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Intelligence Reform and Terrorism Prevention Act of 2004: 'Lone Wolf' Amendment to the Foreign Intelligence Surveillance Act

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"Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458, amended the definition of 'agent of a foreign power' in the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 1801(b)(1), to add a new category of covered individuals. Under the new 'lone wolf' provision, a non-United States person who engages in international terrorism or activities in preparation for international terrorism is deemed to be an 'agent of a foreign power' under FISA. The new provision does not change the procedures to be used to apply for a court order authorizing electronic surveillance or a physical search under FISA. If an order is sought under this definition of an 'agent of a foreign power,' however, the applicant is not required to demonstrate a connection between the target of the electronic surveillance or the physical search and a foreign nation, foreign group, or international terrorist group. Nor does the Foreign Intelligence Surveillance Court (FISC), in approving such an order, have to find probable cause to believe that such a connection existed. Rather, if the court authorizes such a surveillance or physical search using this new definition of 'agent of a foreign power,' the FISC judge has to find, in pertinent part, that, based upon the information provided by the applicant for the order, the target had engaged in or was engaging in international terrorism or activities in preparation therefor."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2004-12-29
Closing the Guantanamo Detention Center: Legal Issues [September 14, 2009]

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"This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). Issues discussed include detainees' right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Garcia, Michael John; Mason, R. Chuck . . .

2009-09-14
Closing the Guantanamo Detention Center: Legal Issues [Updated July 20, 2009]

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"This report provides an overview of major legal issues likely to arise as a result of executive and legislative action to close the Guantanamo detention facility. It discusses legal issues related to the transfer of Guantanamo detainees (either to a foreign country or into the United States), the continued detention of such persons in the United States, and the possible removal of persons brought into the country. The report also discusses selected constitutional issues that may arise in the criminal prosecution of detainees, emphasizing the procedural and substantive protections that are utilized in different adjudicatory forums (i.e., federal civilian courts, court-martial proceedings, and military commissions). Issues discussed include detainees' right to a speedy trial, the prohibition against prosecution under ex post facto laws, and limitations upon the admissibility of hearsay and secret evidence in criminal cases."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Garcia, Michael John; Mason, R. Chuck

2009-07-20
Government Collection of Private Information: Background and Issues related to the USA PATRIOT Act Reauthorization [March 2, 2010]

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"Congress enacted the USA PATRIOT Act soon after the 9/11 terrorist attacks. The most controversial sections of the act facilitate the federal government's collection of more information, from a greater number of sources, than had previously been authorized in criminal or foreign intelligence investigations. The Foreign Intelligence Surveillance Act (FISA), the Electronic Communications Privacy Act (ECPA), and the national security letter (NSL) statutes were all bolstered. With the changes came greater access to records showing an individual's spending and communication patterns as well as increased authority to intercept e-mail and telephone conversations and to search homes and businesses. In some cases, evidentiary standards required to obtain court approval for the collection of information were lowered. Other approaches included expanding the scope of information subject to search, adding flexibility to the methods by which information could be collected, and broadening the purposes for which information may be sought. [...] Subsequent measures made most of the USA PATRIOT Act changes permanent. However, three authorities affecting the collection of foreign intelligence information are set to expire on February 28, 2011: the lone wolf, roving wiretap, and business record sections of FISA. The 111th Congress replaced an earlier expiration date with the 2011 date. Before that change was made, the impending expiration prompted legislative proposals which revisit changes made by the USA PATRIOT Act and related measures. [...] This report surveys the legal environment in which the legislative proposals arise."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Doyle, Charles; Henning, Anna C. . . .

