FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1977 MR. KENNEDY, MR. PRESIDENT, TODAY I AM INTRODUCING LEGISLATION - ENDORSED

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80S01268A000200010012-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 12
• Document Creation Date: December 20, 2016
• Document Release Date: February 22, 2006
• Sequence Number: 12
• Publication Date: May 18, 1977
• Content Type: OPEN

5.7856 Approved For RelCWQ 9 ,A I Q 103f "200010012-8 uv 18. 1.977
BOARD OF DIRECTORS; COMPOSITION SEC. 10. The corporation, and its officers, EXECUTIVE RIGHT TO NAME, EMBLEMS, SEALS,
RESPONSIBILITIES ; directors, and duly appointed agents as such, AND BADGES
BEG. 7. (a) Upon enactment of this Act the s shall ntribute to or otherwise support SEC. 17. The corporation shall. have the sole
membership (a) tl the initial enactment h directors office. any political party or candidate for and exclusive right to use the name Gold
m the corporation shall consist of the tor- Star Wives of America. The corporation shall
o the cor r ati LIABILITY FOR ACTS OF OFFICERS AND AGENTS have the exclusive and sole right to use, or
Mrs. Edith ,V. Knowles, Post Office Box SEC. 11. The corporation shall be liable for to allow or refuse the use of, such emblems,
1703, Albany, Georgia 31702; the acts of its officers and agents when acting seals, and badges as have heretofore been
Mrs. Pauline T. Bartsch, 9 East Narberth within the scope of their authority. used by the corporation referred to in section
Terrace; Collingswood, New Jersey 08108; COMPREHENSIVE PRIVILEGES 18 in carrying out its program. Nothing in
Mrs. Geraldine B. Chittick, Post Office Box this Act shall interfere or conflict with estab-
306, Frankfort, Indiana 46041; SEC. 12. Such provisions, privileges, and lashed or vested rights.
prerogatives as have been granted heretofore
. Mrs. Joy Dove, 4224 Chowen Avenue South, to other national veterans' organizations by TRANSFER OF ASSETS
MInne apolis, Minnesota 55410; virtue of their being incorporated by Con- SEC. 18. The corporation may acquire the
Mrs. Jeanette B. Early, 5314 Yorkwood, gress are hereby granted and accrue to the cozrpo of ed; the chartered Star Wives of America, Ia-
In-
Houston, Texas 77016; Gold Star Wives of America. nistion In the State as a nonprofit
upon Mary R. Galotta, 117 Pine Street, charging in the State of New York, upon the
Lowell, Massachusetts 01851; PROHIBITION AGAINST ISSUANCE OF STOCK OR or satisfactorily providing for the
Mrs. Marie E, Gammill, 4330 East Eigh- PAYMENT OF DIVIDENDS payment and discharge of all of the liability
teenth Avenue, Denver, Colorado 80220; SEC. 13. The corporation shall have no of such corporation and upon complying with
Mrs. Franc F. Gray, 6901 Penn Avenue power to issue any shares of stock nor to de- all laws of the State of New York applicable
South, Apartment 204, Richfield, Minnesota clare nor pay any dividends. thereto.
55423; BOOKS AND RECORDS; INSPECTION RESERVATION OF RIGHT TO AMEND OR
Mrs. Darlene McDonald, 842 N.N Karlov SEC. 14. The corporation shall keep correct
Avenue, Chicago, Illinois 60651; REPEAL CHAPTER
Avenue, Marie B. Palmer, 4294 Nimons Street, and complete books and records of account SEC. 19. The right to alter, amend, or repeal
OrlandoMrs, Florida 3alme and shall keep minutes of the proceedings this Act is hereby expressly reserved.
Mrs, 3 Patterson, 320 Penwood of its members, board of directors; and com-
Road, Borr Spring, Maryland 20202; mittees having any of the authority of the By Mr. KENNEDY (for himself,
Mrs. Peggy Simonfy, 107 d 2090 , board of directors; and it shall also keep at Mr. EASTLAND, Mr. MCCLELLAN,
Fairview, , Massachusetts 01020; Mandalay Road its principal office a record of the names and
Mrs. Massachusetts
D. Spillman, s 020; addresses of its members entitled to vote. All Mr. NELSON, Mr. INOUYE, Mr.
Street Mrs. Johnnie a D. 3145 Steele books and records of the corporation may MATHIAS, Mr. BAYt1, and Mr.
Mts. Denver, G. Stewart, 80205- be inspected by any member entitled to vote, THURMOND) :
Drive, San Antonio, tw, 138 Devonshire or his agent or attorney, for any proper pur- S. 1566. A bill to amend title 18, United
Mrs. Odessa Wyo, Te, xas tNorth Hammond, pose, at any reasonable time. States Code, to authorize applications
Oklahoma City, Oklahoma 73132; AUDIT OF FINANCIAL TRANSACTIONS for a court order approving the use of
Mrs. Larue Yessen, 1099 East Fifty-First SEC. 15. (a) The accounts of the corpora- electronic surveillance to obtain foreign
Street, Brooklyn, New York 11234. tion shall be audited annually, in accordance telligence information; to the Commit-
Mrs. Lavone Tueting, 5325 Beard Avenue with generally accepted auditing standard on the Judiciary;
and, if and when
South, Minneapolis. Minnesota. 5Fain by independent. certified
ubli
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In such manner (including the filling of the United States. The audit shall be con- FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
vacancies) and shall serve for such term a
ducted at the place or
laces wh
1
th
p
ere
977
s
e ac-
may be prescribed in the constitution and by- counts of the corporation are normally kept. Mr. KENNEDY. Mr. President, today
laws of the corporation. All books, accounts, financial records, reports, j introducing The board of directors shall he the files, and all other nanera thi?~~ am g legislation.-endorsed
aurmg the intervals between corporation necessary to facilitate the audit shall be hick would at long last place foreign
meetings, be responsible for the general poli- made available to the person or persons con- ntelllgeriCe electronic surveillance
under
ties and program of the corporation. The ducting the audit; and full facilities for the rule of law. The legislation, which has
board shall be responsible for all finance, verifying transactions with the balances or broad bipartisan support, requires that
OFFICERS; ELECTION OF OFFICERS securities held by depositories, fiscal agents, a judicial warrant be secured before the
SEC. 8. (a) The officers of the cos oration and custodians shall be afforded to such per- Government may engage in electronic
p son or persons. surveillance in the United States for pur-
shall be a chairman of the board, a president, (b) A report of such audit shall be sub-
a vice president, a secretary, and a treasurer. matted to the Congress not later than six poses a obtIivi view foreign first step in
The duties of the officers shall be as pre- months following the close of the fiscal year information. I view it as the first step in
scribed in the constitution and bylaws of the for which the audit was made. The report the ongoing effort of this administration
corporation. Other officer positions may be shall set forth the scope of the audit and and the Congress to place meaningful
created as prescribed in the constitution and shall include such statements as are neces- restrictions on the largely unchecked
bylaws of the corporation. sary to present fairly the corporation's assets power (b) Officers shall be elected annually at and liabilities, surplus or deficit with an is, I h of the intelligence gnal of what
It
the annual meeting ofr the corporation. analysis of the changes therein during the is, hope, an important signal of what
USE OF INCOME; LOANS TO Ol!'FICARS, DIREC- year, supplemented in reasonable detail by is yet to come in the way of effective FBI
76RS,, OR EMPLOYEES a statement of the corporation's income and and CIA charter reform.
SEC. 9. (a) No part of the income or assets expenses during the year including the re- This bill is not a hastily conceived
of the corporation shall In to any member, sults of any trading, manufacturing, pub- idea. During the past 6 years Senator
Officer, director, or be distributable to any lishing, or other commercial-type endeavor NELSON, Senator MATHIAS. and I have
such person otherwise than upon dissolution carried on by the corporation, together with periodically introduced legislation to
or final liquidation of the corporation as the independent auditor's opinion of those regulate foreign intelligence electronic
provided in section 16 of this Act. Nothing in statements. The reports shall not be printed
this subsection, however, shall be construed as a public document. surveillance. r rneillanc with the h Since 197
e sk
I have ent in D to prevent the payment of compensation to LIQUIDATION an effort the a of sec t in
officers of the corporation in amounts ap- SEC. 16. Upon final dissolution of liquida- u no breach ctr mask r shanty
proved by the executive committee of the tion of the corporation, and after discharge surrounding the oletronic surveillance
o oration, or satisfaction of all outstanding obligations
shall not m ake loans and have process. Various hearings
The corporation liabilities, the remaining assets of the h have been en held d over the years by the Sub-
:t8 its Officers, directors, or employees. Any corporation may be distributed in accordance committee on Administrative Practice
director who votes for o I. assents to the m
ak- with the determination of the board of direc- and Procedure and other congressional
ins of such loans shall be jointly and sever- tors of the Corporation and in compliance p Committees all pointing to the pain con-
=(o) nacn member of the corporation, other ally liable to the corporation for the amount with the constitution and bylaws of the cor-
than honorary and associate'-members, shall of such loan until the repayment thereof. poration and all Federal and State laws ap-
have the right to vote in accordance with the Nn NPOLiTICA N
., _
RE -
l t
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 May 18, 1977
Approved . gglMgWP31UC BSDM 6
I ask unanimous consent that this bill the to pl suardjandie justice, to and dt-
There be printed in the RECORD. mocracy for which members of our armed
being no objection, the bill was services fought, and died;
ordered to be printed in the RECORD, as (4) to provide the benefits of a happy,
follows: healthful, and wholesome life to minor chil-
S. 1561 dren of persons who died in the service of
A bill to incorporate the. Gold Star Wives our co un nt P
of America (5) promote activities and interests
Be it enacted by the Senate and House designed to foster among its members the
of Representatives of the United States of proper mental attitude to face the future
America in Congress assembled, That the with courage; and
r6) to aid_ whenever necessary, widows and
country. Another aim is to promote ac-
tivities and interests designed to foster
among its members the proper mental
attitude to fa' the future with courage.
Direct aid to widows and children of
former service is likewise an obliga-
tion which this rganization has as-
For lack of a F al charter the or-
ganization has repea y been hindered
and prevented from gi the assistance
facts at military bases resulted in
auiries going to the Department of
these occasions would indicate that the
only way the organization could acquire
the respect and stature so necessary to
,...,.,duct its activit es is through. cangres-
sional recognition. Mil
Membel shin continues to be nation- t,, a
though the organization was formed by Mrs. J
World War II widows, the membership Houston,
active members. During the Vietnam South, Apartment
conflict membership grew and the num- 55423;
been hampered by its lack of a national Drive, San Antonio, Texas 78209;
_s _L < In re hin -11 the people who Mr. Odessa Wycoff, 7209 North
could 11a a been helpe-
?
