FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1977

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000500040008-7
• Release Decision: RIFPUB
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• Document Page Count: 88
• Document Creation Date: December 19, 2016
• Document Release Date: September 20, 2005
• Sequence Number: 8
• Publication Date: November 22, 1977
• Content Type: OPEN

App~~)Meae 2005/1/nl~jA-RDP80S1268AOOROOQ0008-7
18t Session- 604 Part 2
Mr. ABOUREZrs (for Mr. KENNEDY), from the Committee on
the Judiciary, submitted the following
REPORT
PART II-APPENDIX TO THE MINORITY VIEWS OF
SENATOR JAMES AP,OURZEP
[To accompany S. 15661
The Committee on the Judiciary, to which was referred the bill
(S. 1566) to amend title 18, United States Code, to authorize applica-
tions for a 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.
Due to an oversight, the appendix to the minority views of Senator
James Abourezk, referred to in footnote 3 on page 83 of Senate Re-
port 95-604, was not printed.
The appendix consists of six hypothetical cases, supplied by the
Justice Department, to, support the claimed need for a "noncriminal
standard" in S. 1566, along with an analysis of each case done by the
Washington office of the American Civil Liberties Union.
The appendix is as follows :
AiPENDIx.-TIII". JUSTICE DEPARTMENT HYPOTIIETICALS
In response to questions posed by Senator James Abourezk, Attorney
General Griffin Bell sent a letter to the Senate Judiciary Committee
wherein he outlined six hypothetical cases which Justice Department
officials contend warrant a departure from a criminal standard in the
Foreign Intelligence Surveillance Act of 1977. According to the Jus-
tice Department, these cases could not be reached under current espi-
onage laws. After studying the cases, it is our contention that in three
of the cases outlined, a judge would issue a warrant under current
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espionage laws and that in the remaining three cases, a judge would
not issue a warrant even under S. 1566 as currently drafted. In sum,
the administration has not made a case for departing from the crimi-
nal standard in this act.
Case No. 1
"A Spinelli-qualified 1 informant reports that A has, pursuant to a
foreign intelligence service's direction, collected and transmitted sen-
sitive economic information concerning IBM trade secrets and ad-
vanced technological research which ultimately would have a variety
of uses including possible use in a sophisticated weapons system, but
which is not done pursuant to a Government contract. A is placed
under physical surveillance and is seen to fill dead drops which are
cleared by a member of a Communist Bloc embassy suspected of being
an agent of its foreign intelligence service."
Comment.-This case turns on whether commercial information such
as an IBM trade secret which might be used in a sophisticated weapons
system constitutes "national defense" information or information "re-
lating" to the national defense under 18 U.S.C. 794. The Justice De-
partment contends that it may not. However, the Supreme Court, in
Gorin v. U.S., 312 U.S. 19 (1941), stated: "National defense . . . is
a `generic concept of broad connotations, referring to the military and
naval establishments and the related activities of military and naval
establishments and the related activities of national preparedness.' We
agree that the words `national defense' in the espionage, act carry that
meaning." Id. at 28. Thus, if a court found that a person fit all of the
other criteria of 2521(b) (2) (B) and that the information being
gathered was from an industrial source, it still would have no diffi-
culty finding that there was probable cause to believe that 18 U.S.C.
794 was being violated.
Case No. 2
"Pursuant to the physical surveillance of a known foreign intelli-
gen.ee ollicer, B is seen to clear dead drops filled by that officer. On the
second 'Tuesday of every month B drives by the officer's residence, after
engaging in driving maneuvers intended to shake any surveillance.
Within 1 block of the officer's residence B always sends a coded citi-
zen's band radio transmission. B is discovered to have cultivated a close
relationship with a State Department employee of the opposite sex
specializing on matters dealing with the country of the intelligence
agent."
Comment.-First it is not clear who the Government wants to place
under electronic surveillance. Unless the vague "conspiracy" section,
2521 (b) (2) (iii) remains in the bill, the State Department employee
could not be wiretapped. Of course, the conspiracy section should be
stricken from the bill. The Justice Department does believe it has
probable cause to tap B under S. 1566. However, it would also have the
authority to seek a warrant if 18 U.S.C. 794 were the standard.
The Justice Department seems to assume that it is necessary to
know precisely what the content of the information is to establish
i Spinelli v. United States, 393 U.S. 410 (1969), states the requirements by which the
reliability of an informant and his information must be tested for purposes of obtaining a
search warrant.
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what law is being violated, if any, iii order to secure a warrant. How-
ever, the fact that the information is being passed to a "known foreign
intelligence officer" should be sufficient to establish probable cause
under 794. Moreover, 2521(b) (2) (B) (i) does not appear to require
that the court find that a particular statute will be violated but only
that the activities "involve or will involve a violation of the criminal
statutes of the United States." And given the very broad interpreta-
tion of the phrase "national defense" by. the Supreme Court, it is
doubtful that any court would pause to inquire into the contents of
the material before issuing a warrant. Certainly since all other ele-
ments required by S. 1566 have been met, a court would have probable
cause to believe that a conspiracy to violate 18 U.S.C. 794 was
underway.
Case No. 3
"C, using highly sophisticated equipment developed in a hostile
foreign country, taps and data transmissions lines of several elec-
tronies corporations. These lines do not carry communications which
can be aurally acquired, nor do they carry classified information, but
the information carried, which is not available to the public, when
put together, can give valuable information concerning components
which are used in U.S. weapons systems."
Comment.-This case, like case No. 1, turns on the meaning of "na-
tional defense" and "related" information in current espionage laws.
Nothing in section 793 of title 18 limits such information to data that is
classified or developed pursuant to contract. Again, given the Court's
broad reading in Gorin, the "valuable information concerning com-
ponents which are used in U.S. weapons systems" would be covered
under 18 U.S.C. 794. Since all the other element under 2521(b) (2) (B)
have been met, there would be probable cause to find that a conspiracy
to violate section 794 of title 18 existed.
Case No. 4
"D, a headwaiter in a fashionable Washington, D.C. restaurant,
acts as a bookmaker and procurer for several well known and highly
placed customers. A Spinelli-qualified informant reports that D has
been instructed by a foreign intelligence service to relay all embarrass-
ing and personally damaging information about these customers to a
resident agent of the foreign intelligence service in Washington. The
informant reports that at least one customer has been blackmailed in
his job as a Government executive into taking positions favorable to
the nation for which the resident agent works."
Comment.-No warrant could be issued either under section 794
of title 1S or under S. 1566. D is not collecting or transmitting infor-
mation of the kind referred to by S. 1566 or section 794 of title 18.
If the Justice Department's argument is that by getting one kind
of information, I) could trade it for another, then the Justice Depart-
ment is interpreting S. 1566 in a way which eliminates the safeguards
built into it. Moreover, one should also ask if it is necessary to tap
this person. For example, his contact at the embassy could be tapped
under the "foreign power" provision of S. 1566 and D could be
surveilled by less intrusive means. Those who come into contact with
1) could be warned.
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Case No. 5
"A Spinelli-qualified informant reports that E has, pursuant to
the direction of a foreign intelligencc service, engaged in various
burglaries in the New York area of homes of U.S. employees of the
United Nations to obtain information concerning U.S. positions in
the United Nations."
Comment.-First of all, U.S. employees at the United Nations do
not have advance information on U.S. positions at the United Na-
tions. In any case, this situation is trivial. Such information should
not be in an employee's home and E could be arrested for burglary.
Or is the Justice Department assuming that E discusses his burglary
1 argets on the phone?
Case No. 6
"A telephone tap of a foreign, intelligence officer in the United
States reveals that F, acting pursuant to the officer's direction, has
infiltrated several refugee organizations in the United States. His
instructions are to recruit members of these organizations under the
guise that he is an agent of a refugee terrorist leader and then to
target these recruited persons against the FBI, the Dade County
Police, and the CIA, the ultimate goal being to infiltrate these agen-
ies. F is to keep the intelligence officer informed as to his progress
in this regard but his reports are to be made by mail, because the
U.S. Government cannot open the mail unless a crime is being
committed.
Comment.-As in case No. 4, no tap would be periiii.tted under
S. 1566. This is not the kind of information contemplated under
the act. A tap would not be permitted under section 794 of title 18
as well. If F is to report in "by mail" is F going to do his recruit-
ment by telephone? Does the Government plan to read S. 1566 to
permit the refugee organizations to be wiretapped to find out if they
are infiltrated? These are dangerous readings of S. 1566. The proper
ar?tion is to allow the FBI, having this much information, to foil
F's scheme.
In sum, the Justice. Department is "reaching" for the exceptional
case to establish the need for a deviation from the, criminal standard.
Contrary to all experience with judicial warrants in the wiretapping
area, the Department presumes "strict construction" by judges will
Hamper legitimate intelligence. The Justice Department, should be
reminded that only seven judges, picked by the Chief Justice of the
U.S. Supreme Court, will review these warrant requests. Of course,
this does not give the Justice Department any certainty that all appli-
cations will be approved. But the criminal standard does not appre-
ciably make the process more risky for the Government. On the other
hand, the noncriminal standard is a dangerous precedent for abuse.
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95TII CONGRESS SENATE I REPORT
.1st Session No. 95-604
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1977
Mr. KENNEDY, from the Committee on the Judiciary,
submitted the following
REPORT
together with
MINORITY VIEWS
[To accompany S. 1566]
The Committee on the Judiciary, to which was referred the bill
(S. 1566) to amend title 18, United States Code, to authorize appli-
cations for a 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 3, line 17, strike out the word "knowingly".
On page 3, line 18, strike the word "a" and insert in lieu thereof
the word "any"; and after the word "person" insert the words "know-
ing that such person is engaged in activities".
On page 4, line 20, strike out the word "knowingly".
On page 4, line 21, after the word "person" insert the words "know-
ing that such person is".
On page 4, line 22, strike the word "or" and insert in lieu thereof a
dash, "-"
On page 8, strike lines 3 and 4 and insert in lieu thereof "or the
Deputy Attorney General."
On page 8, line 7, insert. the words "prohibit the" before the word
"dissemination", and following the word "dissemination" insert
except as provided for in subsections 2526 (a) and (b).".
On page 9, line 24, before the word "which", insert the words "or
associations".
On page 14, line 21, strike the semicolon at the end of the line and
insert in lieu thereof : "and a statement whether physical entry is
required to effect the surveillance :".
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On page 17, line 7, before the word "the" insert the following : "when
the target of the surveillance is not a foreign power as defined in
section 2521(b) (1) (A), (B), or (C),".
On page 17, line 8, strike the semicolon and insert in lieu thereof the
following : "and when the target is a foreign power as defined in sec-
tion 2521(b) (1) (A), (B), or (C), the designation of the type of for-
eign intelligence information under section 2521(b) (5) sought to be
acquired;".
On page 17, line 16, strike the semicolon and insert in lieu thereof
the following : "and whether physical entry will be used to effect the
surveillance ;".
On page 21, line 11, insert the following sentence after the period :
"No information acquired from an electronic surveillance conducted
pursuant to this chapter may be used or disclosed by federal officers
or employees except for lawful purposes.".
On page 21, line 22, after the word "States,", insert the following :
"a State, or a political subdivision thereof,".
On page 22, line 7, after the word "information.", strike the re-
mainder of the subsection through line 6 on page 23 and insert in lieu
thereof the following new subsections :
"(d) Any person who has been a subject of electronic surveillance
and against whom evidence derived from such electronic surveillance
is to he, 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-
"(I) the communication was unlawfully acquired ; or
"(2) the surveillance was not made in conformity with the
order of authorization or approval.
Such motion shall be made before the trial, hearing, or proceeding un-
less 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 subsec-
tion (c), or whenever a motion is made by an aggrieved person pursu-
ant to subsection (d), to suppress evidence on the grounds that it was
obtained or derived from an unlawful electronic, surveillance, or when-
ever any motion or request is made by an aggrieved person pursuant
to section 3rO4 of this title or any other statute or rule of the United
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 nation] security of the United States,
review in camera and ex parte the application, order and other mate-
rials 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 determination, the court shall disclose to the ag-
grieved 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
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the court determines that the electronic surveillance of the aggrieved
person was not lawfully authorized 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 dis-
covery unless required by due process."
On page 23, line 7, renumber subsection "(b)" as "(f)".
On page 26, line 16, insert the word, "the" before the word, "investi-
gative."
On page 29, insert after line 13 a new subsection as follows :
(i) Section 2518(10) is amended by striking the word
"intercepted" and inserting the words "intercepted pursuant
to this chapter" after the first appearance of the word
"communication".
On page 29, line 14, strike "(i)" and substitute in lieu thereof "(j) ".
On page 29, line 17, strike "(j)" and substitute in lieu thereof,
"(k)"
On page 30, line 2, following the words "provided that" insert "no
particular United States person shall be intentionally targeted for
testing purposes without his consent."
PURPOSE OF AMENDMENTS
The amendments to S. 1566 are designed to clarify and make more
explicit the statutory intent, as well as to provide further safeguards
for individuals subjected to electronic surveillance pursuant to this
new chapter. Certain amendments are also designed to provide a de-
tailed procedure for challenging such surveillance, and any evidence
derived therefrom, during the course of a formal proceeding.
Finally, the reported bill adds an amendment 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, section 802). This
latter amendment is technical and conforming in nature and is de-
signed 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.
IIISTORY OF TIIE BILL
The "Foreign Intelligence Surveillance Act of 1977", S. 1566, was
introduced by Senator Kennedy on May 18, 1977 to provide a statutory
procedure for the authorization of applications for a court order ap-
proving the use of electronic surveillance to obtain foreign intelligence
information. The bill, cosponsored by seven other Senators (Mr.
13ayh, Mr. Eastland, Mr. Inouye, Mr. McClellan, Mr. Mathias, Mr.
Nelson and Mr. Thurmond), was referred to and considered by the
Committee on the Judiciary.
S. 1566 has its origin in S. 3197, "The Foreign Intelligence Sur-
veillance Act of 1976", 94th Cong. 2d Sess. (1976). That legislation,
also introduced by Senator Kennedy with broad, bipartisan support,
including that of the Ford Administration, 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 In-
telligence. S. 3197 was reported favorably by both Senate Committees
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by a combined vote of 24 ayes to 2 nays, but the Session ended before
the full Senate could act on the legislation.
S. 1566 picks up where S. 3197 left off. Following the introduction
of the measure, two days of hearings were held by the Subcommittee
on Criminal Laws and Procedures, chaired by Senator Kennedy at
the request of Senator McClellan. Eight witnesses testified, and a
number of other individuals submitted statements for the hearing
record. Among those testifying were Attorney General Griffin B. Bell;
Director of the FBI, Clarence Kelley; Director of the Central Intelli-
gence Agency, Stansfield Turner; Secretary of Defense Harold
Brown; John Shattuck of the American Civil Liberties Union; and
Morton Ti. Halperin of the Center for National Security Studies.
Broad-based support was voiced for 5.1566 throughout the hearing,
with the Administration indicating its support of the bill.
S. 1566 as reported, however, has been amended in relative minor
respects to respond to the constructive criticisms and suggestions elic-
ited in the hearings. As amended, the bill was approved by the Sub-
committee on Criminal Laws and Procedures with a unanimous rec-
ommendation for favorable action.
POSITION OF TIM, ADMINISTRATION
The Administration supports the enactment of S. 1566 and has
supported its swift passage. 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
positive authority of a public law for all to inspect. President
Carter stated it very well in 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 preserva-
tion of basic human rights on the other." It is a 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.'
GENERAL STATEMENT
The bill reported by the Judiciary Committee amends title 18,
United States Code, by adding a new chapter after chapter 119, en-
'Hearing before the Subcommittee on Criminal Laws and Procedures of the Senate
o m the T` fb&aWo n' W i'Uft10040008-'7
Approve aritt ee~eeh J tea
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titled "Electronic Surveillance Within the United States for Foreign
Intelligence Purposes." The purpose of the bill is to provide a pro-
cedure under which the Attorney General can obtain a Judicial war-
rant authorizing the use of electronic surveillance in the United States
for foreign intelligence purposes. If enacted, this legislation would re-
quire a judicial warrant authorizing the following for foreign intelli-
gence purposes :
(a) The acquisition of a wire or radio communication sent to or
from the United States by intentionally targeting a known United
States person in the United States under circumstances in which
the person has a reasonable expectation of privacy and a warrant
would be required for law enforcement purposes.
(b) A wiretap in the United States to intercept a wire com-
munication, such as a telephone or telegram communication;
(c) The acquisition of a private radio transmission in which all
of the communicants are located within the United States; or
(d) The use in the United States of any electronic, mechanical
or other surveillance device to acquire information other than a
wire communication or radio communication under circumstances
in which the person has a reasonable expectation of privacy
and a warrant would be required for law enforcement purposes.
S. 1566 authorizes the Chief Justice of the United States to designate
seven district court judges, any one of whom may hear applications for
and grant orders approving electronic surveillance for foreign intelli-
gence purposes. The bill further provides that the Chief Justice shall
designate three judges from the United States district courts or courts
of appeals to sit as a special Court of Appeals to hear appeals by the
United States from denials of applications made by any one of the
seven district court judges. The United States may further appeal
from this special court to the Supreme Court.
Under S. 1566, a judge may issue a warrant authorizing electronic
surveillance within the United States only if he finds that: the Presi-
dent has authorized the Attorney General to approve applications for
such electronic surveillance; the application has been approved by the
Attorney General; on the basis of the facts submitted to the court,
there is probable cause to believe that the target of the surveillance
is a foreign power or an agent of a foreign power; the place at which
the surveillance is directed is being used or about to be used by that
foreign power or agent; minimization procedures to be followed are
reasonably designed to minimize the acquisition and retention of
information relating to Americans that is not foreign intelligence
information ; Executive certification that the information sought is
foreign intelligence information which cannot reasonably be obtained
by normal investigative techniques; and, if the target of the surveil-
lance is a United States person, such certification is not clearly errone-
ous. The order may approve the electronic surveillance for no longer
than 90 days with respect to all natural persons and some foreign
powers, but extensions of up to 90 days may be granted upon an appli-
cation and after the same findings as required for the original order.
With respect to official "foreign powers", as defined in the legislation,
the approval may be for as long as one year.
In the event that an emergency arises and resort to a court is not
possible, the Attorney General is authorized to approve electronic
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surveillance. Such an emergency surveillance cannot continue for more
than 24 hours without a judge's approval; a judge must be immedi-
ately notified of the emergency surveillance; and an application must
be made to the judge within 24 hours of approval of that emergency
surveillance.
The bill would limit the use of information concerning United
States citizens and lawful resident aliens acquired from electronic
surveillances to matters properly related to foreign intelligence and
the enforcement of criminal law. No information obtained from an
electronic surveillance could be used or disclosed against any person
except for lawful purposes. A judge may order the notification of a
person under electronic surveillance if an emergency surveillance was
authorized but subsequently disapproved by a judge.
S. 1566 provides for annual reports by the Attorney General to the
Congress and the Administrative Office of the United States Courts
containing statistical information relating to surveillances during the
preceding year.
The bill does not provide statutory authorization for the use of any
technique other than electronic surveillance, and, combined with chap-
ter 1.19 of title 18, it constitutes the exclusive means by which elec-
tronic surveillance, as defined, and the interception of domestic wire
and oral communications may be conducted; the bill recognizes no
inherent power of the President in this area.
In three major respects S. 1566 increases the protections for United
States citizens and lawful resident aliens over those contained in S.