2010-03-02
Government Access to Phone Calling Activity and Related Records: Legal Authorities [February 2, 2010]

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"Public interest in the means by which the government may collect telephone call records has been raised by ongoing revelations regarding alleged intelligence activity by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). According to a USA Today article from May 11, 2006, the NSA allegedly sought and obtained records of telephone numbers called and received from millions of telephones within the United States from three telephone service providers; a fourth reportedly refused to provide such records. Additionally, a series of reports issued by the Department of Justice's Office of the Inspector General (DOJ OIG), most recently in January of 2010, indicate that, between 2002 and 2006, consumer records held by telephone companies had been provided to the FBI through the use of 'exigent letters' and other informal methods that fell outside of the national security letter (NSL) process embodied in statute and internal FBI policies." This report discusses several statutory provisions that relate to this case, including "'Pen Registers and Trap and Trace Devices for Foreign Intelligence and International Terrorism Investigations under FISA; Pen Registers or Trap and Trace Devices Generally, and for Use in an Ongoing Criminal Investigation; Access to Business Records for Foreign Intelligence and International Terrorism Investigations; Access to Stored Electronic Communications and Transactional Records;' and the 'Communications Act of 1934.'"

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Stevens, Gina Marie; Liu, Edward C.

2010-02-02
Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress [Updated January 11, 2005]

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"In the 108th Congress, a number of intelligence reform bills were introduced, including some which pre-dated the release of the Final Report of the 9/11 Commission, while others emerged after its release. On December 17, 2004, the Intelligence Reform and Terrorism Prevention Act of 2004, P.L. 108-458 (S. 2845), was signed into law. It included several provisions related to FISA. In addition to P.L. 108-458, a variety of other bills were introduced with FISA-related provisions. The FISA provisions of some of these measures were part of larger intelligence reform proposals. Still others were more narrowly focused measures that would also have impacted FISA investigations in the post-9/11 environment. This report briefly discusses the FISA-related aspects of these proposals. For purposes of this report, the bills addressed are divided generally into two categories: intelligence reform or reorganization proposals that have FISA provisions, including P.L. 108-458 (S. 2845), H.R. 10, H.R. 4104, H.R. 5040, H.R. 5150, S. 6, S. 190, S. 1520, S. 2811, S. 2840, and Senator Pat Roberts' draft bill; and other FISA-related bills, including H.R. 1157, H.R. 2242, H.R. 2429, H.R. 2800, H.R. 3179, H.R. 3352, H.R. 3552, H.R. 4591, H.Amdt. 652 to H.R. 4574, S. 113, S. 123, S. 410, S. 436, S. 578, S. 1158, S. 1507, S. 1552, S. 1709, S. 2528, and S.Amdt. 536 to S. 113. For a more detailed discussion of FISA, see CRS Report RL30465, The Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions, while a discussion of the amendment in P.L. 108-458 to the FISA definition of agent of a foreign power may be found in CRS Report RS22011, Intelligence Reform and Terrorism Prevention Act of 2004: 'Lone Wolf' Amendment to the Foreign Intelligence Surveillance Act."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2005-01-11
Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions [Updated April 21, 2005]

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"The Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq., (FISA) as passed in 1978, provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights. Subsequent legislation expanded federal laws dealing with foreign intelligence gathering to address physical searches, pen registers and trap and trace devices, and access to certain business records. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to some of these provisions. Further amendments were included in the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland Security Act of 2002, P.L. 107-296. In addressing international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. The changes in FISA under these public laws facilitate information sharing between law enforcement and intelligence elements. In its Final Report , the 9/11 Commission noted that the removal of the pre-9/11 'wall' between intelligence and law enforcement 'has opened up new opportunities for cooperative action within the FBI.'... This report will examine the detailed statutory structure provided by FISA and related provisions of E.O. 12333. In addition, it will discuss the decisions of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review. Bills from the 108th Congress relating to FISA are addressed in CRS Report RL32608, Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2005-04-21
Government Access to Phone Calling Activity and Related Records: Legal Authorities [February 2, 2009]

