Intelligence Authorization Act for Fiscal Year 2001/Title VI

TITLE VI—COUNTERINTELLIGENCE MATTERS

SEC. 601. SHORT TITLE.

This title may be cited as the ``Counterintelligence Reform Act of 2000´´.

SEC. 602. ORDERS FOR ELECTRONIC SURVEILLANCE UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

(a) Requirements Regarding Certain Applications.—

Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804) is amended by adding at the end the following new subsection:

``(e)(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, or the Director of Central Intelligence, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in section 101(b)(2).

``(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.

``(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.

``(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.

``(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.

``(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.´´.

(b) Probable Cause.—

Section 105 of that Act (50 U.S.C. 1805) is amended—

(1) by redesignating subsections (b), (c), (d), (e), (f),and (g) as subsections (c), (d), (e), (f), (g), and (h), respectively;

(2) by inserting after subsection (a) the following new subsection (b):

``(b) In determining whether or not probable cause exists for purposes of an order under subsection (a)(3), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.´´; and

(3) in subsection (d), as redesignated by paragraph (1), by striking ``subsection (b)(1)´´ and inserting ``subsection(c)(1)´´.

SEC. 603. ORDERS FOR PHYSICAL SEARCHES UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.

(a) Requirements Regarding Certain Applications.—

Section 303 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1823) is amended by adding at the end the following new subsection:

``(d)(1)(A) Upon written request of the Director of the Federal Bureau of Investigation, the Secretary of Defense, the Secretary of State, or the Director of Central Intelligence, the Attorney General shall personally review under subsection (a) an application under that subsection for a target described in section 101(b)(2).

``(B) Except when disabled or otherwise unavailable to make a request referred to in subparagraph (A), an official referred to in that subparagraph may not delegate the authority to make a request referred to in that subparagraph.

``(C) Each official referred to in subparagraph (A) with authority to make a request under that subparagraph shall take appropriate actions in advance to ensure that delegation of such authority is clearly established in the event such official is disabled or otherwise unavailable to make such request.

``(2)(A) If as a result of a request under paragraph (1) the Attorney General determines not to approve an application under the second sentence of subsection (a) for purposes of making the application under this section, the Attorney General shall provide written notice of the determination to the official making the request for the review of the application under that paragraph. Except when disabled or otherwise unavailable to make a determination under the preceding sentence, the Attorney General may not delegate the responsibility to make a determination under that sentence. The Attorney General shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event the Attorney General is disabled or otherwise unavailable to make such determination.

``(B) Notice with respect to an application under subparagraph (A) shall set forth the modifications, if any, of the application that are necessary in order for the Attorney General to approve the application under the second sentence of subsection (a) for purposes of making the application under this section.

``(C) Upon review of any modifications of an application set forth under subparagraph (B), the official notified of the modifications under this paragraph shall modify the application if such official determines that such modification is warranted. Such official shall supervise the making of any modification under this subparagraph. Except when disabled or otherwise unavailable to supervise the making of any modification under the preceding sentence, such official may not delegate the responsibility to supervise the making of any modification under that preceding sentence. Each such official shall take appropriate actions in advance to ensure that delegation of such responsibility is clearly established in the event such official is disabled or otherwise unavailable to supervise the making of such modification.´´.

(b) Probable Cause.—

Section 304 of that Act (50 U.S.C. 1824) is amended—

(1) by redesignating subsections (b), (c), (d), and (e) as subsections (c), (d), (e), and (f), respectively; and

(2) by inserting after subsection (a) the following new subsection (b):

``(b) In determining whether or not probable cause exists for purposes of an order under subsection (a)(3), a judge may consider past activities of the target, as well as facts and circumstances relating to current or future activities of the target.´´.

SEC. 604. DISCLOSURE OF INFORMATION ACQUIRED UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 FOR LAW ENFORCEMENT PURPOSES.

(a) Inclusion of Information on Disclosure in Semiannual Oversight Report.—

Section 108(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)) is amended—

(1) by inserting ``(1)´´ after ``(a)´´; and

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

``(2) Each report under the first sentence of paragraph (1) shall include a description of—

``(A) each criminal case in which information acquired under this Act has been passed for law enforcement purposes during the period covered by such report; and

``(B) each criminal case in which information acquired under this Act has been authorized for use at trial during such reporting period.´´.

(b) Report on Mechanisms for Determinations of Disclosure of Information for Law Enforcement Purposes.—

(1) The Attorney General shall submit to the appropriate committees of Congress a report on the authorities and procedures utilized by the Department of Justice for determining whether or not to disclose information acquired under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) for law enforcement purposes.

(2) In this subsection, the term ``appropriate committees of Congress´´ means the following:

(A) The Select Committee on Intelligence and the Committee on the Judiciary of the Senate.

(B) The Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives.

SEC. 605. COORDINATION OF COUNTERINTELLIGENCE WITH THE FEDERAL BUREAU OF INVESTIGATION.

(a) Treatment of Certain Subjects of Investigation.—

Subsection (c) of section 811 of the Intelligence Authorization Act for Fiscal Year 1995 (50 U.S.C. 402a) is amended—

(1) in paragraphs (1) and (2), by striking ``paragraph (3)´´and inserting ``paragraph (5)´´;

(2) by redesignating paragraphs (3), (4), (5), and (6) as paragraphs (5), (6), (7), and (8), respectively;

(3) by inserting after paragraph (2) the following new paragraph (3):

``(3)(A) The Director of the Federal Bureau of Investigation shall submit to the head of the department or agency concerned a written assessment of the potential impact of the actions of the department or agency on a counterintelligence investigation.

