DECONCINI (AND OTHERS) AMENDMENT NO. 2553 (Senate - August 12, 1994)

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Mr. DeCONCINI (for himself, Mr. Warner, Mr. Glenn, Mr. D'Amato, Mr. Durenberger, Mr. Lugar, Mr. Kerrey, Mr. Bumpers, Mr. Graham, Mr. Chafee, and Mr. Bryan) proposed an amendment to the bill (S. 2082) to authorize appropriations for fiscal year 1995 for the intelligence activities of the U.S. Government and for the Central Intelligence Agency Retirement and Disability System, and for other purposes; as follows:

At the end of the bill insert the following new title:

`TITLE VII--COUNTERINTELLIGENCE AND SECURITY

SECTION 701. SHORT TITLE.

This title may be cited as the `Counterintelligence and Security Enhancements Act of 1994'.

SEC. 702. ACCESS TO CLASSIFIED INFORMATION.

(a) Amendment of the National Security Act of 1947: The National Security Act of 1947 (50 U.S.C. 401 et seq.) is amended by adding at the end the following new title:

`TITLE VIII--ACCESS TO CLASSIFIED INFORMATION

`PROCEDURES

`Sec. 801. Not later than 180 days after the date of enactment of this title, the President shall, by Executive order or regulation, establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government. Such procedures shall, at a minimum--

`(1) provide that, except as may be permitted by the President, no employee in the executive branch of Government may be given access to classified information by any department, agency, or office of the executive branch of Government unless, based upon an appropriate background investigation, such access is determined to be clearly consistent with the national security interests of the United States;

`(2) establish uniform minimum requirements governing the scope and frequency of background investigations and reinvestigations for all employees in the executive branch of Government who require access to classified information as part of their official responsibilities;

`(3) provide that all employees in the executive branch of Government who require access to classified information shall be required as a condition of such access to provide written consent to the employing department or agency which permits access by an authorized investigative agency to relevant financial records, other financial information, consumer reports, and travel records, as determined by the President, in accordance with section 802 of this title, during the period of access to classified information and for a period of five years thereafter;

`(4) provide that all employees in the executive branch of Government who require access to particularly sensitive classified information, as determined by the President, shall be required, as a condition of maintaining access to such information, to submit to the employing department or agency, during the period of such access, relevant information concerning their financial conditions and foreign travel, as determined by the President, as may be necessary to ensure appropriate security; and

`(5) establish uniform minimum standards to ensure that employees whose access to classified information is being denied or terminated under this title are appropriately advised of the reasons for such denial or termination and are provided an adequate opportunity to respond to all adverse information which forms the basis for such denial or termination before final action by the department or agency concerned, except that, wherever such information is derived from a classified source, appropriate measures shall be taken to conceal the identity of such source from the employee concerned.

`REQUESTS BY AUTHORIZED INVESTIGATIVE AGENCIES

`Sec. 802. (a)(1) Any authorized investigative agency may request from any financial agency, financial institution, or holding agency, or from any consumer credit reporting agency, such financial records, other financial information, and consumer reports as may be necessary in order to conduct any authorized law enforcement investigation, counterintelligence inquiry, or security determination.
Any authorized investigative agency may also request records maintain by any commercial entity within the United States pertaining to travel by a person outside the United States.

`(2) Requests may be made under this section where--

`(A) the records sought pertain to a person who is or was an employee required by the President in an Executive order or regulation, as a condition of access to classified information, to provide consent, during a background investigation and for such time as access to the information is maintained, and for a period of not more than 5 years thereafter, permitting access to financial records, other financial information, consumer reports, and travel records; and

`(B)(i) there is information or allegations indicating that the person is, or may be, disclosing classified information in an unauthorized manner to a foreign power or agent of a foreign power;

`(ii) information comes to the attention of the employing agency indicating the person has incurred excessive indebtedness or has acquired a level of affluence which cannot be explained by other information known to the agency; or

`(iii) circumstances indicate the person had the capability and opportunity to disclose classified information which is known to have been lost or compromised to a foreign power or an agent of a foreign power.

`(3) Each such request--

`(A) shall be accompanied by a written certification signed by the department or agency head or deputy department or agency head concerned, or by a senior official designated for this purpose by the department or agency head concerned (whose rank shall be no lower than Assistant Secretary of Assistant Director), and shall certify that--

`(i) the person concerned is or was an employee within the meaning of paragraph (2)(A);

`(ii) the request is being made pursuant to an authorized inquiry or investigation and is authorized under this section; and

`(iii) the records or information to be reviewed are records or information which the employee has previously agreed to make available to the authorized investigative agency for review;

`(B) shall contain a copy of the agreement referred to in subparagraph (A)(iii),

`(C) shall identify specifically or by category the records or information to be reviewed; and

`(D) shall inform the recipient of the request of the prohibition described in subsection (b).

