THE TERRORIST SURVEILLANCE ACT OF 2006

By Senator Mike DeWine

I. Authorize Monitoring of International Communications by Terrorists

Ø The Terrorist Surveillance Act will authorize monitoring of all international communications where there is probable cause to believe that one party to the communication is a member of, affiliated with, or working in support of an international terrorist group or organization, in order to obtain information regarding a threat or potential threat to the United States, its citizens or its interests. The Administration will provide an initial list of such groups to Congress and modify the list, with notice to Congress, as necessary. There will be a 5-year sunset on this authority.

Ø If, however, during the course of any surveillance, the Administration develops sufficient information regarding a subject of surveillance to determine that the surveillance is appropriately conducted under the FISA statute, then the Administration is required, within the shortest practicable time period, but in any event within 7 days, to file for a warrant under the normal FISA process and stop the warrantless surveillance.

Ø These provisions recognize the President’s need to conduct swift and effective surveillance of the international communications of those terrorists who threaten the United States, while maintaining the use of the current FISA court system whenever possible.

II. Regular and Ongoing Congressional Oversight

Ø The Act will create separate Terrorist Surveillance Subcommittees under each of the House and Senate Intelligence Committees. These subcommittees will have 5 members each and exist for the specific and exclusive purpose of providing continual, ongoing oversight over the Terrorist Surveillance Program. On a continuing basis, but at least twice per year, the Administration will provide these subcommittees with written reports concerning the management and operational details of the Terrorist Surveillance Program, including details regarding any surveillance conducted within the scope of the Act, as well as specific information on how the program is being applied in individual cases. These subcommittees will hire staff with technical and subject matter expertise to work exclusively on oversight of the Terrorist Surveillance Program.

Ø These provisions recognize the importance of regular, ongoing oversight by Congress. By creating subcommittees exclusively designed to monitor and oversee terrorist surveillance, the Act ensures that any surveillance under the Act is necessary and effective in fighting terrorism, while still being protective of the civil liberties of American citizens.

III. Reauthorization and Minimization

Ø The Act will require that any surveillance program conducted under this Act have minimization procedures in place to ensure that any surveillance is performed in the least intrusive manner possible. Additionally, the Act will mandate that the President examine the need for the surveillance program every 45 days and reauthorize it, and provide written reports to the Terrorist Surveillance Subcommittees when he does so. Within 30 days of passage of the Act, the Department of Justice must have minimization and reauthorization procedures in place. Those procedures must be reported, in a classified form, to the Terrorist Surveillance Subcommittees.

Ø In addition to regular, ongoing congressional oversight, these provisions of the Act will require that the Administration have procedures in place to ensure that any surveillance under the Act is necessary, effective, and protective of the civil liberties of American citizens.

IV. Enhanced Penalties for Unauthorized Disclosure

Ø The Act will make unauthorized disclosure of information about any terrorist surveillance a felony, subject to up to 15 years in prison and a fine of up to a $1 million; it will also provide that any such disclosure will preclude service on the Intelligence Committees.

Ø To prevent disclosure that could damage the government’s ability to prevent terrorist attacks, the Act enhances penalties for the disclosure of information about any terrorist surveillance program. These new penalties are in addition to those provided under existing law.