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"Media disclosures regarding an alleged National Security Agency (NSA) program designed to collect and analyze information on telephone calling patterns within the United States have raised interest in the authorities under which the government may collect such information. Numerous lawsuits have been filed by civil liberties groups against federal defendants and several telecommunications companies on behalf of their customers and subscribers, for violations of the plaintiffs' constitutional and statutory rights. On September 19, 2008, while these cases were still being litigated, U.S. Attorney General Mukasey moved to dismiss the causes of action against the telecommunications defendants, pursuant to a retroactive immunity provision enacted as part of the FISA Amendments Act of 2008. The disposition of that motion to dismiss is still pending. The Supreme Court has held that there is no Fourth Amendment protection of telephone calling records held in the hands of third party providers, where the content of any call is not intercepted. However, this report summarizes existing statutory authorities regarding access by the government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices. Where pertinent, it also discusses statutory prohibitions against accessing or disclosing such information, along with relevant exceptions to those prohibitions."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Stevens, Gina Marie; Liu, Edward C.

2009-02-02
Foreign Intelligence Surveillance Act: An Overview of Selected Issues [Updated July 7, 2008]

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This CRS report discusses the Foreign Intelligence Surveillance Act. "The current legislative and oversight activity with respect to electronic surveillance under FISA has drawn national attention to several overarching issues. This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need identified by the Director of National Intelligence (DNI), Admiral Mike McConnell, for the Intelligence Community to be able to efficiently and effectively collect foreign intelligence information from the communications of foreign persons located outside the United States in a changing, fast paced, and technologically sophisticated international environment, and the differing approaches suggested to meet this need; and limitations of liability for those electronic communication service providers who furnish aid to the federal government in its foreign intelligence collection. Two constitutional provisions, in particular, are implicated in this debate - the Fourth and First Amendments."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2008-07-07
Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions [Updated March 31, 2003]

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"The Foreign Intelligence Surveillance Act, 50 U.S.C. 1801 et seq., as passed in 1978, provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights. Subsequent legislation expanded federal laws dealing with foreign intelligence gathering to address physical searches, pen registers and trap and trace devices, and access to certain business records. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to some of these provisions. Further amendments were included in the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland Security Act of 2002, P.L. 107-296."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2003-03-31
Assassination Ban and E.O. 12333: A Brief Summary [Updated January 4, 2002]

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"In the wake of the September 11, 2001, terrorist attacks on the New York World Trade Center and the Pentagon, some attention has been focused upon the assassination ban contained in Executive Order (E.O.) 12333, Section 2.11, and whether it would prohibit the United States from responding to the attacks by targeting those who orchestrated these acts of terrorism. In considering the challenges involved in effectively combating terrorism and protecting the United States from future terrorist attacks, there has been wide-ranging debate as to what approaches might be beneficial. Part of that discussion has centered around whether assassination of terrorist leaders is, or should be, one of the options available. This report offers a summary discussion of the assassination ban in E.O. 12333, its context, and possible interpretations of its scope."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2002-01-04
Foreign Intelligence Surveillance Act: An Overview of the Statutory Framework and Recent Judicial Decisions [Updated September 22, 2004]

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"The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq., (FISA) as passed in 1978, provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights. Subsequent legislation expanded federal laws dealing with foreign intelligence gathering to address physical searches, pen registers and trap and trace devices, and access to certain business records. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, P.L. 107-56, made significant changes to some of these provisions. Further amendments were included in the Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, and the Homeland Security Act of 2002, P.L. 107-296. In addressing international terrorism or espionage, the same factual situation may be the focus of both criminal investigations and foreign intelligence collection efforts. The changes in FISA under these public laws facilitate information sharing between law enforcement and intelligence elements. In its Final Report, the 9/11 Commission noted that the removal of the pre-9/11 'wall' between intelligence and law enforcement 'has opened up new opportunities for cooperative action within the FBI.'... This report will examine the detailed statutory structure provided by FISA and related provisions of E.O. 12333. In addition, it will discuss the decisions of the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review. Bills from the 108th Congress relating to FISA are addressed in CRS Report RL32608, Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2004-09-22
Foreign Intelligence Surveillance Act: Selected Legislation from the 108th Congress [Updated September 30, 2004]