`(b) Notwithstanding any other provision of law, no governmental or private entity, or officer, employee, or agent of such entity, may disclose to any person, other than those officers, employees, or agents of such entity necessary to satisfy a request made under this section, that such entity has received or satisfied a request made by an authorized investigative agency under this section.

`(c)(1) Notwithstanding any other provision of law (other than section 6103 of the Internal Revenue Code of 1986), an entity receiving a request for records or information under subsection (a) shall, if the request satisfies the requirements of this section, make available such records or information within 30 days for inspection or copying, as may be appropriate, by the agency requesting such records or information.

`(2) Any entity (including any officer, employee, or agent thereof) that discloses records or information for inspection or copying pursuant to this section in good faith reliance upon the certifications made by an agency pursuant to this section shall not be liable for any such disclosure to any person under this title, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.

`(d) Any agency requesting records or information under this section may, subject to the availability of appropriations, reimburse a private entity for any cost reasonably incurred by such entity in responding to such request, including the cost of identifying, reproducing, or transporting records or other data.

`(e) An agency receiving records or information pursuant to a request under this section may disseminate the records or information obtained pursuant to such request outside the agency only--

`(1) to the agency employing the employee who is the subject of the records of information;

`(2) to the Department of Justice for law enforcement or counterintelligence purposes; or

`(3) with respect to dissemination to an agency of the United States, if such information is clearly relevant to the authorized responsibilities of such agency.

`(f) Nothing in this section may be construed to affect the authority of an investigative agency to obtain information pursuant to the Right to Financial Privacy Act (12 U.S.C. 3401 et seq.) or the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).

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`EXCEPTIONS

`Sec. 803. Except as otherwise specifically provided, the provisions of this title shall not apply to the President and Vice President, Members of the Congress, Justices of the Supreme Court, and Federal judges appointed by the President.

`DEFINITIONS

`Sec. 804. For purposes of this title--

`(1) the term `authorized investigative agency' means an agency authorized by law or regulation to conduct a counterintelligence investigation or investigations of persons who are proposed for access to classified information to ascertain whether such persons satisfy the criteria for obtaining and retaining access to such information;

`(2) the term `classified information' means any information that has been determined pursuant to Executive Order No. 12356 of April 2, 1982, or successive orders, or the Atomic Energy Act of 1954, to require protection against unauthorized disclosure and that is so designated;

`(3) the term `consumer credit reporting agency' has the meaning given such term in section 603 of the Consumer Credit Protection Act (15 U.S.C. 1681a);

`(4) the term `employee' includes any person who receives a salary or compensation of any kind from the United States Government, is a contractor of the United States Government or an employee thereof, is an unpaid consultant of the United States
Government, or otherwise act for or on behalf of the United States Government;

`(5 the terms `financial agency' and `financial institution' have the meanings given to such terms in section 5312(a) of title 31, United States Code, and the term `holding agency' has the meaning given to such term in section 1101(6) of the Right of Financial Privacy Act of 1978 (12 U.S.C. 3401);

`(6) the terms `foreign power' and `agent of a foreign power' have the same meanings as set forth in sections 101 (a) and (b), respectively, of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and

`(7) the term `State' means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau (until such time as the Compact of Free Association is ratified), and any other possession of the United States.'.

(b) Clerical Amendment: The table of contents of the National Security Act of 1947 is amended by adding at the end the following:

`TITLE VIII--ACCESS TO CLASSIFIED INFORMATION

`Sec. 801. Procedures.

`Sec. 802. Requests by authorized investigative agencies.

`Sec. 803. Exceptions.

`Sec. 804. Definitions.'.

(c) Effective Date: The amendments made by subsections (a) and (b) shall take effect 180 days after the date of enactment of this Act.

SEC. 703 COORDINATION OF COUNTERINTELLIGENCE ACTIVITIES.

(a) Establishment of Counterintelligence Policy Board: (1) There is established within the executive branch of Government a National Counterintelligence Policy Board (in this section referred to as the `Board'). The Board shall report to the President through the National Security Council.

(2) The Board shall consist of the following individuals:

(A) The Attorney General, who shall serve as Chair.

(B) The Secretary of Defense.

(C) The Director of Central Intelligence.

(D) The Director of the Federal Bureau of Investigation.

(E) The Assistant to the President for National Security Affairs.

(b) Function of the Board: The Board shall serve as the principal mechanism for--.

(1) developing policies and procedures for the approval of the President to govern the conduct of counterintelligence activities; and

(2) resolving conflicts, as directed by the President, which may arise between elements of the Government which carry out such activities.

