FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000400010002-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 96
• Document Creation Date: December 19, 2016
• Document Release Date: September 14, 2005
• Sequence Number: 2
• Publication Date: March 14, 1978
• Content Type: REPORT

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Calendar No. 643
95TH CONaRESfioj SENATE REroRT
2D SESSION No. 95-701
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
MARCH 14, (legislative day, FEBRUARY 6), 1978.-Ordered to be printed
Mr. BAYH, from the Select Committee on Intelligence, submitted the
following
REPORT
together with
ADDITIONAL VIEWS
[To accompany S. 1566]
The Select Committee on Intelligence, to which was referred the bill
(S. 1566) to amend title 18, United States Code, to authorize applica-
tions fora court order approving .the use of electronic surveillance to
obtain foreign intelligence information, having considered the same,
reports favorably thereon with amendments and recommends that the
bill, as amended, do pass.
AMENDMENTS
On page 1, line 4, strike "1977", and insert in lieu thereof "1978".
1
On page 3, strike out all after line 5 through the end of line 19, and
insert in lieu thereof the following:
(A) any person, other than a United States person, who-
(i) acts in the United States as an officer or employee
of a foreign power;
or
hi
(ii) acts for or on behalf of a forein.power wch en-
the in clandestine intelligence activities contrary to the
interests of the United States, when the circumstances of
such person's presence in the United tates indicate that
such person may engage inn 8 activities in the United
States, or when such person knowingly aids or abets any
person in the conduct of such activities or conspires with
any person knowing that such person is engaged in such
activities;
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On page 3, strike out all after line 19 through line 23 on page 4, and
insert in lieu thereof the following :
(B) any person who-
(i) knowingly engages in clandestine intelligence
gathering activities for or on behalf of a foreign'power,
which activities involve or may involve n violation of the
criminal statutes of the United States;
(ii) pursuant to the direction of an intelligence service
or network of a foreign power, knowingly engages in any
other clandestine intelligence activities for or on behalf
of such foreign power, which activities involve or are
about to involve a violation of the criminal statutes of the
United States;
(iii) knowingly engages in sabotage or terrorism, or
activities which are or may be in preparation therefor, for
or on behalf of a foreign power;
(iv) knowingly aids or abets any person in the conduct
of activities described in subparagraph (B) (i) through
(iii) above, or conspires with any person knowing that
such person is engaged in activities described in subpara-
graph (B) (i) through (iii) above: Provided, That no
United States person may be considered an agent of a
foreign power solely upon the basis of activities protected
by the First Amendment to the Constitution of the
United States.
On page 5, strike out all after line 14 through line 15 on page 6, and
insert in lieu thereof :
(A) information which relates to, and if concerning a
United States person is necessary to, the ability of the United
States to protect itself against actual or potential attack or
other grave hostile acts of a foreign power or an agent,of a
foreign power;
(B) information with respect to a foreign power or foreign
territory which relates to, and if concerning a United States
person is necessary to-
(i) the national defense or the security of the Nation;
or
(ii) the successful conduct of the foreign affairs of the
United States; or
(C) information which relates to, and if concerning a
United States person is necessary to, the ability of the United
States to protect against-
' (i) sabotage or terrorism by a foreign power or an
agent of a foreign power, or
(ii) the clandestine intelligence activities of an intelli-
gence service or network of a foreign power or an agent
of a foreign power.
On page 8, line 8, strike the first comma and insert in lieu thereof
the word "and".
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On page 9, strike out all after line 2 through line 22, and insert in
lieu thereof the following:
and which are reasonably designed to insure that informa-
tion which relates solely to the ability of the United States to
provide for the national defense or security,of the Nation and
to provid4 for the conduct' of the foreign affairs of the United
States, under subparagraphs (B) and (C) above, shall not be
disseminated in a manner which identifies any United States
person, without such person's consent, unless such person's
identity is necessary to understand or assess the importance of
information with respect to a foreign power or foreign terri-
tory or such information is otherwise publicly available.
On page 10, line 6, after the word "powers", insert the following : "as
defined in section 2521 (b) (1) (A)-(E)."
On page 10, line 25, strike the words "each of whom," and insert in
lieu thereof the following : "who shall constitute a special court, each
member of which".
On page 12, insert after line 8 a new subsection as follows :
e designated under this section shall so
Each jud
d
g
(
)
serve for a maximum of seven years and shall not be eligible
for redesignation, provided that the judges first designated
under subsection (a) shall be designated for terms of from
one to seven years so that one term expires each year, and
that judges first designated under subsection (b) shall be
designated for terms of three, five, and seven years.
On page 12, strike lines 23 and 24, and insert in lieu thereof the
following :
(A) that the certifying official deems the information
sought to be foreign intelligence information;
On page 17, line 6, after the letter "(E) ", insert the following: "and
any other information furnished under section 2524(c) ".
On page 20, line 2, after the word "cause.", insert the following
new sentence: "At the end of the period of time for which an elec-
tronic surveillance is approved by an order or an extension issued
under this section, the judge may assess compliance with the minimi-
2,ation procedures required by this chapter."
On page 21, line 13, after the word "thereof", insert the following :
and no information concerning any United States person
acquired from such surveillance shall subsequently be used or
disclosed in any other manner by Federal officers or employ-
ees without the consent of such person, except with the ap-
proval of the Attorney General where the information
indicates a threat of death or serious bodily harm to any
person.
On page 21, line 22, after the letter "(F)", insert the following:
"and in accordance with the minimization procedures required by
this chapter,".
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On page 22, line 12, after the word "Government," insert the fol-
lowing : "of the United States, of a State, or of a political subdivision
thereof".
On page 26, insert after line 14 a new subsection as follows:
(g) In circumstances involving the unintentional acquisi-
tion, by an electronic, mechanical, or other surveillance device
of the contents of any radio communication, under circum-
stances in which a person has a reasonable expectation of pri-
vacy and a warrant would be required for law enforcement
purposes, and where both the sender and all intended re-
cipients are located within the United States, such contents
shall be destroyed upon recognition, except with the approval
of the Attorney General where the contents indicate a threat
of death or serious bodily harm to any person.
On page 26, insert after line 24 a new section as follows :
252$. Congressional Oversight.
(a) On a semiannual basis the Attorney General shall fully
inform the House Permanent Select Committee on Intelli-
gence and the Senate Select Committee on Intelligance con-
cerning all electronic surveillance under this chapter. Nothing
in this chapter 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
functions and duties.
(b) On or before one year after the effective date of this
chapter, and on the same day each year thereafter, the Select
Committee on Intelligance of the United States Senate shall
report to the Senate concerning the implementation of this
chapter. Said reports shall include but not be limited to an
analysis and recommendations concerning whether this chap-
ter should be (1) amended, (2) repealed, or (3) permitted
to continue in effect without amendment.
(c) In the event the Select Committee on Intelligence of
the United States Senate shall report that this chapter should
be amended or repealed, it shall report out legislation em-
bodying its recommendations within thirty calendar days,
unless the Senate shall otherwise determine by yeas and nays.
(d) Any legislation so reported shall become the pending
business of the Senate with time for debate equally divided
between the proponents and opponents and shall be voted on
within thirty calendar days thereafter, unless the Senate shall
otherwise determine by yeas and nays.
(e) Such legislation passed by the Senate shall be referred
to the appropriate committee of the other House and shall be
reported out by such committee together with its recommenda-
tions within thirty calendar days and shall thereupon become
the pending business of such House and shall' be voted upon
within three calendar days, unless such House shall other-
wise determine by yeas and nays.
(f) In the case of any disagreement between the two
Houses of Congress with respect to such legislation passed
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by both Houses, conferees shall make and file a report with
respect to such legislation within seven calendar days after
the legislation is referred to the committee of conference.
Notwithstanding any rule in either House concerning the
printing of conference reports in the record or concerning
any delay in the consideration of such reports, such reports
shall be acted on by both Houses not later than seven calendar
days after the conference report is filed. In the event the
conferees are unable to agree;within three calendar days they
shall report to their respective Houses in disagreement.
On page 29, line 17, after the number "2520.", insert the following
new sentence:
No communication .common carrier of officer, employee or
agent thereof shall disclose the existence of any interception
under this chapter or electronic surveillance, as defined in
chapter 120, with respect to which the common carrier has
been furnished either an order or certification under this sub-
paragraph, except as may otherwise be lawfully ordered.
On page 30, line 8, after the word "duty," insert the following :
"under procedures approved by the Attorney General".
On page 31, line 2, after the word "provided," insert the following :
that no particular United States person shall be intentionally tar-
geted for such purposes without his consent,".
On page.31, line 13, after the word "international," insert the words
"or foreign".
PURPOSE OF AMENDMENTS
The Committee on the Judiciary adopted several amendments to
S. 1566 designed to clarify and make more explicit the statutory intent,
to provide further safeguards for individuals subjected to electronic
surveillance pursuant to this new chapter, and to provide a detailed
procedure for challenging such surveillance, and any evidence derived
therefrom, during the course of a formal proceeding.
The purpose of the amendments adopted by the Select Committee
on Intelligence has been to clarify further the legislative intent and
to provide additional safeguards for persons who may be subjected to
electronic surveillance, including a criminal standard for surveillance
of U.S. citizens and resident aliens. Judicial procedures for issuing
court orders for foreign intelligence surveillance, as well as for mon-
itoring compliance with such orders, are described in greater detail.
An effort has also been made to strengthen protection against abuses
involving dissemination and use of information received through such
surveillance. Specific provisions requiring regular congressional over-
sight have been added.
Finally, the reported bill adds amendments to chapter 119 of title
18, United States Code (title III of the Omnibus Crime Control and
Safe Streets Act of 1968, Public Law 90--351, seetipn 802). These
amendments are technical and conforming in nature and are designed
to integrate certain provisions of chapters 119 and 120. A more detailed
explanation of the individual amendments is contained in the section-
by-section analysis of this report.
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HISTORY OF THE BILL.
The Foreign Intelligence Surveillance Act of 1977, S. 1566, was in-
troduced by Senator Kennedy on May 18, 1977 to provide a statutory
procedure to authorize applications for a court order approving the
use of electronic surveillance within the United States to obtain for-
eign intelligence information. The bill, cosponsored by seven other
Senators (Mr. Bayh, Mr. Eastland, Mr. Inouye, Mr. McClellan, Mr.
Mathias, Mr. Nelson, and Mr. Thurmond), was referred to and con-
sidered by the Committee on the Judiciary. That committee reported
the bill favorably on November 15, 1977; and it was referred to the
Select Committee on Intelligence.
S. 1566 has its origin in S. 3197, The Foreign Intelligence Surveil-
lance Act of 1976, 94th Congress, second session (1976). That legisla-
tion, also introduced by senator Kennedy, had the same broad, bi-
partisan support, including that of the Ford administration, as S. 1566
and was the subject of Senate hearings by both the Subcommittee on
Criminal Laws and Procedures of the Committee on the Judiciary and
the Select Committee on Intelligence, S. 3197 was reported favorably
by both Senate committees by a combined vote of 24 ayes and 2 nays,
but the session ended before the full Senate could act on the legisla-
tion.
S. 1566 picks up where S. 3197 left off. Hearings were held by the
Subcommittee on Criminal Laws and Procedures, chaired by Senator
Kennedy at the request of Senator McClellan. Hearings were also held
by the Subcommittee on Intelligence and the Rights of Americans,
chaired by Senator Bayh, and included executive session hearings to
consider classified information bearing upon the bill. Among those
testifying before one or both of these subcommittees were Attorney
General Griffin B. Bell; Director of the FBI Clarence M. Kelley;
Director of Central Intelligence Stansfield Turner; Secretary of De-
fense Harold Brown; John Shattuck and Jerry Berman of the Amer-
ican Civil Liberties Union ; Morton H. Halperin of the Center for
National Security Studies; Steven Rosenfeld of the Committee on
Federal Legislation of the Association of the Bar of the city of New
York; and David Watters of the American Privacy Foundation.
Broad-'based support was voiced for S. 1566 throughout the hear-
ings, with the administration indicating its support of the bill.
'S. 1566 as reported has been amended in several respects to respond
to the constructive criticisms and suggestions elicited in the hearings.
As amended, the bill was approved by the Select Committee on Intelli-
gence, 15-0, with a recommendation for favorable action.
The administration has supported the enactment of S. 1566 and sup-
ports its swift passage by the Senate. As Attorney General Bell. stated
in testifying in favor of the bill :
I believe this bill is remarkable not only in the way it has
been developed, but also in the fact that for the first time in
our society the clandestine intelligence activities of our Gov-
ernment shall be subject to the regulation and receive the posi-
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tive authority of a public law for all to inspect. President
Carter stated it very well 1n announcing this bill when he said
that "one of the most difficult tasks in a free society like our
own is the correlation between adequate intelligence to guar-
antee our Nation's security on the one hand, and the preser-
vation of basic human rights on the other." It isa very delicate
balance to strike, but one which is necessary in our society,
and a balance which cannot be achieved by sacrificing either
our Nation's security or our civil liberties. In my view this bill
strikes the balance, sacrifices neither our security nor our civil
liberties, and assures that the abuses of the past will remain
in the past and that the, dedicated and patriotic men and
women who serve this country in intelligence positions, often
under substantial hardships and even danger, will have the
affirmation of Congress that their activities are proper and
necessary.1
1. SUMMARY OF THE LEGISLATION
S. 1566 amends title 18, United States Code, by adding after chapter
119 a new chapter 120 entitled "Electronic Surveillance Within the
United States for Foreign Intelligence Purposes." The bill requires a
court order for electronic surveillance as defined therein conducted for
foreign intelligence purposes within the United States or targeted
against 'the international comunications of particular U.S. persons who
are in the United States. The bill establishes the exclusive means by
which such surveillance may be conducted. 'S. 1566 does not require a
court order for electronic surveillance abroad, and the bill does not
address the question whether the President has any constitutional
power to conduct electronic surveillance of a U.S. person abroad
without a court order to acquire foreign intelligence information, if
such power exists?
Under S. 1566 the Attorney General, upon the general authorization
of the President for the conduct of electronic surveillance within the
United States for foreign intelligence purposes, may authorize appli-
cations'to members of a special court for orders to conduct such surveil-
lance. Applications are to be, made to one of seven district judges pub-
licly designated by the Chief Justice of the United States to serve stag-
gered 7-year terms on a special court. Denials of such applications may
be appealed to a special three-judge court of review and ultimately to
the Supreme Court.
Approval of an application under the bill would require a finding by
the court that the target of the surveillance is a "foreign power" or an
"agent of a foreign power" and that the facilities or place at which the
1 Hearing before the Subcommittee on Criminal Laws and Procedures of the Senate
Committee on the Judiciary, Foreign Intelligence Surveillance At of 1977, 95th Cong., 1st
sess.. p. 13 (1977),
2 Further legislation may be needed to protect the rights of Americans abroad from
improper electronic surveillance by their Government. Such legislation should he considered
separately because the issues are different than those posed by electronic sur-
veillance within the United States. S. 2525, the National Intelligence Reorganization
and Reform Act of 1978. has been introduced by members of the Select Committee on
Intelligence to fill this gap. Title III of that bill would establish procedures for electronic
surveillance of Americans abroad.
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surveillance is to be directed are being used or are about to be used
by a foreign power or an agent of a foreign power. A "foreign power"
may include a foreign government, a faction of a foreign government,
a foreign-based terrorist group, a foreign-based political organization,
or an entity directed and controlled by a foreign government. An
"agent of a foreign power" includes non-resident aliens who act as
officers or employees of foreign powers or who act on behalf of foreign
powers which engage in clandestine intelligence activities contrary to
the interests of this country. U.S. persons meet the "agent of a foreign
power" criteria if they engage in certain activities on behalf of a
foreign power which involve or may involve criminal acts.
The court would also be required to find that procedures proposed in
the application adequately minimize the acquisition and retention, and
prohibit the dissemination, of information concerning U.S. persons
which does not relate to national defense, foreign affairs, or the ter-
rorist, sabotage, or clandestine, intelligence activities of a foreign
power. Additional limits are placed on the dissemination of informa-
tion relating solely to national defense or foreign affairs.
Finally, a certification or certifications must be made by the As-
sistant to the President for National Security Affairs or an executive
branch official or officials designated by the President from among
those executive officers with responsibilities for national security or de-
fense who are appointed by the President with the advice and consent
of the Senate. Those officials would be required to certify that
any information sought by the surveillance relates to, and if concern-
ing a U.S. person is necessary to, the national defense or the successful
conduct of foreign affairs of the United States or the ability of the
United States to protect against grave hostile acts or the terrorist,
sabotage, or clandestine intelligence activities of a foreign power. The
court would be required to review each certification for surveillance
of a U.S. person and to determine that the certification is not clearly
erroneous.
The court could approve electronic surveillance for foreign intel-
ligence purposes for a period of 90 days or, in the case of surveillance of
It foreign government, faction, or entity openly controlled by a foreign
government, for a period of up to 1 year. Any extension of the surveil-
lance beyond that period would require a reapplication to the court
and new findings as required for the original order.
Emergency surveillance without a court order would be permitted in
limited circumstances, but a court order must be obtained within
24 hours of the initiation of the surveillance.
S. 1566 requires annual reports to the Administrative Office of the
U.S. Courts and to the Congress of statistics regarding applications
and orders for electronic surveillance. The Attorney General is also re-
quired, on a semiannual basis, to inform fully the House Permanent
Select Committee on Intelligence and, the Senate Select Committee on
Intelligence concerning all electronic surveillance under the bill ; and
nothing in the bill'restricts the authority of those committees to obtain
further information related to their congressional oversight respon-
sibilities. The Senate committee is required to report annually to the
Senate on the implementation of the bill.
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The purpose of the Foreign Intelligence Surveillance Act is to pro-
vide legislative authorization and regulation for all electronic surveil-
lance conducted within the United States for foreign intelligence
purposes. It has long been recognized that foreign intelligence elec-
tronic surveillance, exempted from the warrant provisions of the
Omnibus Crime Control Act of 1968, could be subject to abuse. The re-
port of the Senate Select Committee to Study Governmental Opera-
tions With Respect to Intelligence Activities, issued in 1976, provided
firm evidence that foreign intelligence electronic surveillances in-
volved abuses and that checks upon the exercise of these clandestine
methods were clearly necessary.
The basic premise of the bill is that a court order for foreign intel-
ligence electronic surveillances. can be devised that is consistent with
the "reasonable search" requirements of the fourth amendment. The
Supreme Court has not ruled on the question of Fourth Amendment
standards for electronic surveillance of foreign powers and their
agents within the United States, although the Court in the Keith case
required a judicial warrant for domestic security surveillances not in-
volving foreign powers.3 Therefore, S. 1566 clarifies and advances the
development of the law on a subject where uncertainty now exists.
The electronic surveillance authorized and regulated by this bill
is designed to satisfy two broad types of intelligence requirements.
First, it provides a means for the collection of "positive" foreign in-
telligence to enable the Government to understand and assess the capa-
bilities, intentions, and activities of foreign powers. Second, it supplies
a technique for use in foreign counterintelligence investigations to
protect against clandestine intelligence activities, sabotage, and ter-
rorism by or on behalf of foreign powers. The standards and proce-
dures for electronic surveillance differ according to whether the pri-
mary purpose is collecting foreign intelligence or assisting foreign
counterintelligence and counterterrorism investigations.
A. Foreign intelligence
The primary targets for electronic surveillance to collect foreign
intelligence are "official" foreign powers: (1) foreign governments
or their components; (2) factions of foreign nations, not substantially
composed of U.S. persons; (3) entities which are openly acknowledged
by foreign governments to be under their direction and control. In-
formation acquired from the communications of these targets will typ-
ically relate to the national defense or security of the Nation, to the
successful conduct of the foreign affairs of the United States, or to
the ability of the United States to protect itself against actual or po-
tential attack or other grave hostile acts of a foreign power or its
agents.
For these types of surveillance the bill requires that a court deter-
mine only whether the target is an "official" foreign power. The court
does not review the basis for the executive certification that the sur-
3 United States v. United States District Coart, 407 U.S. 297 (1972). But see United
States v. Butenko, 494 F. 2d 593 (3d Cir. 1974). United states V. Brown, 484 F. 2d 418
(5th Cir. 1973) ; and Twetbon v. Mitchell, 516 F. 2d 594 (D.C. Cir. 1975).
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veillance is needed to acquire foreign intelligence information, nor is
it given a detailed description of the nature of the information sought
or the means of surveillance to be used. The surveillance may last as
long as a year before a new court order is required.
Even though the surveillance targets are not U.S. persons, substan-
tial information about Americans may be acquired from surveillance
of foreign powers. The primary role for the court in these circum-
stances is to ensure compliance with the requirement for minimiza-
tion procedures governing incidentally acquired information concern-
ing U.S. persons. Procedures are required to insure that, if the infor-
mation relates solely to national security or foreign affairs interests,
it is not disseminated in a manner that identifies a U.S. person unless
the person's identity is needed to understand or assess information
about a foreign power or unless the information is otherwise publicly
available. The i~ourt may monitor compliance with these procedures.
Surveillance of certain foreign persons and certain foreign organi-
zations, other than "official" foreign powers, may be conducted to ob-
tain foreign intelligence. In such cases the judge is fully informed
of (but does not review) the basis for the certification and is given a
detailed description of the nature of the information sought and a
statement of the means of surveillance to be used. Such surveillance
may last only 90 days before a new court order is required. Foreign
persons acting in the United States as officers or employees of foreign
powers may be targeted for surveillance to collect foreign intelli-
gence; but these requirements ensure that the information sought
fulfills proper intelligence objectives and that the surveillance does
not intrude unnecessarily into the personal privacy of the individual.
U.S. citizens, resident aliens, and foreign visitors to the United
States may not be targeted for surveillance to collect foreign intelli-
gence unless they also meet the separate foreign counterintelligence
standards regarding terrorism, sabotage, or clandestine intelligence
activities, discussed below. In the case of a U.S. person, the court
would review the certification that the information sought is neces-
sary for national security or foreign affairs purposes. Such judicial
review of the Executive Branch certification, based on a "clearly
erroneous" standard, occurs only if the surveillance target is a U.S.
person.
In summary, the authority for surveillance to collect positive for-
eign intelligence varies according to the nature of the target and the
type of information sought. Because the judicial role is very limited,
it is the responsibility of the Attorney General and the certifying offi-
cials designated by the President to make determinations that take into
account the characteristics of the foreign power, the risks involved, and
the relevance of the information sought to the fulfillment of proper
foreign intelligence objectives. Regular reporting to the Intelligence
Committees of the House and Senate is also required to help insure
that these surveillances are consistent with U.S. foreign policy, na-
tional defense needs, and appropriate standards of international
conduct.
R. Foreign counterintelligence investigations
Electronic surveillance, for foreign counterintelligence and counter-
terrorism purposes requires different standards and procedures. U.S.
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persons may be authorized targets, and the surveillance is part of an
investigative process often designed to protect against the commis-
sion of serious crimes such as espionage, sabotage, assassination, kid-
naping, and terrorist acts committed by or on behalf of -foreign
powers. Intelligence and criminal law enforcement tend to merge in
this area.4 The targeting of U.S. persons and the overlap with crimi-
nal law enforcement require close attention to traditional fourth
amendment principles.
S. 1566 departs from ordinary criminal law enforcement procedures
in several ways. A judicial warrant is normally granted upon
probable cause that a crime has been or is about to be committed.
By contrast, in some cases the bill allows issuance of a court order
upon probable cause that a person's activities "may involve" a criminal
violation. Unlike the provisions of the Omnibus Crime Control Act of
:1968 governing surveillance in regular criminal investigations, there,is
no listing of specific Federal criminal laws. Moreover, acts of sabotage
and terrorism need not be violations of the criminal statutes of the
United States, so long as they "would be criminal" under the laws of the
United States or (in the case of terrorism) of any `State if committed
within this country. No showing of criminal activity is required
where the target is a foreign person who acts on behalf of a foreign
power which engages in clandestine intelligence activities contrary to
the interests of the United States.
Additionally, surveillances conducted under S. 1566 need not stop
once conclusive evidence of a crime is obtained, but instead may be
extended longer where protective measures other than arrest and
prosecution are more appropriate. The requirement of subsequent
notice to the surveillance target is eliminated, unless the fruits are
to be used against him in legal proceedings. In camera procedures
are adopted for subsequent challenges to the legality of the surveil-
lance.
The question is whether departures from traditional Fourth Amend-
ment criminal procedures "are reasonable both in relation to the legiti-
mate need of Government for intelligence information and the pro-
tected rights of our citizens," as required by the Supreme Court's lead-
in
decision decision in this field, United States V. United States District Court,
907 U.S. 297, 323 (1972).
One approach to balancing these interests is the adoption of certain
safeguards which are more stringent than conventional criminal pro-
cedures. S. 1566 does this in two ways. First, it requires the judge to
review the certification that surveillance of a U.S. person is necessary
for foreign counterintelligence purposes. Because the probable cause
standards are more flexible under the bill, the judge must also deter-
mine that the executive branch certification of necessity is not "clearly
erroneous." g Second, the bill provides for close and continuing com-
' Surveillance to collect positive foreign intelligence may result in the incidental acqui-
sition of information about crimes ; but that is not its objective. By contrast, foreign
counterintelligence surveillance frequently seeks information needed to detect or anticipate
the commission of crimes "clea here Whehan thenprobableerroneous"
cause standard
standard, whichrt takes adminisati law Is
meaning from the more criminal suitable law.
The judge is required to review an administrative determination that, in the pursuit of a
particular type of investigation, surveillance is justified to acquire necessary information.
The judge may request additional information in order to understand fully how and why
the surveillance is expected to contribute to the investigation.
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munication with the congressional committees having jurisdiction over
foreign intelligence activities. Such communication is inappropriate
in conventional criminal cases where the objective is primarily prose-
cution and subsequent notice is served on the surveillance targets. But
in the absence of notice or frequent judicial review in subsequent
prosecution, as with criminal cases, congressional oversight supplies
a compensating check.
Even with these added safeguards, the main issue is whether the
investigative process in foreign counterintelligence cases requires spe-
cific departures from normal Fourth Amendment procedures. Based
on its study of both electronic surveillance and foreign counterintelli-
gence investigations, the Select Committee on Intelligence has con-
cluded that such departures are reasonable. The need to preserve
secrecy for sensitive counterintelligence sources and methods justifies
elimination of the notice requirement, consolidation of judicial au-
thority in a special court, and in camera procedures allowing per-
sons to challenge illegal surveillance without endangering the security
of legitimate surveillances.
The international character of foreign terrorist activities fully
supports the more flexible probable cause standard allowing sur-
veillance where foreign-based terrorist activities abroad "would"
violate Federal or State laws if committed here. The United States
has a duty to advise other nations if foreign agents within this coun-
try are mounting serious acts of violence to be committed outside our
borders. We expect other countries to warn us when they learn of
plans to commit serious violence in the United States; and this obli-
gation should be reciprocal. The Federal Government also has an
obligation to the States whose law enforcement agencies lack the
capability of detecting foreign-based terrorist activities.
The absence of a list. of specific Federal statutes furnishing the
basis for surveillance, as in Title III, raises other considerations.
With respect to terrorism, there is a limitation to violent acts on be-
half of a foreign-based group which appear intended to intimidate or
coerce the civilian population, to influence Government policy by in-
timidation or coercion, or to affect the conduct of government by
assassination or kidnaping. There is no similar definition of the
terms "clandestine intelligence-gathering activities" and "any other
clandestine intelligence activities." The imprecision of these terms
reflects an assessment of the nature and difficulty of foreign counter-
intelligence investigations.
The essential point is that, if electronic surveillance is to make an
effective- contribution to foreign counterintelligence, it must be avail-
able for use when necessary for the investigative process. The criminal
laws are enacted to establish standards for arrest and conviction; and
they supply guidance for investigations conducted to collect evidence
for prosecution. Foreign counterintelligence investigations have dif-
ferent objectives. They succeed when the United States can insure that
an intelligence network is not obtaining vital information, that a
suspected agent's future access to such information is controlled effec-
tively, and that security precautions are strengthened in areas of top
priority for the foreign intelligance service. Prosecution is a useful
deterrent, but only where the advantages outweigh the sacrifice of
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other interests. Therefore, procedures appropriate in regular criminal
investigations need modification to fit the counterintelligence context.
S. 1566 adopts probable cause standards that allow surveillance at
an early stage in the investigative process by not requiring that a
crime be imminent or that the elements of a specific offense exist. Sur-
veillance of clandestine intelligence gathering activities that "may
involve" a criminal violation, and of persons engaged, in. activities that
"may be" in preparation for sabotage or terrorism, makes it possible
to discover whether a person is,likely to commit an offense in the
foreseeable future.
On the other hand, because of the danger to activities protected
by the first amendment, the standard for "clandestine intelligence
activities" other than intelligence gathering requires probable cause
that such activities are pursuant to the direction of a foreign intelli-
gence service and that they "involve or are about to involve" a Federal
crime. The bill also provides that no U.S. person may be considered
an "agent of a foreign power" solely upon the basis of activities pro-
tected by the first amendment to the Constitution.
