority determines that
the moving party is an aggrieved person, if
the Attorney General files with the United
States court of appeals an affidavit under
oath that an adversary hearing would harm
the national security or compromise foreign
intelligence sources and methods and that
no information obtained or derived from an
electronic surveillance pursuant to the au-
thority of this title has been or is about to
be used by the Government in the ease be-
fore 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 cam-
era 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 determina-
tion, the court of appeals shall disclose, un-
der appropriate security procedures and pro-
tective orders, to the aggrieved person or his
attorney portions of the application, order,
or other materials relating to the surveil-
lance only if necessary to afford due process
to the aggrieved person.
(h) 1f the court pursuant to subsection
(f) or the court of appeals pursuant to sub-
section (g) determines the surveillance was
not lawfully authorized and conducted, it
shall, in accordance with the requirements
of the law, suppress the evidence which was
unlawfully obtained or derived from elec-
tronic surveillance of the aggrieved person
or otherwise grant the motion of the ag-
grieved person. If the court pursuant to sub-
section (f) or the court of appeals pursuant
to subsection (g) determines the surveil-
lance was lawfully authorized and con-
ducted, it shall deny the motion of the ag-
grieved person except to the extent that due
process requires discovery or disclosure.
(1) Orders granting or denying motions or
requests under subsection (h), decisions
under this section as to the lawfulness of
electronic surveillance, and, absent a finding
of unlawfulness, orders of the district court
or court of appeals granting or denying dis-
closure 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 court of appeals and the Supreme Court.
(j) In circumstances involving the un-
intentional acquisition by an electronic,
mechanical, or other surveillance device of
the contents of any radio communication,
under circumstances in which a person has a
reasonable expectation of privacy and a war-
rant 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 de-
stroyed upon recognition, unless the Attor-
ney General determines that the contents
may indicate a threat of death or. serious
bodily harm to any person.
(k) If an emergency employment of elec-
tronic surveillance is authorized under sec-
tion 105(e) and a subsequent order approv-
ing 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 discrelbibn it is In the inter-
est 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 infor-
mation 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 sus-
pended for a period not to exceed ninety
days. Thereafter, on a further ex parts show-
ing 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 approv-
ing electronic surveillance under this title;
and
(b) the total number of such orders
and extensions either granted, modified, or
denied.
CONGRESSIONAL OVERSIGHT
SEC. 108. (a) On a semiannual basis the
Attorney General shall fully inform the
House Permanent Select Committee on In-
telligence and the Senate Select Committee
on Intelligence concerning all electronic sur-
veillance under this title. Nothing in this
title shall be deemed to limit the authority
and responsibility of those committees to
obtain such additional information as they
may need to carry out their respective func-
tions and duties.
(b) The Permanent Select Committee on
Intelligence of the House of Representatives
and the Select Committee on Intelligence of
the Senate may periodically review the in-
formation provided under subsection (a). If
either such committee determines that an
electronic surveillance of a United States per-
son under this title has produced no for-
eign intelligence information and that the
disclosure of the fact of such surveillance to
such United Stataes. person would not harm
the national security, Such committee shall
inform such person of the fact of such sur-
veillance, and that no foreign intelligence
information was derived from such surveil-
lance.
PENALTIES
SEC. 109. (a) OFFENSEf--A person is guilty
of an offense if he intentionally engaged in
electronic surveillance under color of law
except as authorized by statute.
(b) DEFENsE.-It Is a defense to a prosecu-
tion under subsection (a) that the de-
fendant was a law enforcement or investiga-
tive officer engaged in the course of his of-
ficial duties and the electronic surveillance
was authorized by and conducted pursuant to
a seach warrant or court order of a court of
competent jurisdiction.
(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.
(d) JURISDICTION.-There is Federal juris-
diction 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.
CIVIL LIABILITY
SEC. 110. CIVIL ACTION -An aggrieved per-
son, other than a foreign power or an agent
of a foreign power, as defined in section 101
(a) or (b) (1) (A), respectively, who has been
subjected to an electronic surveillance or
whose communication has been disseminated
or used in violataion of section 109 shall have
a cause of action against any person who
committed such violation and shall be en-
titled 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) reasonable attorney's fees and other
investigation and litigation costs reasonably
incurred.
