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The material follows:
Section 1 contains the title of the Act, `The Counterintelligence Improvements Act of 1994.'
Section 2 adds a new title VIII to the National Security Act of 1947 (50 U.S.C. 401 et seq.) to govern access to Top Secret classified information.
Section 801 establishes the requirements for eligibility to access Top Secret information.
Subsection (a) specifies that the President and Vice President, Members of Congress, Justices of the Supreme Court and judges of other federal courts established pursuant to Article III of the Constitution are eligible, by virtue of their elected and appointed positions, for access to particularly sensitive classified information needed for the performance of their governmental functions without regard to other provisions of this title. This means that the incumbents of such positions are not required to meet the security requirements of other sections of the bill (e.g. submit to background investigations or reinvestigations) applicable to government employees.
Subsection (b) provides that with respect to government employees, access to Top Secret information shall be limited to employees who have been granted access pursuant to this title, who are citizens of the United States, who require routine access to such information in the performance of official governmental functions, and who have been determined to be trustworthy based upon a background investigation and other reinvestigations undertaken pursuant to section 802, below, and have otherwise satisfied the requirements of that section.
Subsection (c) provides that the President may by regulation permit access to Top Secret information by persons other than those listed in subsections (a) and (b). The Congress intends that such regulations cover access to Top Secret information by government employees who are not citizens of the United States or who do not require routine access to such information for the performance of official functions. It is also contemplated that there will be limited circumstances where it will be in the best interest of the United States to share such information with persons who are not government employees (including contractors). Such persons may, indeed, include foreign nationals in rare circumstances. The Congress expects the President to make appropriate allowances for such access in the regulations required by section 802.
Section 802 requires the President to issue, within 180 days of enactment of this title, regulations binding upon all elements of the Executive branch. Such regulations are required, at a minimum, to establish certain requirements enumerated in this section.
Subsection (A) sets forth the minimum requirements to be met as a condition of access to Top Secret information, to include the requirements for initial and periodic background investigations, requirements to consent to the Government's access to certain types of personal records, and requirements to report certain types of information to the Government.
Subsection (A)(1) provides that no employee of the United States Government shall be given access to Top Secret information unless such person has been the subject of a background investigation and has provided consent to the investigative agency responsible for conducting the investigation permitting access to certain types of records during the period of access and for five years thereafter. Such records include financial records covered by the Right to Financial Privacy Act of 1978; consumer credit reports covered by the Consumer Credit Protection Act; and records maintained by commercial entities within the United States pertaining to travel by the subject outside the United States. (Access by government investigative agencies to this category of records does not appear to be restricted under existing law, however, private commercial concerns may be reluctant to provide such information without the consent of the consumer.)
The three provisos at the end of the subsection (A)(1) place general limitations on the authority of the investigating agency to request or disseminate such information.
Proviso (i) states that an authorized investigative agency may not request information pursuant to this section for any purpose other than making a security clearance determination. Thus, this subsection does not provide authority to request information concerning any person who is not being contemplated for access to Top Secret information or who has such access presently or within the last five years.
Proviso (ii) states that where the individual concerned no longer has access to Top Secret information, no information may be requested by an authorized investigative agency unless such agency has reasonable grounds to believe, based upon specific and articulable facts available to it, that such persons may pose a threat to the continued security of the information to which he or she had previously had access. This means that information could not be requested concerning any person who had left government service, or who remained in government service after access had been terminated, unless the investigative agency had reasonable grounds to believe such person may pose a security concern. The Congress believes that where persons who no longer have access to highly classified information are concerned, there should be a specific basis to justify Government inquiries into their personal records.
Proviso (iii) prohibits any authorized investigative agency which obtains information pursuant to this section from disseminating it to any other department, agency, or entity for any purpose other than making a security clearance determination, or for a law enforcement or foreign counterintelligence purpose. Inasmuch as such information may be highly personal, its dissemination is justified only by the most compelling needs.
Subsection (A)(2) also requires persons being given access to particularly sensitive classified information to agree, as a condition of such access, to report, in accordance with applicable regulations, any travel to foreign countries during the period of access which has not been authorized as part of the subject's official duties. The Congress recognizes there will be cases, due to geographical location of the U.S. employee concerned, where foreign travel for personal reasons could be a routine, perhaps even daily, occurrence. By providing that reports of such travel be made in accordance with applicable regulations is intended to provide flexibility to accommodate such situations.
Subsection (A)(3) requires that persons being given access to
particularly sensitive classified information also report to the Federal Bureau of Investigation or to appropriate investigative authorities of the employing department, agency, or entity, any unauthorized contacts with persons known to be foreign nationals or persons representing foreign nationals, where an effort to acquire U.S. classified information is made or is apparent. For this latter purpose, unauthorized contacts do not include contacts made within the context of an authorized diplomatic relationship. In other words, where the employee is authorized to cultivate a diplomatic relationship, and in the course of such relationship, a foreign diplomat poses a question within the scope of such relationship, the answer to which would require classified information to be revealed, such an inquiry would not be required to be reported to investigative agencies. If, on the other hand, the foreign diplomat attempted to solicit classified information outside the scope of an authorized relationship, or attempted to recruit the U.S. diplomat to collect information in the future, such approach would be reportable under this section.
The final paragraph of subsection (A) provides that a failure by the subject to grant consent as required by this subsection, or make the reports required by this subsection, constitute ground for denial or termination of access to Top Secret information. The Congress does not intend that such failure will automatically result in such denial or termination, but rather that the department, agency, or entity concerned will evaluate all relevant information related to such failure and determine whether such action is appropriate.
Subsection (B) deals with requirements for reinvestigations of persons granted access to Top Secret information. Subsection (B)(1) provides that such persons will be subject to additional background investigations no less frequently than every 5 years. Although any failure to satisfy this requirement that is not solely attributable to the subject of the investigation shall not result in a loss or denial of access. The Congress recognizes that there may be practical reasons why reinvestigations are not accomplished within the five-year time frame. Where these are not solely attributable to subject, they should not result in any unfavorable action regarding his continued access. Subsection (B)(2) provides that such persons are subject to investigation at any time to ascertain whether they continue to meet the requirements for access. Thus, should an authorized investigative agency receive information at any time which may suggest such person may no longer meet the security requirements for access, an investigation may be undertaken.
Subsection (C) requires that the regulations address the matter of access to Top Secret information by persons other than the officials lists in section 801(A) above, or government employees eligible for access to such information as provided in section 801(B). The subsection provides that the President or other officials designated by the President for this purpose, may authorize access to such information by such persons only where such access is essential to protect or further the national security interests of the United States.
Subsection (D) requires that the President designate a single office within the Executive branch to monitor the implementation and operation of this title within the Executive branch, and provide an annual report to the President and appropriate congressional committees describing the operation of this title and recommending any needed improvements.
The bill requires that a copy of the implementing regulations required by this section be provided to the two intelligence committees 30 days prior to their effective date.
Section 803 provides authority for the President, or officials designated by the President for this purpose, to waive the provisions of this title and the regulations implementing this title for individual cases involving U.S. citizens or persons admitted to the United States for permanent residence, when essential to protect or further the national security interests of the United States, provided all such waives are made a matter of record, reported to the oversight office established pursuant to section 802, and are available for review by the intelligence committees.
The Congress recognizes there will be extraordinary circumstances when the president (or other senior officials) could be justified in waiving the investigative requirements or the consent requirements for particular persons as a condition of their receiving access to particularly sensitive classified information. The Congress believes, however, that such waiver authority ought to be limited to specific individuals who are either citizens of the United States or persons who are admitted to the United States for permanent residence. Such waiver authority is not granted to permit the exemption of entire classes of persons, or the employees of a particular department or agency, or to provide access for particular purposes (e.g., diplomatic
exchanges). Should the President wish to exempt classes of persons or entire departments or agencies from the requirements of this title, or provide for access by foreign nationals under limited circumstances, such exemptions should be made in the regulations issued pursuant to section 802, which are reported to the intelligence committees, rather than made subject to individual waives pursuant to section 803.
Section 804 contains the definitions of terms used in this title.
Section (a) defines the term `national security' as referring to the national defense and foreign relations of the United States.
Subsection (b) defines the term `information classified in the interest of national security' or `classified information' as meaning any information originated by or on behalf of the United States Government, the unauthorized disclosure of which would cause damage to the national security, and which has been marked and is controlled pursuant to Executive Order 12356, dated April 2, 1982, or successor orders, or the Atomic Energy Act of 1954.
Subsection (c) defines the term `Top Secret information' as information classified in the interest of national security, the unauthorized disclosure of which would cause exceptionally grave damage to the national security.
Subsection (d) defines the term `employee' for purposes of this title as including any persons who receives a salary or compensation of any kind from the United States Government, is a contractor or unpaid consultant of the United States Government, or otherwise acts for or on behalf of the United States Government, but does not include the President or Vice President, Members of Congress, Justices of the Supreme Court or judges of federal courts established pursuant to Article III of the Constitution.
Subsection (e) defines the term `authorized investigative agency' means an agency authorized by law or regulation to conduct investigations of persons who are proposed for access to Top Secret information to ascertain whether such persons satisfy the criteria for obtaining and retaining a security clearance. Such agencies would include the Federal Bureau of Investigation, the Defense Investigative Service, and other departments and agencies who are authorized to conduct such investigations.
Section 805 provides that this title shall take effect 180 days from its enactment. This period is necessary in order to allow time for the President to issue the implementing regulations required by section 802 prior to the effective date of this title.
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Section 3 of the bill adds a new title IX to the National Security Act of 1947 (50 U.S.C. 401 et seq.) to provide special requirements for the protection of cryptographic information. Persons with access to such information necessarily have the capability of inflicting grave damage upon the national security by enabling unauthorized persons to read or understand an unlimited number of U.S. communications at all levels of classification. In view of the peculiar sensitivity of such information, the Congress believes that special security measures should be imposed on persons who have access to this information.
It is the intent of the Congress, however, that only those Executive branch employees or contractors who have extensive involvement with, or in-depth knowledge of, classified cryptographic information need to be covered by the proposed title. This would include persons who develop U.S. codes or ciphers, persons who build or install devices or equipment which contain such codes or ciphers, and persons who are employed in locations where large volumes of classified information are processed by such devices or equipment, such as communications centers. It is not intended that persons who have access to cryptographic devices or equipment designed for personal use or office use should be covered by this title.