Finally, foreign counterintelligence surveillance of unofficial -foreign
visitors to the United States must meet. the same probable cause stand-
ard as surveillance of U.S. persons. unless they act on behalf of par-
ticular foreign governments which engage in clandestine intelligence
activities contrary to U.S. interests. Such surveillance is limited to
persons who. on the basis of past experience with a particular foreign
government, are reasonably believed to have clandestine intelligence
assignments from the foreign government. It is intended to apply to
visitors acting for foreign governments such as the Soviet Union
which have used such visitors to the United States for clandestine
intelligence purposes. This provision is tailored .to demonstrated for-
eign counterintelligence requirements.
To summarize, the select committee's review of U.S. foreign counter-
intelligence requirements confirms the current relevance of the state-
ment made 20 years ago in a study by the Fund for the Republic :
The problems of crime detection in combating espionage are
not ordinary ones. Espionage is a crime which succeeds only
by secrecy. Moreover, spies work not for themselves or pri-
vately organized crime "syndicates," but as agents of national
states. Their activities are therefore likely to be carefully
planned, highly organized, and carried on by techniques
skillfully designed to prevent detection.?
The response of, the United States to such threats must be equally
sophisticated, and S. 1566 provides techniques to satisfy this need.
C. Foreign intelligence surveillance and the fourth amendment
S. 1566 embodies a legislative judgment that court orders and other
procedural' safeguards are necessary to insure that' electronic sur-
veillance by the U.S. Government within this country conforms to the
fundamental principles of the fourth amendment. The bill has been
designed carefully to accommodate the two basic subdivisions of
6 Fund for the Republic, Digest of the Public Record of Communism in the United
States' (New York, 1955), p. O.
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United States intelligence requirements-collection of positive foreign
intelligence and of information needed for foreign counterintelligence
and counterterroism investigations.
In the first instance, surveillance solely to collect foreign intel-
ligence is not targeted against U.S. citizens or resident aliens and dis-
tinctions are made among "official" foreign powers, other types of
foreign organizations, and foreign persons who act as officers or em-
ployees of foreign powers. Because the purpose is unrelated to law en-
forcement and the targets are foreign powers or their officials, the
fourth amendment may allow wider latitude in conducting reason-
able research or surveillance operations designed to serve important
national defense and foreign affairs interests. As former Attorney
General Levi stated :
"[A] central concern of the fourth amendment was with
intrusions to obtain evidence to incriminate the victim of
the search. This concern has been reflected. in Supreme Court
decisions which have traditionally treated intrusions to
gather incriminatory evidence differently from intrusions
for neutral or benign purposes.... Where the purpose or ef-
fect is noncriminal, the search and seizure is perceived as
less troublesome and there is a readiness to find reasonable-
ness even in the absence of a judicial warrant. By contrast,
where the purpose of the intrusion is to gather incriminatory
evidence, and hence hostile, or when the consequence of the
intrusion is the sanction of the criminal law, greater protec-
tions may be given.?
Although foreign persons are protected by the fourth amendment
when they are in the United States," the noncriminal purpose, the
limitation: to officers or employees acting as such in the United States
and the certification requirements satisfy the "reasonable search"
standard of the Fourth Amendment as it may apply to surveillance
conducted solely for the collection of foreign intelligence. Court or-
ders simply ensure that the targets fit the categories and that minimi-
zation procedures limit the acquisition, retention, and dissemination of
incidentally acquired information about U.S. persons. Congressional
review supplies an added check.
Foreign counterintelligence surveillance may target U.S. persons
and' may involve detection of crimes, even though criminal prosecu-
tion may not result. The departures here from conventional Fourth
Amendment doctrine have, therefore, been given close scrutiny to ea1-
sure that the procedures established in S. 1566 are reasonable in rela-
tion tolegitimate foreign counterintelligence requirements and the
protected rights of individuals. Their reasonableness depends, in part,
upon an assessment of the 'difficulties of investigating activities plan-
ned, directed, and supported from abroad by foreign intelligence serv-
ices and foreign-based terrorist groups. The differences between ordi-
nary criminal investigations to gather evidence of specific crimes and
foreign counterintelligence investigations to uncover and monitor
clandestine activities have been taken into account. Other factors in-
z Church Committee Hearings, Vol. 5, pp. 75-76. See Camara v. Municipal Court, 387
U.S. 523 (1967) ; Almeida-Sanchez v. United States, 413 U.S. 266 (1973).
B Abel v. United States, 362 U.S. 217 (1960).
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elude the international responsibilities of the United States, the duties
of the Federal Government to the States in matters involving foreign
terrorism, and the need to maintain the secrecy of lawful counter-
intelligence sources and methods.
An effort has been made to balance the need for surveillance at
earlier stages of the investigative process and the protection afforded
by the Fourth Amendment's requirement that searches for normal
criminal law enforcement purposes be conducted only where a crime
has been or is about to be committed. Because of the wider latitude
granted by the bill, judicial review of the necessity for surveillance of
U.S. persons and regular congressional oversight are required to en-
sure the proper exercise of administrative discretion.
That these departures from traditional Fourth Amendment crimi-
nal law enforcement standards are constitutional is supported by the
Supreme Court's opinion in the Keith case. Although considering do-
mestic security surveillance, the principles apply with even greater
force to foreign counterintelligence surveillance. Justice Powell's
Opinion for the court states :
[W]e do not hold that the same type of standards and
procedures prescribed by title III are necessarily. applicable
to this case. We recognize that domestic security surveillance
may involve different policy and practical considerations
from the surveillance of "ordinary crime." The gathering
of security intelligence is often long range and involves the
interrelation of various sources and types of information.
The exact targets of such surveillance may be more difficult
to identify than in surveillance operations against many
types of crime specified in title III. Often, too, the emphasis
of domestic intelligence gathering is on the prevention of
unlawful activity or the enhancement of the Government's
preparedness for some possible future crisis or emergency.
Thus, the focus of domestic surveillance may be less precise
than that directed against more conventional types of crime.
Given these potential distinctions between title III criminal
surveillances and those involving the domestic "security, Con-
gress may wish to consider protective standards for the latter
which differ from those already prescribed for specified
crimes in title III. Different standards may be compatible
with the fourth amendment if they are reasonable both in
relation to the legitimate need of Government for intelli-
gence information and the protected rights of our citizens.
For the warrant application may vary according to the gov-
ernment interest to be enforced and the nature of citizen
rights deserving protection ... It may be that Congress, for
example, would judge that the application and affidavit show-
ing probable cause need not follow the exact requirements of
section 2518 [of title 18] but should allege other circumstances
more appropriate to domestic security cases; that the request
for prior court authorization could, in sensitive cases, be
made to any member of a specially designated court ... ; and
that the time and reporting requirements need not be so strict,
as those in section 2518.
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The above paragraph does not, of course, attempt to guide
the congressional judgment but rather to delineate the pres-
ent scope of our own opinion.... We do hold, however, that
prior judicial=approval is required for the type of domestic
security surveillance involved in this case and that such ap-
proval may be made in accordance with such reasonable,.
standards as the Congress may prescribe. United States v.
United States District Court, 407 U.S. 297, 322-324 (1972).
Far more than in domestic security matters, foreign counterintel-
ligence investigations are "long range" and involve "the interrela-
tion of various sources and types of information." Targets are often
"difficult to identify," and the emphasis is primarily "on the preven-
tion of unlawful activity." Where foreign governments and foreign-
based organizations are the source of the danger, the Government
clearly must prepare for a "possible future crisis or emergency." When
clandestine intelligence and terrorist activities are planned, directed,
and supported from abroad, rather than within the United States,.the
investigative task is extraordinarily difficult. Therefore, the focus of.
surveillance of suspected foreign agents must "be less precise" if the
United States is to maintain adequate security.
The Select Committee on Intelligence believes the standards and
procedures of S. 1566 reconcile national intelligence and counterin-
telligence needs with constitutional principles in a way that is con-
sistent with both national security and individual rights. S. 1566
would allow electronic surveillance in circumstances where, because of
uncertainty about the legal requirements, the Government may other-
wise be reluctant to use this technique for detecting dangerous foreign
intelligence and terrorist activities by foreign powers in this country.
At the same time it provides safeguards that have not existed before
and that may reasonably be expected to prevent any recurrence of the
abuses of the past.
SECTION-BY-SECTION ANALYSIS
Section 1 of the bill provides that the act may be cited as the
"Foreign Intelligence Surveillance Act of 1978".
Section 2 of the bill amends title 18, United States Code by adding
a new chapter 120 composed of sections 2521-2528 as follows :
Section 2601
Subsection (a) provides that, except for those terms specifically
defined in this section, the definitions of chapter 119 relating to the
interception of wire and oral communications apply to this chapter as
well.
A. "Foreign power"
Subsection (b) (1) defines "foreign power" in six separate ways:
(1) "A foreign government or any component thereof, whether or
not recognized by the United States." This category would include
foreign embassies and consulates and similar official foreign govern-
ment establishments that are located in the United States.
(2) "A faction of a foreign nation or nations, not substantially
composed of permanent resident aliens or citizens of the United States. '?
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This category is intended to include factions of a foreign nation or
nations which are in 'a contest for power over, or control of the territory
of, a foreign nation or nations. The faction must be foreign-based and
controlled from abroad. Specifically excluded from this category is any
faction of a foreign government or governments which is substantially
composed of permanent resident aliens or citizens of the United States.
The word "substantially" means a significant proportion, but less than
a majority.
(3) "An entity, which is openly acknowledged by a foreign govern-
ment or governments to be directed and controlled by -such foreign
government or governments." This category is specifically delineated
in order to treat entities of this type in the same manlier as the gov-
ernment they serve by including them within those "official" foreign
powers subject to court-ordered surveillance under a less stringent
standard. That standard permits less information to be given to the
judge and allows the surveillance to be continued for a longer period
of time before reauthorization. Only entities "openly acknowledged"
by a foreign government to be directed and controlled by it are sub-
ject to the extended court orders granted on a lesser showing.
Those entities which are clearly arms of a government or govern-
meats and not privately controlled meet this definition. This category
would permit surveillance, for example. of a legitimate commercial
establishment which is directed and controlled by a foreign govern-
ment and which, because of the nature of its operations, constitutes a
source of foreign intelligence information otherwise unavailable to
the U.S. Government.
The committee is concerned about the possibility that many innocent
U.S. persons might be employed by such entities, and that their offices
and telephones could be subject to surveillance. The committee would
have preferred that only entities not substantially composed of U.S.
persons could be subject to surveillance as "foreign powers." If such,
this requirement had been included in the bill, however, those entities
could have hired a substantial number of Americans'in order to avoid
surveillance. To provide adequate protection for Americans, the Com-
mittee strengthened the "minimization" requirements to limit strictly
the dissemination of information about U.S. persons where such infor-
mation relates solely to national security or foreign affairs interests.
See section 2521(b) (8), infra.
A law firm, public relations firm, or other legitimate concern that
merely represents a foreign government or its interests is not an entity
in this category. The question whether a group, commercial enterprise,
or organization comes within 'the scope of this definition is one for
the court to answer on the basis of a probable cause standard.
(4) "A foreign-based terrorist group." This category refers to a
foreign-based group engaged in "terrorism," as defined. The committee
recognizes that international terrorist groups may have members from
various nations and may not have any clearly definable "base."
Under this definition the group must be "foreign-based"; that is, it
may not bbased in the United States. It is the committee's belief that
a domestic terrorist group should not be subjected to electronic surveil-
lance pursuant to this chapter. Where a group is not domestically
based, but derives strength and refuge by organizing, planning; and
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preparing its terrorist activities or training its members outside the
United States, then that group is a legitimate target for intelligence
surveillance under this bill no matter what the citizenship of its
members.
The committee does not intend to authorize electronic surveillance
under any circumstances for the class of groups included by the
Supreme Court within the scope of the Keith, decision requiring ju-
dicial warrants for alleged threats to security of a purely domestic
nature. The rare case might arise where a foreign-based terrorist group
is substantially composed of U.S. persons. The judge must examine
the circumstances carefully in order to determine whether the orga-
nization is a foreign-based terrorist group and not a domestic group
with some foreign aspects to it. If there is significant doubt whether
it terrorist group substantially composed of U.S. persons is foreign-
based, the committee intends that this bill not apply. Instead, the
Government may rely upon the domestic law enforcement surveillance
procedures of title III of the Omnibus Crime Control Act of 1968,
contained in chapter 119, United States Code.
(5) "A foreign-based political organization, not substantially com-
posed of permanent resident aliens or citizens of the United States."
This category is intended to include, for example, foreign political
parties that are mere instrumentalities of a foreign government and
that are not substantially composed of Americans. This category
clearly does not include organizations comprised of Americans of
Greek, Irish, Jewish, Chinese, or other extraction who have joined to-
gether out of interest in or concern for the country of their ethnic
origin.
(6) "An entity, which is directed and controlled by a foreign gov-
ernment or governments." This category is similar to category (3)
above, except that the entity need not be openly acknowledged to be
directed and controlled by a foreign government or governments. Such
an entity must be acting as arm of the government with respect to the
activities that are of foreign intelligence or counterintelligence sig-
nificance. An example would be an entity which appears to be a legiti-
mate commercial establishment, but which is being utilized by a foreign
government as a cover for espionage activities. The concerns set forth
with respect to openly controlled entities apply to this category as
well. There is an added danger that electronic surveillance of a
covertly controlled entity, substantially composed of U.S. persons,
would offer a means for evading the requirements for surveillance of
individual U.S. persons. Therefore, it is important to emphasize that
the judge must persons.
probable cause that the entity is both "directed"
and "controlled" by a foreign government or governments. Merely
following the directions of a foreign government which wants a group
to lobby or speak out publicly on behalf of the government's interests,
is not it itself sufficient to place the group in this category.
A revised definition of "United States person" insures that, where
the entity is substantially composed of American citizens or perma-
ment resident aliens, minimization procedures will apply, and the
judge will review, applying a "clearly erroneous" standard, the cer-
tification that surveillance of the entity is needed to acquire foreign
intelligence information. See section 2521(b) (9), infra.
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B. "Agent of a foreign power"
Subsection (b) (2) defines an "a ent of a foreign power" in two
separate ways. Subparagraph (A)1) includes persons who are not
U.S. persons and who act in the United States as officers or employees
of a foreign power. The definition is framed in this way because it is
presumed that nonresident aliens who act in the United States as
officers or employees of a foreign power are likely sources of foreign
intelligence or counterintelligence information. The definition ex-
cludes persons who serve as officers or employees of a foreign power
in their home country, but do not act in that capacity in the United
States. The reference to employees of a foreign power is meant to
include those persons who have a normal employee-employer relation-
ship. The subparagraph is otherwise not intended to encompass such
foreign visitors as professors, lecturers, exchange students, performers,
or athletes, even if they are receiving remuneration or expenses from
their home government in such capacity.
Given the tenuous relationship of such officers and employees with
the United States and their close relationship with a foreign power,
this standard is considered to be reasonable in light of the Govern-
ment's legitimate need for foreign intelligence and counterintelligence
information and the nature of the interests upon which the search
would intrude. There are several other limitations on such surveillance.
An executive official must certify that the information sought from sur-
veillance of an officer or employee of a foreign power relates to the
national defense or security or to the successful conduct of foreign
affairs, or that such information relates to the ability of the United
States to protect against grave hostile acts, sabotage, terrorism, or
clandestine intelligence activities. The committee does not intend that
there should be indiscriminate surveillance of officers or employees
of foreign powers within the United States. The judge will be in-
formed of the type of information sought and the means by which
the surveillance. will be effected; and the surveillance may last no
longer than 90 days before reauthorization. The judge will not, how-
ever, review the Executive Branch certification of need for the sur-
veillance.
Subparagraphs (A) (ii) and (B) (i)-(iv) of subsection (b) (2)
comprise the second definition of "agent of a foreign power." They
define an agent in terms of the activities in which he is or may be
engaged, or may engage, for or on behalf of a foreign power.
1. Foreign visitors
Subparagraph (A) (ii) defines an agent of a foreign power as a
person who is not a U.S. person and who-
* * * acts for or on behalf of a foreign power which engages
in clandestine intelligence activities contrary to the interests
of the United States, when the 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 conspires with any person knowing that
such person is engaged in such activities.
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This category could potentially include any foreign visitor to the
United States, but only if such visitor is acting for or on behalf of
certain foreign powers. There is no specific requirement to show that
the person may engage in activities which violate Federal criminal
statutes.
This separate noncriminal standard for foreigners acting for or on
behalf of certain foreign powers is a significant change from S. 3197,
reported favorably by the committee during the 94th Congress, which
treated foreign visitors the same as United States persons. It also dif-
fers from the foreign visitor standard proposed in S. 1566, as reported
by the Judiciary Committee, which did not distinguish among the
foreign powers for or on behalf of which a foreign visitor might act.
Concern has been expressed that, because the fourth amendment to
the Constitution speaks in terms of protecting all "persons"-not just
U.S. citizens and permanent resident aliens-the bill should not estab-
lish a different standard for foreign visitors. The committee has taken
this concern into account in developing a standard that would satisfy
compelling foreign counterintelligence requirements without subject-
ing foreign visitors to unequal treatment simply on the basis of their
status as nonresident aliens.
Where there are compelling considerations of national security,
alienage distinctions are lawful.? Those distinctions must, however,
he carefully tailored to the demonstrated need and not be overly broad
in their effects. That need has been established only with respect to for-
eign visitors who act for or on behalf of certain foreign powers. For
example, the Senate Select Committee to Study Governmental Opera-
tions with Respect to Intelligence Activities (the Church committee)
pointed out that one quarter of the Soviet exchange students coming to
the United States in a 10-year period were found by the FBI to be in-
telligence officers. '? There is substantial information that each Soviet
visitor to the West is approved by the Soviet security services, which
control their passports and other aspects of their activities. It is rea-
sonable to presume that certain Soviet visitors are either intelligence
agents or "cooptees" who cooperate with Soviet intelligence. To the
extent that other nations engage in similar practices, a comparable
need arises.
If the Government can show, from experience, that a particular
foreign power uses a certain class of visitors to this country for carry-
ing out secret intelligence assignments, it is not necessary to show
that a visitor who falls into this class actually has an intelligence
assignment.
As a practical matter in such circumstances, less intrusive investiga-
tive techniques may not enable the Government to obtain sufficient
information about persons visiting the United States only for a limited
time. Therefore, the additional showing required for U.S. persons may
simply not be possible. What is required instead is a judicial finding of
probable cause to.believe that the person is acting for or on behalf of a
foreign power which engages in clandestine intelligence activities con-
trary to the interests of the United States. The term "interests" refers
to important and long-term goals of the United States, including inter-
- see, e.g., Hampton v. 3iow Sun Wong, 426 U.S. 88, 116 (1976).
x0 Ftnat Report, book I, p. 164.
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ests embodied in law. The Committee does not intend to include foreign
governments whose clandestine intelligence activities are merely con-
trary to U.S. policy, rather than contrary to the law or other national
interests. Once the requisite facts with regard to the country are estab-
lished, the question is whether the circumstances of the person's
presence in the United States indicate that the person may engage in
such activities. The answer to this question will vary according to what
we know about the intelilgence operations of the particular foreign
power. Among the factors that might be taken into account are whether
the foreign visitor is in the United States under the auspices of the
foreign power and whether he engages in activities with respect to
which there is evidence that other visitors who engage in similar activi-
ties are officers or agents of the intelligence service of that foreign
power or a cooperating foreign power.
The standard "may engage in such activities" means that surveil-
lance can be conducted to anticipate clandestine intelligence activi-
ties by'such persons, rather than waiting until after they have taken
place. The additional standards for aiding or abetting, and conspiracy,
require probable cause that the foreign visitor is knowingly assisting
persons who are already engaged in harmful clandestine intelligence
activities. The "knowingly" requirements are the same as in the aiding
or abettin and conspiracy standard for U.S. persons. See section 2521
(b) (2) (B-11, (iv), infra.
This provision does not treat nationals of certain countries dif-
ferently from others solely on the basis of their nationality. Instead,
coverage of the nationals of other countries depends on the activities
of the governments of those countries and whether the individual is
acting on behalf of the government.
2. Clandestine intelligence gathering
Subparagraph (B) (i) allows surveillance of any person, includ-
ing a U.S. person, who is knowingly engaged in clandestine intelli-
gence gathering activities for or on behalf of a foreign power, which
activities involve. or may involve a violation of the criminal statutes
of the United States. Under this standard the person to be under
surveilance must be shown to have a knowing and substantial connec-
tion with the foreign power for which he, is working. There must be
a relationship under which the alleged agent has undertaken to pro-
vide services for the foreign power. The Committee wishes to stress
that this bill is not intended to authorize electronic surveillance under
any circumstances for the class of individuals who pose alleged threats
to security of a purely domestic nature for which the Supreme Court
required a warrant in the Keith case.
The agent must also be knowingly engaged in "clandestine intelli-
gence gathering activities" that involve or may involve violations of
Federal criminal law. It is anticipated that most of the persons under
surveillance under this subparagraph will be violating the criminal
espionage laws which appear in title 18, United States Code, sections
792-799, 951; title 42, United States Code, sections 2272-2278b ; and
title 50; United States Code, section 855. The term "clandestine intel-
ligence gathering activities" includes collection or transmission of in-
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formation or material that is not generally -available to the public, or
covert contacts with an intelligence service or network by means of
"drops" or other methods characteristic of foreign intelligence op-
erations. In addition to activities that fall within the substantive stat-
utory definition of spying are activities directly related to spying that
may constitute violations of laws proscribing the aiding and abetting
of spying, such as maintaining a "safehouse" for secret meetings, serv-
icing "letter drops" to facilitate covert transmission of instructions or
information, recruiting new agents, or infiltrating and exfiltrating
agents under deep cover to and from the United 'States.
Apart from the types of activities specifically proscribed by the
espionage laws, this subparagraph is also intended to permit the sur-
veillance of foreign intelligence agents who are collecting industrial or
technological information which, if disclosed to a hostile foreign
power, might present a threat to the security of the Nation. In such a
case, the Government would have to establish that the agent was col-
lecting or transmitting such information in a manner which might
involve a violation of some other Federal statute, such as title 18,
United States Code, section 2514, which proscribes the interstate trans-
portation of, stolen property. In some cases the knowing transfer of
technological information to a foreign country without a license from
the Federal Government might be unlawful under the "Export Ad-
ministration Act," title 50, United States Code, sections 2021-2032 or
the International Traffic in Arms Regulations (22 CFR 121 et seq.).
Otherwise, clandestine collection of information regarding the un-
classified business plans or trade secrets of an American company which
merely might provide a competitive advantage to private foreign
firms, for example, in bidding on a contract with a third country,
would not be "clandestine intelligence gathering activity."
Moreover, the gathering of information which is done in a con-
fidential manner as part of lawful political activity-such as gather-
ing "intelligence" about the political strength and plans of proponents
or opponents of a particular policy-would not constitute "clandes-
tine intelligence gathering activity" under this subparagraph, where
such information gathering is a normal ancillary part of lobbying,
organizing political protest, and other political activity protected
by the first amendment.
In the case of an organization whose leaders are engaged in clan-
destine intelligence gathering activities, such activity cannot be at-
tributed to every member of the group. There must be probable cause
that a particular member is himself engaged in such activity before
electronic surveillance targeted against him may be'authorized under
this subparagraph.
Whatever the nature of the information or material gathered or
transmitted by the foreign agent, there must be a clandestine aspect.
The bill requires that the alleged foreign agent not only be working
for or on behalf of a foreign power, but also, as a separate require-
ment, that he be engaged in clandestine intelligence gathering 'activity.
There must also be an effort to obtain information which is being
kept secret or is not otherwise generally available to the public, or not
available to the general public. Therefore, the collection, for whatever
purpose, of information within the public domain such as that con-
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tained in books, magazines, scientific journals, or newspapers would
not constitute "clandestine intelligence gathering activity" under this
subparagraph.
The words "may involve" as used in this subparagraph are not
intended to encompass individuals whose activities clearly do not vio-
late Federal law. They are intended to encompass individuals engaged
in clandestine intelligence gathering activities which may, as an in-
tegral part of those activities, involve a violation of Federal law. They
cover the situation where the Government cannot establish probable
cause that the foreign agent's activities involve a specific criminal
act, but where there are sufficient specific and articulable facts to indi-
cate that a crime may be involved.
This "may involve" standard replaces the previous noncriminal
standard which appeared in S. 3157, as reported favorably by the
committee during the 94th Congress, and in S. 1566 as reported by the
Judiciary Committee. Both the former provision, and the "may in-
volve" standard, address the same problem. The committee has con-
cluded that it is necessary in order to permit the Government to
investigate adequately in cases such as those where Federal agents
have witnessed "meets" or "drops" between a hostile foreign intelli-
gence officer and a citizen who might have access to highly classified
or similarly sensitive information; information is being passed, but
the Federal agents have been unable to determine precisely what infor-
mation is being transmitted. Such a lack of knowledge would of course
disable the Government from establishing that a crime was involved
or what specific crime was being committed. Nevertheless, the Commit-
tee- believes that the circumstances might be such as to indicate that the
activity may involve a crime. The crime involved might be one of
several violations depending, for example, upon the nature of the
information being gathered.
In applying this standard, the judge is expected to take all the
known circumstances into account-who the person is, where he is
employed, whether he has access to classified or other sensitive informa-
tion, the nature of the clandestine meetings, the method of transmission,
and whether there are any other reasonable explanations for the behav-
ior. It is intended, moreover, that the circumstances must not merely be
suspicious, but must be of such a nature as to lead a reasonable man to
conclude that there is probable cause to believe the activity may involve
a Federal criminal violation.
The term "may involve" not only requires less information regard-
ing the crime involved, but also permits electronic surveillance at some
point prior to the time when a crime sought to be prevented, for exam-
ple transfer of classified documents, actually occurs. There does not
have to be a current or imminent violation if there is probable cause
that criminal acts may be committed. The committee recognizes that
an argument can be made. that a person could be surveilled for an
inordinate period of time. That is clearly not the intention. Indeed,
even upon an assertion by the Government that an informant has
claimed that someone has been instructed by a foreign power to go into
"deep cover" for several years before actually commencing his espio-
nage activities, such facts would not necessarily be encompassed by
the phrase "may involve." Under the extension provisions of section
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2525(c), discussed infra, the judge can insist on examining the fruits
of any earlier surveillance when it is necessary to determine whether
there is probable cause to believe that the individual is engaged in
clandestine intelligence gathering activities that "may involve" a Fed-
eral criminal violation. Surveillance cannot be justified unless there
is probable cause to believe that the person is, currently, engaged in
such activities, even though the relationship of those activities to a
specific law violation may be more uncertain or remote in time.
Finally, it is necessary that the person be aware lie is acting for or
on behalf of a foreign power. A person might be secretly collecting in-
formation about important technology, for example, and have been
misled into the belief that he was acting for a research institute or a
multinational corporation. Surveillance of such person would not meet
the standard of this subparagraph. It also follows, of course, that
evidence of efforts of a foreign power to recruit a person as an agent
would not suffice to establish probable cause to believe the person
has agreed to do the foreign power's bidding and is engaged on its
behalf. Before electronic surveillance could be directed against such
person, the court would have to find probable cause that he has been
acting for that power's intelligence network.
3. Other clandestine intelligence activities
Subparagraph (B) (ii) allows surveillance of any person, includ-
ing a U.S. person, who pursuant to the direction of an intelligence
service or network of a foreign power knowingly engages in any other
clandestine intelligence activities for or on behalf of such foreign
power, which activities involve or are about to involve a violation of
the criminal statutes of the United States. Under this standard the
person must not only have a knowing and substantial connection
with the foreign power, but he also must be acting pursuant to the
direction of a foreign intelligence service or network.
The words "involve or are about to involve" are intended to re-
quire that a Federal crime must have already been committed, or must
be about to occur, before surveillance is justified under this subpara-
graph.
These more stringent requirements are necessary because of the
nebulous character of the term "any other clandestine intelligence
activities," which can border upon the exercise of rights protected
by the first amendment. Such intelligence activities may include
covert actions designed by an intelligence service of a foreign power
to influence events in this country. However, only if such covert polit-
ical action involves a present or imminent violation of federal crimi-
nal law, such as title 18, United States Code, section 2&1 (bribery of
public officials) and is undertaken pursuant to the direction of an
intelligence service of a foreign power, would it be encompassed by
this subparagraph. It does not authorize electronic surveillance under
any circumstances for the class of individuals who pose alleged threats
to security of a domestic nature for which the Supreme Court re-
quired a judicial warrant in the Keith case.
It is the intent of this requirement that even if there is some sub-
stantial contact between domestic groups or individual citizens and a
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foreign power, as defined in this bill, no electronic surveillance under
this subparagraph may be authorized unless the American is acting
under the direction of an intelligence service of a foreign power. Ex-
cluded, for example, are Americans of Greek, Jewish, Irish, or Chinese
extraction who legitimately seek to influence U.S. policy toward the
country of their ethnic origin. In the process, such Americans are
likely to be in communication with representatives of the governments
of those countries in order to learn about particular situations or
problems. If an American formulates lobbying efforts in part on the
basis of such advice or suggestions he could, in one sense, be said to
be following the direction of a foreign power. But this subparagraph
requires that the agent act pursuant to the "direction of an intelligence
service or network of a foreign power." Thus, such direction from per-
sons who are not connected with an intelligence service or network
would not be a basis for electronic surveillance under this subpara-
graph. There would have to be information specifically indicating
the Americans had undertaken to do the bidding of an intelligence
service or network, or its agents, rather than merely acting because
of an affinity for the same concerns as that foreign power. Mutual
goals or common concerns are not sufficient.