Mr. President, I have carefully ex- Mrs. , Larue Brooklyn, Yessen, New 1099 York East Fif
11234;
Ono i~ eral Charters by subcommittees of the of Gold Star Wives of America (hereinaf
Senate and House Committees on the called the corporation) and by that na
methat/the Gold-Star Wives of Amer- sion and the power and limitations contained
ica, Inc., more than measures up to those in this Act.
required standards. It is clearly a na- COMPLETION OF ORGANIZATFON
tional permanent organization operating SEC. 2. A majority of the persons named in
in the public interest; the character of the first section of this Act is authorized to
this organization is such that chartering complete the organization of the corporation
by the Congress as it Federal corporation by the election of officers and employees, the
is the only appropriate form of incor- adoption of a constitution and bylaws, not
.. it . __ _ _ _ __ inconsistent with this Act, and the doing of
profit, nonpartisan organization devoted such he ie ,__
to civic and membership betterment; purpose. nated agent authorized to accept service of
and it aspires toE provide nationwide OBJECTS AND PURPOSES OF CORPORATION process for the corporation, and notice to or
SEC. 3. The objects and purposes of the service upon such agent, or mailed to the
or- services which cannot be adequately corporation shall be- business address of such agent, shall be
ganiZed without a nationally granted ted deemed notice to or service upon the cor-
charter. (1) to assist in upholding the Constitu- oration.
? tion and laws of the United States of Amer- p.
Mr. President I know of no other group ica, and to inculcate a sense of individual MEMBERSHIP; VOTING RIGHTS
more deserving of national incorporation obligation to the community, State, and SEC. 6. (a) Eligibility for membership in
than the Gold Star Wives of America. It Nation; the corporation and the rights and privileges
merits the national stature and corpo- (2) to honor the memory of those who of members shall, except as provided in this
rate structure required to achieve its made the supreme sacrifice in the service of Act, be determined as the constitution and
worthwhile goals. our country; bylaws of the corporation may provide.
8A000200010012-8 S 7855
Mrs. Itelia J. Butler, Yost omce nox oe to,
Albany, Georgia 31706;
Mrs. Carol DeVore, 4201 Nineteenth Avenue
South, Minneapolis, Minnesota 55407;
Mrs. Delores Peterson, Route No. 2, Box
21, St. Cloud, Florida 32769;
Collingswood, New Jersey 08108;
Geraldine B. Chittick, Post Office
Minnesota 55410;
tte B. Early, 5314 Yorkwood,
SEC. 4. The corporation shall have power-
(1) to sue and be sued, complain, and de-
fend in any court of competent jurisdiction;
(2) to adopt, alter and use a corporate
seal;
(3) to choose such officers, directors, trus-
tees, managers, agents, and employees as the
business of the corporation may require;
(4) to adopt, amend, and alter a constitu-
tion and bylaws, not inconsistent with the
laws of the United States or any State in
which the corporation is to operate, for the
management of its property and the regula-
tion of its affairs;
(5) to contract and be contracted with;
(6) to charge and collect membership dues,
subscription fees, and receive contributions
or grants of money or property to be devoted
to the carrying out of its purposes;
(7) to take and hold by lease, gilt, pur-
chase, grant, devise, bequest, or otherwise
any property, real or personal, necessary for
attaining the objects and carrying into effect
the purposes of the corporation, subject to
applicable provisions of law In any State (A)
governing the amount or kind of real and
personal property which may be held by, or
(B) otherwise limiting or controlling the
842 N. Karlov Ave- ownership of real or personal property by a
51; corporation operating in such State;
___ _ b and convey
real or personal property;
320 Penwood (9) to borrow money for the purposes of
20901; the corporation, issue bonds therefor, and
idalay' Road, secure the same by mortgage, subject to all
applicable provisions of Fedeal or State law;
45 Steele (10) to adopt, alter, use, and display such
emblems, seals, and badges as it may deter-
vonshire mine; and ., ,
and purposes of Inc corporation, and for such
rst purpose the corporation shall also have, in
addition to the foregoing in this section and
subsection, the rights, powers, duties, and
liabilities of the existing corporation referred
to in section 18 as far as they are not modi-
fied or superseded by this Act.
PRINCIPAL OFFICE; SCOPE OF ACTIVITIES;
DISTRICT OF COLUMBIA AGENT
EC. 5. (a) The principal office of the cor-
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elusion-the need for Congress to enact Z'nis nut goes a ivlig wwy ... ---. o
legislation establishing statutory pro- that balance. Like S. 3197, it provides de- method of written accountability within
cedures for the use of electronic surveil- tailed statutory restrictions on the power the executive branch. The co
-
issue
a
urve lla ce foreign
author lance to gather foreign intelligence intelligence of the Governnt to el ctronic engage
Its izing theusu ve llance o ly after making
information.
Last year the Senate came very close provisions are applicable to all such sur- certain detailed findings, and concluding re is pro
cause passing a comprehensive, with At bill States-the veillance bill does otncovere surveil- tthat hat theetarget of bheableele tronicosurveil-
in n this General Edward closely w with dad- lance conducted against American citi- lance is a foreign power or an agent of a
ministration, rt and r the S Levi, enenaate Ford al Select zens or foreign nationals abroad; such foreign power." This warrant require-
Committee it l Inwhich Su ed legislation, which I also support, is now ment guarantees at long last the type of
de- being drafted under the leadership of external control on executive branch de-
S. 397, a bill
warrant Intelligence,
procedure I introduced
tailed j cedurs a as a de- Senator BAYH. It limits such surveillance cisions to engage in electronics surveil-
pere jisite fn ore th to "foreign powers" or "agents of a for- lance which I and others have long advo-
telligence for onc surveillance. The e eign power" as defined in the bill. cated. The courts, not the executive, ulti-
major survece. American citizens and lawful resident mately rule on whether the surveillance
all major such surveillance lance of S. 3e be limited to required "for- that aliens, therefore, can be targets of elec- should occur. If the target is a designated
a r
eign powers" " and "agents of a foreign tronic surveillance only if: they are, first, foreign ize such power, the surveillance for u warrant p to 1 may year; author-
in
power"; a judicial warrant be secured knowingly engaged in "clandestine intel- all other cases a 90-da period a the
on the basis of a showing of "probable ligence activities which involve or will in- authorized. Extensions ensions may
cause" that the target was either an volve a violation" of the criminal law; maximum ranted only h ri d additional may be after "agent of a foreign power" or the for- second, knowingly engaged in activities g
eign power itself; certain designated "that involve or will involve sabotage or tion is made to the court. As in S. 3197,
executive branch officials certify under terrorism for or on behalf of a foreign an emergency warrantless surveillance is
oath and in writing to the court that the power"; or third, "pursuant to the di- limited to a maximum of 24 hours, after
information sought was "foreign intelli- rection of an intelligence service or in- which time a warrant must be secured.
gence information"; a detailed minimi- telligence network of a foreign power' Mr. President, the legislation intro-
zation procedure be spelled out in each are knowingly and secretly collecting or duced today improves S. 3197 in a num-
application to the court, thereby elimi- transmitting foreign intelligence infor- ber of important respects. Most impor-
nating extraneous or irrelevant informa- mation in a manner harmful to the se- tantly, the bill repeals the so-called
tion from being obtained by those en- curity of the United States. All other executive "inherent power" disclaimer
gaged in the surveillance; warrantless persons-such as illegal aliens or foreign clause currently found in section 2511(3)
emergency electronic ' surveillance be visitors-can be targets only if they are of title 18 of the United States Code,
limited to a maximum'of 24 hours, after either officers or employees of a foreign and provides instead that the statutory
which time a warrant had to be secured. power or are "knowingly engaging in procedures of this legislation, and title 18,
This bill-a major achievement of At- clandestine intelligence activities for or "shall be the exclusive means" for con-
torney General Edward Levi-was re- on behalf of a foreign power under cir- ducting electronic surveillance in the
ferred to the Senate Judiciary Commit- cumstances which indicate that such ac- United States. Overseas surveillance is
tee where, after important improve- tivities would be harmful to the secu- not covered by this legislation. The
rity of the United States." highly controversial disclaimer has often
ported meats by were a made, lopsided d was vote of 11 to favorably 1. re- It These statutory provisions which de- been cited as evidence of a congressional
was then referred to the Senate Select fine the targets who may be subjected to ratification ation o of po the wer to Presidedenntt''s inherent
s in elect
Committee on Intelligence where, un- foreign intelligence electronic surveil- constitutional nto obtain
the impressive leadership of Sena- lance constitute the crux of this legisla- foreign surveillance in order information obtain
tors INOUYE and BAYH, detailed hearings tion. They relegate to the past the wire- tial or i to the intelligence l national isenform. Despite tn-
were_,held and the bill was further im- tapping abuses of recent years. Neither admonition of the Supreme Courtin the
proved. That committee favorably re- Martin Luther King, Jr., Joseph Kraft, Keith case that the language of the the
re-
ported the bill by a vote of 13 to 1. Un- within such narrow defintionsssibly fall claimer was "neutral," and did not re-
show otely, despite this overwhelming fleet any such congressional recognition
show of support last year by two Senate But the bill also sets out specific stand- fl the section has been
committees, time ran out before the full inherent power,
ards and procedures which must be fol- a major source of ,the echo By sbee -
Senate could act on the legislation. lowed in commencing such surveillance mg section 2511(3) and expressly stating
Mr. President, this legislation picks up against "foreign powers" or "agents of a that the statutory warrant procedures
where S. 3197 left off. Using that bill as a foreign power." "Foreign intelligence in- spelled out in the law must be followed es
foundation, it builds in further important formation" and "electronic surveillance" conducting electronic suteillanco a the
improvements and safeguards. It is the are carefully defined, statutory mini- United States, this legislation cads the
the
culmination of past efforts and present mization procedures are spelled out and, 8-yea ongoing debate over the meaning
hopes. It seeks to end the all too common most importantly, a judicial warrant and scope of the inherent power dis-
abuses of recent history by providing must be secured before engaging in such claimer clause.
substantive and Procedural limitations surveillance. Under this warrant proce- The bill also makes important im-
kestiimporn prom-
the the heretofore unchecked power of dure the Government applies to one of r ems bill also
the executive branch to engage in elec- seven special district court judges for ppov. ntsr S. the the catio gad no 3197
Ironic surveillance for national security an order to engage in such surveillance. authority e review the validity of tno
purposes. The Attorney General must first approve executive branch cetfica lids Todahe
I have always had grave reservations each application. The application must legislation, however, gives the reviewing
about, the Government's role in engaging state, inter alia, the identity or a de- court the power and authority to
in electronic surveillance, especially wire- -scription of the target, information that t the powercaand in cases involv-
tapping. The complexity of the problem the target is "a foreign power or an agent court ex ine th r cat or lawful resident
aliens and n citizs awful resident if
must to
must not be underestimated. Electronic of a foreign power," what proposed ing en
surveillance can be a useful tool for the minimization procedures will be em- ale statmenreiz en o therein are tlonrly
Government's gathering of certain kinds ployed, and a designation or description erroneous.
of information; yet, if abused, it can also of the information sought.
constitute a particularly indiscriminate In addition, a designated executive Finally, the scope of this bill is broader
and penetrating invasion of the privacy branch official must certify to the court than S. 3197, encompassing electronic
of our citizens. My objective over the past "that the information sought is foreign surveillance conducted in the United
6 years has been to reach some kind of intelligence information" and "that the States by the National Security Agency-
fair balance That will protect the security purpose of the surveillance is to obtain S. 3197 exempted all NSA activities.
of the United'States without infringing foreign intelligence information." This The bill is by no means perfect in all
on our citizens' human liberties and provision provides an internal check on respects. In some areas it retreats from
rights. arbitrary Government approval of elec- the provisions of S. 3197. I must candidly
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CONGRESSIONAL RECORD -SENATE May 18,. 1977
acknowledge that [ harbor my own seri-
ous reservations as to certain sections of
the bill. First, there remains the highly
controversial issue surrounding the non-
criminal standard and the extent to
which surveillance can be authorized to
investigate conduct which does not rise
to the level, of a' Federal crime. S. 3197
retained a provision which I reluctantly
agreed to which allowed the Government
to engage in electronic surveillance with-
out demonstrating "probable cause" that.
a crime was being committed. But the
bill limited this loophole to persons act-
ing at the direction of a foreign intelli-
gence network, who were knowingly and
secretly transmitting information to that
network where the information was
harmful to the security of the United
States. The bill I introduce today retains
this narrow noncriminal standard and, in
fact, expands it in those cases involving
illegal aliens or foreign visitors. I have
never been altogether satisfied with the
explanations offered by the Department
of Justice as to why a noncriminal stand-
ard is necessary at all, and I am particu-
larly troubled by the willingness of the
curreht administration to expand the
loophole beyond that thought necessary
by Attorney General Levi. Under any
plain.,lading of the statutory language,
It seems to me that the activities de-
scribed could effectively fall within the
ambit of our espionage and conspiracy
laws.