Section 901 establishes minimum uniform security requirements for Executive branch employees who are granted access to classified cryptographic information or routine, recurring access to any space in which classified cryptographic key is produced or processed, or is assigned responsibilities as a custodian of classified cryptographic key. The President may provide latitude in the regulations implementing this title for departments and agencies to impose additional, more stringent security measures upon such persons where circumstances may warrant.
Two basic requirements are imposed upon persons covered by the title. Subsection (a)(1)(A) requires that they meet the security requirements established by section 802 of the Act, as persons with access to
particularly sensitive information. Thus, persons covered by this title would also be subject to initial background investigations, reinvestigations not less than every five years, and unscheduled investigations as appropriate, to ensure they continue to meet the standards for access to classified cryptographic information, regardless of the level of security clearance such persons may otherwise have. They would also be required to provide their consent to the authorized governmental investigative authorities having access to the categories of records set forth in section 802.
Subsection (a)(1)(B) requires that persons covered by this title also be subject to periodic polygraph examinations conducted by appropriate governmental authorities, limited in scope to questions of a counterintelligence nature, during the period of their access to classified cryptographic information. This provision does not require such polygraph examinations for all such persons, but it does make such persons, regardless of the department or agency where they may be employed, subject to such examinations on an unscheduled basis while such access is maintained. In accordance with the implementing regulations required by section 902, it is anticipated that departments and agencies with employees or contractors covered by this title would establish or acquire a sufficient capability to conduct such examinations to maintain a credible deterrent to persons with access to such information.
The Congress also reemphasizes that this section provides for minimum standards. It is not the intent of the provision to restrict the use of the polygraph at the Central Intelligence Agency and National Security Agency, where polygraph examinations are routinely required of all employees and are not limited to questions of a counterintelligence nature.
Subsection 901(a)(2) provides that any refusal to submit to a counterintelligence-scope polygraph examination shall constitute grounds to remove such person from access to classified cryptographic information. It is not intended, however, that such person be subjected to any additional personnel or administrative action, including any adverse action on his or her security clearance, as a result of such refusal.
Moreover, subsection 901(a)(2) goes on to provide that no person shall be removed from access to classified cryptographic information or spaces based solely upon the interpretation of the machine results of a polygraph examination, which measure physiological responses, unless the head of the department or agency concerned determines, after further investigation, that the risk to the national security under the circumstances is so potentially grave that access cannot safely be permitted.
The Congress recognizes that a polygraph examination in essence measures certain physiological responses produced by answers to questions posed to the subject. Such responses might reflect deception on the part of the subject, but they might also reflect other, wholly innocent stimuli, both mental and physical. Indeed, while expert opinion varies in terms of how often the interpretation of polygraph results can be relied upon to show lying or deception, the Congress is aware of no expert who contends that interpretation of polygraph results provides an infallible indication of lying or deception. Accordingly, the Congress believes that an interpretation of polygraph results should not be the sole basis for denial of access to classified cryptographic information or spaces. It intends that where the results of such examinations do indicate lying or deception to key counterintelligence questions, that these discrepancies be resolved, where possible, through interviews with the subject and such further investigation as may be warranted. If such further investigation does not provide an independent basis for removal from access, such access should be granted or maintained unless the head of the department or agency concerned determines, in view of all the circumstances involved and the potentially grave risk to the national security, that access should not be permitted.
Subsection 901(b) sets forth the definitions of the terms used in this section.
Subsection (b)(1) defines the term `classified cryptographic information' as any information classified pursuant to law or Executive order which concerns the details of (A) the nature, preparation, or use of any code, cipher, or cryptographic system of the United States; or (B) the design, construction, use, maintenance, or repair of any cryptographic equipment. The proviso to this definition specifically excludes information concerning the use of cryptographic systems or equipment required for personal or office use.
This term is thus intended to cover classified information which reveals or contains detailed information concerning U.S. codes and cryptographic equipment, to include information concerning the nature and development of such codes or
equipment, and the design, construction, use, maintenance or repair of such equipment. (`Cryptographic equipment' is defined in subsection (b)(4) as any device, apparatus, or appliance used by the United States for authenticating communications, or disguising or concealing communications or their meaning.) The definition of `classified cryptographic information' is not intended, however, to cover persons who use cryptographic equipment that has been developed for personal or office use, such as a secure telephone, where such person is not also exposed to detailed information concerning the design, construction, use, maintenance or repair of such equipment. The term is intended to cover individuals, however, who require access to detailed information concerning the use of encoding equipment for other than personal or office use. For example, persons employed at government communications centers which process large volumes of classified information would be persons who fall within this definition.
Subsection b(2) defines the term `custodian of classified crytographic key' as meaning positions that require access to classified cryptologic key beyond that required to use or operate cryptographic equipment for personal or office use, future editions of such key, or such key used for multiple cryptographic devices. The term `classified cryptographic key', as defined in subsection (b)(3), refers to the information, which may take several forms, needed to set up and periodically change the operations of cryptographic equipment or devices to enable them to communicate in a secure manner.
Similar to the definition of `classified cryptographic information,' it is not the intent of the Congress to cover by this definition persons who are custodians of, or otherwise have access to, `classified cryptographic key' for personal or office use. Thus, persons who have access to such key in order to operate a secure telephone located in a single office are not covered by this definition. On the other hand, it is intended that persons who have access to such key in order to operate multiple cryptographic devices or who operate cryptographic devices which are used to process large volumes of classified information originating in multiple locations, such as government communications centers, would be covered by this definition.
Subsection (b)(5) defines the term `employee' to mean any person who receives a salary or compensation of any kind from a department or agency of the Executive branch, or is a contractor or unpaid consultant of such department or agency.
Subsection (b)(6) makes clear that the term `head of a department or agency' refers to the highest official who exercises supervisory control of the employee concerned, and does not include any intermediate supervisory officials who may otherwise qualify as heads of agencies within departments. For example, the Secretary of Defense would constitute the `head of the department' for all employees of the Department of Defense, and not the secretary of a military department or the director of a Defense agency.
Subsection (b)(7) defines the phrase `questions of a counterintelligence nature' as meaning questions specified to the subject of a polygraph examination in advance limited solely to ascertain whether such person is engaged in, or planning, espionage against the United States or knows persons who are so engaged. It is not intended that this definition encompass any question relating to the life-style of the subject, such as his or her sexual orientation, prior or present use of drugs or alcohol, etc. The sole thrust of such questions must be to ascertain whether the subject is acting on behalf of a foreign government, is involved in planning such activities, or knows others who are so engaged.
Section 902 of the bill requires the President to issue regulations to implement this title within 180 days of its enactment, and to provide copies of such regulations to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives.
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Section 4 of the bill would amend section 1104 of the Right to Financial Privacy Act of 1978 by adding a new subsection (d) to this section. The purpose of the amendment is to permit a person who is being considered for access to Top Secret information, as that term is defined in section 2 of the bill, to provide his or her consent to authorized investigative agencies of the U.S. Government obtaining access to his or her financial records, as defined by the Right to Financial Privacy Act, as a condition of receiving and maintaining access to such information.
This provision is required because subsection 1104(a) limits the period a person may provide consent to a Government authority having access to his or her financial records to ninety days.
This section is also necessary to supplement and provide legal effect to subsection 803 [as added by section 2 of the bill] which requires that all persons who are granted access to Top Secret information provide their consent for authorized investigative agencies to be able to obtain access to their financial records pursuant to the Right to Financial Privacy Act of 1978.
The new subsection (d)(1) provides that notwithstanding the provisions of subsection 1104(a) (which limits the period a person may consent to access by government authority to his or her financial records to 90 days), a `customer', as defined in section 1101(5) of the Right to Financial Privacy Act of 1978, who is the subject of a personnel security investigation conducted by an authorized investigative agency of the U.S. Government as a condition of being granted access or maintaining access to Top Secret information, as defined by section 803(b) of the National Security Act of 1947, may authorize nonrevocable disclosure of all financial records maintained by financial institutions for the period of the customer's access to such information and for up to five years after such access to such information has been terminated, by such investigative agency, for an authorized security purpose.
Subsection (d)(2) provides that the consent given under subsection (1) must be contained in a signed and dated statement which identifies the financial records which are authorized to be disclosed. Such statement may also authorize the disclosure of financial records of accounts opened during the period covered by the consent agreement which are not identifiable at the time the account is opened. It is anticipated that such accounts would be covered by a general statement, identifying by category the types of accounts for which access is authorized, e.g. bank accounts, credit card accounts, etc. At the time of periodic reinvestigations of the subject, the investigating agency authorized to conduct the investigation concerned may request the subject to identify any accounts which had been opened since the date the consent agreement was signed as part of the investigative process.
In addition, subsection (d)(2) requires the investigating agency concerned to provide a copy of the consent agreement to any financial institution from which disclosure is sought, together with the certification required pursuant to section 1103((b) of the Right to Financial Privacy Act of 1978, that the Government authority concerned has complied with the applicable provisions of the Act. In the circumstances contemplated, such certification would encompass the following elements: (1) that the customer of the financial institution is the subject of a background investigation required by law for access to Top Secret information pursuant to this title; (2) that the Government authority concerned is the authorized investigating agency responsible for such investigation; (3) that the request is being made during the period in which the customer has authorized access pursuant to the consent agreement provided the financial institution; and (4) that, if the accounts were not specifically identified by the consent agreement, that the financial records being sought are, in fact, records covered by such consent agreement.
Subsection (d)(3) makes clear that the right of the customer, established pursuant to subsection 1104(c) of this section, pertains to any disclosures made pursuant to subsection (d). This means that the right of the customer to obtain a copy of the record required to be made by the financial institution of any disclosure to a Government authority, (unless the Government authority has obtained a court order pursuant to section 1109 of Act), is preserved in the circumstances contemplated by subsection (d).
Subsection (d)(4) requires an annual report to the two intelligence committees by the office established pursuant to section 802(D) of the National Security Act of 1947 [as added by section 2 of the bill] to monitor the implementation of these policies, which fully informs the committees concerning all requests for financial records made pursuant to this section. It is contemplated that such reports shall, at a minimum, identify the investigative agencies making such requests, provide the number of requests each such agency has made during the reporting period, and describe by appropriate category the uses made of such information.
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Section 5 amends chapter 37 of title 18, United States Code, to add a new section, creating a new criminal offense for the possession of espionage devices where the intent to use such devices to violate the espionage statutes can be shown.