(c) Coordination of Counterintelligence Matters With The Federal Bureau of Investigation: (1) Except as provided in paragraph (3) below, the head of each department or agency within the Executive branch shall ensure that--

(A) the Federal Bureau of Investigation is advised immediately of any information, regardless of its source, which indicates that classified information is being, or may have been, deliberately disclosed in an unauthorized manner to a foreign power or an agent of a foreign power;.

(B) following a report made pursuant to subparagraph (A), the Federal Bureau of Investigation is consulted with respect to all subsequent actions which may be undertaken by the department or agency concerned to determine the source of such loss or compromise; and

(C) where, after appropriate consultation with the department of agency concerned, the Federal Bureau of Investigation undertakes investigative activities to determine the source of the loss or compromise, the FBI is given complete and timely access to its employees and records for purposes of such investigative activities.

(2) Except as provide in paragraph (3), below, the Director of the Federal Bureau of Investigation shall ensure that counterintelligence information obtained by the Federal Bureau of Investigation pertaining to the personnel, operations, or information of departments or agencies of the Executive branch, is provided through appropriate channels to the department or agency concerned, and that such departments or agencies are consulted in advance with respect to any action taken by the Federal Bureau of Investigation involving the personnel, operations, or information of such department or agency after a report is provided pursuant to subparagraph (1)(A).

(3) Where essential to meet extraordinary circumstances affecting vital national security interests of the United States, the President may on a case-by-case basis waive the requirements of paragraphs (1) or (2), above, as they apply to the head of a particular department or agency, or the Director of the Federal Bureau of Investigation. Such waiver shall be in writing and shall fully state the justification for such waiver. Within thirty days of issuing such waiver, the President shall notify the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives that such waiver has been issued, and at that time or as soon as national security considerations permit, provide these committees with a complete explanation of the circumstances which necessitated such waiver.

(4) The Director of the Federal Bureau of Investigation shall, in consultation with the Director of Central Intelligence and the Secretary of Defense, report annually, beginning on February 1, 1995, and continuing each year thereafter, to the Select Committee on Intelligence of the Senate and to the Permanent Select Committee on Intelligence of the House of Representatives with respect to compliance with paragraphs (1) and (2) during the previous calendar year.

(5) Nothing in this section may be construed to alter the existing jurisdictional arrangements between the Federal Bureau of Investigation and the Department of Defense with respect to investigations of persons subject to the Uniform Code of Military Justice, nor to impose additional reporting requirements upon the Department of Defense with respect to such investigations beyond those required by existing law and executive branch policy.

(6) As used in this section, the terms `foreign power' and `agent of a foreign power', have the same meanings as set forth in subsections 101(a) and (b), respectively, of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

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SEC. 704. DISCLOSURE OF CONSUMER CREDIT REPORTS FOR COUNTERINTELLIGENCE PURPOSES.

Section 608 of the Fair Credit Reporting Act (15 U.S.C. 1681f) is amended--

(1) by striking `Notwithstanding' and inserting

`(a) Disclosure of Certain Identifying Information.--Notwithstanding'; and

(2) by adding at the end the following new subsection:

`(b) Disclosures to the FBI for Counterintelligence Purposes:

`(1) Consumer Reports: Notwithstanding the provisions of section 604, a consumer reporting agency shall furnish a consumer report to the Federal Bureau of Investigation when presented with a written request for a consumer report, signed by the Director or Deputy Director of the Federal Bureau of Investigation who certifies compliance with this subsection. The Director or Deputy Director may make such a certification only if he has determined in writing that--

`(A) such records are necessary for the conduct of an authorized foreign counterintelligence investigation; and

`(B) there are specific and articulable facts giving reason to believe that the consumer whose consumer report is sought is a foreign power or an agent of a foreign power, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).

(2) Identifying Information: Notwithstanding the provisions of section 604, a consumer reporting agency shall furnish identifying information respecting a consumer, limited to name, address, former address, places of employment, or former places of employment, to the Federal Bureau of Investigation when presented with a written request, signed by the Director or Deputy Director, which certifies compliance with this subsection. The Director or Deputy Director may make such certification only if the Director or Deputy Director has determined in writing that--

`(A) such information is necessary to the conduct of an authorized foreign counterintelligence investigation; and

`(B)there is information giving reason to believe that the consumer has been, or is about to be, in contact with a foreign power or an agent of a foreign power, as so defined.

`(3) Confidentiality: No consumer reporting agency or officer, employee, or agent of such consumer reporting agency may disclose to any person, other than those officers, employees, or agents of such agency necessary to fulfill the requirement to disclose information to the Federal Bureau of Investigation under this subsection, that the Federal Bureau of Investigation has sought or obtained a consumer report or identifying information respecting any consumer under paragraph (1) or (2), nor shall such agency, officer, employee, or agent include in any consumer report any information that would indicate that the Federal Bureau of Investigation has sought or obtained such a consumer report or identifying information.