Another mjor question mark concern-
ing the bill involves 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 visi-
tors today's. legislation provides an ex-
panded noncriminal standard, does not
allow the court to look behind the--execu-
tive branch certification, and allows the
Government to use the information ob-
tained as a result of the surveillance for
whatever purpose it deems necessary.
The fourth. amendment of the Constitu-
tion speaks. in terms of protecting all
"persons"-not just American citizens
and lawful resident aliens-and to the
extent that this bill establishes differ-
ent standards and procedures for illegal
aliens and temporary foreign visitors, it
is open to criticism.
Finally, the detailed reporting require-
ments and congressional oversight pro-
visions found In S. 3197 are practically
nonexistent in this bill. One lesson
learned from the events and abuses of
recent years is the critical need for both
appropriate disclosure of the quantity
and scope of the surveillance engaged in,
and a renewed oversight commitment by
the Congress. Such congressional over-
sight is particularly important since, by
its very nature, foreign intelligence sur-
veillance must be conducted in secret.
This bilk reflects the need for such se-
crecy; judicial review Is limited to a
select panel and routine notice of such
surveillance to the target is avoided. For
these reasons effective Congressional
oversight is a sin qua non for any proper
implementation of the statute. Yet the
bill is completely silent on the role to be
played by the Congress in overseeing
compliance with its provisions. Fortu-
nately, the Justice Department has in-
formed me of its willingness to comply
with whatever oversight provisions are
written into the statute following hear-
ings by the Senate Judiciary Commit-
tee and Select Committee on Intelli-
gence.
Mr. President with this legislation we
near the end of a 6-year effort to establish
statutory safeguards in the area of for-
eign intelligence electronic surveillance.
With the enactment of this legislation-
which complements existing electronic
surveilalnce provisions found in title III
of the Safe Streets Act-no wiretapping
or electronic surveillance for whatever
.purpose, will be allowed in the United
States except as permitted by statute.
The bill provides the Senate with an en-
lightened starting point from which to
fashion final legislation. Despite my own
limited reservations with this bill, I re-
main even more uncomfortable leaving
the American people with no legislative
protections whatsoever governing na-
tional security wiretapping. I am not
committed to each word or subsection of
the bill. Some terms will need clarifica-
tion; some procedures will need refining;
some sections will undergo change. For
the past 4 months I have been involved
in lengthy negotiations with the Depart-
ment of Justice and the administration
in an effort to modify language and alter
various provisions. Major changes have
been agreed upon and more changes will
follow. That is what the legislative proc-
ess is all about.
Mr. President, the Congress has not
passed any major legislation dealing with
electronic surveillance since 1968. During
this long interim there have been too
many instances of abuse, too many ex-
amples of surveillance based on arbitrary
whim and caprice. This bill goes a long
way in satisfying the objections I and
others have expressed over the years.
Both the President and the Attorney
General are to be congratulated for their
constructive role in supporting this leg-
islation. I am confident that if the legis-
lative deliberations concerning this bill
are conducted in a similar spirit of coop-
eration, a workable, just piece of legisla-
tion will be the result.
Mr. President, Senate hearings on this
important legislation are already sched-
uled in the Senate Judiciary Committee
for Monday, June 13. The bill will then
be referred to the Senate Select Com-
mittee on Intelligence.
I ask unanimous consent that the bill
be printed in the RECORD.
There being no objection, the bill was
ordered to be printed in the RECORD, as
follows:
S. 1566
A bill to amend title 18, United States Code,
to authorize applications for a court order
approving the use of electronic surveillance
to obtain foreign intelligence information
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled, That this Act
may be cited as the "Foreign Intelligence
Surveillance Act of 1977".
SEC. 2. Title 18, United States Code, is
amended by adding a new chapter after
chapter 119 as follows:
"Chapter 120.-ELECTRONIC SURVEIL-
LANCE WITHIN THE UNITED STATES
FOR FOREIGN INTELLIGENCE PUR-
POSES
"Sec.
"? 2521. Definitions.
4522. Authorization for electronic surveil-
lance for foreign intelligence pur-
poses.
"2523. Designation of judges authorized to
grant orders for electronic surveil-
lance.
"2624. Application for an order.
2525. Issuance of an order.
2626. 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 com-
ponent thereof, whether or not recognized
by the United States;
"(B) a faction of a foreign nation or na-
tions, not substantially composed of United
States persons;
"(C) an entity, which is openly acknowl-
edged by a foreign government or govern-
ments to be directed and controlled by such
foreign government or governments;
"(D) a foreign-based terrorist group;
"(E) a foreign-based political organiza-
tion, not substantially composed of United
States persons; or
"(F) an entity which is directed and con-
trolled by a foreign government or govern-
ments.
"(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 sec-
tion 101 (a) (20) of the Immigration and Na-
tiona:ity Act), who--
"(I) is an officer or employee of a foreign
power;
"(ii) knowingly engages in clandestine in-
telligence activities for or on behalf of a for-
eign power under circumstances which indi-
cate that such activities would be harmful
to the security of the United States; or
"(iii) conspires with or knowingly aids or
abets a person described in paragraph (if)
above.
"(B) any person who-
"(f) knowingly engages in clandestine in-
telligence activities for or on behalf of a for-
eign 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 in-
telligence service or intelligence network of
a foreign power, knowingly collects or trans-
mits information or material to an intelli-
gence service or intelligence network of a
foreign power in a manner intended to con-
ceal the nature of such information or ma-
terial or the fact of such transmission or col-
lection, under circumstances which Indicate
the transmission of such Information or ma-
terial would be harmful to the security of the
United States, or that lack of knowledge by
the United States of such collection or trans-
mission would be harmful to the security of
the United States; or
"(iv) conspires with or knowingly aids or
abets any person engaged in activities de-
scribed 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
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 May 18, 1977
Approved,Eftoa*A0,lttdb-S[ A 68A000200010012-8 S 59
the laws of the United States or 6f any State
if committed within its jurisdiction; and
"(B) appear to be intended-
"(1) to intimidate or coerce the civilian
population,
"(ii) to influence the policy of a govern-
ment by intimidation or coercion, or ,
"(iii) to affect the conduct of a govern-
ment by assassination 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 foreign power or an agent of a foreign
power;
1 11 (B) information with respect to a foreign
power or foreign territory, which relates to,
and because of its importance is deemed es-
sential 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 for-
eign power or an agent of a foreign power;
"(D) information which relates to, and is
deemed necessary to the ability of the a a United
States to protect against sabotage
power or an agent of a foreign power;
or
that does not relate to the ability of the shall have jurisdiction of the same appliea-
United States- tion for electronic surveillance under this
"(A) to protect itself against actual or chapter which has been denied previously ted potential attack or other grave hostile acts by another judged a designades gun Belies,
power; foreign power or an agent of a foreign application for an order authorizing elec-
po
"(B) to provide for the national defense tronic surveillance under this chapter, such
or security of the Nation; judge shall provide immediately for the rec-reason "(C) to provide for the conduct of the for- his a written statement motion each the United decision and, on of eign affairs of the United States;
"(D) to protect against terrorism by a States, the record shall be transmitted, under
foreign power or an agent of a foreign seal, to the special court of review estab-
li ',-din subsection (b).
power;
(E) to protect against sabotage by a
foreign power or an agent of a foreign power;
to protect against the clandestine
01'., (F)
intelligence activities 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 main-
tained in such a manner as to permit
reference
b
y
retrieval of such information
to a United States person, without his con-
sent, who was a party to a communication
acquired pursuant to this chapter; and if
the 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 a probable
cause to believe that a substantial number
of the officers or executives of such entity
are officers or employees of a substantial
number of the officers or executives of such
entity are officers or employees of a foreign
government, or agents of a foreign power as
defined in section 2521(b)(2)(B), pro-
cedures which are reasonably designed to
prevent the acquisition, retention, and dis-
semination of communications of uncon-
senting United States persons who are not
officers 1 f" orthoseuSieas of its activities which
"(E) information which relates to, and is
deemed necessary to the ability of the United
States to protect against the clandestine in-
telligence activities of an intelligence serv-
ice or network of a foreign power or an
agent of a foreign power;
"(6) 'Electronic surveilliance' means-
"(A) the acquisition by an electronic, me-
chanical, or other surveillance device of the
contents of any wire or radio communication
sent by or intended to be received by a par-
ticular,, known United States person who is
Inthe United States, where the contents
are acquired by intentionally targeting that
United States person, under circumstances in
which a person has a reasonable expectation
of privacy and a warrant would be required
for law enforcement purposes;
"(B) the acquisition by an electronic, including corporations which are forpign
mechanical, or other surveillance device, of powers.
the contents of any wire communication to "(10) 'United States' when used ins 3eo-
or from a person in the United States, with- sense means all areas under the ter-
such the consent of any party thereto, where graphic
such acquisition occurs in the United states ritorial sovereignty of the United States, the
while the communication is being trans- Trust Territory of the Pacific Islands, and
mitted by wire; the Canal Zone.
"(C) the intentional acquisition, by an "? 2522. Authorization for electronic surveil-
electronic, mechanical, or other surveillance lance for foreign intelligence pur-
device, of the contents of any radio com- purposes
munfcation, under circumstances in which "Applications for a court order under this
a person has a reasonable expectation of chapter are authorized if the President has,
privacy and a warrant would be required for by written authorization, empowered the At-
law enforcement purposes, and where both torney General to approve applications to
the sender and all intended recipients are Federal judges having jurisdiction under
located within the United States; or section 2523 of this chapter, and a judge
"(D) the installation or use of an elec- to whom an application is made may grant
tronic, mechanical, or other surveillance de- an order, in conformity with section 2525 of
vice in the United States for monitoring to this chapter, approving electronic surveil-
acquire information, other than from a wire lance of a foreign power or an agent of a
or radio communication, under circum- foreign power for the purpose of obtaining
stances in which a person has a reasonable foreign intelligence information.
expectation of privacy and a warrant would 2523. Designation of judges authorized to
be required for law enforcement purposes. grgnon o for electronic t-
" (7) 'Attorney General' means the Attor- grace
ne General" of the United States (or Acting 11 The Chief Justice of the United States
Attorney General) or an Assistant Attorney ll s) The Chief designate
of th Unit d Cates
General specially designated in writing by publicly
the Attorney General. - judges, each of whom shall have jurisdiction
"(8) 'Minfrhization procedures' means pro- to hear applications for andlgran et orders ap-
eedures which are reasonably designed to proving, electronic
minimize the acquisition, retention, and dis- within the United States under the pro-
semination of any information concerning cedures set forth in this chapter, except that
United States persons. wthout their consent no judge designated under this subsection
s
"(b) The Chief Justice shall publicly des-
ignate 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 ap-
plication 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
statement of each reason for its decision Ind,
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 expeditiously as possible.
