The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“TEXT OF AMENDMENTS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S398-S401 on Jan. 28, 2008.
The publication is reproduced in full below:
TEXT OF AMENDMENTS
SA 3951. Mr. BOND submitted an amendment intended to be proposed to amendment SA 3930 submitted by Mr. Cardin (for himself and Ms. Mikulski) and intended to be proposed to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
On page 1, line 3, strike ``the transitional procedures'', and all that follows through ``2011.'' on line 8 and insert the following: ``the previous sentence shall have no force or effect.''.
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SA 3952. Mr. BOND submitted an amendment intended to be proposed to amendment SA 3901 submitted by Mr. Kennedy and intended to be proposed to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
On page 1, line 3, strike ``the transitional procedures'', and all that follows through ``2010.'' on line 8 and insert the following: ``the previous sentence shall have no force or effect.''.
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SA 3953. Mr. BOND submitted an amendment intended to be proposed to amendment SA 3859 submitted by Mr. Cardin and intended to be proposed to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
On page 1, line 3, strike ``the transitional procedures'', and all that follows through ``2011.'' on line 8 and insert the following: ``the previous sentence shall have no force or effect.''.
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SA 3954. Mr. BOND submitted an amendment intended to be proposed by him to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
On page 3, strike line 8 and all that follows through the end of the amendment and insert the following:
(c) Authorization Following Attack or Declaration of War.--The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by--
(1) striking section 111 and inserting the following:
``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR
``Sec. 111. Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order to acquire foreign intelligence information for a period of not longer than 180 days after the date of--
``(1) submission of a certification by the Attorney General to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives that there is a grave threat of an imminent attack on the United States;
``(2) an attack on the United States; or
``(3) a declaration of war by the Congress.'';
(2) striking section 309 and inserting the following:
``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR
``Sec. 309. Notwithstanding any other law, the President, through the Attorney General, may authorize a physical search without a court order to acquire foreign intelligence information for a period of not longer than 180 days after the date of--
``(1) submission of a certification by the Attorney General to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives that there is a grave threat of an imminent attack on the United States;
``(2) an attack on the United States; or
``(3) a declaration of war by the Congress.''; and
(3) striking section 404 and inserting the following:
``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR
``Sec. 404. Notwithstanding any other law, the President, through the Attorney General, may authorize the use of a pen register or trap and trace device without a court order to acquire foreign intelligence information for a period of not longer than 180 days after the date of--
``(1) submission of a certification by the Attorney General to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives that there is a grave threat of an imminent attack on the United States;
``(2) an attack on the United States; or
``(3) a declaration of war by the Congress.''.
(d) Conforming Amendments.--
(1) In general.--Section 2511(2) of title 18, United States Code, is amended--
(A) in paragraph (a), by adding at the end the following:
``(iii) If a certification under subparagraph (ii)(B) for assistance to obtain foreign intelligence information is based on statutory authority, the certification shall identify the specific statutory provision, and shall certify that the requirements have been met.''; and
(B) in paragraph (f), by striking ``, as defined in section 101 of such Act,'' and inserting ``(as defined in section 101(f) of such Act regardless of the limitation of section 701 of such Act)''.
(2) Table of contents.--The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by--
(A) striking the item relating to section 111 and inserting the following:
``Sec. 111. Authorization following attack or declaration of war.
``Sec. 112. Statement of exclusive means by which electronic surveillance and interception of certain communications may be conducted.'';
(B) striking the item relating to section 309 and inserting the following:
``Sec. 309. Authorization following attack or declaration of war.''; and
(C) striking the item relating to section 404 and inserting the following:
``Sec. 404. Authorization following attack or declaration of war.''.
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SA 3955. Mr. BOND submitted an amendment intended to be proposed to amendment SA 3951 submitted by Mr. Feingold (for himself and Mr. Dodd) and intended to be proposed to the amendment SA 3911 proposed by Mr. Rockefeller (for himself and Mr. Bond) to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
On page 2, strike line 12 and all that follows through the end of the amendment and insert the following:
``(ii) Limitation on use of information.--If part or all of an acquisition authorized under subsection (a) is terminated under clause (i)(II), no information obtained or evidence derived from such terminated acquisition concerning any United States person 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 terminated acquisition 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.''
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SA 3956. Mr. BOND submitted an amendment intended to be proposed to amendment SA 3918 proposed by Mr. Reid to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
Strike all after ``1.'' and insert the following:
SHORT TITLE.
This Act may be cited as the ``Permanent Protect America Act of 2008''.