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"The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq., (FISA) as passed in 1978, provided a statutory framework for the use of electronic surveillance in the context of foreign intelligence gathering. In so doing, Congress sought to strike a delicate balance between national security interests and personal privacy rights...In the 108th Congress, a variety of bills have been introduced with provisions related to the FISA. The FISA provisions of some of these measures are part of larger intelligence reform proposals. Some of these pre-dated the release of The 9/11 Commission Report, Final Report of the National Commission on Terrorist Attacks upon the United States (W. W. Norton 2004) (Final Report), while others have emerged since the release of the Final Report. Still others are more narrowly focused measures that would also impact FISA investigations in the post-9/11 environment. This report will briefly discuss the FISA-related aspects of these proposals. For purposes of this report, the bills addressed will be divided generally into two categories: intelligence reform or reorganization proposals that have FISA provisions..."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2004-09-30
Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee [Updated February 8, 2008]

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"On January 29, 2008, both the House and the Senate passed H.R. 5104, a 15-day extension to the sunset for the Protect America Act, to allow further time to consider, pass, and go to conference on proposed legislation to amend FISA, while ensuring that the intelligence community would have the authority it needed in the intervening period [...] This report provides a side by side comparison of the provisions of these three measures. A glossary of FISA terms from section 101 of FISA, 50 U.S.C. 1801 is attached. Other FISA bills have also been introduced, such as S. 2440, S. 2441, and S. 2402. These bills are not included in this side-by-side comparison."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2008-02-08
H.R. 5825 (109th Congress): 'Electronic Surveillance Modernization Act' [September 8, 2006]

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"In discussing the need for the National Security Agency's 'Terrorist Surveillance Program,' a program in which international communications of persons within the United States have been the subject of electronic surveillance without a warrant or a Foreign Intelligence Surveillance Court order, where one party to the communication is believed to be a member of al Qaeda, affiliated with al Qaeda, a member of an organization affiliated with al Qaeda, or working in support of al Qaeda, the Bush Administration has stated that electronic surveillance under the Foreign Intelligence Surveillance Act (FISA), while still a valuable tool in combating terrorism, lacks the speed and agility to deal with such terrorists or terrorist groups. Critics have challenged the NSA program on legal and constitutional grounds. On August 17, 2006, in 'American Civil Liberties Union v. National Security Agency', Case No. 06-CV-10204 (E.D. Mich. August 17, 2006), U.S. District Court Judge Anna Diggs Taylor held the program unconstitutional on the ground that it violated the Administrative Procedures Act, the Separation of Powers doctrine, the First and Fourth Amendments of the U.S. Constitution, the Foreign Intelligence Surveillance Act (FISA), and Title III of the Omnibus Crime Control and Safe Streets Act (Title III). The decision has been appealed. […] On September 1, 2006, it was referred to the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee. H.R. 5825 was one of several bills that were the focus of a hearing held before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security on Wednesday, September 6, 2006. This report will summarize the provisions of the bill and discuss the impact of its provisions, if passed, on current law."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2006-09-08
Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice [April 8, 2010]

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"For the first time since the judicial impeachments of 1986-1989, the House of Representatives has impeached two federal judges. On June 19, 2009, the House voted to impeach U.S. District Judge Samuel B. Kent of the U.S. District Court for the Southern District of Texas. The impeachment trial of Judge Kent before the Senate was dismissed after Judge Kent resigned from office and the House indicated that it did not wish to pursue the matter further. [...] Under the Constitution, the Senate has the unique power to try an impeachment. The decision whether to convict on each of the articles must be made separately. A conviction must be supported by a two-thirds majority of the Senators present. A conviction on any one of the articles of impeachment brought against an individual is sufficient to constitute conviction in the trial of the impeachment. Should a conviction occur, then the Senate must determine what the appropriate judgment is in the case. The Constitution limits the judgment to either removal from office or removal and prohibition against holding any future offices of 'honor, Trust or Profit under the United States.' The precedents in impeachment suggest that removal may flow automatically from conviction, but that the Senate must vote to prohibit the individual from holding future offices of public trust, if that judgment is also deemed appropriate. A simple majority vote is required on a judgment. Conviction on impeachment does not foreclose the possibility of criminal prosecution arising out of the same factual situation. The Constitution does not permit the President to extend executive clemency to anyone in order to preclude his or her impeachment by the House or trial or conviction by the Senate."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Henning, Anna C.