The record of proceedings under this chap-
ter, including applications made and orders
granted shall be sealed and maintained un-
der security measures established by the
Chief Justice in consultation with the At-
torney General and the Director of Central
Intelligence.
"$ 2524. Application for an order
"(a) Each application for an order ap-
proving electronic surveillance under this
in
e
ffi
l
c
r
o
chapter shall be made by a Federa
writing upon oath or affirmation to a judge
having jurisdiction under section 2523 of this
chapter. Each application shall require the
anvroval of the Attorney General based upon
target of the electronic surveuranu,
"(4) a statement of the facts and circum-
stances relied upon by the applicant to jus-
tify his belief that-
"(A) the target of the electronic surveil-
lance is a foreign power or an agent of a
foreign power; and at which
"(B) the facilities or the place
the electronic surveillance 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 minimi-
zation procedures;
"(6) when the target of the surveillance
is not a foreign power as defined In section
2521(b) (1) (A), (B) or (C), a detailed de-
scription of the nature of the information
sought;
"(7) a certification or certifications by the
Assistant to the President for National Se-
curity Affairs or an executive branch official
or officials designated by the President from
among those executive officers employed in
the area of national security or defense and
appointed by the President with the advice
and consent of the Senate-
"(A) that the information sought is for-
eign intelligence information;
"(B) that the purpose of the surveillance
is to obtain foreign intelligence information;
"(C) that such information cannot rea-
sonably be obtained by normal investigative
techniques;
Approved For Release 2006/03/1.7 : CIA-RDP80SO1268A000200010012-8
u "(9)V'United States person' means a citi- requirements of such application as set forth
zen of the United States, an alien lawfully in this chapter. It shall include the following
admitted for permanent residence (as de- information-
fined in section 101(a) (20) of the Immigra- 1) the identity of the Federal officer
tion and Nationality Act), an unincorpo- " (
ithe application;
rated association a substantial number of making the applicaty conferred on the At-
States of which are citizens of the United torney 2) the nut ri the Pried on the
or aliens lawfully admitted for per- United States and the approval of the At-
manent residence or a corporation which is torney General to make the application;
r,,,+. ?fit.
f the
- - + ran . ---,
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 S 7860 Approved For Rel p~ ~ ~~I ~S01 ffl200010012-8 May 18, 1977
"(D) including a designation of the type clearly erroneous on the basis of the state- tion 2523 of this chapter is informed by the
of foreign intelligence information being ment made under section 2524 (a) (7) (E) : Attorney General or his designate at the
sought according'to the categories described "(b) An order approving an electronic time of such authorization that the decision
in section 2521 (b) (b) ; . surveillance under this section shall- has been made to employ emergency elec-
"(E) when the target of the surveillance is "(1) specify- 'tronic surveillance and if an application in
riot a foreign power, as defined in section "(A) the identity or a description of the accordance with this chapter is made to that
2521(b)(1)(A), (B), or (C), including a target of the electronic surveillance; judge as soon as practicable, but not more
statement,of the basis for-the certification "(B) the nature and location of the facili- than twenty-four hours after the Attorney
that- ties-or the place at which the electronic sur- General authorizes such acquisition. If the
"(i) the information sought is the type of veillance will be directed; Attorney General authorizes such emergency
foreign intelligence, information designated; "(C) the type of information sought to be employment of eectronic surveillance, he
and acquired; shall require that the minimization proce-
(ii) such information cannot reasonably (D) when the target of the surveillance dures required by this chapter for the issu-
be obtained by normal investigative tech- is not a foreign power, as defined in section ance of a judicial order be followed. In the
niques; 2521 (b) (1) (A), (B), or (C), the means by absence of a judicial order approving such
' "(F) when the target of the surveillance which the electronic surveillance will be ef- electron surveillance, the surveillance shall
is a foreign power, as defined in section fected, and when the target is a foreign terminate when the information sought is
2521(b) (1) (A), (B), or (C), stating the pe- power, as defined in section 2521(b) (1) (A), obtained, when the application for the order
riod of time for, which the surveillance is re- (B), or (C), a designation of the type of is denied, or after the expiration of twenty-
quired to be maintained; electronic surveillance to be used according four hours from the time of authorization
"(8) when the, target of the surveillance is to the categories described in section 2521 by the Attorney General, whichever is ear-
not a foreign power, as defined in section (b) (6); and Best. In the event that such application for
2521(b) (1) (A), (B), or (C), a statement of "(E) the period of time during which the approval is denied, or in any other case
the means by which the surveillance will be electronic surveillance is approved; and where the electronic surveillance is termi-
effected, and when the target is a foreign "(2) direct- nated without an order having been issued,
power, as defined in section 2521(b) (1) (A) "(A) that the minimization procedures be no information obtained or evidence derived
(B) 9r (C), a designation of the type of followed; from such surveillance shall be received in
electronic surveillance to be used according "(B) that, upon the request of the appli- evidence or otherwise disclosed in any trial,
to the categories described in section 2621 cant, a specified communication or other hearing or other proceeding in or before any
(b) (6); common carrier, landlord, custodian, con- court, grand jury, department, office, agency,
"(9) a statement of the facts concerning tractor, or other specified person furnish regulatory body, legislative committee or
all previous applications that have been made the applicant forthwith any and all informa- other authority of the United States, a State
to any judge under this chapter involving tion, facilities, or technical assistance, neces- or political subdivision thereof, A denial of
any of the persons, facilities, or places specf- sary to accomplish the electronic surveillance the application made under this subsection
fie d in the application; and the action taken in such manner as will protect its secrecy may be reviewed as provided in section 2523.
on each previous application; and and produce a minimum of interference with "? 2526. Use of information
"(10) when the target of the surveillance the services that such carrier, landlord, cus-
is not a foreign power, as defined in section todian, contractor, or other person is pro- (a) Information concerning United States
2521(b) (1) (A), (B), or (C) a statement of viding that target of electronic surveillance; persons acquired from an electronic sur-
the period of time for which the electronic "(C) that such carrier, landlord, custodian, veillance conducted pursuant to this chap-
surveillance is required to be maintained. If or other person maintain under security pro- ter may be used and disclosed by Federal
the nature of the intelligence gathering is cedures approved by the Attorney General officers and employees without the consent
such that the approval of the use of elec- and the Director of Central Intelligence any of the United States person only for purposes
tronic surveillance under this chapter should records concerning the surveillance or the fps thheed enforcement 2 of the of the ri final la or
not automatically terminate when the de- aid furnished which such person wishes to for t crminal law if
scribed type of information has first been retain; its use outweighs the possible harm to the
obtained, a description of facts supporting "(D) that the applicant compensate, at national security No otherwise privileged
the belief that additional information of the the prevailing rate, such carrier, landlord, communication obtained in accordance with,
came type will be obtained thereafter. custodian, or other person for furnishing or in violation of, the provisions of this
other officer in connection with the applica- may approve an electronic surveillance not quired under this chapter shall not preclude
tion. targeted against a foreign power, as defined the retention and disclosure, for law en-
"(c) The judge may require the applicant in section 2521(b) (1) (A), (B), or (C), for forcement purposse, of any information
to furnish such other information as may the period necessary to achieve its purpose, which constitutes evidence of a crime if such
be necessary to make the determinations re- or for ninety days, whichever is less; an order disclosure is accompanied by a statement
quired by section 2525 of this chapter. under this section shall approve an elec- that such evidence, or any information de-
"12525. Issuance of an order tronic surveillance targeted against a foreign rived therefrom, may only be used in a crim-
p wer, as defined in section. 2521 (b) (1) (A), inal proceeding with the advance authoriza-
"(a) Upon an application made pursuant (B), or (C) for the period specified in the tion of the Attorney General.
to section,2524 of this title, the judge shall certification required in section 2524(a) (7) "(c) Whenever the Government intends
enter an ex parts order as requested or as (F), or for one year, whichever is less. Ex- to enter into evidence or otherwise use or
modified approving the electronic surveil- tensions of an order issued under this chap- disclose in any trial, hearing, or other pro-
lance if he finds that- ter may be granted on the same basis as an seeding in or before any court, department,
"(1) the President has authorized the At- original order upon an application for an officer, a"ency, or other authority of the
torney General to approve applications for extension made in the same manner as re- United States, any information obtained or
electronic surveillance for foreign Intelli- quired for an original application and after derived from an electronic surveillance, the
gence information; new findings required by subsection (a) of Government shall prior to the trial, hearing,
"(2) the application has been made by a this section. In connection with applications or other proceeding or at a reasonable time
,Federal officer and approved by the Attorney for extensions where the target is not a prior to an effort to so disclose or so use
General; - foreign power, the information or submit it in evidence
"(3) on the basis of the facts submitted , as defined ) , the j
In section 252 require notify the court in which the information
by the applicant there is probable cause to the (reppliicant or toCsubmit information, rma ion, ob is to be disclosed or used or, if the infor-
believe that- tamed pursuant to the original order or to mation is to be disclosed or used in or before
"(A) the target of the electronic surveil- any previous extensions, as may be necessary another authority, shall notify a court in
lance is a foreign power or an agent of a to make new findings of probable cause. the district wherein the information is to be
foreign power; and " (d) Notwithstanding any other provision so disclosed or so used that the Government "(B) the facilities or place at which the of this chapter when the Attorney General intends to so disclose or so use such infor-
electronic surveillance is directed are being reasonably determines that- motion. Whenever any court is so notified,
used, or a;e about to be used, by a foreign "(1) or whenever a motion is made pursuant to
power or an agent of a foreign power; respect to the ems oy situation exists with ? 3504 of this title, or any other statute or
(4) the yoreig of electronic sur- suppress evi-
proposed minimization prose- veillance to obtain foreign intelligence in-
dures meet the definition of minimization formation before an order authorizing such dente on the grounds that it was obtained
procedures
procedures under section 2521(b) (8) of this surveillance can with due diligence be ob_ derived from an unlawful electronic sur-
tamed, and veillance, the court, or where the motion is
`(5) the application which has been filed "(2) the factual basis for issuance of an the same district as the autho i a call n t-befoe another authority, in
. contains the description and certification or order under this chapter to a y, shall not-
certifications, specified in section 2524(a) (7) surveillance exists, he may authorizes the menttby affidavit asserts thatf an adversary
and, if the target is a United States person, emergency employment of electronic survell- hearing would harm the national security
the certification or certifications are not lance If a judge designated pursuant to sec- or the foreign affairs of the United States,
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0pS01268A000200010012-8
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May' 18, 1977 CONGRESSIONAL RECORD -SENATE S7 1
review to camera and ex parte the applica-` (4) by inserting "or any other form of
tion,order and so much of the transcript electronic surveillance, as defined in chap-
of the surveillance as may be necessary to ter 120," immediately before "in violation"
determine whether the surveillance was au- in paragraph (c) ;
thorized and conducted in a manner that (5) by inserting "or information obtained
did not violate any right afforded by the under color of law by any other form of
Constitution' and statutes of the United electronic surveillance as defined in chap-
States to the person aggrieved; provided that, ter 120" immediately after "any wire or oral
in making this determination, the court shall communication" in paragraph (d) ; and
disclose to the aggrieved person portions of (6) by inserting "or any other form of
the application, order, or transcript only electronic surveillance, as defined in chapter
where such disclosure is necessary for an 120," immediately before "in violation" in
accurate determination of the legality of paragraph (d).