It is the intent of Congress to permit the Government to prosecute the mere possession of espionage devices where intent to commit espionage can be
shown, without having to prove that information relating to the national defense had, in fact, been transmitted to a foreign government, and without having to prove a conspiracy to commit espionage involving a second person and an overt act in furtherance of the conspiracy by either of the two parties, as required by existing law.
Subsection (a) adds a new section 799a at the end of chapter 37 of title 18, United States Code, which provides that any person who knowingly maintains possession of any electronic, mechanical, or other device or equipment, the design and capability of which renders it primarily useful for the purpose of surreptitiously collecting or communicating information, with the intent to utilize such device or equipment to undertake actions which would violate sections 793, 794, 794a [as added by section 6, below] or 798 of title 18, or section 783(b) of title 50, United States Code, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.
Section 6 also amends chapter 37 of title 18, United States Code, to create a new criminal offense for any person who knowingly sells or transfers for any valuable consideration to a person whom he knows or has reason to believe to be an agent or representative of a foreign government, any classified document or material that such person knows to be marked or designated as `Top Secret,' or which such person knows to have had such marking or designation removed. Subsection (b) also provides that in any prosecution under this section, whether or not the document or material has been properly marked or designated pursuant to applicable law or Executive order is not an element of the offense. This subsection specifically provides, however, that it shall be a defense to any prosecution under this section that the information or document in question had been officially released to the public by an authorized representative of the United States Government prior to the sale or transfer in question.
Section 7 amends title 93 of title 18, United States Code, relating to the responsibilities of public officers and employees, to provide that any officer or employee of the United States, or person acting for or on behalf of the United States, who becomes possessed of `Top Secret' documents or materials, who knowingly removes such documents or materials without authority and retains them at an unauthorized location, shall be fined not more than $1,000, or imprisoned for not more than one year, or both.
Section 8 amends chapter 211 of title 18 of the United States Code by adding a new section 3239 to establish jurisdiction in certain U.S. federal courts to try cases involving violations of the espionage laws where the alleged misconduct takes place outside the United States.
Specifically, the U.S. District Court for the District of Columbia and the U.S. District Court for the Eastern District of Virginia are granted jurisdiction over any offense involving a violation of the U.S. statutes enumerated in the section which were begun or committed upon the high seas or elsewhere out of the jurisdiction of any particular state or district.
Section 9 amends section 3681 of title 18, United States Code, to provide for expansion of the forfeiture provision to certain espionage offenses that are not enumerated in the existing law. These include violations of 18 U.S.C. 793 (gathering defense information with the intent to damage the United States); 18 U.S.C. 798 (disclosure of communications intelligence); 50 U.S.C. 783(b) (communication of classified information by a government employee to a foreign government); and the new criminal offenses which are created by this Act (18 U.S.C. 799a possession of espionage devices, added by section 5, and 18 U.S.C. 794a the sale or transfer of `Top Secret' documents added by section 6).
The amendment to section 3681 also covers crimes of espionage that may be prosecuted under the Uniform Code of Military Justice, (Chapter 47 of Title 10, United States Code) or convictions in foreign courts which, if they occurred in the United States, would constitute offenses under the provisions of the United States Code enumerated above.
Section 10 amends 5 U.S.C. 8312 to provide that an individual may be denied an annuity or retired pay by the United States, to which he or she may otherwise have been entitled, if he or she is convicted in a
foreign country of offenses involving espionage against the United States for which such annuity or retired pay could have been denied had such offenses occurred within the United States.
A new subsection (d) is added to section 8312 which provides that for purposes of section 8312 an offense is established if the Attorney General certifies to the agency employing or formerly employing the person concerned that--
(1) the individual has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances that would violate the provisions of law enumerated in subsections (b) and (c) of section 8312, had such conduct occurred within the United States, and that such conviction was not being appealed or that final action had been taken on such appeal within the foreign country concerned;
(2) that such conviction was obtained in accordance with procedures that afforded the defendant due process rights comparable to those provided by the U.S. Constitution, and such conviction was based upon evidence that would have been admissible in U.S. courts; and
(3) that such conviction occurred after the effective date of subsection (d).
The proviso to subsection (d) also provides that any such certification made by the Attorney General is subject to review by the United States Court of Claims based upon the application of the person concerned, or his or her attorney, alleging that the conditions certified by the Attorney General have not been satisfied in this particular case. If the court determines, after appropriate review, that the conditions established by the statute have not been met, it shall order the annuity or retirement benefit restored and shall order any payments which may have been withheld or denied to be paid.
Section 11 would amend the Consumer Credit Protection Act by inserting `(a)' before the existing paragraph of section 608 (15 U.S.C. 1681f.) and by adding four new subsections.
Subsection (b) would provide that, notwithstanding the provisions of section 604 of the Act of this Title, a consumer reporting agency shall furnish a consumer report to the FBI when presented with a request for a consumer report made pursuant to this subsection by the FBI provided that the FBI Director, or the Director's designee, certifies in writing to the consumer reporting agency that such records are sought in connection with an authorized foreign counterintelligence investigation and that there are specific and articulable facts giving reason to believe the person to whom the requested consumer report relates is an agent of a foreign power as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
It is the intent of Congress that, if the Director delegates his function under subsections (b) and (c) to a designee, he will delegate it no further down the FBI chain of command than the level of Deputy Assistant Director. The Congress also recognizes that the Director may delegate to the head or acting head of an FBI field office the authority to make the required certification in exigent circumstances where time is of the essence, provided that the Director is notified as soon as possible for the circumstances involved.
The Congress also accepts the FBI's assurance that it will not under any circumstances rely upon the substantive financial information from consumer reports obtained under this section without verifying such information with the institution concerned. As reflected in other provisions of the Consumer Credit Protection Act, Congress has long been concerned that credit reports may be inaccurate. The FBI has advised that to rely solely upon such information as the basis for further investigative inquiry without verifying its accuracy would constitute poor investigative practice. The Congress recognizes it could lead to unjustified intrusions upon the privacy of innocent Americans. The best evidence would be contained in the records of the financial institutions located through the use of consumer credit reports. The Congress expects that in its internal regulations implementing this provision the FBI will permit use of unverified credit bureau ratings or financial information only to locate actual financial transaction records on record with financial or commercial entities.
Subsection (c) would provide that, notwithstanding the provisions of section 604 of the Act, a consumer reporting agency shall furnish identifying information respecting any consumer, limited to name, address, former addresses, places of employment, or former places of employment, to a representative of the FBI when presented with a written request signed by the
FBI Director, or the Director's designee, stating that the information is necessary to the conduct of an authorized foreign counterintelligence investigation.'
Under current law (50 U.S.C. 1681f.) the FBI may obtain such identifying information upon request, but there is no requirement that a consumer reporting agency comply with the FBI's request and no limitation on disclosure of the request to the consumer. It is the intent of the Congress that any FBI request for information under this provision must meet the standards of applicable Attorney General's guidelines for obtaining identifying information. In addition, there should be reason to believe that the person has been in communication with a foreign power or an agent of a foreign power. The Congress understands and expects that the FBI would continue to request identifying information under the provision of existing law, but in such case the consumer reporting agency would not be compelled to comply with the FBI's request and would be permitted to disclose the request to the consumer. The Congress intends that the FBI should continue to compensate consumer credit reporting companies only for providing identifying information voluntarily as under existing law.
Subsection (d) would provide that no consumer reporting agency, or officer, employee, or agent of such institution, shall disclose to any person that the FBI has sought or obtained a consumer report or identifying information respecting any consumer under this section. Congress has enacted similar provisions to protect the security of foreign counterintelligence investigations in the Right to Financial Privacy Act and the Electronic Communications Privacy Act. The purpose is to prevent premature disclosure of a pending investigation and to enable the FBI, rather than the consumer reporting agency, to make whatever disclosures of the FBI's inquiries may be appropriate under existing Attorney General Guidelines. The language is not intended to preclude appropriate disclosure related to requests by relevant Congressional oversight committees.
Finally, subsection (e) would require that on an annual basis the FBI Director shall fully inform the House and Senate Intelligence Committees concerning the FBI's exercise of its authority under these provisions. As part of this report, the Congress intends that the FBI should inform the House or Senate Intelligence Committee of the facts and circumstances that are the basis for obtaining information concerning any domestic or group substantially composed of United States persons. It is not intended, however, that the report identify particular individuals whose consumer credit records were obtained pursuant to this section.
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Section 12 amends Chapter 204 of title 18, United States Code, to provide the Attorney General with discretionary authority to pay rewards for information leading to the arrest or conviction of espionage against the United States or leading to the prevention or frustration of such acts.
Subsection (a) renumbers the existing provisions of section 3071, which provides discretionary authority for the Attorney General to pay rewards for information leading to the arrest or conviction of persons for acts of terrorism against the United States, as subsection (a) of subsection 3071, and adds a new subsection (b) to this section.
The new subsection (b) provides that, with respect to acts of espionage involving or directed at United States information classified in the interests of national security, the Attorney General may reward any individual who furnishes information in either of three categories: (1) information leading to the arrest or conviction in any country of an individual or individuals for commission of an act of espionage against the United States; (2) information leading to the arrest or conviction of individuals in similar circumstances for conspiring to commit an act of espionage against the United States; and (3) information leading to the prevention or frustration of an act of espionage against the United States.
Subsection (b) of section 12 changes the maximum amount the Attorney General can pay as a reward for information provided under section 3071 from $500,000 to $1 million.
Subsection (c) amends the list of definitions in 18 U.S.C. 3077 to add definitions for two terms used in the amendments to section 3071. The term `act of espionage' is defined as an activity that is a violation of section 794, 794a [as added by section 6 of this Act], 798, or 799a [as added by section 5 of this Act] of title 18, or section 783 of title 50, United States Code. The term `United States information classified in the interest of national security' is defined as information owned or possessed by the United States Government concerning the national defense and foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure and that has been so designated.
Sec. 13. To provide a court order process for physical searches undertaken for foreign intelligence purposes.
Sec. 13 amends the Foreign Intelligence Surveillance Act of 1978 to add a new Title IV establishing statutory procedures for the approval and conduct of physical searches within the United States for foreign intelligence purposes. To the extent that the provisions of this title are the same as the provisions for electronic surveillance under FISA, the following section-by-section analysis restates in full the applicable FISA legislative history.