`(4) Payment of fees: The Federal Bureau of Investigation may, subject to the availability of appropriations, pay to the consumer reporting agency assembling or providing credit reports or identifying information in accordance with this title, a fee for reimbursement for such costs as are reasonably necessary and which have been directly incurred in searching, reproducing, or transporting books, papers, records, or other data required or requested to be produced under this subsection.

`(5) Limit on dissemination: The Federal Bureau of Investigation may not disseminate information obtained pursuant to this subsection outside of the Federal Bureau of Investigation, except to the Department of Justice or as may be necessary for the conduct of a foreign counterintelligence investigation.

`(6) Rules of construction: Nothing in this subsection shall be construed to prohibit information from being furnished by the Federal Bureau of Investigation pursuant to a subpoena or court order, or in connection with a judicial or administrative proceeding to enforce the provisions of this Act. Nothing in this subsection shall be construed to authorize or permit the withholding of information from Congress.

`(7) Reports to congress: On an annual basis, the Attorney General of the United States shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests made pursuant to paragraphs (1) and (2).

`(8) Damages: Any agency or department of the United States obtaining or disclosing credit reports, records, or information contained therein in violation of this subsection is liable to the consumer to whom such records relate in an amount equal to the sum of--

`(A) $100, without regard to the volume of records involved;

`(B) any actual damages sustained by the consumer as a result of the disclosure;

`(C) if the violation is found to have been willful or intentional, such punitive damages as a court may allow: and

`(D) in the case of any successful action to enforce liability under this subsection, the costs of the action, together with reasonable attorney's fees, as determined by the court.

`(9) Good faith exception: Any credit reporting agency or agent or employee thereof making disclosure of credit reports or identifying information pursuant to this subsection in good faith reliance upon a certificate of the Federal Bureau of Investigation pursuant to this subsection shall not be liable to any person for such disclosure under this title, the constitution of any State, or any law or regulation
of any State or any political subdivision of any State. As used in this subsection, the term `State' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Trust Territory of the Pacific Islands, and any territory or possession of the United States.

`(10) Limitation of remedies.--The remedies set forth in this subsection shall be the only judicial remedies for violation of this subsection.

`(11) Injunctive relief.--In addition to any other remedy contained in this subsection, injunctive relief shall be available to require compliance with the procedures of this subsection. In the event of any successful action under this subsection, costs of the action, together with reasonable attorney's fees, as determined by the court, may be recovered.'.

SEC. 705. REWARDS FOR INFORMATION CONCERNING ESPIONAGE.

(a) Rewards.--Section 3071 of title 18, United States Code, is amended--

(1) by inserting `(a)' before `With respect to'; and

(2) by adding at the end the following new subsection:

`(b) With respect to acts of espionage involving or directed at the United States, the Attorney General may reward any individuals who furnishes information--

`(1) leading to the arrest or conviction, in any country, of any individual or individuals for commission of an act of espionage against the United States;

`(2) leading to the arrest or conviction, in any country, of any individual or individuals for conspiring or attempting to commit an act of espionage against the United States; or

`(3) leading to the prevention or frustration of an act of espionage against the United States.'.

(b) Definitions.--Section 3077 of such title is amended by adding at the end the following new paragraph:

`(8) `act of espionage' means an activity that is a violation of--

`(A) section 793, 794, or 798 of title 18, United States Code; or

`(B) section 783(b) of title 50, United States Code.'.

(c) Clerical Amendments.--The items relating to chapter 24 in the table of chapters at the beginning of such title, and in the table of chapters at the beginning of part II of such title, are each amended by adding at the end the following: `and espionage.'.

SEC. 706. ESPIONAGE NOT COMMITTED IN ANY DISTRICT.

(a) In General.--Chapter 211 of title 18, United States Code, is amended by inserting after section 3238 the following new section:

`3239. Espionage and related offenses not committed in any district

`The trial for any offense involving a violation of--

`(1) section 793, 794, 798, 952, or 1030(a)(1) of this title,

`(2) section 601 of the National Security Act of 1947 (50 U.S.C. 421), or

`(3) subsection (b) or (c) of section 4 of the Subversive Activities Control Act of 1950 (50 U.S.C. 783 (b) or (c)), begun or committed upon the high seas or elsewhere out of the jurisdiction of any particular State or district,
may be in the District of Columbia or in any other district authorized by law.'.

(b) Clerical Amendment.--The table of sections at the beginning of chapter 211 of such title is amended by inserting after the item relating to section 3238 the following:

`3239. Espionage and related offenses not committed in any district.'.

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SEC. 707. CRIMINAL FORFEITURE FOR VIOLATION OF CERTAIN ESPIONAGE LAWS.