the surveillance. If the court determines that (b) (1) Section 2511(2) (a) (i) is amended
the electronic surveillance of the person ag- by Inserting the words "or radio communize-
grieved was not lawfully authorized or con- tion" after the words "wire communication"
ducted, the court shall in accordance with and by inserting the words "or otherwise ac-
the requirements of law suppress that in- quire" after the word "intercept."
formation which was obtained or evidence (2) Section 2511(2) (a) (ii) is amended
derived unlawfully from the electronic sur- by inserting the words "or chapter 120"
veillance of the person aggrieved. after the second appearance of the word
"(d) If an emergency employment of the "chapter," and by striking the period at the
electronic surveillance is authorized under end thereof and adding the following: "or
section 2525(d) and D. subsequent order ap- engage in electronic surveillance, as defined
proving the surveillance is not obtained, the in chapter 120: Provided, however, That be-
judge shall cause to be served on any United fore-the information, facilities, or technical
States person named in the application and assistance may be provided, the investiga-
on such other United States persons subject tive or law enforcement officer shall furnish
to electronic surveillance as the judge may to the officer, employee, or agent of the car-
determine in hs discretion it is in the in- rier either-
terest of justic to serve, notice of- "(1) an order signed by the authorizing
"(1) the fact of the application; judge certifying that a court order direct-
"(2) the period of the surveillance; and ing such assistance has been issued; or
"(3) the fact that during the period infor- "(2) in the case of an emergency inter-
mation was or was not obtained. ception or electronic surveillance as provided
On an ex parts showing of good cause to for in section 2518(7) of this chapter or see-
the judge the serving of the notice required tion 2525(d) of chapter 120, a certification
by this subsection may be postponed or sus- under oath by investigative or law enforce-
pended for a period not to exceed ninety ment officer that the applicable statutory
days. Thereafter, on a further ex parte show- requirements have been met,
ing of good cause, the court shall forego
ordering the serving of the notice required
under this subsection.
11; 2527. Report of electronic surveillance
"In April of each year, the Attorney Gen-
eral shall report to the Administrative Office
of. the United States Courts and shall trans-
mit to Congress with respect to the preced-
ing calendar year-
"(1) the total number of applications
made for orders and extensions of orders ap-
proving electronic surveillance: and
"(2) the total number of such orders and
extensions either granted, modified, or
denied.
SEC. 3. The provisions of this Act and the
amendment made hereby shall become effec-
tive upon enactment: Provided, That, any
electronic surveillance approved by the At-
torney General to gather foreign Intelligence
information shall not be deemed unlawful
for failure to follow the procedures of chap-
ter 120, title 18, United States Code, if that
surveillance is terminated or an order ap-
proving that surveillance is obtained under
this chapter within ninety days following
the designation of the first judge pursuant
to section 2523 of chapter 120, title 18,
United States Code,
SEC, 4. Chapter 119 of title 18, United
States Code, is amended as follows:
(a) Section 2511(1) is amended-
(1) by inserting "or chapter 120 or with
respect to techniques used by law enforce-
ment officers not involving the interception
of wire or oral communications as otherwise
authorized by a search warrant or order of
a court of competent jurisdiction," immedi-
ately after "chapter" in the first sentence;
(2) by inserting a comma and "or, under
color of law,willfully engages in any other
form of electronic surveillance as defined in
chapter 120" immediately before the semi-
and setting forth the period of time for
which the electronic surveillance is author-
ized and describing the facilities from which
the communication is to be acquired. Any
violation of this subsection by a communica-
tion common carrier or an officer, employee,
or agency thereof, shall render the carrier
liable for the civil damages provided for in
section 2520."
(c) (1) Section 2511(2) (b) is amended by
inserting the words "or otherwise engage in
electronic surveillance, as defined in chapter
120," after the word "radio."
(2) Section 2511(2) (c) is amended by in-
serting the words "or engage in electronic
surveillance, as defined in chapter 120," after
the words "oral communication" and by in-
serting the words "or such surveillance"
after the last word in'the paragraph and
before the period.
(3) Section 2511(2) is amended by adding
at the end of the section the following pro-
visions:
"(e) Notwithstanding any other provision
of tms title or sections 605 or 606 of the
Communications Act of 1934, it shall not be
unlawful for an officer, employee, or agent
of the United States in the normal course
of his official duty to conduct electronic
surveillance as defined in section 2521(b) (6)
of chapter 120 without a court order for
the sole purpose of:
"(I) testing the capability of electronic
equipment, provided that the test period
shall be limited in extent and duration to
that necessary to determine the capability
of the equipment, that the content of any
communication acquired under this para-
graph shall be retained and used only for
the purpose of determining the capability
of such equipment, shall be disclosed only
to the persons conducting the test, and
colon in paragraph (a); shall be destroyed upon completion of the
(3) by inserting "or, information ob- testing, and that the test may exceed ninety
tained under color of law by any other form days only with the prior approval of the
of electronic surveillance as defined in chap- Attorney General; or
ter.1201' immediately after "contents of any (ii) determining the existence and ca-
wire or oral `communication" in paragraph pabillty of electronic surveillance equipment
(c); being used unlawfully, provided that such
electronic surveillance shall be limited in
extent and duration to that necessary to
determine the existence and capability of
such equipment, and that any information
acquired by such surveillance shall be used
only to enforce this chapter or section 605
of the Communications Act of 1934 or to
protect information from unlawful electronic
surveillance.
"(f) Nothing contained in this chapter, or
section 605 of the Communications Act of
1934 (47 U.S.C. ? 605) shall be deemed td
affect the acquisition by the United States
Government of foreign intelligence informa-
tion 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 chap-
ter 120 of this title, shall be the exclusive
means by which electronic surveillance, as
defined in section 2521(b) (6) of chapter 120,
and the interception of domestic wire and
oral communications may be conducted."
(d) Section 2611(3) is repealed.
(e) Section 2515 is amended by inserting
the words "or electronic surveillance, as de-
fined in chapter 120, has been conducted"
after the word "intercepted", by inserting
the words "or other information obtained
from electronic surveillance, as defined in
chapter 120," after the second appearance of
the word "communication", and by insert-
ing "or chapter 120" after the final appear-
ance of the word "chapter".
(f) Section 2518(1) is amended by insert-
ing the words "under this chapter" after the
word "communication".
(g) Section 2518(4) Is amended by insert-
Ing the words "under this chapter" after both
appearances of the words "wire or oral com-
munication".
(h) Section 2518(9) is amended by strik-
ing the word "intercepted" and inserting the
words "intercepted pursuant to this chap-
ter" after the word "communication".
(I) Section 2519(3) is amended by insert-
ing the words "pursuant to this chapter"
after the words "wire or oral communica-
tions" and after the words "granted or
denied".
(j) Section 2520 is amended by deleting
all before subsection (2) and inserting in
lieu thereof: "Any person other than a for-
eign 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 sub-
ject to electronic surveillance, as defined in
chapter 120, or whose wire or oral communi-
cation 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".
Mr. BAYH. Mr. President, the Foreign
Intelligence Surveillance Act of 1977 is
being introduced today with the support
of the administration. I am sponsoring
this bill because I believe that, with some
important changes, it will provide essen-
tial safeguards for the rights of Ameri-
cans. It will bring to an end the practice
of electronic surveillance without a ju-
dicial warrant for foreign intelligence
purposes in the United States. It will
also protect the rights of Americans in
the United States who engage in inter-
national communications. It will assert
the authority of the Congress to regulate
this type of intrusive, covert foreign in-
telligence surveillance by law; and its
standards and procedures will be the ex-
clusive means by which such surveillance
may be carried out. As a result, the ex-
ecutive branch can no longer rely on
claims of so-called inherent Presiden-
tial power to engage in such surveil-
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1ance, The standards for issuing a judi- closely to violations of law and that the
cial,W,4rrant attempt to reconcile the in- place or facilities targeted for surveil-
terests of personal privacy and national lance are about to be u
d b
th
se
y
e agent,
security in,_a way consistent with the but he must also decide whether the ex-
fundamental principles _of the. fourth ecutive branch has properly determined
amendment 'and due process of law, that the information sought from the
Last year the Judiciary Committee and surveillance is necessary for particular
the Select Committee on Intelligence re- foreign intelligence purposes and that
ported a similar bill, S. 3197, which had normal investigative techniques are not
the support of Attorney General Edward adequate.
H. Levi and President Ford. After S. 3197 This added safeguard Is essential to
failed to reach the floor, the Subcom- making the judicial warrant an effective
mittee on Intelligence and the Rights of protection for the rights of Americans.
Americans, of which I am chairman, However, as with the first improvement,
continued its study of the issues raised the new provision doe
t
s no
go far enough.
by the bill. During the confirmation The standard for judicial review of the The laws of the United States enacted
hearings for Attorney General Griffin certification-"clearly erroneous"-pro- by the Congress, pursuant to the Consti-
Bell and Director of Central Intelligence vides only modest protection. A probable tution, are "the supreme Law of the
Stansfield Turner, I questioned the cause standard would be better because Land." Article VI, section 2. The Presi-
nominees closely on the possibility of the judge should fully understand and dent is bound by the Constitution to
their supporting a new bill with changes approve the reasons for surveillance of "take care that" such laws "be faithfully
designed to resolve some of the misgiv- an American. The judge should also find executed." Article II, section 3. Thus, if
ings many of us had about S. 3197. that the desired foreign intelligence in- the President were to authorize surveil-
Shortly after the new administration formation is likely to be obtained from lance without regard to the standards
took office, a number of areas for im- the surveillance, The administration is and procedures of this bill, his conduct
provement were discussed with officials not yet willing to go this far; but its would be unconstitutional in the same
of the Justice Department. The bill in- agreement with the basic principle of way that President Truman's seizure of
troduced today incorporates, at least in judicial review of all crucial aspects of the steel companies was unconstitutional
part, three significant modifications pro- the decision to conduct surveillance of an in 1952.