TITLE I--REPEAL OF SUNSET OF THE PROTECT AMERICA ACT OF 2007
SEC. 101. REPEAL OF SUNSET OF THE PROTECT AMERICA ACT OF
2007.
Section 6 of the Protect America Act of 2007 (Public Law 110-55; 121 Stat. 557; 50 U.S.C. 1803 note) is amended by striking subsection (c).
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. DEFINITIONS.
In this title:
(1) Assistance.--The term ``assistance'' means the provision of, or the provision of access to, information
(including communication contents, communications records, or other information relating to a customer or communication), facilities, or another form of assistance.
(2) Contents.--The term ``contents'' has the meaning given that term in section 101(n) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(n)).
(3) Covered civil action.--The term ``covered civil action'' means a civil action filed in a Federal or State court that--
(A) alleges that an electronic communication service provider furnished assistance to an element of the intelligence community; and
(B) seeks monetary or other relief from the electronic communication service provider related to the provision of such assistance.
(4) Electronic communication service provider.--The term
``electronic communication service provider'' means--
(A) a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
(B) a provider of an electronic communication service, as that term is defined in section 2510 of title 18, United States Code;
(C) a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code;
(D) any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored;
(E) a parent, subsidiary, affiliate, successor, or assignee of an entity described in subparagraph (A), (B), (C), or (D); or
(F) an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), (D), or (E).
(5) Element of the intelligence community.--The term
``element of the intelligence community'' means an element of the intelligence community specified in or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.
(a) Limitations.--
(1) In general.--Notwithstanding any other provision of law, a covered civil action shall not lie or be maintained in a Federal or State court, and shall be promptly dismissed, if the Attorney General certifies to the court that--
(A) the assistance alleged to have been provided by the electronic communication service provider was--
(i) in connection with an intelligence activity involving communications that was--
(I) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
(II) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
(ii) described in a written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was--
(I) authorized by the President; and
(II) determined to be lawful; or
(B) the electronic communication service provider did not provide the alleged assistance.
(2) Review.--A certification made pursuant to paragraph (1) shall be subject to review by a court for abuse of discretion.
(b) Review of Certifications.--If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) would harm the national security of the United States, the court shall--
(1) review such certification in camera and ex parte; and
(2) limit any public disclosure concerning such certification, including any public order following such an ex parte review, to a statement that the conditions of subsection (a) have been met, without disclosing the subparagraph of subsection (a)(1) that is the basis for the certification.
(c) Nondelegation.--The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or a designee in a position not lower than the Deputy Attorney General.
(d) Civil Actions in State Court.--A covered civil action that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.
(e) Rule of Construction.--Nothing in this section may be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.
(f) Effective Date and Application.--This section shall apply to any covered civil action that is pending on or filed after the date of enactment of this Act.
SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES
UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding after title VII the following new title:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``SEC. 801. DEFINITIONS.
``In this title:
``(1) Assistance.--The term `assistance' means the provision of, or the provision of access to, information
(including communication contents, communications records, or other information relating to a customer or communication), facilities, or another form of assistance.
``(2) Attorney general.--The term `Attorney General' has the meaning give that term in section 101(g).
``(3) Contents.--The term `contents' has the meaning given that term in section 101(n).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined in section 3 of the Communications Act of 1934 (47 U.S.C. 153);
``(B) a provider of electronic communication service, as that term is defined in section 2510 of title 18, United States Code;
``(C) a provider of a remote computing service, as that term is defined in section 2711 of title 18, United States Code;
``(D) any other communication service provider who has access to wire or electronic communications either as such communications are transmitted or as such communications are stored;
``(E) a parent, subsidiary, affiliate, successor, or assignee of an entity described in subparagraph (A), (B),
(C), or (D); or
``(F) an officer, employee, or agent of an entity described in subparagraph (A), (B), (C), (D), or (E).
``(5) Element of the intelligence community.--The term
`element of the intelligence community' means an element of the intelligence community as specified or designated under section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
``(6) Person.--The term `person' means--
``(A) an electronic communication service provider; or
``(B) a landlord, custodian, or other person who may be authorized or required to furnish assistance pursuant to--
``(i) an order of the court established under section 103(a) directing such assistance;
``(ii) a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code; or
``(iii) a directive under section 102(a)(4), 105B(e), as in effect on the day before the date of the enactment of the FISA Amendments Act of 2008 or 703(h).
``(7) State.--The term `State' means any State, political subdivision of a State, the Commonwealth of Puerto Rico, the District of Columbia, and any territory or possession of the United States, and includes any officer, public utility commission, or other body authorized to regulate an electronic communication service provider.
