Specter's FISA bill: link and summary

Yesterday, Senator Specter introduced a bill relating to FISA and the Terrorist Surveillance Program, S. 4051.  The "Foreign Intelligence Surveillance Oversight and Resource Enhancement Act of 2006" ("FISOREA," I suppose), which I've posted here, is very interesting in several respects, not least for what it does not attempt to do.  In brief, it would:

- add judges to the FISC and personnel to various agencies;

- extend the deadline for delayed applications for FISA orders in emergency circumstances;

- provide that no warrant is required in order to surveil communications that are between two parties outsided the U.S. but that happens to be routed through the U.S.;

- require semi-annual reporting to the intel committees regarding warrantless surveillance activity;

- authorize the intel committee chairs to share with other committee members reports under 50 USC 413(a) and 414(a) [note: this one confused me a bit, as I describe in more detail below]; and

- require the Supreme Court to grant cert and to expedite review of any circuit court decision adjudicating the legality of the Terrorist Surveillance Program.

I provide a section-by-section summary below the jump.

Section 101 - concerning the Foreign Intelligence Surveillance Court

- amends 50 USC 1803 to authorize the Chief Justice to appoint an unspecified number of additional judges to the FISC in order to ensure timely processing of FISA applications under 50 USC 1804 and issuance of orders under 50 USC 1805.

- requires FISC judges to rule within 24 hours on an application made pursuant to the emergency-circumstances delayed-notification provision of section 1805.

Section 102 - concerning various agencies involved in foreign intelligence surveillance

- calls for at least 21 new attorneys at DOJ's Office of Intelligence Policy Review to work on FISA applications

- calls for an unspecified number of additional FBI agents to assist in preparing FISA applications, specifying that they are to be assigned as needed to field offices rather than headquarters

- calls for an unspecified number of additional personnel at NSA to assist with preparing FISA applications

- calls for an unspecified number of additional employees at the FISC - other than the new judges mentioned above - to assist with processing FISA applications as deemed appropriate by the FISC

Section 103 - Training

- calls for FBI and NSA to develop regulations to facilitate timely FISA applications, and to develop associated training regimens

Section 201 - Deadline for emergency-circumstances delayed applications

- extends the deadline for delayed applications in emergency circumstances under 50 USC 1805(f) from 72 to 168 hours (i.e., from 3 to 7 days)

Section 202 - Non-U.S. to Non-U.S. communications routed through the U.S.

- states that no warrant shall be required for electronic surveillance of the contents of any communication between "one person who is not located within the United States and another person who is not located within the United States for the purpose of collecting foreign intelligence information even if such communication passes through, or the surveillance device is located within, the United States" [note that section 202 would include suveillance of U.S. citizens' communications so long as the parties to the communication are all outside the U.S. at the time]

- provides that if this accidentally results in picking up the communication of a person within the U.S., minimization procedures under 50 USC 1801(h)(4) are to be followed.

Section 301 - Congressional oversight

- amends 50 USC 1808 by requiring the Attorney General, twice a year, to make a report to the Intel Committees "fully inform[ing]" them of "electronic surveillance conducted without a court order" [Signing statement caveat, anyone?]

- amends 50 USC 413 (requiring President to keep the Intel Committees fully informed of intel activities (including "significant anticipated intelligence activity")) and 50 USC 414 (requiring reporting relating to expenditure or obligation of funds in certain circumstances) by stating that the chair of each Intel Committee may, upon consultation with the ranking member, share with some or all other committee members a report that has been submitted to the chair pursuant to either 413(a) or 414(a) [This one confused me a bit, and I'd appreciate clarification from readers: 413(a) and 414(a) are both written in a way that suggests that reports under them already are to be submitted to the committees as a whole rather than just the chairman, but this new language suggests that the status quo involves reporting solely to the chairs (or chairs + ranking members)...is that the case?  And if not, does the new language, though framed in permissive terms, actually imply authorization for such limited reporting?]

Section 302 - Supreme Court review of the Terrorist Surveillance Program

- requires the Supreme Court to grant cert from any circuit court decision adjudicating the legality of the Terrorist Surveillance Program [Fascinating - I'm not aware of any prior example of legislation mandating such review in quite this manner, though it may well have happened often.  Any examples come to mind?]

- requires the Supreme Court to expedite review of such a case once cert is granted

There's a bit more, but nothing of substantive significance (correct me if I'm wrong, of course).  Most notably, there's nothing here commenting on or otherwise impacting the determination of the merits of the TSP program.

Comments

[Jonathan Fredman]

At times, the Executive provides reports limited to the Chair and Ranking Member (and normally their staff directors). This is a longstanding practice, and is derivative of -- but not necessarily identical with -- the so-called "Gang of Eight" reporting with respect to covert action that is authorized by section 413b(c)(2). You're correct that it's not expressly provided for in the statute, at least outside of the covert action realm; rather it derives from the retained powers of the Executive (along the lines of those that are recognized, albeit grudgingly, in section 413b(c)(3), and agreed-upon practice with the oversight committees.

[Bobby Chesney]

Thanks Jonathan, I thought perhaps it was something along those lines. Given that explanation, the new language presumably is a small bit of legislative push-back against what I presume to be the Executive position that in the case of such narrow disclosures the chair & ranking member do not have the right to pass on the information to the other members without Executive approval. I wonder if this will become a sticking point for the bill.

[Jonathan Fredman]

I think you're right. The first President Bush vetoed the original version of the FY 1991 Intelligence Authorization Bill because it failed to reflect the differing views of the two Branches with respect to Congress's authority to require notification (even on a restricted basis) of all covert actions within a specified time; subsequently, Congress revised the bill by adding the new provision reflecting the Executive's views that now appears as section 413b(c)(3). The provision in Senator Specter's bill raises somewhat similar issues, and it will be interesting to see how this develops if the bill gains traction now or in the next Congress.