Another example of Americans having contact with foreign powers
is the case of Americans who were active in the protest against U.S.
involvement in Vietnam. Some of them may have attended interna-
tional conferences at which there were representatives of foreign
powers, as defined in the bill, or may have been directly in communica-
tion with foreign governments concerning this issue. There may have
been an exchange of information about activities protesting the Viet-
nam war. But if there merely was evidence that an American
was coordinating the dates of planned peace demonstrations in the
United States to coincide with similar activities abroad in order to
maximum worldwide public attention, that would not suffice to
find probable cause that the American was acting under the direction
of a foreign intelligence service as required by this subparagraph.
Additional evidence would have been required indicating that the
American had undertaken to follow the instruction of a foreign in-
telligence service or network, rather than simply trying to coordinate
his independent effort with related activities abroad.
For both of these illustrations, it should be emphasized that even if
there was probable cause to believe an American was acting pursuant
to the direction of a foreign intelligence service, the court would also
have to find probable cause to believe that the American had com-
mitted or was about to commit a Federal crime. This is a separate and
distinct requirement.
Further, an organization substantially composed of Americans,
whether residing in the United States or abroad, would not come
within the definition of acting pursuant to the direction of a foreign
intelligence service merely because it was part of a worldwide con-
federation of national organizations. Even if a domestic organization
were found to be acting through its leaders at the direction of a
foreign intelligence service, an individual's mere membership in that
organization, without more information about his own undertaking
to do so, would not constitute probable cause to believe that that par-
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titular member was acting pursuant to the direction of a foreign in-
telligence service for purposes of this subparagraph.
It is necessary that the person be aware he is acting on behalf of a
foreign power. It would not suffice to establish probable cause that the
American is engaged in a covert activity at the direction of a foreign
power; the government must establish probable cause that the Ameri-
can knows his efforts are on behalf of a foreign power.
4. Sabotage or terrorism
Subparagraph (B) (iii) allows surveillance of any person, includ-
ing a U.S. person, who knowingly engages in sabotage or terrorism, or
activities which are or may be in preparation therefor, for or on be-
half of a foreign power. This standard differs from S. 3197, as reported
favorably by the committee in the 94th Congress, which covered any
person who "knowingly engages in or knowingly acts in furtherance
of," sabotage or terrorism for or on behalf of a foreign power. It also
differs from S. 1566, as reported by the Judiciary Committee, which
adopted the standard "knowingly engages in activities that involve
or will involve sabotage or terrorism for or on behalf of a foreign
power." The committee has'modified these earlier standards in order
to accommodate the need to anticipate serious terrorist crimes. The
words "will involve" in the bill as reported by the Judiciary Com-
mittee require too high a degree of certainty that terrorism will take
place, especially compared to the "may involve" standard for spying
in subparagraph (B) (i) .
The terms "sabotage" and "terrorism" are defined separately and
require a showing of criminal activity. Again, in no event is mere
sympathy for, identity of interest with, or vocal support for the
goals of a foreign group, even a foreign-based terrorist group, suf-
ficient to justify surveillance under this subparagraph. The term "ac-
tivities which are or may be in preparation" for sabotage or terrorism
is intended to encompass activities supportive of acts of serious
violence-for example, purchase or surreptitious importation into the
United States of explosives, planning for assassinations, or financing
of or training for such activities.
The term "preparation" does not require evidence of preparation for
one specific terrorist act, because the definition of "terrorism" speaks of
"violent acts" and means a range of acts, not just a single act. "Prepara-
tion" normally means preparation for a specific crime, which might be
too strict a standard for surveillance under this bill. However, the term
"preparation" would not have its normal meaning because of the
special definition of "terrorism." It could reasonably be interpreted to
cover, for example, providing the personnel, training, funding, or other
means for the commission of acts of terrorism, rather than one partic-
ular bombing. The "preparation" provision is also adopted in order to
permit electronic surveillance at some point before the danger sought to
be prevented-for example, a kidnaping, bombing, or hijacking, ac-
tually occurs. This standard is in no way intended to dilute the re-
quirement of knowledge, or the requisite connection with a foreign
power.
Concern has been expressed that this subparagraph could permit
surveillance solely on the basis of information that someone might com-
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mit acts of terrorism or sabotage in the distant future. This is clearly
not the intent of the committee. There must be a showing of ac-
tivities which may be in preparation for the commission of such acts.
The committee has concluded, however, that surveillance is justified on
the basis of somewhat less information regarding the nature of this
activity than would be required in the absence of the words
"may be." Under the extension provisions of section 2525 (c), discussed
infra, the judge can insist on examining the fruits of any earlier sur-
veillance when it is necessary to determine whether there is still prob-
able cause to believe that the individual may be preparing.for sabotage
or terrorism.
This subparagraph would allow surveillance where the Government
cannot establish probable cause that an individual has knowingly en-
gaged in. preparation for sabotage or terrorism, but where there are
sufficient specific and articulable facts to indicate that the individual's
activities may be in preparation for sabotage or terrorism. As with the
"may involve" standard of subparagraph (B) (i), the judge is expected
to take all the known circumstances into account. The circumstances
must be such as would lead a reasonable man to conclude that there is
probable cause to believe the person is knowingly engaged in activities
which may be in preparation for sabotage or terrorism.
Finally, any person targeted for surveillance under this subpara-
graph must be shown to have a knowing and substantial connection
with the foreign power for whom lie is working. In the case of ter-
rorism, it is anticipated that in most cases this connection will be shown
to exist with a foreign-based terrorist group. The person must be
clearly and knowingly acting for or on behalf of the foreign power
itself. As elsewhere in this bill, the committee-does not intend to au-
thorize electronic surveillance under any circumstances in which a
warrant would be required by the Supreme Court decision in the Keith
case.
The rare case might arise where a U.S. person is acting for or on
behalf of a foreign-based terrorist group that is substantially com-
posed of U.S. persons. In such a case, the judge must examine the cir-
cumstances carefully in order to determine whether the organization
is, a foreign-based terrorist group and not a domestic group
with some foreign aspects to it. Where there is significant doubt as to
whether a terrorist group substantially composed of U.S. persons is
foreign-based, the committee intends that the provisions of this bill
should not apply to a person acting for or on behalf of such group. In-
stead, the Government may rely on the domestic law enforcement sur-
veillance procedures of title III of the Omnibus Crime.Control Act of
1968, contained in chapter 119, of title 18, United States Code.
5. Aiding or abetting and conspiracy
Subparagraph (B) (iv) allows surveillance of any person, includ-
ing a U.S. person, who knowingly aids or abets any person in the con-
duct of activities described in subparagraphs (B) (i) - (iii) above, or
conspires with any person knowing that such person is engaged in
such activities. The knowledge requirement is applicable to both the
status of the person being aided by the proposed subject of the sur-
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veillance and the nature of the activity being promoted. This stand-
ard requires the Government to establish probable cause that the
prospective target knows both that the person with whom he is con-
spiring or whom he is aiding or abetting is engaged in the described
activities as an. agent of a foreign power and that his own conduct is
assisting or furthering such activities. The innocent dupe who unwit-
tingly aids a foreign intelligence officer cannot be targeted under this
provision. In the case of a person alleged to be knowingly aiding or
abetting those engaged in terrorist activities on behalf of a foreign
power, such a person might be assisting a group engaged in both law-
ful political activity and unlawful terrorist acts. In such a case, it
would be necessary to establish probable cause that the individual
was aware of the terrorist activities undertaken by the group and was
knowingly furthering them, and not merely that he was aware of
and furthering the group's lawful activity.
An illustration of the "knowing" requirement is provided by the
case of Dr. Martin Luther King. Dr. King was subjected to electronic
surveillance on "national security grounds" when he continued to
associate with two advisers whom the Government had apprised him
were suspected of being American Communist Party members and,
by implication, agents of a foreign power. Dr. King's mere continued
association and consultation with those advisers, despite the Govern-
ment's warnings, would clearly not have been a sufficient basis under
this bill to target Dr. King as the subject of electronic surveillance.
Indeed, even if there had been probable cause to believe that the
advisers alleged to be Communists were engaged in criminal clandes-
tine intelligence activity for a foreign power within the meaning of
this section, and even if there were probable cause to believe Dr. King
was aware they were acting for a foreign power, it would also have
been necessary under this bill to establish probable cause that Dr. King
was knowingly engaged in furthering his advisers' criminal clandes-
tine intelligence activities. Absent one or more of these required show-
ings, Dr. King could not have been found to be one who knowlingly
aids or abets a foreign agent.
6. First amendment proviso
Subparagraph (B)(iv) concludes with a proviso which applies to
all the foregoing standards for surveillance of U.S. persons. It pro-
vides that no U.S. person may be considered an agent of a foreign
power solely upon the basis of activities protected by the first amend-
ment to the Constitution of the United States.
This provision is intended to reinforce the intent of the committee,
stated earlier, that lawful political activities should never be the sole
basis for a finding of probable cause to believe that a U.S. person is
an agent of a foreign power. For example, the advocacy of violence
falling short of incitement is protected by the first amendment, under
the Supreme Court's decision in Brandenburg v. Ohio, 395 U.S. 444
(1969). Therefore, the pure advocacy of the commission of terrorist
acts would not, in and of itself, be sufficient to estabilsh probable cause
that an individual may be preparing for the commission of such acts.
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The committee does not intend that information concerning pure
advocacy of violence should be completely excluded from considera-
tion by the judge in making such a probable cause finding, if facts
regarding other activities not protected by the first amendment, such
as the purchase of a weapon, are present. Activities not protected by
the first amendment, however, must be the primary basis for the prob-
able cause finding.
The bill is not intended to authorize electronic surveillance when a
United States person's activities, even though secret and conducted
for a foreign power, consist entirely of lawful acts such _as lobbying
or the use of confidential contacts to influence public officials, directly
or indirectly, through the dissemination of information. Individuals
exercising their right to lobby public officials or to engage in political
dissent from official policy may well be in contact with representatives
of foreign governments and groups when the issues concern foreign
affairs or international economic matters.
They must continue to be free to communicate about such issues
and to obtain information or exchange views with representatives of
foreign governments or with foreign groups, free from any fear that
such contact might be the basis for probable cause to believe they are
acting at the direction of a foreign power thus triggering the Gov-
ernment's power to conduct electronic surveillance. The intent of the
bill is to exclude from the definition of "clandestine intelligence activ-
ities" any activity which consists solely of the lawful exercise of first
amendment rights of speech, petition, assembly, and association. In no
event may lawful political activity within the ambit of the protections
afforded by the first amendment be the basis for finding that any
United States person is engaged in "clandestine intelligence activities."
Lobbying Congress or seeking to influence public opinion on matters
relating to the national defense or foreign affairs does not become
clandestine intelligence activity merely because the agent has failed
to comply fully with the Foreign Agents Registration Act (22 U.S.C.
611, et. seq.). If, however, foreign intelligence services hide behind
the cover of some person or organization in order to influence Ameri-
can political events and deceive Americans into believing that the
opinions or influence are of domestic origin and initiative and such
deception is willfully maintained in violation of the Foreign Agents
Registration Act, then electronic surveillance might be justified under
subsection (B) (ii) if all the other criteria of S. 1566 were met.
The committee does not intend that the conspiracy provision of sub-
section (B) (iv) should be interpreted to permit surveillance based
solely upon the combination of ambiguous public statements express-
ing a general intent to violate the law and an unambiguous public
statement of such intent, in the absence of facts regarding any other
specific acts taken to carry out such intent."
Mere membership in a political group directed and controlled by a
foreign power is not sufficient under this bill to establish probable
cause that a person is aiding or abetting or conspiring with someone
for or on behalf of a foreign power or engaged in clandestine intelli-
gence activities. Moreover, even if additional information established
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probable cause to believe some members of the group were aiding or
abetting or conspiring with persons acting for or on behalf of a for-
eign power, neither efforts to collect information about the plans and
program of the civil rights movement or other political protests, nor
efforts to stimulate or shape them would constitute clandestine intelli-
gence activity within this section. Gathering information about the
movement would be neither criminal espionage nor the kind of eco-
nomic or technical information relating to the national security whose
collection might involve the violation of any other Federal law. Simi-
larly, since the civil rights movement itself involved constitutionally
protected rights of association, speech and petition for redress of
grievances, efforts by a foreign power to involve itself in such a move-
ment are intended to be specifically excluded from the clandestine
intelligence activity standard for targeting U.S. persons.
C. "Terrorism," and "sabotage"
Subsection (b) (3) defines "terrorism" as acts which are violent or
dangerous to h uman life and which would be criminal under the laws
of the United States or of any State if committed within its juris-
diction. The words "would be" are used here, and in the definition of
"sabotage," to indicate that the acts need not, in fact, be violations of
Federal or State law, so long as they would constitute such violations
if committed within the jurisdiction of the United States or of any
State. The committee intends that terrorists and saboteurs acting for
foreign powers should be subject to surveillance under this bill when
they are in the United States, even if the target of their violent acts
is within a foreign country and therefore outside actual Federal or
State jurisdiction. This departure from a strict criminal standard
is justified by the international responsibility of government to pre-
vent its territory from being used as a base for launching terrorist
attacks against other countries. We demand that other countries live
up to this responsibility and it is important that in our legislation
we demonstrate a will to do so ourselves. -
The purpose of the terrorist activities -must be either the intimida-
tion of the civilian population, the intimidation of national leaders in
order to force a significant change in government policy, or the affect-
ing of government conduct by assassination or kidnapping. Examples
of such activities would be the detonation of bombs in a metropolitan
area, the kidnapping of a high-ranking government official, the hi-
jacking of an airplane in a deliberate and articulated effort to force
the government to release a certain class of prisoners or to suspend
aid to a particular country, the deliberate assassination of persons
to strike fear into others to deter them from exercising their rights,
or the destruction of vital governmental facilities.
Subsection (b) (4) defines sabotage as activities which would con-
stitute crimes under chapter 105 of title 18, United States Code, if
conducted against the United States. In S. 3197 only actual violations
of chapter 105 were included in the definition of sabotage. But by its
terms, chapter 105 makes criminal only acts of sabotage against U.S.
Government facilities. S. 1566 has expanded the definition of sabotage
to include similar acts when committed against a State or another
nation's facilities and materials relating to defense. Thus, sabotage
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directed against State and local police facilities and equipment, or
against the defense facilities of foreign nations, would constitute
sabotage under this definition.12 Of course, electronic surveillance
under this chapter could be undertaken only if such sabotage was
knowingly conducted for or on behalf of a foreign power and the
information sought constitued foreign intelligence as defined. Where
persons are knowingly engaged in sabotage of State or foreign facili-
ties for or on behalf of a foreign power, such persons should be
subjected to foreign intelligence electronic surveillance in this country
even in the absence of probable cause to believe that they will engage
in sabotage against Federal facilities.
D. Foreign intelligence information
Subsection (b) (5) defines foreign intelligence information accord-
ing to whether or not the information concerns a U.S. person. The
comparable provision in S. 1566, as reported by the Judiciary Com-
mittee, is modified in order to apply the more stringent requirements
solely to information about U.S. persons.
The committee has dropped the distinction between "necessary" and
"essential" in the standard. The difference between the two terms is
marginal, and using a single term has advantages of clarity and con-
sistency. The committee has also deleted the word "deemed" ; instead,
an Executive Branch official will be required to certify that the
information sought from each surveillance is deemed to be foreign
:intelligence information. See section 2524 (a) (7) (A); infra.
Where the term "necessary" is used, the committee intends to require
more than a showing that the information would be useful or con-
venient. The committee intends to require a showing that the informa-
tion is both important and required. The use of this standard is
intended to mandate that a significant need be demonstrated by those
seeking the surveillance. For example, it is often contended that a
counterintelligence officer or intelligence analyst, if not the policy-
maker himself, must have every possible bit of information about a
subject because it might prove an important piece of the larger picture.
In that sense, any information relating to the specified purposes might
be called "necessary" but such a reading is clearly not intended.
Information concerning U.S. persons is foreign intelligence infor-
mation if it is necessary to the national defense or security, to the
successful conduct of foreign affairs, or to the ability of the United
States to protect against grave hostile acts, sabotage, terrorism, or
clandestine intelligence activities by or on behalf of foreign powers.
Information concerning foreign powers and foreign persons is foreign
intelligence information if it relates to those interests.
Subparagraph (A) of this subsection defines foreign intelligence
information as information which relates to, and if concerning a U.S.
person is necessary to, the ability of the United States to protect itself
against actual or potential attack or other grave hostile acts of a for-
eign power or its agents. This category is intended to encompass in-
formation which relates to foreign military capabilities and intentions,
12 Under 18 U.S.C. 9m6, it is a Federal crime for persons within the United States to
conspire to injure or destroy property located in a foreign country and owned by a foreign
government.
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as well as acts of force or aggression which would have serious adverse
consequences to the national security of the United States. The term
"hostile acts" must be read in the context of the subparagraph which
is keyed to actual or potential attack on the United States. Thus, only
grave types of hostile acts would be envisioned as falling within this
provision.-
Subparagraph (B) of this subsection includes information which
relates to, and if concerning a U.S. person is necessary to, (i) the
national defense or the security of the Nation or (ii) the successful
conduct of the foreign affairs of the United States. This subparagraph
also requires that the information sought involve information with
respect to foreign powers or territories, and would therefore not in-
clude information solely about the views or planned statements or
activities of Members of Congress, executive branch officials, or private
citizens concerning the foreign affairs of the United States.
It is anticipated that the types of "foreign intelligence information"
defined in subparagraphs (A) and (B) will be the types most often
sought when an electronic surveillance is instituted against a foreign
power as defined in section 2521(b) (1) (A), (B), (C), and (E), or
against most foreign agents as defined in Section 2521(b) (2) (A) (i).
Consideration was given to a standard of "important, rather than
"relates to," for information concerning foreign powers and foreign
persons collected to serve these more nebulous national defense, na-
tional security, and foreign affairs interests. However, the committee
did not wish to impose a standard under which responsible executive
branch officials could not honestly certify that entirely proper and
appropriate activities were conducted to produce "foreign intelli-
gence information," as defined here. Certain other limitations
are present. The information must pertain to a foreign power or
foreign territory; and thus it cannot simply be information about a
citizen of a foreign country who is visiting the United States unless
the information would contribute to meeting intelligence requirements
with respect to a foreign power or territory. The term "national
defense or the security of the Nation" is intended to mean military and
defense concerns. It is not a catchall term "national security" to be
used to mean anything the Executive Branch wants it to mean. With
these limitations, the committee believes that the adoption of a "relates
to" standard would not authorize improper treatment of foreign
persons who come to the United States. In this regard, of course, the
committee's oversight authority is another valuable check.
is In testifying in 1976 at the House hearings on S. 3197, Attorney General Levi confirmed
this interpretation
"Mr. KASTENMEI ,n. How do you understand the term other hostile acts of a
foreign power? Is there enough precedent or other language so that we under-
stand precisely what the hostile acts constitute, whether a criticism of our par-
ticipation In thr Vietnam war would be a hostile act? Or attempting to board
an American ship on the high seas is a more classical case. How broad is the
hostile acts?
"Attorney General LEVI. I certainly wouldn't think that hostile acts involved
criticism. I would assume-I don't know that we can get abetter definition. But
it does after all say, 'against actual or potential attack or other hostile acts.'
So that it is the actual Or potential attack which really gives the flavor to what
is meant.
"Mr. KASTENMETER. In other words, it must be seen in a broader context, and
therefore be much more limited ?
Attorney General LEVI. I would think so." (1976 House hearings 10-11.)
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Subparagraph (C) (i) of this subsection includes information which
relates to, and if concerning a U.S. person is necessary to, the ability of
the United States to protect against sabotage or terrorism by a foreign
power or foreign agent. It is anticipated that the type of information
described in this subparagraph will be the type sought when an elec-
tronic surveillance is instituted against the type of foreign power de-
fined in section 2521(b) (1) (D), or against the type of foreign agent
defined in section 2521(b) (2) (B) (iii).
Subparagraph (C) (ii) of this subsection includes information which
relates to, and if concerning it U.S. person is necessary to, the ability
of the United States to protect against the clandestine intelligence ac-
tivities of an intelligence service or network of a foreign power or a
foreign agent. This subparagraph encompasses classic counterintelli-
gence information; that is, information deemed necessary to the Na-
tion's ability to discover and protect against the clandestine intelligence
activities of foreign powers or their agents in the United States. This
subsection is not intended to encompass information sought about
political activity by U.S. citizens allegedly "necessary" to determine
the nature and extent of any possible involvement in those activities
by the intelligence services of foreign powers. Such a dragnet ap-
proach to counterintelligence has been the basis for improper investi-
gations of citizens in the past and is not intended to be a permissible
avenue of "foreign intelligence" collection under this subparagraph.
Nor does this subparagraph include efforts to prevent "news leaks" or
to prevent publication of such leaked information in the American
press, unless there is reason to believe that such leaking or publication
is itself being done by an agent of a foreign intelligence service and
that such publication would harm the national security.
Information about a U.S. person's private affairs is not intended to
be included in the meaning of "foreign intelligence information" un-
less it relates to his activities on behalf of a foreign power. This is
achieved by including in each subsection of the foreign intelligence
definition the requirement that the information sought actually "re-
lates to" the type of information that is necessary. For example, the
Government could not seek purely personal information about a U.S.
citizen or permanent resident alien, who is a suspected spy, upon a
theory that it might learn something that would be "compromising."
The bill makes clear that only information about U.S. citizens or per-
manent resident aliens that is necessary to the ability of the United
States to protect against clandestine intelligence activities may be
sought. This restriction might now always be fully applicable to agents
of foreign powers as defined in section 2521(b) (2) (A) (i) or (ii),
because information about their private lives may itself be foreign in-
telligence information. For example, such information might identify
their true status or reveal the intentions or activities of the foreign
power of which they are officers or employees.
E. Electronic surveillance
Subsection (b) (6) defines electronic surveillance to include four
separate types of activities.
Subparagraph (A) protects U.S. persons who are located in the
United States from being targeted in their domestic or international
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communications without a court order no matter where the surveil-
lance is being carried out. Under S. 3197 as reported by the commit-
tee in the 94th Congress, such targeting did not fall within the con-
fines of the bill; this provision is, therefore, a significant extension of
the protections afforded U.S. citizens and resident aliens. The sub-
paragraph covers the acquisition of the contents of a wire or radio
communication of a U.S. person by intentionally targeting that par-
ticular, known U.S. citizen or resident alien, provided that the per-
son is located within the United States. Thus, for example, the watch-
listing activities of the National. Security Agency, if directed against
the international communications of particular U.S. persons who
are in the United States, would require a court order under this
provision.14
Only acquisition of the contents of those wire or radio communica-
tions made with a reasonable expectation of privacy where a warrant
would be required for law enforcement purposes is covered by sub-
paragraph (,A-). It is the committee's intent that acquisition of the
contents of a, wire communication, without the consent of any party
thereto, would clearly be included; the definition of "wire communi-
cation" under 18 U.S.C. 2510(1) covers any communication "made in
whole or part" through wire facilities. Excluded would be, for ex-
ample, commercial broadcasts, as well as ham radio and citizen band
radio broadcasts [cf. 47 U.S.C. 605; United States v. Hall, 488 F. 2d
193 (9th Cir. 1973)].
The term "intentionally targeting" a particular, known U.S. person
who is in the I Tnited States includes the deliberate use of a surveillance
device to monitor a specific channel of communication which would not
be surveilled but for the purpose of acquiring information about a
party who is a particular, named U.S. person located within the United
States." It also includes the deliberate use of surveillance techniques
which can monitor numerous channels of communication among num-
erous parties, where the techniques are designed to select out from
among those communications the communications to which a particular
U.S. person located in the United States is a party, and where the com-
munications are selected either by name or by other information which
would identify the particular person and would select out his
communications.
This subparagraph does not apply to the acquisition of the contents
of international or foreign communications, where the contents are not
acquired by intentionally targeting a particular known U.S. person
who is in the United States. Therefore, this bill does not afford protec-
tions to U.S. persons who are abroad. Nor does it regulate the acqui-
sition of the contents of international communications of U.S. persons
who are in the United States, where the contents are acquired uninten-
tionally. The committee is concerned about the need to provide statu-
tory protections and regulations in this area, but does not believe that
"'See Church committee hearings, vol. 5, esp. pp. 5-24; Church Committee Report,
book II, pp. 58-60. 108 and 308-311, and book III, pp. 733-783, for careful documenta-
tion of the nature of such National Security Agency activities undertaken on behalf
of the FBI, CIA, Army intelligence, and the Bureau of Narcotics and Dangerous Drugs, and
the technological problems associated with authorized NSA signals intelligence activities.
16 This would include wiretapping a foreign official when the intent and purpose of the
wire tap is to hear the conversations of a particular U.S. person with that foreign official,
if the foreign official would not otherwise have been wire tapped for different purposes. Such
a case-has occurred in the past. See Church Committee Report, book 11, p. 228.
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S. 1566 is the appropriate vehicle for doing so. The standards and pro-
cedures for overseas surveillance may have to be different than those
provided in S. 1566 for electronic surveillance within the United
States or targeted against U.S. persons who are in the United
States. Instead, members of the committee have introduced as part of
S. 2525, the National Intelligence Reorganization and .Reform Act of
1978, separate legislation to achieve this objective.
The fact that S. 1566 does not bring the overseas surveillance activi-
ties of the U.S. intelligence community within its purview, however,
should not be viewed as congressional authorization of such activities
as they affect the privacy interests of Americans. The committee
merely recognizes at this point that such overseas surveillance activi-
ties are not covered by this bill. In any case, the requirements of the
fourth amendment would, of course, continue to apply to this type of
communications intelligence activity.16
Subparagraph (B) includes the acquisition, by an electronic, me-
chanical, or other surveillance device, of the contents of a wire com-
:munication to or from a person in the United States without the
consent of any party thereto when such acquisition occurs in the
United States while the communication is being transmitted by
wire. As this subdefinition makes clear, one party to the wire
communication may be outside the United States if the acquisi-
tion occurs within the United States. Thus, either a wholly do-
mestic telephone call or an international telephone call can be the
subject of electronic surveillance under this subdefinition if the acqui-
sition of the content of the call takes place in this country and if such
acquisition occurs "while the communication is being transmitted by
wire." This second qualifier is necessary because the definition of "wire
communication" under 18 U.S.C. 2510(l) includes any communica-
tion "made in whole or in part" through wire facilities. Because most
telephonic and telegraphic communications are transmitted at least
in part by microwave radio transmissions, subdefinition (B) is
meant to apply only to those surveillance practices which are effected
by tapping into the wire over which the communication is being trans-
mitted. The interception of the microwave. radio transmission is meant
to be covered by subdefinition (C) if the sender and all intended re-
cipients are located within the United States, or by subdefinition (A)
if it is done through the targeting of a U.S. person who is in the
United States.
The surveillance covered by subparagraph (B) is not limited to the
acquisition of the oral, or verbal contents of a wire communication. It
includes the acquisition of any other contents of the communication,
for example, where computerized data is transmitted by wire. There-
fore, it includes any form of "pen register" or "touch-tone decoder"
device which is used to acquire, from the contents of a wire communi-
cation, the identities or locations of the parties to the communication.
Examination of telephone billing records in documentary form is not
19 The committee notes with approval that electronic surveillance of American citizens
while abroad has been limited in part both by the President's Executive Order applicable to
the U.S. Intelligence community and by procedures approved by the Attorney General. See
Executive Order 12036, Jan. 24, 1978 ; testimony of Attorney General Edward H. Levi,
Church committee hearings. vol. 2, p. 66 if. Thus, the surveillance of journalists, such as in
the Joseph Kraft case, would be prohibited.
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covered. The committee is concerned about the need to protect the
privacy of such confidential records of the provision of telecommuni-
cations services, but does not believe that S. 1566 is the appropriate
measure in which to do so. As introduced, S. 2525, the National
Intelligence Reorganization and Reform Act of 1978, provides certain
statutory safeguards in this area.
Subparagraph (C) includes the intentional acquisition by an elec-
tronic, mechanical, or other surveillance device of the contents of a
totally domestic radio communication, without the consent of any
party thereto, made with a reasonable expectation of privacy and
under circumstances where a warrant would be required for law en-
forcement purposes, where both the sender and all intended recipients
are located within the United States. This part of the definition would
reach not only the acquisition of communications made wholly by radio
but also the acquisition of "wire communications" by means of inter-
cepting the radio transmitted portion of those communications within
the United States. The territorial limits of this subdefinition are not
dependent on the point of acquisition, as is the case with subdefinition
(B), but on the locations of the sender and intended recipients. Thus,
the acquisition of radio communications outside the territorial limits
of the United States would be covered if all of the parties were located
within the United States. Only acquisition of those domestic radio
communications made with a reasonable expectation of privacy where
a warrant would be required for law enforcement purposes would be
included in the term "electronic surveillance." This would exclude, for
example, commercial broadcasts, as well as ham radio and citizen band
radio broadcasts (cf. 47 U.S.C. section 605) ; United States v. Hall,
488 F. 2d 193 (9th Cir. 1973).
It is the committee's intent that the intentional acquisition of the
contents of a wire communication being transmitted by radio micro-
wave, without the consent of any party thereto and where all parties
to the communication are located in the United States, would clearly
be included here. The intentional acquisition of such contents is not
limited to the. intentional acquisition of oral or verbal contents. It in-
cludes the intentional acquisition of any other contents, as described
with respect to subparagraph (B).