3197. First, the definition of electronic surveillance has been expanded
to include the targeting of United States persons in their international
communications. This is specifically aimed at eliminating one of the
abuses identified by the Senate Select Committee to Study Govern-
mental Operations With Respect to Intelligence Activities and largely
implements one of that Committee's recommendations. (Book IT, In-
telligence Activities and the Rights of Americans, S. Rept. 94-755,
94th Cong., 2d Sess. 309 (1976).) Second, when a United States citizen
or lawful resident alien is the target of an electronic surveillance, the
judge is required to review the Executive Branch certification to deter-
mine if it is clearly erroneous. No review of the certification was al-
lowed in S. 3197. Finally, S. 1566 spells out that the Executive cannot
engage in electronic surveillance within the United States without a
prior judicial warrant. This is accomplished by repealing the so-called
executive "inherent power" disclaimer clause currently found in sec-
tion 2511(3) of Title 18. United States Code. S. 1566 provides instead
that its statutory procedures (and those found in chapter 119 of title
18) "shall be the exclusive means" for conducting electronic surveil-
lance, as defined in the legislation, in the United States. The highly con-
troversial disclaimer has often been cited as evidence of a congressional
ratification of the President's inherent constitutional power to engage
in electronic surveillance in order to obtain foreign intelligence in-
formation essential to the national security. Despite the admonition of
the Supremo Court that the language of the disclaimer was "neutral"
and did not reflect any such congressional recognition of inherent
power, the section has been a major source of controversy. By repeal-
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i.ng section 2511 (3) and expressly stating that the statutory warrant
procedures spelled out in the law must be followed in conducting elec-
tronic surveillance in the United States, this legislation ends the eight-
year debate over the meaning and scope of the inherent, power
disclaimer clause.
II. STATEMENT OF NEED
The Federal Government has never enacted legislation to remu-
late the use of electronic surveillance within the United States for for-
eign intelligence purposes. Although efforts have been made in recent
years by Senator Kennedy, Senator Nelson, Senator Mathias, and
former Senator Philip A. IIart to circumscribe the power of the execu-
tive branch to engage in such surveillance, and the Senate came very
close to enacting such legislation during the 94th Congress, the fact
remains that such efforts have never been successful.2 The hearings held
this year on S. 1566 were the sixth set of hearings on warrantless wire-
tapping in as many years., The Committee believes that S. 1566 is a
measure which can successfully break this impasse and provide effec-
tive, reasonable safeguards to ensure accountability and prevent im-
proper surveillance. S. 1566 goes a long way in striking a fair and just
balance between protection of national security and protection of per-
sonal liberties. It is a recognition by both the Executive Branch and
the Congress that the statutory rule of law must prevail in the area of
foreign intelligence surveillance.
The need for such statutory safeguards has become apparent in re-
cent years. This legislation is in large measure a response to the reve-
lations that warrantless electronic surveillance in the name of national
security has been seriously abused. These abuses were initially illumi-
nated in 1973 during the investigation of the Watergate break-in.
Since that time, however, the Senate Select Committee to Study Gov-
ernment Operations with Respect to Intelligence Activities, chaired
by Senator Church (hereafter referred to as the Church Committee),
has concluded that every President since Franklin D. Roosevelt as-
sorted the authority to authorize warrantless electronic surveillance
and exercised that authority. While the number of illegal or improper
national security taps and bugs conducted during the Nixon adminis-
tration may have exceeded those in previous administrations, the sur-
veillances were regrettably by no means atypical. In summarizing its
a See, e.g., S. 3197, Foreign Intelligence Surveillance Act of 1976, 94th Cong., 2d sess.
(1976) ; S. 743, National Security Surveillance Act of 1975, 94th Cong., 1st sess. (1975)
S. 2820, Surveillance Practices and Procedures Act of 1973, 93rd Cong.. 1st sess. (1973)
S. 4062, Freedom from Surveillance Act of 1974, 93rd Cong., 2d sess. 1974).
a See, e.g., Hearings before the Subcommittee on Crimtnal Laws and Procedures of the
Senate Committee on the Judiciary, Foreign Intelligence Surveillance Act of 1976, 94th Senate
Intel Ceill nceActsof 1976, 94th Cog., 2d sess. (1976) ; Subcommit't eoonZ rntelurveillligencece of stl the
Senate Committee on Foreign Relations and the Subcommittee on Administrative Practice
and Procedure of the Senate Committee on the Judiciary, Warrantless Wiretaping and
Electronic Surveillance, 94th Cong., 1st sess. (1975) ; Joint Hearings before the Subcom-
mittee on Administrative Practice and Procedure and the Subcommittee on Constitutional
Rights of the Senate Committee on the Judiciary, Warrantless Wiretapping and Electronic
Surveillance, 93d Cong., 2d sess. (1974) ; Hearings before the Subcommittee on Adminis-
trative Practice and Procedure of the Senate Committee on the Judiciary, Warrantless
Wiretapping, 92d Cong., 2d sess. (19712). In the joint report of the Subcommittees on Sur-
veillance and Administrative Practice and Procedure Issued in 1975, findings were made
that "there are not adequate written standards or criteria within the executive branch to
govern the warrantless electronic surveillance of either Americans or foreigners. There is a
gap In wiretaps the or bugs by executive branch agencies s for t alleged `national security' purposes."ntless
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8
conclusion that surveillance was "often conducted by illegal or im-
proper means," the Church committee wrote :
Since the 1930's, intelligence agencies have frequently wire-
tapped and bugged American citizens without the benefit of
judicial warrant.... [P]ast subjects of these surveillances
have included a United States Congressman, Congressional
staff member, journalists and newsmen, and numerous indi-
viduals and groups who engaged in no criminal activity and
who posed no genuine threat to the national security, such as
two White House domestic affairs advisers and an anti-Viet-
nam War protest group. (vol. 2, p. 12)
The application of vague and elastic standards for wire-
tapping and bugging has resulted in electronic surveil-
lances which, by any objective measure, were improper and
seriously infringed the Fourth Amendment Rights of both
the targets and those with whom the targets communicated.
The inherently intrusive nature of electronic surveillance.
moreover, has enabled the Government to generate vast
amounts of information-unrelated to any legitimate gov-
ernment interest-about the personal and political lives of
American citizens. The collection of this type of information
has, in turn, raised the danger of its use for partisan politi-
cal and other improper ends by senior administration offi-
cials. (vol. 3, p. 32.)
Also formidable-although incalculable-is the "chilling effect"
which warrantless electronic surveillance may have on the constitu-
tional rights of those who were not targets of the surveillance, but who
perceived themselves, whether reasonably or unreasonably, as poten-
tial targets. Our Bill of Rights is concerned not only with direct
infringements on constitutional rights, but also with government
activities which effectively inhibit the exercise of these rights. The
exercise of political freedom depends in large measure on citizens'
understanding that they will be able to be publicly active and dissent
from official policy, within lawful limits, without having to sacrifice
the expectation of privacy that they rightfully hold. Arbitrary or
uncontrolled use of warrantless electronic surveillance can violate that
understanding and impair that public confidence so necessary to an
uninhibited political life.
S. 1566 is designed, therefore, to curb the practice by which the
Executive Branch may conduct warrantless electronic surveillance
on its own unilateral determination that national security justifies it.
At the same time, however, this legislation does not prohibit the legiti-
mate use of electronic surveillance to obtain foreign intelligence
information. As the Church committee pointed out :
Electronic surveillance techniques have understandably
enabled these agencies to obtain valuable information relevant
to their legitimate intelligence missions. Use of these tech-
niques has provided the Government with vital intelligence,
which would be difficult to acquire through other means, about
the activities and intentions of foreign powers and has
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provided important leads in counterespionage cases. (vol. 2,
p.274)
Safeguarding national security against the intelligence activities of
foreign agents remains a vitally important Government purpose. Few
would dispute the fact that we live in a dangerous world in which
hostile intelligence activities in this country are still carried on to our
detriment.
Striking a sound balance between the need for such surveillance and
the protection of civil liberties lies at the heart of S. 1566. As Senator
Kennedy stated in introducing S. 1566:
The complexity of the problem must not be underestimated.
Electronic surveillance can be a useful too]. for the Govern-
ment's gathering of certain kinds of information; yet, if
abused, it can also constitute a particularly indiscriminate
and penetrating invasion of the privacy of our citizens. My
objective over the past six years has been to reach some kind
of fair balance that will protect the security of the United
States without infringing on our citizens' human liberties and
rights .4
The committee believes that the Executive Branch of Government
should have, under proper circumstances and with appropriate safe-
guards, authority to acquire important foreign intelligence informa-
tion by means of electronic surveillance. The committee also believes
that the past record and the state of the law in the area make it desir-
able that the Executive Branch not be the sole or final arbiter of when
such proper circumstances exist. S. 1566 is designed to permit the Gov-
ernment to gather necessary foreign intelligence :information by means
of electronic surveillance but under limitations and according to
procedural guidelines which will better safeguard the rights of
individuals.
The bipartisan congressional support for S. 1566 and the construc-
tive cooperation of the Executive Branch toward the legislation signi-
fies a constructive change in the ongoing debate over electronic sur-
veillance. That debate has centered around the power of the President
to acquire information necessary for the national security and the
constitutionality of warrantless electronic surveillance. This is not
surprising since the United States Supreme Court has never expressly
decided the issue of whether the President has constitutional authority
to authorize warrantless electronic surveillance in cases concerning
foreign intelligence. Whether the President has so-called "inherent
power" to engage in or authorize warrantless electronic surveillance
and, if such power exists, what limitations, if any, restrict the scope
of that power, are issues which have troubled constitutional scholars
for decades.
The history of warrantless electronic surveillance offers support to
both proponents and critics of the concept of "inherent power" and
clearly highlights the need for passage of S. 1566.
In 1928, the Supreme Court in Olmstead v. United States 6 held that
wiretapping was not within the coverage of the Fourth Amendment.
4 123 Cong. Rec. 57857 (daily ed., May 18, 1977).
277 U.S. 468.
S. Rept. 604,95-1-2
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Three years later, Attorney General William D. Mitchell authorized
telephone wiretapping, upon the personal approval of bureau chiefs, of
syndicated bootleggers and in "exceptional cases where the crimes are
substantial and serious, and the necessity is great and [the bureau chief
and the Assistant Attorney General] are satisfied that the persons
whose wires are to be tapped are of the criminal type." These general
guidelines governed the Department's practice through the thirties
and telephone wiretapping was considered to be an important law en-
forcement tool."
Congress placed the first restrictions on wiretapping in the Federal
Communications Act of 1934, which made it a crime for any person "to
intercept and divulge or publish the contents of wire and radio coin-
munications." 4 The Supreme Court construed this section to apply
to Federal agents and held that evidence obtained from the intercep-
tion of wire and radio communications, and the fruits of that evidence,
were inadmissible in court." )however, the Justice Department did not
interpret the Federal Communications Act or the Nardone decision
as prohibiting the interception of wire communications per se; rather
only the interception and divulgence of their contents outside the Fed-
eral establishment was considered to be unlawful. Thus, the Justice
Department found continued authority for its national security wire-
taps.
In 1940, President Roosevelt issued a memorandum to the Attorney
General stating his view that electronic surveillance would be proper
under the Constitution where "grave matters involving defense of the
nation" were involved. The President authorized and directed the
Attorney General "to secure information by listening devices [directed
at] the conversation or other communications of persons suspected of
subversive activities against the Government of the United States.
including suspected spies." The Attorney General was requested "to
limit these investigations so conducted to a minimum and to limit
them insofar as possible as to aliens." 0
This practice was continued in successive administrations. In 1946,
Attorney General Tom C. Clark sent President Truman a letter in-
forlning him of President Roosevelt's directive. Clark's memorandum,
however, omitted the portion of President Roosevelt's directive limit-
ing wiretaps "insofar as posible to aliens." Instead, he recommended
that the directive "be continued in force" in view of the "increase in
subversive activities" and "a very substantial increase in crime." Pres-
dent Truman approved.10
6 The history of the practice of the Department of Justice which follows in this Report
is derived from Attorney General Edward H. Levi's testimony before the Church commit-
tee on Novmher 6, 1975 and the final report of that committee. The relevant portions of
the report include Book I, Foreign and Military Intelligence, chapter IX, "Counterintelli-
gence;" Book IT, Intelligence Activities and the Rights of Americans, chapter II, "The
Growth of Domestic Intelligence," finding C, "Excessive Use of Intrusive Techniques,"
and finding E, "Political Abuse of Intelligence Information" ; Book III, Supplementary
Detailed Staff Reports on Intelligence Activities and the Rights of Americans, "Dr. Martin
Luther Ding, Jr., Case Study," "Warrantless FBI Electronic Surveillance," warrantless
Surreptitious Entries," "Domestic CIA and FBI Mail Opening." National Security Agency
Surveillance Affecting Americans," and "National Security, Civil Liberties. and the Col-
lection of Intelligence : A Report on the Huston Plan" ; Book IV, Supplementary Detailed
Staff Reports on Foreign and Military Intelligence, "Intelligence and Technology."
747 U.S.C. 605 (1964 ed.), 48 Stat. 1103.
6 Nardone v. United States, 302 U.S. 379 (1937) ; 308 U.S. 338 (1939).
B III Church committee 297.
11 II Church committee 60. In 1950, aides to President Truman discovered Clark's
incomplete quotation, and the President considered returning to the terms of the original
1940 authorization. However, the 1940 directive was never rescinded.
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In the early fifties, however, Attorney General J. Howard McGrath
took the position that he would not approve or authorize the installa-
tion of microphone surveillances by means of trespass. This policy was
quickly reversed by Attorney General Herbert Brownell in 1954 in a
sweeping memorandum to FBI Director Hoover instructing him that
the Bureau was indeed authorized to conduct such trespassory sur-
veillances regardless of the fact of surreptitious entry, and without the
need to first acquire the Attorney General's authorization. Such sur-
veillance was simply authorized whenever the Bureau concluded that
the "national interest" so required. The Brownell memorandum is
instructive :
It is my opinion that the department should adopt that
interpretation which will permit microphone coverage by the
FBI in a manner most. conducive to our national interest. I
recognize that for the FBI to fulfill its important intelligence
function, considerations of internal security and the national
interest are paramount; and, therefore, may compel the un-
restricted use of this technique in the national interest.11
From the relatively limited authorization of warrantless electronic
surveillance under President Roosevelt, then, the mandate for the FBI
was quickly expanded to the point where the only criterion was the
FBI's subjective judgment that the "national. interest" required the
electronic surveillance.
The practice of the Bureau during the fifties was also described in
a memorandum from Director Hoover to the Deputy Attorney General
on May 4, 1961:
[T] n the internal security field, we are utilizing microphone
surveillances on a restricted basis even though trespass is nec-
essary to assist in uncovering the activities of Soviet intelli-
gence agents and Communist party leaders. In the interests
of national safety, microphone surveillances are also utilized
on a restricted basis, even though trespass is necessary, in
uncovering major criminal activities. We are using such cov-
erage in connection with our investigations of the clandestine
activities of top hoodlums and organized crime. From an in-
telligence standpoint, this investigative technique has pro-
duced results unobtainable through other means. The infor-
mation so obtained is treated in the same manner as
information obtained from wiretaps, that is, not from the
standpoint of evidentiary value but ,for intelligence
purposes.12
The policy of the Department of Justice was stated publicly in 1966
by the Solicitor General in a supplemental brief to the Supreme Court
in Black v. United States. 13 Referring to the general delegation of au-
thority by Attorneys General to the Director of the Bureau, the Solici-
tor stated :
An exception to the general delegation of authority has
been prescribed, since 1940, for the interception of wire corn-
11 III Church committee 297.
12 III Church committee M.
- 385 U.S. 26 (1966).
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munications, which (in. addition to being limited to matters
involving national security or danger to human life) has re-
quired the specific authorization of the Attorney General
in each instance. No similar procedure existed until 1965 with
respect to the use of devices such as those involved in the in-
stant case, although records of oral and written communica-
tions within the Department of Justice reflect concern by
Attorneys General and the Director of the Federal Bureau
of Investigation that the use of listening devices by agents
of the Government should be confined to a strictly limited
category of situations.
Under departmental practice in effect for a period of years
prior to 1963, and continuing until 1965, the Director of the
Federal Bureau of Investigation was given authority to
approve the installation of devices such as that in question
for intelligence (and not evidentiary) purposes which re-
quired in the interests of internal. security or national safety,
including organized crime, kidnappings and matters wherein
human life might be at stake... .
Present departmental practice, adopted in July 1,965 in
conformity with the policies declared by the President on
,Time 30, 1965, for the entire Federal establishment, prohibits
the use of such listening devices (.as well as the interception
of telephone and other wire communications) in all instances
other than those involving the collection of intelligence affect-
ing the national security. The specific authorization of the
Attorney General must be obtained in each instance when
this exception is invoked.
In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court
finally discarded the Olmstea' doctrine and held that the Fourth
Amendment's warrant provision did apply to electronic surveillance.
The Court explicitly declined, however, to extend its holding to cases
"involving the national security." 389 U.S. at 358, n. 23. The next year,
Congress followed suit : responding to the Katz case, Congress enacted
the Omnibus Crime Control and Safe Streets Act (18 U.S.C. sections
2510-2520).Y4 Title III of that. Act established a procedure for the
judicial authorization of electronic surveillance for the investigation
and prevention of specified types of serious crimes and the use of the
product of such surveillance in court proceedings. It prohibited wire-
tapping and electronic surveillance by persons other than duly author-
ized law enforcement officers, personnel of the Federal Communica-
tions Commission, or communication common carriers monitoring
communications in the normal course of their employment.
Title III, however, disclaimed any intention of legislating in the
national security area. The Act contained a proviso in section 2511(3)
stating :
Nothing contained in this chapter or in section 605 of the
Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605)
shall limit the constitutional power of the President to take
such measures as he deems necessary to protect the Nation
14 See also, S. Rept. 1097. Renate Committee on the Judiciary, Omnibus Crime Control
and Safe Streets Act of 1967; 90th Cong., 2d sess. (1968).
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against actual or potential attack or other hostile acts of a
foreign power, to obtain foreign intelligence information
deemed essential to the security of the United States, or to
protect national security information against foreign intel-
ligence activities. Nor shall anything contained in this chap-
ter be deemed to limit the constitutional power of the Presi-
dent to take such measures as he deems necessary to protect
the United States against the overthrow of the Government
by force or other clear and present danger to the structure
or existence of the Government.
Against this background the Supreme Court decided the Keith
case in 1972. While the issue was narrowly drawn-"the delicate ques-
tion of the President's power, acting through the Attorney General,
to authorize electronic surveillance in internal security matters with-
out prior judicial approval" (407 U.S. at 301)-the court's opinion
inevitably shed some light on the deeper problem of balancing con-
flicting interests in national security cases (407 U.S., at 320-321) :
1. The Court took notice of the long-standing Justice Department
policy of warrantless electronic surveillance. It also recognized the
"elementary truth" that "unless Government safeguards its own ca-
pacity to function and to preserve the security of its people, society it-
self could become so disordered that all rights and liberties would be
endangered." 1e
2. In balancing the constitutional rights involved against the gov-
ernmental objectives, the Court noted the "convergence of First and
Fourth amendment values not ordinarily present in cases of "ordinary"
crime." 17 The Court went on to pose the issue : "If the legitimate need
of the Government to safeguard domestic security requires the use of
electronic surveillance the question is whether the needs of citizens for
privacy and free expression may not be better protected by requiring
a warrant before such surveillance is undertaken. We must also ask
whether a warrant requirement would unduly frustrate the efforts of
Government to protect itself from acts of subversion and overthrow
directed against it." 18
3. In concluding that a warrant was required in domestic security
surveillance cases, the Court emphasized the traditional reasons for
requiring a warrant : 18
These fourth amendment freedoms cannot properly be guaranteed if
domestic security surveillances may be conducted solely within the
discretion of the Executive Branch. The Fourth Amendment does not
contemplate the executive officers of Government as neutral and dis-
interested magistrates. Their duty and responsibility are to enforce
the laws, to investigate, and to prosecute. * * * But those charged
with this investigative and prosecutorial duty should not be the sale
judges of when to utilize constitutionally sensitive means in pursuing
their tasks. The historical judgment, which the Fourth Amendment
accepts, is that unreviewed executive discretion may yield too readily
to pressures to obtain incriminating evidence and overlook :potential
invasions of privacy and protected speech.
L5 United States Y. United States District Court, 407 U.S. 297 (1972):.
19 407 U.S., at 312.
17407U.S.,at513.
1P 407 U.S., at 315.
19 407 U.S., at 316-317.