Section 401(a) authorizes submission of applications to the Foreign Intelligence Surveillance Court for an order approving a physical search in the United States, for the purpose of collecting foreign intelligence information, of the property, information or material of a foreign power as defined in section 101(a) (1), (2), and (3) of the Foreign Intelligence Surveillance Act (FISA), or the premises, property, information or material of an agent of a foreign power or a foreign power as defined in section 101(a) (4), (5), and (6) of FISA. Applications may be submitted only if the President has, by prior written authorization, empowered the Attorney General to approve the submission. This section does not require the President to authorize each specific application. He may authorize the Attorney General generally to seek applications under this title or upon such terms and conditions as the President wishes, so long as the terms and conditions are consistent with this title.
The reference to Presidential authorization does not mean that the President has independent, or `inherent,' authority to authorize physical search in the United States for the purpose of collecting foreign intelligence in any way contrary to the provisions of this title. As stated in section 406(a), the procedures of this bill are the exclusive means by which physical search, as defined in section 409(b), may be conducted in the United States for the purpose of collecting foreign intelligence.
Subsection (a) also authorizes a judge to whom an application is made to grant an order for physical search in the United States, for the purpose of collecting foreign intelligence information, of the specified premises, property, information or material, `notwithstanding any other law.' The `notwithstanding any other law' language is intended to make clear that, notwithstanding the Vienna Convention on Diplomatic Relations, the activities authorized by this bill may be conducted. The `notwithstanding any other law' wording also deals with the contention that 28 U.S.C. 1251, which grants the Supreme Court exclusive original jurisdiction over all actions against ambassadors of foreign states, would prevent a lower court from approving a physical search directed at a foreign ambassador.
It is noted, however, that the applications and orders authorized by this subsection do not apply to physical search of the premises of an `official' foreign power, as defined in section 101(a) (1), (2), or (3) of FISA. The Congress has determined that the balance between security and civil liberties does not require prior judicial involvement in physical search of premises of this category of targets. The physical search of premises of an `official' foreign power without a court order may be conducted only pursuant to regulations issued by the Attorney General, as provided in section 406(b). The physical search of premises of an `official' foreign power without a court order may include the search of property, information, or material that is located on those premises and is owned, used, or possessed by, or in transit from, that foreign power. However, the Congress does not intend that searches of premises of `official' foreign powers without court orders include searches of property `in transit to' such a foreign power that may be located on those premises, but has not yet come into full possession or use by that foreign power. For example, sealed packages delivered to an `official' foreign power from a person other than an officer or employee of that foreign power may not be searched without a court order, even if they are located on the premises of an `official' foreign power. In that circumstance, the court order is required because of the privacy interest of the person who is transmitting the package which has not yet been opened by the intended recipient.
Section 401(b) provides that the Foreign Intelligence Surveillance Court, as defined in section 409(e), shall have jurisdiction to hear applications for and grant orders approving physical search for the purpose of obtaining foreign intelligence anywhere within the United States under the procedures set forth in this Act. No judge shall hear the same application which has been denied previously by another judge. Subsection (b) also provides that, if any judge denies an application for an order authorizing a physical search under this Act, such judge shall provide immediately for the record a written statement of each reason for his decision. On motion of the United States, the record
shall be transmitted, under seal, to the Court of Review, as defined in section 409(f). As under FISA, this provision is intended to make clear that if the Government desires to pursue an application after a denial, it must seek review in the special court of review; it cannot apply to another judge of the Foreign Intelligence Surveillance Court. Obviously, where one judge has asked for additional information before approving an application, and that judge is unavailable when the Government comes forward with such additional information, the Government may seek approval from another judge. It would, however, have to inform the second judge about the first application.
The Congress intends that, as under FISA, the judges of the Foreign Intelligence Surveillance Court should have an opportunity to examine, when appropriate, the applications, orders, and statements of reasons for decisions in other cases.
Subsection (c) provides that the Court of Review shall have jurisdiction to review the denial of any application made under this title. If such court determines that the application was properly denied, the Court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
Subsection (d) provides that judicial proceedings under this title shall be concluded as expeditiously as possible. The record of proceedings under this title, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice of the United States in consultation with the Attorney General and the Director of Central Intelligence. The Congress intends that such measures shall be the same as those established pursuant to FISA and thus shall include such document, physical, personnel, or communications security measures as are necessary to protect information concerning proceedings under this title from unauthorized disclosure. As under FISA, such measures may also include the use of secure premises provided by the executive branch to hear an application and the employment of executive branch personnel to provide clerical and administrative assistance.
Application for an order
Section 402(a) specifies what information must be included in the application for a court order. Applications must be made by a Federal officer in writing under oath or affirmation. If the officer making the application is unable to verify the accuracy of the information or representations upon which the application is based, the application should include affidavits by other officers who are able to provide such personal verification. Thus, for example, if the applicant was an attorney in the Department of Justice who had not personally gathered the information contained in the application, it would be necessary that the application also contain an affidavit by an officer personally attesting to the status and reliability of any informants or other covert sources of information. By this means the source of all information contained in the application and its accuracy will have been sworn to by a named official of the U.S. Government and a chain of responsibility established for judicial review.
Each application must be approved by the Attorney General, who may grant such approval if he finds that the appropriate procedures have been followed. The Attorney General's written approval must indicate his belief that the facts and circumstances relied upon for the application would justify a judicial finding of probable cause to believe that the target is a foreign power or an agent of a foreign power, that the premises or property to be searched contains foreign intelligence information, and that the premises or property to be searched is owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power as well as his belief that all other statutory criteria have been met.
Paragraph (1) of subsection (a) requires that the application include the identity, if know, or a description of the target of the search. If the Government knows the identity of the target of the search, it is required to identify him. The target may be an individual or an entity.
The word `target' is nowhere defined in this title, although it is a key term because the standards to be applied differ depending on whom or what is targeted. The Congress intends that the target of a physical search is the individual or entity about whom or from whom information is sought. In most cases this would be the individual or entity who owns, uses, or possesses the premises or property to be searched. In some cases, however, it would be the
individual or entity to or from whom property is in transit. See section 402(a)(4)(C).
Generally, under this title, targeting foreign powers may be accomplished on a less strict basis than targeting of agents of foreign powers. An individual, of course, cannot be a foreign power, only an agent of a foreign power. Therefore, if the search is to be directed at an individual about whom information is sought, that individual is the target and must be shown to be an `agent of a foreign power.' Where two or three individuals are associated with one another, it might be argued that they are an `association' or an `entity,' which, if the proper showing is made, could be considered a `foreign power.' (This would especially be true if the individuals engaged in `international terrorism' and thereby might be a group engaged in international terrorism which is a defined `foreign power.') This does not mean, however, that property of each of these individuals can then be individually searched merely upon a showing that together they are a `foreign power.' Rather, to search the property of each individual would require a showing that each was an `agent of a foreign power,' with its higher standard.
Often, however, associations or entities will act in a `corporate' capacity, as distinguished from the acts of an individual in the association or entity. For example, corporations own or lease property, enter into contracts, and otherwise act as an entity distinct from the individuals therein. The fact that an individual officer or employee, acting in his official capacity, may sign the deed, lease, or contract on behalf of the corporation does not vitiate the fact that it is the corporation rather than the individual who is acting. Thus, it is possible to target a `foreign power' in such circumstances. In addition, it will be possible under this title to target a `foreign power' in certain rare cases, where the facility targeted, while owned, used, or possessed by the entity, is in fact dedicated to the use of one particular member of the entity, for instance, where each officer is assigned his own office. However, in order to justify the target as a `foreign power' rather than as an `agent of a foreign power,' the information sought must be concerning the entity, not the individual.
The judge in considering the application, wherever the Government claims the target is a `foreign power,' and especially where U.S. persons are officers or employees of the `foreign power,' must scrutinize the description of the information sought, and the property or premises to be searched, see section 402(a)(3), infra, to determine whether the target is really the `foreign power' rather than an `agent of a foreign power.' The judge must also closely scrutinize the minimization procedures to assure that where the target is a `foreign power,' the individual U.S. persons who may be members or employees of the power are properly protected.
Paragraph (2) requires that the application contain evidence of the authority to make this application. This would consist of the Presidential authorization to the Attorney General and the Attorney General's approval of the particular application.
Paragraph (3) requires that the application identify the Federal officer making the application; that is, the name of the person who actually presents the application to the judge. In addition, paragraph (3) requires that the application contain a detailed description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered. The description should be as specific as possible and should detail what type of premises or property are likely to be searched and what types of information, material, or property are likely to be seized, reproduced, or altered. Such specifics are necessary if the judge is meaningfully to assess the sufficiency and appropriateness of the minimization procedures.
Paragraph (4) requires a statement of the facts and circumstances justifying the applicant's belief that the target of the physical search is a foreign power or an agent of a foreign power, that the premises or property to be searched contains foreign intelligence information, and that the premises or property to be searched is owned, used, processed by, or is transit to or from a foreign power or an agent of a foreign power.
Paragraph (5) requires a statement of the proposed minimization procedures.
The statement of procedures required under this paragraph should be full and complete and normally subject to close judicial review. It is the intention of the Congress that minimization procedures be as uniform as possible for similar physical searches. The application of uniform procedures to identical searches will result in a more consistent implementation of the procedures, will result in improved capability to assure compliance with the procedures, and ultimately means a higher level of protection for the rights of U.S. persons.
Paragraph (6) requires the application to contain a statement of
the manner in which the physical search is to be conducted. The statement should be as detailed and specific as possible in light of the need for the judge in his order to specify the manner in which the physical search is to be conducted. For instance, where physical entry will be required, the application should so state indicating generally the circumstances involved.
Paragraph (7) requires a statement of the facts concerning all previous applications that have been made to any judge under this title involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.
Paragraph (8) requires a statement of the facts concerning any search that did not require a warrant due to exigent circumstances, as described in section 406(b), which involves any of the persons, premises, or property specified in the application. Pursuant to section 406(b), the court will already have received a full report from the Attorney General on any such search, including a description of the exigent circumstances.