``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
``(a) Requirement for Certification.--
``(1) In general.--Notwithstanding any other provision of law, no civil action may lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the court that--
``(A) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;
``(B) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
``(C) any assistance by that person was provided pursuant to a directive under sections 102(a)(4), 105B(e), as in effect on the day before the date of the enactment of the FISA Amendments Act of 2008, or 703(h) directing such assistance; or
``(D) the person did not provide the alleged assistance.
``(2) Review.--A certification made pursuant to paragraph
(1) shall be subject to review by a court for abuse of discretion.
``(b) Limitations on Disclosure.--If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) would harm the national security of the United States, the court shall--
``(1) review such certification in camera and ex parte; and
``(2) limit any public disclosure concerning such certification, including any public order following such an ex parte review, to a statement that the conditions of subsection (a) have been met, without disclosing the subparagraph of subsection (a)(1) that is the basis for the certification.
``(c) Removal.--A civil action against a person for providing assistance to an element of the intelligence community that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.
``(d) Relationship to Other Laws.--Nothing in this section may be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.
``(e) Applicability.--This section shall apply to a civil action pending on or filed after the date of enactment of the FISA Amendments Act of 2008.''.
SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.
Title VIII of the Foreign Intelligence Surveillance Act (50 U.S.C. 1801 et seq.), as added by section 203 of this Act, is amended by adding at the end the following new section:
``SEC. 803. PREEMPTION.
``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic communication service provider's alleged assistance to an element of the intelligence community;
``(2) require through regulation or any other means the disclosure of information about an electronic communication service provider's alleged assistance to an element of the intelligence community;
``(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or
``(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.
``(b) Suits by the United States.--The United States may bring suit to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.
``(d) Application.--This section shall apply to any investigation, action, or proceeding that is pending on or filed after the date of enactment of the FISA Amendments Act of 2008.''.
SEC. 205. TECHNICAL AMENDMENTS.
The table of contents in the first section of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by adding at the end the following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.
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SA 3957. Mr. BOND submitted an amendment intended to be proposed to amendment SA 3932 submitted by Mr. Whitehouse and intended to be proposed to the amendment SA 3911 proposed by Mr. Rockefeller (for himself and Mr. Bond) to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
On page 1, line 8, of the amendment, strike ``30'' and insert ``90''.
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SA 3958. Mr. BOND submitted an amendment intended to be proposed to amendment SA 3929 submitted by Mr. Leahy (for himself, Mr. Kennedy, Mr. Menendez, and Ms. Mikulski) and intended to be proposed to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
Strike line 4 of page 1 of the amendment and all that follows and insert the following:
(a) Terrorist Surveillance Program and Program Defined.--In this section, the terms ``Terrorist Surveillance Program'' and ``Program'' mean the intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007.
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the Office of the Director of National Intelligence, the Department of Justice, and the National Security Agency, with respect to the oversight authority and responsibility of each such Inspector General and only with respect to the participation of their respective agencies or departments in the Terrorist Surveillance Program, shall complete, to the extent applicable, a comprehensive review of--
(A) the facts necessary to describe the establishment, implementation, product, and use of the product of the Program;
(B) the procedures of, and access to, the legal reviews of the Program;
(C) communications with, and participation of, individuals and entities in the private sector related to the Program; and
(D) interaction with the Foreign Intelligence Surveillance Court and transition to court orders related to the Program.
(2) Cooperation.--Each Inspector General required to conduct a review under paragraph (1) shall utilize, to the extent practicable and with due regard to the protection of the national security of the United States, and not unnecessarily duplicate or delay, such reviews or audits related to the Program that have been completed or are being undertaken by any such Inspector General or by any other office of the Executive Branch.
(c) Report.--
(1) In general.--Not later than 1 year after the date of the enactment of this Act, the Inspectors General required to conduct a review under subsection (b) shall submit to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives, to the extent practicable and with due regard to the protection of intelligence sources and methods, a comprehensive report of such reviews that includes any recommendations of any such Inspector General within the oversight authority and responsibility of any such Inspector General.
(2) Form.--The report submitted under paragraph (1) shall be submitted in classified form.
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SA 3959. Mr. WHITEHOUSE submitted an amendment intended to be proposed to amendment SA 3903 submitted by Mr. Kyl and intended to be proposed to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes; which was ordered to lie on the table; as follows:
On page 1, line 2, strike ``Exception'' and all that follows through line 7 and insert the following:
``Application of paragraph (2).--Paragraph (2) shall apply to an acquisition by an electronic, mechanical, or other surveillance device outside the United States only if the targeted United States person has a reasonable expectation of privacy and a warrant would be required if the acquisition were conducted inside the United States for law enforcement purposes.''.
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