(A) In General: Section 798 of title 18, United States Code, is amended by adding at the end the following new subsections:

`(d)(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law--

`(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly as the result of such violation; and

`(B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

`(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).

`(3) Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853 (b), (c), and (e)-(p)) shall apply to--

`(A) property subject to forfeiture under this subsection;

`(B) any seizure or disposition of such property; and

`(C) any administrative or judicial proceeding in relation to such property if not inconsistent with this subsection.

`(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

`(e) As used in subsection (d) of this section, the term `State' means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau (until such time as the Compact of Free Association is ratified), and any other possession of the United States.'.

(b) Amendments for Consistency in Application of Forfeiture Under Title 18: (1) Section 793(h)(3) of such title is amended in the matter above subparagraph (a) by striking out `(o)' each place it appears and inserting in lieu thereof `(p)'.

(2) Section 794(d)(3) of such title is amended in the matter above subparagraph (A) by striking out `(o)' each place it appears and inserting in lieu thereof `(p)'.

(c) Subversive Activities Control Act: Section 4 of the Subversive Activities Control Act of 1950 (50 U.S.C. 783) is amended by adding at the end the following new subsection:

`(g)(1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law--

`(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and

`(B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

`(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).

`(3) Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853 (b), (c), and (e)-(p)) shall apply to--

`(A) property subject to forfeiture under this subsection:

`(B) any seizure or disposition of such property; and

`(C) any administrative or judicial proceeding in relation to such property, if not inconsistent with this subsection.

`(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.'.

SEC. 708. DENIAL OF ANNUITIES OR RETIRED PAY TO PERSONS CONVICTED OF ESPIONAGE IN FOREIGN COURTS INVOLVING UNITED STATES INFORMATION.

Section 8312 of title 5, United States Code, is amended by adding at the end thereof the following new subsection:

`(d) For purposes of subsections (b)(1) and (c)(1), an offense within the meaning of such subsections is established if the Attorney General certifies to the agency administering the annuity or retired pay concerned--

`(1) that an individual subject to this chapter has been convicted by an impartial court of appropriate jurisdiction within a foreign country in circumstances in which the conduct violates the provisions of law enumerated in subsections (b)(1) and (c)(1), or would violate such provisions had such conduct taken place with the United States, and that such conviction is not being appealed or that final action has been taken on such appeal;

`(2) that such conviction was obtained in accordance with procedures that provided the defendant due process rights comparable to such rights provided by the United States Constitution, and such conviction was based upon evidence which would have been admissible in the courts of the United States; and

`(3) that such conviction occurred after the date of enactment of this subsection.'.

SEC. 709. PROVIDING A COURT ORDER PROCESS FOR PHYSICAL SEARCHES UNDERTAKEN FOR FOREIGN INTELLIGENCE PURPOSES.

(a) Amendment of the Foreign Intelligence Surveillance Act of 1978: The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended--

(1) by redesignating title III as title IV and section 301 as section 401, respectively;

(2) in section 401 (as redesignated) by inserting `(other than title III)' after `provisions of this Act' and

(3) by inserting after title II the following new title:

`TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN INTELLIGENCE PURPOSES

`AUTHORIZATION OF PHYSICAL SEARCHES FOR FOREIGN INTELLIGENCE PURPOSES

`Sec. 301. (a) Applications for a court order under this title are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the Foreign Intelligence Surveillance Court. Notwithstanding any other law, a judge of the court to whom application is made may grant an order in accordance with section 303 approving a physical search in the United States of the premises, property, information, or material of a foreign power or an agent of a foreign power for the purpose of collecting foreign intelligence information.

`(b) The Foreign Intelligence Surveillance Court shall have jurisdiction to hear applications for and grant orders approving a physical search for the purpose of obtaining foreign intelligence information anywhere within the United States under the procedures set forth in this title, except that no judge shall hear the same application which has been denied previously by another judge designated under section 103(a) of the Act. If any judge so designated denies an application for an order authorizing a physical search under this title, such judge shall provide immediately for the record a written statement of each reason for his decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established under section 103(b).

`(c) The court of review established under section 103(b) shall have jurisdiction to review the denial of any application made under this title. If such court determines that the application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.

`(d) Judicial proceedings under this title shall be concluded as expeditiously as possible. The record of proceedings under this title, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice of the United States in consultation with the Attorney General and the Director of Central Intelligence.