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4. The Court then went on to consider and reject the Government's
argument that the disclosure of information in a warrant application
posed the serious danger of leaks and the Government's argument that
"internal security matters are too subtle and compex for judicial
evaluation." 20 The Court observed that "[c]ourts regularly deal with
the, most difficult issues of our society. There is no reason to believe that
Federal judges will be insensitive to or uncomprehending of the issne,
involved in domestic security cases." 21 As to the secrecy claim, the
Court observed the "[t]he investigation of criminal activity has long
involved imparting sensitive information to judicial officers who have
respected the confidentialities involved." 22
5. Finally, the Court rejected the distinction, stressed by the Gov-
ernment, between surveillance for law enforcement purposes and sur-
veilla.nce designed to obtain intelligence relating to domestic threats to
national security. The Court responded that official surveillance,
whether its purpose is criminal investigation or ongoing intelligence
gathering, risks infringement of constitutionally protected privacy
and speech.
However, the Court emphasized that, "this case involves only the
domestic aspects of national security. We have not addressed, and
expressed no opinion as to, the issues which may be involved with
respect to activities of foreign powers or their agents." 23
And, in construing the effect of the title III. presidential disclainier
the court wrote : 24
Section 2511 (3) certainly confers no power, as the language
is wholly inappropriate for such a purpose. It merely provides
that the Act shall not be interpreted to limit or disturb such
power as the President may have under the Constitution. In
short, Congress simply left presidential powers where it
found them. . . [W]e therefore think the conclusion ines-
capable that Congress only intended to make clear that the
Act simply did not legislate with respect to national security
surveillances.
Since the Keith case, three circuit courts of appeals have addressed
the question the Supreme Court reserved. The Fifth Circuit in l's tt!:d
States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S.
960 (1974), upheld the legality of a surveillance in which the defend-
ant, an American citizen, was incidentally overheard as a result of a
warrantless wiretap authorized by the Attorney General for foreign
intelligence purposes. The court found that on the basis of "the Presi-
dent's constitutional duty to act for the United States in the field of
foreign affairs, and his inherent power to protect national security in
the conduct of foreign affairs . . . the President may constitutionally
authorize warrantless wiretaps for the purpose of gathering foreign
intelligence." 25
In United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en bane),
cert. denied sub nom,. Ivanov v. United States, 419 U.S. 881 (1974), the
Third Circuit similarly held that electronic surveillance conducted
20 407 U.S., at 320.
2t 407 U.S., at 320.
22 407 U.S., at 320-321.
407 TT.S., at 321-322.
24 407 U.S., at 303, 306.
25 484 F. 2d at 426.
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without a warrant wouldbe lawful so long as the primary purpose was
to obtain foreign intelligence information. The court found that such
surveillance would be reasonable under the Fourth Amendment with-
out a warrant even though it might involve the overhearing of
conversations.
However, in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975),
cert. denied, 425 U.S. 944 (1976), the Circuit Court of Appeals for
the District of Columbia, in the course of an opinion requiring that
a warrant must, be obtained before a wiretap is installed on a domestic
organization that is neither the agent of, nor acting in collaboration
with, a foreign power, questioned whether any national security excep-
tion to the warrant requirement would be constitutionally permissible.
Although the holding of Zweibon was limited to the case of a domes-
tic organization without ties to a foreign power, the plurality opinion
of the court-:in legal analysis closely patterned on Keith-concluded
"that an analysis of the policies implicated by foreign security surveil-
lance indicates that, absent exigent circumstances, all warrantless elec-
tronic surveillance is unreasonable and therefore unconstitutional." 26
Thus, after almost 50 years of case law dealing with the subject of
warrantless electronic surveillance, and despite the practice of war-
rantless foreign intelligence surveillance sanctioned and engaged in
by nine administrations, constitutional limits on the President's powers
to order such surveillances remains an open question. This legislation
would provide the secure framework by which the Executive Branch
may conduct legitimate electronic surveillance for foreign. intelligence
purposes within the context of this Nation's commitment to privacy
and individual rights.
IV. CONCLUSION
S. 1566 would alter the current debate arising out of the uncertainty
of the present law by completing an exclusive charter for the conduct
of electronic surveillance in the United 'States. It would relegate to
the past the wire-tapping abuses brought to light during the committee
hearings by providing, for the first time, effective substantive and
procedural statutory controls over foreign intelligence electronic
surveillance.-
0,51-6 F.2d at 613-614. Neither Brown nor Buten ko provide a systematic analysis of the
problem within the framework indicated by the Supreme Court decision in Keith, i.e.,
whether the requirement of a warrant would unduly frustrate the exercise of the I. resi-
dent's responsibility in the area of national security. The court's opinion in Brown simply
confirmed the President's inherent power to authorize foreign intelligence collection
through, among other things, electronic surveillance without a warrant. The Butenko
opinion offers a sightly more extensive analysis of the problem. On the other hand, the
Zweibon opinion, insofar as it considered and rejected the arguments for the existence of
an inherent power by applying the analytical framework used by the Supreme Court in
Keith, was a plurality opinion.
27 The Church committee concluded that, in many cases, surveillance was based on the
belief that groups or individuals were directed, financed or otherwise controlled by a
hostile foreign power. Some of the surveillances were directed against citizens or organi-
zations whose activities, while not necessarily violent, were thought to be sufficiently
subversive to pose a danger to the security of the country. (III, pp. 316-317.) However,
from this "subversive activities" standard it was, according to the committee, relatively
easy to justify and order electronic surveillance against American citizens and organi-
zations, not primarily because of their own activities, but because they were believed to
be adversely influenced, whether consciously or not, by persons acting under the direction
of foreign power. The electronic surveillance of Martin Luther King was justified not
because King himself posed any threat to national security, but because of the possibility
that two of King's advisers were associated with the Communist party. (III, p. 318.)
The infinite elasticity of the "national security" criteria unrestrained by any judicial
or external check, has been dramatically underscored in recent years by a series of
surveillances directed against Government employees and journalists for the avowed pur-
poses of identifying the sources of "leaks" of classified information. (III, p. 321.)
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16
The basis for this legislation is the understanding-concurred in by
the Attorney General-that even if the President has an "inherent"
constitutional power to authorize warrantless surveillance for foreign
intelligence purposes, Congress has the power to regulate the exercise
of this authority by legislating a reasonable warrant procedure govern-
ing foreign intelligence surveillance."
The bill provides external and internal checks on the executive. The
external check is found in the judicial warrant procedure which re-
quires the executive branch to secure a warrant before engaging in
electronic surveillance for. purposes of obtaining foreign intelligence
information. Such surveillance would be limited to a "foreign power"
and ",agent of a foreign power." United States citizens and lawful
resident aliens could be targets of electronic surveillance only if they
are : (1) knowingly engaged in "clandestine intelligence activities
which involve or will involve a violation" of the criminal law; (2)
knowingly engaged in activities "that involve or will involve sabotage
or terrorism for or on behalf of a foreign power" ; or (3) "pursuant
to the direction of an intelligence service or intelligence network of a
foreign power" are knowingly or secretly collecting or transmitting
foreign intelligence in a manner harmful to the security of the United
States. All other persons-such as illegal aliens or foreign visitors-
could also be targets if they are: (1) either officers or employees of a
foreign power; or (2) are "knowingly engaging in clandestine intel-
ligence activities for or on behalf of a foreign power under circum-
stances which indicate that such activities would be harmful to the
security of the United States." For such surveillance to be undertaken,
a judicial warrant must be secured on the basis of a showing of "prob-
able cause" that the target is a "foreign power" or an "agent of a for-
eign power." Thus the courts for the first time will ultimately rule on
whether such foreign intelligence surveillance should occur.
Before a warrant can be requested, a designated Executive Branch
official must first certify in writing to the court that the information
sought to be obtained is "foreign intelligence information" as defined,
and that the purpose of the surveillance is to obtain such information.
Moreover the Attorney General is required to make a finding that
the requirements for a warrant application have been met before he
authorizes the application. These provisions provide an internal check
on applications for electronic surveillance by establishing a method of
written accountability within the Executive Branch.
Other procedural safeguards assure that the Government will not
engage in illegitimate eavesdropping or misuse of information so ac-
quired. The bill requires that each order include a detailed procedure
to minimize the extraneous or irrelevant information that might other-
wise be obtained; information acquired concerning United States cit-
izens or lawful resident aliens can be used and disclosed only for
foreign intelligence purposes or in connection with the enforcement
of the criminal law; even if the target is not a United States citizen
or lawful resident alien information acquired can only be used for
"lawful purposes" ; detailed provisions safeguard the right of the
criminal defendant to challenge the validity and propriety of the sur-
xfl Cr. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J.
concurring).
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veillance; if the target is an individual or specified types of foreign
powers the application for a warrant must state the means by which
the surveillance will be effected; when the target is an "official" for-
eign power, as defined, the application must still designate the type
of electronic surveillance to be used and whether or not physical entry
will be used to' effect the surveillance; finally, the Attorney General
is required to transmit to the Congress annually certain statistics
concerning the surveillances engaged in during the preceding year.
Most importantly, the disclaimer in 18 U.S.C. ? 2511(3) is replaced
by provisions that assure that this bill, together with chapter 119, will
ie exclusive means by which electronic surveillance covered by this
be S16(
bill., and the interception of wire and oral communications, may be
conducted.
A difficult issue posed during committee deliberations was whether
foreign intelligence electronic surveillance should be limited to situa-tf% tions involving the commission of a crime. S. 1566 provides four lim-
ited situations in which natural persons may be made the target of an
electronic surveillance without a probable cause showing of criminal
activity. The first and least problematic involves persons who are
neither citizens nor Permanent resident aliens but who are officers or
employees of a "foreign power". This provision is-primarily designed
to cover foreigners who are employed in diplomatic and consular
offices in the United States. It is unchanged from the provisions in
5.3197.
The second situation, which constitutes a major change from S. 3197,
involves an alien (other than an alien who has been admitted for per-
manent resident) who "knowingly engages in clandestine intelligence
activities for or on behalf of a foreign power under circumstances
which indicate that such activities would be harmful to the security
of the United States." S. 3197 made no such distinction between aliens
and United States citizens in the application of the noncriminal stand-
ard. S. 1566, however, broadens the noncriminal standard of S. 3197
in cases involving nonresident aliens.
The third situation involves a United States citizen or permanent
resident alien who, "pursuant to the direction of an intelligence serv-
ice or intelligence network of a foreign power, knowingly collects or
transmits information or material to an intelligence service or intel-
ligence network of a foreign power in a manner intended to conceal
the nature of such information or material or the fact of such trans-
mission or collection, under circumstances which indicate the trans-
mission of such information or material would be harmful to the
security of the United States, or that lack of knowledge by the United
States of such collection or transmission would be harmful to the
security of the United States." This standard was also present in S.
3197 except for the addition of "collection" to the activities which
would justify surveillance.
The last situation, and the one most disturbing to some members of
the committee, is the change from S. 3197 allowing electronic surveil-
lance of one who conspires with or aids or abets another engaged in
the noncriminal activities described in the second and third situations.
While the Committee feels this is justified, it should be emphasized
g hat the aider or abetter cannot be an unknowing dupe. The bill re-
S. Kept. 601.:I5 4--::
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quires that he know that the person he is aiding is engaged in the
described activities.
S. 3197 did not extend the doctrine of conspiracy to the non-criminal
standard. Thus, insofar as S. 1566 loosens the language of the non-
criminal standard for certain aliens, and permits the application of
conspiracy to that standard in all cases, the bill posed problems to some
members of the committee.
Although there is precedent for departing from a strict criminal
standard in the issuance of search warrants deemed compatible with
the fourth amendment, see e.g., Camara v. Municipal Court, 387 U.S.
523 (1967) ; Almeida-Sanchez v. United States, 413 U.S. 266 (1973) ;
c,f. United States v. Martinez-Fuerte, 428 U.S. 543 (1976), (no war-
rant required at all), those decisions did not involve national security
surveillance. It should also be pointed out, however, that in the Keith
case, supra, the Supreme Court noted that the reasons for domestic
Security surveillance may differ from those justifying surveillance for
domestic crimes and that, accordingly, "different standards may be
compatible with the Fourth Amendment if they are reasonable both
in relation to the legitimate needs of Government for intelligence in-
formation and the protected rights of our citizens. For the warrant
application may vary according to the governmental interest to be
enforced and the nature of citizens rights deserving protection." 28 As
indicated in the section-by-section analysis, this departure from the
general principle that such surveillance must be linked to criminal
activity is intended to be a narrow, circumscribed one, reflecting the
deep concern of the committee. This bill authorizes electronic surveil-
lance in a limited number of non-criminal situations only under the
twin safeguards of an independent review by a neutral judge and his
application of a "probable cause standard".
It is important to note that the committee's favorable recommenda-
tion of this legislation in no way reflects any judgment that it would
also be appropriate to depart from the standard of criminal activity
as the basis for using other intrusive investigative techniques. The bill
does not impliedly authorize departure from the standard of criminal-
ity in other aspects of national security investigations or intelligence
collection directed at Americans without the safeguards of judicial
review and probable cause. It remains to determine, in fashioning a
charter for the use of informants, physical surveillance and other in-
vestigative procedures, whether the departure from a criminal stand-
ard is an acceptable basis for investigating United 'States citizens on
grounds of national security.
Conforming amendments in S. 1566 integrate existing electronic
surveillance provisions in title III of the Omnibus Crime Control and
Safe Streets Act with the new provisions of the bill.
SECTION-BY-SECTION ANALYSIS
Section 1 of the bill. provides that the Act may be cited as the "For-
eign Intelligence Surveillance Act of 1977".
Section 2 of the bill amends title 18, United States Code, by adding
a new chapter 1.20 composed of sections 2521-2527 as follows :
21407 U.S. at 322 ; see also, Zueibon v. Mitchell, 516 F. 2d at 669.
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Section 25,01
Subsection (a) provides that except for those terms specifically de-
fined in this section the definitions of chapter 119, relating to the in-
terception 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 gov-
ernmental establishments which are located in the United States.
(2) "A faction of a foreign nation or nations, not substantially com-
posed of permanent resident aliens or citizens of the United States."
This category is intended to include factions of a foreign nation or
nations which are in a contest for power over, or control of the terri-
tory of, a foreign nation or nations. The faction must be foreign-based
and controlled from abroad. Specifically excluded from this category
is any faction of a foreign government or government which is sub-
stantially composed of permanent resident aliens or citizens of the
United States.
(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 is a category which was not spe-
cifically delineated in S. 3197. Certain changes have been made in
the S. 3197 warrant requirements with respect to specific foreign pow-
ers which generally require less information to be given to the judge
and allow the surveillance to be continued for a longer period of time
without the need for reauthorization. This decision to treat certain
"foreign powers" differently in terms of warrant requirements was
made at the insistence of the Administration. The Committee is satis-
fied, however, that the distinction is sufficiently limited so as not to
pose any threat of abuse. Thus, it is only with respect to "entities"
openly acknowledged by a foreign government to be directed and
controlled by such foreign government-those which are clearly arms
of a government or governments and not privately controlled-that
are subject to the extended warrants granted on a lesser showing. Such
"official" entities are treated in the same manner as the government
they serve.
(4) "A foreign-based terrorist group." This category refers to a
foreign-based group tivhose activities involve "terrorism", as defined.
The committee recognizes that many international terrorist groups
have members from various nations, and may not in fact have any
clearly definable "base." Nevertheless, under this definition the group
must be "foreign-based;" that is, it must not be based in the United
States, although it may carry out terrorist acts in this country. It is
the Committee's belief that a domestic terrorist group should be sub-
jected to electronic surveillance only pursuant to Title III. Where,
however, a group is not domestically based, but derives strength and
refuge by organizing, planning, and preparing its terrorist activities
outside the jurisdiction of the United States, then that group is a legiti-
mate target for intelligence surveillance under this bill no matter
what the citizenship of its members.
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(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, those foreign politi-
cal parties which are more instrumentalities of a foreign government
and which 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
together out of interest in or concern for the country of their ethnic
(6) "An entity, which is directed and controlled by a foreign gov-
ermnent or governments." This category, found verbatim in S. 3197,
would include an entity which appears to be a legitimate commercial
establishment but which is actually being utilized by a foreign govern-
ment as a cover for espionage activities. A law firm, public relations
firm, or,other legitimate concern which merely represents a foreign
government. or its interests is not, by (lefiriitiolr, an entity under this
category. The question. of whether a group, commercial enterprise. or
organization comes within the scope of this definition is one for the
d-onl?t to determine on the basis of a probable, cause, standard.
B. "Agent of a Foreign Power"
Subsection (b) (2) defines an "agent of a, foreign power" in two
separate ways. Subparagraph (A) (i), includes officers or employees
of foreign powers who are not United States citizens or aliens lawfully
admitted for permanent residence. The definition is framed in this
way because it is presumed that nonresident aliens who are officers or
employees of a foreign power are likely sources of foreign intelligence
information. Given the tenuous relationship of foreign officers or em-
polyees with the United States and their close relationship with a for-
eign power, this standard is considered by the Committee to be reason-
able in light of the Uovernnien.t's legitimate need for foreign int.elli-
f^ence information and the nature of the interests upon which the
.,catch would intrude. The reference to employees of a foreign power
is meant to include those persons who have. a normal employee-em-
ployer relationship.- The subparagraph is not intended to encompass
inch foreign visitors as professors, lecturers, exchar.ge students, per-
-iormers, or athletes, even if they are receiving reinun.eration or ex-
penses from their horse government in such capacity.
Subparagraphs (A) (ii), (iii) and (B) of subsection (b) (2) com-
prise the second definition of "agent of a foreign power." They define
ail agent in terms of the activities in which he is engaged for or on
behalf of a foreign power.
Subparagraph (A) (ii) defines an agent of it foreign power as a
person who is not a citizen or resident alien of the United States who
"knowingly engages in clandestine intelligence activities for or on
behalf of a foreign power under circumstances which indicate that
19 This bill is not intended, of course, to repeal or abrogate the Vienna Convention on
Diplomatic Relations, which was ratified by the Senate and carne into effect in the Vnited
States on December 13, 1972. The Convention provides that diplomatic agents, their
residences (article 30(1)), and their missions (article 22 (1) and (3)), as well as their
olHcial correspondence (Article 27(2) and 30(2)), are "inviolable." The obligations of the
Convention are reciprocal; when another nation has failed to maintain the inviolability of
American diplomatic communications, this country is free under International law to net
similarly towards representatives of that nation (article 47(2a.)). The bill does not affect
nor floe, the Committee intend to affect, the. legal interpretations of the Vienna Convention
under which the Executive Branch has made those treaty obligations effective within the
1:11ited States.
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such activities would be harmful to the United States." This category
could potentially include illegal aliens, foreign terrorists, exchange
visitors, foreign businessmen, foreign students, and foreign seamen.
While it is expected that in most cases such foreigners would, even
under this standard, be violating United States criminal laws, and
would certainly be subject to deportation (see, e.g., 8 U.S.C. ? 1251 (a)
(7) ), there is no specific requirement that the activity providing the
justification for the surveillance constitute a Federal crime. This
separate non-criminal standard for foreigners is a significant change
from S. 3197. In favorably reporting S. 3197 during the 94th Congress,
the Committee accepted the need for a narrower noncriminal standard
applicable to all persons within the United States. S. 1566, however,
while retaining the S. 3197 noncriminal standard largely intact for
United States citizens and lawful resident aliens, alters it substan-
tially when other persons-not United States citizens or resident
aliens-are the targets of the surveillance.
For example, no reference is made to the requirement of "direction"
from a foreign power's "intelligence service or intelligence network",
nor is there any requirement of "collection" or "transmission" in a
secret manner. Because it eliminates such requirements when foreign
visitors-and only when foreign visitors-are involved, the bill has
been criticized by some members of the Committee. The Fourth
Amendment to the Constitution speaks in terms of protecting all "per-
sons"--not just United States citizens and law resident aliens-yet the
bill. establishes a different standard for illegal aliens and foreign
visitors.
