Congressional Record: June 20, 2006 (House)]
[Page H4275-H4290]
DEPARTMENT OF DEFENSE APPROPRIATIONS ACT, 2007
Amendment Offered by Mr. Schiff
Mr. SCHIFF. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Schiff:
At the end of the bill (before the Short Title), insert the
following:
TITLE X--ADDITIONAL GENERAL PROVISIONS
Sec. 10001. (a) None of the funds made available in this
Act may be used to engage in electronic surveillance in the
United States except as authorized under--
(1) the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.); or
(2) chapter 119 or chapter 121 of title 18, United States
Code.
(b) For purposes of this section, the terms ``electronic
surveillance'' and ``United States'' have the meanings given
those
[[Page H4276]]
terms in section 101 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801).
Mr. SCHIFF. Mr. Chairman, I would like to commend Chairman Young and
Ranking Member Murtha for forging a strong bill to fund our Defense
Department and DOD entities, and I applaud them for their hard work and
dedication. As we consider this important bill today, I appreciate the
opportunity to address a crucial issue.
At the outset, I want to thank my colleague Mr. Inslee for all of his
leadership on this issue, which has been tremendous. We have been
working side by side on this amendment today. I would also like to
thank Mr. Flake that I have introduced legislation along with for his
tremendous leadership. This amendment is, in fact, based on legislation
that I have offered with Mr. Flake. I also want to thank Mr. Van Hollen
for all of his leadership.
The bill that I introduced with Representative Flake several months
ago was a bipartisan bill of five Democratic Members and five
Republican Members, and addresses the NSA surveillance program that
almost every Member of this body learned about in the morning
newspaper.
This amendment recognizes two important principles: First, that the
government must have all of the tools necessary and all of the
authority required to pursue al Qaeda and other terrorists who would
seek to harm our country. And second, this amendment recognizes that we
are a Nation of laws.
While the President possesses the inherent authority to engage in
electronic surveillance of the enemy outside the country, Congress
possesses the authority to regulate such surveillance within the United
States, and, in fact, Congress has spoken in this area through Title
III and through the Foreign Intelligence Surveillance Act.
When Congress passed these statutes, it intended that they provide
the sole authority for surveillance on American soil. Our amendment
simply reinforces existing law that the government must obtain a court
order when U.S. persons are targeted or surveillance occurs in the
United States of America.
Recently when the Attorney General testified in the Judiciary
Committee, I asked about the limiting principle of the NSA program; was
it restricted only to international calls; what if the administration
decided tomorrow it had the inherent authority to tap purely domestic
calls between two Americans, did it feel it could do so without court
order; and the Attorney General said that he would not rule it out. He
would not rule out having the pure authority without going to court to
tap the calls between two Americans on American soil.
So what is the limiting principle if this program can change from day
to day without the input of Congress? The only limiting principle is
the good faith of the executive, which, when the executive shows it is
infallible, might be a sufficient limiting principle, but the executive
is no more infallible than we are here in Congress, and so we have a
role to play.
In enacting FISA, Congress specifically sought to balance our
national security interests with legitimate civil liberty concerns. In
so doing, Congress expressly permitted surveillance without court order
for 15 days after the declaration of a war.
Additionally, Congress provided the authority to engage in electronic
surveillance for up to 72 hours without court order.
Furthermore, after the September 11 attacks, the administration came
to Congress and asked us to modify FISA to respond to the new
challenges in the war on terror, and Congress responded by making those
changes.
Electronic surveillance of al Qaeda operatives and others seeking to
harm our country must continue; it simply can and should comply with
the law.
We stand ready to work with the administration if further statutory
revisions to FISA or other authorities are required to meet the new
challenges in the war on terrorism. Until then, we must restore the
rule of law. I urge the House to do so today.
I know my colleagues Mr. Sherman, Mr. Inslee, and Mr. Van Hollen will
want to strike the last word to speak on this as well.
Mr. SAXTON. Mr. Chairman, I rise in opposition to the amendment.
Mr. Chairman, Chairman Hunter, the chairman of the Armed Services
Committee is not here today due to a important personal commitment in
his district, and he asked me to state his opposition to this
amendment.
Mr. Chairman, I think it goes without saying that this is an
extremely important provision, and this amendment would do, in my
opinion and in Chairman Hunter's opinion, great damage to the ability
of our country to provide national security for the American people.
That is why the administration also strongly opposes the Inslee-
Schiff amendment. It is a direct effort to cut off the President's
ability to engage in surveillance pursuant to his constitutional
authority, and the authorization to use military force as passed by the
Congress.