2010-04-08
Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues [Updated February 8, 2008]

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"The current legislative and oversight activity with respect to electronic surveillance under FISA has drawn national attention to several overarching issues. This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need identified by the Director of National Intelligence (DNI), Admiral Mike McConnell, for the Intelligence Community to be able to efficiently and effectively collect foreign intelligence information from the communications of foreign persons located outside the United States in a changing, fast paced, and technologically sophisticated international environment, and the differing approaches suggested to meet this need; and limitations of liability for those electronic communication service providers who furnish aid to the federal government in its foreign intelligence collection. Two constitutional provisions, in particular, are implicated in this debate - the Fourth and First Amendments."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2008-02-08
Foreign Intelligence Surveillance Act: Comparison of the Senate Amendment to H.R. 3773 and the House Amendment to the Senate Amendment to H.R. 3773 [June 12, 2008]

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This CRS report discusses the Foreign Intelligence Surveillance Act (FISA.) "During the 110th Congress, several House and Senate committees have engaged in oversight activities, including hearings and requests for expeditious production of documents and information regarding the Administration's warrantless foreign intelligence surveillance programs, as possible changes to the Foreign Intelligence Surveillance Act of 1978, as amended, (FISA) were explored. [...] Both the House amendment and the Senate amendment include significant changes to FISA, including provisions on the acquisition of communications of non-U.S. persons and of U.S. persons abroad. The two bills take different approaches to some issues that have played a significant role in the ongoing debate. For example, the Senate amendment would provide retroactive immunity for electronic communications service providers who assisted the government in intelligence activities between September 11, 2001 and January 17, 2007. The House amendment would provide for presentation to a court, with certain safeguards, of evidence and arguments with respect to which state secrets privilege has been asserted in covered civil actions against such electronic communications service providers and other persons who furnished such aid to the government. The House bill also provides for an audit of the Terrorist Surveillance Program and any other wireless electronic surveillance programs, with reporting requirements, while the Senate bill does not. This report provides an overview, a review of legislative activity, and a detailed side-by-side comparison of the provisions of these two bills."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2008-06-12
Government Access to Phone Calling Activity and Related Records: Legal Authorities [Updated August 20, 2007]

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"Media disclosures regarding an alleged National Security Agency (NSA) program designed to collect and analyze information on telephone calling patterns within the United States have raised interest in the means by which the Government may collect such information. The factual information available in the public domain with respect to any such alleged program is limited and in some instances inconsistent, and the application, if at all, of any possibly relevant statutory provisions to any such program is likely to be a very fact specific inquiry. It is possible that any information provided to the NSA from the telephone service providers was provided in response to a request for information, not founded on a statutory basis. If this were the case, such a request would not necessarily be limited by the statutory structures discussed below, but in some instances, depending upon the facts involved, might expose the telephone companies to some civil remedies or criminal sanctions. In addition, a request, not founded upon a statutory scheme, would appear to lack a means of compelling production of the information requested. This would seem to be consistent with the statement in the USA Today article of May 11, 2006, that one of the companies refused to comply with NSA's request for calling detail records, while at least one other company appears to have complied. Numerous lawsuits have been filed by civil liberties groups against several telecommunications companies on behalf of their customers and subscribers, for their alleged cooperation with the NSA program that have harmed the plaintiffs' constitutional and statutory rights."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Stevens, Gina Marie; Yeh, Brian T.

