S. 2525 -- FIRST AND FOURTH AMENDMENT ISSUES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86-00101R000100020027-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 14, 2016
• Document Release Date: September 3, 2002
• Sequence Number: 27
• Content Type: REGULATION

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S.2525 -- FIRST AND FOURTH AMENDMENT ISSUES
Background
Titles II and III of S.2525 authorize and regulate the
collection of information about United States persons, and
foreign persons in the United States, for intelligence pur-
poses. The objective is to ensure that legitimate intelligence
activities are conducted in a manner that preserves and re-
spects established concepts of privacy and civil liberties.
These concepts are embodied in the First and Fourth Amendments,
although fundamental principles of due process and equal
protection are also at stake. The central question is whether
S.2525 adequately protects civil liberties without unduly
restricting necessary intelligence activities.
The issue in some cases is whether a particular activity
should, itself, be considered legitimate. Examples include
the investigation of a U.S. person without his consent because
he is a "potential source" of intelligence, use of the contents
of private international communications to or from U.S. per-
sons that are "unintentionally" acquired through foreign sig-
nals intelligence activities, or the violation of a federal
criminal law where necessary to protect against acts of espion-
age or international terrorism. S.2525 treats each of these
as legitimate within prescribed limits.
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In other cases the issue is whether a concededly legit-
imate activity requires procedural safeguards in order to keep
it within proper bounds. Examples are the requirements for a
court order to target electrDnic surveillance against a U.S.
person abroad, and for approval by the Attorney General's
designee when investigations of U.S. persons use covert tech-
niques or last longer than six months. Do such procedures
impose unjustified burdens, or do they provide external checks
that are significantly better than reliance upon each agency
to police itself under congressional oversight scrutiny.
In general, civil liberties critics of S.2525 fear it
would allow abuses of the past to recur. They foresee, for
instance, a possible resumption of CIA or military intelli-
gence infiltration of American dissident groups abroad under
the authority to investigate undefined "clandestine intelli-
gence activity," or a return to widespread FBI surreptitious
entries under the court order procedure permitting multiple
searches. On the other hand, the intelligence agencies con-
tend that detailed statutory limitations would deprive them
of the flexibility they need to meet unanticipated problems.
They would prefer broad statutory authorizations accompanied
by Executive branch guidelines subject to review by the
congressional oversight committees.
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Both sides suggest that S.2525 is too complex. Simp-
lification might, however, lead either to more stringent
across-the-board restrictions or to the elimination of safe-
guards and limitations. The Committee's deliberations-on
S.1566, the Foreign Intelligence Surveillance Act, indicate
that some degree of complexity may be the price for reaching
a satisfactory accommodation of interests. That bill, which
would replace the parts of S.2525 covering electronic sur-
v eillance within the United States, was reported favorably
by the Committee, 15-0, and is on the Senate calendar for
floor consideration. Titles II and II of S.2525 extend beyond
domestic electronic surveillance to reach --
(a) foreign intelligence, counterintelligence, and
counterterrorism investigations of U.S. persons, and
foreign persons in the United States, using less intru-
sive techniques;
(b) foreign electronic or signals intelligence
activities resulting in the collection of information
concerning U.S. persons; and
(c) unconsented physical searches or mail open-
ing within the Untied Staess or directed against U.S.
persons abroad.
The following questions explore some of the issues posed
by these provisions.
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I. Preventive Action
1. Are the preventive measures permitted in sections
242-243 consistent with due process of law? They include
anonymous dissemination of information (242) and limited vio-
lation of Federal criminal statutes (243) when necessary to
protect against espionage, international terrorism, or related
acts.
2. Is it appropriate to prohibit any intelligence
activity that is designed and conducted so as to limit, dis-
rupt, or interfere with any U.S. person-'-s exercise of rights
protected by the Constitution or laws of the United States?
(See section 241.)
3. In general, should the legal principles governing
preventive law enforcement apply fully to foreign counter-
intelligence or counterterrorism measures taken within the
United States or against U.S. persons abroad?
II. Rights of Foreign Persons in the United States
1. Does equal protection require that intelligence
charter legislation safeguard any rights of foreign powers,
foreign organizations, or non-resident aliens when they are
in the United States? Should they be excluded from protection?
Or should restrictions apply only to the use of techniques
that would require a warrant for law enforcement purposes?
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2. Is it proper to allow virtually unlimited invest-
igations of non-resident aliens in the United States who are
reasonably believed to be potential intelligence sources,
without the restrictions on techniques and duration for
comparable investigations of U.S. persons? (See section 225(4).)
In particular, are such investigations of foreign students con-
sistent with academic freedom?
3. Similarly, is it appropriate to authorize investi-
gations of unofficial foreign visitors and private foreign
organizations in the United States to obtain "significant"
foreign intelligence? (See section 225(3))
4. Should the prohibition against activities designed
and conducted to limit, disrupt, or interfere with the
exercise of constitutional or legal rights (section 241) be
extended to rights exercised by non-resident aliens in the
United States?