Only "intentional" acquisitions of private domestic radio communi-
cations are within this subdefinition because, by their very nature,
radio transmissions may be intercepted anywhere in the world, even
though the sender and all intended recipients are in the United States.
Thus, intelligence collection may be targeted against foreign or inter-
national communications but accidentally and unintentionally acquire
the contents of communications intended to be totally domestic. As
amended by this committee, S. 1566 would require the destruction of
such contents in almost all circumstances. See Sec. 2526(gg), infra.
The effect of this amendment, in combination with subparagraphs
(A), (B), and (C) of this subsection, is to apply either a destruction
requirement or a court order requirement for the nonconsensual acqui-
sition of all domestic radio communications made with a reasonable
expectation of privacy, the nonconsensual acquisition within the
United States of all wire communications, as defined in section 2510
(1), title 18, United States Code, and the targeting of particular
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United States persons located in the United States in order to acquire
domestic or international communications made with a reasonable ex.
pectation of privacy.
Subparagraph (D) brings within the definition of "electronic sur-
veillance" the acquisition of information, not transmitted as a wire
communication or radio communication, by the installation or use
of an electronic, mechanical, or other surveillance device for moni-
toring in the United States under circumstances in which a person has
a reasonable expectation of privacy and a warrant would be required
for law enforcement purposes. This is intended to include the ac-
quisition of oral communications made by a person exhibiting an
expectation that such utterances are not subject to acquisition, under
circumstances justifying such expectation. In addition, it is meant
to include the installation of "beepers" and "transponders," if a
warrant would be required in the ordinary criminal context. United
States v. Holmes, 537 F.2d 227 (5th Cir. 1976). It could also include
miniaturized television cameras and other sophisticated devices not
aimed merely at communications.
This part of the definition is meant to be broadly inclusive, be-
cause the effect of including a particular means of surveillance is not
to prohibit it but to subject it to judicial review. It is not meant
to include, however, the acquisition of those international radio trans-
missions or international wire communications, when acquired by
intercepting radio transmissions, which are not acquired by targeting
a particular U.S. person in the United States. Nor, as earlier indicated,
is it meant to require a court order in any case where a search warrant
would not be required in an ordinary criminal context.
It has been held, for example, that fourth amendment protections
do not extend to activities undertaken in the open where a partici-
pant could reasonably anticipate that his activities might be ob-
served.17 But two persons in a public park, far from any stranger,
would not reasonably anticipate that their conversations could be
overheard from afar through a directional microphone, and so would
retain their right of privacy.
The definition of "electronic surveillance" applying to wire com-
munications has an explicit exception where any party has consented
to the interception. This is intended to perpetuate the existing law
regarding consensual interceptions found in 18 U.S.C. section 2511
(2) (c) and in the case law interpreting 47 U.S.C. section 605.18
Whether consent may be inferred in a particular case will depend on
the facts and circumstances. The other parts of the definition of
"electronic surveillance" require that the acquisition of information
be under circumstances in which a person has a constitutionally
protected right of privacy. There may be no such right in situations
where the acquisition is consented to by at least one party to the
communication or conversation. For instance, a body microphone
placed on an informer with his consent is an installation of a device
to acquire information, but a person speaking to the informer may
"'Air Pollution Vakance Board v. Western Alfa ZJQE Corp., 41U 1U nit 861 (n 745 U.S. 197
18 Lopez V. United Staten, 373 U.S. 427 (1963) ;
(1957).
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have no justifiable expectation that the informer will not repeat,
record, or even transmit by a miniature transmitter what the person
voluntarily tells the informer.19
The committee does not intend the term "surveillance device" as
used in subparagraph (D) to include devices which are used inci-
dentally as part of a physical search, or the opening of mail, but which
do not constitute a device for monitoring. Lock picks, still cameras, and
similar devices can be used to acquire information, or to assist in the
acquisition of information, by means of physical search. So-called
chamfering devices can be used to open mail. This bill does not bring
these activities within its purview. Although it is desirable to develop
legislative controls over physical search techniques, the committee has
concluded that these practices are sufficiently different from electronic
surveillance as to require separate consideration by the Congress.
S. 2525, the National Intelligence Reorganization ana Reform Act of
1978, addresses the problem of physical searches within the United
States or directed against U.S. persons abroad for intelligence pur-
poses. The fact that S. 1566 does not cover physical searches for in-
telligence purposes should not be viewed as congressional authoriza-
tion for such activities. In any case, the requirements of the fourth
amendment would, of course, continue to apply to this type of
activity.20
Except for the use of a? surveillance device as an incident to physical
search or mail opening, the term "device for monitoring" would apply
in any circumstances where a warrant would be required for law
enforcement purposes.
The provisions that "a warrant would be required for law enforce-
ment purposes" do not mean that a court must, previously, have
required a warrant for the particular type of surveillance activity
carried out under subparagraph (A), (C), or (D). The techniques
involved may not have been used for law enforcement purposes, or if
so used, may not have come before a court for a determination as to
whether a warrant is required. Nevertheless, the surveillance activity
is intended to be covered if a warrant would be required for law
enforcement purposes, as determined on the basis of an assessment of
the similarity with other surveillance activities which the courts have
ruled upon and the reasonableness of the expectation of privacy that
a U.S. person has with respect to such activity. The committee expects
that.. if an agency wishes to use a related new surveillance technique, it
will. seek a ruling from the Attorney General as to whether the tech-
nique requires a court order. The intelligence committees should be
advised of such rulings under the provisions of section 2528.
Law enforcement officials may, if they wish, continue to obtain an
ordinary search warrant or chapter 119 court order if the facts and
circumstances justify it.
F. "Attorney general"
Paragraph (7) defines "Attorney General" to mean the Attorney
General of the United States, the Acting Attorney General, or the
19 United States V. White, 401 U.S. 745 (1971) ; but see the dissenting opinion of Mr.
Justice Harlan for a contrary view.
B0 It should be noted that Executive Order 12036, Jan. 24, 1978, places limits on physical
searches and the opening of mail.
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Deputy Attorney General. Under S. 3197 as reported in the 94th
Congress, only the Attorney General or the Acting Attorney General
could approve an application for an electronic surveillance order. S.
1566 as originally introduced permitted a specially designated Assist-
ant Attorney General to approve such applications. The administra-
tion saw a need to lessen the administrative burden on the Attorney
General which would be perpetuated even after this bill has estab-
lished the safeguards of a court order procedure.
With the assurance of Attorney General Bell in his testimony be-
fore the Judiciary Committee on S. 156G that he would personally
continue to approve applications under the bill until standards of
review have been well established, that 'committee adopted a modified
version of the administration's proposal. It provides authority for the
Attorney General (or the Acting Attorney General) or the Deputy
Attorney General-rather than a specially designated Assistant At-
torney General-to. approve applications for an electronic surveillance
order under this chapter. This committee endorses that approach. The
Deputy Attorney General is appropriate because, as the second-rank-
ing official in the Justice Department, he would most often be the Act-
ing Attorney General in the Attorney General's absence.
G. "Minimization procedures"
The minimization procedures of the bill provide vital safeguards
because they regulate the acquisition, retention, and dissemination of
information about U.S. persons, including persons who are not the au-
thorized targets of surveillance. For example, an entirely innocent
American might use a telephone that is tapped to target someone else.
Or an American might talk on the phone to a foreign official who is
under surveillance for purposes unrelated to the particular conversa-
tion. The procedures also protect Americans who are not parties to a
communication, but who are referred to in the communication; such
information has in the past been disseminated for improper purposes.
Paragraph (8) defines "minimization procedures" as procedures
reasonably designed to minimize the acquisition and retention, and
prohibit the dissemination, except as provided in subsections 2526 (a)
and (b), of any information concerning U.S. persons not related to
certain purposes. Specifically, information concerning Americans must
be related to the ability of the United States to protect itself against
actual or potential attack or other grave hostile acts of a foreign power
or agent of a foreign power, to provide for the national defense or se-
curity of the Nation, to provide for the conduct of the foreign affairs
of the United States, to protect against terrorism or sabotage by for-
eign powers or their agents, or to protect against the clandestine in-
telligence activities of a foreign intelligence service or an agent of a
foreign power.
The minimization requirement of this paragraph is meant generally
to parallel the minimization provision in existing law. (18 U.S.C.
2518 (5) ): As the courts have noted in construing that section, "It
is ... obvious that no electronic surveillance can be so conducted that
innocent conversations can be totally eliminated." 21 In assessing the
minimization effort, the court's role is to determine whether "on the
21 United States v. Bynum, 455 F. 2d 490, 500 (2nd Cir. 1973), cert. denied 423 U.S.
1005 (1975).
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whole, the agents have shown a high regard for the right of privacy
and have done all they reasonably could to avoid unnecessary intru-
sion ." 22 Absent a charge that the minimization procedures have been
disregarded completely, the test of compliance is "whether a good
faith effort to minimize was attempted." 23
Among the factors to be considered in evaluating the reasonable-
ness of the agents' conduct will be the scope of the enterprise under
investigation, the location and operation of the subject telephone (or
microphone), the Government's expectations of the character of and
parties to the calls, and the length or brevity of the monitored conver-
sations.- Minimization procedures may differ depending on the nature
of the relationship to a foreign power, the individuals using the facil-
ities or place to be surveilled, the type of foreign intelligence informa-
tion sought, and other similar factors. Minimization procedures might,
also include restrictions on the use of surveillance to times when foreign
intelligence information is likely to be obtained, directions that the
surveillance cease if it does not produce results of the specified type,
requirements that conversations not involving the named target be
deleted from the records at an appropriate time, and other require-
ments. For example, if a citizen or permanent resident alien were
using facilities of a foreign agent, that were the target of the sur-
veillance, the Government would be reouired to minimize the acquisi-
sition and retention of any information that did not relate to foreign
intelligence purposes.
The definition of minimization speaks in terms of acquisition, reten-
tion and dissemination.
By minimizing acquisition the committee envisions, for example,
that in a given case, where A is the target of a wiretap, after deter-
mining that A's wife is not engaged with him in clandestine intelli-
gence activities, the interception of her calls on the tapped phone, to
which A was not a party, would be discontinued as soon as it was real-
ized that she rather than A was the party. In other cases, however, pri-
marily for technological reasons, it may not be possible to avoid ac-
quiring all conversations. In these situations minimizing retention and
dissemination becomes most important. By minimizing retention, the
committee intends that information acquired, which does. not relate to
the approved purposes in the minimization procedures, be destroyed.
For example, after determining that A's wife is not engaged with her
husband in clandestine intelligence activities, her communications, ac-
quired and retained in order to make this determination, would be
destroyed. Indeed, even A's communications which are clearly not rele-
vant to his clandestine intelligence activities should be destroyed. In
certain cases destruction would take place almost immediately while
in other cases the information might be retained for a reasonable period
in order to determine whether it did indeed relate to one of the ap-
proved purposes. Procedures governing minimization-particularly
how long information should be retained and how it should be de-
stroyed once it is deemed irrelevant-are to be approved by the court
and are, of course, subject to judicial supervision.
22 United States V. Tortoretio, 480 F. 2d 764 (2nd Cir.), cert. denied 414 U.S. 886 (1973).
United States v. Armecida, 515 F. 2d 29. 44 (3d Cir. 1975).
24 United States v. Armoetda, supra; United States v. James, 494 F. 2d 1007 (D.C. Cir.
1974), cert. denied 419 U.S. 1020 (1975) ; United States v. Bynum, supra.
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A Judiciary Committee amendment to the minimization definition
makes explicit the intent that information not related to an approved
purpose not be disseminated. The only exceptions to this prohibition
recognized.by the bill are for one of the purposes authorized in sec-
tion 2521(b) (8), or for the enforcement of the criminal law under
the provisions of section 2526 (a) and (b). Under the dissemination
phrase, information being held to determine relevancy would not be
disseminated until the determination was made (or would only be dis-
seminated to those who could determine its relevancy). It should also
mean that, even with respect to information relevant to an approved
purpose, dissemination would be restricted to those officials with a
need for such information. And, again, the judge, in approving the
minimization procedures, could require specific restrictions on the
retrieval of such information.
In short, the committee believes that the definition of minimization
procedures authorizes and requires that information concerning Amer-
ican citizens and resident aliens be handled in such a way as to assure
that it is used only for the purposes specified in the definition and
not for any other purpose. Some have suggested that the statutory
definition is too general. The committee recognizes, however, that
minimization requirements which are appropriate for some types of
surveillances would be inappropriate for others. A certain flexibility
in the statute is, therefore, necessary with careful judicial scrutiny
of a particular application constituting the best protection against
abuse. But the definition does not give carte blanche to the judge. It
requires that the procedures be designed to limit the acquisition, reten-
tion, and dissemination of information concerning American citi-
zens and lawful resident aliens to that information which is related
to one of the approved purposes; in addition, the procedures must
provide that the information obtained by the surveillance will not
be used for an unrelated purpose (other than for enforcement of the
criminal law, see section 2526(a), infra).
Of course, minimization applies only to information known to con-
cern U.S. persons. Where communications are encoded or otherwise
not processed so the contents of a communication are not known, it
would not be possible to minimize the acquisition, retention, and dis-
semination of information concerning U.S. persons. Nevertheless, the
minimization procedures can be structured to apply to other agencies
of the Government, so that if an agency different from the intercept-
ing agency decodes or processes the communication, it could be re-
quired to minimize the retention and prohibit the dissemination of
information therein concerning U.S. persons.
It should be noted that this provision contains one significant
change from the minimization provisions in chapter 119. Section
2518(a) requires that all interceptions be recorded, if possible, and
that the tapes not be edited or destroyed for 10 years. In a criminal
context the maintenance of such tapes and files under court seal insures
that the. interceptions will be retained in their original state so that
when'criminal prosecutions are undertaken it is clear that the evidence
is intact and has not been tampered with. Although there may be cases
in which information acquired from a foreign intelligence surveillance
will be used as evidence of a crime, these cases are expected to be
relatively few in number, unlike chapter 119 interceptions the very
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purpose of which is to obtain evidence of criminal activity. The com-
mittee believes that in light of the relatively few cases in which infor-
mation acquired under this chapter may be used as evidence, the better
practice is to allow the destruction of information that is not foreign
intelligence information or evidence of criminal activity. This course
will safeguard the privacy of individuals more effectively, insuring
that irrelevant information will not be filed. The committee believes
that existing criminal statutes relating to obstruction of justice will
deter any efforts to tamper with evidence acquired under this chapter.
Such destruction should occur, of course, only pursuant to procedures
approved by the court. Destruction insures that the information can-
not be used to "taint" a civil or criminal proceeding; accordingly,
there is no requirement to index, for purposes of 18 U.S.C. section
3504, interceptions which are destroyed.
The committee is concerned that the surveillance authorized under
this chapter not result in the retention or dissemination of informa-
tion which would adversely affect the exercise of first amendment
rights. Such abuses occurred with distressing frequency in the past. In-
formation relating solely to the lawful political activity of American
citizens or resident aliens may not be retained or disseminated under
the provisions of this legislation.
In a hypothetical case, for example, an ambassador from an im-
portant neutral nation, speaking to a U.S. Senator, tells the Senator
that his country has been approached secretly by a foreign nation
concerning a planned attack on the United States. Assuming that the
surveillance was initiated against, the ambassador and approved in
accordance with the procedures of this chapter, there should be no
doubt that the information could be retained and used because of its
importance and relationship "to the ability of the United States to
protect itself against actual or potential attack." At the same time,
however, the constitutional rights of speech, association, and privacy
of the Senator are implicated. He is plainly not the target of the
surveillance, nor could he be, since he is not the "agent of a foreign
power." Still he is overheard. The functioning of democratic govern-
ment can be impaired if its representatives are deterred from discuss-
ing important issues with representatives of other countries for fear
that their conversations will be overheard and retained.
There is no perfect solution to the problem. As long as the surveil-
lance was instituted lawfully, the Senator's conversation may be over-
heard. Given the subject matter of the conversation, it should not be
excluded by minimization procedures. If the subject matter relates
to foreign intelligence purposes, the information should be retained.
The alternative--a blanket rule depriving the Government of the
right to retain foreign intelligence, regardless of its importance, be-
cause an American citizen was incidentally overheard-is unaccept-
able. Similarly, it would not be advisable to obligate the Government
to render the conversation senseless by deleting all portions of the
statements in the conversation made by the Senator.
The committee believes, however, that every effort should be made
to minimize the "chilling effect" that retention of such conversations
of Americans will have. Therefore, the definition of minimization
procedures places additional restrictions on the dissemination of infor-
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ination, where abuses are most likely to occur. These restrictions focus
on those types of information which are the hardest to pin down
concretely, that is, information which relates solely to the national
defense or security and the conduct of foreign affairs. The bill requires
procedures which are reasonably designed to insure that such informa-
tion is not disseminated in a manner which identifies a U.S. person,
without that person's consent, unless the person's identify is neces-
sary to understand or assess the importance of information with re-
spect to a foreign power of foreign territory or the information is
otherwise publicly available.
The phrase "with respect to a foreign power or foreign territory"
comes from the definition of "foreign intelligence information." It
requires that the information must contribute to the fulfillment of the
Government's requirements for foreign intelligence regarding foreign
powers and territories.
The first part of this dissemination standard allows dissemi-
nation where a U.S. person's identity is "necessary to understand" in-
formation with respect to a foreign power or territory. The person's
identity must be needed to make the information fully intelligible. If
the information can be understood without identifying the person, it
should be disseminated that way. However, sometimes it might be
difficult or impossible to make sense out of the information without a
U.S. person's identity. To take one obvious case, if the message says
a foreign government official is arriving in this country at a particular
time and place, it would be necessary to identify the airline he is arriv-
ing on. The airline company would fall in the definition of "United
States person" if it is a U7.S. corporation and not a foreign power.
Another example would be the identity of a person who is the in-
cumbent of an office of the executive branch of the U.S. Government
having significant responsibility for the conduct of U.S. defense or
foreign policy, such as the Secretary of State or the State Department
country desk officer. The identities of such persons would frequently
satisfy the "necessary to understand' requirement, especially when
such person is referred to in the communications of foreign officials.
This example does not mean, however, that all the conversations of a
particular executive branch official with foreign officials who are under
surveillance should he automatically or routinely reported to the U.S.
official's superior without his knowledge or consent.
The second part of the special dissemination standard allows dis-
semination where a U.S. person's identity is necessary to "assess the
importance" of information with respect to a foreign power or terri-
tory. The word "importance" means important in terms of the inter-
ests set out in the definition of foreign intelligence information. For
example, if a foreign government is negotiating with an American
business firm to purchase nuclear materials, it might be important to
the national defense or security-in a military sense-or to the success-
ful conduct of the Government's nonproliferation policy, to know the
identity of the business firm involved. That might be the only way the
State Department could determine whether a deal is likely to be made.
On the other hand, the information may turn out not to be important.
The question under the bill is whether the identity of the person or
entity is needed to asses that importance.
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The third part of the special dissemination standard allows dissemi-
nation where the information identifying a U.S. person is otherwise
publicly available. An example is a foreign official's discussion of the
contents of a newspaper article referring to U.S. persons.
Of course, none of these are hard-and-fast lines. What the bill
requires is careful deliberation by responsible officials in the executive
branch. The court is also authorized to monitor compliance with the
minimization procedures, including the special dissemination proce-
dures, in order to deter abuses. There will inevitably be close judgment
calls, both in devising detailed procedures and in applying them to
particular circumstances. Therefore, the bill does not attempt to im-
pose absolute rules, but rather says that the procedures must be rea-
sonably designed" to achieve their objectives.
S. 1566 as reported by the Judiciary Committee included different
procedural requirements which had been added by this committee to
S. 3197 in the 94th Congress. The committee has determined on the
basis of further study that these procedures, dealing with the manner
of retention of information and with surveillance of certain foreign-
controlled entities, may be too complex to administer. Therefore, they
have been deleted from the bill.
The committee looks with favor, however, upon efforts by the Execu-
tive Branch to devise and submit to the court . more restrictive proce-
dures than the minimum standards required by the terms of the bill
itself. The Attorney General has already promulgated procedures gov-
erning certain surveillance activities which would be covered by
S. 1566; and this committee has examined those procedures in the
course of discharging its responsibilities. The committee does not in-
tend that passage of S. 1566, which by its terms might be interpreted
as permitting relaxation of current restrictions, should automatically
have this effect.
In some instances the surveillance technology available to the Gov-
ernment requires more rigorous procedures than those prescribed by
S. 1566, in order to safeguard privacy interests adequately. Such pro-
cedures cannot be spelled out by law, or otherwise disclosed publicly,
without revealing sensitive sources and methods of foreign intelli-
gence collection. Nevertheless, the committee intends that the Attor-
ney General should continue the efforts already underway to establish
procedures whicli will most effectively reconcile privacy interests with
advancing technology, and that the court should take such considera-
tions into account in approving the procedures that are proposed by
the Attorney General. It is also anticipated that this committee will
continue to review such procedures.
Existing policies governing the dissemination of information ob-
tained through conventional electronic surveillance techniques, such
as wiretapping, should be revised if they conflict with any requirement
of the bill.25 For example, information about the suitability or credi-
bility of U.S. persons who are sources or contacts of an agency in the
intelligence community, or who are reasonably believed to be potential
sources or contacts, might be disseminated on specific request by name
from the particular agency. It is questionable whether all such dis-
25 C.F., letter from Attorney General Griffin B. Bell to Hon. Birch Bayh, chairman, Senate
Select Committee on Intelligence, Feb. 28, 1978.
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semination, without the person's consent, would be permitted as a rou-
tine matter under the minimization procedures of S. 1566. However,
if the consent of the person is obtained for the conduct of an inquiry
regarding his suitability or credibility as a source or contact, S. 1566
would allow such dissemination in the course of the inquiry. The per-
son should be advised that consent for the inquiry means consent for
the retrieval and dissemination of information in the possession of the
agencies in the Intelligence Community by means, for example, of a
"national agencies name check." Information may not, of course, be
retained for such dissemination unless it otherwise satisfies the statu-
tory requirements for retention.
Similarly, information might be disseminated where it raises a ques-
tion about the trustworthiness of a current Federal employee, a former
employee of an agency in the intelligence community, a person holding
a security clearance or having access to sensitive information or facili-
ties, or a person who held a security clearance for or was otherwise
granted access to information classified as "Secret" or a higher classifi-
cation. Such information might be disseminated to the Government
employer or former employer, the agency which granted the clearance
or access, or another Federal agency having responsibility to investi-
gate the trustworthiness of the individual. Such dissemination might
also occur where the information raises a question about the trust-
worthiness of individuals who are applicants or prospective Govern-
rnent employees, if the disseminating agency verified the employer's
official interest in the individual concerned. Once again, it is question-
able whether all such dissemination, without the person's consent,
would be permitted as a routine matter; and information may not be
retained for such dissemination unless it otherwise satisfies the re-
quirements for retention.
The committee wishes to emphasize that dissemination without the
person's consent requires a determination that, the information relates
to the ability of the United States to protect against grave hostile acts
of a foreign power or foreign agent, sabotage or terrorism by a foreign
power or foreign agent, or the clandestine intelligence activities of a
foreign intelligence service or foreign agent; or that the information
relates to national defense or security or foreign affairs and is neces-
sary to understand or assess the importance of information with re-
spect to a foreign power or territory or is otherwise publicly available.
A reasonable case can be made that information about the suitability
or credibility of intelligence sources or contacts, and information
about the trustworthiness of persons who hold, have held, or are. ex-
pected to hold positions giving them access to sensitive information
or facilities, would relate to the. ability of the United States to protect
against clandestine intelligence activities of a foreign power or for-
eign agent. The case is less compelling, 'however, where the informa-
tion is not counterintelligence information but merely concerns the
trustworthiness of a person who is a Government employee not having
or having had access to sensitive information or facilities, or an appli-
cant or prospective applicant for such a position.
Additionally, the provisions of S. 1566 permitting dissemination
and use for law enforcement purposes of information that is evidence
of a crime would not permit dissemination of information when nec-
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essary to the conduct of any investigation that may be within the juris-
diction of a law enforcement agency. Such investigations must be
criminal investigations, rather than civil, background, or other types
of investigations.
If provision is made for dissemination in exceptional circumstances
that are not otherwise provided for in more detailed minimization
procedures, for example, with the prior approval of the Attorney Gen-
eral, such a provision must be approved by the judge to whom the
procedures are presented in an application for an electronic surveil-
lance order; and such a provision may be approved and applied only, in
conformity with the minimization requirements of S. 1566 itself.
These considerations should be taken into account by the court and
by the executive branch, especially the Attorney General, in applying
the minimization requirements of S. 1566 to the dissemination of in-
formation obtained through conventional electronic surveillance.
H. "United States person" and "United States"
Section 2521(b) (9) defines a "United States person" to include a
citizen of the United States, an alien lawfully admitted for permanent
residence, an unincorporated association of which a substantial num-
ber of members are citizens of the United States or permanent resident
aliens, and a corporation incorporated in the United States, but not
including corporations or associations which are "foreign powers" as
defined in section 2521(b) (1) (A)-(E).
The term "United States person" was not defined in S. 3197, as re-
ported in the 94th Congress, because S. 3197 made no distinction in its
provisions between different types of "persons." S. 1566 does not, for
example, afford to nonresident aliens the protections of the "minimiza-
tion procedures" or the court's review of the certification that sur-
veillance of the person is required to obtain information "necessary"
for certain purposes. However, such protections either did not exist
or were less stringent in S. 3197. Their application to nonresident
aliens would impose undue burdens upon the court and the agencies
conducting electronic surveillance.
The term "members" with respect to unincorporated associations is
not intended, of course, to be limited to formal, card-carrying mem-
bers. For instance, an unincorporated commercial establishment's em-
ployees would be, members under this definition. The committee in-
tends the reference to "a substantial number of members" to be equiva-
lent to the term "substantially composed of" used in parts (B) and
(E) of the definition of "foreign power." In both contexts the words
"substantial" or "substantially" require that there be a significant pro-
portion, but less than a majority. The judge is expected to take all the
known circumstances into account in determining whether an asso-
ciation is a "United States person."
S. 1566 as reported by the Judiciary Committee excluded from
"United States person" any corporation or association which is a for-
eign power. This exception has been modified to exclude only those
foreign powers which fall into parts (A)-(E) of the "foreign power"
definition. A corporation incorporated in the United States, or an un-
incorporated association of which a substantial number of members
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are American citizens or resident aliens, retains its "United States
person" status if it is alleged to be directed and controlled by a for-
eign government, but where such direction and control is not openly
acknowledged. This provides safeguards needed because of the possi-
bility that such an entity could be placed under surveillance without
meeting the requirements for surveillance of an individual U.S. per-
son. See section 2521(b) (1) (E), supra.
Section 2521 (b) (10) offers a new definition of "United States" for
geographic purposes. Evidence publicized last year of CIA activities
in Micronesia led the administration to propose this change which
makes explicit that S. 1566 covers electronic surveillance in all areas
under the territorial sovereignty of the United States (the United
States and its territories) as well as the Canal Zone and Micronesia. The
term "territorial sovereignty" does not include U.S. Embassies, military
bases, and other installations abroad. The Commonwealth of the
Northern Marianas is intended to be covered by this definition after
its severance from the Trust Territory of the Pacific Islands. The re-
mainder of the Trust Territory of the Pacific Islands is intended to be
covered so long as the trust is in effect and thereafter only if the poli-
tical status agreements with the United States provide for territorial
sovereignty of the United States in a manner similar to that of the
Northern Mariana Islands, Puerto Rico, or Guam.
Section 2522
Section 2522 authorizes the submission of applications to a judge for
a court order approving the use of electronic surveillance under this
chapter. Applications may be, submitted only if the President has, by
prior written authorization, empowered the Attorney General to ap-
prove the submission. This section does not require the President to
authorize each specific application ; he may authorize the Attorney
General generally to seek applications under this chapter or upon such
terms and conditions as the President wishes so long as the terms and
conditions are consistent with this chapter. The reference to Presi-
dential authorization does not mean that the President has inde-
pendent, or "inherent," authority to authorize electronic surveillance
in any way contrary to the provisions of S. 1566. The procedures of this
bill are "the exclusive means" by which electronic surveillance, as de-
fined in section 2521 (b) (6), maybe conducted. See conforming amend-
ment section. (f) to section 2511(2), chapter 119, United States Code,
infra. This bill will establish the exclusive United States law governing
electronic surveillance in the United States for foreign intelligence
purposes. Therefore, an application ~f for a 1 urt order h meets the
standards of this bill should be granted, g any
law, treaty, or international agreement.
Section 2523
Subsection (a) provides for public designation by the Chief Justice
of seven U.S. district court judges to sit on a special court, each
member of whch may hear applications and grant. orders under this
chapter. The court shall have nationwide jurisdiction, and the com-
mittee contemplates that there will be some geographic dispersion
among the judges designated. The provision for the judges to serve
as members of a special court has been added upon the recommenda-
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tion of the General Counsel of the Administrative Office of the U.S.
Courts.2s The committee intends that the special court should sit
continuously in the District of Columbia.