2007-08-20
Government Access to Phone Calling Activity and Related Records: Legal Authorities [May 17, 2006]

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"Recent media disclosures regarding an alleged National Security Agency (NSA) program designed to collect and analyze information on telephone calling patterns within the United States have raised interest in the means by which the Government may collect such information. The factual information available in the public domain with respect to any such alleged program is limited and in some instances inconsistent, and the application, if at all, of any possibly relevant statutory provisions to any such program is likely to be a very fact specific inquiry. It is possible that any information provided to the NSA from the telephone service providers was provided in response to a request for information, not founded on a statutory basis. If this were the case, such a request would not necessarily be limited by the statutory structures discussed below, but in some instances, depending upon the facts involved, might expose the telephone companies to some civil remedies or criminal sanctions. In addition, a request, not founded upon a statutory scheme, would appear to lack a means of compelling production of the information requested. This would seem to be consistent with the statement in the USA Today article that one of the companies refused to comply with NSA's request for calling detail records, while at least one other company appears to have complied. This report will summarize statutory authorities regarding access by the Government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices. Where pertinent, we will also discuss statutory prohibitions against accessing or disclosing such information, along with relevant exceptions to those prohibitions."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Stevens, Gina Marie; Yeh, Brian T.

2006-05-17
H.R. 5825 (109th Congress): 'Electronic Surveillance Modernization Act'

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"Several bills have been introduced in the House of Representatives and in the Senate to amend the Foreign Intelligence Surveillance Act and to address questions raised with respect to the 'Terrorist Surveillance Program.' H.R. 5825, the 'Electronic Surveillance Modernization Act,' was introduced on July 18, 2006. The bill was referred on that date to both the House Committee on the Judiciary and to the House Permanent Select Committee on Intelligence. On September 1, 2006, it was referred to the Subcommittee on Crime, Terrorism, and Homeland Security of the House Judiciary Committee. H.R. 5825 was one of several bills that were the focus of a hearing held before the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security on Wednesday, September 6, 2006. This report will summarize the provisions of the bill and discuss the impact of its provisions, if passed, on current law."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2006-09-08
National Security Surveillance Act of 2006: S. 3886, Title II (S. 2453 as Reported Out of the Senate Judiciary Committee) [Updated September 15, 2006]

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"In the wake of disclosures related to the National Security Agency's Terrorist Surveillance Program, congressional attention has been focused on issues regarding authorization, review, and oversight of electronic surveillance programs designed to acquire foreign intelligence information or to address international terrorism. S. 3886, the 'Terrorist Tracking, Identification, and Prosecution Act of 2006,' was introduced by Senator William H. Frist on September 11, 2006. It was placed on the Senate Legislative Calendar under General Orders, Calendar No. 605, the following day. Title II of S. 3886, the 'National Security Surveillance Act of 2006,' substantively parallels S. 2453 as reported out of the Senate Judiciary Committee. S. 2453 was introduced by Senator Arlen Specter on March 16, 2006, and referred to the Senate Committee on the Judiciary. Committee hearings were held on the latter measure on July 26, 2006, and August 2, 2006. Committee consideration and markup of S. 2453 took place on April 27, August 3, and September 7, 2006. The Committee reported S. 2453 out with an amendment in the nature of a substitute on September 13, 2006, without a written report, and the bill was placed on the Senate Legislative Calendar under General Orders, Calendar No. 609, that day. This report summarizes Title II of S. 3886/S. 2453, as reported out of the Senate Judiciary Committee, and compares its language with the existing provisions of the Foreign Intelligence Surveillance Act (FISA), as amended, 50 U.S.C. §§ 1801 et seq."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2006-09-15
Intelligence Spending: Public Disclosure Issues [Updated September 25, 2006]