Paragraph (9) requires that the application contain a statement that the purpose of the physical search is to obtain foreign intelligence information. This statement should be sufficiently detailed so as to state clearly what sorts of information the Government seeks. A simple designation of which subdefinition of `foreign intelligence information' is involved will not suffice. There must be an explanation of the determination approved by the Attorney General that the information sought is in fact foreign intelligence information. The requirement that this judgment be explained is to ensure that cases are considered carefully and to avoid statements that consist largely of boilerplate language. The Congress does not intend that the explanations be vague generalizations or standardized assertions. The applicant must similarly explain that the purpose of the physical search is to obtain the described foreign intelligence information. This requirement is designed to prevent physical searches of one target when the true purpose of the search is to gather information about another individual for other than foreign intelligence purposes. It is also designed to make explicit that the sole purpose of such physical search is to secure `foreign intelligence information,' as defined, and not to obtain some other type of information. The applicant must similarly explain why the information cannot be obtained through less intrusive techniques, see section 403(a)(1)(C). This requirement is particularly important in those cases when U.S. citizens or resident aliens are the target of the physical search.
Section 402(b) provides that the judge may require the applicant to furnish such other information as may be necessary to make the determinations required by section 403. Such additional proffers would, of course, be made part of the record and would be subject to the security safeguards applied to the application and order.
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Section 403(a) specifies the findings the judge must make before he grants an order approving physical search under this title. While the issuance of an order is mandatory if the judge finds that all the requirements of this section are met, the judge has the discretionary power to modify the order sought, such as with regard to the period of authorization or the minimization procedures to be followed. Modifications in the minimization procedures should take into account the impact of inconsistent procedures on successful implementation.
Paragraph (1) of this subsection requires the judge to find that the President has authorized the Attorney General to approve such applications.
Paragraph (2) requires the judge to find that the application has been made by a Federal officer and that the Attorney General has approved the application being submitted.
Paragraph (3) requires a finding that there is `probable cause' to believe that the target of the physical search is a foreign power or an agent of a foreign power, that the premises or property to be searched are owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power, and that physical search of such premises or property can reasonably be expected to yield foreign intelligence information which cannot reasonably be obtained by normal investigative means.
In determining whether `probable cause' exist under this section, the court should keep in mind that this standard is not the ordinary `probable cause' that a crime is being committed, applicable to searches and seizures for law enforcement purposes. Where a U.S. person is believed to be an `agent of a foreign power,' for example, there must be `probable cause' to believe that he is engaged in certain activities, but the criminality of these activities need not always be demonstrated to the same degree. The key words--`involve or may
involve'--indicate that the ordinary criminal probable cause standard does not apply with respect to the showing of criminality. For example, the activity identified by the Government may not yet involve the criminality, but if a reasonable person would believe that such activity is likely to lead to illegal activities, this would suffice. It is not intended that the Government show probable cause as to each and every element of the crime likely to be committed.
The determination by the court as to probable cause whether the person is engaging in certain activities or, for example, whether an entity is directed and controlled by a foreign government or governments, should include consideration of the same aspects of the reliability of the Government's information as is made in the ordinary criminal context--for example, the reliability of any informant, the circumstances of the informant's knowledge, the age of the information relied upon. On the other hand, all of the same strictures with respect to these matters which have developed in the criminal context may not be appropriate in the foreign intelligence context. That is, in the criminal context certain `rules' have developed or may develop for judging reliability of information. See, for example, SPINELLI v. UNITED STATES, 393 U.S. 410 (1969). It is not the intention of Congress that these `rules' necessarily be applied to consideration of probable cause under this title. Rather it is the intent of Congress that in judging the reliability of the information presented by the Government, the court look to the totality of the information and consider its reliability on a case-by-case basis.
In addition, in order to find `probable cause' to believe the subject of the surveillance is an `agent of a foreign power, as defined in section 101(b) of FISA, the judge must, of course, find that each and every element of that status exists. For example, if a U.S. citizen or resident alien is alleged to be acting on behalf of a foreign entity, the judge must first find probable cause to believe that the entity is a `foreign power' as defined in section 101(a) of FISA. There must also be probable cause to believe the person is acting for or on behalf of that foreign power and probable cause to believe that the efforts undertaken by the person on behalf of the foreign power constitute sabotage, international terrorism, or clandestine intelligence activities.
Similar findings of probable cause are required for each element necessary to establish that a U.S. citizen is conspiring with or aiding and abetting someone engaged in sabotage, international terrorism, or clandestine intelligence activities.
The proviso in paragraph (3)(A) states that no U.S. person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States. This provision is intended to reinforce the intent of the Congress that lawful political activities should never be the sole basis for a finding of probable cause to believe that a U.S. person is a foreign power or an agent of a foreign power. For example, the advocacy of violence falling short of incitement is protected by the first amendment, under the Supreme Court's decision in BRANDENBURG v. OHIO, 395 U.S. 444 (1969). Therefore, the pure advocacy of the commission of terrorist acts would not, in and of itself, be sufficient to establish probable cause that an individual or group is preparing for the commission of such acts. However, one cannot cloak himself in first amendment immunity by advocacy where he is engaged in clandestine intelligence activities, terrorism, or sabotage.
Paragraph (3) (B) and (C) require the judge to find probable cause to believe that the premises or property to be searched are owned, used, possessed, by or in transit to or from a foreign power or an agent of a foreign power and that physical search of such premises or property can reasonably be expected to yield foreign intelligence information which cannot reasonably be obtained by normal investigative means.
Paragraph (4) requires the judge to find that the procedures described in the application to minimize the acquisition and retention, and prohibit dissemination, of certain information relating to U.S. persons fit the definition of minimization procedures in this title. The Congress contemplates that the court would give these procedures most careful consideration. If it is not of the opinion that they will be effective, the procedures should be modified.
Paragraph (5) requires that the judge find that the application contains the statements required by section 402. If the statements do not conform to the requirements of section 402, they can and must be rejected by the court.
Subsection (b) specifies what the order approving the physical search must contain. Paragraph (1) requires that it must specify the Federal officer or officers authorized to conduct the physical search and the identity, if known, or a description of the target of the physical search. It must also specify the premises or property to be searched and the information, material or property to be seized, altered, or reproduced, as well as the type of
foreign intelligence information sought to be acquired. The order must include a statement of the manner in which the search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search. These requirements are designed in light of the Fourth Amendment's requirements that warrants describe with particularity and specificity the person, place, and objects to be searched and seized.
Paragraph (2) of subsection (b) details what the court directs in the order. The order shall direct that minimization procedures will be followed. The order may also direct that a landlord, custodian, or other specified person furnish information, facilities or assistance necessary to accomplish the search successfully and in secrecy and with a minimum of interference to the services provided by such person to the target of the search. If this is done, the court shall direct that the person rendering the assistance maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the search or the aid furnished that such person wishes to retain. The order presented to the person rendering assistance need not be the entire order approved by the judge under this title. Rather only that portion of the order described in section 403(b)(2) (B)-(C), signed by the judge need be given to the specified person. This portion of the order should specify the person directed to give assistance, the nature of the assistance required, and the period of time during which such assistance is authorized.
Paragraph (2)(C) requires that the order direct that the physical search be undertaken within 30 days of the date of the order, or, if the physical search is of the property, information or material of a foreign power as defined in section 101(a) (1), (2), or (3) of FISA, that such search be undertaken within one year of the order. The comparable periods in FISA are 90 days for most targets and one year for `official' foreign powers.
Paragraph (2)(D) requires that the order direct that the federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search. This report may be made to a judge other than the judge who granted the order approving the search.
Subsection 403(c) provides that at any time after a physical search has been carried out, the judge to whom the return has been made may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated. This provision is not intended to require that the judge assess such compliance, nor is it intended to limit such assessments to any particular intervals. However, it is useful to spell out the judge's authority explicitly so that there will be no doubt when a judge may review the manner in which information about U.S. persons is being handled.
Subsection 403(d) provides that applications made and orders granted under this title shall be retained for a period of at least ten years from the date of the application. This is identical to the FISA requirements, and the purpose is to assure accountability.
Subsection 403 (e) and (f) establish a special notice procedure for those rare cases where a physical search of the residence of a United States person is conducted under this title. This provision reflects the court opinions which describe the search of the home as being at the `core' of the fourth amendment. In PAYTON v. NEW YORK, 445 U.S. 573 (1980), the Supreme Court declared:
`The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home--a zone that finds its roots in clear and specific constitutional terms: `The right of the people to be secure in their . . . houses . . . shall not be violated.' That language unequivocally establishes the proposition that `[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' Id. at 589-90 (quoting SILVERMAN v. UNITED STATES, 365 U.S. 505, 511 (1961)).
Special protection for homes is also consistent with other legislation which imposes criminal penalties for searches of private dwellings. (See 18 U.S.C. 2236).
Subsection (e) provides that not more than 60 days after a physical search of the residence of a United States person authorized by this title, or such a search in the `exigent circumstances' described in section 406(b), has been conducted, the Attorney General shall provide the United States person with an inventory which shall include (1) the existence or not of a court order authorizing the physical search and the date of the order; (2) the date of the physical search and an identification of the premises or property
searched; and
(3) a list of any information, material, or property seized, altered, or reproduced. Subsection (f) provides that on an ex parte showing of good cause by the Attorney General to a judge of the Foreign Intelligence Surveillance Court the provision of the inventory required by subsection (e) may be postponed for a period not to exceed 90 days. At the end of such period the provision of the inventory may, upon a similar showing, be postponed indefinitely. The denial of a request for such postponement may be reviewed as provided in section 401.
The Congress anticipates that searches of the residence of U.S. persons under this title will be infrequent. The `good cause' which may be grounds for postponement of notice is intended to include national security and practical considerations. Notice may harm national security by, for example, exposing an important ongoing espionage or international terrorism investigation. An illustration of practical grounds for postponement of notice would be a situation where the target was a permanent resident alien who returned after the search to his country of origin. It should be noted than the procedures for use of information under section 404, below, also require notice to any target against whom information acquired by a physical search under this title is to be used in legal proceedings.
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Section 404 places additional constraints on Government use of information obtained from physical search under this title and establishes detailed procedures under which information may be received in evidence, suppressed, or discovered. With respect to the use of information in legal proceedings, notice should be given to the aggrieved person as soon as possible, so as to allow for the disposition of any motions concerning evidence derived from physical search. In addition, the Attorney General should at all times be able to assess whether and to what extent the use of information made available by the Government to a State or local authority will be used.