`APPLICATION FOR AN ORDER

`Sec. 302. (a) Each application for an order approving a physical search under this title shall be made by a Federal officer in writing upon oath or affirmation to a judge of the Foreign Intelligence Surveillance Court. Each application shall require the approval of the Attorney General based upon the Attorney General's finding that it satisfies the criteria and requirements for such application as set forth in this title. Each application shall include--

`(1) the identity of the Federal officer making the application;

`(2) the authority conferred on the Attorney General by the President and the approval of the Attorney General to make the application;

`(3) the identity, if known, or a description of the target of the search, and a detailed description of the premises or property to be searched and of the information, material, or property to be seized, reproduced, or altered;

`(4) a statement of the facts and circumstances relied upon by the applicant to justify the applicant's belief that--

`(A) the target of the physical search is a foreign power or an agent of a foreign power;

`(B) the premises or property to be searched contains foreign intelligence information; and

`(C) the premises or property to be searched is owned, used, possessed by, or is in transit to or from a foreign power or an agent of a foreign power;

`(5) a statement of the proposed minimization procedures;

`(6) a statement of the nature of the foreign intelligence sought and the manner in which the physical search is to be conducted;

`(7) a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive branch officers employed in the area of national security or defense and appointed by the President by and with the advice and consent of the Senate--

`(A) that the certifying official deems the information sought to be foreign intelligence information;

`(B) that the purpose of the search is to obtain foreign intelligence information;

`(C) that such information cannot reasonably be obtained by normal investigative techniques;

`(D) that designates the type of foreign intelligence information being sought according to the categories described in section 101(e); and

`(E) includes a statement explaining the basis for the certifications required by subparagraphs (C) and (D); and

`(8) a statement of the facts concerning all previous applications that have been made to any judge under this title involving any of the persons, premises, or property specified in the application, and the action taken on each previous application.

`(b) The Attorney General may require any other affidavit or certification from any other officer in connection with the application.

`(c) The judge may require the applicant to furnish such other information as may be necessary to make the determinations requiring by section 303.

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`ISSUANCE OF AN ORDER

`Sec. 303. (a) Under an application made pursuant to section 302, the judge shall enter an ex parte order as requested or as modified approving the physical search if the judge finds that--

`(1) the President has authorized the Attorney General to approve applications for physical searches for foreign intelligence purposes;

`(2) the application has been made by a Federal officer and approved by the Attorney General;

`(3) on the basis of the facts submitted by the applicant there is probable cause to believe that--

`(A) the target of the physical search is a foreign power or an agent of a foreign power, except that no United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States;

`(B) the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power; and

`(C) physical search of such premises or property can reasonably be expected to yield foreign intelligence information which cannot reasonably be obtained by normal investigative means;

`(4) the proposed minimization procedures meet the definition of minimization contained in this title; and

`(5) the application which has been filed contains all statements and certifications required by section 302, and, if the target is a United States person, the certification or certifications are not clearly erroneous on the basis of the statement made under section 302(a)(7)(E) and any other information furnished under section 302(c).

`(b) An order approving a physical search under this section shall--

`(1) specify--

`(A) the identity, if known, or a description of the target of the physical search;

`(B) the nature and location of each of the premises or property to be searched;

`(C) the type of information, material, or property to be seized, altered, or reproduced;

`(D) a statement of the manner in which the physical search is to be conducted and, whenever more than one physical search is authorized under the order, the authorized scope of each search and what minimization procedures shall apply to the information acquired by each search; and

`(E) the period of time during which physical searches are approved; and

`(2) direct--

`(A) that the minimization procedures be followed:

`(B) that, upon the request of the applicant, a specified landlord, custodian, or other specified person furnish the applicant forthwith all information, facilities, or assistance necessary to accomplish the physical search in such a manner as will protect its secrecy and produce a minimum of interference with the services that such landlord, custodian, or other person is providing the target of the physical search;

`(C) that such landlord, custodian or other person maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the search or the aid furnished that such person wishes to retain;

`(D) that the applicant compensate, at the prevailing rate, such landlord, custodian, or other person for furnishing such aid; and

`(E) that the Federal officer conducting the physical search promptly report to the court the circumstances and results of the physical search.

`(c)(1) An order issued under this section may approve a physical search for the period necessary to achieve its purpose, or for ninety days, whichever is less, except that an order under this section shall approve physical search targeted against a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a), for the period specified in the application or for one year, whichever is less.

`(2) Extensions of an order issued under this title may be granted on the same basis as the original order upon an application for an extension and new findings made in the same manner as required for the original order, except that an extension of an order under this Act for a physical search targeted against a foreign power, as defined in section 101(a)(5) or (6), or against a foreign power, as defined in section 101(a)(4), that is not a United States person, may be for a period not to exceed one year if the judge finds probable cause to believe that no property of any individual United States person will be acquired during the period.

`(3) At or before the end of the period of time for which a physical search is approved by an order or an extension, or at any time after a physical search is carried out, the judge may assess compliance with the minimization procedures by reviewing the circumstances under which information concerning United States persons was acquired, retained, or disseminated.