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"Although the United States Intelligence Community encompasses large Federal agencies - the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the National Reconnaissance Office, the National Geospatial-Intelligence Agency (NGA), and the National Security Agency (NSA) - among others - neither Congress nor the executive branch has regularly made public the total extent of intelligence spending. Rather, intelligence programs and personnel are largely contained, but not identified, within the capacious budget of the Department of Defense (DOD). This practice has long been criticized by proponents of open government and many argue that the end of the Cold War has long since removed any justification for secret budgets. In 2004, the 9/11 Commission recommended that 'the overall amounts of money being appropriated for national intelligence and to its component agencies should no longer be kept secret.' Central to consideration of the issue is the composition of the 'intelligence budget.' Intelligence authorization bills have included not just the 'National Intelligence Program'-the budgets for CIA, DIA, NSA et al, but also a wide variety of other intelligence and intelligence-related efforts conducted by the Defense Department. Legislation reported by the Senate Intelligence Committee in May 2006 (S. 3237) would require that funding for the National Intelligence Program be made public but it does not address other intelligence activities. Earlier versions of this Report were entitled Intelligence Spending: Should Total Amounts Be Made Public? This report will be updated as circumstances change."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Best, Richard A.

2006-09-25
Terrorist Surveillance Act of 2006: S.3931 and Title II of S.3929, the Terrorist Tracking, Identification, and Prosecution Act of 2006 [Updated September 25, 2006]

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"This report considers S. 3931, the 'Terrorist Surveillance Act of 2006,' and S. 3929, the 'Terrorist Tracking, Identification, and Prosecution Act of 2006,' Title II of which parallels S. 3931. The bills would create a new Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended (FISA), 50 U.S.C. § 1801 et seq., to address electronic surveillance programs. In addition, the measures would amend other provisions of FISA dealing with electronic surveillance without a warrant pursuant to an Attorney General certification, applications for a Foreign Intelligence Surveillance Court orders authorizing electronic surveillance for foreign intelligence purposes, the contents of such orders, emergency electronic surveillance under FISA, limitations on liability for those who aid the federal government in connection with electronic surveillance to obtain foreign intelligence information, and applicable congressional oversight. The bills would repeal the current wartime authorities for electronic surveillance without a warrant following a congressional declaration of war. Changes would be made to the FISA definitions of 'electronic surveillance' and 'agent of a foreign power,' among others. Other provisions would modify the criminal provisions of FISA and the exclusivity clause 18 U.S.C. § 2511(2)(f). Still other provisions amend FISA to address those who engage in the development or proliferation of weapons of mass destruction and to accommodate the international movements of targets of electronic surveillance under FISA. This report discusses the provisions of S. 3931 and Title II of S. 3929, and notes the changes to existing law that these measures would make if enacted."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2006-09-25
Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee [December 6, 2007]

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"On November 15, 2007, the House of Representatives passed H.R. 3773, the RESTORE Act of 2007. On October 26, 2007, Senator Rockefeller reported S. 2248, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 or the FISA Amendment Act of 2007, an original bill, from the Senate Select Committee on Intelligence. S. 2248 was referred to the Senate Judiciary Committee on November 1, 2007. On November 16, 2007, S. 2248 was reported out of the Senate Judiciary Committee by Senator Leahy with an amendment in the nature of a substitute. Each bill includes amendments to the Foreign Intelligence Surveillance Act. This report provides a side by side comparison of the provisions of these three measures. A glossary of FISA terms from section 101 of FISA, 50 U.S.C. § 1801 is attached."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2007-12-06
Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues [December 7, 2007]

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"The current legislative and oversight activity with respect to electronic surveillance under FISA has drawn national attention to several overarching issues. This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need identified by the Director of National Intelligence (DNI), Admiral Mike McConnell, for the Intelligence Community to be able to efficiently and effectively collect foreign intelligence information from the communications of foreign persons located outside the United States in a changing, fast paced, and technologically sophisticated international environment, and the differing approaches suggested to meet this need; and limitations of liability for those electronic communication service providers who furnish aid to the federal government in its foreign intelligence collection. Two constitutional provisions, in particular, are implicated in this debate -- the Fourth and First Amendments."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2007-12-07
Foreign Intelligence Surveillance Act: Comparison of House-Passed H.R. 3773, S. 2248 as Reported By the Senate Select Committee on Intelligence, and S. 2248 as Reported Out of the Senate Judiciary Committee [December 14, 2007]