The subsection provides that none of the designated judges shall
have jurisdiction to hear an application for electronic surveillance if
that same application has been previously denied by another of the
designated district judges. This provision is intended to make clear
that if the Government desires to pursue an application after a denial,
it must seek review in the special court of review established in sub-
section (b) ; it cannot apply to another district judge. Obviously,
where one judge has asked for additional information before approving
an application, and that judge is unavailable when the Government
comes forward with such additional information, the Government
may seek approval from another judge. It would, however, have to
inform the second judge about the first application. See section
2524 (a) (9), infra.
Similarly, where an application is made and then withdrawn,
perhaps because a change in circumstances makes the electronic sur-
veillance no longer technically feasible, the Government may seek
approval from another judge if the application is subsequently rein-
stated. The committee does not intend, however, that the Government
be allowed to seek approval from another judge if the original with-
drawal was occasioned by indications that the first judge intended to
deny or modify the order requested by the Government.
The subsection further provides that a designated district judge
who denies an application for electronic surveillance shall provide a
complete written statement of the reasons for the denial, and, if the
Government seeks review of the decision, forward that statement and
other documents comprising the record to the special court of review.
This insures that the special court of review will have the full record
of the proceedings of the district, court in reviewing the case.
Subsection (b) provides for the public designation by the Chief
Justice of three judges from the Federal courts of appeals or district
courts who shall sit together as a special court of review having juris-
diction to review denials of applications made to the individual judges
designated in subsection (a). One of the three is to be designated
publicly as the presiding judge. If the special court of review deter-
mines that an application was properly denied, it shall provide a
wrtten statement of the reasons for its decision and, on petition of the
(government for a writ of certiorari, forward the complete record to
the Supreme Court, which will have jurisdiction to review the decision.
Subsection (c) provides for the expeditious handling of all pro-
ceedings under this chapter and also states that the Chief Justice, in
consultation with the Attorney General and the Director of Central
Intelligence, shall establish security measures under which applica-
tions made and orders granted shall be maintained. The committee
contemplates that the record of applications made, information pro-
vided, and orders granted by the several judges designated under this
chapter shall be maintained in such a way that the judges designated
h20
the Subcoof Carl H. mmittee onImlay, gisGeneral Couns, lation of the Administrative ce of the U.S. PermanentSel ct Committee Ton
Intelligence, Jan. 10, 1978.
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under this chapter shall have access when necessary to the records of
actions taken by the other judges similarly designated.
Subsection (d) has been added to S. 1566, as reported by the Ju-
diciary Committee, for the purpose of providing fixed, staggered terms
for the judges, also as recommended by the General Counsel of the
Administrative Office of the U.S. Courts. Each judge designated under
this section shall so serve for a maximum of OF years and shall not be
eligible for redesignation. The judges first designated under sub-
section (a) shall be designated for terms of from 1 to 7 years so that
one term expires each year. The judges first designated under sub-
section (b) shall be designated for terms of 3, 5, and 7 years.
Section 2524
This section is patterned after 18 U.S.C. section 2518 (1) and (2),
and specifies what information must be included in the application.
Applications must' be made by a Federal officer in writing and under
oath or affirmation. If the officer making the application is unable
to verify the accuracy of the information or representations upon
which the application is based, the application should include affidavits
by other officers who are able to provide such personal verification.
Thus, for example, if the applicant was an attorney in the Department
of Justice who had not personally gathered the information contained
in the application, it would be necessary that the application also con-
tain an affidavit by the investigating officer personally attesting to the
status and reliability of any informants or other covert sources of
information. By this means the source of all information contained in
the application and its accuracy will have been sworn to by a named
official of the U.S. Government and a, chain of responsibility established
for judicial review.
Each application must be approved by the Attorney General, who
may grant such approval if he finds that the appropriate procedure:;
have been followed. The Attorney General's written approval mast
indicate his belief that the facts and circumstances relied upon for the
application would justify a judicial finding of probable cause that the
target is an agent of a foreign power and that the facilities or place
at which the electronic surveillance is directed are being used, or about
to be used, by an agent of a foreign power, and that all other statu-
tory criteria have been met. In addition, the, Attorney General must
personally be satisfied that the certification has been made pursuant
to statutory requirements.
Paragraph (1 ) of subsection (a) requires that the application iden-
tify the Federal officer making the application; that is, the name of
the person who actually presents the application to the judge.
Paragraph (2) requires that the application contain evidence of the
authority of the applicant to make this application. This would consist
of the Presidential authorization to the Attorney General and the
Attorney General's approval. of the particular application.
Paragraph (3) requires the identity or description of the person
who is the target of the electronic surveillance. The word "person" is
used in its juridical sense to mean the individual or entity that is the
target of the surveillance. However, care must be taken in framing the
order authorizing such surveillance-and minimization procedures---
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that surveillance against one individual does not lead to the acquisi-
tion, retention, and dissemination of communications of an entire
group or organization of U.S. citizens, thus violating constitutional
rights of association and privacy.
Paragraph (4) requires a statement of the facts and circumstances
justifying the applicant's belief that the target of the electronic sur-
veillance is a foreign power or an agent of a foreign power and that
the facilities or place at which the surveillance is directed are being
used or are about to be used. by that power or agent. These require-
ments parallel existing law on surveillances for law enforcement pur-
poses (18 U.S.C. 251.8(1) (b) (ii) and (iv) ).
Paragraph (5) requires a statement of the proposed minimization
procedures. The statement of procedures required under this para-
graph should be fuIl and complete and subject to close judicial review.
These procedures may differ from case to case, depending on the. type
of foreign agent involved, the individuals using the facilities or place
to be surveilled, the type of foreign intelligence information sought,
and other similar factors. Minimization procedures should where pos-
sible, include such elements as methods to avoid the acquisition of
irrelevant information at the time of intercept, restrictions on the use
of surveillance to times when foreign intelligence information is likely
to be obtained, and requirements for deletion of information obtained
which does not relate to foreign intelligence purposes.
For example, steps should be taken to prevent unnecessary invasion
of the privacy of a target's family caused by a 24-hour tap on the
family phone when it is known that the target is out of town or at the
office. Similarly, conversations unrelated to foreign intelligence should
not be retained or, of course, disseminated.
It is the intention of the committee that minimization procedures
be as uniform as possible for similar surveillances. The committee
recognizes that certain types of surveillance operations may involve
essentially indentical concerns with respect to protecting U.S. per-
sons' rights. This is so regardless of the specific targets involved and
makes possible the adoption of uniform minimization procedures for
essentially identical surveillance operations. The application of uni-
form procedures to identical surveillances will result in a more con-
sistent implementation of the procedures, will result in an improved
capability to assure compliance with the procedures, and ultimately
means a higher level of protection for the rights of U.S. persons.
Paragraph (6) calls for a factual description of the nature of the
information sought by the electronic surveillance, except where the
surveillance is of a foreign power as defined in section 2521 (b) (1) (A),
(B), or (C). The description should be as specific as possible and suf-
ficiently detailed so as to state clearly what the Government seeks. A
simple designation of which subdefinition of "foreign intelligence in-
formation" is involved will not suffice. Such a description is not re-
quired where a target is one of the "official" foreign powers defined
in section 2521 (b) (1) (A), (B), or (C). Where these types of powers
are the targets, a designation of a particular subcategory of the de-
finition of "foreign intelligence information," as required by sub-
paragraph (7) (D), will suffice. The reason for this distinction is that,
with respect to such "official" targets, the sensitivity of the surveillance
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is greatly multiplied while the risk of a fruitless surveillance which
will not obtain any foreign intelligence information is greatly re-
duced. Therefore the administration maintains that such applications
should not require as much detailed information to be presented as in
cases involving American citizens or other individual targets.
Paragraph (7) requires a certification or certifications by the As-
sistant to the President for National Security Affairs or by an ap-
propriate executive official appointed by the President with the advice
and consent of the Senate. The certification would be made by an of-
ficial having responsibility for the collection of the information-
normally the Assistant to the President for National Security Affairs,
the Director of Central Intelligence, the Director of the Federal
Bureau of Investigation, or the Secretary of Defense-or such other
officer, appointed with the advice and consent of the Senate, who has
full knowledge of the case. The possibility of additional certifications
is provided to insure that a detailed and complete certification is
presented to the judge. The judge may, of course, require the applicant
to furnish further information regarding the basis for the certifica-
tion. See subsection (c) and section 2525 (a) (5), infra.
The certification shall state that the certifying official deems the in-
formation sought to be foreign intelligence information, that the pur-
pose of the surveillance is to obtain foreign intelligence information,
and that such information cannot feasibly be obtained by normal in-
vestigative techniques. It shall include a designation of what type of
foreign intelligence information is sought and, where the target is
not a foreign power as defined in section 2521(b) (1) (A), (B), or (C),
a reasoned statement of the basis for certifying that the information
sought is foreign intelligence information and that such information
cannot feasibly be obtained by other investigative techniques.
The requirement that the information sought be deemed "foreign
intelligence information" is designed to insure that a high-level of-
ficial with responsibility in the area of national security will review
and, where the target is not a foreign power as defined in section 2521
(b) (1) (A), (B), or (C), explain the executive branch determination
that the information sought is in fact foreign intelligence information.
The requirement that this judgment be explained is to insure that those
making certifications consider carefully the cases before them and
avoid the temptation simply to sign off on certifications that consist
largely of boilerplate language. The committee does not intend that
the certification be vague generalizations or standardized assertions.
The designated official must similarly explain that the purpose of the
surveillance is to obtain the described foreign intelligence information.
This requirement is designed to prevent the practice of targeting one
individual for electronic surveillance when the true purpose of the
surveillance is to gather information about another individual. It is
also designed to make explicit that the sole purpose of such surveillance
is to secure foreign intelligence information and not to obtain infor-
mation for any other purpose. The designated official must similarly
explain in his affidavit why the information cannot be obtained through
less intrusive techniques. This requirement is particularly important
in those cases when U.S. citizens or resident aliens are the target of the
surveillance.
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Finally, where the target of the surveillance is one of the special
class of "official" foreign powers (defined in sections 2521(b) (1) (A),
(B), or (Q), the certification shall include a statement of the period
of time for which the surveillance is required. With respect to sur-
veillances of this special class of foreign powers, this statement is
placed in the certification because the reviewing court does not have
the power to control the length of the surveillance as is the case within
the 90-day period otherwise applicable in the bill.
Paragraph (8) requires the application to contain a statement of
the means by which the surveillance will be effected where the target
is other than the special class of foreign powers. Where the target is
one of the special classes of foreign powers listed in section 2521(b)
(1) (A), (B), or (C), only a designation of the type of surveillance
according to the categories of the definition of electronic surveillance
is required. It will be sufficient in such cases if the application merely
indicates whether the information will be acquired by means of a wire-
tap, amicrophone installation, the interception of ~a radio signal, or
some other means. Less specificity in describing the means of the sur-
veillance is required for the special class of foreign powers because
of the extreme importance and sensitivity of the information sought.
If such a surveillance requires physical entry (whether forcible or not)
of the property of a nonconsenting person, a statement to that effect is
required.
Paragraph (9) parallels 18 U.S.C. 2518 (1) (e) and requires a state-
ment concerning all previous applications dealing with the same
persons, facilities, or places, and the disposition of each such previous
application.
Paragraph (10) parallels 18 U.S.C. 2518(1) (d) and requires a
statement as to the period of time for which the surveillance is neces-
sary in those cases where the special class of foreign powers is not the
target. If the surveillance order is not to terminate automatically
when the particular information sought has been obtained, the ap-
plicant must provide facts supporting his belief that additional in-
formation of the same type will be obtained thereafter.
Subsection (b) allows the Attorney General to require other execu-
tive officers to provide information to support the application.
Subsection (c) enables the judge to require the applicant to furnish
further information as may be necessary to make the required deter-
minations. It parallels existing law, 18 U.S.C. 2518(2). Such addi-
tional proffers would, of course, be made part of the record and would
be subject to the security safeguards applied to the application and
order.
ES'ertion 2525 i
Subsection (a) of this section is patterned after 18 U.S.C. 2518(3)
and specifies the findings the judge must make before he grants an
order approving the use of electronic surveillance for foreign intel-
ligence purposes. While the issuance of an order is mandatory if the
judge finds that all of the requirements of this section are met, the
Judge has the discretionary power to modify the order sought, such
as with regard to the period of authorization (except where the spe-
cial class of foreign powers is the target) or the minimization proce-
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dures to be followed. Modifications in the minimization procedures
should take into account the impact of inconsistent procedures on
successful implementation.
Paragraph (1) of this subsection requires the judge to find that the
President has authorized the Attorney General to approve such appli-
cations.
Paragraph (2) requires the judge to find that the Attorney General
has approved the application being submitted and that the application
has been made by a Federal officer.
Paragraph (3) requires a finding that there is "probable cause" to
believe that the target of the electronic surveillance is a foreign power
or an agent of a foreign power and that the facilities or place at which
the surveillance is directed are being used or are about to be used by
that power or agent.
In determining whether probable cause exists under this section, the
court must consider the same requisite elements which govern such
determinations in the traditional criminal context. Such elements in-
clude, for example, the issue of any informant's reliability, the cir-
cumstances under which the informant was able to learn about the
alleged. activity of the individual who is the subject of the warrant,
the length of time which has passed since the information relied upon
was acquired, and the degree to which information corroborating an
informant must relate to the essential conduct on which the applica-
tion is premised and not merely to incidental details.
In addition, in order to find "probable cause" to believe the subject
of the surveillace is an "agent of a foreign power" under subsection
2521 (b) (2), the judge must, of course, find that each and every ele-
ment of that status exists. For example, if a U.S. citizen or resident
alien is alleged to be acting on behalf of a foreign entity, the judge
must, first find probable cause to believe that the entity is a "foreign
power" as defined in section 2521(b) (1). There must also be probable
cause to believe the person is acting for on behalf of that foreign
power and probable cause to believe that the efforts undertaken by the
person on behalf of the foreign power constitute sabotage, terrorism,
or other proscribed activities as defined in section 2521(b) (2) (B).
Similar findings of probable cause are required for each element
necessary to establish that a U.S. citizen is conspiring with or aiding
and abetting someone engaged in sabotage, terrorism, or clandestine
intelligence activities at, the direction of a foreign power.
Paragraph (4) requires the judge to find that the procedures de-
scribed in the application to minimize the acquisition, retention, and
dissemination of certain information or communications relating to
U.S. citizens or lawful resident alien fit the definition of minimization
procedures. The comm:itteo contemplates that the court would give
these procedures most careful consideration. If it is not convinced that
they will be effective, the application should be denied or the proce-
dures modified. The committee realizes that total minimization may
not be, possible. Therefore, the bill's requirement is phrased in terms
of minimization procedures being "reasonably designed." Thus, or
example, where irrelevant information cannot be erased from part of
a tape, minimization procedures should restrict dissemination of the
tape. In addition, where it cannot be determined immediately whether
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a certain piece of information is irrelevant, minimization procedures
should require that within a specified time such a determination be
made and the irrelevant matter expunged.
Paragraph (5) requires that the judges find that the application
contains the description and certification or certifications specified in
section 2524 (a) (7). If the application meets the requirements of those
sections, the court is not permitted to substitute its judgment for that
of the executive branch officials, except where a U.S. person is the tar-
get of a surveillance. In such a case, the judge must review the cer-
tifications to determine whether they are clearly erroneous. This au-
thority of the court to "look behind" the certification for surveillances
of Americans and reject them if "clearly erroneous" is recognized by
the committee as a major improvement over S. 3197 (which did not
provide for any judicial review of the certifications). The "clearly
erroneous" standard of review is not, of course, comparable to a prob-
able cause finding by the judge. Nevertheless, S. 1566 does provide a
workable procedure for judicial review (and possible rejection) of
executive branch certifications for surveillances of United States
persons.
S. 1566 as reported by the Judiciary Committee has been amended
to clarify the point that the judge may base his review of the certifica-
tion regarding U.S. persons not only on the statement initially sub-
mitted to him but also on any other information required by the judge
to be furnished as necessary for him to determine whether or not the
certification is clearly erroneous, see section 2524(c) supra. The judge
must find that the determination by the certifying official that the
information sought concerning a U.S. person is "foreign intelligence
information" was not a clearly erroneous determination.
Despite the fact that the court is not allowed to "look behind" the
certification in cases not involving U.S. persons there are several
checks against the possibility of arbitrary executive action. First,
the court, not the executive branch, makes the finding of whether
probable cause exists that the target of surveillance is a foreign power
or its agent. Second, the certification procedure assures written ac-
countability within the executive branch for the decision made to
engage in such surveillance. This constitutes an internal check on
executive branch arbitrariness.
Moreover, it should be noted that if the description and certification
do not comply fully with section 2524 (a) (7), they can and must be
rejected by the court. Thus, the court could invalidate the certifica-
tion if it were not properly signed by the President's designee, did
not designate the type of information sought, or did not state that
the information sought is deemed to be foreign intelligence informa-
tion that the purpose of the surveillance is to obtain foreign intelli-
gence information, and that such information cannot feasibly be
obtained by normal investigative techniques. Further, if the certifica-
tion did not present an explanation of why the information sought
is foreign intelligence information which cannot be obtained through
normal investigative techniques, the judge could (if surveillance
was not targeted against the special class of foreign powers) reject
the application or defer approval until an adequate certification was
supplied.
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Subsection (b) specifies what the order approving the electronic
surveillance must contain. It must include the identity or a description
of the person or persons targeted by the electronic surveillance. The
order must specify the place or facilities against which the surveillance
is directed. The order must also specify the type of information sought,
or where the special class of foreign powers is the target, the specific
category of "foreign intelligence information." These requirements are
designed to satisfy the fourth amendment's requirements that warrants
describe with particularity and specificity the person, place, and ob-
jects to be searched or seized. The order must, in addition to the fourth
amendment's requirements, specify the means by which the surveil-
lance will be effected (where the target is one of the special class of
foreign powers, however, only the specific category of "electronic sur-
veillance" is required). In addition, the order must specify the period
of time during which the surveillance is approved.
The order shall direct that minimization procedures will be fol-
lowed. It is intended that the court shall monitor compliance with
the minimization procedures in much the same way as has been done
pursuant to chapter 119. Willful failure to abid by the minimization
procedures may be treated as contempt of court.
The order may also direct that a common carrier, landlord, cus-
todian, contractor or other specified person furnish information, facili-
ties or technical assistance necessary to accomplish the electronic sur-
veillance successfully and with a minimum of interference to the serv-
ices provided by such person to the target of the surveillance. If this
is done, the court shall direct that the person rendering the assistance
maintain under security procedures approved by the Attorney General
and the Director of the Central Intelligence Agency any records con-
cerning surveillance which the person wishes to retain. If the judge
directs such assistance, he shall also direct that the applicant com-
pensate the person for such assistance. These provisions generally
parallel 18 U.S.C. 2518 (4).
This directive provision must be read in conjunction with the bill's
conforming amendment to 18 U.S.C. 2511(2) (a) (ii), contained in sec-
tion 4(b) of this bill. That amendment requires that before a com-
munication common carrier or its agent provides such information,
facilities or technical assistance to an investigative or law enforcement
officer, that officer is required to furnish to the carrier either an order
signed by the authorized judge certifying that a court order directing
such assistance has been issued or, in the case of surveillance under-
taken under chapter 119 or 120 in which a prior order is not required,
such as an emergency surveillance, a certification under oath by the
officer requesting the assistance that the applicable statutory require-
ments have been met.
Subsection (c) allows an order approving electronic surveillance
under this chapter against any person or entity other than a special
foreign power as defined in section 2521(b) (1) (A), (B), or (C) to be
effective for the period necessary to achieve its purposes or for 90 days,
whichever is less. In the committee's view 90 days is the maximum
length of time during which a surveillance of these persons or entities
for foreign intelligence purposes should continue without renewed
judicial sQrutiny. This period of time is not as long as some have wished
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but longer than others desired. It is considered to be a reasonable con-
dition in the foreign intelligence context. 27
When the special class of "official" foreign powers is targeted, how-
ever, the surveillance may last as long as one year. Moreover, the ex-
ecutive determines the necessary length of the surveillance of these
special foreign powers (not to exceed 1 year without reauthorization),
and this determination is not subject to the court's review or approval.
As already indicated, this is a substantial change from S. 3197 as re-
ported in the 94th Congress. There are, however, considerable argu-
ments for the change : First, the determination that an entity is within
the definition of section 2521 (b) (1) (A), (B), or (C) is not likely to
be erroneous. Unlike a person suspected of being a foreign agent,
whether an entity fits one of the three special classes of foreign
powers-such as a foreign embassy or consulate-will usually be self-
evident. Second, the likelihood of obtaining valuable foreign intelli-
gence information from these entities is very high. Third, surveillance
against such official powers, because of their continuing presence in the
United States, is likely to be required for much longer periods of time.
Although such surveillance could be accomplished by successive 90-
day court renewals, the generation of four times the amount of re-
quired paperwork with the attendant increased possibility of a com-
promise as well as the administrative burden which would result, are
reasons for exempting these foreign powers from the 90-day limita-
tion. Given these considerations and the unique status of the targets in-
volved, the committee believes that 1 year is not an excessive period of
time.
In coming to this conclusion, however, the committee emphasizes
that, in order for U.S. citizens to be protected adequately in such
cases, this provision must not be interpreted to bar judicial review of
the effectiveness of the minimization procedures. U.S. citizens may be
overheard talking to employees of such an "official" foreign power or
may be referred to by such employees. As already indicated, the court
has the power to review minimization during the course of the sur-
veillance as it does now under chapter 119. This applies regardless of
the type of target and remains an important protection.
As under chapter 119, extensions of an order may be sought and
granted on the same basis as the original order. A new application,
including a new certification pursuant to section 2524(a) (7), would
therefore be required, updating the information provided previously.
Before the extension should be granted, however, the court would again
have to find probable cause that the target is a foreign power or its
agent. To aid the judge in making this determination anew, it is ex-
pected that the court would evaluate the success or failure of any pre-
vious surveillances and the facts and circumstances surrounding such
surveillance. The court, however, in considering a renewal involving
a foreign power as defined in section 2521 (b) (1) (A), (B), or (C),
cannot order the Government to submit any information actually ob-
tained as a result of the original surveillance or previous extension.
This change from S. 3197 reflects concern with the sensitive nature of
the information obtained from special foreign powers.
27 United States v. United States District Court, 407 U.S. 297 at 323 (1972).
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In order to make clear the judge's authority to review compliance
with the minimization procedures, a provision has been added at the
end of subsection (c). It provides that at the end of the
period of time for which an electronic surveillance is ap-
proved by an order or an extension issued under this section, the
judge may assess compliance with the minimization procedures re-
quired by this chapter. This provision is not intended to require the
judge to assess such compliance, nor is it intended to limit such assess-
ments to any particular intervals. The committee believes, however,
that it is useful to spell out the judge's authority explicitly so that there
will be no doubt that a judge may review the manner in which infor-
mation about U.S. persons is being handled. This specifically includes
information about U.S. persons acquired from electronic surveillance
of a foreign power, as defined in section 2521(b) (1) (A), (B), or (C).
Subsection (d) authorizes the Attorney General to approve an
emergency electronic surveillance prior to judicial authorization un-
der certain limited circumstances. First, the Attorney General must
determine that an emergency situation exists which requires the em-
ployment of electronic surveillance before an order authorizing such
surveillance can with due diligence be obtained. In addition, the fac-
tual basis for the issuance of an order under this chapter must be
present.
The procedures under which such an emergency surveillance is au-
thorized are considerably stricter than those of the comparable pro-
vision in chanter 119, 18 U.S.C. 2518(7). First, only the Attorney
General-as defined-may authorize such emergency surveillance,
whereas in 18 TT.S.C. 2518(7) the Attorney General may designate any
investigative or law enforcement officer to authorize emergency inter-
ceptions under that subsection. Second. the Attorney General or his
designee must contemporaneously notify one of the designated judges
that an emergency surveillance has been authorized. There is no com-
parable requirement- in 18 U.S.C. 2518(7). Third, an application for
an order approving the surveillance must be made to that judge within
24 hours, 18 U.S.C. 2518 (7) requires the. application to be made within
48 hours. Fourth, the emergency surveillance cannot continue beyond
24 hours without the issuance of an order; under 18 U.S.C. 2,518 (7)
the emergency surveillance may continue indefinitely until the judge
denies the application. Fifth, the Attorney General must order that
minimization procedures required by this chanter for the issuance of
a judicial order be followed during the period of the emergency sur-
veillance. There is no comparable provision under 18 U.S.C. 2,518 (7).
This last provision is designed to insure that, as much as possible be
done to eliminate the acquisition, retention, and dissemination of :in-
formation which does not relate to foreign intelligence purposes. The
committee's intent, is to place the Attorney General in the role of the
court during the 24-hour emergency period. He must examine the min-
imization procedures as the court could normally do under paragraph
(a) (4) of this section, and ensure that the appropriate procedures are
followed.
The committee wishes to emphasize that the application must be
made for judicial approval even if the surveillance is terminated
within the 24-hour period and regardless of whether the information
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sought is obtained. This requirement insures that all emergency sur-
veillance initialed pursuant to this chapter will receive judicial review
and that judicial approval or denial will be forthcoming nunc pro
tune. Thus, the termination of an emergency surveillance before the
expiration of the 24-hour period shall not be a basis for the court fail-
ing to enter an order approving or disapproving the subsequent appli-
cation. It is necessary for both the Department of Justice and con-
gressional intelligence committees to have available a complete record
both of the bases for such emergency surveillance authorization and
of the judicial determinations of their legality under the statutory
standard.
This provision for emergency authorization of surveillance by the
Attorney General may not be utilized pending an appeal under sec-
tion 2.523, following the denial of an application for a judicial order.
Under such circumstances, the Attorney General could not reasonably
determine that the factual basis for the issuance of an order under
this chapter to approve such surveillance exists, as required by this
subsection.
If the application is subsequently denied, or if the surveillance is
terminated without an order eventually being sought-which, as al-
ready indicated, would constitute an unlawful act under this subsec-
tion-no information obtained or evidence derived from the surveil-
lance shall be received, used or disclosed by the Government in any
trial. hearing or other proceeding before any court, grand jury, depart-
ment, office, agency, regulatory body, legislative committee, or other
Federal, State, or local authority. This exclusionary provision is de-
signed to be absolute.
S. 1566 as reported by the Judiciary Committee did not cover the use
of information acquired from such disapproved emergency surveil-
lance for other purposes. Further restrictions are needed so that there
is less incentive to use questionable emergency surveillances. The addi-
tional provision requires that no information concerning any U.S.
person accmired from a disapproved emergency surveillance shall sub-
sequently be used or disclosed in any other manner by Federal officers
or employees without the consent of such person, except with the ap-
proval of the Attorney General where the information indicates a
threat of death or serious bodily harm. The fact that an emergency
surveillance was conducted improperly should not disable the Gov-
ernment from using the information to protect the life or physical
safety of a person.
A denial of the application may be reviewed in the same manner as
a denial of an original application under section 2523.
Neetaon 2520'
This section sets forth the permissible uses which may be made of
information acquired by means of electronic surveillance conducted
pursuant to this chapter. The fact that effective minimization with
regard to acquisition and retention may be. more difficult in the foreign
intelligence area than. in the more traditional criminal area, and that
this chapter contains certain less restrictive procedures than does
chapter 119-for example, 90 days or 1 year of surveillance per order
rather than 30 da vs--mandates that the uses to be made of the in-
formation acgnire(l by means of this chapter be carefully restricted.
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This section, therefore, places more stringent restrictions on dissemina-
tion and. use than does the corresponding provision of title III, 18
U.S.C. 2517. The extent to which the Government should be required
to surrender to the parties in a criminal trial the underlying documen-
tation used to justify electronic surveillance raises delicate problems
and competing interests. On the one hand, broad rights of access to the
documentation and subsequent intelligence information can threaten
the secrecy necessary to effective intelligence practices. However, the
defendant's constitutional guarantee of a fair trial could be seriously
undercut if he is denied the materials needed to present a proper
defense. The comrnittee believes that a just, effective balance has been
struck in this section.
Subsection (a) requires that information concerning U.S. persons
acquired from electronic surveillance conducted pursuant to this chap-
ter may be used by Federal officers and employees only for purposes
relating to the ability of the United States to protect itself against
actual or potential attack or other grave hostile acts of a foreign
power or foreign agent, to provide for the national defense or security
of the Nation, to provide for the conduct of foreign affairs, to protect
against terrorism or sabotage by or on behalf of a foreign power or an
agent of a foreign power ; to protect against the clandestine intelligence
activities of an intelligence service or network of a foreign power or
an agent of a foreign power; or for the enforcement of the criminal
law. Thus the lawful uses of foreign intelligence information con-
cerning V.S. citizens and resident aliens gathered pursuant to this
chanter are restricted carefully to actual foreign intelligence purposes
and the enforcement of the criminal law.
In order to 'make clear that this provision is linked directly to the
required minimization procedures, one addition has been made to
S. 1566 as reported by the Judiciary Committee. Information must
not only be used or disclosed for the specified purposes, but it must
also be used and disclosed in accordance with the minimization proce-
dures required by this chapter.
A major change from S. 3197 has been made in this section at the
insistence of the administration. Whereas in S. 3197 this section ap-
plied to all persons, regardless of whether they were Americans. S. 1566
limits the protections of section 2526(a) to U.S. persons. Information
concerning non-U.S. persons--who indeed may be foreigners not even
in the United States-is not subject to the same restrictions as infor-
mation concerning U.S. persons. For example, the information
obtained might be used to deport an illegal alien even though such
use of the information is not for foreign intelligence purposes and is
not for the purpose of enforcing the criminal law.