`(d)(1) Notwithstanding any other provision of this title, whenever the Attorney General reasonably determines that--

`(A) an emergency situation exists with respect to the execution of a physical search to obtain foreign intelligence information before an order authorizing such search can with due diligence be obtained, and

`(B) the factual basis for issuance of an order under this title to approve such a search exists,
the Attorney General may authorize the execution of an emergency physical search if--

`(i) a judge having jurisdiction under section 103 is informed by the Attorney General or the Attorney General's designee at the time of such authorization that the decision has been made to execute an emergency search, and

`(ii) an application in accordance with this title is made to that judge as soon as practicable but not more than 24 hours after the Attorney General authorizes such search.

`(2) If the Attorney General authorizes on emergency search under paragraph (1), the Attorney General shall require that the minimization procedures required by this title for the issuance of a judicial order be followed.

`(3) In the absence of a judicial order approving such a physical search, the search shall terminate the earlier of--

`(A) the date on which the information sought is obtained;

`(B) the date on which the application for the order is denied; or

`(C) the expiration of 24 hours from the time of authorization by the Attorney General.

`(4) In the event that such application for approval is denied, or in any other case where the physical search is terminated and no order is issued approving the search, no information obtained or evidence derived from such search shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such search shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General, if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 301.

`(e) Applications made and orders granted under this title shall be retained for a period of at least 10 years from the date of the application.

`USE OF INFORMATION

`Sec. 304. (a) Information acquired from a physical search conducted pursuant to this title concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this title. No information acquired from a physical search pursuant to this title may be used or disclosed by Federal officers or employees except for lawful purposes.

`(b) No information acquired pursuant to this title shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advance authorization of the Attorney General.

`(c) Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from a physical search of the premises or property of that aggrieved person pursuant to the authority of this title, the United States shall, prior to the trial, hearing, or the other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.

`(d) Whenever any State or political subdivision thereof intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of a State or a political subdivision thereof against an aggrieved person any information obtained or derived from a physical search of the premises or property of that aggrieved person pursuant to the authority of this title, the State or political subdivision thereof shall notify the aggrieved person, the court or other authority in which the information is to be disclosed or used, and the Attorney General that the State or political subdivision thereof intends to so disclose or so use such information.

`(e)(1) Any person against whom evidence obtained or derived from a physical search to which he is an aggrieved person is to be, or has been, introduced or otherwise used or disclosed in any trial, hearing, or other 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 evidence obtained or derived from such search on the grounds that--

`(A) the information was unlawfully acquired; or

`(B) the physical search was not made in conformity with an order of authorization or approval.

`(2) Such a motion shall be made before the trial, hearing, or other proceeding unless there was no opportunity to make such a motion or the person was not aware of the grounds of the motion.

`(f) Whenever a court or other authority is notified pursuant to subsection (c) or (d), or whenever a motion is made pursuant to subsection (e), or whenever any motion or request is made by an aggrieved person pursuant to any other statute or rule of the United States or any State before any court or other authority of the United States or any State to discover or obtain applications or orders or other materials relating to a physical search authorized by this title or to discover, obtain, or suppress evidence or information obtained or derived from a physical search authorized by this title, the United States district court or, where the motion is made before another authority, the United States district court in the same district as the authority shall, notwithstanding any other law, if the Attorney General files an affidavit under oath that disclosure or any adversary hearing would harm the national security of the United States, review in camera and ex parte the application, order, and such other materials relating to the physical search as may be necessary to determine whether the physical search of the aggrieved person was lawfully authorized and conducted. In making this determination, the court may disclose to the aggrieved person, under appropriate security procedures and protective orders, portions of the application, order, or other materials relating to the physical search only where such disclosure is necessary to make an accurate determination of the legality of the physical search.

`(g) If the United States district court pursuant to subsection (f) determines that the physical search was not lawfully authorized or conducted, it shall, in accordance with the requirements of law, suppress the evidence which was unlawfully obtained or derived from the physical search of the aggrieved person or otherwise grant the motion of the aggrieved person. If the court determines that the physical search was lawfully authorized or conducted, it shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.

`(h) Orders granting motions or requests under subsection (g), decisions under this section that a physical search was not lawfully authorized or conducted, and orders of the United States district court requiring review or granting disclosure of applications, orders, or other materials relating to the physical search shall be final orders and binding upon all courts of the United States and the several States except a United State Court of Appeals or the Supreme Court.

`(i) If an emergency execution of a physical search is authorized under section 303(d) and a subsequent order approving the search is not obtained, the judge shall cause to be served on any United States person named in the application and on such other United States persons subject to the search as the judge may determine in his discretion it is the interests of justice to serve, notice of--

`(1) the fact of the application;

`(2) the period of the search; and

`(3) the fact that during the period information was or was not obtained.
On an ex parte showing of good cause to the judge, the serving of the notice required by this subsection may be postponed or suspended for a period not to exceed 90 days. Thereafter, on a further ex parte showing of good cause, the court shall forego ordering the serving of the notice required under this subsection.

