Announcement of Proposed Legislation on Foreign Intelligence Surveillance
The President today announced that a bill developed by the administration, in close coordination with interested Members of Congress, will be introduced to prohibit electronic surveillance in the United States for intelligence purposes without a judicial warrant. This bill will be introduced in the Senate by Senator Kennedy and in the House by Congressman Rodino. it was transmitted to the Congress today.
The Carter administration bill was drafted by an interagency committee composed of members of the intelligence community and chaired by the Attorney General. The bill would make illegal the abuses of the past, confirm the need for electronic surveillance for intelligence purposes in limited circumstances, and subject to the procedures of the bill, all electronic surveillance in the United States.
Last year a similar bill was reported by the Senate Judiciary Committee and the Senate Intelligence Committee. The Carter administration bill expands protections for Americans in three major areas beyond the bill sponsored last year by the Ford administration:
(1) The current bill recognizes no inherent power of the President to conduct electronic surveillance. Last year, there was an explicit reservation of Presidential power.
(2) It ensures that persons in the United States cannot be targeted for electronic surveillance without a judicial warrant. Last year's bill did not extend the warrant requirement to NSA "watch listing" of American citizens.
(3) Judges are allowed to review the executive certification that the information sought is foreign intelligence information when United States persons are targeted.
The bill does not cover electronic surveillance abroad, but the administration. in coordination with interested Members of Congress, is drafting separate legislation to provide protections for Americans abroad from electronic surveillance for both intelligence and law enforcement purposes.
The bill generally requires Americans to be engaged in criminal conduct before they can be targeted for electronic surveillance. It provides one narrow exception for electronic surveillance of Americans who are not engaged in criminal activity, although they must be engaged in the collection or transmission of national security information to a foreign intelligence service in a clandestine manner pursuant to the direction of a foreign intelligence service. The reason for this one exception is that the current espionage laws do not clearly criminalize such activity. The Department of Justice is now reviewing the espionage laws and will propose revisions and modernization so that electronic surveillance of Americans will only be permitted when they violate the law.
Procedures in the Bill
The bill provides a procedure by which the Attorney General may authorize applications to the courts for warrants to conduct electronic surveillance within the United States for foreign intelligence purposes. Applications for warrants are to be made to one of seven district court judges publicly designated by the Chief Justice of the Supreme Court. Denials such applications may be appealed to a special three-judge court of review and ultimately to the Supreme Court.
Approval of a warrant application under this bill would require a finding by the judge that the target of the surveillance is a "foreign power" or an "agent of a foreign power." These terms, defined in the bill, ensure that no United States citizen or permanent resident alien may be targeted for electronic surveillance unless a judge finds probable cause to believe either that he is engaged in clandestine intelligence, sabotage, or terrorist activities for or on behalf of a foreign power in violation of the law, or that, pursuant to the direction of a foreign intelligence service, he is collecting or transmitting in a clandestine manner information or material likely to harm the security of the United States. The judge would be required to find that the facilities or place at which the electronic surveillance is to be directed are being used or are about to be used by a foreign power or an agent of a foreign power.
As a safeguard, approval of the warrant would also require a finding that procedures will be followed in the course of the surveillance to minimize the acquisition, retention, and dissemination of information relating to United States persons which does not relate to national defense, foreign affairs, or the terrorist activities, sabotage activities, or clandestine intelligence activities of a foreign power. Special minimization procedures for electronic surveillance targeting entities directed and controlled by foreign governments which are largely staffed by Americans are also subject to judicial review.
Finally, the judge would be required to find that a certification has been made by the Assistant to the President for National Security Affairs or a similar official, that the information sought by the surveillance is "foreign intelligence information" necessary to the national defense or the conduct of foreign affairs of the United States, or is necessary to the ability of the United States to protect itself against the clandestine intelligence, terrorist, or sabotage activities of a foreign power. Where the surveillance is targeted against a United States person, the judge can review the certification.
The bill creates two different types of warrants. A special warrant which will not require as much sensitive information to be given to the judge is only available with respect to "official" foreign powers-foreign governments and their components, factions of foreign nations and entities which are openly acknowledged by a foreign government to be directed and controlled by that government. The other warrant is applicable to all U.S. citizens and permanent resident aliens.
The judge could approve electronic surveillance for foreign intelligence purposes for a period of 90 days, except where the surveillance is targeted against the special class of foreign powers and, in such cases, the approval can be as long as one year. Any extension of the surveillance beyond that period would require a reapplication to the judge and new findings as required for the original order.
Emergency warrantless surveillances would be permitted in limited circumstances, provided that a warrant is obtained within 24 hours of the initiation of the surveillance.
For purposes of oversight, the bill requires annual reports to the Administrative Office of the United States Courts and the Congress of various statistics related to applications and warrants for electronic surveillance. The President is committed to providing to the appropriate committees of Congress in executive session such other information as is necessary for effective oversight.
Jimmy Carter, Announcement of Proposed Legislation on Foreign Intelligence Surveillance Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/244376