5. Should other restrictions such as the limits on
duration and techniques of investigation or on retention
and dissemination of private information, apply to non-
resident aliens in the United States who are not agents of
a foreign power? Would a revised definition of "United
States person" resolve some of these difficulties? (See
section 104(31).)
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III. Investigations of U.S. Persons
1. Should there be an across-the-board ban against
intelligence agencies investigating U.S. persons without
their consent, unless there is reason to believe that they
may violate the law?
2. Would the so-called "noncriminal" investigations
of U.S. persons authorized in the bill have a chilling
effect on the exercise of First Amendment rights or unreason-
ably invade personal privacy? Or do the limitations and pro-
cedures, including the prohibition against basing invest-
igation solely upon a U.S. person's exercise of constitu-
tional or legal rights (section 241), provide adequate safe-
guards? Such investigations include --
(a) persons reasonably believed to be engaged in
clandestine intelligence activity abroad (section 213(2));
(b) persons acting in an official capacity for a
foreign power abroad (sections 213(3) and 214(3));
(c) targets of foreign intelligence or terrorist
recruitment efforts (section 218(a)(1));
(d) targets of clandestine intelligence or inter-
national terrorist activity (section 218(a)(2));
(e) persons who possess significant foreign intelli-
gence (section 219);
(f) persons in contact with suspected intelligence
agents (section 220); and
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(g) persons reasonably believed to be potential
intelligence sources (section 221).
3. Should investigations of U.S. persons believed to be
engaged in "clandestine intelligence activity" abroad include
persons suspected of writing, speaking, or otherwise engaging
in lawful political expression on behalf of a foreign power?
(See the definition in section 204(b)(1).)
4. Should investigations of targets of "clandestine
intelligence collection activity" include U.S. persons who are
targets for the gathering of information about their lawful
political activities not involving classified information?
If a Congressman or a group leader like Dr. Martin Luther King
were such a target, should he be investigated? Or should any
investigation be limited to the suspected intelligence agent?
5. Should certain investigations of U.S. persons based
on a "reasonable belief" standard continue indefinitely, so
long as the Attorney General's designee grants periodic written
approval? (See sections 216-217.) Or should a "probable cause"
standard be met after six months or one year?
6. Should intelligence agencies have authority to investi-
gate their former employees, contractors, or employees of con-
tractors who are suspected of having violated agency rules or
regulations?
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IV. Intrusive Investigative Techniques
1. Should any techniques be added to, or deleted from,
the provision requiring approval by the Attorney General's
designee for an investigation using certain techniques?
(See section 215.)
(a) Should "covert interviews" and similar
pretextual inquiries be added?
(b) Should physical surveillance or the direction
of established covert human sources to collect informa-
tion be deleted?
(c) Should any of these techniques be permitted in
"target" investigations under section 218?
2. Would it be appropriate to require a court order for
the use of paid undercover agents or informants to investigate
a U.S. person? Or to require a subpoena for access to confi-
dential private records concerning a U.S. person, as recommended
by the Privacy Commission?
3. Would it be an adequate safeguard to require that
the agency head, rather than the Attorney General's designee,
approve investigations of U.S. persons using certain intrusive
techniques, such as physical surveillance, covert human sources,
and requests for confidential private records?
4. Is it appropriate to modify the Title I restrictions
on cover and paid relationships with certain categories of
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individuals, insofar as they conflict with the provisions
of Title II authorizing the use of "covert human sources"
in foreign counterintelligence and counterterrorism investi-
gations? For example, should the FBI be able to recruit a
journalist or academic as an undercover informant in an espion-
age case?
V. Electronic Surveillance, Physical Search, Mail Opening
1. Under what circumstances, if any, should an intel-
ligence agency be authorized to use or disseminate the contents
of private international communications to or from U.S. persons
that are acquired "unintentionally" by foreign signals intel-
ligence activities? (S. 1566 would require destruction upon
recognition of the contents of any private domestic radio
communication that is acquired "unintentionally," unless the
contents indicate a threat of death or serious bodily harm
to any person.)
2. Does a U.S. person have any less "reasonable expecta-
tion of privacy" with respect to his international or foreign
communications than with respect to his domestic communications?
3. If S. 1566 is enacted, establishing a special court
to issue orders approving electronic surveillance within the
United States, would it be proper to assign that court the duty
of issuing orders for foreign electronic or signals intelligence
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activities directed against U.S. persons abroad?
4. Are the standards and procedures for targeting
foreign electronic or signals intelligence activities against
a U.S. person abroad appropriate?
5. Are such standards and procedures also appropriate
for directing unconsented physical searches against U.S.
persons abroad, or for the unconsented opening of mail of
a known U.S. person outside United States postal channels?
6. Are the court order procedures for unconsented
physical searches within the United States consistent with
fundamental Fourth Amendment principles?
(a) Is it proper to allow court orders authorizing
multiple searches, in view of the normal Fourth Amend-
ment requirement that a warrant particularly describe the
person or place to be searched and the material to be
seized?
(b) Should surreptitious entry be confined to emer-
gency or extraordinary circumstances?
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