The program has been briefed to all members of the House and Senate
Intelligence Committees. They are fully briefed to all aspects of the
terrorist surveillance program and are conducting oversight.
I would just point out NSA Director General Hayden said on January
23, 2006, at the National Press Club, ``The TSP allows interception of
the international communications of people with known links to al Qaeda
and related terrorist organizations. There are no communications more
important to the safety of this country than those affiliated with al
Qaeda with one end in the United States. The purpose here is to detect
and prevent future attacks.''
In underscoring the importance of this, on January 25, 2 days later,
the President of the United States said, ``The 9/11 Commission made
clear in this era of new dangers, we must be able to connect the dots
before the terrorists strike so we can stop new attacks.'' And the NSA
program, he said, is doing just that.
Those of us on the Armed Services Committee and other Members of
Congress in various other capacities work night and day trying to
provide a high level of national security for our country. This
amendment would do damage to that effort. It would make that effort at
least much more difficult.
To the credit of the CIA and to the credit of the administration and
our government generally, we have been able to get through the years
since September 11, 2001, without additional attacks.
The activities are reviewed for this program every 45 days. We are
making every attempt to make sure that this program is carried out
correctly and safely and doesn't infringe on the rights of the American
people. The NSA's activities under this authorization are thoroughly
reviewed by the Justice Department and NSA's top legal officials,
including NSA's general counsel and inspector general.
Mr. Chairman, I strongly oppose this amendment.
Mr. MURTHA. Mr. Chairman, I rise in opposition to this amendment.
The problem we have here is those of us who have been briefed on the
program, even though admittedly we were not briefed until it became
public, can't talk about the program. I was briefed for an hour and 45
minutes, and I feel comfortable that there are adequate safeguards. But
we can't talk about the safeguards.
I asked NSA, what can we say about the program and not violate the
security? And they said, well, you have to look at what the President
said. Well, I looked at what the President said, and he didn't say very
much. This is a real problem we are getting into, and the more we talk
about it, the more difficult it makes it.
Now you are actually authorizing this program. If you vote for this,
you authorize this program. You say you have safeguards. That is what
you are going to have. If this passes, this authorizes this program. At
one point we couldn't even say that this program existed. So I think
this is a very difficult time for those of us who have been briefed
about it.
{time} 1615
And I know there are a lot of people in the executive branch that
know about it. But the way I read this amendment, you say follow the
proper procedure and you agree with the amendment. You agree with the
procedures. I think that there is some real benefit if they do it
right. But if this passes, I think you ought to know this is
authorizing the program. And if it
[[Page H4277]]
fails, you are saying, in fact, let them go ahead and not pass. So we
are in a catch-22 position here, Mr. Chairman. And we can't talk about
it at all. And I think we have to be careful that more and more people
don't talk about it so that more people don't know the value of the
program. We have got a heck of a problem here. And I recommend we vote
against it. But if we vote against it, then we actually are saying,
well, you can go ahead with the program as it is. And yet I believe
there are enough safeguards. But if we pass it, we actually are
authorizing the program.
I don't even know if we can work it out, Mr. Chairman, because there
are so few people that really know about the program.
Mr. SCHIFF. Will the gentleman yield?
Mr. MURTHA. I will be glad to yield.
Mr. SCHIFF. I thank the gentleman for yielding. The amendment says
that there is a prohibition on using funds to fund this program unless
it meets the requirements of FISA. Any part of the program that does
meet the requirements of FISA, meet the existing law passed by the
Congress, could continue to be funded. Those parts that don't meet the
requirements of FISA, the administration will have to go back.
Mr. MURTHA. Let me take back the time. I agree with that. I agree.
And I think there are sufficient safeguards in the program already. We
are in a bad situation here, Mr. Chairman. I don't know that I can say
any more.
Mr. YOUNG of Florida. Mr. Chairman, I rise in opposition to the
amendment. As Mr. Murtha has suggested, there is a lot that can't be
said about this amendment and about this program. But what I would like
to say is, let's don't tie our hands behind our back when we are
fighting a vicious, cruel enemy.
Intelligence is extremely important in the war against terrorism.
First of all, you don't have, in this particular war, you don't have an
army against an army. You don't have a country against a country. You
have terrorists attacking innocent people here in the United States on
September 11, and leading up to September 11, and anywhere else in the
world that they decide that they are going to attack.
One of the best defenses against these attacks is the ability to know
where they might be or when they might strike or what the target might
be. Don't deny the people on the front lines of this intelligence war
and information war and the hot war, don't deny them every tool that
they can possibly have.