AUTHORIZATION DURING TIME OF WAR
Notwithstanding any other law, the Presi-
dent, through the Attorney General, may au-
thorize electronic surveillance without a
court order under this title to acquire foreign
intelligence information for periods up to one
year during a period of war declared by the
Congress.
TITLE II-CONFORMING AMENDMENTS
AMENDMENTS TO CHAPTER 119 OF TITLE 18,
UNITED STATES CODE
SEC. 201. Chapter 119 of title 18, United
States Code, is amended as follows:
(a) Section 2511(2) (a) (ii) is amended to
read as follows:
"(ii) Notwithstanding any other law, com-
munication common carriers, their officers,
employees, and agents, landlords, custodians,
or other persons, are authorized to provide
information, facilities, or technical assist-
ance to persons authorized by law to inter-
cept wire or oral communications or to con-
duct electronic surveillance, as defined in
section 101 of the Foreign Intelligence Sur-
veillance Act of 1978, if the common carrier,
its officers, employees, or agents, landlord,
custodian, or other specified person, has been
provided with-
"(A) a court order directing such assist-
ance 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 Genera) 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, facilities,
or technical assistance Is authorized and
specifying the information, facilities, or
technical assistance required. No communi-
cation 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
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person has been furnished an order or certi-
fication 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 prose-
cuting attorney of a State or any political
subdivision of a State, as may be appropri-
ate. 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 pro-
viding information, facilities, or assistance in
accordance with the terms of an order or cer-
tification under this subparagraph.".
(b) Section 2511(2) is amended by adding
at the end thereof the following new provi-
sions:
"(e) Notwithstanding any other provision
of this title or section 605 or 606 of the Com-
munications Act of 1934, it shall not be un-
lawful for an officer, employee, or agent of
the United States in the normal course of his
official duty to conduct electronic surveil-
lance, as defined in section 101 of the For-
eign Intelligence Surveillance Act of 1978, as
authorized by that Act.
"(f) Nothing contained in this chapter,
or section 605 of the Communications Act
of 1934, shall be deemed to affect the acqui-
sition by the United States Government of
foreign intelligence information from in-
ternational or foreign communications by a
means other than electronic surveillance as
defined in section 101 of the Foreign Intel-
ligence Surveillance Act of 1978, and proce-
dures in this chapter and the Foreign Intel-
ligence Surveillance Act of 1978 shall be the
exclusive statutory means by which electronic
surveillance, as defined in section 101 of
such Act, and.the interpretation of domestic
wire and oral communications may be con-
A..,,4- A "
AUTHORIZING THE CLERK TO MAKE
CORRECTIONS IN ENGROSSMENT
OF H.R. 7308
Mr. BOLAND. Mr. Speaker, I ask
unanimous consent that the Clerk may
be authorized to make any necessary cor-
rections in section numbers, cross refer-
ences, and punctuation in the engross-
ment of the bill, H.R. 7308.
The SPEAKER pro tempore. Is there
objection to the request of the gentle-
man from Massachusetts?
There was no objection.
APPOINTMENT OF CONFEREES ON
H.R. 6536, DISTRICT OF COLUMBIA
RETIREMENT REFORM ACT
Mr. DIGGS. Mr. Speaker, I ask unani-
mous consent to take from the Speaker's
table the bill (H.R. 6536) to establish an
actuarially sound basis for financing re-
tirement benefits for policemen firemen,
teachers, and judges of the District of
Columbia and to make certain changes
in such benefits, with a Senate amend-
ment thereto, disagree to the Senate
amendment, and request a conference
with the Senate thereon.
, The SPEAKER pro tempore. Is there
objection to the request of the gentleman
from Michigan?
Mr. DERWINSKI. Mr. Speaker, re-
serving the right to object, may I ask the
gentleman from Michigan if this proce-
(c) section 2511(3) is repealed. dure has been discussed with the rank-
(d) Section 2518(1) is amended by in- ing minority member of the committee.
serting "under this. chapter" after "oommu- Mr. DIGGS. If the gentleman will
nication". yield, it has, and I have the recom-
(e) Section 2518(4) is amended by insert- _ mended conferees from the minority
ing "under this chapter" after both appear- side.
ances "wire 5 6 (9) communication".
