INTRODUCTION OF INTELLIGENCE SEARCH PROCEDURES ACT (House of Representatives - September 12, 1990)
The SPEAKER pro tempore. Under a previous order of the House, the gentleman from New York [Mr. McHugh] is recognized for 5 minutes.
- Mr. McHUGH. Madam Speaker, today I have introduced H.R. 5588, the Intelligence Search Procedures Act, which for the first time would require a court order for physical searches conducted in the United States to obtain foreign intelligence information.
- I believe it would surprise most Americans, including many Members of Congress, that such searches, including the surreptitious entry of the homes of American citizens, occur with some regularity--without a court order of any kind and without statutory authorization. Rather, these intrusive searches are approved on a case-by-case basis by the Attorney General pursuant to a Presidential authorization contained in Executive Order 12333, issued by President Reagan in 1981. The Executive order authorization is based on a claim by the executive branch that there is a national security exception to the fourth amendment. A U.S. court of appeals and a U.S. district court have held such searches to be within the President's constitutional powers, but there has been no Supreme Court decision on the issue.
- Until 1978, a similar situation existed in the United States with respect to electronic surveillance conducted for foreign intelligence purposes. In 1978, a convergence of interests among the Congress, the executive branch, and civil liberties groups led to the enactment of FISA, the Foreign Intelligence Surveillance Act. FISA authorized and regulated electronic surveillance conducted in the United States for foreign intelligence purposes, and required, in most cases, that a court order precede such a surveillance. Some in Congress at the time voted for FISA because they believed the fourth amendment required a court order for all wiretaps. Others voted for it because, whether or not a warrant was constitutionally required, they believed the court order process would provide the best assurance against a recurrence of the many abuses that had occurred. Still other Members voted for it because of a desire to provide legal protection to FBI officials involved in carrying out electronic surveillance in the foreign intelligence area.
- These arguments apply with even greater force to physical searches. A warrantless search of one's home is, in my opinion, more of an intrusion than a wiretap of one's telephone. Such searches led directly to the adoption of the fourth amendment. Justice Powell noted in the Keith case that `* * * physical entry of the home is the chief evil against which the wording of the fourth amendment is directed. * * *' United States v. United States District Court, 407 U.S. 297, 311 (1972). And Circuit Judge Leventhal, in one of the Watergate cases, cast doubt on the national security rationale for warrantless searches:
- Indeed the cases motivating adoption of the fourth amendment struck down governmental claims of unregulated power to search for evidence of treason and sedition. No American case since has sustained the right to search a
- home or office without a warrant merely in the name of national security. Although the precise issue at stake here has not previously been raised, those cases dealing with espionage prosecutions, where the national security implications were evident, refused to tolerate any deviation from standard fourth amendment requirements. In expanding the basic protections of the fourth amendment, the wiretap cases have not simultaneously eroded the fourth amendment's general protections already clearly in existence. U.S. v. Ehrlichman, 546 F.2d 910, 934, (D Cir. 1977). (footnotes omitted.)
- When FISA was adopted, then Attorney General Griffin Bell said it:
- sacrifices neither our security nor our civil liberties, and assures that the dedicated and patriotic men and women who serve this country in intelligence positions will have the affirmation of Congress that their activities are proper and necessary.
- I believe the same thing can be said of this bill. I also believe that whether or not the President has the constitutional authority to approve warrantless physical searches, and I don't think he does, sound public policy is best served by a carefully drafted statute authorizing such physical searches for intelligence purposes and requiring a court order, under standards and procedures similar to FISA, before such searches may be carried out. That is what my bill seeks to achieve.
- Except in cases where the search is of diplomatic premises, or other foreign government premises, or in circumstances where a warrant would not be required for law enforcement purposes, a court order would be required to conduct physical searches in the United States to collect foreign intelligence information. The application for such an order would be presented to one of the seven judges of the Foreign Intelligence Surveillance Court which is made up of sitting district court judges designated for 7-year terms by the Chief Justice. The Government must show, among other things, that the purpose of the search is to acquire intelligence information and that the target of the search is an agent of foreign power or a foreign power as defined in FISA. Since the purpose of the search is intelligence collection, not prosecution, some of the procedures and standards are different from those used to obtain a regular law enforcement search warrant. Thus, no notice is required to be given to the target, a criminal offense need not have occurred, and the proceedings are conducted in secrecy. However, if the agent of a foreign power whose property is to be searched is a U.S. citizen or permanent resident alien, there must be probable cause to believe that he is `engaged in clandestine intelligence gathering activities on behalf of a foreign power' and that such activities involve or `may involve' a criminal offense.
- There are other, detailed provisions, all of which are based on 10 years of experience under FISA. When FISA was enacted the report of the Permanent Select Committee on Intelligence noted:
- Although it may be desirable to develop legislative controls over physical search techniques, the committee has concluded that these practices are sufficiently different from electronic surveillance so as to require separate consideration by the Congress. The fact that the bill does not cover physical searches for intelligence purposes should not be viewed as congressional authorization for such activities. In any case, any requirement of the fourth amendment would, of course, continue to apply to this type of activity.
- I believe it is time to address this important issue. For too long the intelligence committees, because of the complexity of the issue and lack of support from the executive branch, have avoided its consideration. At the same time, however, the committees have, for several years, received semiannual briefings on those physical searches conducted without a court order, and have stated no formal objection to the practice. If we do not approve of warrantless searches, we should enact appropriate legislation before our inaction is taken by the courts as a sign of support.
- I, for one, do not approve. Continuing acquiescence in warrantless searches is unacceptable. Regardless of the honesty, legal skill, or good intentions of an Attorney General, he or she will always be part of the process with a stake in the outcome. As Justice Powell noted, the fourth amendment is predicated on a different principle:
- The fourth amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the fourth amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. United States v. United States District Court, 407 U.S. at 315 (citations and footnotes omitted).
- I recognize, of course, that the bill I introduce today cannot be enacted in the few remaining days of the 101st Congress. I hope, however, that it will engender serious discussion, and that early in 1991, building on hearings conducted in May by the Subcommittee on Legislation of the Permanent Select Committee on Intelligence, which I chair, the new Congress, the administration, and civil liberties groups can agree on a measure that will once and for all end the practice of warrantless searches. Clearly, there are differences now among these groups, and within the Congress. However, I hope that they can be worked out.
- The administration, apparently, would support a bill that would permit, not require, it to seek court orders for intelligence searches on the theory that such a practice would preserve its views on Presidential power. Interestingly, no security or operational objections have been raised.
- Others, especially those in the civil liberties community, have problems with the notion that these searches, especially of the residences of American citizens, should proceed pursuant to standards and practices less rigorous than those applicable to law enforcement search warrants, even if there is a court order. I find merit in many of their arguments. However, I believe that the benefits of judicial scrutiny of the authorization of intelligence searches outweigh the need for the imposition of the full range of procedures now applicable in criminal proceedings.
- In the next few months, it will be up to the Intelligence and Judiciary Committees, working closely with the administration and others, to fashion a bill that, building on the successful FISA model, will advance the cause of civil liberties while permitting the conduct of necessary intelligence activities. I think it can be done.