Proponents of the change, however, point out that where there are
compelling considerations of national security, alienage distinctions
are clearly lawful.29 The Director of the FBI testified in support of
the different standard. He pointed out that large numbers of tempo-
rary aliens visit the United States and that many of these aliens are
working for foreign intelligence networks. The Select Committee on
Intelligence Activities similarly identified the problem, pointing out
that one quarter of the Soviet exchange students coming to the United
States in a ten-year period were found to be intelligence oflicers.30
This Committee is aware that less ir,trusi'e investigative techniques
may not be able to obtain sufficient information about persons
visiting here only for a limited time : the additional. showing required
for _ United States citizens and permanent resident aliens, therefore,
may simply not be possible. Weighing these findings, recommenda-
tions, and considerations, as well as the recognized, bipartisan goal of
enacting statutory safeguards in this area, the Committee has con-
cluded that this distinction between United States citizens, lawful resi-
dent aliens and other aliens should be permitted,
It is. clear, however, that this standard-unlike that in subparagraph
(A) (i)-is not one which allows surveillance on the basis of the alien's,
status per se. The alien must be engaged in "clandestine intelligence
activities" for or on behalf of a foreign power, and while these
clandestine activities need not involve criminal violations (as they
must for United States citizens and permanent resident aliens), they
must be occurring under circumstances which indicate that the activi
20 See, e.g., Hampton V. Mow Sun Wong, 426U.S. 88,115 (1976).
81 Book I. at 168-164.
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ties would be harmful to the security of the United States. Addi-
tionally, of course, the determination that sufficient justification exists
to conduct electronic surveillance of a foreign visitor or a nonresident
alien will be made by a judge, and not a member of the Executive
Branch.
Subparagraph (B) (i) is unchanged from the comparable provision
S. 3197 and allows surveillance of any person, including a United
States citizen or permanent resident alien, who is knowingly engaged
in clandestine intelligence activities for or on behalf of a foreign
power, which activities involve or will involve a violation of the
criminal statutes of the United States. Under this standard the person
to be surveilled must be shown to have a knowing and substantial
connection with the foreign power for whom he is working. There
must be a principal-agent relationship under which the alleged agent
has undertaken to provide services for his foreign principal. The agent
must also be knowingly engaged in "clandestine intelligence activi-
ties" which involve or will involve violations of federal criminal law.
It is anticipated that most of the persons surveilled under this section
will be violating the criminal espionage laws (Title 18, U.S. Code,
sections 792-799, 951; title 42, U.S. Code, section 2272-2278b; and
title 50, U.S. Code, section 855).
0. "Clandestine Intelligence Activities"
The term "clandestine intelligence activities" as used in the bill is
directed primarily toward those traditional activities associated with
"spying," that is gathering information in a clandestine manner or
conducting covert operations for a foreign power.
In addition to those activities which fall within the substantive
statutory crimes of spying are activities directly related to spying
which are criminal within the meaning of the conspiracy, attempt,
and aiding and abetting statutes. Examples would include maintain-
ing a "safehouse" for secret meetings, servicing "letter drops" or "dead
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.
In addition to conventional "spying," that is, the gathering of infor-
mation, the intelligence agencies of foreign powers also engage in
covert action designed to influence events in this country. Under sub-
paragraph (b) (i), if such political action is covert, involves a viola-
tion of federal criminal law, such as the bribery of a public official,
and is undertaken directly on behalf of a foreign power, it would be
encompassed by this subparagraph. The bill does not authorize elec-
tronic surveillance when the activities, even though not public and
conducted for a foreign power, involve 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
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such contact might trigger the Government's power to conduct elec-
tronic surveillance. The intent of the bill is to exclude from the defi-
nition of "clandestine intelligence activities" any activity which in-
volves the lawful exercise of first amendment rights of speech, peti-
tion, assembly, and association. In no event may lawful political
activity within the ambit of the protections afforded by the first
amendment be the basis, or form any part of the basis, for finding
that any individual is engaged in "clandestine intelligence activities."
As a corollary, even the ]awful gathering of information done in a con-
fidential manner which is a part of lawful political activity-such as
gathering "intelligence" about the political strength and plans of
proponents or opponents of a particular policy--would not constitute
"clandestine intelligence activity" under this section, where such infor-
mation gathering is a normal ancillary part of lobbying, organizing
political protest, and other political activity protected by the first
amendment. Clandestine collection of information regarding the busi-
ness plans or trade secrets of an American company which merely
might provide a competitive advantage to foreign firms, for example,
in bidding on a contract with a third country would also not be
"clandestine intelligence activity" under subsection (b) (i) unless the
foreign disclosure of such financial or business information involved
or would involve a violation of federal criminal. law. Classified in-
formation held by private firms is covered in this way.
And, in the case of an organization whose leaders are engaged in
clandestine intelligence activity, such activity cannot be attributed to
every member of the group. There must be probable cause that a
particular member is himself engaged in such activity, or is conspiring
with or knowingly aiding and abetting those who are, before electronic
surveillance directed against him may be authorized under this
chapter.
Whatever the nature of the activity in question, there must be a
clandestine aspect. The statute requires that the alleged foreign agent
not only be working for or on behalf of a foreign power or its agent,
but also, as a separate requirement, that he be engaged in clandestine
intelligence activity.
There must also be an effort to obtain information which is being
kept secret and is not 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 contained in
books, magazines, scientific journals, or newspapers would never con-
stitute "clandestine intelligence activity." 8
Finally, the word "involve" as used in subparagraph (b) (i) is not
intended to encompass any individuals who are not actually engaged
in it violation of federal law. It is intended to encompass a. violation of
federal law which is an integral part of the clandestine intelligence
activity even though the clandestine intelligence activity itself
ai It should be noted that even failing to comply fully with the Foreign Agents Regis-
tration Act (22 U.S.C. 611, et seq.) in and of itself is not intended to he clandestine intelli-
gence activity merely because the agent seeks to lobby Congress or influence public opinion
on matters relating to the national defense or foreign affairs. If, however, foreign intelli-
gence services hide behind the cover of some person or organization in order to influence
American political events and deceive Americans into believing that the opinions or
influence is of domestic origin and initiative and such deception is willfully maintained in
justified under s bsection (b) (i) of S. 1566 if all' the other statutory criteria were hmee then electronic surveillance
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might fall between the, cracks of the espionage laws. For instance,
foreign intelligence agents might be collecting sensitive industrial or
technological information. While this collection may not violate the
espionage laws, the agents may have to transport the material across
state lines, thereby violating federal laws which proscribe the inter-
state transportation of stolen property. The phrase "will involve",
which also appears in this subparagraph, is likewise in no way in-
tended to diminish or dilute the nature of the criminal activity to be
established. Its only purpose is to permit electronic surveillance at
some point prior to the time when the actual crime sought to be pre-
vented, for example the actual passage of classified documents, actually
occurs. 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 espionage activities, such facts would
not necessarily be encompassed by the immediacy of the phrase "will
involve." Tinder 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 probable
cause to believe that the individual will be involved in clandestine
intelligence activities.
Subparagraph (B) Ni) includes any person who knowingly engages
in activities that involve or will involve sabotage or terrorism for or
on behalf of a foreign power. The terms "sabotage" and "terrorism"
are defined and require a showing of criminal activity. Again, the
nature of the knowledge and agency relationship are the same as
required under subparagraph (B)(i). In no event may mere sympathy
for, identity of interest with, or vocal support for the goals of a foreign
group, even a foreign terrorist group, be sufficient. The terms "involve"
and "will involve" are intended to encompass activities directly sup-
portive of some act of terrorism., e.q., the purchase or surreptitious
importation into the United States of explosives for use in a terrorist
incident, or the planning for an assassination.
D. The Noncrzimzinal Standard
Subparagraph (B) (iii) is the so-called non-criminal standard
applicable to United States citizens and resident aliens. The only sub-
stantive change from the similar provision in S. 3197 is the inclusion-
at the Administration's request-of "collection" among the activities
justifying the surveillance. This change makes sense. Actual trans-
mission of information to a foreign intelligence service may not yet
be completed or may not be detected., yet, given the other criteria
under this subparagraph, collection alone should be sufficient to justify
the surveillance.
During the course of the hearings on S. 1566, testimony was elicited
from various witnesses as to the precise contours. of the noncriminal
standard. All witnesses agreed that the phrase would, with limited
exception for certain activity, refer to activity constituting a Federal
or State crime. On the basis of testimony of, and discussions with, the
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Department of Justice, the committee agreed to include language
covering certain narrowly circumscribed intelligence activities closely
related to criminal espionage but not presently constituting an offense
under Federal law. Such a decision was made despite serious reserva-
tions voiced by various members of the Committee. In introducing
S. 1566, Senator Kennedy stated that he had "never been altogether
satisfied with the explanations offered by the Department of Justice
as to why a noncriminal standard is necessary at all." This view
continues to be shared by many Committee members. However, for
various reasons-perhaps the most important being the desire of the
Committee to at long last enact important statutory safeguards in this
arefl and to avoid the acrimony of past fruitless efforts-the Commit-
tee has again agreed to include in S. 1566 a narrow, carefully circum-
scribed, noncriminal standard. The Administration has agreed, how-
ever, to draft a revision of the espionage laws which might enable this
narrow noncriminal standard to be repea.led.33 In the interim, the
Committee believes that this subparagraph contains standards suffi-
ciently stringent as to be incapable of abuse.
Although the Administration is committed to using the criminal
standards wherever possible, there. are several situations where this
subparagraph may be necessary. For example, the situation where
the information being collected or transmitted is not "information re-
lating to the national defense," as defined by the courts. Gorin V.
United States, 312 U.S. 19 (1941) ; United States v. Heine, 151 F.2d
813 (2d Cir. 1945) (L. Hand, J.), cert. denied, 328 U.S. 833 (1946).
The example is also cited where Federal agents have witnessed a
series of "meets" or "drops" between a hostile foreign intelligence of-
ficer and a citizen, information is being passed, but the federal agents
have been unable to determine precisely what information is being
transmitted. A third example referred to is where personally damag-
ing information is being gathered about persons for purposes of black-
mailing. them into becoming foreign agents. This may or may not be
a crime, depending on whether the technical requirements of the black-
mail or extortion statutes have been satisfied, but the national security.
could be threatened, and electronic surveillance may enable the gov-
ernment to protect the victim from such attempts. Another example
is where a foreign intelligence service is targeting the installations or
personnel of a foreign government in the United States. There still
must be a nexus to our national security, but such nexus may well exist
where the foreign government is an ally of the United States and a
compromise of the former's secrets to an adversary nation may en-
danger our own security.34
Because of this range of cases, which may or may not fall within the
ambit of the espionage laws, but do involve Americans working for a
foreign intelligence service under circumstances dangerous to the na-
tional security, the Committee has chosen to include this limited non-
criminal standard for Americans. The bill permits, in this subpara-
32123 Cong. Rec. S7857 (daily ed., May 18, 1977). 12-46
P Senate Judiciary Heartnge, testimony of Attorney General Griffin Bell, pp
(June 13, 1977).
" Of course, nothing in this subparagraph would allow electronic surveillance of those
engaged in protests, demonstrations, or other such lawful activity directed against a third
country, even if carried out at the direction of a foreign power.
S. Rept. 604, 95-1-4
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graph, the surveillance of any person if the Government can estab-
lish that there is probable cause to believe that :
(1) Said person was acting pursuant to the direction of a
foreign intelligence service;
(2) Said person was knowingly either collecting or transmit-
ting information or material to a foreign intelligence service in
a manner intended to conceal either the nature of the information
or material or the fact that it was being collected or transmitted ;
and
(3) The circumstances indicate that the transmission of the in-
formation or material would harm the security of the United
States, or that lack of knowledge by the United States govern-
ment about what is being transmitted would harm the security
of the United States.
E. "Pursuant to the Direction of an Intelligence Service or Intelligence
Network of a Foreign Power"
Perhaps the most important phrase in the subparagraph is the re-
quirement that the target of the surveillance be acting "pursuant to
the direction of an intelligence service or intelligence network of a
foreign power." This language :means that a person must be acting
under the direction and control of such power.
There must be a principal-agency relationship under which the
alleged agent has undertaken to do the bidding of his foreign princi-
pal. This subparagraph, therefore, would not authorize electronic
surveillance of United States citizens or permanent resident aliens,
whatever the nature of their alleged activities, unless there was prob-
able cause to believe they are acting pursuant to the direction of a
foreign intelligence service or network. It does not authorize electronic
surveillance under any circumstances for the class of individuals in-
cluded by the Supreme Court within the scope of the Keith decision
requiring judicial warrants for alleged threats to security of a domestic
nature. It is the intent of this requirement that even if there is some
substantial contact between domestic groups or individual citizens
and a 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.
For example, Americans of Greek, Jewish, Irish, or Chinese extrac-
tion legitimately may seek to influence United States 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 prob-
lems. 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 intelligence
service or network of a foreign power". Thus, such "direction" from
personnel of a foreign power which are not connected with an intel-
ligence service or network would not be a basis for electronic surveil-
lance under this subparagraph. There would have to be additional
information specifically indicating the Americans had undertaken
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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. The key legal doctrine is that of agency; 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 United
States involvement in Vietnam. Some of them may have attended in-
ternational 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 var. But if there merely had been 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 maximize
worldwide public attention, that would not have sufficed to find
probable cause that the American was acting under the direction of a
foreign intelligence service as required by this subparagraph. Addi-
tional evidence would have been required indicating that the Amer-
ican had undertaken to follow the instruction of a foreign intelligence
service or network, rather than simply trying to coordinate his
independent effort with related activities abroad.
For both of these two 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
was engaged in the secret collection or transmission of information
or material to a foreign power. 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 with-
in the definition of acting pursuant to the direction of a foreign intel-
ligence service merely because it was part of a worldwide confederation
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 more membership in that organization, with-
out more information about his own undertaking to do so, would not
constitute probable cause to believe that that particular member was
acting pursuant to the direction of a foreign intelligence service for
purpose- of this subparagraph.
I really, it is necessary that the person be aware he is acting on
behalf of a foreign power. An American might be secretly collecting
information about important technology, for example, and have been
misled into the belief he was acting for a research institute or a multi-
national corporation. Therefore it would not suffice to establish prob-
able cause that the American is, in fact, engaged in a covert activity
at the direction of a foreign power; the government must establish
probable cause that the American knows his efforts are on behalf of a
foreign power's intelligence activities.
It also follows, of course, that evidence a foreign power is trying
to recruit an American as an agent does not suffice to establish probable
cause to believe he has agreed to do the foreign power's bidding and is
engaged on its behalf. Before electronic surveillance could be directed
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against the American, the court would have to find probable cause that
the. American had responded positively to the recruitment effort, and
it is now acting as a member of that power's intelligence network.
In applying these various tests, the judge is expected to take all
The known circumstances into account, e.g., who the American is,
where lie is employed, whether he has access to classified or other sensi-
tive information, the nature of the clandestine meetings (whether it is
merely in an out-of-the-way restaurant as opposed to a hidden location
in a distant city), the method of transmission (handing over a sealed
envelope in a public place, as opposed to using a "drop"), and whether
there are any other reasonable explanations for the behavior. It is
clear, moreover, that the circumstances must not merely be suspicious,
but must be sulli'ient support for a finding of probable cause that the
.security of the United States would be harmed.
This subparagraph also recognizes that there are certain rare situ-
ations where, for example, a citizen who has access to classified infor-
mation is clandestinely meeting with a known intelligence officer
of a. hostile foreign power, and it is, therefore, essential that the
TTnited States find out what is transpiring between them. In such a
rare case, lack of knowledge by the U.S. Government about what is
being transmitted might, by definition, harm the security of the United
States. In such a situation, if the judge concludes that there is probable
cause to believe that such "lack of knowledge would be harmful to the
security of the United. States," an American could also be targeted.
The Committee emphasizes that this narrow inclusion for electronic
surveillance without probable cause to believe that the targets are
engaged in criminal activity is, of course, not intended to provide a
bootstrap for even broader authority to investigate noncriminal activ-
ity of Americans absent the safeguards in this bill. The Committee
emphasizes that S. 1566 establishes a legislative scheme to deal only
with electronic surveillance; the use of other investigative techniques
do not fall within the scope of this bill.
F. "Conspires or Aids and Abets"
Subparagraphs (A) (iii) and (B) (iv) are provisions which allow
electronic surveillance of persons who knowingly conspire with or aid
or abet persons who could otherwise be subjected to electronic sur-
veillance under the provisions discussed above. Insofar as the doc-
trines of conspiracy and aiding and abetting have been made applicable
to the noncriminal standards of S. 1566-a change from S. 3197-
some members of the Committee are concerned. They feel that the
safeguards and protections found in the narrow, carefully circum-
scribed language of the noncriminal standards (especially in the non-
criminal standard applicable to United States citizens) can be abused
through the use of the conspiracy and aiding and abetting language.
Under (A) (iii) non-resident aliens can be subjected to electronic
surveillance by conspiring with or aiding or abetting another non-
resident alien, knowing that person is engaged in clandestine intelli-
gence activities for or on behalf of a foreign power. Under (B) (iv)
a person can be subjected to electronic surveillance if he conspires
with or aids or abets a person knowing that person is engaged in the
activities described in subparagraphs (B) (i) through (iii). Under
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both (A) (iii) and (13) (iv) the Government would have to establish
probable cause that the prospective target knew both that the person
with whom he was conspiring or whom he was aiding or abetting was
engaging in the described activities as an agent of a foreign power
and that his own conduct was assisting or furthering; such activity,
The knowledge requirement is therefore applicable to both the status
of the person being aided by the proposed subject of the surveillance
and the nature of the activity being promoted. The innocent dupe
who unwittingly aids a foreign intelligence officer cannot be targeted
under this provision.35
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 asso-
ciate with two advisers whom the Government had apprised him were
suspected of being American Communist party members and, by im-
plication, agents of a foreign power. Dr. King's mere continued asso-
ciation and consultation with those advisers, despite the Government'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 clan-
destine 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 aa,o
have been necessary under this bill to establish probable cause that
Dr. King was knowingly engaged in furthering leis advisers' criminal
clandestine intelligence activities. Absent one or more of these re-
quired showings, King could not have been found to be one who know-
ingly aids or abets a foreigrn. agent.35
Subsection (b) (3) defines "terrorism" as criminal activities which
are violent or dangerous to human life. The purpose of the activities
must be either the forceful intimidation of the civilian population, the
intimidation of national leaders in order to force a significant change
in governmental policy, or the affecting of Governmental conduct by
assassination or kidnaping. Examples of such activities would be
the detonation of bombs in a metropolitan area, the kidnapping of a
high-ranking government official, the hijacking of an airplane in a
deliberate and articulated effort to force the government to release a
certain class of prisoners or to suspend aid to a particular foreign
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
would be necessary to establish probable cause that the Individual was aware lof a ease, the ter-
rorist rorist activities undertaken by the group and was knowingly furthering them, and not
merely that he was aware of and furthering their lawful activity.
80 Mere membership in the United States Communist Party is not sufficient under this
hill foreign power or that he is engaged in clandestie acting Intelligence activities. lon and control of
Moreover, even if additional information established probable cause to believe some
inembers of the party were acting under the direction and control of a foreign 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 con-
stitute clandestine intelligence activity within this, section. Gathering information about the
movement would neither be criminal espionage nor the kind of economic or technical relating to the
tutionally
since athe civil rights protest movement t elf Invoilvedtcon t noncrinitnal
protected rights of association, speech and petition for redress of grlevnnees. efforts hr a
are intended to
from t be specifically exclude .1
fore, he ow nit oinv involve itself I Intellia gence movement
activity.
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country, or the deliberate assassination of persons to strike fear into
others to deter them from exercising their rights.