(f) Section (f) S2616(9) is amended by strik- Mr. DERWINSKI. Mr. Speaker, I with-
ing out "intercepted" and inserting "inter- draw my reservation of objection. -
cepted pursuant to this chapter" after The SPEAKER. pro tempore. Is there
"communication". objection to the request of the gentle-
(g) Section 2518(10) is amended by strik-
ing out "intercepted" and inserting "inter-
cepted pursuant to this chapter" after the none, , and, without objection, appoints
cs,
first appearance of "oominunicatiop"
(h) Section 2519(3) is amended by in- DELLUMS, FAUNTROY, MAZZOLI, MCKINNEY,
serting "pursuant to this chapter" after and WHALEN.
"wire or oral communications" and after
" There was no objection,
ranted or deni
d"
g
e
.
TITLE III-EFFECTIVE DATE
EFFECTIVE DATE
SEC. 301. The provisions of this Act and the HOUSE CONCURRENT RESOLU-
amendments made hereby shall become effec- TION 683, REVISING CONGRES-
tive upon the date of enactment of this Act, SIONAL BUDGET FOR THE U.S.
except that any electronic surveillance ap-
proved by the Attorney General to gather GOVERNMENT FOR FISCAL YEAR
foreign intelligence information shall not 1979
be deemed unlawful for failure to follow the Mr. GIAIMO. Mr. Speaker, I ask
procedures of this Act, if that surveillance is
terminated or an order approving that sur- unanimous consent to take from the
veillance is obtained' under title I of this Speaker's table the concurrent resolution
Act within ninety days following such date (H. Con. Res. 683) revising the congres-
of enactment. sional budget for the U.S. Government
Amend the title so as to read: "An act for the fiscal year 1979, with a Senate
to authorize electronic surveillance to ob-
tain foreign intelligence information disagree to the Sen-
The motion was agreed to, am amendment, and request a conler-
The Senate bill was ordered to be read . ence with the Senate thereon.
a third time, was read the third time, and The SPEAKER pro tempore. Is there
passed, objection to the request of the gentleman
The title was amended so as to read: from Connecticut? The Chair hears none,
"A bill to authorize electronic silrvejl- and, without objection, appoints the fol-
lance to obtain foreign intelligence lowing conferees: Messrs. GIA=o,
information.". WRIGHT, LEGGETT, MITCHELL of Maryland,
A motion to reconsider was laid on 1 BURLESON of Texas, DERRICx, OBEY,
BIMO
TJI
L
REQUEST TO CONCUR IN SENATE
AMENDMENTS TO H.R. 1337,
AMENDING THE INTERNAL REVE-
NUE CODE OF 1954 WITH RESPECT
TO EXCISE TAX ON CERTAIN
TRUCKS, BUSES, TRACTORS, ET
CETERA
Mr. CORMAN. Mr. Speaker, I ask
unanimous consent to take from the
Speaker's table the bill (H.R. 1337) to
amend the Internal Revenue Code of
1954 with respect to excise tax on cer-
tain trucks, buses, tractors, et cetera,
with Senate amendments thereto, con-
cur in the Senate amendment to the
title of the bill, and concur in the Senate
amendment to the text of the bill with
amendments.
The Clerk read the title of the bill.
The Clerk read the. Senate amend-
ments, as follows:
Strike out all after the enacting clause
and insert:
SECTION 1. ExciSE TAX ON CERTAIN TRucxs,
BUSES, TRACTORS, ETC.
(a) IN GENERAL.-Paragraph (1) of sec-
tion 4216(b) of the Internal Revenue Code
of 1954 (relating to constructive sale price)
is amended by inserting after the second sen-
tence thereof the following new sentence:
"In the case of an"article the sale of which
is taxable under section 4061(a) and which
is sold at retail, the computation under the
first sentence of this paragraph shall be a
percentage (not greater than 100 percent)
of the actual selling price based on the high-
est price for which such articles are sold by
manufacturers and producers in the ordi-
nary course of trade (determined without
regard to any individual manufacturer's or
producer's cost) ".