Subsection (a) requires that information concerning U.S. persons acquired from physical search pursuant to this title may be used and disclosed by Federal officers and employees, without the consent of the U.S. person, only in accordance with the minimization procedures defined in section 409(c). This provision ensures that the use of such information is carefully restricted to actual foreign intelligence or law enforcement purposes. No information (whether or not it concerns a U.S. person) acquired from a physical search pursuant to this title may be used or disclosed except for lawful purposes. This is to ensure that information concerning foreign visitors and other non-U.S. persons, the use of which is not restricted to foreign intelligence or law enforcement purposes, is not used for illegal purposes.
There is no specific restriction in this title regarding to whom Federal officers may disclose information concerning U.S. persons acquired pursuant to this title although specific minimization procedures might require specific restrictions in particular cases. First, the Congress believes that dissemination should be permitted to State and local law enforcement officials. If Federal agents conducting a physical search authorized under this title were to acquire information relating to a violation of State criminal law, such as homicide, the agents could hardly be expected to conceal such information from the appropriate local officials. There will be an appropriate weighing of criminal law enforcement needs against possible harm to national security from the disclosure. Second, the Congress can conceive of situations where disclosure should be made outside of Government channels. For example, Federal agents may learn of a terrorist plot to kidnap a business executive. Certainly in such cases they should be permitted to disclose such information to the executive and his company in order to provide for the executive's security.
Finally, the Congress believes that foreign intelligence information relating to crimes, espionage activities, or the acts and intentions of foreign powers may, in some circumstances, be appropriately disseminated to cooperating intelligence services of other nations. So long as all the procedures of this title are followed by the Federal officers, including minimization and the limitations on dissemination, this cooperative relationship should not be terminated by a blanket prohibition on dissemination to foreign intelligence services. The Congress wishes to stress, however, that any such dissemination be reviewed carefully to ensure that there is a sufficient reason why disclosure of information to foreign intelligence services is in the interests of the United States.
Disclosure, in compelling circumstances, to local officials for the purpose of enforcing the criminal law, to the targets of clandestine intelligence activity or planned violence, and to foreign intelligence services under the circumstances described above are generally the only exceptions to the rule that dissemination should be limited to Federal officials.
Subsection (b) requires that any disclosure of information for law enforcement purposes must be accompanied by a statement that such evidence, or any information derived therefrom, may be used in a criminal proceeding only with the advance authorization of the Attorney General. This provision is designed to eliminate circumstances in which a local prosecutor has no knowledge that evidence was obtained through a foreign intelligence search. In granting approval of the use of evidence the Attorney General would alert the prosecutor to the search and he, in turn, could alert the court in accordance with subsection (c) or (d).
Subsections (c) through (i) set forth the procedures under which information acquired by means of physical search under this title may be received in evidence or otherwise used or disclosed in any trial, hearing or other Federal or State proceeding. Although the primary purpose of physical search conducted pursuant to this title is not likely to be the gathering of criminal evidence, it is contemplated that such evidence will be acquired and these subsections establish the procedural mechanisms by which such information may be used in formal proceedings. Notice should be given to the aggrieved person as soon as possible, so as to allow for the disposition of any motions concerning evidence derived from physical search under this title.
At the outset the Congress recognizes that nothing in these subsections abrogates the rights afforded a criminal defendant under BRADY v. MARYLAND, 373 U.S. 83 (1963), and the Jencks Act, 18 United States Code, Section 3500 ET SEQ. These legal principles inhere in any such proceedings and are wholly consistent with the procedures detailed here. Furthermore, nothing contained in this section is intended to alter the traditional principle that the Government cannot use material at trial against a criminal defendant, and then withhold from him such material at trial. UNITED STATES v. ANDOLSCHEK, 142 F. 2d 503 (2nd. Cir. 1944).
Subsection (c) states that whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from a physical search of the premises or property of that aggrieved person pursuant to the authority of this title, the United States shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information. This provision applies to information acquired from a physical search under this title or any fruits thereof.
Subsection (d) places the same requirements upon the States and their political subdivisions, and also requires notice to the Attorney General. The Attorney General should at all times be able to assess whether and to what extent the use of information made available by the Government to a State or local authority may be used.
Subsection (e) provides a separate statutory vehicle by which an aggrieved person against whom evidence derived or obtained from a physical search under this title is to be or has been introduced or otherwise used or disclosed in any trial, hearing or proceeding may move to suppress the information acquired by physical search or evidence derived therefrom. The grounds for such motion would be that (1) the information was unlawfully acquired, or (2) the search was not made in conformity with the order of authorization or approval. A motion under this subsection must be made before the trial, hearing, or proceeding unless there was no opportunity to make such a motion or the movant was not aware of the grounds for the motion. It should be noted that the term `aggrieved person,' as defined in section 409(d) does not include those who are mentioned in documents obtained or copied in a physical search.
Subsection (f) states in detail the procedure the court shall follow when it receives a notification under subsection (c) or (d) or a suppression motion is fined under subsection (e). This procedure applies, for example, whenever an individual makes a motion pursuant to subsection (d) or any other statute or rule of the United States to discover, obtain or suppress evidence or information obtained or derived from physical search conducted pursuant to this title (for example, Rule 12 of the Federal Rules of Criminal Procedure). Although a number of different procedures might be used to attack the legality of the search, it is this procedure `notwithstanding any other law' that must be used to resolve the question. The procedures set out in subsection (f) apply whatever the underlying rule or statute referred to in the motion. This is necessary to prevent the carefully drawn procedures in subsection (f) from being bypassed by the inventive litigant using a new statute, rule or judicial construction.
The special procedures in subsection (f) cannot be invoked until they are triggered by a Government affidavit that disclosure of an adversary hearing would harm the national security of the United States. If no such assertion is made, it is envisioned that mandatory disclosure of the application and order, and discretionary disclosure of other surveillance materials, would be available to the defendant. When the procedure is so triggered, however, the Government must make available to the court a copy of the court order and accompanying application upon which the physical search was based.
The court must then conduct an ex parte, in camera inspection of these materials as well as any other documents relating to the search which the Government may be ordered to provide, to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. The subsection further provides that in making such a determination, the court may order disclosed to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the physical search only where such disclosure is necessary to make an accurate determination of the legality of the physical search.
The procedures set forth in subsection (f) are intended to strike a reasonable balance between an entirely in camera proceeding which might adversely affect the defendant's ability to defend himself, and mandatory disclosure, which might occasionally result in the revelation of sensitive foreign intelligence information. The decision whether it is necessary to order disclosure to a person is for the Court to make after reviewing the underlying documentation and determining its volume, scope, and complexity. Note the discussion of these matters in UNITED STATES v. BUTENKO, SUPRA. There, the Court of Appeals, faced with the difficult problem of determining what standard to follow in balancing national security interests with the right to a fair trial, stated with respect to electronic surveillance:
`The distinguished district court judge reviewed in camera the records of the wiretaps at issue here before holding the surveillance to be legal. . . . Since the question confronting the district court as to the second set of interceptions was the legality of the taps, not the existence of tainted evidence, it was within his discretion to grant or to deny Ivanov's request for disclosure and a hearing. The exercise of this discretion is to be guided by an evaluation of the complexity of the factors to be considered by the court and by the likelihood that adversary presentation would substantially promote a more accurate decision.' (494 F. 2d at 607.)
Thus, in some cases, the Court will likely be able to determine the legality of the search without any disclosure to the defendant. In other cases, however, the question may be more complex because of, for example, indications of possible misrepresentation of fact, vague identification of the persons to be targeted or search records which include a significant amount of non-foreign intelligence information, calling into question compliance with the minimization standards contained in the order. In such cases, it is contemplated that the court will likely decide to order disclosure to the defendant, in whole or in part, since such disclosure `is necessary to make an accurate determination of the legality of the physical search.'
Cases may arise, of course, where the Court believes that disclosure is necessary to make an accurate determination of legality, but the Government argues that to do so, even given the Court's broad discretionary power to excise certain sensitive portions, would damage the national security. In such situations the Government must choose--either disclose the material or forgo the use of the search-based evidence. Indeed, if the Government objects to the disclosure, thus preventing a proper adjudication of legality, the prosecution would probably have to be dismissed.
Subsection (g) states that if the United States district court pursuant to subsection (f) determines that the physical search was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved
person. If the court determines that the physical search was lawfully authorized and conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.
The general phrase `in accordance with the requirements of law' has been chosen to deal with the problem of what procedures are to be followed in those cases where the trial court determines that the surveillance was unlawfully authorized or conducted. The evidence obtained would not, of course, be admissible during the trial. But beyond this, in the case of an illegal surveillance, the Government is constitutionally mandated to surrender to the defendant all the records of the surveillance in its possession in order for the defendant to make an intelligent motion on the question of taint. The Supreme Court in ALDERMAN v. UNITED STATES, 394 U.S. 165 (1968) held that, once a defendant claiming evidence against him was the fruit of unconstitutional electronic surveillance has established the illegality of such surveillance (and his `standing' to object), he must be given confidential materials in the Government's files to assist him in establishing the existence of `taint.' The Court rejected the Government's contention that the trial court could be permitted to screen the files in camera and give the defendant only material which was `arguably relevant' to his claim, saying such screening would be sufficiently subject to error to interfere with the effectiveness of adversary litigation of the question of `taint.' The Supreme Court refused to reconsider the ALDERMAN rule and, in fact reasserted its validity in its KEITH decision. (UNITED STATES v. ALDERMAN, supra, at 393.)
When the court determines that the surveillance was lawfully authorized and conducted, it would, of course, deny any motion to suppress. In addition, once a judicial determination is made that the surveillance was lawful, a motion for discovery of evidence must be denied unless disclosure or discovery is required by due process.
Subsection (h) states that orders granting motions or requests under subsection (g), decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court. It is intended that all orders regarding legality and disclosure shall be final and binding only where the rulings are against the Government.
Subsection (i) states that the provisions of this section regarding the use or disclosure of information obtained or derived from a search shall apply to information obtained or derived from a search conducted without a court order to obtain foreign intelligence information which is not a physical search as defined in this title solely because the existence of exigent circumstances would not require a warrant for law enforcement purposes. As discussed with respect to section 406(b), below, a search may be conducted without a court order to obtain foreign intelligence information in exigent circumstances. This subsection makes clear that the use or disclosure of information obtained or derived from such a search must be governed by the provisions of this section.