Subsection (b) (4) defines "sabotage" as activities which would con-
stitute crimes under chapter 105 of title 18, United States Code, if con-
ducted 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 United
States 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 directed against State and local police facilities and equip-
ment, or against the defense facilities of foreign nations, would
constitute sabotage under this definition.37 Of course, electronic sur-
veillance under this chapter could be undertaken only if such sabotage
was knowingly conducted for or on behalf of a foreign power and was
related to foreign intelligence as defined. The Committee agrees with
the Administration that where persons are knowingly engaged in
sabotage of State or foreign facilities for or on behalf' of a foreign
power, such persons should be subjected to foreign intelligence elec-
tronic surveillance in this country even before there is probable cause
to believe that they will engage in sabotage against Federal facilities.
0. "Foreign Intelligence Information"
Subsection (b) (5) defines "foreign intelligence information" to in-
clude five types of information, which, while not mutually exclusive,
tend to be distinguishable. Subparagraph (A) of this subsection is de-
fined as information deemed necessary for the United States to protect
itself against actual or potential attack or other similarly grave hostile
acts of foreign power or its agents. This category is intended to en-
compass information which relates to foreign military capabilities and
intentions, as well as acts of force or aggression which would have
serious adverse consequences to the national security of the United
States. The term "hostile acts" must be read in the context of the sub-
paragraph which is keyed to' actual or potential attack on the United
States. Thus, only the most "grave" types of "hostile acts" would be
envisioned as falling within this provision.38
Subparagraph (B) of this subsection includes information which
because of its importance is deemed essential (i) to the national de-
fense or the security of the Nation or (ii) to the conduct of the foreign
affairs of the United States. This subparagraph also requires that the
information sought involve "information with respect to foreign pow-
ers or territories", and would therefore not include information about
ar Under 18 U.S.C. 956, it is a Federal crime for persons within the United States to
conspire to injure or destroy property located in and owned by it foreign government.
as In testifying last year in the House Hearings on S. 3197, Attorney General Levi con-
firmed this interpretation :
"Mr. ICASTENMEIER. How do you understand the term other hostile acts of a foreirn
power? Is there enough precedent or other language so that we understand precisely
what the hostile acts constitute, whether a criticism of our participation in the 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 a better definition. Burt 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. KASTENMMEIER. In other words, it must be seen in a broader context, and therefore
be much more limited?
'Attorney General LEVI. I would think so." (House Hearings 10-11, emphasis added.
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the views or planned statements or activities of Members of Congress,
executive branch officials, or private citizens concerning the foreign af-
fairs 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).
Subparagraph (C) of this subsection includes information which is
deemed necessary for the United States to protect against terrorism by
a foreign power or foreign agent. It is anticipated that the type of in-
formation described in this subparagraph will be the type sought when
,in electronic surveillance is instituted against the type of foreign
power defined in Section 2521(b) (1) (D), or against the type of for-
eign agent defined in Section 2521(b) (2) (B) (ii~.
Subparagraph (D) of this subsection includes information which is
deemed necessary for the United States to protect against sabotage by
a foreign power or foreign agent.
Subparagraph (E) of this subsection includes information which is
deemed necessary to the ability of the United States to protect against
the clandestine intelligence activities of an intelligence service or net-
work of a foreign power or a foreign agent. This subparagraph en-
compasses classic counterintelligence information; that is, informa-
tion deemed necessary to the nation's ability to discover and protect
against the activities of clandestine intelligence services of foreign
powers in the United States. This subsection is not intended to encom-
pass information sought about dissident political activity by United
States citizens allegedly "necessary" to determine the nature and ex-
tent of any possible involvement in those activities by the intelligence
services of foreign powers. Such a dragnet approach' to counterintelli-
gence has been the basis for past improper investigations of citizens
and is not intended to be included as a permissible avenue of "foreign
intelligence" collection under this subparagraph. Nor does this sub-
paragraph include efforts to prevent "news leaks" or to prevent publi-
cation of such leaked information in the American press, unless there
is reason to believe that such publication is itself being done by an
agent of a foreign intelligence service and that such publication would
harm the national security.
Most importantly, all five subparagraphs set out standards estab-
lishing a nexus between the information sought and the desired end.
Subparagraph (B) requires that the information sought be "essential"
while the other subparagraphs establish a standard of "necessary."
Where the term `necessary" is used, the Committee intends to re-
quire more than a showing that the information would be useful or
convenient. When the term "essential" is used, the Committee intends
to require a showing that the information is important and required
but not that it is of utmost importance or indispensable.
The use of these standards is intended by the committee to mandate
that a significant degree of need be demonstrated by those seeking the
surveillance. For example, it is often contended that the intelligence
analyst, if not the policymaker 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
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32
the specified purposes might be called "necessary" but such a reading
is clearly not intended.
"Essential" is used in subparagraph (B) because of the more
amorphous nature of the information which can be acquired under this
subparagraph. While subparagraph (A) deals with positive foreign
intelligence involving actual or potential attack or comparable hostile
acts and subparagraphs (C), (D), and (E) cover terrorist, sabotage,
and counterintelligence information, subparagraph (B) potentially
brings within the definition of foreign intelligence information a
broader range of material dealing with the national defense and for-
eign affairs of the United States.
In addition, information about a United States citizen's private
affairs shall not be deemed "foreign intelligence information" unless
it directly relates to his activities on behalf of a foreign power. This
interest is achieved by including in each subsection of the foreign in-
telligence definition the requirement that the information sought
actually "relates to" the type of information deemed necessary or essen-
tional. For example, the government could not seek purely personal
information about a United States citizen or permanent resident alien,
who is a suspected spy, upon a theory that it might learn something
which would be "compromising." Instead, the bill makes clear that the
only information about United States citizens or permanent resident
aliens which may be sought must not only be necessary to the ability of
the U.S. to protect against clandestine intelligence activities, but must
also "relate to" the activities themselves. This restriction might not
always be fully applicable to agents of foreign powers as defined in
Section 2521(b) (2) (A) (i), because information about their private
lives may itself be foreign intelligence 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.
H. "Electronic Surveillance"
Paragraph (6) defines "electronic surveillance" to include four
separate types of activities.
Subparagraph (A) makes a major improvement over the language
of S. 3197 by protecting United States citizens and resident aliens in
the United States from being targeted in their international com-
munications without a judicial warrant no matter where the sur-
veillance is being carried out. Under S. 3197 such targeting did not
fall within the confines of the bill; this provision is, therefore, a
significant extension of the protections afforded United States citizens
and lawful resident aliens. The subparagraph specifically brings
within the procedures of S. 1566 the acquisition of the contents of a
wire or radio communication of United States citizens and perma-
nent resident aliens in the United States by intentionally targeting
that particular, known United States citizen or resident alien, under
circumstances in which a person has a reasonable expectation of
privacy and a warrant would be required for law enforcement pur-
poses. Thus, for example, the "watch-listing" activities of the National
Security Agency, if directed against United States citizens in the
United States, would require a warrant under this regulation.
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Subparagraph (B) includes the acquisition, by an electronic,
mechanical, or other surveillance device, of the contents of a wire
communication 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, the loca-
tion of the parties to the wire communication is immaterial if the
acquisition occurs within the United States. Thus, either a wholly
domestic telephone call or an international telephone call can be the
subject of electronic surveillance under this subdefinition if the acquisi-
tion 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 communicatoin" under 18 U.S.C. 2510(l) includes any com-
munication "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
recipients are located within the United States, or by subdefinition
(A) if it is done through the targeting of a United States citizen or
resident alien in the United States.
Subparagraph (C) includes the intentional acquisition by an elec-
tronic, mechanical, or other surveillance device of the contents of a
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 enforcement purposes,
where both the sender and all intended recipients are located within
the United States, i.e., a totally domestic radio communication. This
part of the definition would reach not only the acquisition of commu-
nications made wholly by radiobut also the acquisition of "wire com-
munications" by means of intercepting the radio transmitted portion
of those communications within the United States. The territorial
limits of this subdefinition are not dependent on the point of acquisi-
tion, as is the case with subdefinition (B), but on the locations of the
comnnunicants. Thus, the acquisition of radio communications outside
the territorial limits of the United States would be covered if all of
the communicants were located within the United States. Only acquisi-
tion 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 sur-
veillance." 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 v. Hall, 488 F.2d 193 (9th Cir. 1973).
Only "intentional" acquisitions of domestic communications are
within this subdefinition because, by their very nature, radio trans-
missions 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 international.
communications but accidently and unintentionally acquire communi-
cations intended to be totally domestic. It is the Committee's under-
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standing that these communications are immediately destroyed. Absent
the word "intentional", however, these accidental interceptions, even
if the contents are immediately destroyed, could leave these agencies
open to civil or criminal liability for failing to secure a judicial
warrant.
The effect of subparagraphs (A), (B) and (C) of Section 2521
(b) (6), therefore, is to include within the term "electronic surveil-
lance" the nonconsensual acquisition of all domestic radio communica-
tions made with t reasonable expectation of privacy, the nonconsensual
acquisition within the United States of all wire communications, as
defined in 18 U.S.C. Section 2510(1), except those international wire
communications which are acquired by intercepting the radio trans-
mitted portions of the communications, and the targeting of particular
United States citizens or resident aliens in the United States in order
to acquire international communications made with a reasonable
expectation of privacy.
'The reason for excepting from the definition of "electronic surveil-
lance" the acquisition of international radio transmissions, including
international wire communications when acquired by intercepting
radio transmissions when not accomplished by targeting a particular
United States person in the United States, is to exempt from the pro-
cedures of the bill certain signals intelligence activities of the National
Security Agency.
Although it is desirable to develop legislative controls in this area,
the Committee has concluded that these practices are sufficiently dif-
ferent from traditional electronic surveillance techniques, both con-
ceptually and technologically, that, except when they target particular
United States citizens or resident aliens in the United States, they
should be considered separately by the Congress.39 The fact that this
bill does not bring these activities within its purview, however, should
not be viewed as congressional authorization of such activities. This
committee merely recognizes that this particular signals intelligence
activity is not covered by the procedures outlined in this bill. In any
case, the requirements of the .[i ourth Amendment would, of course,
continue to apply to this type of communications intelligence
activity.40
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 monitor-
ing 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 acquisi-
tion of oral communications made by a person exhibiting an expec-
tation that such utterances are not subject to acquisition, under eir-
sv The nature of National Security Agency activities, the purposes of such activities and
the technological problems associated with such activities have been carefully documented
by the Church committee in vol. III, pages 733 et seq. See also, II Church committee 55-60,
108 and 308-311.
,0'i'he Committee notes with approval, however, that broadscale electronic surveillance
of American citizens while abroad has been limited in part by both the President's Executive
Order applicable to the foreign intelligence agencies and Department of Justice directives
I. the intelligence community. See Executive Order No. 11905. February 18, 1976: testi-
mony of Attorney General Edward H. Levi before the Church Committee. November 6,
1975. p. 15. Thus, the surveillance of journalists, such as in the Joseph Kraft case, would
be prohibited.
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cumstances 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 minia-
turized television cameras and other sophisticated devices not aimed
merely at communications.
This part of the definition is meant to be broadly inclusive, because
the effect of including a particular means of surveillance is not to
prohibit it but to subject it to judicial oversight. 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 United States 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 participant
could reasonably anticipate that his activities might be observed .41- But
two persons in a public park, far from any stranger, would not reason-
ably anticipate that their conversations could be overhead from afar
through a directional microphone, and so would retain their right of
privacy. Of course, law enforcement officials may, if they wish, con-
tinue to obtain an ordinary search warrant or chapter 119 court order
if the facts and circumstances so justify it.
The definition of "electronic surveillance" comprising the intercep-
tion of wire communications and radio transmissions has an explicit
exception where any party has consented to the interception. This is
intended to perpetuate the existing law regarding consensual inter-
ceptions found in 18 U.S.C. section 2511 (2 (c) and in the case law
interpreting 47 U.S.C. section 605.42 Whether consent may be inferred
in a particular case will depend on the facts and circumstances.
That part of the definition of "electronic surveillance" regarding the
installation of a device requires that the acquisition of information be
under circumstances in which a person has a, constitutionally protected
right of privacy. There is no such right in those situations* where the
interception is consented to by at least one party to the conversation.
For instance, a body microphone placed on an informer with his con-
sent is an installation of a device to acquire information, but a person
speaking to the informer has no justifiable expectation that the in-
former will not repeat, record, or even transmit by a miniature trans-
mitter what the person voluntarily tells the informer. By telling the
informer something, the person has, with respect to that information,
surrendered his expectation of privacy vis-a-vis the informer. Such
a situation is not, of course, limited to body microphones. Telephone
conversations to which one of the parties has consented and micro-
phones installed with consent would be functionally equivalent. What
is important is the consent. So long as one party to the conversation
has consented to the surveillance, the other party has no justifiable
,t Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861 (1974).
Lopez v. United States, 373 U.S. 427 (196,3) ; Rathbun v. United States, 355 U.S 197
(1957).
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36
expectation of privacy in that which lie voluntarily reveals to the
party who has consented to the surveillance.43
rl'lHus the absence of a reasonable expectation of privacy where one
party consents to the surveillance is, the equivalent of the explicit con-
sent provision in 18 D.S.C. section 2511(2) (c).
I. "-4tteruei/ General"
Paragraph (7) defines "Attorney General" to mean the Attorney
General of the United States. the Acting Attorney General, or the
Deputy Attorney General. Under S. 3197 only the Attorney General.
or the Acting Attorney General could approve an application. The
Administration had urged the Committee to permit a specially desig-
nated Assistant Attorney General to approve an application for sur-
veillance. The Administration cites as the reason for the delegation of
this authority to a specially designated assistant Attorney General
the need to lessen the administrative burden of the Attorney General
which would be perpetuated even after this bill has established the
safeguards of a judicial warrant procedure.''
Some members of the Committee were troubled that the delegation
of this authority as suggested by the Administration would not pro-
vide the tight control and objective methods that should be required
in the foreign intelligence area. These Committee members distinguish
Title III applications, for which authority may be delegated, by point-
ing out that: (1) Such applications are made in conjunction with
specific criminal investigations and are, therefore, more capable of ob-
jective determination; and (2) that when it comes to foreign intelli-
gence electronic surveillance it is more likely that the heads of various
agencies, such as the Secretary of Defense or the Director of the FBI,
will intercede directly in the application process, thus placing more
pressure on the Attorney General's designate to approve the warrant
request. These Committee members believe that, in the last analysis,
only the Attorney General could withstand such official pressure and
decide the issue in an objective manner.
Senator Kennedy maintained during the hearings on S. 1566 that
since administrative inconvenience was not cited by the Ford Admin-
istration as a reason for delegating authority to review the applica-
tions, the present Department of Justice should not depart from the
previous Administration's corn niitment.45
With the assurance of Attorney General Bell in his testimony dur-
ing the hearings on S. 1566 that lie would personally continue to ap-
prove applications under the bill until standards of review have been
well established,41 the 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 Attorney Gen-
oral-to approve applications for an electronic surveillance order
under this chapter.
"' United States v. White, 401 U.S. 745 (1971).
,' Sea ate Judiciary Hearings, Testimony of Attorney General Bell, pp. 18-19 (June 13,
1977).
,Senate Judiciary Hearings, pp. 18-20.
au Senate Judiciary Hearings, testimony of Attorney General Bell, p. 20 (June 13, 1977).
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J. "Minimisation"
Paragraph (8) deals with "minimization", i.e., procedures which are
designed to limit the acquisition, retention., and dissemination of in-
formation that is not foreign intelligence information and which re-
lates to United States citizens or permanent resident aliens. The para-
graph 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 United States persons not related to for-
eign intelligence. 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
security 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 intel-
ligence 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 inno-
cent conversations can be totally eliminated." 47 In assessing the mini-
mization effort, the court's role is to determine whether "on the whole,
the agents have shown a high regard for the right of privacy and have
done all they reasonably could to avoid unnecessary intrusion.," 4"
Absent a charge that the minimization procedures have been com-
pletely disregarded, the test of compliance is "whether a good faith
effort to minimize was attempted." 49
Among the factors to be considered in evaluating the reasonableness
of the agents' conduct will be the scope of the enterprise under investi-
gation, the location and operation of the subject telephone (or micro-
phone), the Government's expectations of the character of and parties
to the calls, the degree of judicial supervision, and the length or brevity
of the monitored conversations. i0 Minimization procedures may differ
from case to case depending on the nature of the agency relationship,
the individuals using the facilities or place to be surveilled, the type of
foreign intelligence information 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 in-
volving the named target be deleted from the records at an appropriate
time, and other requirements specified by the judge. For example, if a
citizen or permanent resident alien were using facilities of a foreign
47 T0,ited States V. Bynum, 485 F.2d 490, 500 (2nd Cir. 1973), cert. denied 423 U.S. 1005
(1975).
9e United States v. Tortorello, 480 F20 764, 784, (2nd Cir.), cert. denied 41.4 U.S. 346
(1073).
40 United States v. Armocida, 515 F.2d 29, 44 (3d Cir. 1975).
50 United States v. Armocida. 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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agent that were the target of the surveillance, the government would
be required to minimize the acquisition and retention of any informa-
tion that did not rel ate to foreign intelligence information.
The definition of minimization speaks in terms of acquistion, 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 determin-
ing that A's wife is not engaged with him in clandestine intelligence
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 realized that
she rather than A was the party. In other cases, however, primarily
for sophisticated technological reasons, it may not be possible to, avoid
acquiring all conversations. In these situations minimizing retention
and dissemination becomes most important. By minimizing retention,
the committee intends that information acquired, which does not re-
late to the approved purposes justifying the warrant, be destroyed.
For example, after determining that A's wife is not engaged with her
lmsband in clandestine intelligence activities, her communications,
acquired and retained in order to make this determination, would be
destroyed. Indeed, even A's communications which are not relevant 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 time approved
purposes. Procedures governing minimization-particularly how long
information should be retained and how it should be destroyed once it
is deemed irrelevant-are to be fashioned by the court and are, of
course, subject to judicial supervision.
Time Committee amendment to the minimization definition makes ex-
plicit, the intent that information not related to an approved purpose
not be disseminated. The only exceptions to this prohibition recognized
by the Committee are for one of the purposes authorized in Section
2521 (b) (8) or for the enforcement of the criminal law under the pro-
visions of Section 2526 (a) and (b). Under the dissemination please,
information being held to determine relevancy would not be dissemi-
nated until the determination was made (or would only be dissemi-
nated to those who could determine its relevancy.) It could also mean
that, even with respect to information relevant to an approved pur-
pose, dissemination would be restricted to those officials with a need
for such information. And, aiainin, the judge, in fashioning the minimi-
zation order, could place specific restrictions on the retriev,11 of such
information.
In short, the committee believes that the definition of minimization
procedures authorizes and requires that information concerning Amer-
ican citizens and lawful resident aliens be handled in such a way as to
assure that it is used only for the purposes specified in. the definition
and that it cannot he, used for any other purpose. Some. have suggested
that the statutory definition is too general. The committee recognizes,
however, that minimization requirements must differ from case to case
and that minimization restrictions which are appropriate for some sur-
veillances would be inappropriate for others. A certain flexibility in
thw statute is, therefore, necessary with careful judicial scrutiny of a
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particular application the best protection against abuse. But the defi-
nition does not give carte blanche to the judge. It requires that the
procedures be designed to limit the acquisition, retention, and dissemi-
nation of information concerning American citizens and lawful resi-
dent aliens to that information which is related to one of the approved
purposes; in addition, the procedures must provide that the informa-
tion 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 only applies to information known to con-
cern United States persons. Where communications are encoded or oth-
erwise 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 United States persons. Never-
theless, the minimization procedures can be structured to apply to
other agencies of the Government, so that if an agency different from
the intercepting agency decodes or processes the communication, it
could be required to minimize the retention and prohibit the dissemi-
nation of information therein concerning United States persons.
It should be noted that this provision contains one significant change
from the minimization provisions in chapter 119. Section 2518 (8) (a)
requires that all interceptions be recorded, if possible, and that the
tapes not be edited or destroyed for ten years. In a criminal context
the maintenance of such tapes and files under court seal ensures 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 rela-
tively few in number, unlike Title III interceptions the very purpose
of which is to obtain evidence of criminal activity. The Committee
believes that in light of the relatively few cases in which information
acquired under this chapter may be used as evidence, the better prac-
t.ico is to allow the destruction of information that is not foreign
intelligence information or evidence of criminal activity. This course
will more effectively safeguard the privacy of individuals, ensuring
that irrelevant information will not be filed. The committee believes
that existing criminal statutes relating to obstruction of justice will
defer 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. ? 3504,
interceptions which are destroyed.