(b) CONFORMING AMENDMENT.-The sec-
ond sentence of paragraph (1) of such sec-
tion 4216(b) is amended by inserting "(other
than an article the sale of which is taxable
under section 4061(a) )" after "sold at re-
tail".
(c) EFFECTIVE DATE.-The amendments
made by this section shall apply to articles
sold by the manufacturer or producer on or
after the first day of the first calendar quar-
ter beginning 30 days or more after the date
of enactment of this Act. -
SEC. 2. HOME PRODUCTION OF BEER AND WINE.
(a) EXEMPTION FROM TAE ON WINE.-Sec- -
tion 5042(a) (2) of the Internal Revenue
Code of 1964 (relating to production of wine
for personal consumption) is amended to
read, as follows: -
"(2) WINE FOR PERSONAL OR FAMILY USE:
Subject to regulations prescribed by the Sec-
retary-
"(A) EXEMPTION.-Any adult may, with-.
out payment of tax, produce wine for per-
sonal or family use and not for sale.
"(B) LIMITATION.-The aggregate amount
of wine exempt from tax under this para-
graph with respect to any household shall
not exceed-
"(1) 200 gallons per calendar year if there
are 2 or more adults in such household, or
"(ii) 100 gallons per calendar year if there
is only 1 adult in such household.
"(C) ADULTS.-For purposes of this para-
graph, the term 'adult' means an individual
who has attained 18 years of age, or the
minimum age (if any) established by law
applicable in the locality in which the house-
hold is situated 'at which wine may be sold
to individuals, whichever is greater.
(b) EXEMPTION FROM TAX ON BEER.-
(1) IN GENERAL.-Section 5053 of such Code
(relating to exemptions from excise tax on
beer) is amended by redesignating, subsec-
ATTA, CONABLE, DUNCAN tion (e) as subsection (f) and by inserting
N,
INETA,
the table.
of Ore after subsection (d) the following new sec-
A similar, House bill (H.R. 7308) was gOn, and REGULA. tion:
laid on the table. There was no objection. "(e) BEER FOR PERSONAL OR FAMILY USE.-
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Subject to regulations prescribed by the Sec-
retary, any adult may, without payment of
tax, produce beer for personal or family use
and not for sale. The aggregate amount of
beer exempt from tax under this subsection
with respect to any household shall not ex-
ceed-
"(1) 200 gallons per calendar year if there
are 2 or more adults in such household, or
"(2) 100 gallons per calendar year if there
is only 1 adult in such household.
For purposes of this subsection, the term
'adult' means an individual who has attained
18 years of age or the minimum age, if any,
established by law applicable in the locality
in which the household is situated for in-
dividuals to whom beer may be sold, which-
ever is greater."
(2) ILLEGALLY PRODUCED BEER:
(A) Section 5051 of such Code (relating to
imposition and rate of tax) is amended by
adding at the end thereof the following new
subsection:
"(C) ILLEGALLY PRODUCED BEER. The pro-
duction of any beer at any place in the
United States shall be subject to tax at the
rate prescribed in subsection (a) and such
tax shall be due and payable as provided in
section 5054 (a) (3) unless-
"(1) such beer Is produced in a brewery
qualified under the provisions of subchap-
ter G, or
"(2) such production is exempt from tax
under section 5063(e) (relating to beer for
personal or family use).".
(B) Section 5054(a)(3) of such Code
(relating to illegally produced beer) is
amended to read as follows:
"(3) ILLEGALLY PRODUCED REEK. The tax on
any beer produced in the United States shall
be due and payable immediately upon pro-
duction unless-
"(A) such beer is produced in a brewery
qualified under the provisions of subchapter
G, or
r "(B) such production is exempt from tax
under section 5053(e) (relating to beer for
personal or family use).".
(3) DEFINITION OF BREwER.-Section 5092
of such Code (defining brewer) is amended
to read as follows:
"SEC. 5092. DEFINITION OF BREWER.
"Every person who brews beer (except a
person who produces only beer exempt from
tax under section 5053 (e)) and every per-
son who produces beer for sale shall be
deemed to be a brewer.". '
(4) EXEMPTION FROM CERTAIN PROVISIONS
RELATING TO DISTILLING MATERIALS.-Section
5222(a) (2) (C) of such Code (relating to cer-
tain exemptions) is amended by striking out
or" and inserting in lieu " thereof "or
5053(e); or".
