August 2, 2006
Senate Judiciary Chairman Arlen Specter has introduced Senate bill S. 2435, which would allow the executive branch to submit applications for wide-ranging electronic surveillance to the FISA intelligence court. Specter’s bill is aimed at resolving the impasse between Congress and the executive branch over whether the president has “inherent power” to authorize foreign intelligence surveillance that includes US persons, without judicial approval.
Specter holds that his bill makes wide-ranging surveillance programs like the president’s “Terrorist Surveillance Program” constitutional, since they would be approved by a judge, although under a more lax standard than that required for criminal wiretaps. Critics of the bill see it as rubber-stamp approval for broad-based, secretive surveillance, with minimal oversight.
Currently, the FISA court can approve surveillance if a submitted affidavit shows probable cause that a specific individual is an agent of a foreign power. The Specter bill would allow electronic eavesdropping (including eavesdropping on US citizens) for foreign intelligence purposes, even if all of the parties involved in the surveillance were unknown at the time that the application was submitted.
Highlights of the bill are summarized below:
In a preamble section, the bill cites several court cases, including “Youngstown Sheet and Tube,” in order to establish the authority of Congress to pass laws regarding foreign intelligence gathering that involves US persons. The preamble cites the “Youngstown” concurrence, as it notes that the power of the executive branch is at its lowest ebb when it acts without the express consent of the legislative branch.
The bill authorizes electronic surveillance in order:
• `(A) to gather foreign intelligence information or to protect against international terrorism or clandestine intelligence activities by obtaining the substance of or information regarding electronic communications sent by, received by, or intended to be received by a foreign power, an agent or agents of a foreign power, or a person or persons who have had communication with a foreign power seeking to commit an act of international terrorism or clandestine intelligence activities against the United States;
The bill allows the Attorney General to submit an application for surveillance in circumstances:
• `(B) where it is not feasible to name every person or address every location to be subjected to electronic surveillance; and
• `(C) where effective gathering of foreign intelligence information requires an extended period of electronic surveillance;
The bill empowers the FISA court to process these surveillance applications, and to turn down requests if they choose.
If granted, the court’s surveillance orders would authorize electronic eavesdropping for 45 days. After the expiration of the 45 day period, the Attorney General would be able to re-apply for a renewal of surveillance authority for an unlimited number of times.
Court orders granted under this authority would be required for interceptions of content only. They would not be required for time/date, or other “third party” information.
The bill explicitly allows the Attorney General to submit an application for the current “Terrorist Surveillance Program.”
Applications for eavesdropping authorization will include the following criteria:
• `(a) IN GENERAL- Each application for approval of an electronic surveillance program under this title shall–
• `(1) be made by the Attorney General;
• `(2) include a statement of the authority conferred on the Attorney General by the President of the United States;
• `(3) include a statement setting forth the legal basis for the conclusion by the Attorney General that the electronic surveillance program is consistent with the requirements of the Constitution of the United States;
• `(4) certify that the information sought cannot reasonably be obtained by conventional investigative techniques or through an application under section 104;
• `(5) include the name, if known, identity, or description of the foreign power or agent of a foreign power seeking to commit an act of international terrorism or clandestine intelligence activities against the United States that the electronic surveillance program seeks to monitor or detect;
• `(6) include a statement of the means and operational procedures by which the surveillance will be executed and effected;
• `(7) include a statement of the facts and circumstances relied upon by the Attorney General to justify the belief that at least 1 of the participants in the communications to be intercepted by the electronic surveillance program will be the foreign power or agent of a foreign power that is specified under paragraph (5), or a person who has had communication with the foreign power or agent of a foreign power that is specified under paragraph (5), and is seeking to commit an act of international terrorism or clandestine intelligence activities against the United States;
• `(8) include a statement of the proposed minimization procedures;
• `(9) include a detailed description of the nature of the information sought and the type of communication to be intercepted by the electronic surveillance program;
• `(10) include an estimate of the number of communications to be intercepted by the electronic surveillance program during the requested authorization period;
• `(11) specify the date that the electronic surveillance program that is the subject of the application was initiated, if it was initiated before submission of the application;
• `(12) certify that any electronic surveillance of a person in the United States under this title shall cease 45 days after the date of the authorization, unless the Government has obtained judicial authorization for continued surveillance of the person in the United States under section 104 or another Federal statute;
• `(13) include a statement of the facts concerning all previous applications that have been made to the Foreign Intelligence Surveillance Court under this title involving the electronic surveillance program in the application, including the minimization procedures and the means and operational procedures proposed, and the Foreign Intelligence Surveillance Court’s decision on each previous application; and
• `(14) include a statement of the facts concerning the implementation of the electronic surveillance program described in the application, including, for any period of operation of the program authorized at least 45 days prior to the date of submission of the application–
• `(A) the minimization procedures implemented;
• `(B) the means and operational procedures by which the surveillance was executed and effected;
• `(C) the number of communications subjected to the electronic surveillance program;
• `(D) the identity, if known, or a description of any United States person whose communications sent or received in the United States were intercepted by the electronic surveillance program; and
• `(E) a description of the foreign intelligence information obtained through the electronic surveillance program.
• `(b) ADDITIONAL INFORMATION- The Foreign Intelligence Surveillance Court may require the Attorney General to furnish such other information as may be necessary to make a determination under section 704.’