The committee is concerned that the surveillance authorized under
this chapter not result in the acquisition and retention of information
which would adversely affect the exercise of first amendment rights.
Nor should any dissemination of the information obtained so affect
those rights. Such abuses occurred with distressing frequency in the
past. Information relating to the lawful political activity of Ameri-
can citizens or resident aliens is, by definition, not foreign intelligence
information and may not be acquired, retained, or disseminated under
the provisions of this legislation.
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In addition to the general minimization requirements discussed
above, there are two specific requirements aimed at particular types of
surveillance.
The first requires that appropriate steps be taken to prevent foreign
intelligence information, which relates solely to the conduct of foreign
affairs, from being maintained in a way that would permit retrieval
by reference to the name of a United States citizen or lawful resident
alien who is a party to the intercepted communication. This require-
ment is intended to strike a balance between individual rights and
government needs in the delicate situation where American citizens
are overheard in conversations which contain information solely re-
lated to the conduct of foreign affairs. V
In a hypothetical. case, for example, an ambassador from an im-
portant neutral nation, speaking to a United States Senator, tells the
Senator that his country has been secretly approached by a foreign
nation concerning a planned attack on the United States. Assuming
that the surveillance was initiated against the ambassador and ap-
proved 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 pri-
vacy 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 dis-
cussing 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 miniiniza,tion procedures. If the subject matter is foreign
intelligence information, the information should be retained. The
alternative-a blanket rule depriving the Government of the right to
retain foreign intelligence information, regardless of its importance,
because 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. No file should be started or maintained
under the name of the American citizen when the information relates
solely to the conduct of foreign affairs.
The second requirement provides special protections for permanent
resident aliens and citizens of the United States who are employed by
an entity controlled and directed by a foreign government or govern-
ments, which is the target of electronic surveillance and which is not
substantially composed ~of officers or employees of a foreign govern-
nment or individuals who are agents of a foreign power as defined in
Section 2521(b) (2) (B). In such cases, the government must, in acidi-
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tion to the general procedures required by this paragraph present a
statement of procedures to prevent the acquisition, retention, and
dissemination of communications of permanent resident aliens and
United States citizens who are not officers or executives of the
entity responsible for activities which involve foreign intelligence
information.
K. "United States Person"
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."
This definition is new to S. 1566 since S. 3197 made no distinction in
its provisions between different types of "persons." As already indi-
cated, this new section has proven troublesome. As Senator Kennedy
stated when he introduced S. 1566:
Another major question mark concerning the bill involving
the decision of the Justice Department to grant less protec-
tions and safeguards to illegal aliens or foreign visitors. This
disquieting feature of the bill was absent from S. 3197. When
it comes to illegal aliens or foreign visitors today's legislation
provides an expanded noncriminal standard, does not allow
the court to look behind the executive branch certification and
allows the government to use the information obtained as a
result of the surveillance for whatever purpose it deems nec-
essary. The Fourth Amendment of the Constitution speaks
in terms of protecting all "persons"-not just American citi-
zens and lawful resident aliens-and to the extent that this
bill establishing different standards and procedures for illegal
aliens and temporary foreign visitors, it is open to criticism.-
Proponents of the change correctly point out, however, that this
new distinction in S. 1566 is, in large part, the result of an Admin-
istration decision to confer additional statutory protections, over and
above those found in S. 3197, for American citizens and lawful resi-
dent aliens. Thus, for example, in cases involving American citizens
or lawful resident aliens S. 1566 allows the court to look behind the
Executive branch certification and also expands the definition of
electronic surveillance. The Committee recognizes these distinct im-
provements over S. 3197 and is aware of the Administration's reluc-
tance to extend these safeguards across the board to all persons.
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. Corporations or
groups which are within the definitions of a foreign power in Section
2521(b) (1) (C), (D), or (F) would continue to be foreign powers
notwithstanding incorporation in the United States or the presence
o f a substantial number of American members.
51 Congressional Record 57857 (daily ed. May 18, 1977).
S. Rept. 604, 95-1-6
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Section 2521(b) (10) offers a new definition of "United States" for
geographic purposes. Evidence publicized last year of CIA bugging
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 terra "territorial. sovereignty" does not include United States em-
bassies, military bases and other installations abroad. The Common-
wea.lthI of the Northern Marianas is intended to be covered by this
definition after its severance from the Trust Territory of the Pacific
Islands. The remainder of the Trust Territory of the Pacific ;birds
is intended to be covered. so long as the Trust is in erect and there-
after only if the political status agreements with the United States
provide or territorial sovereignty of the United States in a manner
similar to that of the Northern Mariana Islands, Puerto Rico or Guam.
Section 0520
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
approve 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.
Section 2523
Subsection (a) provides for the public designation by the Chief Jus-
tice of seven United States district court judges, any one of whom may
hear applications and grant orders under this chapter. Each judge
shall have nationwide jurisdiction, and the Committee contemplates
that there will be some geographic dispersion among them.
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 approv-
ing an application, and that judge is unavailable when the Govern-
ment comes forward with such additional information, the Govern-
ment 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, per-
haps because of 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
reinstated.
The subsection further provides that a designated district judge
who denies an ,application for electronic surveillance shall providea
complete written statement of the reasons for the denial, and, if the
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Government seeks review of the decision, forward that statement and
other documents comprising the record to the special court of review.
This ensures 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 publicly desig-
nated as the presiding judge. If the special court of review determines
that an application was properly denied, it shall provide a written
statement of the reasons for its decision and, on petition of the gov-
ernment fora 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 proceed-
ings under this chapter and also states that the Chief Justice, in con-
sultation with the Attorney General and the Director of Central In-
telligence, shall establish security measures under which applications
made and orders granted shall be maintained. The Committee contem-
plates that the record of applications made, information provided,
and orders granted by the several judges designated under this chap-
ter shall be maintained in such a way that the judges designated un-
der this chapter shall have access to the records of actions taken by
the other judges similarly designated.
Section 2624
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 in writing and under oath or affirmation
by a federal officer. If the officer making the application is unable to
verify personally the accuracy of the information or representations
upon which the application is based, the application must also include
affidavits by investigative or 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 contain an affidavit by the investigating of-
ficer 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 United States 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 procedures
have been followed. The Attorney General shall also state in writing
his belief that the facts and circumstances relied upon for the applica-
tion 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 statutory
criteria have been met. In addition, the Attorney General must person-
ally be satisfied that the certification has been made pursuant to statu-
tory requirements.
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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)
that surveillance against one individual does not lead to the intercep-
tion of communications of an entire group or organization of United
States 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 re uire-
ments parallel existing law. (1.8 U.S.C. 2518(1) (b) (ii) and (iv) ).
Paragraph (5) requires a statement of the proposed minimization
procedures.
The statement of procedures required under this paragraph should
be full and complete and subject to the closest judicial scrutiny. 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 normally
include such elements as methods to avoid the acquisition of irrelevant
information at the time of intercept, restrictions on the use of surveil-
lance to times when foreign intelligence information is likely to be
obtained, and requirements for deletion of information obtained which
is not foreign intelligence information.
For example steps should be taken to prevent unnecessary invasion
of the privacy of a target's family caused by a twenty-four 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 intelli-
gence should not be retained or, of course, disseminated.
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
sufficiently detailed so as to state clearly what the Government seeks.
A simple* designation of which subdefinition of "foreign intelligence
information" is involved will not suffice.
Such a description is not required where a target is one of the
"official" foreign powers defined in Section 2521(b) (1) (A), (13), or
(C). Where these types of powers are the targets, a designation of a
particular subcategory of the definition of "foreign intelligence infor-
mation" will suffice. The reason for this distinction is, that with respect
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to such "official" targets, the sensitivity of the surveillance is greatly
multiplied while the risk of a fruitless surveillance which will not
obtain any foreign intelligence information is greatly reduced. There-
fore the Administration maintains that such applications should not
require as much detailed information to be presented as in cases in-
volving 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 appro-
priate executive official appointed by the President with the advice and
consent of the Senate. The certification would be made by the official
having ultimate responsibility for the collection of the informa-
tion-normally the Assistant to the President for National Security
Affairs, the Director of the Central Intelligence Agency, 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 Sen-
ate, who has full knowledge of the case. The possibility of additional
certifications is provided to insure that a detailed and complete certifi-
cation is presented to the judge.
The certification shall state that the information sought is foreign
intelligence information, that the purpose of the surveillance is to
obtain forei intelligence information, and that such information
cannot feasibly be obtained by normal investigative techniques. It
shall include a designation of what type of foreign intelligence infor-
mation 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 "foreign intelli-
gence information" is designed to insure that a high-level official
with responsibility in the area of national security, will review and,
where the target is not a foreign power as defined in section 2ii21(b)
(1) (A), (B)~ or (0), explain the Executive Branch determination
that the information sought is in fact foreign intelligence information.
The requirement that this judgment be explained is to ensure that
those making certifications carefully consider the cases before them
and avoid the temptation to simply sign off on certifications which
consist largely of boilerplate language. The committee does not intend
that the certification be vague generalizations or standardized as-
sertions. The designated official must similarly explain that the pur-
pose 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 information for any other purpose. The designated offi-
cial 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 United States 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 (C) ), 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 since the reviewing court does not have the
power to control the length of the surveillance within the 00-day pe-
riod otherwise applicable in the bill. This provision-a major change
from the blanket 90-clay limitation in S. 3197-has been criticized by
some members of the committee who object to the likelihood of
lengthy, ongoing wiretaps being conducted without adequate judicial
supervision.
Paragraph (8) requires the application to contain a statement of
the means by which the surveillance will be effected where it is not
targeted against the special class of foreign powers. Unlike S. 3191,
where the target is one of the special classes of foreign powers listed
in section 2521 (b) (1) (1), (B), or (C), the Administration has in-
sisted that only a designation of the type of surveillance according to
the categories of the definition of electronic surveillance be required.
It will generally be sufficient in such cases if the application merely
indicates whether the information will be acquired by means of a wire-
tap, a microphone installation, the interception of a radio signal or
some other means. The Administration maintains that less specificity
in describing the means of the surveillance is required for the special
class of foreign powers because of the extreme importance and sensi-
tivity of the information sought. However, if such a surveillance
requires physical entry of the property of a non-consenting person,
a statement to that effect is required.,52
Paragraph (9) parallels 18 U.S.C. Section 2518 (1) (e) and requires
a statement 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. Section 2518(1) (d) and re-
quires a statement as to the period of time for which the surveillance
is necessary in those cases where the special class of foreign powers is
not the target. If the surveillance order is not to terminate automati-
cally when the particular information sought has been obtained, the
applicant must provide additional facts supporting his belief that
additional information 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 determi-
nations. It parallels existing law, 18 U.S.C. Section 2518 (2). Such addi-
62 Some members of the Committee have expressed concern that the failure of S. 1346
to require a statement of means in cases involving the special class of foreign powers is
part of a disquieting pattern, a pattern that results in less oversight of warrant appil-
rations by both the Department of Justice and the judiciary. Thus. insofar as (1) the
Attorney General can delegate his authority to review warrant applications (2521(h) (7),
eupra), (2) the court has no supervisory role over the length of surveillance of "of$cial"
foreign powers (2524(a) (7) M, sapra), and (121 the Government need not give a state-
ment of the means by which the surveillance of "official" foreign powers will be effected,
there is obviously a marked lessening of the statutory safeguards found in S. 5197. The
opportunity for abuse obviously Increases. Some members of the Committee have none
along with these changes with the greatest reluctance and only because they view
S. 1566-in its entirety-as a major improvement over existing law.
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tional proffers would, of course, be made part of the record and would
be subject to the security safeguards applied to the application and
order.
Section 2,525
Subsection (a) of this section is patterned after 18 U.S.C. Section
2518(3) and specifies the findings the judge must make before he
grants an order approving the use of electronic surveillance for foreign
intelligence 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 special
class of foreign powers is the target) or the minimization procedures
to be followed.
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 in-
formant must relate to the essential conduct on which the application
is premised and not merely to incidental details.
In addition, in order to find "probable cause" to believe the subject
of the surveillance is an "agent of a foreign power" under subsection
2521 (b) (2) (A) (ii), (iii), or (B), the judge must, of course, find that
the Government has established probable cause that each and every
element of that status exists. For example, if a United States 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. There must also be probable
cause to believe the person is acting for or on behalf of that foreign
power and probable cause to believe that the efforts undertaken by the
person on behalf of the foreign power constitute sabotage, terrorism
or other proscribed activities as defined in section 2521.
Similar findings of probable cause are required for each element
necessary to establish that a United States citizen is conspiring with
or aiding and abetting someone engaged in sabotage, terrorism, or
clandestine intelligence activities at the direction of a foreign power.
A judicial determination that a person is an agent of a foreign
power as defined in section 2521(b) (2) (B) (iii) requires other find-
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ings: that the person is acting pursuant to the direction of a foreign
intelligence service or network; that the person is knowingly collect-
ing or transmitting information or material to that service or network
in a covert manner; and that the circumstances surrounding the ac-
tivity taken together are so compelling that they indicate that the in-
formation or material transmitted to the network harm the security
of the United States, or that 'lack of knowledge of the collection or
transmission would harm our national security. Thus, the nature of
the activity, its relationship to the national security, and the status of
the target are all vital to the judicial determination. The required find-
ing must be made by the judge, on the basis of the information and
explanation provided by the Government. In order to determine
whether the requisite probable cause has been established, the judge
may request such additional information as is necessary in light of
the facts and circumstances to make the required determination.
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
United States citizens or lawful resident aliens fit the definition of
minimization procedures. The committee 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 procedures modified. The committee realizes that total minimi-
zation may not be possible. Therefore, the bill's requirement is phrased
in terms of minimization procedures being "reasonably designed."
Thus, for example, where irrelevant information cannot be erased from
part of a tape, minimization procedures should prohibit dissemination
of the tape. In addition, where it cannot immediately be determined
whether a certain piece of information is irrelevant, minimization pro-
cedures should require that within a specified time such a determina-
tion 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 requirement of those
sections, the court is not permitted to substitute its judgment for that
of the executive branch officials, except where a United States person
is the target of a surveillance. In such a case, the judge must review
the certifications to determine whether they are clearly erroneous.
This authority of the court to "look behind" the certifications 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 probable cause finding by
the judge. Nevertheless, S. 1.566 does provide a workable procedure for
judicial review (and possible rejection) of Executive branch certifica-
tions.
Despite the fact that the court is not allowed to "look behind" the
certification in cases not involving United States persons there are
several checks against the possibility of arbitrary executive action.
First, the court, not the Executive branch, makes the findiu 2 of whether
probable cause exists that the target of surveillance is a foreign
power or its agent. It is this finding that constitutes a fundamental
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safeguard for the civil liberties of the individual. It is also an effective
external control on arbitrary executive action. Second, the certifica-
tion procedure assures written accountability within the Executive
branch for the decision made to engage in such surveillance. This con-
stitutes an internal check on executive branch arbitrariness.
Moreover, it should be noted that if the description and certification
do not fully comply with sections 2524(a) (7), they can and must be
rejected by the court. Thus, the court could invalidate the certification
if it were not properly signed by the President's designee, did not des-
ignate the type of information sought, or did not state that the infor-
mation sought is foreign intelligence information, that the purpose of
the surveillance is to obtain foreign intelligence information, and that
such information cannot feasibly be obtained by normal investigative
techniques. Further, if the certification did not present an explanation
of why the information sought is foreign intelligence information
which cannot 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.
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 surveil-
lance is directed. The order must also specify the type of information
sought, or where the special class of foreign powers is the target, a
specific definition of "foreign intelligence information." These require-
ments are designed to satisfy the Fourth Amendment's requirements
that warrants describe with particularity and specificity the person,
place, and objects to be searched or seized. The order must, in addition
to the Fourth Amendment's requirements, specify the means by which
the surveillance will be effected (where the target is one of the special
class of foreign powers, however, only a specific definition of "elec-
tronic surveillance" 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. Failure to abide by the minimization proce-
dures 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,
facilities or technical assistance necessary to accomplish the electronic
surveillance successfully and with a minimum of interference to the
services provided by such person to the target of the surveillance. If
this is done, the court shall direct that the person rendering the assist-
ance maintain under security procedures approved by the Attorney
General and the Director of the Central Intelligence Agency any
records concerning the surveillance which the person wishes to retain.
If the judge directs such assistance, he shall also direct that the appli-
cant compensate the person for such assistance. These provisions gen-
erally 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
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50
section 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 authorizing 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 9&
days, whichever is less. In the Committee's view 90 days is the maxi-
mum length of time during which a surveillance of these persons or
entities for foreign intelligence purposes should continue without new
judicial scrutiny. This period of time is not as long as some have
wished but longer than others desired. It is considered to be a reason-
able condition in the foreign intelligence context.53
When the special class of "official" foreign powers is targeted, how-
ever, the surveillance may last as long as one year. Moreover, the
Executive determines the necessary length of the surveillance of these
special foreign powers (not to exceed one year without re authorize
tion), and this determination is not subject to the cour's review or
approval. As already indicated, this is a substantial change from
S. 3197 which has provoked widespread criticism from some members
of the Committee. The Administration, however, offers considerable
arguments 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 intel-
ligence information from these entities is very high. Third, surveil-
lance 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 succes-
sive 90 day court renewals, the. Administration cites the generation of
four times the amount of required paperwork with the attendant in-
creased possibility of a compromise as well as the administrative bur-
den which would' result, as reasons for exempting these foreign powers.
from the 90 day limitation. Given these considerations and the unique
status of the targets involved, the Administration feels that one year
is not an excessive period of time..
Others disagree, maintaining that excessive paperwork and adm inis-
trative inconvenience are not sufficient reasons to extend such surveil-
lance to as long as one year without judicial approval (and with the
possibility that the Attorney General will. not even personally be
reviewing the foreign power warrant application). Nevertheless, the.
13 United States V.. United States District Court, 407 U.S. 297 at 323 (1972) ).
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Committee has acceded to the Administration's position and has
granted the change from S. 3197 in the limited situation of special
foreign powers as defined in section 2521(b) (1) (A), (B), or (C).
In coming to this conclusion, however, the Committee emphasizes
that, in order for United States citizens to be adequately protected in
such cases, this provision must not be interpreted to bar judicial review
of the effectiveness of the minimization procedures. United States
citizens may be overheard talking to employees of such a "special"
foreigai power. As already indicated, the court has the power to review
minimization during the course of the surveillance 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 previously provided.
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
expected that the court would evaluate the success or failure of any
previous surveillances and the facts and circumstances surrounding
such surveillance. The court, however, in considering t renewal involv-
ing 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 was made at the request of the Administra-
tion and reflects its concern with the sensitive nature of the information
obtained from special foreign powers.
Subsection (d) authorizes the Attorney General to approve an emer-
gency electronic surveillance prior to judicial authorization under cer-
tain limited circumstances. First, the Attorney General must deter-
mine that an emergency situation exists which requires the employ-
ment of electronic surveillance before an order authorizing such sur-
veillance can with due diligence be obtained. In addition, the factual
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 chapter 119, 18 U.S.C. section 2518(7). First, only the Attor-
ney General (as defined) may authorize such emergency surveillance,
whereas in 18 U.S.C. section 2518 (7) the Attorney General may des-
ignate "any investigative or law enforcement officer" to authorize emer-
gency interceptions under that subsection. Second. the Attorney Gen
eral ~or his designee must contemporaneously notify oneof the desig-
nated judges that an emergency surveillance has been authorized.
There is no comparable requirement in 18 U.S.C. section 2518(7).