``(B) The head of the department or agency concerned shall—

``(i) use an assessment under subparagraph (A) as an aid in determining whether, and under what circumstances, the subject of an investigation under paragraph (1) should be left in place for investigative purposes; and

``(ii) notify in writing the Director of the Federal Bureau of Investigation of such determination.

``(C) The Director of the Federal Bureau of Investigation and the head of the department or agency concerned shall continue to consult, as appropriate, to review the status of an investigation covered by this paragraph, and to reassess, as appropriate, a determination of the head of the department or agency concerned to leave a subject in place for investigative purposes.´´; and

(4) in paragraph (5), as so redesignated, by striking ``paragraph (1) or (2)´´ and inserting ``paragraph (1), (2), or(3)´´.

(b) Timely Provision of Information and Consultation on Espionage Investigations.—

Paragraph (2) of that subsection is further amended—

(1) by inserting ``in a timely manner´´ after ``through appropriate channels´´; and

(2) by inserting ``in a timely manner´´ after ``are consulted´´.

(c) Interference With Full Field Espionage Investigations.—

That subsection is further amended by inserting after paragraph (3), as amended by subsection (a) of this section, the following new paragraph (4):

``(4)(A) The Federal Bureau of Investigation shall notify appropriate officials within the executive branch, including the head of the department or agency concerned, of the commencement of a full field espionage investigation with respect to an employee within the executive branch.

``(B) A department or agency may not conduct a polygraph examination, interrogate, or otherwise take any action that is likely to alert an employee covered by a notice under subparagraph (A) of an investigation described in that subparagraph without prior coordination and consultation with the Federal Bureau of Investigation.´´.

SEC. 606. ENHANCING PROTECTION OF NATIONAL SECURITY AT THE DEPARTMENT OF JUSTICE.

(a) Authorization for Increased Resources To Fulfill National Security Mission of the Department of Justice.—

There are authorized to be appropriated to the Department of Justice for the activities of the Office of Intelligence Policy and Review to help meet the increased personnel demands to combat terrorism, process applications to the Foreign Intelligence Surveillance Court, participate effectively in counter-espionage investigations, provide policy analysis on national security issues, and enhance secure computer and telecommunications facilities—

(1) $7,000,000 for fiscal year 2001;

(2) $7,500,000 for fiscal year 2002; and

(3) $8,000,000 for fiscal year 2003.

(b) Availability of Funds.—

(1) No funds authorized to be appropriated by subsection (a) for the Office of Intelligence Policy and Review for fiscal years 2002 and 2003 may be obligated or expended until the date on which the Attorney General submits the report required by paragraph (2) for the year involved.

(2)(A) The Attorney General shall submit to the committees of Congress specified in subparagraph (B) an annual report on the manner in which the funds authorized to be appropriated by subsection (a) for the Office of Intelligence Policy and Review will be used by that Office—

(i) to improve and strengthen its oversight of Federal Bureau of Investigation field offices in the implementation of orders under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); and

(ii) to streamline and increase the efficiency of the application process under that Act.

(B) The committees of Congress referred to in this subparagraph are the following:

(i) The Select Committee on Intelligence and the Committee on the Judiciary of the Senate.

(ii) The Permanent Select Committee on Intelligence and the Committee on the Judiciary of the House of Representatives.

(3) In addition to the report required by paragraph (2), the Attorney General shall also submit to the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives a report that addresses the issues identified in the semiannual report of the Attorney General to such committees under section 108(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1808(a)) that was submitted in April 2000, including any corrective actions with regard to such issues. The report under this paragraph shall be submitted in classified form.

(4) Funds made available pursuant to subsection (a), in any fiscal year, shall remain available until expended.

(c) Report on Coordinating National Security and Intelligence Functions Within the Department of Justice.—

The Attorney General shall report to the committees of Congress specified in subsection (b)(2)(B) within 120 days on actions that have been or will be taken by the Department to—

(1) promote quick and efficient responses to national security issues;

(2) centralize a point-of-contact within the Department on national security matters for external entities and agencies; and

(3) coordinate the dissemination of intelligence information within the appropriate components of the Department and the formulation of policy on national security issues.

SEC. 607. COORDINATION REQUIREMENTS RELATING TO THE PROSECUTION OF CASES INVOLVING CLASSIFIED INFORMATION.

The Classified Information Procedures Act (18 U.S.C. App.) is amended by inserting after section 9 the following new section:

``coordination requirements relating to the prosecution of cases involving classified information

``Sec. 9A. (a) Briefings Required.—The Assistant Attorney General for the Criminal Division and the appropriate United States attorney, or the designees of such officials, shall provide briefings to the senior agency official, or the designee of such official, with respect to any case involving classified information that originated in the agency of such senior agency official.

``(b) Timing of Briefings.—Briefings under subsection (a) with respect to a case shall occur—

``(1) as soon as practicable after the Department of Justice and the United States attorney concerned determine that a prosecution or potential prosecution could result; and

``(2) at such other times thereafter as are necessary to keep the senior agency official concerned fully and currently informed of the status of the prosecution.

``(c) Senior Agency Official Defined.—In this section, the term `senior agency official' has the meaning given that term in section 1.1 of Executive Order No. 12958.´´.

SEC. 608. SEVERABILITY.

If any provision of this title (including an amendment made by this title), or the application thereof, to any person or circumstance, is held invalid, the remainder of this title (including the amendments made by this title), and the application thereof, to other persons or circumstances shall not be affected thereby.