posed in those discussions. American is a noteworthy advance. However, even though the loophole is
First, the most important change is Third, the administration's renuncia- now closed for surveillance within the
the extension of the bill, and the judicial tion of claims of "inherent Presidential United States and for targeting inter-
warrant protection, to intentional tar- power" is a major gain for constitutional national communications of Americans
geting, of the international communica- government. The new bill states that its who are in the United States, the bill still
tiont of American citizens and perma- standards and procedures are the "ex- leaves room for the President to try to
nent resident aliens who are in the clusive means" by which all electronic claim inherent power to target Ameri-
United States. The effect would be to surveillance, as defined in the bill, may cans abroad for surveillance. The stand-
'prevent, by law, such past abuses as the be conducted. Last year the executive ards and procedures of the bill do not
National Security Agency's use of a branch insisted upon an exemption for apply to such surveillance, thus leaving
"watch list" to target the international matters that could not "be reasonably Congress in a position of neutrality as to
communications of Americans who were said to have been within the contempla- whether and under what conditions an
engaged in domestic political dissent and tion of Congress." In other words, under American can be placed under surveil-
protect activities and posed no serious the provisions of the Ford administra- lance outside the United States by an
threat to the security of the country. In tion bill, the warrant requirement and agency of the executive branch. Ameri-
the-late 1960's and early 1970's, the FBI the other safeguards could have been dis- cans should not give up their right to
intelligence Division and the CIA's "Op- regarded by the executive branch if Con- protection against the actions of their
eration . CHAOS" placed the names of gress had not been told about, or had not own Government when they leave this
hundreds of such Americans on an NSA anticipated some new and more sophis- country. Until there is legislation in this
"watch list" to monitor their political ticated surveillance device for acquiring area, the foreign intelligence surveillance
activities, partly to satisfy White House intelligence information. Many of us activities of the executive branch will
demands for proof that domestic dissent voted to report a bill containing this' pro- continue to raise serious problems for
was not foreign-directed. The standards vision with the greatest reluctance; the constitutional government and the rights
and procedures of this bill will make such prospect of getting some legislation in of Americans.
abuses clearly unlawful in the future. this field persuaded us to do so. Never- The administration has made -
Last year's bill did not address this theless, elimination of the loophole for mitment to drafting separate legislation
problem. Its protections covered only "inherent Presidential power" has re- to regulate electronic surveillance of
surveillance of domestic communica- mained one of our principal objectives. Americans abroad for both foreign intel-
tions, leaving out international com- That loophole is now closed for the use ligence and law enforcement purposes.
munications altogether. As I will discuss of any electronic surveillance device, as Therefore, there seems to be no disagree-
more fully later, the new bill does not go defined very broadly in the bill, within ment, in principle, with the aim of elimi-
far enough because it does not protect the United States and for the purpose of nating reliance on inherent Presidential
Americans who are outside the United targeting the international communica- powers wherever surveillance is directed
States from surveillance by their own tions of Americans who are in the United against an American. Nevertheless, I be-
Government. Nevertheless, it is a major States. The - Constitution forbids the lieve the new bill might well be an appro-
step forward; and the administration President from acting upon the basis of priate vehicle for this purpose; and I
deserves substantial credit for moving in a claim of "inherent power" where the am considering the introduction of an
this direction. Congress has expressly laid down, by law, amendment to extend the protections in
A second significant improvement is the standards and procedures for dealing the bill to the use of electronic surveil-
judicial review of the executive branch with a particular problem. This was the lance for acquiring foreign intelligence
"certification," where the target of the unmistakable decision of the Supreme information by intentionally targeting
surveillance is an American citizen or a Court of the United States in the Steel an American who is outside the United
permanent resident alien. Under last Seizure case. As Justice Robert Jackson States. Given the commitment made by
year's bill, the judge had no authority to declared in his opinion in that case: the administration, I am sure that we
reject the "certification" that the sur- When the President takes measures incom- can cooperate in the development of leg-
veillance was necessary to obtain foreign patible with the expressed or implied will of islation that will close the last gap in the
intelligence. Under the new bill, before Congress, his power is at its lowest ebb.... framework of legal protection for the
he issues a warrant for surveillance of an Youngstown Sheet & Tube Co. v. Sawyer, 343 rights of Americans in this field.
American, the judge must not only find U.S.579, 579,637 (1952).
probable cause that the person is a for- Whatever may be the powers of the this The tee signcant ill-the movement into the of
eign agent engaged in activities tied President in the absence of specific leg- international communications, judicial
'islation, there is no doubt that he is
bound by the Constitution to conform
his action to a law enacted by the Con-
gress. This principle applies equally to
the President's domestic powers and to
his powers as Commander in Chief and
in the area of foreign affairs. The Con-
stitution is clear:
Congress shall have power ... to make all
laws which shall be necessary and proper for
carrying into execution ... all other powers
vested by this Constitution in the Govern-
ment of the United States, or in any Depart-
ment or Officer thereof. Article I, section 8,
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review of all crucial aspects of the sur- elements of the standard. The collection of such legality. This was the standard
veillance of Americans, and abandon- must be undertaken consciously pursu- in last year's bill.
meat of certain "inherent Presidential ant to the direction of an intelligence Fourth. The first draft provided that.
power" claims-all make major progress service or network of a foreign power; where the surveillance is solely to obtain
beyond where we were last year. it must be done in a clandestine manner; information for the successful conduct
Nonetheless, the question is whether and the circumstances must indicate of foreign affairs, the. Executive must
this progress has been achieved at the that it would harm the security of the certify that the information is "neces-
expense of other features of the earlier United States. It may include, for ex- sary." The bill now goes back to "essen-
bill, which are modified in ways that cut ample, the activities of an agent who tial"; and the meaning will be clarified
back on the protections developed last serves as a courier or as a conduit for in the report. Last year the Intelligence
year. This was ttie issue when the Rights passing information or material from Committee report explained that the
of Americans Subcommittee received the one member of the intelligence network higher "essential" standard was needed
administration's first draft of the new to another. "because of the more amorphous nature
bill. It contained a number of changes Nevertheless, the entire concept of a of the information which can be ac-
which did, indeed, substantially weaken "noncriminal standard" for surveillance quired" for the conduct of foreign affairs
important provisions of S. 3197. Since of Americans needs careful reexamina- (S. Rept. 94-1161, p. 25). On the other
that time, further discussions with the tion, to determine whether amendments hand, "essential" is not so rigid a stan-
Justice Department have eliminated to existing criminal statutes might be a dard as to mean totally indispensible or
some of these clauses; but others re- better course to follow. of the ultimate importance for the suc-
main and must be dealt with before the Second. The first draft added to the cessful conduct of foreign affairs.
bill is reported to the floor. "criminal standard" for surveillance of Fifth. The first draft provided that
The following are some of the prob- U.S. persons the new phrase "activities electronic surveillance, as defined in the
lems remedied, in full or in part, in dis- in furtherance" of illegal clandestine in- bill, would require a warrant "under cir-
eussions with the Justice Department: telligence activities. The bill now deletes cumstances in which a warrant would be
First. The first draft made highly this phrase. Last year this matter was constitutionally required if the surveil-
questionable modifications in the so- handled in report language, which lance was not foreign intelligence pur-
called "noncriminal standard" for sur- stated that the illegal clandestine intel- poses." The bill now reads-"under cir-
veillance of U.S. persons. The bill now ligence activities were intended to in- cumstances in which a warrant would be
goes back to the essential elements of clude: required for law enforcement pu oses
the standard adopted by the Intelligence Maintaining a "safe house" for secret because of of a a re to reasonable expectation
de definition ti nse f
Committee last year. meetings, servicing "letter drops" to facili- ?
Any standard allowing surveillance of tate covert transmission of instructions or last year.
Americans who are not engaged in illegal information, recruiting new agents, or in- Sixth. Under a new, special 1-year
t filtrating and exfiltrating agents under deep
hesess, s.'r such a raises serious standard was problems. adopted Never- last cover to and from the United States." (S. warrant procedure for surveillance of
hele Rep. 94-1161, p. 20.) certain types of foreign powers, the first
year because Federal criminal laws did
not appear to cover certain clandestine Similar language can be adopted this draft gave the judge no information
about the means of surveillance to be
activities of foreign agents who are year. used. The bill now allows the judge to
consciously working for an intelligence Third. The first draft made it more be informed of the type of surveillance
service or network of a foreign power. As difficult for a U.S. person to test the to in used, according type the four lance
the Intelligence Committee stated in its legality of the surveillance in court. The be of the cording of electronic ue-
.report on S. 3197, the standard was- bill now has stronger requirements that gogerl s oe.
necessarq`in order to permit the Government the judge disclose information about of 1-year warrants is
to a equateiy invest;gate cases such as those illegal surveillance to the aggrieved The complex new and will system require careful an consid-
of mee s agents have witnessed a series person. eration. For a judge to issue such a war-
of "meets" or "drops" betwwees n a hostile The administration's initial draft snot- , he must find probable cause that
foreign intelligence Officer and a citizen who ed that, in making a determination of rant
might have' acoe'ss to highly classified or legality in a subsequent legal proceeding, the power. Th target e is s a agc must certain t t sype of atisfied foreign
eign
similarly gensitive information; information "the court may disclose to the aggrieved power. Thu be
is being passed, but the Federal agents have person portions of the application, order, establishes the application a bb the a A cause they the General
eral
been unable to determine precisely what or transcript only in compelling circum-
No. 94 116n p 22.) transmitted. (S. Rep. stances where the harm to national se- get is a foreign government or compo-
94 1161, p. 22.) curity is outweighed by the requirements nent thereof, a faction of a foreign na-
A judge could issue a warrant for of due process in that particular case" tion not substantially composed of U.S.
surveillance in such cases if he deter- Moreover, when the court suppressed in- persons, or an entity which is openly ac-
mined that 'the circumstances indicated formation obtained from illegal surveil- knowledged by a foreign government to
harm to, the security of the United States. lance, it was not required to inform the be under its direction and control. The
't'headministration's first draft made aggrieved person of the surveillance. judge can ask for more information be-
several questionable 'changes in this Some improvements were made as a fore he makes. this decision. The special
standard. It did not require that the result of discussions with the Justice De- 1-year warrant does not apply to in-
agent be transmitting information or ' partment. The bill now states that "the dividuals or to foreign-based terrorist
material "to an intelligence service or court shall disclose * * * only where such groups, foreign-based political organiza-
intelligence network of a foreign power." disclosure is necessary for an accurate tions, or entities directed and controlled
Instead the transmission could be to determination of the legality of the sur- by a foreign government without open
anyone: The draft added to the "harm veillance." In addition, when the court acknowledgement.
the security" provision another stand- suppresses information, it must do so Under the special warrant, the judge
ard-"harmful to the foreign policy of "in accordance with the requirements of reecives substantially less information
the United States"-which greatly law" and thereby disclose the illegal sur- about the purposes for and methods used
widened the possibilities for surveillance. veillance if the law otherwise requires in the surveillance. This may be neces-
The standard required only that there such disclosure. sary to satisfy the requirements of tight
"may be" harm, rather than that the Although these changes have improved security for highly sensitive techniques.
harm would occur. Finally, "collection" the bill, it does not yet fully insure that In any event, the judge will still review
as well as "transmission"of information Americans can effectively challenge pos- and approve the "minimization proce-
of material was covered. sibly illegal surveillance, or the fruits of dures" designed to limit the acquisition,
pubsequent discussions with the Jus- such surveillance, used against them in retention, and dissemination of informa-
'tice Iepartment secured the elimination legal proceedings. If there is a reasonable tion about U.S. persons obtained in-
of all these change's, and a return to last question as to the legality of the surveil- cidentally during the surveillance. Pend-
year's requirements, except for the ad- lance, the judge should make whatever ing further study, these standards ap-
dition of "collection." This modification disclosure to the aggrieved person would pear to be a reasonable accommodation
more accurate determination of the competing interests.
t
e a
is, however, consistent with the essential promo
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Seventh. The ft 9t draft provided in- of the executive branch under guidelines ordered that they be carried out for their
adequate protection for foreign visitors in of the Attorney General. This experience own partisan political advantage. In
the Un t d - teswho are not officers or may suggest improvements that would some cases the information was used to
employees of a foreign power. Last year's more precisely define the proper and im- harrass or discredit Americans who had
bill gave them the same protection as proper uses of such information, violated no law and posed no serious
-
American cit??'7 and permanent resi- Fifth. The Congress must add to the threat to the country-except in the eyes
`dent aliens. The first -draft allowed them bill detailed reporting requirements for of narrow-minded intelligence officials or
to be placed under surveillance without the purpose of ensuring effective over- Presidents who sought to enhance their
any finding by the judge that their activ- sight by the committee (s) having juris- own political interests. The reports of the
]ties would violate. Federal law or harm diction over U.S. foreign intelligence ac- Select Committee on Intelligence Activi-
the security of the United States or that ties, prepared in 1975-76 under the direc-
the
the Executive certification was not tivities. In the interim before such re-
ecu quirements may be established by law, tion of Senator FRANK CHURcH and then-
"clearly The bill now requires the Intelligence Committee expects the Senator WALTER MONDALE, spelled out
a finding by the judge that their activ- these abuses in great detail.