This differentiation between U.S. persons and other persons was
sufficiently troublesome to result in an important Judiciary Commit-
tee amendment to section 2526(a). By limiting the subsection to U.S.
persons, the possibility existed that information obtained by surveil-
lance could be used in a variety of illegal ways against, for example,
foreign visitors and students. The Judiciary Committee amended this
subsection to make clear that no information acquired pursuant to
this chapter may be used or disclosed for other than lawful purposes.
The bill does not permit information gathered about the lawful activi-
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ties or private life of a foreign visitor to be used to illegally blackmail
him into becoming an agent against his country. S. 1566, as amended,
now requires that in those cases where the Government wishes to use
foreign intelligence information against non-U.S. persons beyond the
specific purposes listed in section 2526 (a), it do so in a lawful manner
and for lawful purposes.
There is no specific restriction in the bill regarding to whom Fed-
eral officers may disclose information concerning U.S. persons ac-
quired pursuant to this chapter-although specific minimization pro-
cedures might require specific restrictions in particular cases. First,
the committee believes that dissemination should be permitted to
State and local law enforcement officials. If Federal agents monitoring
a foreign intelligence surveillance authorized under this chapter were
to overhear information relating to a violation of State criminal law,
such as homicide, the, agents could hardly be expected to conceal such
information from the appropriate local officials. Second, the commit-
tee can conceive of situations where disclosure should be made outside
of Government channels. For example, Federal agents may learn of a
terrorist plot to kidnap a business executive. Certainly in such cases
they should be permitted to disclose such information to the executive
and his company in order to provide for the executive's security.
Finally, the committee believes that foreign intelligence information
relating to crimes, espionage activities, or the acts and intentions of
foreign powers may, in some circumstances, be appropriately dissemi-
nated to cooperating intelligence services of other nations. So long
as all the procedures of this chapter are followed by the Federal offi-
cers, including minimization and the limitations on dissemination,
this cooperative relationship should not be terminated by a blanket
prohibition on dissemination to foreign intelligence services. The
committee wishes to stress, however, that any such dissemination be
reviewed carefully to ensure that there is a sufficient reason why dis-
closure of information to foreign intelligence services is in the inter-
ests of the United States.
Disclosure, in compelling circumstances, to local.officials for the
purpose of enforcing the criminal law, to the targets of clandestine
intelligence activity or planned violence, and to foreign intelligence
services under the circumstances described above are generally the
only exceptions to the rule that dissemination should be limited to
Federal officials.
It is recognized that these strict requirements only apply to infor-
mation known to concern U.S. persons. Where the information in the
communication is encoded or otherwise not known to concern U.S.
persons, only the requirement that the information be disclosed for
lawful purposes applies. There is no requirement that before disclosure
can be made information be decoded or otherwise processed to deter-
mine whether information concerning U.S. persons is indeed present.
Of course, the rest rictions on use and disclosure still apply, so that
if any Government agency received coded information from the inter-
cepting agency, were it to break the code, the limitations on use and
disclosure would apply to it.
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Section 2526(a) also states that foreign intelligence information
obtained may be used to enforce the criminal law if its use outweighs
the possible harm to the, national security. This new language, which
did not appear in S. 3197, states the obvious. The Department of
Justice always has the option of deciding whether to proceed with a
criminal prosecution or forego it in the interests of national security.
For example, the Department of Justice may decline to prosecute
rather than disclose the names of important witnesses and key inform-
ants. Whether to go forward with a criminal prosecution remains
in the exclusive hands of the executive branch and nothing in section
2526 (a) changes that fact. This provision should under no circum-
stances be interpreted to deny the Attorney General the opportunity
to perform his important role in this weighing of interests.
This subsection also notes that no otherwise privileged communi-
cation obtained in accordance with or in violation of this chapter shall
lose its privileged character. This provision is identical to 18 U.S.C.
2517 (4) and is designed, like its title III predecessor, to change exist-
ing law as to the scope and existence of privileged communications only
to the extent that it provides that otherwise privileged communica-
tions do not lose their privileged character because they are inter-
cepted by a person not a party to the conversation.
Subsection (b) must be read in conjunction with the minimization
requirements of section 2521(b) (8) and with the preceding subsec-
tion (a). As previously noted, the minimization procedures mandated
by the court are designed to restrict the acquisition of information
obtained by means of electronic surveillance to information .related
to foreign intelligence. However, even the most thorough minimization
efforts may result in the acquisition of some information which is not
foreign intelligence information. This subsection states that the mini-
mization procedures required by this chapter do not preclude the
retention and dissemination of any information which is evidence of a
crime. Such disclosure would, of course, be restricted by the provisions
of subsection (a).
The implication that such criminal evidence be acquired incidentally
logically connotes that it must be acquired lawfully. This requires
that there be a good faith effort to mrnimize.28 Thus for example, if
monitoring agents choose to disregard the minimization standards and
thereby acquire evidence of a crime, against an overheard party whose
conversation properly should not have been acquired, that evidence
would be acquired in violation of this chapter and would properly be
suppressed if offered at, any official proceeding. See subsection (e),
infra.
Disclosure for law enforcement purposes must be accompanied by
a statement that such evidence, or any information derived therefrom,
may be used in a criminal proceeding only with the advance authori-
zation of the Attorney Genera].. This provision is designed to elimi-
nate circumstances in which a local prosecutor has no knowledge that
evidence was obtained through foreign intelligence electronic surveil-
lance. In granting approval of the use of the evidence the Attorney
General would alert the prosecutor to the surveillance and he, in turn,
would alert the court in accordance with subsection (c).
za United States v. Armocida, 515 F. 2d 29 (3d Mr. 1975).
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Subsections (c), (d), and (e) set forth the procedures under which
information acquired by means of electronic surveillance may be re-
ceived in evidence or otherwise used or disclosed in any trial, hearing
or other Federal or State proceeding. Although the primary purpose
of electronic surveillance conducted pursuant to this chapter will not
be the gathering of criminal evidence, it is contemplated that such evi-
dence will be acquired and these subsections establish the procedural
mechanisms by which such information may be used in formal pro-
ceedings.
At the outset the committee recognizes that nothing in subsection
(c) abrogates the rights afforded a criminal defendant under Brady
v. Maryland, 211 and the Jencks Act.30 These legal principles inhere in
any such proceeding and are wholly consistent with the procedures
detailed here. Furthermore, nothing contained in this section is in-
tended to alter the traditional principle that the Government cannot
use material at trial against it criminal defendant, and then withhold
from him such material at trial.-
Subsection (c) states that no information acquired pursuant to this
chapter may be used unless, prior to the trial, hearing, or other pro-
ceeding, or at a reasonable time prior to an effort to disclose the in-
formation or submit it in evidence, the Government notifies the court
that such information was acquired by means of electronic surveil-
lance conducted pursuant to this chapter. This provision has been
broadened in S. 1506 over its counterpart in S. 3197 by including non-
judicial proceedings. In instances in which the Government intends to
disclose surveillance information in such a nonjudicial forum, sub-
section (c) would require that the U.S. district court in the district in
which the disclosure is to take place be notified of the proposed dis-
closure or use.
Subsection (d) parallels 18 U.S.C. 2518(10) (a) and provides a sepa-
rate statutory vehicle by which a person who has been a subject of elec-
tronic surveillance and against whom evidence derived therefrom is
to be or has been introduced or otherwise used or disclosed in any trial,
hearing or proceeding may move to suppress the contents of any com-
munication acquired by, or evidence derived from, such electronic
surveillance. The grounds for such a motion would be that (a) the com-
munication was unlawfully acquired, or (b) the surveillance was not
made in conformity with the order of authorization or approval.
The "subject" of electronic surveillance means an individual who
was a party to a communication !acquired by electronic surveillance or
was a person against whom the surveillance was directed. Thus the
word would include an "aggrieved person" as defined in 'section 2510 of
title ITT .32
One situation in which such motion might be presented would be
that in which the court orders disclosed to the party the court order
and accompanying application under subsection (e) prior to ruling
on the legality of the surveillance. Such motion would also be appro-
priate, however, even after the court's finding of legality if, in sub-
20 373 U.S. 83 (1963).
ao 1 ft U.a.C. 31,00 et seq
at United States V. Andoisehek. 142 F. 2d 503 (2nd Or. 1944).
az See also, Alderman v. (Jnited States, 394 U.S. 165 (1967).
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sequent trial testimony, a Government witness provides evidence that
the electronic surveillance may have been authorized or conducted in
violation of the court order. The most common circumstance in which
such a motion might be appropriate would be a situation in which
a defendant queries the Government under 18 U.S.C. 3504 and dis-
covers that he has been intercepted by electronic surveillance even
before the Government has decided whether evidence derived from that
surveillance will be used in the presentation of its case. In this instance,
under the appropriate factual circumstances, the defendant might
move to suppress ch evidence under this subsection even without
having seen any ofsuthe underlying documentation.
A motion under this subsection shall be made before the trial,
hearing, or proceeding unless there was no opportunity to make such
motion or the movant was not aware of the grounds for the motion.
The only change in subsection (d) from S. 3197 is to remove as a sepa-
rate, independent basis for suppression the fact that the order was in-
sufficient on its face. This is not a substantive change, however, since
communications acquired pursuant to an order insufficient on its face
would be unlawfully acquired and therefore subject to suppression
under paragraph (1).
Subsection (e) states in detail the procedure the court shall follow
when it receives a. notification under subsection (c) or a suppression
motion is 'filed under subsection (d). This procedure applies, for
example, whenever an individual makes a motion pursuant to sub-
section (d) or 18 U.S.C. 3504, or any other statute or rule of the
United States to discover, obtain or suppress evidence or information
obtained or derived from electronic surveillance conducted pursuant
to this chapter (for example, Rule 12 of the Federal Rules of Criminal
Procedure). Although a number of different procedures might be
used to attack the legality of the surveillance, it is this procedure
"notwithstanding any other law" that must be used to resolve the
question. The committee wishes to make very clear that the procedures
set out in subsection (e) apply whatever the underlying rule or statute
refered to in the motion. This is necessary to prevent the carefully
drawn procedures in subsection (e) from being bypassed by the in-
ventive litigant using a new statute, rule or judicial construction.
The special procedures in subsection (e) cannot be invoked until
they are triggered by a Government affidavit that disclosure or an
adversary hearing would harm the national security of the United
States. If no such assertion is made, the committee envisions that
mandatory disclosure of the application and order, and discretionary
disclosure of other surveillance materials, would be available to the
defendant, as is required under title III. When the procedure is so
triggered, however, the Government must make available to the court
a copy of the court order and accompanying application upon which
the surveillance was based.
The court must then conduct an ex parte, in camera inspection of
these materials as well as any other documents relation to the surveil-
lance which the Government may be ordered to provide, to determine
whether the surveillance was authorized and conducted in a manner
which did not violate any constitutional or statutory right of the per-
son against whom the evidence is sought to be introduced. The sub-
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section further provides that in making such a determination, the
court may order disclosed to the person against whom the evidence is
to be introduced the court order or accompanying application, or por-
tions thereof, or other materials relating to the surveillance, only if
it finds that such disclosure is necessary to make an accurate determi-
nation of the legality of the surveillance.
The question of how to determine the legality of an electronic sur-
veillance conducted for foreign intelligence purposes has never been
decided by the Supreme Court. As Justice Stewart noted in his con-
curring opinion in Giordano v. United States:
Moreover, we did not in Alderman, Butenko or Ivanov,
and we do not today, specify the procedure that the district
courts are to follow in making this preliminary determina-
tion [of legally.]
394 U.S. 310, 314 (1968) ; see also, Taglianetti v. United States, 394
U.S. 316 (1968). The committee views the procedures set forth in this
subsection as striking a reasonable balance between an entirely in
camera proceeding which might adversely affect the defendant's
ability to defend himself, and mandatory disclosure, which might
occasionally result in the wholesale revelation of sensitive foreign in-
telligence information.
The decision whether it is necessary to order disclosure to a person
is for the Court to make after reviewing the underlying documentation
and determining its volume, scope, and complexity. The committee has
noted the reasoned discussion of these matters in the opinion of the
Court in United States v. Butenko, supra. There, the Court, faced with
the difficult problem of determining what standard to follow in bal-
ancing national security interests with the right to a fair trial, stated :
The distinguished district court judge reviewed in camera
the records of the wiretaps at issue here before holding the
surveillance to be legal * * *. Since the question confronting
the district court as to the second set of interceptions was the
legality of the taps, not the existence of tainted evidence, it
was within his discretion to grant or to deny Ivanov's request
for disclosure and a hearing. The exercise of this discretion
is to be guided by an evaluation of the complexity of the fac-
tors to be considered by the court and by the likelihood that
adversary presentation would substantially promote a more
accurate decision. (494 F. 2d at 607.)
Thus, in some cases, the Court will likely be able to determine the
legality of the surveillance without any disclosure to the defendant.
In other cases, however, the question may be more complex because of,
for example, indications of possible misrepresentation of fact, vague
identification of the persons to be surveilled, or surveillance records
which include a significant amount of nonforeign intelligence informa:
tion, calling into question compliance with the minimization standards
contained in the rder. In such cases, the committee contemplates that
the court will likely decide to order disclosure to the defendant, in
whole or in part, since, such disclosure "is necessary to make an accu-
rate determination of the legality of the surveillance." 33
S4 Cf. Alderman v. United States, 394 U.S. 165, 182 n. 14 (1968) ; Tagllanetti v. United
States, supra at 317.
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Cases may arise, of course, where the Court believes that disclosure is
necessary to make an accurate determination of legality, but the Gov-
ernment argues that to do so, even 'i ven the Court's broad discretion-
ary power to exercise certain sensitive portions, would damage the
national security. In such situations the Government must choose-
either disclose the material or forgo the use of the surveillance-based
evidence. Indeed, if the Government objects to the disclosure, thus pre-
venting a proper adjudication of legality, the prosecution would prob-
ably have to be dismissed, and, where the Court determines that the
surveillance was lawfully authorized or conducted, the court would,
"in accordance with the requirements of law," suppress that evidence
which was unlawfully obtained.
The committee has chosen the general phrase "in accordance with
the requirements of law" to deal with the problem of what procedures
are to be. followed in those cases where the trial court determines
that the surveillance was unlawfully authorized or conducted. The
evidence obtained would not, of course, be admissible during the trial.
But beyond this, in the case of an illegal. surveillance, the Govern-
ment is constitutionally mandated to surrender to the defendant all
the records of the surveillance in its possession in order for the de-
fendant to make an intelligent motion on the question of taint. The
Supreme Court in Alderman v. United States, supra, held that,. once
a defendant claiming evidence against him was the fruit of uncon-
stitutional electronic surveillance has established the illegality of such
surveillance (and his "standing" to object), he must be given confi-
dential materials in the Government's files to assist him in establish-
ing the existence of "taint.'' The Court rejected the Government's
contention that the trial court could be permitted to screen the files
in camera and give the defendant only material which was "arguably
relevant" to his claim, saying such screening would be sufficiently
subject to error to interfere with the effectiveness of adversary litiga-
tion of the question of "taint." The Supreme Court has refused to re-
consider the Alderman rule and, in fact reasserted its validity in its
Keith, decision. (United States v. U.S. District Court, supra, at 393.)
Where the court determines that the surveillance was lawfully
authorized and conducted, it would, of course, deny any motion to
suppress. In addition, once a judicial determination is made that the
surveillance was lawful, a motion for discovery of evidence must be
denied unless disclosure or discovery is required by due process.
Subsection (f) provides for notice to be served on U.S. citizens
and permanent resident aliens who were targets of an emergency
surveillance and, in the judge's discretion, on. other citizens and resi-
dent aliens who are incidentally overheard, where a judge denies an
application for an order approving an emergency electronic surveil-
lance. Such notice shall be limited to the fact that an application was
made, the period of the emergency surveillance, and the fact that
during the period information was or was not obtained. This notice
may be postponed for a period of up to 90 days upon a showing of
good cause to the judge. Thereafter the judge may forgo the require-
ment of notice upon a second showing of good cause.
The fact which triggers the notice requirement-the failure to
obtain approval of an emergency surveillance-need not be based on
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a determination by the court that the target is not an agent of a
foreign power engaged in clandestine intelligence activities, sabotage,
or terrorist activities or a person aiding such agent. Failure to secure
a court order could be based on a number of other factors, such as an
improper certification.. A requirement of notice in all cases would have
the potential of compromising the fact that the Government had
focused an investigation on the target. Even where the target is not,
in fact, an agent of a foreign power, giving notice to the person may
result in compromising an ongoing foreign intelligence investigation
because of the logical inferences a foreign intelligence service might
draw from the targeting of the individual. For these reasons, the Gov-
ernment is given the opportunity to present its case to the judge for
initially postponing notice. After 90 days, during which time the Gov-
ernment may be able to gather more facts, the Government may seek
the elimination of the notice requirement altogether.
It is the intent of the committee that if the Government can initially
show that there is a reason to believe that notice might compromise
an ongoing investigation, or confidential sources or methods, notice
should be postponed. Thereafter, if the Government can show a likeli-
hood that notice would compromise an ongoing investigation, or con-
fidential sources or methods, notice should not be given.
A new subsection (g) has been added to S. 1566 as reported by the
Judiciary Committee, for the purpose of restricting the use of unin-
tentionally acquired private domestic radio communications. The
new subsection is needed because "electronic surveillance" as defined
in section 2521 (b) (6) (C) covers only the intentional acquisition of
the contents of private domestic radio communications. Such communi-
cations may include telephone calls and other wire communications
transmitted by radio microwaves. Concern has been expressed that,
unless the use of such unintentionally acquired communications is re-
stricted, there would be a potential for abuse if the Government
acquired those kinds of domestic communications, even without in-
tentionally targeting any particular communication. The amendment
forecloses this possibility by restricting the use of any information
acquired in this manner.
In circumstances involving the unintentional acquisition, by an
electronic, mechanical, or other surveillance device of the contents of
any radio communication, where a person has a reasonable expecta-
tion of privacy and a warrant would be required for law enforcement
purposes, and where both the sender and all intended recipients are
located within the United States, the contents must be destroyed upon
recognition. The only exception is with the approval of the Attorney
General where the contents indicate a threat of death or serious bodily
harm to any person. This restriction is not intended to prevent the
Government from maintaining a record of the radio frequency of the
communication for later collection avoidance purposes.
Section 2527
Section 2527 requires the submission of annual reports to both the
Congress and the Administrative Office of the U.S. courts containing
statistical information relating to electronic surveillance under this
chapter. The reports must include the total number of applications
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made for orders and extensions and the total number of orders or ex-
tensions granted, modified, and denied. The statistics in these reports
should present a quantitative indication of the extent to which sur-
veillance under this chapter is used.
The requirements in. S. 31,911 for the public reporting of certain addi-
tional statistics have been altered due to the introduction in S. 1566 of
two different types of warrant (creating a 90-day warrant for one
class of target, and a 1-year warrant for official foreign powers). The
reporting requirements in S. 31.97, if reenacted verbatim in S. 1566,
would obviously give foreign intelligence networks significant infor-
mation concerning the number and duration of surveillances of official
foreign powers. Changes have been made, therefore, in the public re-
porting requirements of S. 3197 so as to avoid the compromising of
sensitive information. The statistics reported pursuant to this section
may be made public.
Section 2528
Congressional oversight is particularly important in monitoring the
operation of this statute. By its very nature foreign intelligence sur-
veillance must be conducted in secret. The bill reflects the need for such
secrecy: judicial review is limited to a select panel and routine notice
to the target is avoided. In addition, unlike the statutory provisions
of title. III of the Omnibus Crime Control Act of 1968, it is not con-
templated that most electronic surveillance conducted pursuant to this
chapter will result in criminal prosecution.
For these reasons, the committee has added a new section to the bill
dealing with the. information to be furnished to the appropriate
congressional committees. Section 2528 requires the Attorney Gen-
eral to inform fully the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence con-
cerning all electronic surveillance under this chapter. Ile must do so
at least semiannually.
The use of the word "fully" in this provision has the meaning
used in Senate Resolution 400, 94th Congress, 2nd session, which
expresses the sense of the Senate that the head of each department
and agency of the United States should keep the Select Committee
on Intelligence "fully and currently informed with respect to in-
telligence activities, including any significant anticipated activities,
which are the responsibility of or engaged in by such department or
agency." A similar provision appears in Executive Order 12036, Jan-
uary 24, 1978. This requirement does not constitute a condition prece-
dent to the implementation of any such anticipated intelligence ac-
tivity. As interpreted by the committee, the "fully" requirement
means that the committee must be given enough information to under-
stand the activities, but does not mean that the Attorney General
must set forth each and every detailed item of information relating to
all electronic surveillances. For example, the committee would
not ordinarily wish to know the identities,of particular individuals.
To preserve the' committee's right to seek further information, when
necessary, section 2528 adopts language similar to that contained in
S. 3197 as reported in the 94th Congress. It makes clear that nothing
in this,chapter shall be deemed to limit the authority and responsibil-
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ity of those committees to obtain such additional information as they
may need to carry out their respective functions and duties. In the
case of the Senate Select Committee on Intelligence, that authority
and responsibility is set forth in Senate Resolution 400, 94th Congress,
2d session.
Section 2528 also incorporates a provision contained in S. 3197 re-
quiring the Senate Select Committee on Intelligence to report each
year to the Senate concerning the implementation of this chapter. It
also provides that any amendments to this chapter proposed by the
committee shall be considered and acted upon promptly.
In the exercise of their respective functions, the Senate Select
Committee on Intelligence and the Senate Committee on the Ju-
diciary shall consult with members of the Department of Justice
and the intelligence community concerning the proper implementa-
tion of the act.
Section 3
Section 3 delays the effective date of. the act until 90 days following
the designation of the first judge pursuant to section 2523 -of this
chapter. The purpose of this delay is to allow time for the development
of the applications required under this bill and of security measures
governing the submission of these applications to the courts. The
90-day delay will also prevent the situation where one judge will be
forced to handle all of the applications.
CONFORMING AMENDMENTS
Section 4 serves the important purpose of integrating the new
chapter 120 with the current electronic surveillance law found in
chapter 119 of title 18, United States Code. Various provisions of
chapter 119 are, applicable to the electronic surveillance engaged in
under the new bill and the conforming amendments in this section of
S. 1566 are designed to make changes reflecting this fact. In addition,
where certain provisions of chapter 119 should not encompass the
surveillance procedures in S. 1566, conforming amendments so limit
such sections :
(a) (1) and (2). These amendments are designed to establish the
same criminal penalties for violations of this chapter as apply to vio-
lations of chapter 119. As amended, these sections will make it a crimi-
nal offense to engage in electronic surveillance except as otherwise
specifically provided in chapters 119 and 120. This amendment also
provides, however, that "with respect to techniques used by law en-
forcement officers" which do not involve the actual interception of wire
or oral communications, yet do fall within,the literal definition of elec-
tronic surveillance in chapter 120-such as the use of a pen register-
the procedures of chapter 120 do not apply. In such cases criminal
penalties will not attach simply because the Government fails to follow
the procedures in chapter 120 (such penalties may, of course, attach
if the surveillance is commenced without a search warrant or in viola-
tion of a court order). In all cases involving electronic surveillance for
the purpose of obtaining foreign intelligence information, however,
the prohibitions of 18 U.S.C. 2511 would apply.
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(a) (3), (4), (5), and (6). These amendments make clear that the
prohibitions in chapter 119 concerning disclosure and use of informa-
tion, obtained through the interception of wire or oral communications
in sections 2511 (1) (c) and (d), also apply to disclosure and use of
information obtained through electronic surveillance as defined in
chapter 120.
The statute calls for a fine of not more than $10,000 or imprisonment
for not more than 5 years, or both, for each violation.
(b) (1). This amendment adds radio communication to wire com-
munication and extends the meaning of intercept to include "or other-
wise acquire" in section 2511(2) (a) (i), which permits communication
common carriers to engage in certain activities.
(b) (2). This amendment, when read in conjunction with section
2525(b) (2) (B), makes explicit the fact that a court order obtained
under chapter 120 may direct an officer, employee or agent of a com-
munication common carrier to provide certain assistance to -the Gov-
ernment agents implementing the order. The nature and scope of such
assistance is intended to be identical to that which may be directed
under section 2518(4) (e) of chapter 119. The amendment further pro-
vides that before the carrier may provide such information or assist-
ance, whether under chapter 119 or 120, the Government agent must
furnish the carrier with an order signed by the court (but not neces-
sarily the same order as authorizes the actual surveillance) if an order
has been acquired, or a sworn statement by the agent, that all statutory
requirements have been met if the surveillance is being conducted pur-
suant to the provisions of section 2518(7) of chapter 119 or section
2525 (d) of chapter 120. The document so furnished must also set forth
the period of time for which the surveillance is authorized and a de-
scription of the facilities from which the communication is to be inter-
cepted. And violation of this subsection by a carrier or its representa-
tive will render the carrier liable for the civil dailiages provided for in
section 2520, subject, of course, to the good faith reliance defense con-
tained therein.
At the request of the administration, the committee has added a
provision to regulate the practice of any telephone company to in-
form customers who request a line check whether or not there is a
wiretap on their line. It provides that no communication common
carrier or officer, employee, or agent thereof shall disclose the existence
of any interception under chapter 119 or any electronic surveillance,
as defined in chapter 120, with respec` to which the common carrier
has been furnished either an order or certification under this subpar-
agraph, except as may otherwise be lawfully authorized. The ban
upon disclosure is intended to include disclosure of the existence of
the electronic, mechanical, or other device. used to accomplish any
such interception or surveillance. This provision is not intended to
bar disclosure to another officer, employee, or agent of a common
carrier, where properly authorized by that common carrier.
(c) (1). This amendment makes explicit that an employee of the
Federal Communications Commission. may engage in electronic sur-
veillance as well as intercept a wire or oral communication in the dis-
charge of monitoring responsibilities exercised by the Commission.
(c) (2). This amendment makes clear that it is legal to engage in
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electronic surveillance, as well as intercept a wire or oral communica-
tion, if a party consents.
(c) (3). This amendment: (1) provides statutory authorization for
the Government to conduct tests of equipment which may result in
electronic surveillance as defined in section 2521 (b) (6) ; (2) author-
izes the conduct of "sweeps" to discover illegal taps and bugs, which
"sweeps" may result in "electronic surveillance" as defined in section
2521(b) (6) ; and (3), makes explicit that chapters 119 and 120 are
"exclusive means by which electronic surveillance, as defined in sec-
tion 2521(b) ((;) of chapter 120, and the interception of domestic wire
and oral communications may be conducted."
An additional provision has been inserted to require that all such
testing and defensive "sweeps" be conducted under procedures ap-
proved by the Attorney General. Such a requirement has already been
established by the President for activities conducted by any agency
of the intelligence community, Executive Order 12036, January 24,
1978.
All tests conducted pursuant to this provision must be in the normal
course of official business by the Government agent conducting the
test and must be designed solely for determining the capability of
equipment used for foreign intelligence gathering purposes. In addi-
tion, the test period shall be limited to that necessary to determine such
capability and shall in no instance exceed 90 days without the express
approval of the Attorney General. The contents of any communica-
tion acquired as a result of the test shall be disclosed only to those
officials conducting the test and shall be used and retained by them only
for the purpose of the test. At the completion of the testing period, the
contents so acquired shall be destroyed. No particular U.S. person may
be intentionally targeted for testing purposes without his consent.
The committee contemplates that in all cases such testing will be
approved by a senior official prior to the commencement of the testing
period.
"Sweeps" to discover the existence and capability of electronic sur-
veillance equipment in violation of 18 U.S.C. 2511 or 47 U.S.C. 605
do not have a specific time limit, but are limited in time to that "nec-
essary to determine the existence and capability of such equipment."
The Department of Defense, in a letter'to the Judiciary Committee,
has characterized these activities as follows :
These activities, commonly called technical surveillance
countermeasures surveys, are for the purpose of determining
if a particular sensitive area has been penetrated by electronic
surveillance devices installed by a foreign power or other hos-
tile forces. In some cases, these surveys are conducted on a
continuous basis. Since these activities are strictly defensive
in nature and are for the sole purpose of detecting and neu-
tralizing the illegal efforts of hostile powers, a time limit does
not seem appropriate.
Information acquired pursuant to such "sweeps" may be used only
to enforce chapter 119 or section 605 of the Communications Act of
1934, or to protect information from being subject to unlawful
electronic surveillance. The provision is not an authorization to target
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a person known to be, or suspected of, engaging in unlawful electronic
surveillance, even where the purpose is to determine the existence and
capability of that person's electronic surveillance equipment. If the per-
son engaged in the unlawful electronic surveillance is an agent of a
foreign power, he should be targeted under the applicable provisions of
chapter 120. This provision is designed to confer statutory authority
on the Government's effort to locate and analyze unlawful electronic
surveillance activity.
A new paragraph (f) is added to section 2511 (2) by this conforming
amendment, which must be read in conjunction with the conformin
amendment contained in paragraph (d) which repeals section 2511(3
of title 18, United States Code, the so-called national security dis-
claimer of title III of the 1968 Omnibus Crime Control and Safe
Streets Act. The effect of these. two conforming amendments is to es-
tablish chapter 120 as the exclusive congressional statement on the
question of the Executive's power to order electronic surveillance.