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Section 405(a) provides that on a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence concerning all physical searches conducted pursuant to this title, and all other searches, except those reported under section 108 of FISA relating to electronic surveillance, conducted in the United States for foreign intelligence purposes. The reference to `all other searches' is intended to include those searches which would require a judicial warrant for law enforcement purposes absent exigent circumstances. Also included are any other searches which may not fall within the definitions of `physical search' and `electronic surveillance' under this Act, but which may be conducted in the United States to collect foreign intelligence information.
In addition, on an annual basis the Attorney General shall provide to those committees a report setting forth with respect to the preceding calendar year (a) the total number of applications made for orders approving physical searches under this title; and (b) the total number of such orders either granted, modified, or denied. The comparable provision of FISA requires a public report to the Administrative Office of the United States Courts. The reports concerning physical searches are to be submitted to the committees, and may be classified, because the Justice Department has advised that the numbers may be so few as to reveal sensitive information concerning U.S. foreign counterintelligence activities.
Subsection (b) of section 405 provides that whenever a search is conducted without a court order to obtain foreign intelligence information which is not a physical search as defined in this title solely because the existence of exigent circumstances would not require a warrant for law enforcement purposes, a full report of such search, including a description of the exigent circumstances, shall be maintained by the Attorney General. Each such report shall be transmitted to the Foreign Intelligence Surveillance Court promptly after the search is conducted.
The term `exigent circumstances' means circumstances in which it is impossible, for practical reasons, to apply for a court order authorizing the search before the opportunity to conduct the search would be lost due to the delay. As discussed below with respect to section 406(b), such searches may be conducted only pursuant to regulations issued by the Attorney General and reported to the intelligence committees. The exigent circumstances that may justify a search without a court order must relate solely to the time required to apply for a court order. Whenever the circumstances allow time to apply for a court order, such an order must be obtained. If a search is approved without a court order due to exigent circumstances and then is postponed, the process of application for a court order must being at once and every reasonable effort must be made to apply for an order. If the opportunity for the search reappears before the application is submitted, the search may be conducted only if that opportunity is so limited in duration and so unlikely to recur that further delay to obtain the court order would preclude the search.
An example is the search of a package entrusted to a courier in an espionage network. The courier may receive the package without warning and be instructed to deliver it with a tight deadline. If the courier is a U.S. intelligence source, the package may be accessible to Federal officers for a brief time, and Federal officers may have no advance knowledge that the courier will receive the package. If all the conditions that would justify a court order are met, the search may be approved. If the courier is unable to make the package available at the expected time and the search is postponed with the possibility of a later opportunity, the process of application for an order must begin as soon as possible so that every reasonable effort is made to obtain a court order prior to the next opportunity for a search. If more than one search is contemplated, the application process should also begin as soon as possible and every reasonable effort must be made to obtain a court order prior to the next search or searches.
Section 406(a) provides that the procedures contained in this title shall be the exclusive means by which a physical search, as defined in this title, may be conducted in the United States for foreign intelligence purposes, and an order issued under this title authorizing a physical search shall constitute a search warrant authorized by law for purposes of any law.
The intent of the `exclusive means' provision is the same as the comparable FISA provision, as reflected in the statement of managers accompanying the Conference Report on FISA. The establishment by this title of exclusive means by which the President may conduct physical searches within the United States to collect foreign intelligence information does not foreclose a different decision by the Supreme Court. The intent is to apply the standard set forth in Justice Jackson's concurring opinion in the Steel Seizure Case: `When a President takes measures incompatible with the express or implied will of Congress, his power is at the lowest ebb, for then he can rely only upon his own Constitutional power minus any Constitutional power of Congress over the matter.' YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, 343 U.S. 579, 673 (1952).
Subsection (a) of section 406 also provides that an order issued under this title authorizing a physical search shall constitute a search warrant authorized by law for purposes of any other law. For example, a federal statute makes it a crime for a federal law enforcement officer to search a private dwelling without a judicial warrant, except incident to an arrest or with the consent of the occupant. 18 United States Code, Section 2236. While a Justice Department opinion has concluded that this statute does not bar `properly authorized warrantless physical searches for national security purposes,' the opinion states that `the issue is not free from doubt.' See S. Rept. 98-660, p. 18. This provision resolves that issue by making clear that a court order under this title meets the statutory warrant requirement for dwelling searches. Similar federal statutes prohibit the opening of mail in United States postal channels without a judicial warrant. See 18 United States Code, Sections 1701-1702, 1703(b) and 39 United States Code, Section 3623(d). This title is not intended to modify or supersede those federal statutes which authorize FBI access without a warrant to financial or telephone records or similar information in
foreign counterintelligence investigations.
Subsection (b) of section 406 provides that searches conducted in the United States to collect foreign intelligence information, other than physical searches as defined in this title and electronic surveillance as defined in FISA, and physical searches conducted in the United States without a court order to collect foreign intelligence information, may be conducted only pursuant to regulations issued by the Attorney General. This provision is intended to apply primarily to two types of activity--first, searches conducted in exigent circumstances without a warrant which, absent exigent circumstances, would require a warrant for law enforcement purposes; and second, physical searches of the premises of `official' foreign powers which do not come within the jurisdiction of the Court under section 401(a) of this title. This provision also would apply to any other searches which may not fall within the definitions of `physical search' and `electronic surveillance' in this Act, but which may be conducted in the United States to collect foreign intelligence information.
The regulations issued by the Attorney General for these activities, and any changes to those regulations, are to be provided to the intelligence committees at least 14 days prior to taking effect. Any regulations issued by the Attorney General regarding such activities which were in effect as of January 1, 1994, shall be deemed to be regulations required by this subsection.
Section 407(a)(1) makes it a criminal offense for officers or employees of the United States to intentionally engage in physical search within the United States under color of law for the purpose of obtaining foreign intelligence information except as authorized by statute. Section 407(a)(2) makes it a criminal offense for officers or employees of the United States to intentionally disclose or use information obtained under color of law by physical search, knowing or having reason to know that the information was obtained through physical search not authorized by statute and conducted in the United States for the purpose of obtaining foreign intelligence information. Section 407(b) provides an affirmative defense to a law enforcement or investigative officer who engages in such an activity for law enforcement purposes in the course of this official duties, and the physical search was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction. The penalty is a fine of not more than $10,000 or imprisonment for not more than five years, or both. Section 407(d) makes clear that there is Federal jurisdiction over an offense under this section of the person committing the offense was an officer or employee of the United States when the offense was committed.
One of the important purposes of this title is to afford security to intelligence personnel so that if they act in accordance with the statute, they will be insulated from liability; it is not to afford them immunity when they intentionally violate the law. The word `intentionally' was carefully chosen. It is intended to reflect the most strict standard for criminal culpability. The Government would have to prove beyond a reasonable doubt both that the conduct engaged in was in fact a violation, and that it was engaged in with a conscious objective or desire to commit a violation.
Section 408 imposes civil liability for violations of section 407, and authorizes an `aggrieved person,' as defined in section 409(d), to recover actual damages, punitive damages, and reasonable attorney's fees and other investigative and litigation costs reasonably incurred. Since the civil cause of action only arises in connection with a violation of the criminal provision, the statutory defense does not have to be restated. Although included in the definition of `aggrieved person,' foreign powers and non-U.S. persons who act in the United States as officers or employees of foreign powers or as members of international terrorist groups would be prohibited from bringing actions under section 407. Other foreign visitors, including those covered by section 101(b)(1)(B) of the definition of `agent of a foreign power,' would have a cause of action under this provision. Those barred from the civil remedy will be primarily those persons who are themselves immune from criminal or civil liability because of their diplomatic status.
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Section 409(a) provides that the terms `foreign power,' `agent of a foreign power,' `international terrorism,' `sabotage,' `foreign intelligence information,' `Attorney General,' `United States person,' `United States,' `person,' and `State' shall have the same meaning as in Section 101 of the Foreign Intelligence Surveillance Act of 1978 (FISA). The legislative history of these FISA definitions is applied to physical search below. Because many of the substantive aspects of this title derive from the FISA
definitions of particular terms, this subsection is critical to understanding this title as a whole.
The definition of `foreign power' in section 101(a) of FISA reads as follows:
(a) `Foreign power' means--
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.
`Foreign power' is defined in section 101(a) of FISA in six separate ways. These definitions are crucial because physical searches may only be targeted against foreign powers or agents of foreign powers.
It is expected that certain of the defined `foreign powers' will be found in the United States and targeted directly; others are not likely to be found in the United States but are included in the definition more to enable certain persons who are their agents, and who may be in the United States, to be targeted as `agents of a foreign power,' as defined. As will appear below, the six categories may well overlap, and an entity may well be found to a `foreign power' under more than one category. This is not improper. These categories are intended to be all-encompassing, and clear lines cannot always be drawn between different descriptions of the types of entities which justify targeting physical search. The six categories are:
(1) `A foreign government or any component thereof, whether or not recognized by the United States.' This category would include foreign embassies and consulates and similar `official' foreign government establishments that are located in the United States.
(2) `A faction of a foreign nation or nations, not substantially composed of United States persons.' This category is intended to include factions of a foreign nation or nations which are in a contest for power over, or control of the territory of, a foreign nation or nations. An example of such a faction might be the PLO, the Eritrean Liberation Front, or similar organizations. Specifically excluded from this category is any faction of a foreign nation or nations which is substantially composed of permanent resident aliens or citizens of the United States. The word `substantially' means a significant proportion, but it may be less than a majority.
(3) `An entity, which is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments.' This category is specifically delineated in order to treat entities of this type in the same manner as the government they serve by including them within those `official' foreign powers whose premises may be subject to a physical search without a court order. Only entities `openly acknowledged' by a foreign government to be both directed and controlled by it are subject to this provision.
Those entities which are clearly arms of a government or governments meet this definition. This category would include, for example, a legitimate commercial establishment which is directed and controlled by a foreign government. Such a legitimate commercial establishment might be a foreign government's airline, even though it was incorporated in the United States. Also included in this definition would be international organizations of states such as the Organization of Petroleum Exporting Countries or the Organization for African Unity. Where such organizations are involved, it is not necessary to show that one or two countries control the organization. Rather, it is sufficient to show that the organization is made up of governmental entities which collectively direct and control the organization.
It is recognized that this type of foreign power includes corporations or organizations present in the United States which may have many United States citizens as employees or even officers. Nevertheless, this fact does not detract from the fact that the organization acts as an arm of a foreign government or governments and as such may engage in activities directly affecting our national interests or security. In such circumstances a physical
search targeted against such an entity should focus on the premises, property, information, or material of the organization, not of its employees or members who are United States citizens. A search of the premises, property, information, or material of an individual employee could be justified only by obtaining a separate court order for the individual target.