Ities would harm the security of the agencies involved to cooperate with it in The Foreign Intelligence Surveillance
United States;. and a requirement that instituting such reporting procedures Act of 1977 is intended to prevent these
the activities be done "knowingly" has under the provisions of Senate Resolu- abuses from occurring again, by provid-
been added. Although these are improve- tion 400. In addition, the Attorney Gen- ing a firm barrier against, unjustified
ments, a return to ,the principles of last eral has stated that he will not object to surveillance and by. instituting outside
year's bill may be essential if the United the addition of more detailed statutory procedural checks to ensure that the law
States is to be, able to assure those who reporting requirements, under proper se- is obeyed. The administration's willing-
visit our Nation that their fundamental curity precautions; and he has indicated ness to develop such legislation, in coop-
human rights will be fully protected, that the bill does not presently contain eration with the Congress, is a sign that
These improvements. from the admin- such procedures because of his belief the lessons of past abuses have not been
istration's first draft bring the bill more that they are better prescribed by Con- forgotten.
closely in line with the essential features gress than in a bill developed by the ex- This bill is the first step toward full-
of last year's measure, However, we have ecutive branch. scale legislative regulation of the intel-
en unable to resolve all our problems On the issues which remain in dispute, ligence agencies of the United States.
tb the standards and procedures. Al- we hope the administration bill will re- Under the mandate of Senate Resolution
though they may not be so overwhelm- main open to further accommodation. 400, the Intelligence Committee is draft-
ing as to delay introduction of the bill in For our part, I am sure the members of ing further measures not only to clarify
its
its present form, these issues should be the Intelligence Committee will consider the authority and structure of the Intel-
up in committee. In some In- ligence community, but also to place
stances, the early introduction of carefully the views of the affected agen- clear legal limitations on the entire range
amendments may be necessary in order ties, particularly where they may have information of intelligence activities of the CIA, the
to identify. clearly the weaknesses in the and expertise bearing upon FBI, and other agencies which may af-
bill as it now stands. foreign intelligence and foreign counter- fect the rights of Americans.
The? problems, with the lack of protec- intelligence needs of the United States. The administration's efforts to cooper-
tion for Americans abroad, the "non- As representatives of the American peo- ate with the Intelligence Committee in
criminal standard" for surveillance of ple, we bring to these deliberations a the area of electronic surveillance legis-
Americans, disclosure in legal proceed- paramount concern for insuring the full- lation give us hope to believe that the
ings, and inadequate safeguards for for- est possible protection for the rights of same spirit will prevail in our future en-
eign visitors have already been discussed, privacy, which have been infringed for deavors. We all now realize, as Attorney
Additional issues include the following: decades because there has not been a General Bell has often stated, that legis-
First. The procedures for the selection clear legal standard for electronic sur- lative- charters are essential for our in-
of judges who will issue warrants under veillance conducted by our intelligence telligence agencies to know what the
the act require further study to deter- agencies under the umbrella of the "na- American people expect them to do-
mine whether they should serve for fixed tional security" justification, and not to do. Neither the intelligence
terme, rather than indefinitely. Electronic surveillance is a distasteful agencies nor every segment of the Ameri-
ms rather
Consideration nite instrument of Government power. The can people will agree fully witfi what Is
t0 allowing Private citizens should be fear of wiretapping, electronic bug- Proposed as the basis for legislative con-
aosall privit to decline given ging, and even more sophisticated tech- sideration. The process will be time-con-
-as electronic e ecit urvence agency For example, to engaged niques can inhibit the free and open ex- suming because the Issues are complex
.in ance. a landlord change of ideas. This fear may cause peo- and all interests are difficult to ac-
might be given the option of ple to stay out of the political process be- comodate. But the enterprise is vital for
refusing to let an FBI, agent into an cause they are afraid that, if they express the preservation of constitutional gov-
apartment to plant an electronic "bug- criticism of the government, their private ernment in the United States.
ging" device. lives will be secretly invaded by invisible Mr. MATHIAS. Mr. President, I am
Third. The criminal "clandestine in- surveillance technology. This fear is the pleased to join with my distinguished
telligent activities" standard for surveil- hallmark of the "closed society," where colleagues, Senators KENNEDY and BAYH
lance of'a U.S. person can be interpreted human rights are forgotten and govern- and others in introducing The Foreign
to mean activities protected by the first ment power is unchecked. Intelligence Surveillance Act of 1977.
amendment such as lobbying or influent- We have learned in recent years that By sponsoring this bill, I reaffirm my
tog public opinion on matters relating to this fear, has unfortunately, been jus- determined support for congressional of
national defense or foreign affairs, if the tified all too often in the United States, forts to provide clear statutory guide-
person fails to comply fully with vague Law-abiding Americans who posed no lines respecting the electronic surveil-
and overly broad provisions of the for- serious danger to the security of the na- lance of American citizens in foreign in-
eign agents registration laws. Last year tion were wiretapped, bugged, targeted telligence cases.
this issue was handled in report language for the monitoring of their international More than 3 years ago, on May 2, 1974,
rather than in the text of the bill. The communications, and placed under sur- I introduced in the 93d Congress, the
legal standard itself should be clarified, veillance by their own Government when Bill of Rights Procedures Act, S. 3440.
instead of relying solely on legislative they traveled abroad. The information That bill was designed to enforce the
history, acquired from this surveillance went into protections of the bill of rights by re-
Fourth. The "minimization prose- the files of the FBI, the CIA, and other quiring a court order for many types of
auras" h. the bimini is last year's agencies, without adequate consideration governmental surveillance--including
bill-which set llandds for the use of whether or not it was necessary for mail openings, the entry of homes and
b incidentally set tandir d orothe u e proper foreign intelligence or counter- the inspection of bank, credit and medi-
about U.S. persons, should be reconsid- torneys Generalofeboth political parties and wiretaps. Two years ago, on June 5,
ered in light of the recent experience approved these practices, and sometimes 1975, I again introduced the Bill of
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May 18, 1977 CON R SSIONAL RECORb -SENATE
Rights Procedures Act, this time in the
94th Congress.
And, last year I joined with a biparti-
san group of Senators and Representa-
tives in sponsoring S. 3197, the first bill
ever supported by a President and At-
torney General to require judicial war-
rants in foreign intelligence cases.
Thus, I was proud to meet this morn-
ing at the White House with the Presi-
dent and the Attorney General to ex-
press my support, along with other con-
gressional leaders, the concepts ex-
pressed in this bill.
More than rhetoric is required to make
our Republic work. The founders of our
Nation understood the need to place gov-
ernmental power under law. They knew
that power carries with it the seed of
abuse, and, in framing the Constitution,
they created a unique system of checks
and balances designed to frustrate the
exercise of arbitrary power. But recent,
sad experience proves that even a sys-
tem as intelligently conceived as ours
demands, If it is to work, that we con-
stantly renew our commitment to the
principles that lie at its heart. For the
past several decades the Congress and
the executive branch have abdicated
their Constitutional responsibility to es-
tablish by law the framework In which
Executive power may be discharged. This
abdication contributed to many of the
abuses of power discovered in the intel-
ligence operations of the Government.
It., is not enough to trust in the good
intentions of individuals. As Thomas
Jefferson, who designed the colonnades
which surrounded us in the Rose Garden
this morning, said,
In questions of power, let no more be
heard of confidence in man, but bind him
down by the chains of the Constitution.
Today, in sponsoring the Foreign In-
telligence Surveillance Act of 1977, we
are moving to restore our historic con-
stitutional balance. With the passage of
this bill, we will forge an important link
in those constitutional chains of which
Jefferson spoke.
,Finally, the bills that I have intro-
duced in this area, and those developed
by the Ford and Carter administrations,
are often thought of as only protecting
American citizens from intelligence
abuses. But they an equally important
function. They would serve to guide and
protect the thousands of dedicated men
and women in our intelligence agencies
from straying, either unwittingly or by
the pressure of circumstance, into unau-
thorized or illegal activity. This Nation's
-Intelligence officers have dedicated their
lives to the service of their country. If we
in the Congress can give them clear legal
charters and guidelines for their work,
we will serve not only the civil rights of
Americans, but the best interests of our
intelligence officers.
The need for such legislation to pro-
tect against the erosion of the fourth
amendment of our Constitution is clear.
The factual basis for new procedures to
regulate the use of bugs and wiretaps
against Americans was carefully and
comprehensively documented in the final
report of the Select Committee on Intel-
ligence. As ' we stated in the committees
final report:
. Since the early 1930's intelligence agencies
have frequently wiretapped and bugged
American citizens without the benefit of
judicial warrant. Recent court decisions have
curtailed the use of these techniques against
domestic targets. But past subjects of these
surveillances have included a United States
congressman, a congressional staff member,
journalists and newsmen, and numerous in-
dividuals 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 advisors and
an anti-Vietnam war protest group. While
the prior written approval of the attorney
general has been required for all warrant-
less wiretaps since 1940, the record is replete
with instances where this requirement was
ignored and the attorney general gave only
after-the-fact authorization.
Beginning with President Franklin
Roosevelt in 1940, every administration
has asserted the right to conduct, and
has conducted, warrantless wiretapping
and bugging of Americans in national
security cases.
President Ford and Attorney General
Levi deserve great credit for breaking
with this longstanding executive branch
tradition by submitting S. 3197 to the
Congress last year. President Carter and
Attorney General Bell deserve similar
credit for fulfilling their pledges and
supporting the bill we introduce today.
Without the check provided by the ju-
dicial warrant requirement in this bill,
national security wiretaps and bugs are
subject to grave abuse, as history demon-
strates. The report of the select com-
mittee and the Senate Judiciary Com-
mittee's report accompanying S. 3197 are
replete with examples of past abuses
which clearly dictate the need to enact
this bill into law.