This now paragraph states that nothing in chapter 119 or section 605
of the Communications Act of 1934 shall be deemed to affect the ac-
(1Uisition of foreign intelligence information from international or
foreign communications by a means other than electronic surveillance,
as defined in chapter 120. The purpose of this prefactory phrase is
twofold. First, it sets forth the sections of the United States Code
which regulate .the procedures by which electronic surveillance may
be conducted within the United states and the statutory controls for
the use and dissemination of information so acquired. If enacted, this
chapter will constitute the sole and exclusive statutory authority under
which electronic surveillance of a foreign power or its agent to obtain
foreign intelligence information may be conducted within the United
States. It will complement chapter 119, which deals with electronic
surveillance for law enforcement purposes, and section 605 of the
Communications Act of 1934, as amended, which restricts the dissem-
ination of certain information transmitted by wire or radio. Second,
the language of this amendment exempts from section 605 and chap-
ter 119 foreign intelligence gathering from international or foreign
communications by means of an electronic, mechanical, or other sur-
veillance device if the acquisition does not come within the definition
of "electronic surveillance." contained in section 2521(b) (6). Specifi-
cally, this provision is designed to make clear that the legislation does
not deal with international signals intelligence activities as currently
engaged in by the National Security Agency and electronic surveil-
lance conducted outside the United States. As to methods of acquisition
which come within the definition of "electronic surveillance" in this
bill, the Congress has declared that this statute, not any claimed
Presidential power, controls.
Paragraph (f) continues by stating that with respect to electronic
surveillance, as defined in section 2521(b) (6),'and the interception of
domestic wire and oral communications, the procedures of chapters 119
and 120 shall be the "exclusive mean-, by which electronic surveil-
lance * * * and be * * * conducted." This statement puts to rest the
notion that. Congress recognizes an inherent Presidential power to con-
duct such surveillances in the United States outside of the procedures
contained in chapters 119 and 120.
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Article I, section 8, of the Constitution states :
The Congress shall have Power * * * To make all laws
which shall be necesary and proper for carrying into Execu-
tion the foregoing power, and all other Powers vested by this
Constitution in the Government of the United States, or in
any Department or Officer thereof.
It is clear that the Supreme Court has recognized that Congress may
legislate in areas, where, absent such legislation, a constitutional power
of the executive may be found to exist (You?igstown Sheet and Tube v.
Sawyer, 343 U.S. 579 (1952) ). In that landmark case, the Supreme
Court rejected President Truman "s argument that he had inherent con-
stitutional authority to seize the steel mills to prevent strikes and insure
continued steel production needed for the war effort. The decision was
influenced in large measure by the fact that Congress, by passing the
Taft-Hartley Act, had explicitly rejected seizure of the steel mills and
enacted a legislative alternative to curb labor unrest. In his concurring
opinion, Justice Jackson wrote :
When a President takes measures incompatible with the
express or implied will of Congress, his power is at the lowest
ebb, for then he can rely only upon his own constitutional
power minus any constitutional power of Congress over the
matter. Courts can sustain exclusive presidential control in
such a case only by disabling the Congress from acting upon
the subject.. (343 U.S. at 637.)
(d) This amendment repeals section 2511(3) of chapter 119, thereby
eliminating any congressional recognition or suggestion of inherent
Presidential power with respect to electronic surveillance.
(e) This amendment brings any electronic surveillance as defined
in chapter 120 under the same statutory exclusionary rule as applies to
chapter 119. This section imposes an evidentiary sanction for failure
to comply with the provisions of the chapter. It makes explicit that
not only is the communication itself excluded but also any information
obtained from electronic surveillance.
(f) This amendment makes explicit that the requirements for an
application enumerated in subsection 2518(1) apply only to surveil-
lance conducted pursuant to chapter 119, since chapter 120 contains
its own requirements.
(g) This amendment makes explicit that the necessary elements of
an order set forth in subsection 2518(4) apply only to surveillance
conducted pursuant to chapter 119, since chapter 120 contains its own
requirements.
(h) This amendment makes explicit that the procedures for dis-
closure of the application and accompanying application under this
subsection apply only to surveillance conducted pursuant to chapter
119, since chapter 120 contains its own requirements.
(i) This amendment makes explicit that the provision for a statu-
tory suppression motion contained in this subsection applies only to
surveillances conducted pursuant to chapter 119, since chapter 120
contains its own requirements.
(j) This amendment makes explicit that the reporting requirements
of the Administrative Office of the U.S. courts contained in this sub-
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section apply only to surveillances conducted pursuant to chapter 119
since chapter 120 contains its own requirements.
(k) 'These amendments are designed to authorize the recovery of
civil damages for violations of chapter 120 in the same manner and
amounts as already provided for violations of c "apter 119. The only
category of individuals who would be exempted from the provisions
of this section are foreign powers and agents of a foreign power as
defined in section 2521(b) (1) and (b) (2) (A) of chapter 120.
CONGRESSIONAL BUDGET OFFICE,
U.S. CONGRESS,
Washington, D.C., March 14, 1978.
IIon. BIRCH BAYH,
Chairman, Select Committee on Intclligcnec,
U.S. Senate, Washington; D.C.
DEAR MR. CHAIRMAN : Pursuant to section 403 of the Congressional Budget Act
of 1974, the Congressional Budget Office has reviewed S. 1566, the Foreign Intel-
ligence Surveillance Act of 1977, as ordered reported by the Senate Select Com-
mittee on Intelligence, February 27, 1978.
Based on this review, it appears that no additional cost to the Govermmnt
would be incurred as a result of enactment of this bill.
Sincerely,
ALICE M. RIVLIN, Director.
CHANGES IN EXISTING LAW
In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, and existing
law in which no change is proposed is shown in roman) :
UNITED STATES CODE
TITLE 18.-CRIMES AND CRIMINAL PROCEDURE
* * * * * * *
Chapter 119-WIRE INTERCEPTION OR INTERCEPTION
OF ORAL COMMUNICATIONS
See.
2510. Definitions.
2511. Interception and disclosure of wire or oral communications prohibited.
2512. Manufacture, distribution, possession, and advertisement of wire or oral
communication intercepting devices prohibited.
2513. Confiscation of wire or oral communication intercepting devices.
2515. Prohibition of use as evidence of intercepted wire or oral communications.
2516. Authorization for interception of wire or oral communications.
2517. Authorization for disclosure and use of intercepted wire or oral
communications.
2518. Procedure for interception of wire or oral communications.
2519. Reports concerning intercepted wire or oral communications.
2520. Recovery of civil damages authorized.
? 2510. Definitions
As used in this chapter-
(1) "wire communication" means any communication made in
whole or in part through the use of facilities for the transmission
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of communications by the aid of wire, cable, or other like connec-
tion between the point of origin and the point of reception fur-
nished or operated by any person engaged as a common carrier in
providing or operating such facilities for the transmission of in-
terstate or foreign communications;
(2) "oral communication" means any oral communication
uttered by a person exhibiting an expectation that such communi-
cation is not subject to interception under circumstances justifying
such expectation;
(3) "State" means any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, and any terri-
tor or possession of the United States;
(4) "intercept" means the aural acquisition of the contents of
any wire or oral communication through the use of any elec-
tronic, mechanical, or other device ;
(5) "electronic, mechanical, or other device" means any device
or apparatus which can be used to intercept a wire or oral com-
munication other than-
(a) any telephone or telegraph instrument, equipment or
facility, or any component thereof, (i) furnished to the sub-
scriber or user by a communications common carrier in the
ordinary course of its business and being used 'by the sub-
scriber or user in the ordinary course of its business; or (ii)
being used by a communications common carrier in the ordi-
nary course of its ' business, or by an investigation or law
enforcement officer in the ordinary course of his duties;
(b) a hearing aid or similar device being used to correct
subnormal hearing to not better than normal;
(6) "person" means any employee, or agent of the United
States or any State or political subdivision thereof, and any in-
dividual, partnership, association, joint stock company, trust, or
corporation;
(7) "Investigative or law enforcement officer" means any officer
of the United States or of a State or political subdivision thereof,
who is empowered by law to conduct investigations of or to make
arrests for offenses enumerated in this chapter, and any attorney
authorized by law to prosecute or participate in the prosecution
of such offenses;
(8) "contents", which used with respect to any wire or oral
communication, includes any information concerning the identity
of the parties to such communication or the existence, substance,
purport, or meaning of that communication;
(9) "Judge of competent jurisdiction" means-
(a) a judge of a United States district court or a United
States court of appeals; and
(b) a judge, of any court of general criminal jurisdiction
of a State who is authorized by a statute of that State to
enter orders authorizing interceptions of wire or oral com-
munications ;
(10) "communication common carrier" shall have the same
meaning which is given the term "common carrier" by section
153(b) of title 47 of the United States Code; and
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(11) "aggrieved person" means a person who was a party to
any intercepted wire or oral communication or a person against
whom the interception was directed.
? 2511. Interception and disclosure of wire or oral communications
prohibited
(1) Except as otherwise specifically provided in this chapter or
chapter 120 or with, respect to techniques used by law enforcement
o ficers not involving the- interception of wire or oral communications
as otherwise authorized by a search warrant or order of a court of com-
petent jurisdiction, any person who-
(a) willfully intercepts, endeavors to intercept, or procures any
other person to intercept or endeavor to intercept, any wire or oral
communication or, under color of law, willfully engages in any
form of electronic surveillance as defined in chapter 100;
_ (b) willfully uses, endeavors to use, or procures any other
person to use or endeavor to use any electronic, mechanical, or
other device to intercept any oral communication when-
(i) such device, is affixed to, or otherwise transmits a signal
through, a wire, cable, or other like connection used in wire
communication ; or
(ii) such device transmits communications by radio, or
interferes with the transmission of such communication ; or
(iii) such person knows, or has reason to know, that such
device or any component thereof has been sent through the
mail or transported in interstate or foreign commerce, or
(iv) such use or endeavor to use (A) takes place on the
premises of any business or other commercial establishment
the operations of which affect interstate or foreign commerce;
or (B) obtains or is for the purpose of obtaining information
relating to the operations of any business or other commercial
establishment the operations of which affect interstate or for-
eign commerce ; or
(v) such person acts in the District of Columbia, the Com-
nionwealth of Puerto Rico, or any territory or possession of
the United States ;
(c) willfully discloses, or endeavors to disclose, to any other
person the contents of any wire or oral communication or infor-
mation obtained under color of law by any other form of electronic
surveillance as defined in chapter 120, knowing or having reason
to know that the information was obtained through the intercep-
tion of a wire or oral communication or any other form of elec-
tronic surveillance, as defined in chapter 120, in violation of this
subsection; or
(d) willfully uses, or endeavors to use, the contents of any
wire or oral communication or information obtained under color
of law by any other form of electronic surveillance as defined in
chapter 120, knowing or having reason to know that the informa-
tion was obtained through the interception of a wire or oral com-
munication or any other form- of electronic surveillance, as de f ned
in chapter 1 ~0, in violation of this subsection; era
(2) (a) M It shall no~Tb~n unblWf officer,lemp oyee,sor agent fof any con under
chapter tor of a switchboard,
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munication common carrier, whose facilities are used in the trans-
mission of a wire communication or radio communication, to inter-
cept or other wise acquire, disclose, or use that communication in the
normal course of his employment while engaged in any activity which
is a necessary incident to the rendition of his service or to the protec-
tion of the rights or property of the carrier of such communication :
Provided, That said communication common carriers shall not utilize
service observing or random monitoring except for mechanical or
service quality control checks.
(ii) It shall not be unlawful under this chapter for an officer,
employee, or agent of any communication common carrier to pro-
vide information, facilities, or technical assistance to an investigative
or law enforcement officer who, pursuant to this chapter, or chapter
120, is authorized to intercept a wire or oral [communication.] com-
m/unication, or engage in electronic surveillance, as defined in chapter
120: Provided, however, That before the information, facilities, or
technical assistance may be provided, the investigative or law enforce-
ment officer shall furnish to the officer, employee, or agent of the
carrier either-- -
(1) an order signed by the authorizing judge certifying that
a court order directing such assistance has been issued; or
(2) in the case of an emergency interception or electronic sur-
veillance as provided for in section 2518(7) of this chapter or
section 2525(d) of chapter 120, a certification under oath by inves-
tigative or law enforcement officer that the applicable statutory
requirements have been met,
any setting forth the period of time for which the electronic surveil-
lance is authorized and describing the facilities from which the com-
munication is to be acquired. Any violation of this subsection by a
commianaication conmwn carrier or an officer, employee, or agency
thereof, shall render the carrier liable for the civil damages provided
for in section 9520. No communication common carrier or officer, em-
ployee, or agent thereof shall disclose the existence of any interception
under this chapter or electronic surveillance, as defined in chapter
120, with respect to which the common carrier has been furnished
either an order or certification under this subparagraph, except as may
otherwise be lawfully ordered."
(b) It shall not be unlawful under this chapter for an officer,
employee, or agent of the Federal Communications Commission, in'
the normal course of his employment and in discharge of the monitor-
ing responsibilities exercised by the Commission in the enforcement of
chapter 5 of title 47 of the United States Code, to intercept a wire
communication, or oral communication transmitted by radio or other-
wise engaged in electronic surveillance, as defined in chapter 120, or
to disclose or use the information thereby' obtained.
(c) It shall not be unlawful under this chapter for a person acting
under color of law to intercept a wire or oral communication or
engage in electronic surveillance, as defined in chapter 120, where such
person is a party to the communication or one of the parties to the
communication has given prior consent to such interception or such
surveillance.
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.(d) It shall not be unlawful under this chapter for a person not
acting under color of law to intercept a wire or oral communication
where such person is a party to the communication or where one of
the parties to the communication has given prior consent to such
interception unless such communication is intercepted for the purpose
of committing any criminal or tortious act in violation of the Con-
stitution or laws of the United States or of any State or for the
purpose of committing any other injurious act.
(e) Notwithstanding any other provision of this title or sections 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 under procedures approved by the Attorney
General to conduct electronic surveillance as defined in section
2521 (b) (6) of chapter 120 without a court order for the sole purpose
of:
(i) testing the capability of electronic equipment, provided
that no particular United States person shall be intentionally tar-
geted for testing purposes without his consent, the test period
shall be limited in event and duration to that necessary to deter-
mine the capability of the equipment, that the content of any
communication acquired under this paragraph shall be retained
and used only for the purpose of determiing the capability of
such equipment, shall be disclosed only to the persons conducting
the test, and shall be destroyed upon completion of the testing,
and that the test may exceed ninety days only with the prior
approval of the Attorney General; or
(ii) determining the existence and capability of electronic sur-
veillance equipment being used unlawfully, provided that no
particular United States person shall be intentionally targeted for
such purposes without his consent, that such electronic surveil-
lance shall be limited in extent and duration to that necessary to
determine the existence and capability of such equipment, and
that any information acquired by such surveillance shall be used
only to enforce this chapter or section 605 of the Communications
Act of 1934 or to protect information from unlawful surveillance.
(f) Nothing contained in this chapter, or section 605 of the Com-
munications Act of 19,34 (47 U.S.C,. 605) shall be deemed to affect the
acquisition by the United States Government of foreign intelligence
information from international or foreign comunications by a means
other than electronic surveillance as defined in section 2521(b) (6) of
this title; and the procedures in this chapter and chapter 120 of this
title, shall be the exclusive means by which electronic surveillance, as
defined in section 2521(b) (6) of chapter 120, and the interception of
domestic wire and oral communications may be conducted.
[(3) Nothing contained in this chapter or in section 605 of
the Communications Act of 1934 (48 Stat. 1143, 47 U.S.C. 605)
Shall limit the constitutional power of the, President to take such
measures he deems necessary to protect the Nation agains ac-
as
tual or potential attack or other hostile acts of a po
es, deemed , utiai to the
obtain foreign inniteaentatesfor otp of ct nat onal se urity in-
security of the U
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formation against foreign intelligence activities. Nor shall any-
thing contained in this chapter be deemed to limit the constitu-
tional power of the President to take such measures as he deems
necessary to protect the United States against the overthrow of the
Government by force or other unlawful means, or against any
other clear and present danger to the structure or existence of the
Government. The contents of any wire or oral communication in-
tercepted by authority of the President in the exercise of the
foregoing powers may be received in evidence in any trial, hear-
ing, or other proceeding only where such interception was reason-
able, and shall not be otherwise used or disclosed except as is nec-
essary to implement that power.]
? 2515. Prohibition of use as evidence of intercepted wire or oral
communications
Whenever any wire or oral communication has been intercepted
or electronic surveillance, as defined in chapter, 120, has been con-
ducted, no part of the contents of such communication or other in-
formation obtained from electronic surveillance, as defined in chapter
120, and no evidence derived therefrom may be received in evidence in
any trial, hearing, or other proceeding in or before any court, grand
jury, department, officer, agency, regulatory body, legislative commit-
tee, or other authority of the United States, a State, or a political
subdivision thereof if the disclosure of that information would be in
violation of this chapter or chapter MO.
* * * * * * *
? 2518. Procedure for interception of wire or oral communications
(1) Each application for an order authorizing or approving the
interception of a wire or oral communication under this chapter shall
be made in writing upon oath or affirmation to a judge of competent
jurisdiction and shall state the applicant's authority to make such
application. Each application shall include the following information :
* * * * * * *
(4) Each order authorizing or approving the interception of any
wire or oral communication under this chapter shall specify-
An order authorizing the interception of a wire or oral communica-
tion under this chapter shall, upon request of the applicant, direct that
a communication common carrier, landlord, custodian or other person
shall furnish the applicant forthwith all information, facilities, and
technical assistance necessary to accomplish the interception unob-
trusively and with a minimum of interference with the services that
such carrier, landlord, custodian, or person is according the person
whose communications are to be intercepted. Any communication com-
mon carrier, landlord, custodian or other person furnishing such fa-
cilities or technical assistance shall be compensated therefor by the
applicant at the prevailing rates.
*
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(9) The contents of any [intercepted] wire or oral communication
intercepted pursuant to this chapter or evidence derived therefrom
shall not be received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in a Federal or State court unless each
party, not less than ten days before the trial, hearing, or proceeding,
has been furnished with a copy of the court order, and accompanying
application, under which the interception was authorized or approved.
? 2519. Reports concerning intercepted wire or oral communica-
tions
* * * * * *
(3) In April of each year the Director of the Administrative Office
of the United States Courts shall transmit to the Congress a full and
complete report concerning the number of applications for orders
authorizing or approving the interception of wire or oral communica-
tions pursuant to this chapter and the number of orders and extensions
granted or denied pursuant to this chapter during the preceding cal-
endar year.
? 2520. Recovery of civil damages authorized
[Any person whose wire or oral communication is intercepted,
disclosed, or used in violation of this chapter shall (1) have a civil
cause of action against any person who intercepts, discloses, or uses,
or procures any other person to intercept, disclose, or use such com-
munications and] Any person other than a foreign power or an agent
of a foreign power as defined in sections 2521(b) (1) and 2521(b) (2)
(A) of chapter 120, who has been subject to electronic surveillance,
as defined in chapter 120, or whose wire or oral convmmnication- has
been intercepted, or about whom information has been disclosed or
used, in violation of this chapter, shall (1) have a civil cause of action
against any person who so acted in violation of this chapter and (2)
be entitled to recover from any such person-
(a) actual damages but not less than liquidated damages com-
puted at the rate of $100 a day for each day of violation or $1,000,
whichever is higher ;
(b) punitive damages; and
(c) a reasonable attorney's fee and other litigation costs rea-
sonably incurred.
A good faith reliance on a court order or legislative authorization
shall constitute a complete defense to any civil or criminal action
brought under this chapter or under any other law.
Chapter 120. ELECTRONIC SURVEILLANCE WITHIN THE
UNITED STATES FOR FOREIGN INTELLIGENCE PUR-
POSES
Sec.
2521. Definitions.
2522. Authorization for electronic surveillance of foreign intelligence purposes.
2523. Designation of judges authorized to grant orders for electronic surveil-
lance.
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Sec.
2524. Application for an order.
2525. Issuance of an order.
2526. Use of information.
2527. Report of electronic surveillance.
2528. Congressional oversight.
? 2521. Definitions
(a) Except as otherwise provided in this section the definitions
of section 2510 of this title shall apply to this chapter.
(b) As used in this chapter-
(1) "Foreign power" means-
(A) a foreign government or any component thereof,
whether or not recognized by the United States;
(B) a faction of a foreign nation or nations, not substan-
tially composed of United States persons;
(C) an entity, which is openly acknowledged by a foreign
government or governments to be directed and controlled by
such foreign government or governments;
(D) a foreign-based terrorist group;
(E) a foreign-based political organization, not substan-
tially composed of United States persons; or
(F) an entity which is directed and controlled by a foreign
government or governments.
(2) "Agent of a foreign power" -means-
(A) any person, other than a United States person, who-
(i) acts in the United States as an o icer or employee
of a foreign power; or
(ii) acts for or on behalf of a foreign power which
engages in clandestine intelligence activities contrary to
the interests of the United States, when the circum-
stances of such person's presence in the United States
indicate that such person may engage in such activities
in the United States, or when such person knowingly
aids or abets any person in the conduct of such activities
or conspires with any person knowing that such person
is engaged in such activities;
(B) any person who--
(i) knowingly engages in clandestine intelligence
gathering activities for or on behalf of a foreign power,
which activities involve or may involve a violation of the
criminal statutes of the United States;
(ii) pursuant to the direction of an intelligence serv-
ice or network of a foreign power, knowingly engages
in any other clandestine intelligence activities for or on
behalf of such foreign power, which activities involve or
are about to involve a violation, of the criminal statutes
of the United States;
(iii) knowingly engages in sabotage or terrorism, or
activities which are of may be in preparation therefor,
for or on behalf of a foreign power;
(iv) knowingly aids or abets any person in the con-
duct of activities described in subparagraph (B) (i) -
(iii) above, or conspires with any person knowing that
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such person is engaged in activities described in subpara-
graph (B) (i)-(iii) above: Provided, That no United
States person may be considered an agent of a foreign
power solely upon the basis of activities protected by the
First Amendment to the Constitution of the United
States.
(3) "Terrorism" means activities which-
(A) are violent acts or acts dangerous to human life which
would be criminal under the laws of the United States or Of
any State if committed within its jurisdiction; and
(B) appear to be intended---
(i) to intimidate or coerce the civilian population,
(ii) to influence the policy of a government by intimi-
dation or coercion, or
(iii) to affect the conduct of a government by assassi-
nation or kidnapping.
(L,) "Sabotage" means activities which would be prohibited by
title 18, United States Code, chapter 105, if committed against the
United States.
(5) "Foreign intelligence information" means-
(A) information which relates to, and if concerning a
United States person is necessary to, the ability of the United
States to protect itself against, actual or potential attack or
other grave hostile acts of a foreign power or an agent of a
foreign power;
(B) information with respect to a foreign power or foreign
territory which relates to, and if concerning a United States
person is necessary to-
(i) the national defense or the security of the Nation;
or
(ii) the successful conduct of the foreign affairs of the
United States; or
(C) information which relates to, and if concerning a
United States person is necessary to, the ability of the United
States to protect against-
(i) sabotage or terrorism by a foreign power or an
agent of a foreign power, or
(ii) the clandestine intelligence activities of an intel-
ligence service or network of a foreign power or an agent
of a, foreign power.
(6) "Electronic surveillance" means-
(A) the acquisition by an electronic, mechanical, or other
surveillance device of the contents of any wire or radio com-
?nvanication sent by or intended to be received by a particular,
known United States person who is in the United States,
where the contents are acquired by intentionally taraeting
that United States person, under circumstances in which a
person has a reasonable expectation o f privacy and a warrant
would be required for law enforcement purposes;
(B) the acquisition by an electronic, mechanical, or other
surveillance device, of the contents of any wire communica-
tion to or from a person in the United States, without the
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consent of any party thereto, where such, acquisition occurs
in the United States while the commmnieation is being trans-
mitted by wire;
(C) the intentional acquisition, by an electronic, mechan-
ical, 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 warrant would be
required for law enforcement purposes, and where both the
sender and all intended recipients are located within the
United States; or
(D) the installation or use of an electronic, mechanical,
or other surveillance device in the United States for monitor-
ing 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.
(7) "Attorney General" means the Attorney General of the
United States (or Acting Attorney General) or the Deputy Attor-
ney General.
(8) "Minimization procedures" means procedures which are
reasonably designed to minimize the acquisition and retention, and
prohibit the dissemination, except as provided for in subsections
2526 (a) and (b), of any information concerning United States
persons without their consent that does not relate to the ability
of the United States-
(A) to protect itself against actual or potential attack or
other grave hostile acts of a foreign power or an agent of a
foreign power;
(B) to provide for the national defense or security of the
Nation;
(C) to provide for the conduct of the foreign affairs of the
United States;
(D) to protect against terrorism by a foreign power or
an agent of a foreign power;
(E) to protect against sabotage by a foreign power or an
agent of a foreign power; or
(F) to protect against the clandestine intelligence activi-
ties of an intelligence service or network of a foreign power
or an agent of a foreign power; and which are reasonably
designed to insure that information which relates solely to the
ability of the United States to provide for the national de-
fense or security of the Nation and to provide for the conduct
of the foreign affairs of the United States, under subpara-
graph (B) and (C) above, shall not be disseminated in a
manner which identifies any United States person, without
such person's consent, unless such person's identity is neces-
sary to understand or assess the importance of information
with respect to a foreign power or foreign territory or such
information is otherwise publicly available.
(9) "United States person" means a citizen of the United States,
an alien lawfully admitted for permanent residence (as defined in
section 101(a) (20) of the Immigration and Nationality Act),
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an unincorporated association a substantial number of members
of which are citizens of the United States or aliens lawfully
admitted for permanent residence or a corporation which is incor-
porated in the United States, but not including corporations or
associations which are foreign powers as defined in section 0521
(b) (1) (A)-(E).
(10) "United States" when used in a geographic sense means all
areas under the territorial sovereignty of the United States, the
Trust Territory of the Pacific Islands, and the Canal Zone.
? 2522. Authorization for electronic surveillance for foreign
intelligence purposes
Applications for a court order under this chapter are authorized if
the President has, by written authorization, empowered the Attorney
General to approve applications to Federal judges having jurisdiction
under section 25,03 of this chapter, and a. judge to whom an application
is made may grant an order, in conformity with section 2,625 of this
chapter, approving electronic surveillance of a foreign power or an
agent of a foreign power for the purpose of obtaining foreign intel-
ligence information.
2523. Designation of judges authorized to grant orders for
electronic surveillance
(a) The Chief Justice of the Tinted States shall publicly designate
seven district court judges who shall constitute a special court, each
member of which shall have jurisdiction to hear applications for and
grant orders approving electronic surveillance anywhere within the
United States under the procedures set forth in this Chapter, except
that no judge designated under this subsection shall have jurisdiction
of the same application for electronic surveillance under this chapter
which has been denied previously by another judge designated under
this subsection. If any judge so designated denies an application for an
order authorizing electronic surveillance under this chapter, such
judge shall provide immediately for the record a written statement of
each reason for his decision and, on motion. of the United States, the
record shall be transmitted, under seal, to the special court of review
established in subsection (b).
(b) The Chief Justice shall publicly designate three judges, one of
whom shall be publicly designated as the presiding judge, from the
United States district courts or courts of appeals who together shall
comprise a special court of review which shall have jurisdiction to
review the denial of any application made under this chapter. If such
special court determines that the application was properly denied, the
special court shall immediately provide for the record a written state-
ment of each reason for its decision and, on petition of the United
States for a writ of certiorari.. the record shall be transmitted under
seal to the Supreme Court, which shall have jurisdiction to review such
decision.
(c) Proceedinas under this chapter shall be conducted as expedi-
tiously as possible. The record of proceedings under this chapter, in-
eluding applications made and orders granted, shall be sealed and
maintained under security measures established by the Chief Justice
in consultation with the Attorney General and the Director of Central
Intelligence.
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(d) Each udge designated under this section shall so serve for a
maximum ofl seven years and shall not be eligible for redesignation,
provided that the judges first designated under subsection (a) shall be
designated for terms o f _from one to seven years so that one term expires
each year, and that judges first designated under subsection (b) shall
be designated for terms of three, five, and seven years.