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"On November 15, 2007, the House of Representatives passed H.R. 3773, the RESTORE Act of 2007. On October 26, 2007, Senator Rockefeller reported S. 2248, the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007 or the FISA Amendment Act of 2007, an original bill, from the Senate Select Committee on Intelligence. S. 2248 was referred to the Senate Judiciary Committee on November 1, 2007. On November 16, 2007, S. 2248 was reported out of the Senate Judiciary Committee by Senator Leahy with an amendment in the nature of a substitute. Each bill includes amendments to the Foreign Intelligence Surveillance Act. This report provides a side by side comparison of the provisions of these three measures. A glossary of FISA terms from section 101 of FISA, 50 U.S.C. § 1801 is attached. Senator Reid introduced two additional FISA bills on December 10, 2007, S. 2440 and S. 2441, which were read twice the following day and placed on the Senate Legislative Calendar as Numbers 529 and 530, respectively. S. 2402 was introduced by Senator Specter on December 3, 2007, and referred to the Senate Judiciary Committee. In Committee markup on December 13, 2007, an amendment in the nature of a substitute to S. 2402 was adopted by unanimous consent. Then, by a vote of 5-13, the Committee rejected S. 2402, as amended. The proposal would have permitted substitution of the government for electronic communication service providers in law suits where certain criteria were met. These bills will not be included in this side by side comparison."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2007-12-14
Foreign Intelligence Surveillance Act: A Brief Overview of Selected Issues [December 14, 2007]

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"The current legislative and oversight activity with respect to electronic surveillance under FISA has drawn national attention to several overarching issues. This report briefly outlines three such issues and touches upon some of the perspectives reflected in the ongoing debate. These issues include the inherent and often dynamic tension between national security and civil liberties, particularly rights of privacy and free speech; the need identified by the Director of National Intelligence (DNI), Admiral Mike McConnell, for the Intelligence Community to be able to efficiently and effectively collect foreign intelligence information from the communications of foreign persons located outside the United States in a changing, fast paced, and technologically sophisticated international environment, and the differing approaches suggested to meet this need; and limitations of liability for those electronic communication service providers who furnish aid to the federal government in its foreign intelligence collection. Two constitutional provisions, in particular, are implicated in this debate -- the Fourth and First Amendments."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.

2007-12-14
Government Access to Phone Calling Activity and Related Records: Legal Authorities [Updated January 25, 2007]

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"Media disclosures regarding an alleged National Security Agency (NSA) program designed to collect and analyze information on telephone calling patterns within the United States have raised interest in the means by which the Government may collect such information. The factual information available in the public domain with respect to any such alleged program is limited and in some instances inconsistent, and the application, if at all, of any possibly relevant statutory provisions to any such program is likely to be a very fact specific inquiry. It is possible that any information provided to the NSA from the telephone service providers was provided in response to a request for information, not founded on a statutory basis. If this were the case, such a request would not necessarily be limited by the statutory structures discussed below, but in some instances, depending upon the facts involved, might expose the telephone companies to some civil remedies or criminal sanctions. In addition, a request, not founded upon a statutory scheme, would appear to lack a means of compelling production of the information requested. […]This report summarizes statutory authorities regarding access by the government, for either foreign intelligence or law enforcement purposes, to information related to telephone calling patterns or practices."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Stevens, Gina Marie; Yeh, Brian T.

2007-01-25
Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information [January 5, 2006]

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"This memorandum lays out a general framework for analyzing the constitutional and statutory issues raised by the NSA electronic surveillance activity. It then outlines the legal framework regulating electronic surveillance by the government, explores ambiguities in those statutes that could provide exceptions for the NSA intelligence-gathering operation at issue, and addresses the arguments that the President possesses inherent authority to order the operations or that Congress has provided such authority."

Library of Congress. Congressional Research Service

Bazan, Elizabeth B.; Elsea, Jennifer

2006-01-05

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