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`CONGRESSIONAL OVERSIGHT

`Sec. 305. (a) On a semiannual basis the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all physical searches conducted pursuant to this title. On an annual basis the Attorney General shall also provide to those committees a report setting forth with respect to the preceding calendar year--

`(1) the total number of applications made for orders approving physical searches under this title; and

`(2) the total number of such orders either granted, modified, or denied.

`PENALTIES

`Sec. 306. (a) Offense: A person is guilty of an offense if he intentionally--

`(1) under color of law for the purpose of obtaining foreign intelligence information, executes a physical search within the United States except as authorized by statute; or

`(2) discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute, for the purpose of obtaining intelligence information.

`(b) Defense.--It is a defense to a prosecution under subsection (a) that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the physical search was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.

`(c) Penalty.--An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.

`(d) Jurisdiction.--There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

`CIVIL LIABILITY

`Sec. 307. Civil Action.--An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 101 (a) or (b)(1)(A), respectively, of this Act, whose premises, property, information, or material has been subjected to a physical search within the United States or about whom information obtained by such a physical search has been disclosed or used in violation of section 306 shall have a cause of action against any person who committed such violation and shall be entitled to recover--

`(1) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;

`(2) punitive damages; and

`(3) reasonable attorney's fees and other investigative and litigation costs reasonably incurred.

`AUTHORIZATION DURING TIME OF WAR

`Sec. 308. Notwithstanding any other law, the President, through the Attorney General, may authorize physical searches without a court order under this title to acquire foreign intelligence information for a period not to exceed 15 calendar days following a declaration of war by the Congress.

`DEFINITIONS

`Sec. 309. As used in this title:

`(1) The terms `foreign power', `agent of a foreign power', `international terrorism', `sabotage', `foreign intelligence information', `Attorney General', `United States person', `United States', `person', and `State' shall have the same meanings as in section 101 of this Act.

`(2) `Aggrieved person' means a person whose premises, property, information, or material is the target of physical search or any other person whose premises, property, information, or material was subject to physical search.

`(3) `Foreign Intelligence Surveillance Court' means the court established by section 103(a) of this Act.

`(4) `Minimization procedures' with respect to physical search, means--

`(A) specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purposes and technique of the particular physical search, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;

`(B) procedures that require that non-publicly available information, which is not foreign intelligence information, as defined in section 101(e)(1) of this Act, shall not be disseminated in a manner that identifies any United States person, without such person's consent, unless such person's identity is necessary to understand such foreign intelligence information or assess its importance; and

`(C) notwithstanding subparagraphs (A) and (B), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.

`(5) `Physical search' means any physical intrusion into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include `electronic surveillance', as defined in section 101(f) of this Act.'.

(b) Clerical Amendment.--The table of contents for the Foreign Intelligence Surveillance Act of 1978 is amended by striking the items relating to title III and inserting the following:

`TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN INTELLIGENCE PURPOSES

`Sec. 301. Authorization of physical searches for foreign intelligence purposes.

`Sec. 302. Application for an order.

`Sec. 303. Issuance of an order.

`Sec. 304. Use of information.

`Sec. 305. Congressional oversight.

`Sec. 306. Penalties.

`Sec. 307. Civil liability.

`Sec. 308. Authorization during time of war.

`Sec. 309. Definitions.

`TITLE IV--EFFECTIVE DATE

`Sec. 401. Effective Date.'.

(c) Effective Date.--The amendments made by subsections (a) and (b) shall take effect 90 days after the date of enactment of this Act, except that any physical search approved by the Attorney General to gather foreign intelligence information shall not be deemed unlawful for failure to follow the procedures of title III of the Foreign Intelligence Surveillance Act of 1978 (as added by this Act), if that search is conducted within 180 days after the date of enactment of this Act pursuant to regulations issued by the Attorney General, which were in the possession of the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives before the date of enactment of this Act.

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SEC. 710. LESSER CRIMINAL OFFENSE FOR UNAUTHORIZED REMOVAL OF CLASSIFIED DOCUMENTS.

(a) In General.--Chapter 93 of title 18, United States Code, is amended by adding at the end the following new section:

`1924. Unauthorized removal and retention of classified documents or material

`(a) In General.--Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined not more than $1,000, or imprisoned for not more than 1 year, or both.

`(b) Definition.--In this section, the term `classified information of the United States' means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.'.

(b) Clerical Amendment.--The table of sections at the beginning of such chapter is amended by adding at the end the following:

`1924. Unauthorized removal and retention of classified documents or material.'.

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END