? 2524. Application for an order
(a) Each application for an order approving electronic surveillance
under this chapter shall be made by a Federal officer in writing upon
oath or affirmation to a judge having jurisdiction under section 2523
of this chapter. Each application shall require the approval of the
Attorney General based upon his finding that it satisfies the criteria
and requirements of such application as set forth in this chapter. It
shall include the following information-
(1) the identity of the Federal officer making the application;
(2) the authority conferred on the Attorney General by the
President of the United States and the approval of the Attorney
General to make the application;
(3) the identity or a description of the target of the electronic
surveillance;
(4) a statement of the facts and circumstances relied upon by
the applicant to justify his belief that-
(A) the target of the electronic surveillance is a foreign
power or an agent of a foreign power; and
(B) the facilities or the place at which the electronic sur-
veillance is directed are being used, or are about to be used,
by a foreign power or an agent of a foreign power;
(5) a statement of the proposed minimization procedures;
(6) when the target of the surveillance is not a foreiqn power
as defined in section 2521(b) (1) (A), (B), or (C), a detailed
description of the nature of the information sought;
(7) a certification or certifications by the Assistant to the
President for National Security Affairs or an executive branch
official or officials designated by the President from among those
executive officers employed in the area of national security or de-
fense and appointed by the President with the advice and consent
of the Senate-
(A) that the certifying official deems the information
sought to be foreign intelligence information;
(B) that the purpose of the surveillance is to obtain for-
eign intelliq~nce information;
(C) that such information cannot reasonably be obtained
by normal investigative techniques;
(D) including a designation of the type of foreign intelli-
gence information being sought according to the categories
described in section 2521(b) (5) ;
(E) when the target of the surveillance is not a foreign
power, as defined in section 2521(b) (1) (A), (B), or (C),
including a statement of the basis for the certification that-
(i) the information sought is the type of foreign in-
telligence information designated; and
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(ii) such information cannot reasonably be obtained
by normal investigative techniques;
(F) when the target of the surveillance is a foreign power,
as defined in section 2521(b) (1) (A), (B), or (C), stating
the period of time for which the surveillance is required to
be maintained;
(8) when the target of the surveillance is not a foreign power,
as defined in section 2521(b) (1) (A), (B), or (C), a statement of
the means by which the surveillance will be effected, and when the
target is a foreign power, as defined in section 2521(b) (1) (A),
(B), or (C), a designation of the type of electronic surveillance
to be used according to the categories described in section 2521
(b) (g) and a statement whether physical entry is required to
effect the surveillance;
(9) a statement of the facts concerning all previous applications
that have been made to any judge under this chapter involving
any of the persons, facilities, or places specified in the application,
and the action taken on each previous application; and
(10) when the target of the surveillance is not a foreign power.
as defined in section 2521(b) (1) (A), (B), or (C), a statement of
the period of time for which the electronic surveillance is required
to be maintained. If the nature of the intelligence gathering is
such that the approval of the use of electronic surveillance under
this chapter should not automatically terminate when the de-
scribed type of information has first been obtained, a description
of facts supporting the belief that additional information of the
same type will be obtained thereafter.
(b) The Attorney General may require any other affidavit or certifi-
cation from any other officer in connection with the application.
(c) The judge may require the applicant to furnish such other in for-
mation as may be necessary to make the determinations required by
section 2525 of this chapter-
? 2525. Issuance of an order
(a) Upon an application, made pursuant to section 2524 of this title,
the judge shall enter an ex paste order as requested or as modified
approving the electronic surveillance if he finds that-
(1) the President has authorized the Attorney General to ap-
prove applications for electronic surveillance for foreign intel-
ligence information;
(2) the application has been made by a Federal officer and
approved by the Attorney General;
(3) on the basis of the facts submitted by the applicant there
is probable cause to believe that-
(A) the target of the electronic surveillance is a foreign
power or an agent of a foreign power; and
(B) the facilities orr place at which the electronic surveil-
lance is directed are being used, or are about to be used, by a
foreign power or an agent of a foreign power;
(4) the proposed minimization procedures meet the definition
of minimization procedures under section 2521(b) (8) of this title;
(5) the application which has been filed contains the descrip-
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tion and certification or certifications, specified in section 2524 (a)
(7) and, if the target is a United States person., the certification
or certifications are not clearly erroneous on the basis of the state-
ment made under section 2524(a) (7) (E) and any other informa-
tion furnished under section 2524(c).
(b) An order approving an electronic surveillance under this section
shall-
(1) specify-
(A) the identity or a description of the target of the elec-
tronic surveillance;
(B) the nature and location of the facilities or the place
at which the electronic surveillance willl be directed;
(C) when the target of the surveillance is not a foreign
power as defined in section 2521(b) (1) (A), (B), or (C), the
type of information sought to be acquired and when the target
is a foreign power defined in section 2521(b) (1) (A), (B), or
(C), the designation of the type of foreign intelligence in-
formation under section 2521(b) (5) sought to be acquired;
(D) when the target of the surveillance is not a foreign
power, as defined in section 2521 (b) (1) (A), (B), or (C),
the means by which the electronic surveillance will be effected,
and when the target is a foreign power, as defined in section
2521(b) (1) (A), (B), or (C), a designation of the type of
electronic surveillance to be used according to the categories
described in section 2521 (b) (6) and whether physical entry
will be used to effect the surveillance;
(E) the period of time during which the electronic sur-
veillance is approved; and
(2) direct-
(A) that the minimization procedures be followed;
(B) that, upon the request of the applicant, a specified com-
munication or other common carrier, landlord, custodian,
contractor, or other specified person furnish the applicant
forthwith any and all information, facilities, or technical
assistance, necessary to accomplish the electronic surveillance
in such manner as will protect its secrecy and produce a mini-
mum o f interference with the services that such carrier, land-
lord, custodian, contractor, or other person is providing that
target of electronic surveillance;
(C) that such carrier, landlord, custodian, or other person,
maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any -records
concerning the surveillance or the aid furnished which such
person wishes to retain;
(D) that the applicant compensate, at the prevailing rate,
such carrier, landlord, custodian, or other person for furnish-
ing such aid.
(c) An order issued under this section may approve an electronic
surveillance not targeted against a foreign power, as defined in section
2521 (b) (1) (A), (B), or (C), for the period necessary to achieve its
purpose, or for ninety days, whichever is less; an order under this
section shall approve an electronic surveillance targeted against a for-
eign power, as defined in section 2521(b) (1) (A), (B), or (C) for the
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period specified in the certification required in section 2524 (a) (7) (F),
or for one year, whichever is less. Extensions o f an order issued under
this chapter may be granted on the same basis as an original order
upon an application for an extension made in the same manner as
required for an original application and after new findings required
by subsection (a) of this section. In connection with applications for
extensions where the target is not a foreign power, as defined in section
2521(b) (1) (A), (B), or (C), the judge may require the applicant
to submit information, obtained pursuant to the original order or to
any previous extensions, as may be necessary to make new findings of
probable cause. At the end of the period of time for which an electronic
surveillance is approved by an order or an extension issued under this
section, the judge may assess compliance with the minimization proce-
dures required by this chapter.
(d) Notwithstanding any other provision of this chapter when the
Attorney General reasonably determines that-
(1) an emergency situation exists with respect to the employ-
menteof electronic surveillance to obtain foreign intelligence in-
formation before an order authorizing such surveillance can with
due diligence be obtained, and
(2) the factual basis for issuance of an order under this chap-
ter to approve such surveillance exists, he may authorize the emer-
gency employment of electronic surveillance if a judge designated
pursuant to section P2523 of this chapter is informed by the Attor-
ney General or his designate at the time of such authorization that
the decision has been made to employ emergency electronic sur-
veillance and if an application in accordance with this chapter is
made to that judge as soon as practicable, but not more than
twenty-four hours of ter the Attorney General authorizes such ac-
quisition. If the Attorney General authorizes such emergency
employment of electronic surveillance, he shall require that the
minimization procedures required by this chapter for the issu-
ance of a judicial order be followed. In. the absence of a judicial
order approving such electronic surveillance, the surveillance shall
terminate when the information sought is obtained, when the ap-
plication for the order is denied, or after the expiration of twenty-
four hours from the time of authorization by the Attorney Gen-
eral, whichever is earliest. In the event that such application for
approval is denied, or in any other case where the electronic sur-
veillance is terminated without an order having been issued, no
information obtained or evidence derived from such surveillance
shall be received in evidence or otherwise disclosed in any trial,
hearing or other proceeding in or before any court, grand jury,
department, office, agency, regulatory body, legislative committee
or other authority of the United States, a State or political sub-
division thereof; and no information concerning any United
States person acquired from such surveillance shall subsequently
be used or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General iv here the information indicates
a threat o f death or serious bodily harm to any person. A denial
of the application made under this subsection may be reviewed
as provided in section 2523.
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? 2526. Use of information
(a) Information concerning United States persons acquired from
an electronic surveillance conducted pursuant to this chapter may be
used and disclosed by Federal officers and employees without the con-
sent of the United States person only for purposes specified in sec-
tion 2521(b) (8) (A) through (F), and in accordance with the min-
imization procedures required by this chapter, or for the enforcement
of the criminal law if its use outweighs the possible harm to the na-
tional security. No otherwise privileged communication obtained in
accordance with, or in violation of, the. provisions of this chapter shall
lose its privileged character. No information acquired from an elec-
tronic surveillance conducted pursuant to this chapter may be used or
disclosed by federal officers or employees except for lawful purposes.
(b) The minimization procedures required under this chapter shall
not preclude. the retention and disclosure, for law enforcement pur-
poses, of any information which constitutes evidence of a crime if such
disclosure is accompanied by a statement that such evidence, or any
information derived therefrom, may only be used in a criminal pro-
ceeding with the advance authorization of the Attorney General.
(c) Whenever the Government of the United States, Of a State, or of
a political subdivision thereof intends to enter into evience or other-
wise use or disclose in any trial, hearing, or other proceeding in or
before any court, department, officer, agency, or other authority of
the United States, a State, or a political subdivision thereof, any in-
formation obtained or derived from an electronic surveillance, the
Government shall prior to the trial, hearing, or other proceeding or at
a reasonable time prior to an effort to so disclose or so use the informa-
tion or submit it in evidence notify the court in which the informa-
tion is to be disclosed or used or, if the information is to be disclosed
or used in or before another authority, shall notify a court in the dis-
trict wherein the information is to be so disclosed or so used that the
Government intends to so disclose or so use such information.
(d) Any person who has been a subject of electronic surveillance.
and against whom evidence derived from such electronic surveillance
is to be, or has been, introduced or otherwise used or disclosed in any
trial, hearing, or proceeding in or before any court, department officer,
agency, regulatory body, or other authority of the. United States, a
State, or a political subdivision thereof, may move to suppress the con-
tents of any communication acquired by electronic surveillance, or
evidence derived therefrom, on the grounds that-
(1) the communication was unlawfully acquired; or
(2) the surveillance was not made in conformity with the order
of authorization approval.
Such motion shall be made before the trial, hearing, or proceeding
unless there was no opportunity to make such motion or the person
was not aware of the grounds of the motion.
(e) Whenever any court is notified in accordance with subsection
(c), or whenever a motion is made by an aggrieved person pursuant
to Subsection (d), to suppress evidence on the grounds that it was ob-
tained or derived from an unlawful electronic surveillance, or when-
ever any motion or request is made by an aggrieved person pursuant to
section 3504 of this title or any other statute or rule of the United
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States, to discover, obtain or suppress evidence or information ob-
tained or derived from electronic surveillance, the federal court, or
where the motion is made before another authority, a federal court in
the same district as the authority, shall, notwithstanding any other
law, if the Government by affidavit asserts that disclosure or an ad-
versary hearing would harm the national security of the United States,
review in camera and ex parte the application, order, and other ma-
terials relating to the surveillance as may be necessary to determine
whether the surveillance -was authorized and conducted in a manner
that did not violate any right afforded by the Constitution and statutes
of the United States to the aggrieved person. In making this determi-
nation, the court shall disclose to the aggrieved person portions of the
application, order, or other materials relating to the surveillance only
where such disclosure is necessary to make an accurate determination
of the legality of the surveillance. If the court determines that the elec-
tronic surveillance of the aggrieved person was not lawfully author-
ized or conducted, the court shall in accordance with the requirements
of law suppress the information obtained or evidence derived from
the unlawful electronic surveillance. If the court determines that the
surveillance was lawfully authorized and conducted, the court shall
deny any motion for disclosure or discovery unless required by due
process.
(f) If an emergency employment of the electronic surveillance is
authorized under section 2.525(d) and a subsequent order approving
the suveillance is not obtained, the judge shall cause to be served on
any United States person named in the application and on such other
United States persons subject to electronic surveillance as the judge
may determine in his discretion it is in the interest of justice to serve,
notice of-
(1) the fact of the application;
(2) the period of the surveillance; and
(3) the fact that during the period information was or was not
obtained.
On an ex parte showing of good cause to the judge the serving of the
notice required by this subsection may be postponed or suspended for
a period not to exceed ninety days. Thereafter, on a further ex parte
showing of good cause, the court shall forego ordering the serving of
the notice required under this subsection.
(g) In circumstances involving the unintentional 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 warrant would be required
for law enforcement purposes, and where both the sender and all
intended recipients are located within the United States, such con-
tents shall be destroyed upon recognition, except with the approval of
the Attorney General where the contents indicate a threat of death
or serious bodily harm to any person.
? 2527. Report of electronic surveillance
In April of each year, the Attorney General shall report to the Ad-
ministrative Office of the United States Courts and shall transmit to
Congress with respect to the preceding calendar year-
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(1) the total number of applications made for orders and ex-
tensions of orders approving electronic surveillance; and
(2) the total number of such orders and extensions either
granted, modified, or denied.
? 2528. Congressional Oversight
(a) On a semiannual basis the Attorney General shall fully inform
the House Permanent Select Committee on Intelligence and the Sen-
ate Select Committee on Intelligence concerning all electronic sur-
veillance under this chapter. Nothing in this chapter shall be deemed
to limit the authority and responsibility of those committees to ob-
tain such additional information as they may need to carry out their
respective functions and duties.
(b) On or before one year after the effective date of this chapter,
and on the same day each year thereafter, the Select Committee on
Intelligence of the United States Senate shall report to the Senate
concerning the implementation of this chapter. Said reports shall in-
clude but not be limited to an analysis and recommendations con-
cerning whether this chapter should be (1) amended, (2) repealed,
or (3) permitted to continue in effect without amendment.
(c) In the event the Select Committee on Intelligence of the United
States Senate shall report that this chapter should be amended or re-
pealed, it shall report out legislation embodying its recommendations
within thirty calendar days, unless the Senate shall otherwise deter-
mine by yeas and nays.
(d) Any legislation so reported shall become the pending business
of the Senate with time for debate equally divided between the pro-
ponents and opponents and shall be voted on within thirty calendar
days thereafter, unless the Senate shall otherwise determine by yeas
and nays.
(e) Such legislation passed by the Senate shall be referred to the
appropriate committee of the other House and shall be reported out
by such committee together with its recommendations within thirty
calendar days and shall thereupon become the pending business of
such House and shall be voted upon within three calendar days, unless
such House shall otherwise determine by yeas and nays.
(f) In the case of any disagreement between the two Houses of Con-
gress with respect to such legislation passed by both Houses, conferees
shall be promptly appointed and the committee of conference shall
make and file a report with respect to such legislation within seven
calendar days a f ter the legislation is referred to the committee of con-
ference. Nothwithstanding any rule in either House concerning the
printing of conference reports in the record or concerning any delay in
the consideration of such reports, such reports shall be acted on by
both Houses not later than seven calendar days after the conference
report is filed. In the event the conferees are unable to agree within
three calendar days they shall report to their respective Houses in
disagreement.
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ADDITIONAI. VIEWS OF SENATOR MALCOLM WALLOP
This bill fills an important need. Title III of the Omnibus Crime
Act of 1.968 did not regulate the executive branch's authority to con-
duct electronic surveillance for purposes of national security. In 1972
the Supreme Court's Keith decision brought electronic surveillance
conducted for purposes of national security into the scope of the
fourth amendment, and strongly suggested that Congress regulate
such surveillance. Since that time, the executive agencies which nor-
mally carry out such surveillance have been under massive but con-
flicting political pressures to surveil and not to surveil. In the case of
FBI Special Agent John Kearney, for example, we see a conflict be-
tween the need to catch the group which, among other things, bombed
the Capitol on the one hand, and some interpretations of the crime
bill of 1968 and the Keith decision on the other. We also see standards
in this field evolving rapidly and perhaps being applied retroactively.
The executive agencies have reacted as one might expect. Earlier this
year the Attorney General told us that, with one exception, no Ameri-
can citizen was then the target of electronic surveillance. It would be
comforting to think this means no American citizens are involved in
activities which merit surveillance. Instead it seems that those who
normally should be surveilling are afraid to act without firm legal
mandate. Their position is entirely understandable. Without fixed
standards we cannot expect them to stick their necks out in order to
protect the country. This bill provides such standards in limited cir-
cumstiances. Were there to be a choice between this bill and the cur-
rent state of things I should certainly choose the bill. The bill does
give firm legal basis for action to agencies too disheartened to act with-
out it. More important, it represents a genuine attempt-perhaps the
first attempt by Congress-to think through and to balance the citizen's
competing claims to security from foreign powers, their agents and
international terrorists, and to security from electronic surveillance by
his own Government.
The bill's premises are altogether reasonable. The power to conduct
electronic surveillance for the purpose of gaining foreign intelligence
and foreign counterintelligence is ancillary to the President's consti-
tutional power to command the Armed Forces and to direct the Na-
tion's foreign affairs. In order to be lawful however, the power of
electronic surveillance, like all other powers, (must be exercised only
for the purpose for which it was intended. Each exercise of power
must be, reasonably and proportionally related to the end for which
the power exists. The bill therefore was written in order to allow the
executive branch to conduct such electronic, surveillance-but only
such electronic surveillance--as is necessary to gather the intelligence
and counterintelligence information truly needed by the country.
(91)
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Hence the bill attempts to define the persons who may be surveilled,
and the circumstances under which they may be surveilled, as well as
the nature of the information to be sought. In addition the bill sets
forth standards for the use to which information so gained may be
put.
The bill presents the Congress with issues of two different kinds.
One is the appropriateness of the definitions of persons, circumstances
and information. I will argue below that these should be somewhat
different than they are. The second, more important, has to do with
the role-which the bill assigns to the Judiciary.
The jud'iciary'8 role
In answer to concerns that the Judiciary is being made to rule on
the substance of decisions affecting defense and foreign affairs, the
argument has been made that the Judiciary's role in the bill is mini-
mal. The burden of developing the case for surveillance is to rest on
the executive branch. The executive branch will have to apply the
bill's definitions. The judge, so goes the argument, will merely receive
the certification and, when the persons to be surveilled are not U.S.
persons will automatically allow the executive branch to proceed. The
judge will not have to decide the merits of the cases, nor will he
personally decide whether there is "probable cause" for looking at
the case as the executive does. He will merely make sure that the
executive branch has adhered to the standards set forth by the bill
and its accompanying report in determining whether the person(s)
in question may be surveilled. The judge will, however, have to con-
trol how the information is used. In the first instance the judge's
role is merely a clerical one. It could be performed by OMB, by the
GAO, or by the staff of any congressional committee. In the second
instance the judge's task is managerial. In neither instance is it judi-
cial. Why then confide it to judges? The answer seems to be that
judges add an aura of legality to the process. The judicial branch
however may not consent to provide rubber stamps and low-level man-
agers for the executive branch. Thus where the judiciary's role is small
it is both superfluous and, above all, nonjudicial.
Where U.S. persons are or may be concerned, however, the judici-
ary's role is undeniably larger. In such case the bill requires the judge
to decide whether the executive branch's application of the criteria is
or is not "clearly erroneous." Because this places the judge in the
position of deciding on the propriety of the executive branch's deci-
sion, it raises a number of constitutional questions.
Heretofore the judicial branch has resisted temptations to declare
itself competent in foreign affairs and defense. In the case of Chicago
Southern v. Waterman Steamship Co. (333 U.S. 103, 111, 1948), the
Supreme Court acknowledged the court's incompetence in matters
of foreign intelligence. The substance of such matters, said the courts
"are delicate, complex, and involve large elements of prophecy. They
are and should be undertaken only by those directly responsible to
the people whose welfare they advance or imperil." Such decisions
are in "the domain of political power, not subject to judicial intrusion
or inquiry."
Clearly, defense and foreign relations are political tasks. That ;s to
say, they are to be conducted subject to the people's power to elect.
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The power to surveil for purposes of defense and foreign affairs be-
longs to that branch of government empowered by the Constitution
to command the armed forces and conduct foreign affairs. There are no
judicial criteria for interpreting whether this or that foreign visitor
i or is not an agent of a foreign power, whether this or that Ameri-
can's connection with persons who may have some relation with the
intelligence services of a foreign power has sufficient connections to
warrant surveillance.
There are legitimate questions regarding the proper role of the
Judiciary in society involved here. In the past we have seen legisla-
tion which has directed the courts to check the procedural regularity
of the executive branch's actions. All too often we have seen the
courts follow the valid logic: that one cannot make judgments on
procedure without reaching substance, and assume the authority for
substantive review. The most recent instance is that of environmental
law. Some judges are quite ready to move into foreign affairs in an
equally substantive way. Judge Wright has written in the Zweibon
case (516 F2nd 594 DC Circuit Court, 1975) that judges possess the
"analytical ability or sensitivity of foreign affairs necessary to evalu-
ate recommendations" for electronic surveillance. Furthermore, ac-
cording to Judge Wright, "a Federal judge has lifetime tenure and
could presumably develop an expertise in the field of foreign affairs
if consistently presented to for authorizations for foreign security
wiretaps." No doubt, a judge could; the large question is whether
a judge should.
The above mentioned logic would operate swiftly in the areas cov-
ered by the bill. Is this information, a judge will have to decide, really
necessary to protect the United States against grave hostile. acts?
Just how hostile is that country toward the United States? Will his
information really contribute to the successful conduct of our rela-
tions with that country? And what, after all, is success with regard
to that country ? We must ask whether it would be wise, never mind
constitutional, to place judgments on foreign affairs and defense into
the hands of people who are not democratically responsible. Has the
country so benefited from judicial activism in domestic affairs that it
wishes to give judges responsibilities for foreign affairs and defense
as well? And if, under the bill, one wished to minimize the amount of
substantive judgment exercised by judges, how could he go about.
excluding from the special court people who think as Judge Wright
does?
The judges would be put in an impossible position. They would
have to become either the executive's rubber-stamps or the executive's
competitors.
The role assigned to the judiciary by the bill also appears some-
what alien to the old Anglo-American tradition that the Judicial power
may deal only with concrete adversary situations. Unlike European
judges, ours until very recently have not issued advisory opinions
on administrative proceedings. The judgment of "not clearly er-
roneous" envisaged by the bill looks like an advisory opinion be-
cause the procedure for the warrant is entirely ex parte and because
in nearly all cases the warrant procedure will be the entirety of the
legal proceeding. The cases which would come before the special court
would not, and would not be expected to, go beyond the procedure for
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the warrant. Only incidentally some would result in real trials. But
trials are precisely the concrete adversary proceedings which make
judgments issued in ex parte proceedings something other than ad-
visory opinions.
Ex parte proceedings which do not normally result in trials are
also questionable from the standpoint of individual rights. Unless
there is ultimately a trial, the individual affected will never have
an opportunity to contest the government's case. Indeed, a body of
case law is likely to grow without benefit of arguments contrary to
the Government. If the judicial proceedings envisaged by the bill are
to be final ones --that is, if they are not to end in trials-then there
should at least be a kind of public defender or devil's advocate to argue
against the executive branch's position. In the end we must decide
whether these are to be real judicial proceedings or not.
The secrecy of the entire proceedings is itself quite foreign to our
legal and constitutional system. Can our legal system stand a body of
secret case law? It is not altogether clear that all the judges would be
privy to the records of all the cases. If they were not, what good could
dissenting opinions do? In the end, the only real means available to a
dissenting judge or Justice of the Supreme Court, if he deemed a
Government act of surveillance grossly abusive, would be to break
secrecy and make the case public. It is far from clear that any action
short of impeachment could be taken against such a judge. The bill, in
short, raises the possibility of a constitutional clash.
In a sense the bill succeeds too well. Under it, each and every act of
electronic surveillance authorized by the special court would be ipso
facto legal. That is not an unmixed blessing, for it would curtail
drastically Congress' ability to question the appropriateness of any
such act. Under the bill, the. intelligence committees of Congress may
indeed have access to all information regarding requests for surveil-
lance and their disposition. But what could any Congressman or Sen-
ator do about any act of surveillance he considered unjust or inappro-
priate? That act would have been not only requested under congres-
sional standards, but certified as meeting those standards by a Fed-
eral judge. For all practical purposes the Congressman or Senator
would face a res adjudicate. His chances of righting what he con-
sidered a wrong would be small-especially if he belonged to the
minority party, and if the act of surveillance tended to favor the
persons or policies of the majority party. Past abuses of the Presi-
dent's power of electronic surveillance for purposes of national se-
curity were not stopped by the judiciary, but by the only agency with
the political power to do it: Congress. The judiciary's role in this bill
would reduce Congress' latitude for action in this area.
The bill, however, gives the unfortunate appearance of trying to
turn political questions into legal ones resolvable by judges not sub-
ject to-election. It is doubtful whether this can be done in this case.
Is it possible tinder our Constitution for ordinary legislation to take
away the. President's power to do what he deems necessary to success-
fully command this country's defense forces and to successfully run
our foreign relations? Let there be no mistake that the bill tries to do
this when it stipulates that before exercising a power that is acknowl-
edged to be his, he must receive authorization from a judge. The
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principle that would be established here is that any given action of
the executive which may affect the constitutional rights of citizens
must be judicially deemed reasonable or "not clearly erroneous" before
.the fact. A moment's reflection is enough to conjure up any number of
absurd situations which would be created by the application of this
principle. None of this is to say that there can be no check upon the
exercise of presidential powers, but rather to indicate that such checks
should be political. and must be after the, fact.
The bill could achieve its worthy intended purpose, and yet avoid
all the above mentioned difficulties if only two changes were made:
(1) the review of the executive's certification that a particular act of
electronic surveillance conforms to the bill's standards should occur
after rather than before the fact, and (2) the reviewing body ought
not to be a special court but two subcommittees of the intelligence
committees of the Congress.
Standards
The shortcomings in the bill's standards proceed from three princi-
pal causes. First and foremost the bill confuses surveillance conducted
for the purpose of gaining information necessary to the defense and
foreign affairs of the United States with surveillance for the purpose
of enforcing criminal law. Second, in. several places the bill leaves to
the judge the task of deciding questions on which its authors could not
agree. Third, the standards are unduly complex.
The judge may not approve surveillance of U.S. persons unless the
Government can show that he or she "knowingly engaged in clandes-
tine intelligence activities which involve or ma.y involve a violation of
the criminal statutes of the United States" or knowingly commits,
prepares to commit, or aids in the preparation or commission of, acts
of sabotage or terrorism. In other words, in order to make himself
eligible for surveillance someone not only has to have done something
which could land him in jail, but he has to have done it knowingly.
The latter, of course, is hard enough to show in a trial, never mind a
hearing. Then there is the fact that most clandestine intelligence activ-
ities do not break the law, as shown by the recent case of the East,
German agent James Sattler. Such activities-secret, communications
and interviews with Government officials-inay include violations of
law. But who could blame a judge for deciding that an activity which
does not violate the law does not in fact involve a. violation of law?
Indeed, the report states that activity protected by the Constitution of
the United States may form no part of the basis for a finding that a
person should be surveiled.
But even if these, standards were made permissive enough to ex-
plicitly permit the surveillance of persons such as Mr. Sattler, or evert
of thoroughly innocent, dupes, they would still divert the bill from its
national purpose : surveillance of persons not for law enforcement but
for the very sake of the information to be obtained. In cases where, the
defense or foreign relations of the United States are concerned, the
subject's culpability or responsibility is arguably beside the point. The
information gained by surveil] ing him may not relate to hum at all,
but may save countless lives. Consider the case of someone with knowl-
edge of a band of nuclear terrorists, hiding in one of a thousand
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apartments in a huge complex. It would be both reasonable and easy
to tap every telephone in the complex, discard all intercepts but the
correct one, and gain the vital information. But that would involve
999 violations of this bill. Consider also the cases of thoroughly in-
nocent persons used as couriers by foreign agents. By surveilling them
we could uncover other parts of a dangerous network. The bill does
not allow us to. Consider, finally, the case of a thoroughly innocent
American who may have knowledge which, unbeknownst to him,
would shed light on foreign military or intelligence plans, and who
would be placed in danger if contacted. Under this bill this American
could not be surveilled. Whether or not to intrude. upon the privacy of
the abovementioned Americans would involve decisions of foreign and
defense policy, not criminal law. The unwarranted confusion of the
two serves neither well.
In some places the bill's standards-as elucidated in the report-
are all too explicit. An example is the report's detailed discussion of
why, under the standards of the bill, the surveillance of persons who
worked to defeat the U.S. effort in Vietnam would be unlawful. The
Judiciary Committee report states that during the Vietnam War some
activists had coordinated their anti-U.S. efforts with North Vietnam
and other Communist powers, but that since they operated autono-
mously rather than at the behest of Communist regimes, they would
have been immune from surveillance under this bill. This kind of ex
post facto exoneration of one side of a controversy and indictment of
the other is, at best, gratuitous.
These descriptions set forth distinctions where I doubt the Ameri-
can people would find difference. For example, the report says :
* * * direction from personnel of a foreign power which
are not connected with an intelligence service or a network
would not be a basis for electronic surveillance . . .
Leaving aside the enormous practical difficulty of probing for the
connections between the several component parts of foreign powers,
especially given the state of our intelligence, one cannot escape the
question of how many "cutouts" are enough to exempt an American
acting on behalf of or in conjunction with a Communist regime. from
lawful electronic surveillance? Most Americans would probably agree
that in such cases it would be better to err on the side of caution and
tell the intelligence agencies to survey anyone working with such
regimes. The bill ought to reflect this.
Finally, the very complexity of the standards must be judged a
drawback. Even if they provided the Nation sufficient protection in
peacetime, they would surely be too cumbersome to do so in time of
war. In time of war, then, a new bill would have to be hastily enacted
to provide for emergency powers. But emergency legislation is gener-
ally bad legislation. While we have the time we ought to enact a bill
workable in bad times as well as in good times.
MALCOLM WALLOP.
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