Third, an application for an order approvine? the surveillance must be
made to that judge within 24 hours; 18 U.S.C. section 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. section 2418 (7) the emergency surveillance
may continue indefinitely until the judge denies the application. Fifth,
the Attorney General must order that minimization procedures re-
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52
quived by this chapter for the issuance of a judicial order be followed
during the period of the emergency surveillance. There is no compa-
rable provision under 18 U.S.C. section 2518(7). This last provision is
designed to ensure that as much as possible be done to eliminate the ac-
quisition, retention and dissemination of information which is not
foreign intelligence information. The Committee's intent is to place
the Attorney General in the role of the court during the 24 hour emer-
gency period. He must examine the minimization procedures as the
court would normally do under paragraph (a) (4) of this section, and
order that the appropriate procedures be followed just as if lie were the
court granting a judicial order.
The committee wishes to emphasize that the application must be
made for judicial approval even if the surveillance is terminated within
the, twenty-four hour period and regardless of whether the information
sou ht. is obtained. This requirement ensures that all. emergency sur-
veillance initiated pursuant to this chapter will receive judicial review
and that judicial approval or denial will be forthcoznin'? nwnc pro tune.
Thus, the termination of an emergency surveillance before the expira-
tion of the twenty-four hour period shall not be a basis for the court
failing to enter an order approving or disapproving the subsequent ap-
plication. It is necessary for both the Department of Justice and Con-
g?ressional oversight 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 stand-
ard.
This provision for emergency authorization of surveillance by the
Attorney General may not be utilized pending an appeal under section
252 3, following the denial of an application fora judicial order. Under
such circumstances, the Attorney General could not reasonably deter-
mine that "the factual basis for the issuance of an order under this
chapter to approve such surveillance exists," as required by this sub-
section.
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 sub-
section), no information obtained or evidence derived from the sur-
veillance shall be received, used or disclosed by the Government in
any trial hearing or other proceeding before any court, grand jury, de
partment, office, agency, regulatory body, legislative committee or
other Federal, State or local authority. This exclusionary provision is
designed to be absolute.
A denial of the application may be reviewed in the same manner as
a denial of an original application under section 2523.
Section 2526
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 may be
more difficult in the foreign intelligence area than in the more tradi-
tional criminal area, and that this chapter contains certain less restric-
tive procedures than does chapter 119 (for example. 90 days of sur-
veillance per order rather than 30 days). mandates that the uses to be
made of the information acquired by means of this chapter be care-
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53
fully restricted. This section, therefore, places more stringent restric-
tions on use and dissemination than does the corresponding provision
of Title III1 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 documentation 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 in-
formation can threaten the secrecy necessary to effective intelligence
practices. IIotivever, the defendant's constitutional guarantee of a fair
trial could seriously be undercut if he is denied the materials needed to
present a proper defense. The Committee believes that a just, effective
balance has been struck in this section.
Subsection (a) requires that information concerning United States
persons acquired from electronic surveillance conducted pursuant to
this chapter 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 for-
eign 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 the terrorist or sabotage activities of a foreign power
or an agent of a foreign power; to protect against the clandestine intel-
ligence 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 informa-
tion concerning United States citizens and resident aliens gathered
pursuant to this chapter are carefully restricted to actual foreign in-
telligence purposes and the enforcement of the criminal law.
A major change from S. 3197 has, however, been made in this sec-
tion at the insistence of the Administration. Whereas in S. 3197 this
section applied to all persons, whether or not they were American
citizens, S. 1566 limits the protections of section 2526 (a) to United
States persons. Information concerning non-United States persons
(who indeed may be foreigners not even in the United States)) is not
subject to the same restrictions as information concerning TTnited
States 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 United States persons and other persons
was sufficiently troublesome to the Committee to result in an im-
portant amendment to section 2526(a). By limiting the subsection
to United States persons, the possibility existed that information ob-
tained by surveillance could be used in a variety of illegal ways against,
for example, foreign visitors and students. The Committee has amended
this subsection to make clear that no information acquired pursuant
to this chapter may be used or disclosed for other than "lawful pur-
poses". The committee does not intend nor does the bill permit that
information gathered about a foreign. visitor be used to blackmail him
into t)ecornine' 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-United States persons, beyond
the specific purposes listed in section 2526(a), it do so in a lawful
manner and for lawful purposes.
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There is no specific restriction in the bill as to whom Federal officers
may disclose information concerning United States persons acquired
pursuant to this chapter (although specific minimization procedures
might require specific restrictions in particular cases). First, the Com-
mittee 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 over-
hear information relating to a violation of state criminal law, such as
homicide, the agents could hardly be expected to conceal such infor-
mation from the appropriate local officials. Second, the Committee 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 execu-
tive 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 officers,
including minimization and the limitations on dissemination, this
cooperative relationship should not be terminated by a blanket prohi-
bition on dissemination to foreign intelligence services. The Com-
mittee wishes to stress, however, that any such dissemination be care-
fully reviewed to ensure that there is a sufficient reason why disclosure
to foreign intelligence services :is in the interests of the United States.
Disclosure, in compelling circumstances, to local officials for the
purpose of enforcing the criminal law, 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 United States persons. Where the infor-
mation in the communication is encoded or otherwise not known to
concern United States persons, only the requirement that the infor-
mation be disclosed for lawful purposes applies. There is no require-
ment that before disclosure can be made information be decoded or
otherwise processed to determine whether information concerning
United States persons is indeed. present. Of course, the restrictions
on use and disclosure apply to the entire Government, so that if any
agency received coded information from the intercepting agency, were
it to break the code, the limitations on use and disclosure would apply
to it.
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 informants.
Whether to go forward with a criminal prosecution remains in
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the exclusive hands of the Executive Branch and nothing in section
2526(a) changes that fact.
This subsection also notes that no otherwise privileged communica-
tion obtained in accordance with or in violation of this chapter shall
lose its privileged character. This provision is identical to 18 U.S.C.
2517 (4) and is designed, like its Title III predecessor, to change, exist-
ing law as to the scope and existence of privileged communications only
to the extent that it provides that otherwise privileged communica-
tions do not lose their privileged character because they are intercepted
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 re-
lated to foreign intelligence. However, even the most thorough minimi-
zation efforts may result in the acquisition of some information which
is not foreign intelligence information. This subsection states that such
incidentally acquired information which is evidence of a crime may
be retained and disclosed for law enforcement purposes. Such disclos-
ure would, of course, be restricted by the provisions of subsection (a).
The requirement that such criminal evidence be acquired inciden-
tally logically connotes that it must be acquired lawfully. This requires
that there be a good faith effort to minimize."
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 have
been minimized, that evidence would be acquired in violation of this
chapter and would properly be suppressed if offered at any official
proceeding.
Disclosure for law enforcement purposes must be accompanied by a
statement that such evidence, or any information derived therefrom,
may only be used in a criminal proceeding with the advance authoriza-
tion of the Attorney General. This provision is designed to eliminate
circumstances in which a local prosecutor has no knowledge that evi-
dence 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).
Subsections (c), (d) and (e) set forth the procedures under the bill
whereby information acquired by means of electronic surveillance
may be received 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 evidence will be acquired and this subsection and the succeed-
ing one establish the procedural mechanisms by which such informa-
tion may be used in formal proceedings.
At the outset the committee recognizes that nothing in subsection
{c) abrogates the rights afforded a criminal defendant under Brady v.
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Marylancd,55 and the Jencks Act.", These legal principles inhere in
any such proceeding and are wholly consistent with the procedures
detailed here. Furthermore, nothing contained in this section is in-
tended to alter the traditional principle that the Government cannot
use material at trial against a criminal defendant, and then withhold
from him such material at trial.5'
Subsection (c) states that no information acquired pursuant to
this chapter may be used unless, prior to the trial, hearing, or other
proceeding, or at a reasonable time prior to an effort to disclose the
information or submit, it in evidence, the 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. 1566 over its counterpart in S. 3197 by including non-
judicial proceedings. In instan'=es in which the government intends to
disclose surveillance information in such a non-judicial forum, sub-
section (c) would require that the United States district court in the
district in which the disclosure is to take place be notified of the
proposed disclosure or use.
Subsection (d) parallels 18 U.S.C. 2518(10) (a) and provides a.
separate statutory vehicle by which a person who has been a subject
of electronic surveillance and ? against whom. evidence derived there-
from 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 communication acquired by, or evidence derived from, such elec-
tronic surveillance. The grounds for such a motion would be that (a)
the communication was unlawfully acquired, or (b) the surveillance.
was not made in conformity with the order of authorization or
approval.
The "subject" of electronie surveillance means an individual who.
was a party to the intercepted communication or was a person against
whom the interception was directed. Thus the word is defined to coin-
cide with the definition of "aggrieved person" in section 2510 of title
I11.'11
One situation in which such a 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 subse-
quent 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 discovers
that he has been intercepted by electronic surveillance even before
the government has decided whether evidence derived from that sur-
veillance will be used in the presentation of its case. In this instance,
under the appropriate factual circumstances, the defendant might
move to suppress such evidence under this subsection even without hav-
ing seen any of the underlying documentation.
5 373 U.S. 83 (1963).
10 IS U.S.C. 3500 at seq.
R7 fTn. trd States V. Andolsehek, 142 P. 25 503 (2nd Car. 1944).
M See also. Alderman v. United States, 394 'U.S. 165 (1967).
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A motion under this subsection shall be made before the trial, hear-
ing, 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 separate, inde-
pendent basis for suppression the fact that the order was insufficient
on its face. This is not a substantive change, however, since communi-
cations acquired pursuant to an order insufficient on its face would be
unlawfully acquired and therefore subject to suppression under para-
graph (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 ex-
ample, whenever an individual makes a motion pursuant to subsection
(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 chap-
ter (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 referred to in the mo-
tion. This is necessary to prevent the carefully drawn procedures in
subsection (e) from being bypassed by the inventive 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 made to the de-
fendant, as is required under Title III.-59 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 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 con-
stitutional or statutory right of the person against whom the evidence
is sought to be introduced. The subsection 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 portions thereof, or other materials re-
lating to the surveillance, only if it finds that such disclosure is neces-
sary to make arm accurate determination of the legality of the sur-
veillance. Thus, this subsection deals with the procedure to be followed
by the trial court in determining the legality (or illegality) of the sur-
veillance.
The question of how to determine the legality of an electronic :cur-
veilanee. conducted for forek n intelligence purposes has never been
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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 pro-
cedure that the District Courts are to follow in making this prelimi-
nary determination [of legality.]" 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 bal-
ance between an entirely in camera proceeding which might adversely
affect the defendant's ability to defend himself, and mandatory dis-
closure, which might occasionally result in the wholesale revelation of
sensitive foreign intelligence 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 balanc-
ing 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
surveillances 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
factors 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 includes a significant amount of non.foreign intelligence
information, calling into question compliance with the minimization
standards contained in the order. In such cases, the committee con-
templates 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 accurate determination of the legality of the surveillance."
Cases may arise, of course, where the court believes that disclosure
is necessary to make an accurate determination of legality, but the
Government argues that to do so, even given the court's broad dis-
cretionary power to excise certain sensitive portions, would damage
the national security. In such situations the Government must choose-
either disclose the material or forego the use of the surveillance-based
evidence. Indeed, if the Government objects to the disclosure, thus
preventing a proper adjudication of legality, the prosecution would
B0 Cf. Alderman v. United States, 394 U.S. 165, 182 n. 14 (1968) ; Taglianetti v. United
States, supra at 817.
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probably have to be dismissed, and, where the court determines that
the surveillance was unlawfully authorized or conducted, the court
would, "in accordance with the requirements of law," suppress that
evidence which was unlawfully obtained.61
Where the court determines that the surveillance was lawfully
authorized and conducted, it would, of course, deny any motion to
suppress. In addition, the Committee emphasizes that, 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 the requirements of due process.
Subsection (f) provides for notice to be served on United States
citizens and permanent resident aliens who were targets of an emer-
gency surveillance and, in the judge's discretion, on other citizens and
resident aliens who are incidentally overheard, where a judge denies
an application for an order approving an emergency electronic sur-
veillance. 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 ninety days upon a showing of
good cause to the judge. Thereafter the judge may forego 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 a deter-
mination 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 warrant
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 on-going foreign intelligence investigation because
of the logical inferences a foreign intelligence service might draw
from the targeting of the individual. For these reasons, the Govern-
81 The Committee has deliberately chosen the general phrase "in accordance with the
requirements of law" to avoid dealing with the very complex problem of what procedures
are to be followed in those cases where the trial court determines that the surveillance
was either unlawfully authorized or conducted or the Government's refusal to disclose
the underlying documentation to the defendant prevents the court from making that deter-
mination. The evidence obtained would not, of course, be admissible during the trial. But
beyond this is the question of whether, in the case of an illegal surveillance. the
Government is cons titutionallv mandated to surrender to the defendant all the records of
the surveillance in its possession in order for the defendant to make an intelligent motion
on the question of taint. The Supreme Court opinion in Alderman v. United States, supra.,
clearly answers this question in the affirmative. In the Alderman case, the Court held that,
once a defendant claiming evidence against him was the fruit of unconstitutional electronic
surveillance has established the illegality of such surveillance (and his "standing" to
object), he must be given confidential materials in the Government's flies to assist him in
establishing 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 suffi-
ciently subject to error to interfere with the effectiveness of adversary litigation of the
question of "taint."
Alderman, however, was a pre-title III case (which, in section 2518(10) (a) confers dis-
cretion on the court to deal with the issue of "taint" in "the interest of justice") and both
this committee and the Department of Justice have maintained that Alderman was an exer-
cise of the Supreme Courts supervisory jurisdiction over the lower federal courts and not
a constitutional interpretation. Senate Committee on the Judiciary, S. Rept. 91-617, Orga-
nized Crime Control Act of 1970, 91st Conc., 2d seas., 64-70. (1970). However, the Supreme
Court has refused to reconsider the Alderman rule and, in fact, reasserted its validity in
its Keith decision. (United States v. United States District Court, supra, at 393.)
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went is given the opportunity to present its case to the judge for initi.-
ally postponing notice. After ninety days, during which time the
Government may be able to gather more facts, the Government may
seek the elimination of the notice requirement altogether.
It is the intent of the Committee that if the Government can ini-
tially show that there is a reason to believe that notice might compro-
mise an ongoing investigation, or confidential sources or methods,
notice should be postponed. Thereafter, if the Government can show
a likelihood that notice would compromise an ongoing investigation,
or confidential sources or methods, notice should not be given.
Section 2527
Section 2527 requires the submission of annual reports to both the
Congress and the Administrative Office of the United States Courts
containing statistical information relating to electronic surveillance
under this chapter. Specifically, the reports must include the total
number of applications made for orders and extensions and the total
number of orders or extensions granted, modified, and denied. The
statistics in these reports should present a quantitative indication of
the extent to which surveillance under this chapter are used.
The requirements in S. 3197 for the public reporting of certain ad-
ditional 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 one year warrant for "official" foreign pow-
ers). The reporting requirements in S. 3197, if reenacted verbatim in
S. 1,566, would obviously give foreign intelligence networks significant
information concerning the number and duration of surveillances of
"official" foreign powers. Changes have been made, therefore, in the
public reporting requirements of S. 3197 so as to avoid the compro-
mising of sensitive information.
The statistics reported pursuant to this section will provide a
basis for further inquiry by appropriate oversight committees of the
Congress.
Such congressional oversight is particularly important in monitor-
ing the operation of this statute. By its very nature foreign intelligence
surveillance must be conducted in secret. This 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
scheme in Title III, it is not contemplated that most electronic sur-
veillance conducted pursuant to this chapter will result in criminal
prosecution.
For these reasons, the Committee believes it important that con-
gressional oversight play an important role in the proper imple-
mentation of the statute. In that regard section 2527 must be read
in the context of other congressional enactments mandating intelli-
gence oversight 62 This Committee contemplates that the Department
of Justice and intelligence agencies will provide such information
to those committees as is required by their independent oversight
mandate. Indeed, it is expected that some form of Congressional over-
sight will be written into S. 1566 itself by the Senate Intelligence
Committee when the bill is referred to that Committee. Such over-
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sight would be seriously hampered if congressional committees were
denied access to the information found in the application record, such
as the underlying affidavits and documentation, requests for exten-
sions, the appeal record, orders and decisions of the court.
In addition, in the exercise of its oversight function, the Senate
Committee on the Judiciary shall consult with members of the De-
partment of Justice and the intelligence community concerning the
proper implementation 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 subrmssion 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.
Section 4 serves the important purpose of integrating the new chap-
ter 120 with the current electronic surveillance law found ill 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 cer-
tain 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 electronic 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 violation of a court order.) In all cases involving electronic sur-
veillance for the purpose of obtaining foreign intelligence informa-
tion, however, the prohibitions of 18 U.S.C. 2511 would apply.
(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 communica-
tions 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 imprison-
ment for not more than five years, or both, for each violation.
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(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.
(h) (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
provides that before the carrier may provide such information or as-
sistance, whether under chapter 119 or 120, the government agent
must furnish the carrier with an order signed by the court (but not
necessarily 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 con-
ducted pursuant to the provisions of section 2518(7) of chapter 119
or sections 2525 (d) of chapter 120. The document so furnished must
also set forth the period of time for which the surveillance is author-
ized and a description of the facilities from which the communication
is to be intercepted. Any violation of this subsection by a carrier or its
representative will render the carrier liable for the civil damages pro-
vided for in section 2520, subject, of course, to the good faith reliance
defense contained therein.
(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
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 chapter 119 and 120 are the
"exclusive means by which electronic surveillance, as defined in Sec-
tion 2521(b) (6) of chapter 120, and the interception of domestic wire
and oral communications may be conducted."
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 ninety days without the
-express approval of the Attorney General. The contents of any com-
munication 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.
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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. section 2511 or 47 U.S.C.
section 605 do not have a specific time limit, but are limited in time to
that "necessary to determine the existence and capability of such
equipment".
The Department of Defense, in a letter to the Committee, has char-
acterized 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
neutralizing 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 elec-
tronic surveillance. The provision is not an authorization to target 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
person engaged in the unlawful electronic surveillance is an agent of
a foreign power, he should be targeted under t statutory
he applicable provisions
of chapter 120. This provision is designed to confer 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 conform-
ing amendment, which must be read in conjunction with the conform-
ing amendment contained in paragraph (d) which repeals section
2511(3) of Title 18, United States Code, the so-called "National Seeu-
rity disclaimer" of Title III of the 1968 Omnibus Crime Control and
Safe Streets Act. The effect of these two conforming amendments is to
establish Chapter 120 as the exclusive congressional statement on the
question of the Executive's power to order electronic surveillance.
This new paragraph states that nothing in chapter 119 or section
605 of the Communications Act of 1934 shall be deemed to affect the
acquisition of foreign intelligence information. 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 statu-
tory 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
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605 of the Communications Act of 1934, as amended, which restricts the
dissemination of certain information transmitted by wire or radio.
Second, the language of this amendment exempts from section 605
and chapter 119 foreign intelligence gathering by means of an elec-
tronic, mechanical or other surveillance device if the acquisition does
not come within the definition of "electronic surveillance" contained in
section 2521(b) (6). Specifically, this provision is designed to make
clear that the legislation does not deal with international signals intel-
ligence activities as currently engaged in by the National Security
Agency and electronic surveillance 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.
The activities of the National Security .Agency pose particularly dif-
ficult conceptual and technical problems which are not dealt with in
this legislation. Although many on the Committee are of the opinion
that it is desirable to enact legislative safeguards for such activity, the
committee. adopts the view expressed by the Attorney General during
the hearings that enacting statutory controls to regulate the National
Security Agency and the surveillance of Americans abroad raises prob-
lems best left to separate legislation.?' This language insures that cer-
tain electronic, surveillance activities targeted against. international
communications for foreign intelligence, purposes will not be pro-
hibited absolutely during the interim period when these activities are
not regulated by chapter 120 and charters for intelligence agencies and
legislation regulating international.. electronic surveillance have not
vet. been developed.
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 chapter 119
and chapter 120 shall be the "exclusive means by which electronic sur-
veillance . . . may be . . . conducted." This statement puts to rest
the notion that Congress recognizes an inherent Presidential power to
conduct such surveillances in the United States outside of the proce-
dures contained in chapters 119 and 120.
