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Improving Foreign Intelligence Surveillance to Defend Our Nation and Our Constitution Act

On August 3, 2007, the House failed to pass H.R. 3356, Improving Foreign Intelligence Surveillance to Defend Our Nation and Our Constitution Act.  This bill amends the Foreign Intelligence Surveillance Act to address an intelligence gap that has been identified by Director of National Intelligence (DNI) Mike McConnell.

Following are key provisions of the bill:

Foreign-to-Foreign Communications Passing Through the United States.  The bill clarifies that no court order is required for foreign-to-foreign communications that pass through the United States.  This clarification is needed because some communications between foreign persons located overseas pass through routing stations here in the United States.

Surveillance of Individuals in the United States.  The bill reiterates that individual warrants, based on probable cause, are required when surveillance is directed at individuals in the United States.

Submitting Procedures for International Surveillance to FISA Court for Approval.  The bill requires the Attorney General to submit procedures for international surveillance to the Foreign Intelligence Surveillance Court for approval.  It authorizes the FISA Court to issue a “basket warrant” for individuals or foreign powers (including Al Qaeda) outside the United States based on a review of those procedures.  It does not require the FISA Court to make individual determinations about foreign surveillance.

Initial 15-Day Emergency Period.  The bill provides for an initial 15-day emergency period so that international surveillance can begin while a “basket warrant” is submitted to the FISA Court.  It allows for up to two 15-day extensions while the Court rules.  It allows the Court to issue orders compelling cooperation by carriers during the emergency period.

Audits by Justice Department's Inspector General.  The bill requires the Inspector General in the Department of Justice to conduct an audit every 60 days of U.S. person communications that are intercepted under the “basket warrant” - and requires that the audit be provided to the FISA Court and the Congress.

Sunsetting in 120 Days.  The bill sunsets in 120 days - giving the Congress more time in which to write a permanent statute making needed changes to the Foreign Intelligence Surveillance Act.