(5) PENALTY FOR UNLAWFUL PRODUCTION OF
BEER.
(A) Section 5674 of such Code (relating
to penalty for unlawful removal of beer) Is
amended to read as follows:
'SEC. 5674. PENALTY FOR UNLAWFUL PRODUC-
TION.OR REMOVAL OF BEER.
"(a) UNLAWFUL PRODUCTION.-Any person
who brews beers or produces beer shall be
fined not more than $1,000, or imprisoned
not more than 1 year, or both, unless such
beer is brewed or produced in a brewery
qualified under subchapter G or such produc-
tion is exempt from tax under section 5053 (e)
(relating to beer for personal or family use).
"(b) UNLAWFUL REMOvAL.-Any brewer or
other person who removes or in any way aids
in the removal from any brewery of beer
without complying with the provisions of this
chapter or regulations issued pursuant there-
to shall be fined not more than $1,000, or
imprisoned not more than 1 year, or both.".
(B) The item relating to section 5674 in the
table or sections for part III of subchapter J
of chapter 51 of such Code is amended to
read as follows:
"Sec. 5674. Penalty for unlawful production
or removal of beer.".
(c) EFFECTIVE DATE: The amendments
made by this section shall take effect on the
first day of the first calendar month which
begins more than 90 (lays after the date of the
enactment of this Act.
SEC. 3. REFUNDS To BE MADE TO AERIAL APPLI-
CATORS IN CERTAIN CASES.
(a) ENTITLEMENT. OF AERIAL APPLICATORS TO
REFUND OF GASOLINE TAX IN CERTAIN
CAsEs.-Subsection (c) of section 6420 of
the Internal Revenue Code of 1954 (defining
use on a farm for farming purposes) is
amended by redesignating paragraph (4) as
paragraph (5) and by inserting after para-
graph (3) the following new paragraph:
"(4) CERTAIN FARMING USE OTHER THAN BY
OWNER, ETC.-In applying paragraph (3) (A)
to a use on a farm for any purpose described
in paragraph (3) (A.) by any person other
than the owner, tenant, or operator of such
farm-
.,(A) the owner, tenant, or operator of
such farm shall be treated as the user and
ultimate purchaser of the gasoline, except
that
"(B) if the person so using the gasoline
is an aerial applicator who is the ultimate
purchaser of the gasoline and the person
described in subparagraph (A) waives (at
such time and in such form and manner as
the Secretary shall prescribe) his right to be
treated as the user and ultimate purchaser
of the gasoline, then subparagraph (A) of
this paragraph shall not apply and the aerial
applicator shall be treated as having used
such gasoline on a farm for farming pur-
poses." ;
(b) ENTITLEMENT OF AERIAL APPLICATORS
TO REFUND OF SPECIAL FUELS TAX IN CERTAIN
CASES.-The second sentence of subsection
(c) of section 6427 of such Code (relating
to use for farming purposes) is amended to
read as follows: "For purposes of this sub-
section, if fuel is used on a farm by any
person other than the owner, tenant, or
operator of such farm, the rules of para-
graph (4) of section 6420(c) shall be applied
(except that 'liquid taxable under section
4041' shall be substituted for 'gasoline' each
place It appears in such paragraph (4).'
(C) CONFORMING AMENDMENT.-Subpara-
graph (A) of section 8420(c)(3) of such
Code is amended by striking out "except
that" and all that follows down through
the semicolon at the end of such subpara-
graph (A).
(d) EFFECTIVE DATE.-The amendments
made by the first section of this Act shall
take effect on the first day of the first calen-
dar quarter which begins more than 90 days
after the date of the enactment of this
Act.
SEC. 4. PARTIAL ROLLOVERS OF LUMP SUM
DISTRIBUTIONS.
(a) PARTIAL ROLLOVER PERMFITED.-Para-
graph (5) of section 402(a) of the Internal
Revenue Code of 1954 (relating to rollover
amounts) is amended to read as follows:
"(5) ROLLOVER AMOUNTS.