As Mr. Murtha said, for those that have been briefed on this program
on a regular basis, I am not aware of anyone who is concerned that the
rights of Americans to their privacy have been violated. I certainly do
not believe that the rights of Americans have been violated in this
program. And so I think it is crucial to oppose this amendment; this is
far beyond politics. It goes a lot deeper. This goes to the safety and
the security of American people wherever they might be. And it is
unfortunate that we can't reveal everything that is done, how it is
done, where it is done, when it is done; but believe me, it is
effective and the privacy of the American people have been protected.
Mr. SCHIFF. Will the gentleman yield?
Mr. YOUNG of Florida. Yes, of course I would yield.
Mr. SCHIFF. Mr. Chairman, I appreciate your thoughts and I appreciate
your yielding. And we are up against a vicious enemy, and we ought to
have every power of intelligence and every tool in the tool box and I
completely agree with that. I think we can do that within the laws that
the Congress has passed. And the gravamen of my concern is something
that took place in the Senate, when one of our GOP colleagues asked the
administration, during the debate over the PATRIOT reauthorization,
which I supported, do we need to change FISA. We were making modest
changes to FISA, and the Republican Senator said, Do we need to do
something larger? And the administration response was no, that FISA is
operating just fine as it is.
Now, if there are changes that need to be made, there is a 72-hour
after-the-fact authorization. If that window is too short, it can be
lengthened. If there are other problems, they be changed. And all that
can be changed without disclosing to the public the nature of the
program itself.
I haven't been briefed on it. I am not one of the lucky few, or maybe
I am lucky. But it concerns me when the administration says we don't
need to change existing law, when I think we can retain all of these
tools, but the Congress can play its role in making sure that these
programs are authorized by law, that they are not being conducted
extralegally.
Mr. YOUNG of Florida. Well, let me reclaim my time and suggest that
if you want to rewrite FISA, you don't do it on the floor on an
appropriations bill. You introduce a bill, or you go to the proper
committee of proper jurisdiction. This is not something you do on the
floor. This is serious. It is not something you do on the floor without
any real hearings or consideration. If you want to change FISA, let the
authorizing committee change it. They are the ones that have the
jurisdiction.
Mr. DICKS. Will the gentleman yield?
Mr. YOUNG of Florida. I will.
Mr. DICKS. I am also one of those who have not been briefed on this
particular program. But I would like to ask the gentleman, is the
gentleman suggesting that the administration is not complying with
FISA?
Mr. YOUNG of Florida. I am not.
Mr. DICKS. Well, you know, that would certainly clear it up without
getting into any classified information if somebody here, the chairman
of the Intelligence Committee or the chairman of the Full Committee or
someone can say, yes, the administration is complying with FISA, and
they have taken this program to the FISA court for clearance. That is
what people who support this amendment are concerned about, that
Congress enacted legislation here saying that if you want to go out and
gather this kind of information, you have to first go to the FISA court
to get approval and to show cause. I think that is what this really all
gets down to.
The CHAIRMAN. The time of the gentleman from Florida (Mr. Young) has
expired.
(On request of Mr. Dicks, and by unanimous consent, Mr. Young of
Florida was allowed to proceed for 2 additional minutes.)
Mr. DICKS. So that is the question we have here, Mr. Chairman.
Mr. YOUNG of Florida. I will continue to yield in just a minute. On
the legal aspects of this, I am going to Mr. Lungren. I think he is
prepared, and he will probably get his own time, because I am limited
to 2 minutes.
But in the minute I have left, I will yield to Mr. LaHood.
Mr. LaHOOD. Mr. Chairman, let me just say I am the longest-serving
member of the Intelligence Committee. I am in my eighth year. I am the
vice chairman of the committee.
If it were disclosed, the answers that you want, it would be a
violation of those who serve on the committee and those who have been
briefed. They can't disclose that information. They will be thrown off
the committee.
Mr. DICKS. I was on the committee for 8 years and served as the
ranking member.
Mr. LaHOOD. I know you were. But this is highly classified
information.
The CHAIRMAN. The gentleman from Florida has the time.
Mr. YOUNG of Florida. Mr. Chairman, I have yielded to the gentleman
from Illinois.
Mr. LaHOOD. This is highly classified information. What you all need
to know is, the people that you have put your trust in, that the
leadership have put their trust in, those that serve on the Defense
Appropriations Subcommittee, those that serve on the Intelligence
Committee have been briefed. Now you have to trust them that they know
what is going on here.