A law firm, public relations firm, or other legitimate concern that merely represents a foreign government or its interests does not mean it is an entity in this category. The question whether a group, commercial enterprise, or organization comes within the scope of this definition is one for the court to answer on the basis of a probable cause standard.
(4) `A group engaged in international terrorism or activities in preparation therefor.' The term `international terrorism' is a defined term, see below, and includes within it a criminal standard. A group under this category must be engaged in `international terrorism,' as defined, or be in preparation therefor. Such groups would include Black September, the Red Army Faction, the Red Brigades, and the Japanese Red Army. It would not include groups engaged in terrorism of a purely domestic nature. The citizenship of the terrorist group or its members while relevant to the determination of whether it is a `foreign power,' is not determinative. It is not required that the group be `foreign-based,' because in the world of international terrorism a group often does not have a particular `base,' or if it does, it may be impossible to determine. Perhaps more importantly, where its base is located is often irrelevant to the foreign intelligence interest or concern with respect to the group. There have been domestically based international terrorist groups, which have engaged in acts overseas which have resulted in deaths. The group must be engaged in criminal terrorist activities, which are international in scope or manner of execution. See the discussion of `international terrorism,' below.
Generally, such groups will not be targeted in the United States as `foreign powers,' if only because such a group is not likely to maintain an official presence here. Rather, members of the group may be in the United States either singly or in bunches, and they will be targeted as `agents of a foreign power,' to wit, agents of a group engaged in international terrorism.
(5) `A foreign-based political organization, not substantially composed of United States persons.' This category would include foreign political parties. In some countries, both totalitarian and parliamentary, ruling parties effectively control the government. Thus, information concerning the activities and intentions of these parties can directly relate to the activities and intentions of their government. Moreover, the intentions and positions of minority parties can also be of great importance to this nation, because, although minorities, they may affect the course of their government or they may come to power, in which case it would be important to have prior knowledge of their positions and intentions. Finally, this category is not limited to political parties; their are other foreign political organizations which exercise or have potential political power in a foreign country or internationally. Because it can be important to this nation to have intelligence concerning any organization which exercises or has potential political power in a foreign country or internationally targeting such organizations can be proper. On the other hand, where a political organization is domestically based or is substantially composed of U.S. persons and does not otherwise fall within the other definitions of `foreign power' or `agent of a foreign power,' the gathering of political information concerning that organization by physical search--even though desired or even important to this Government--is improper and raises grave First Amendment questions. This definition clearly does not include organizations comprised of Americans of Greek, Irish, Jewish, Chinese, or other extractions who have joined together out of interest or concern for the country of their ethnic origin.
(6) An entity, which is directed and controlled by a foreign government or `governments.' This category is similar to category (3) above, except that the entity need not be openly acknowledged to be directed and controlled by a foreign government or governments. Such an entity must be acting as an arm of the government with respect to activities that are of foreign intelligence or counterintelligence significance. An example would be an entity which appears to be a legitimate commercial establishment, but which is being utilized by a foreign government as a cover for espionage activities. The concerns set forth with respect to openly controlled entities apply to this category as well. There is the added danger that targeting of a covertly controlled entity, substantially composed of U.S. persons, would potentially offer a means for evading the requirements for targeting of individual U.S. persons. Therefore, it is important to emphasize that the judge must find probable cause the entity is both `directed' and `controlled' by a foreign government or
governments. Merely following the directions of a foreign government which wants a group to lobby or speak out publicly on behalf of the government's interests, is not in itself sufficient to place the group in this category. While direction and control are separate elements to be established, the same evidence can demonstrate both.
Again, a law firm, public relations firm, etc. that merely represents a foreign government or its interests does not mean it is an entity in this category. The entity which sees its own interests as parallel to those of a foreign government and acts accordingly is not by this directed and controlled by that government. It is only when the foreign government or its agents influence the entity to the extent that the entity yields its independent judgments that an entity become directed and controlled by a foreign government. In particular cases, obviously, it may be difficult to discern the actual direction and control, and, of course, circumstantial evidence may suffice in establishing probable cause, but no entity which purports to be a U.S. person should be considered directed and controlled by a foreign government solely on the basis that its activities are consistent with the desires of a foreign government.
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The term `agent of a foreign power' is defined in section 101(b) of FISA as follows:
(b) `Agent of a foreign power' means--
(1) any person other than a United States person, who--
(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4);
(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
(2) any person who--
(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power; or
(D) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
(1) Non-Resident Aliens in the United States: There are two separate categories of the definition of `agent of a foreign power' in section 101(b) of FISA. The first cannot be applied to United States citizens and permanent resident aliens; it is, therefore, limited to aliens in the United States who are tourists, visiting businessmen, exchange visitors, foreign seamen, diplomatic and consular personnel, illegal aliens, etc.
Most of the persons in this category are protected by the fourth amendment when they are in the United States. By requiring a judicial warrant on the basis of statutory criteria, such persons' fourth amendment protections would be increased from their status under current operating procedures of the executive branch. On the other hand, the protections afforded such persons are not as great as those afforded United States persons. The standard for targeting nonresident aliens does not have a criminal standard; and there is no requirement to minimize the acquisition, retention, and dissemination of information with respect to such persons. The Congress is convinced that the protections afforded nonresident aliens in this title fully satisfy the Constitution.
The basic test under the fourth amendment is that a search be reasonable. Reasonableness itself is determined by weighing the Government's legitimate need for the information sought against the invasion of privacy the search entails.
The findings of probable cause required to be made by the judge as to nonresident aliens directly relate to the likelihood of obtaining foreign intelligence from physical search of their premises, property, information, or material. Such information must by definition directly and substantially relate
to important foreign policy or national security concerns, and the Attorney General must find that the purpose of the search is to obtain such information.
As to the `equal protection' question, the Congress notes that the Supreme Court has held that where there are compelling considerations of national security, alienage distinctions are constitutional. See e.g., HAMPTON v. MOW SUN WONG, 426 U.S. 88, 116 (1976). Those distinctions must, however, be reasonable in light of the demonstrated need and not be overly broad. With respect to those non-resident aliens who fit within the two categories of agents of foreign powers in section 101(b)(1) of FISA, that need was demonstrated during the congressional consideration of FISA. It should be noted that, in light of the particular requirements for physical search as compared to electronic surveillance, there are fewer procedural differences between U.S. persons and non-resident aliens under this title than under FISA.
Subsection (b)(1)(A) includes in its definition of `agent of a foreign power" those persons, who are not U.S. persons, who act in the United States as officers or employees of a foreign power, or as members of a foreign power as defined in subsection (a)(4), i.e., groups engaged in international terrorist activities or activities in preparation therefor.
Non-resident aliens who act in the United States as officers or employees of a foreign power are likely sources of foreign intelligence or counterintelligence information. The definition excludes persons who serve as officers or employers of a foreign power in their home country, but do not act in that capacity in the United States. The reference to employees of a foreign power is meant to include those persons who have a normal employee-employer relationship. It is not intended to encompass such foreign visitors as professors, lecturers, exchange students, performer or athletes, even if they are receiving remuneration or expenses from their home government in such capacity.
Groups engaged in international terrorism would not likely have `officers' or `employees.' A member of an international terrorist group will most likely not identify himself as such upon entering the United States, as would an officer or employee of a foreign power. In the latter instance, a copy of the person's visa application will usually suffice to show that he is acting in the United States as an officer or employee of a foreign power. However, in the case of a member of an international terrorist group, the government will most likely have to rely on more circumstantial evidence, such as concealment of one's true identity or affiliation with the group, or other facts and circumstances indicating that such person is in the United States for the purpose of furthering terrorist activities. The term `member' means an active, knowing member of the group or organization which is engaged in international terrorism or activities in preparation therefor. It does not include mere sympathizers, fellow-travelers, or persons who may have merely attended members of the group. On the other hand, if a person has received terrorist training from such a group, this would be substantial evidence that he was a member of the group.
Subsection (b)(1)(B) defines an `agent of a foreign power' as a person who is not a U.S. person and who acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person's presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities.
This provision reflects two concerns. The first is the counterintelligence interest in certain foreign visitors as to whom it could be shown with a high degree of probability that they would engage in clandestine intelligence activities, but before sufficient information can be established showing that they are so engaged. As a practical matter, less intrusive techniques may not enable the Government to obtain sufficient information about persons visiting the United States for only a limited time and who do not have a history of activities in the United States to show that they are indeed engaged in clandestine intelligence activities. A second concern, however, is that this non-criminal standard should not be used as a basis for targeting foreign visitors from any nation, but should be limited to foreign visitors acting on behalf of certain foreign powers as to which it could be shown systematically engaged in clandestine intelligence activities threatening the security of the United States.
In light of these two legitimate concerns, this provision does not require a showing that the individual foreign visitors is himself currently engaged in clandestine intelligence activities, but rather that the circumstances of his presence here indicate that he may engage in such activities which are contrary to this nation's interests. In addition, it must be shown that he is acting for
or on behalf of a foreign power which engages in clandestine intelligence activities in the United States which are contrary to the interests of the United States. It is intended that the Government show that the foreign power has demonstrated some pattern or practice of engaging in clandestine intelligence activities in the United States contrary to the interests of the United States.
The phrase, `acts for or on behalf of a foreign power,' is here intended to require the Government to show a nexus between the individual and the foreign power that suggests that the person is likely to do the bidding of a foreign power. For example, visitors from totalitarian countries present in the United States under the auspices, sponsorship, or direction of their government would satisfy this standard.
The term `interests' refers to important concerns or long-term goals of the United States, including interests embodied in law. It might be said that any country which engages in clandestine intelligence activities in the U.S. ipso facto acts contrary to this Nation's interests. This is clearly not intended here.
Once the requisite facts with regard to the foreign power are established, the question is whether the circumstances of the person's presence in the United States indicate that the person may engage in clandestine intelligence activities for that foreign power contrary to the interests of the United States. The answer to this question will vary according to what is known about the intelligence operations of the particular foreign power. Among the factors that might be taken into account are whether the foreign visitor engages in activities with respect to which there is evidence that other visitors who engage in similar activities are officers, agents, or acting on behalf of the intelligence service of that foreign power. If the Government can show from experience that a particular foreign power