"(A) GENERAL RULE.-If the balance to the
credit of an employee in a qualified trust is
paid to him within his taxable year in a ter-
mination or discontinuance distribution or
in a lump sum distribution and he trans-
fers all or a portion of the total taxable
amount (as defined in subsection (e) (4)
(D)) of the distribution to an eligible
rollover source, then the amount "transferred
shall not be included in gross income.
"(B) DEFINITIONS.-For purposes of this
paragraph- -
"(i) QUALIFIED TRUST.-The term 'qual-
ified trust' means an employees' trust de-
scribed in section 401(a) which is exempt
from tax under section 601(a) .
(11) TERMINATION OR DISCONTINUANCE
DISTRIBUTION.-The term 'termination or dis-
continuance distribution' means a distribu-
tion on account of a termination of the
plan of which a qualified trust is a part,
or, in the case of a profit-sharing or stock
bonus plan, a complete discontinuance of
contributions under the plan.
"(Iii) LUMP SUM DISTRIBUTIONS.-The
term 'lump sum distribution' means a dis-
tribution described in subparagraph (A) of
subsection (e) (4) (determined without re-
gard to subparagraph (B) of that subsec-
tion).
"(iv) ELIGIBLE ROLLOVER SOURCE.-The term
'eligible rollover source' means-
"(I) an individual retirement account de-
scribed in section 408 (a),
"(II) an individual retirement annuity
described in section 408(b) (other than an,
endowment contract),
"(III) a retirement bond described in sec-
tion 409,
"(IV) a qualified trust, or
"(V) an annuity plan described in section
403(a).
",(C) SPECIAL RULES.-
"(I) TRANSFER TREATED AS ROLLOVER CON-
TRIBUTIONS UNDER SECTION 408.-A transfer
described in subparagraph (A) to an eligible
rollover source described in subclause (I),
(II), or (III) of subparagraph (B) (iv) shall
be treated as a rollover contribution as de-_
scribed in section 408(d)-(3).
"(Ii) SELF-EMPLOYED INDIVIDUALS AND OWN-
ER-EMPLOYEES.-Qualified rollover sources de-
scribed in subclaiise (IV) or (V) of subpara-
graph (B) shall not be treated as qualified
rollover sources for transfers of a distribution
If any part of the distribution is attributable
to a trust forming part of a plan under which
the employee was an employee within the
meaning of section 401(c)(1) at the time
contributions were made on his behalf under
the plan.
"(iii) PROPERTY ROLLED OVER MUST BE THE
PROPERTY RECEIVED.-Subparagraph (A) shall
not apply to a transfer of property other than
money unless the property transferred Is the
property which was received in the distri-
bution.
"(IV) TRANSFER MUST BE MADE WITHIN 60
DAYS OF RECEIPT.-Subparagraph (A) shall
not apply to any transfer of a distribution
made after the 60th day following the day
on which the employee received the property
distributed.".
(b) TAXATION OF PORTION EXCLUDED FROM
ROLLOVER: Paragraph (6) of section 402(a)
of such Code (relating to special rollover
rules) is amended-
(1) by striking out "For purposes of para-
graph (5) (A) (1) -" and inserting in lieu
thereof "For purposes of paragraph (5)-".
and
(2) by adding at the end thereof the fol-
lowing new subparagraph:
"(C) TAXATION OF NONROLLOVER PORTION:
If the total taxable amount of a distribution
described In paragraph (5) (A) exceeds the
amount transferred' in a transfer described
in such paragraph, then-
,,(I) subsection (e) and section 62(11)
shall not apply with respect to the distribu-
tion, and
"(ii) to the extent that the total taxable
amount of such distribution exceeds the
amount transferred, the excess shall be
treated as ordinary income (or loss)."
(c) SPECIAL RULE.-For the purpose of
applying the amendment made by subsec-
tion (a) of this section in the case of a
taxpayer whose attempt to comply with the
requirements of section 402(a) (5) of the
Internal Revenue Code of 1954 (relating to
rollover amounts) for a taxable year begin-
ning before the date of enactment of this
Act failed to meet the requirement of such
section that all property received in a dis-
tribution 'be transferred, the provisions of
such section (as amended by subsection (a) )
shall be applied by treating any transfer of
Approved For Release 2005/11/23 : CIA-RDP80SO1268A000500040005-0