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SEC. 4. (a) The first sentence of section 2511 (3) of title 18, United States Code, is amended by inserting immediately after “measures" the following: “against foreign powers and foreign agents, pursuant to the procedures delineated in section 2518A,".
(b) Section 2511 (3) of title 18, United States Code, is amended by deleting the second sentence.
(c) Section 2511(3) of title 18, United States Code, is amended by striking out the third sentence and adding in lieu thereof the following: “Notwithstanding any other provision of this chapter, neither the contents, nor he evidence derived therefrom, of any wire or oral communication intercepted through application of this subsection shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court, except in civil proceedings against foreign agents.”.
SEC. 4A. Section 2516 of title 18, United States Code, is amended by deleting subsection (a); subsection letters “(b)”, “(c)", "(d)”, “(e)”, “(f)”, and “(g)” of section 2516 shall be deleted and the respective subsections shall be identified as “(a)”, “(b)”, “(c)”, “(d)”, “(e)”, and “(f)”.
SEC. 5. (a) Chapter 119 of title 18, United States Code, is amended by adding immediately after section 2516 thereof the following new section : “8 2516A. Authorization for interception of wire or oral communication in na
tional security cases “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518A of this chapter, an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or any Federal administrative agency, department, or other unit having lawful responsibility for the investigations of the offense as to which application is made, when
“(1) there is probable cause to believe that the individual(s) whose oral or wire communications are to be intercepted has committed or is about to commit an offense punishable by death or by imprisonment for more than one year under
“(a) sections 2274 through 2277 of title 42 of the United States Code (relating to enforcement of the Atomic Energy Act of 1954), or
“(b) one of the following chapters of this title: chapter 37 (relating to espionage), chapter 105 (relating to sabotage), and chapter 115
(relating to treason); and “(2) such interception will probably provide or has provided evidence concerning the commission of that offense.”. (b) Chapter 119 of title 18, United States Code, is amended by adding immediately after section 2518 thereof the following new section : “8 2518A. Procedure for interception of wire or oral communication relating to
national security “(1) Each application for an order authorizing or approving the interception of a wire or oral communication under section 2511 (3) or section 2516A of this chapter shall be made in writing upon oath or affirmation to a judge of competent jurisdiction, or, in cases involving section 2511 (3), a judge on the Federal District Court for the District of Columbia, and shall state the applicant's authority to make such application. Each application shall include the following information :
“(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
“(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) a description of the nature and location of the faci ties from which or the place where the communication is to be intercepted, (ii) a description of the communications, with as much particularity as is possible and practical, sought to be intercepted, (iii) the identity of the person, if known, whose communications are to be intercepted, and (iv) in cases involving application of section 2516A, details as to the particular offense that has been, is being, or is about to be committed ;
"(c) a detailed statement as to whether or not other investigative procedures have been tried and failed or why they appear to be unlikely to succeed if tried or to be too dangerous ;
“(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described communications have been first obtained, a description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
“(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each such application; and
“(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a
reasonable explanation of the failure to obtain such results. "(2) The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application. But in no event may authorization or approval of any wire or oral communication be granted unless the applicant furnishes evidence, independent of his and others conclusory opinion, that such interception shall serve one of the purposes set forth in section 2511 (3) or section 2516A above.
“(3) Upon such application the judge may enter an ex parte order, as reguested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, or, in cases involving section 2511 (3) when application has been made to a judge on the Federal District Court for the District of Columbia, anywhere within the territorial jurisdiction of the United States, if the judge determines on the basis of the facts submitted by the applicant that
“(a) there is probable cause for belief that the interception is necessary in order to gain information serving one of the purposes set forth in section 2511 (3) or section 2516A ;
"(b) there is probable cause for belief that particular communications concerning one of the purposes set forth in section 2511 (3) or section 2516A will be obtained through such interceptions;
"(c) normal investigative procedures have been tried and have failed to appear to be unlikely to succeed if tried or to be too dangerous; and
"(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used or are about to be used by the subject whose wire or oral
communications are to be intercepted. “(4) Each order authorizing or approving the interception of any wire or oral communication shall specify
“(a) the identity of the person, if known, whose communications are to be intercepted;
“(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted ;
"(c) a description of the type of the communication sought to be intercepted;
“(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
"(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first ob
tained. “(5) No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than fifteen days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of
this section and the court making anew the findings required by subsection (3) of this section. In making this new finding under subsection (3), the judge shall, in cases involving section 2516A, require the applicant to furnish additional information and evidence independent of that relied upon in granting the intial order and which, standing alone, would satisfy the requirements of subsection (3). The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than ten days. Every order and extension thereof shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in fifteen days.
“(6) Whenever an order authorizing interception is entered pursuant to this chapter, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such report shall be made at such intervals as the judge may require.
“(7) The contents of any wire or oral communication intercepted by any means authorized by section 2511(3) or section 2516A shall be subject to the requirements of section 2518(8) (a). Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs.