Above all, these examples show that
the central problem has been the failure
of existing procedures to prevent abuse.
As the history of our common law and
the provisions of the Constitution teach,
procedure is often the surest safeguard
against abuse and the use of a judicial
warrant requirement is the keystone of
the fourth amendment's protections.
The Supreme Court affirmed this in
the Keith case where it declared:
The Fourth amendment contemplates a
prior judicial judgment, not the risk that
executive discretion may be reasonably ex-
ercised. This judicial role accords with our
basic constitutional doctrine that individual
freedoms will best be preserved through a
separation of powers and division of func-
tions among the different branches and lev-
els of government." (United States v. United
States District Court 407 U.S. 297 (1972).)
The overriding significance of the For-
eign Intelligence Surveillance Act of 1977
is its requirement that an impartial mag-
istrate outside the executive branch and
the intelligence community must au-
thorize electronic surveillance in foreign
intelligence or national security cases.
At the same time there are certain
questions regarding particular provisions
of the bill now before us-questions I
hope will be carefully scrutinized by the
appropriate House and Senate commit-
tees. One such question involves the pro-
vision in the bill allowing electronic sur-
veillance of an American who is not in-
volved in criminal activity. The Select
Committee, In its recommendation No.
52, recommended that a criminal stand-
ard obtain for foreign intelligence sur-
veillance, as my bill of rights procedures
act provides. The select committee also
recognized, however, that current espi-
onage laws do not prohibit certain ac-
tivity, such as industrial espionage,
which the United States has a legitimate
counterintelligence interest in monitor-
ing. The select committee recommended
that the espionage laws be modes nized
to include this fairly limited area oI cur-
rently noncriminal activity.
The Congress should examine the
espionage laws to determine if this is
feasible wiithout risking too broad or
too vague a criminal prohibition. When
that is done, the standard of the crim-
inal law can and should be imposed in
foreign intelligence surveillance cases.
In moving promptly to enact this bill,
Congresss can take an important step
toward restoring the balance between
the legislative and executive branches
contemplated by the Founders. For the
past several decades Congress has ab-
dicated its responsibility to establish by
law, the framework in which executive
power is to be discharged. As the select
committee found, this abdicatimmm con-
tributed to many of the abuses of power
in the intelligence operations of the
Government.
Unless this bill is enacted, there will
continue to be no statute whatever re-
ulating the executive's conduct in the
area of foreign intelligence electronic
surveillance. That situation must be
corrected. Last year, the Senate in its
consideration of S. 3197 built a firm
foundation to transform the commands
of the fourth amendment into legisla-
tive reality and to fill the present legal
vacuum. I am confident that the present
Congress will complete this tusk and
enact the Foreign Intelligence Surveil-
lance Act of 1977.
Mr. ABOUREZK. Mr. President, I
would like to offer some brief remarks
today upon the introduction of the For-
eign Intelligence Surveillance Act of
1977. This is an extremely important
piece of legislation and one which I
know has been the subject of extended
debate and negotiation between several
Members of Congress and the Depart-
ment of Justice. I have been pleased to
have been involved in that process,
First, let me commend Senators KEN-
NEDY, NELSON, BAYR, and the others for
their continuing leadership in this area.
As long as I have been in the Senate,
these men have been in the forefront of
the fight to bring electronic surveillance
for foreign intelligence purposes under
the rule of law. Certainly no further evi-
dence is necessary to point up just how
important a goal that is. For, until the
Congress enacts legislation to, control
foreign intelligence surveillance activ-
ities, the specter of abuse and misuse
will continue to hover over our Govern-
ment.
I would also like to commend Attorney
General Bell and Vice President MoN-
DALE for their efforts in bringing forth
this legislation. As we all know, the
process of negotiation requires give and
take on both sides, and the Attorney
General and Vice President have both
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provided helpful counsel and guidance further in this year's bill to include not changes in the bill which relate to sur-
in providing the administration's view- only transmission but collection activi- veillances targeted against lawful foreign
point on many critical questions in this ties as well. It is principally the inclusion visitors in this country and the uses
area. of this provision which keeps me from which will be made of information
Now let me turn to a discussion of the cosponsoring this legislation,
bill itself. After carefully reviewing this I will not belabor the point today, be- ca acquired ed concern in this regard and I merely
proposed legislation, I have decided that cause I know that this section will be -wish to add my voice to theirs. While
I cannot cosponsor it in its present form. the subject of intense scrutiny when our primary areas of concern have been
This has not been a decision lightly hearings on this legislation are held. Suf- this bill's protection for U.S. citizens and
made or quickly arrived at. Rather, it fice it to say that I believe there are a resident aliens, I do not believe that we
reflects my carefully considered judg- number of compelling arguments as to should be oblivious to its treatment of
ment that while there is much that is why this provision should be dropped foreigners lawfully within the United
good in this legislation and while I fully from the bill and I intend to offer such States. I expect that the Justice Depart-
support the purpose of this bill, it also an amendment at the appropriate time. ment will be prepared to justify the bill's
contains a number of provisions with My chief argument for seeking to drop differing treatment of foreigners and to
which I disagree so fundamentally that this "noncriminal standard" from the discuss the constitutional consequences
I cannot, in good conscience, add my bill is that, in my view, it is inconsistent of such distinctions.
name to_ its list of supporters at this time. with the fourth amendment to the Con- Mr. President, let me conclude on this
Before outlining these objectionable stitution. I believe that probable cause note. I am pleased that the administra-
features, let me note briefly those pro- of a crime is a necessary precondition to tion has now sent up their proposed elec-
visions of the bill that I believe are im- the issuance of a warrant for a search of tronic surveillance bill. This legislation
provements over S. 3197 of last year. seizure under the fourth amendment. addresses an important subject and
First, this year's bill repeals the "na- To the extent that this bill would au- ought to be dealt with as expeditiously as
tional security disclaimer" contained in thorize a court order for electronic sur- possible. As I have noted, this bill is bet-
18 U.S.C. 2511(3) and contains no lan- veillance against a citizen on a lesser ter in some respects than S. 3197 of last
guage which relates to any "inherent showing, I feel that it does violence to year, but is worse, in my view in a num-
power" of the President to engage in war- the protections offered by the Constitu- ber of other areas. I do not believe, how-
rantless surveillance for national secu- tion. ever, that any these represent
city purposes. As many of my colleagues There is also a secondary reason for i sur ountablef obstacles torthe enact-
know, the question of a supposed inherent seeking to delete this section of the bill. ment of a fair and workable bill to regu-
Presidential power in this area has been In my view, the activities encompassed late foreign intelligence electronic sur-
a subject.of contention between the exec- in section 2521(b) (2) (B) (iii) may al- veillance. I look forward to working to-
utive and legislative branches of Gov- ready be criminal under 18 U.S.C. 794 ward that end.
ernment for many years. By sending up and 18 U.S.C. 798 of our current espio- Mr. ROBERT C. BYRD. Mr. President,
this bill, I think it is clear that the Carter nage laws. If this is so, and I expect that I ask unanimous consent that the For-
administration is prepared to lay to rest the Department of justice will want to eign Intelligence Surveillance Act of 1977
this anachronistic view of the Constitu- address this question, then there is no be referred to the Senate Judiciary Com-
tion. This,is an extremely commendable reason for the inclusion of this section mittee, and then to the Senate Select
action by the President and one which I in the proposed legislation
.
wholeheartedly support. Committee on Intelligence, in that order.
Second, the bill introduced today will crim
with both the com-
Aside inal standarduthe enare ahnumber mi teesreferred to.
cover all electronic surveillance con- of additional provisions in this bill which The PRESIDING OFFICER. Without
ducted within the United States, as well are unsatisfactory or deserve further objection, it is so ordered.
as the interception of international mm- stnriv
o a targeted U.S. citizen I believe that section 2526(c), regard- k/_ By Mr. RIEGLE:
or resident alien who is in the United ing the procedures by which. informa- Senate Joint Resolution 55. A joint
States. This is a slight broadening of the tion acquired from electronic surveil- resolution authorizing and requesting the
bill's coverage over last year. lance can be introduced in court or chal- President to issue a proclamation desig-
Finally, today's bill offers the issuing lenged by a criminal defendent is awk- nating the period from October 9, 4977,
judge a limited power of review over wardly drafted and unduly restrictive. through October 15, 1977, as "National
the executive branch certification, insofar This is particularly true insofar as this School Bus Safety Week"; to the Com-
as it relates to U.S. citizens or resident provision relates to 18 U.S.C. 2518(10) mittee on the Judiciary.
aliens. While this is clearly an improve- involving criminal wiretaps. I intend to Mr. RIEGLE. Mr. President, today I
merit over S. 3197, which allowed no re- offer an amendment in committee to am introducing a joint resolution declar-
view at all, I am concerned somewhat by clarify the confused relationship between ing that the week of October 9, 1977
the standard contained in this provision. these sections and the procedures out- through October 15, 1977 be designated as
As drafted, the judge is required to accept lined in them.
the allegations in the certification unless The requirements for reporting to Con- "NS nceaMi h School gan Bus
can claim Safety
one of
they are "clearly erroneous." We will cer- gress on surveillances conducted pursu- the leading States in school bus safety,
tainly want to hear the Department's ex- ant to this bill are inadequate. i believe it seems only appropriate that my col-
planation of why such a high threshold that more information must be provided league from Michigan, Mr. BONIOR and I
Is necessary, particularly since the review if Congress Is to properly perform its introduce this resolution in the House
provision applies only to U.S. citizens and oversight function. At the very least, the and in the Senate.
resident aliens, who are, Presumably, de- reporting requirements contained in S. School bus safety is a concern of both
serving of the greatest degree of protec- 3197 ought to be reinstated in this bill. parents and educators because of the in-
tion from unwarranted governmental i am concerned, as well, by the new creasingly large number of children who
intrusion. "testing" provisions contained in this travel by school bus. In my State alone,
As to these specific provisions, this legislation. They seem to me to be overly 1 million students are transported by
bill is an improvement over S. 3197 as broad and to reach into areas not prop- school bus daily. And according to a re-
reported to the floor last year and I am erly within this bill's scope.
pleased that the Justice Department And it should be noted that this year's tion, 22 million Department
dents are transported
would agree to these changes. version of the bill has dropped the ex-daily the United States. With
I am troubled, however, by a number punging requirement from the statutory so many children being transported every
of other change's which have been made minimization procedures. I am not pre- day, a heightened awareness with respect
and which can only be viewed as retreats pared to take a position on this change to the safety of their transportation is
from the provisions of last year's bill. at this time. Perhaps there are valid rea- an aim hopefully to be achieved through
Foremost among these is the provision sons why the expunging requirement was observance of this week.
which would supposedly allow for the unworkable or undesirable. Again, this The taxpayers court ordered surveillance of a U.S. citi- is a matter which ought to be pursued annually to m kepa traveling by school
zen who is not engaged in criminal ac- with the Department at the hearing bus in the United States seven times
tivity. This section, which was objec- stage. safer n tionable last year, has been broadened Finally, I am troubled by a number of edging"N tionalSchool Bus Acknowl
Safety
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