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. Youngstown Sheet and
Tube v. Sawyer, 343 U.S. 579 (1952). In that landmark case the Su-
preme Court rejected President Truman's argument that he had in-
herent constitutional authority to seize the steel mills to prevent strilkes
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 a ill of Congress, his power is at the low-
est ebb, for then he can rely only upon his own constitutional
power minus any Constitutional power of Congress over the
-For a discussion of NSA activities and proposed legislative controls, see II Church
committee 58-00, 108 and 308-311. The problems posed by electronic surveillance of
Americans overseas can be found at pages 305 and 306; see, also III Church committee
7:13, et seq.
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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
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(l) 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 surveillances conducted pursuant to chapter
119, since chapter 120 contains its own requirements.
(i) This amendment makes explicit that the provision for a statutory
suppression motion contained in this subsection applies only to sur-
veillances conducted pursuant to chapter 119, since chapter 120 con-
tains its own requirements.
(j) This amendment makes explicit that the reporting requirements
of the Administrative Office of the I`niied States Courts contained in
this subsection apply only to surveillances conducted pursuant to
chapter 119 since chapter 120 contains its own requirements.
(k) These amendments are designed to entherize the recovery of
civil damages for violations of chapter 120 in the same manner and
amounts ,is already provided for violations of chapter 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 de-
lined in section 2521(b) (1) and (b) (2) (A) of chapter 120.
.lion. JAMES O. L' ASTLAN D,
Chairman, Committee on'the Judiciary,-
U.S. Senate, f-Vashington., D.C.
Ocl'onrr. 13, 19 7 7.
DEAR MR. CHAIRMAN: Pursuant to section 403 of the Congressional
Budget Act of 1974, the Congressional Budget Office has reviewed S.
1556, the Foreign Intelligence Surveillance Act of 1977, as ordered
reported by the Senate Committee on the Judiciary. October 5, 1977.
Based oil this review, it appears that no additional cost to the govern-
ment would be incurred as a result of enactment of this bill.
Sincerely,
ALICE M. Rrvr,IN. Director.
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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 ON INTERCEPTION
OF ORAL COMMUNICATIONS
Sec.
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.
2510. 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
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 coin munication.
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-
tory 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 corn-
munication other than-
(a) any telephone or telegraph instrument, equipment or
facility, or any component thereof, (i) furnished to the sub-
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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 investigative 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 politic%l subdivision thereof,
who is empowered by _.iw 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 (h) of title 47 of the United States Code; and
(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.
? 21511. Interception and disclosure of wire or oral communications
prohibited
(1) Except as otherwise specifically provided in this chapter or
chapter 1,00 or with respect to techniques used by law enforcement
officers not involving the interception of wire or oral communications
as otherwise authorized by a search warrantor 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 120;
(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
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(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 establislinient
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 Coin-
monwealth 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 commianiaction or any other form of elec-
tronic surveillance, as de fisted in chapter 120, in violation of this
subsection ; or
((I) willfully uses, or endeavors to use, the contents of any
wire, or oral communication or is formation 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-
iiiunication or any other form of electronic surveillance, as defined
in chapter 1M0, in violation of this subsection;
(2) (a) (i) It. shall not be unlawful under this chapter for an opera-
tor of a switchboard, or an officer, employee, or agent of any coin-
in.unication common carrier, whose facilities are used in the trans-
mission of a wire communication or radio communication, to inter-
cept or otherwise 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.un,ieation or engage in electronic surveillance, as defined in chapter
120: Provided, however, That before the information, facilities, or
teee! ,eal assistance may be provided. the investigative or law enforce-
ment, o icer shall furnish to the officer, employee, or agent of the
caa'ricr either-
(J) an order signed by the authorizing fudge certifying that
a court, order directing such assistance has been issued; or
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(2) in the case of an emergency interception or electronic
surveillance as provided for in section 2518 (7) of this chapter or
section 20,5 (d) of chapter 120, a certification under oath by roves,
tigatirve or law enforcement officer that the applicable statutory
requirements have been met,
and 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
communication common carrier or an officer, employee, or agency
thereof, shall render the carrier liable for the civil damages provided
for in section 2520."
(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.
(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 tortuous 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 o f this title or sections 605
or 600 o f the Communications Act o f 193 , it shall not be unlawful
for an officer, employee, or agent of the United States in the normal
course of his official duty to conduct electronic surveillance as defined
in section 2521(b) (6) of chapter X20 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 extent 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 detei-nining the capability gf
such equipment, shall be disc7osed 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 such
electronic surveillance shall be limited in extent and duration to
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that necessary to determine the existence and capability of such
equipment, and that any information acquired by such surveil-
lance 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) Nothin q contained in this chapter, or section 605 of the Com-
munications Act of 193.4 (47 U.S.C. 605) shall be deemed to affect the
acquisition by the United States Government of foreign intelligence
information from international communications 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 1.20 of this title,
sluxll be the enclusive 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 Ito take such
measures as he deems necessary to protect the Nation against ac-
tual or potential attack or other hostile acts of a foreign power, to
obtain foreign intelligence information deemed essential to the
security of the United States, or to protect national security in-
formation against foreign intelligence activities. Nor shall any-
thing contained in this chapter he deemed to limit the cons[itu-
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 sub-
division thereof if the disclosure of that information would be in
violation of this chapter or chapter 120.
* * * * * *
? 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 chaptershall
be made in writing upon oath or affirmation to a judge of competent
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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-
strusively 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 corn-
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.
(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 othex 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 commrnunication
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-
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(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 for foreign intelligence purposes,
2523. Designation of judges authorized to grant orders for electronic surveil-
lance.
2521. Application for an order.
2525. Issuance of an order.
2.526. Use of information.
2527. Report of electronic surveillance.
? 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;
(71) a faction of a foreign nation or nations, not substan-
tially composed o f 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
(1;) 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 citizen or an
alien lawfully admitted for permanent residence (as defined
in section 101 (a) (20) of the Immigration and Nationality
Act), who-
(i) is an officer or employee of a foreign power;
(ii) knowingly engages in clandestine intelligence
activities for or on behalf of a foreign power under cir-
cumstances which indicate that such activities would be
harmful to the security of the United States; or
(iii) conspires with or knowingly aids or abets any
person, knowing that such person is engaged in activities
described in paragraph (ii) above;
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(B) any person who-
(i) knowingly en ages in clandes tine intelligence activ-
ities for or on behalf of a f oreign power, which activities
involve or will involve a violation of the criminal statutes
of the United States;
(ii) knowingly engages in activities that involve or will
involve sabotage or terrorism for or on behalf of a foreign
power;
(iii) pursuant to the direction of an intelligence service
or intelligence network of a foreign power, knowingly col-
lects or transmits information or material to an intelli-
gence service or intelligence network of a foreign power
in a manner intended to conceal the nature of such in-
formation or material or the fact of such transmission or
collection, under circumstances which indicate the trans-
mission of such information or material would be harm-
ful to the security of the United States, or that Zack of
knowledge by the United States of such collection or
transmission would be harmful to the security of the
United States; or
(iv) conspires with or knowingly aids or abets any
person knowing that such person is engaged in activities
described in subsections B (i)-(iii) above.
(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.
(4) "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 is deemed 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 an agent of a foreign power;
(B) information with respect to a foreign power or for-
eign territory, which relates to, and because of its importance
is deemed essential to-
(i) the national defense or the security of the Nation;
or
(ii) the successful conduct of the foreign affairs of the
United States:
(C) information which relates to, and is deemed necessary
to the ability of the United States to protect against terrorism
by a foreign, power or an agent of a foreign power;
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(D) information which relates to, and is deemed necessary
to the ability of the United States to protect against sabotage
by a foreign power or an agent of a foreign power; or
(F,) information which relates to, and is deemed necessary
to the ability of the United States to protect against the
clandestine intelligence activities of an intelligence 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-
munication 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 targeting
that United States person, under circumstances in'whieh, a,
person has a reasonable expectation of 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
consent of any party thereto, where such acquisition. occurs
in the United'States while the communication is being trans-
mitted by wire;
(C) the intentional acquisition, by an electronic,'mechan-
ical, or other surveillance device, o f the contents of any radio
communication, under circumstances in. which, a person has
a reasonable expectation of privacy and a. warrant would he
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 surveil7avee device in the United States for monitor-
ing to acquire infornwtiov:, 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 A ttor-
ney General.
(8) "Minimisation procedures" means procedures wha.ch, are
reasonably designed to rn,inimise the acquisition,, retention, and
prohibit the die.eeminrrtion, except as provided for? in svb.se'tions
2626 (a) and (b), of any in f orma Lion concerning United States
persons without their consent that does not relate to the ability
of the United Statee-
(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;
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(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 conduct of foreign affairs shall not be
maintained in such a manner as to permit the retrieval of such
information by reference to a United States person, without his
consent, who was a party to a commzunication acquired pursuant
to this chapter; and i tlee target of the electronic surveillance
is a foreign power which qualifies as such solely on the basis that
it is an entity controlled and directed by a foreign government
or governments, and unless there is probable cause to believe that
a substantial number of the officers or employees of a foreign
government, or agents of a foreign power as defined in section
3521(b) (2) (B), procedures which are reasonably designed to
prevent the acquisition, retention, and dissemination of com-
m nications of unconsenting United States persons who are not
officers or executives of such entity responsible for those areas of
its activities which involve foreign intelligence information.
(9) United States person," means a citizen of the United States,
an alien lawfully admitted for permanent residence (as defined in
section 101(a) (~0) of the Immigration and Nationality Act),
an unincorporated association a substantial number of members
o/ 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.
(.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 8523 of this chapter, and a judge to whom an application
is made may grant an order, in con f ormiity with section 2525 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 in f ormation.
? 2523. Designation of judges authorized to grant orders for
electronic surveillance
(a) The Chief Justice of the United States shall publicly designate
seven district court judges, each of whom shall have jurisdiction to
hear applications for and grant orders approving electronic surveil-
lance anywhere within the United States under the procedures set
forth in this Chapter, except that no judge designated under this sub-
section shall have jurisdiction of the same application for electronic
surveillance under this chapter which has been denied previously by
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another judge designated under this subsection. If any judge so des-
ignated 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 o f 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) Proceedings under this chapter shall be conducted as expeditious-
ly as possible. The record of proceedings under this chapter, including
applications made and orders granted, shall be sealed and maintained
under security measures established by the Chief Justice in con-
sultation with the Attorney General and the Director of Central
Intelligence.
? 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 foreign power
as defined in section 252.1(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-
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Tense and appointed by the President with the advice and con-
sent of the Senate-
(A) that the information sought is foreign intelligence
information,;
(B) that the purpose of the surveillance is to obtain for-
eign intelligence 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
(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 25.21(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 2,521
(b) (6) and a statement whether physical entry is required to
effect the surveillance;
(9) a statement of the f acts 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 therea f ter.
(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 inf or-
mation as may be necessary to make the determinations required by
section 2525 01 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 parte order as requested or as modified
approving the electronic surveillance if he finds that-
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(1) the President has authorized the Attorney General to
approve 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 or 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 de fnition
Of minimization procedures under section 2821(b) (8) of this title ;
(5) the application which has been filed contains the descrip-
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) (F).
(b) An order approving an electronic surveillance under this sec-
tion 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 will 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 2.521(b) (1) (A), (Ti), or (C),
the metens 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 affect the surveillance;
(F) the period of time during which the electronic sur-
llance 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;
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(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
period specified in the certification required in section 2524(a) (7) (F),
or for one year, whichever is less. Extensions of 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.
(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-
ment of 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 i f a judge designated
pursuant to section 2523 of this chapter is informed by the Attor-
ney General or his designate at the tine 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 practicble, but not more than
t-vcnty-four hours after 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 in sought is obtained, when the ap-
plication for the order is denied, or a f ter 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,
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so
hearing or other proceeding in or before any court, grand jury,
department, office, agency, regulatory body, legislative conwmittee
or other authority of the United States, a State or political sub-
division thereof. A denial of the application made under this sub-
section may be reviewed as provided in section 2523.
? 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), or for the enforcement of the
criminal law if its use outweighs the possible harm to the national
security. No otherwise privileged communication obtained in accord-
ance with, or in violation of, the provisions of this chapter shall lose
its privileged character. No information acquired from an electronic
surveillance conducted pursuant to this chapter may be used or dis-
closed 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 o f the Attorney General.
(c) Whenever the Government intends to enter into evidence or
otherwise use or disclose in any trial, hearing, or other proceeding in
or before any court, department, officer, agency, 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 in f ormation.
(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
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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 bi an aggrieved person pursuant to
section 3501 of this title or any other statute or rule of the United
.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 paste 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
law suppress the information obtained or evidence derived from
tie 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.
(e) If an emergency employment of the electronic surveillance is
authorized under section 2525(d) and a subsequent order approving
the surveillance is not obtained, the judge shall cause to be served on
any United States person named in the application and on such other
United States persons subject to electronic surveillance as the judge
may determine in his discretion it is in the interest of justice to serve,
notice of-
( 1) the fact of the application;
(?0) 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.
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
tJongress with respect to the preceding calendar year-
(1) the total number of applications made for orders and ex-
tensions of orders approving electronic surveillance,, and
(0) the total number of such orders and extensions either
granted, modified, or denied.
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MINORITY VIEWS OF SENATOR JAMES A13OUREZK
After giving careful consideration to S. 1566, the Foreign Intel-
ligence Surveillance Act of 1977, I have reluctantly decided that I
cannot support this legislation in its present form.
I have reached this decision with great hesitancy, because I endorse
the goals of S. 1566-to bring electronic surveillance for foreign intel-
ligence purposes under the rule of law and to put to rest once and for
all the myth of some "inherent executive power" which, it, has been
alleged, superseded the clear mandate of the fourth Amendment to the
Constitution.
As to the latter point, S. 1566 is clearly superior to S. 3197, its pred-
ecessor from the 94th Congress. For years, Congress has struggled
with the question of a supposed inherent Presidential power in the
foreign intelligence sphere. Every recent administration has claimed
such a power and Congress explicitly recognized the possibility of such
an inherent power when it incorporated the "national security dis-
claimer" in title III of the Omnibus Crime Control and Safe Streets
Act of 1968.1
When the Ford administration proposed legislation to cover foreign
intelligence electronic surveillance in 1976, it nevertheless sought to
retain some vestige of this inherent; power. Although the Judiciary
Committee substantially amended the "Presidential Power" section of
S. 3197, the bill as reported by the committee last year did reflect the
demand of the Ford Administration that the proposed legislation not
completely foreclose the possibility of the President exercising this
supposed "constitutional power" in a narrow range of exceptional
circumstances. As was noted at that time :
It is worth emphasizing, as the congressional report indi-
cates, that section 2528 does not constitute either a conferral
or a recognition of any Presidential power to conduct war-
rantless electronic surveillance for foreign national security
purposes. Section 2528 simply disclaims congressional intent
to mandate the bill's warrant procedures in two possible situa-
tions involving surveillance by electronic, mechanical or other
technical devices.
Given their exclusion from the warrant requirement of this
legislation, the President may ultimately be found to have
power to authorize each of these kinds of surveillance without
judicial warrant. But even if such warrantless surveillances
were constitutional in the absence of congressional action,
Congress could impose a similar warrant procedure as the
required mode of conducting them, just as this bill mandates
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procedures for the forms of surveillance it covers. For now,
however, S. 3197 defers the exercise of congressional power
in regard to these additional areas of intelligence gathering.
In this subsection, S. 3197 stops short of asserting the reg-
ulatory power of Congress to its fullest extent?
I am pleased to note that the Judiciary Committee has, this year,
asserted its power to the fullest extent as regards electronic surveil-
lance within the United States. The committee has adopted statutory
language, with the full support of the Carter administration, which
makes it clear that, if enacted, the Congress does not recognize any
claim of inherent executive power to engage in electronic surveillance
within the United States and that S. 1566 and title III of the 1968
act represent "the exclusive means" by which such activities can be
conducted.
I regard this as a very positive action and commend President Carter
and Attorney General Bell for their farsighted efforts in this regard.
This is not the only improvement which S. 1566 makes over S. 3197.
As the committee report points out, this year's bill also brings within
its scope certain targeting activities of the National Security Agency
which were not covered by S. 3197. It also allows for a limited degree
of judicial review of the executive certifications relating to United
States citizens and resident aliens.
Again, I believe that the committee has acted wisely in adopting
these improvements to the legislation.
Yet despite these positive features, I believe that S. 1566 is fatally
defective in one important respect. It is the inclusion of this flawed
provision that prevents me from supporting the Foreign Intelligence
Surveillance Act.
I ain referring, of course, to the so-called, noncriminal standard
contained in subsection 2521(b) (2) (I3) (iii).
For the second year in a row, the Justice Department has prevailed
on the committee to include in this legislation a, provision that would
allow U.S. citizens and resident aliens who were not violating any
federal law to be targeted for foreign intelligence electronic surveil-
lance. This year's provision is, in fact, slightly broader than the one
finally adopted by the Senate Intelligence Committee last year in
that "collection" activities have been added to the definition in
5.1566.
During the committee hearings on the bill, I questioned the At-
torney General closely about the need for this noncriminal standard.
In addition, in response to a written inquiry he supplied me with six
hypothetical cases which, he asserted, pointed up the necessity of this
provision.3
After carefully reviewing both the oral testimony and written sub-
missions on the question, however, I have not been convinced that this
controversial provision is necessary, wise, or, most importantly, con-
sistent with the Constitution.
2 Rcpt. 94-1031, "Senate Committee on the Judiciary. Foreign Intelligence Surveillance
Aet of 1976, Additional Views of Senators Abourezk, Hart and Slathias," 94th Coug., 2d
seas.. 76 (1976).
3 As an appendix, I have attached both the Justice Department's hypotheticals and an
analysis of each prepared by the Washington Office of the American Civil Liberties Union.
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Let me make it clear that my opposition does not stem from a belief
that this noncriminal standard is overly broad. Nor do I believe that its
inclusion will result in the wholesome abuses of electronic surveillance
that have occurred in the past.
It is clear from any fair reading of subsection 2521(b) (2) (B) (iii)
that it has been drafted as narrowly as possible.
Yet, the fact remains that this provision is in direct conflict with my
belief that the 4th Amendment requires a showing of probable cause
that a criminal offense has been, or is about to be, committed before an
American citizen can be subjected to the pervasive type of search which
electronic surveillance entails. I believe, as the Church committee
found, that "as a matter of principle ... an American ought not to
be targeted for surveillance unless there is probable cause to believe that
he may violate the law." 4
Exposing Americans to such risk should be limited to situations
where the alleged activity is sufficiently harmful to the national secu-
rity to have been made a Federal offense.
It was principally this provision which prevented me from support-
ing S. 1566 in the Judiciary Committee. I believe that there is some
cause for hope, however, that before this bill is scheduled for action by
the full Senate, some compromise may be reached on this issue.
Attorney General Bell has already indicated that the Justice De-
partment intends to propose statutory revisions to the espionage law
intended to cover those types of intelligence activities which are de-
signed to be covered by the non-criminal standard of S. 1566. If this
were done, of course, there would be no need for subsection 2511(b)
(2) (B) (iii).
A more likely short-term solution, however, might involve revising
that provision of the bill so that it provides the flexibility needed by
our intelligence agencies while at the same time protecting the consti-
tutional liberties of our citizens.
I believe that such a formulation-some middle ground which will
serve both purposes-can be found.
For my part, I intend to work toward that end. At the committee
markup of S. 1566 on October 5, I withdrew my amendment to strike
the noncriminal standard in order to provide a more neutral frame-
work for continued discussions with representatives of the Justice
Department on this matter. It is my hope that the Attorney General
will be responsive to this invitation and will join us in attempting to
reach some accommodation on this difficult and important issue.
Report 94-755 "Senate Select Committee to Study Governmental Operations With
Respect to intelligence Activities, Final Report, Book II intelligence Activities and the
Rights of Americans," 94th Congress, 2d Session, 325 (1976).
0
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