“(8) Notwithstanding any other provision of this chapter, any individual, other than a foreign agent, whose wire or oral communications have been intercepted through application of section 2511 (3) or section 2516A shall, not less than thirty days after the expiration of a judicial order authorizing such interception, be furnished a copy of the court order(s), and accompanying application(s), under which such interception was authorized or approved, and a complete and accurate transcript or other record of the intercepted communication, such transcript or record to also include the date(s) and time(s) at which such interception occurred : Provided, That, upon application of the Attorney General, or any Assistant Attorney General specially designated by the Attorney General, the judge who authorized or approved the interception may postpone the disclosure of such interception if he is satisfied that the individual whose communications have been intercepted is engaged in a continuing criminal enterprise or conspiracy and disclosure of the interception will endanger vital national security interests, such postponement to be as long as the judge deems necessary : And provided further, That any interception, disclosed pursuant to this subsection and which involves application of section 2511(3), need not disclose the foreign power or agent whose wire or -oral communications were intended to be intercepted, nor those facilities at which the interception was intended to or did take place.
“(9) (a) Notwithstanding any other provision of this chapter, any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that
“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face;
“(iii) the interception was not made in conformity with the order of authorization or approval; or
"(iv) subsection 2511 (3) requires such suppression. Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter.
“(b) In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion to suppress made under paragraph (a) of this subsection, or the denial of an application for an order of approval, if the United States attorney shall certify to the judge or other official granting such motion or denying such application that the appeal is not taken for purposes of delay. Such appeal shall be taken within thirty days after the date the order was entered and shall be diligently prosecuted.”.
SEC. 6. (a) The analysis of chapter 119 of title, 18 United States Code, is amended by inserting immediately after the item *2516. Authorization for interception of wire or oral communications." the following new item : **2516A. Authorization for interception of wire or oral communications in
national security cases.". (b) Such analysis is further amended by inserting immediately after the item "2518. Procedure for interception of wire or oral communications." the following new item : “2518A. Procedure for interception of wire or oral communications relating to
national security.”. SEC. 7. Section 2519(1) is amended by inserting immediately after “2518,” the following: "or section 2518A.”.
Mr. KASTENMEIER. Our first witness this morning has long expressed his concern on this subject and is a chief sponsor of Senate legislation to require court approval for all wiretapping and electronic surveillance, including national security wiretapping. I am pleased to welcome a fellow member of the Wisconsin Delegation and my good friend Senator Gaylord Nelson.
TESTIMONY OF HON. GAYLORD NELSON, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Senator NELSON. Mr. Chairman, and members of the committee, there is a Democratic Conference at the Senate side that I need to get to, so if it is all right with the chairman, I would ask that my full statement be printed in the record as so read, and then I would like to submit for the record some materials in support of the statement.
The first item is a statement which details the history of abuses in the use of warrantless wiretaps for so-called “national security cases," and the second item is a section-by-section analysis of the Surveillance Practices and Procedures Act to prohibit warrantless wiretaps. It shows quite clearly that every section of the bill is fully supported by historical and legal precedents. Finally, I would like to submit some newspaper columns and editorials which discuss the importance of a bill to prohibit warrantless wiretaps.
Mr. KASTENMEIER. Without objection, your 11-page statement will be received and made a part of the record and the additions you have described will also be received.
The documents referred to appear at p. 29.]
Senator NELSON. Mr. Chairman it seems to me the time is long past due for congressional action to check the dangerous abuses of government wiretapping and other surveillance activities.
The need for action, and therefore the importance of this subcommittee's inquiry, are quite clear. Uncontrolled government wiretaps and other surveillance activities constitute an intolerable threat to fundamental constitutional rights and liberties. Individual freedom—the cornerstone of our democratic system-is but an illusion in a society where the government can invade an individual's privacy at will.
Until recently, most of the public did not appreciate the inherent dangers of government snooping. Now the public understands that government snooping poses a real threat to everyone, regardless of his or her station in life. Now 77 percent of the public favors legislation to curb the abuses of government wiretapping and spying.
Hearings by the Senate Watergate Committee and other congressional bodies as well as reports by various periodicals exposed in great detail how the government could and did invade the privacy of law-abiding individuals. Reference to just a few recent examples is sufficient to illustrate the magnitude of dangers of government snooping :
Now, Mr. Chairman, I list a series of examples, all of which have been either publicized in the papers or presented to committees on either the House or Senate side, so I will not read them into the record.
For many years constitutional authorities and other citizens have repeatedly expressed alarm over the rapidly expanding practice of governmental invasions of privacy by wiretapping, data collection, and other forms of surveillance. In 1967 I made a speech on the floor of the Senate on this issue and in 1971 introduced legislation to establish a joint congressional committee to control Government snooping
Mr. Chairman and members of the committee, this specific proposal that is before the committee today refers to warrantless wiretaps. That is just one step that needs to be taken by the Congress to protect the constitutional rights of citizens. There is a further step which the Congress must also take up at some subsequent date, and that is a step that will insure that the Constitution and the law are complied with. I have introduced legislation on our side on this issue. This legislation proposes creation of a joint committee of the House and Senate, a bipartisan committee with equal representation by each party. Each year every agency of the Government which has or asserts any power or authority to spy—such as the military intelligence, the FBI, and others—must come before that committee and present to that committee, either publicly or in executive session, a record of all of the wiretaps and surveillance of any kind that was performed by that agency, the legal justification for it, and the purpose of it. All of this would be presented under oath with the penalty of perjury, of course. The purpose of this would be to enable the people's representatives to guarantee that the Constitution and the statutes are complied with and furthermore, Mr. Chairman, for the Congress to be informed as to what kind of activities are engaged in by these agencies so that we may decide if further legislation is necessary.
I think that piece of legislation is critical to assuring compliance with any other legislation that we pass and to assure compliance with the fourth amendment of the Constitution.