All 435 members can't be briefed. You know why they can't be briefed,
because we all love to talk and it would get out.
So what I am saying to you, the gentleman from California, the author
of the amendment, you need to trust Mr. Murtha, you need to trust the
chairman of the committee. You need to trust Mr. Hoekstra. You need to
trust Jane Harman. These are people with the responsibility from your
leadership to serve on these committees. They know what is going on.
Mr. SCHIFF. Will the gentleman yield so I can respond to the
question?
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Mr. YOUNG of Florida. Mr. Chairman, I would suggest that the other
Members get their own time.
Mr. OBEY. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I do not want to get into the specific debate on this
amendment because I think there are equities on both sides. But I must
comment on a statement that was just made by the gentleman from
Illinois when he said that the reason this information can't be more
broadly shared is because people in Congress like to talk.
When Mr. Negroponte was before the Defense Appropriations
Subcommittee, and I have been an ex oficio member of that committee now
for over 12 years, but when I asked Mr. Negroponte, who, after all, is
the Director of Intelligence, when I asked him whether or not he could
cite a single instance in which any member of the Defense
Appropriations Committee had ever leaked any classified information, he
indicated he could not.
I also asked him, and I think this is an accurate recollection, I
also asked him if he could tell me how many times stories had appeared
in the Washington Times that his own agency thought had been leaked by
the executive branch of government.
And I asked him how many times he thought those leaks had been
provided by the Defense Appropriations Subcommittee. And his response
was, to the best of his knowledge, none.
And yet, I want to make clear, not all members of the Defense
Appropriations Subcommittee have been briefed. Now, I believe they
should have, because taxpayers dollars go through the appropriations
bill, and I think every member of that subcommittee needs to know what
the facts are on this case.
But the fact is, let's not get into the belief that it is the
Congress who routinely leaks. The White House routinely leaks more
classified information than the Congress even has. And anybody who
doesn't believe that doesn't know the score.
Mr. DANIEL E. LUNGREN of California. Will the gentleman yield?
Mr. OBEY. Yes, I would be happy to yield.
Mr. DANIEL E. LUNGREN of California. I can't quote Mr. Negroponte,
but I can quote Benjamin Franklin who, in 1776, explained the unanimous
decision of the Committee on Secret Correspondence for not telling
their colleagues in the Continental Congress about a covert operation.
And he said we find by fatal experience that Congress--
Mr. OBEY. I am going to take back my time. I was prepared to
entertain a serious question. That is not a serious question. I am not
interested in what happened 200 years ago. I am interested in what is
happening today and tomorrow.
Mr. TIAHRT. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, I am a member of the Defense Subcommittee on
Appropriations, as well as the House Select Committee on Intelligence.
I'd like to answer several questions that have come up with this
amendment.
When questioned about the purpose of this amendment, the author said
that he thought that the FISA law, or the Foreign Intelligence
Surveillance Act, should be rewritten. And there are some who believe
that legislation should be rewritten because it was originally penned
in 1978, and we have had significant changes in technology since that
time. Each of us carries a phone or BlackBerry, none of which existed
in that format back at the time. So there have been changes that have
gone on to our technology.
But to answer the question of the gentleman from Washington, the
administration does believe that they are within the current law, and
they do believe they have the authority to do what the gentleman has
alleged that they are doing. I don't think that there is anything that
really needs to be expressed much beyond this, except that the
gentleman from California (Mr. Schiff) said he believes that FISA
should be rewritten, if it doesn't meet the requirements of today's
environment, it should be rewritten. This amendment doesn't do that.
All this amendment does is strike funds for any electronic surveillance
program in the United States. And I think that would be an opportunity
for putting this country in peril.
One of the reasons we haven't had an attack since September 11, 2001,
is because we have used every means necessary to keep ahead of the
terrorists.
{time} 1630
The terrorists have used videos to advance their ideals. They have
used the Internet. They have used Web sites. They have tried to raise
money and reach out and touch Americans in a negative way again and
again and again. And this country has done everything possible to
prevent that from happening, and they have done it successfully, and
they have done it by using technology. And this amendment appears to be
tying hands on our ability to use technology, and I think that is
wrong.
Mr. SCHIFF. Mr. Chairman, will the gentleman yield?
Mr. TIAHRT. I yield to the gentleman from California.
Mr. SCHIFF. Mr. Chairman, I thank the gentleman for yielding.
Very quickly, the only thing the amendment provides is that
surveillance on American soil cannot be funded if it is not in
compliance with FISA. So if you are in compliance, if this program
complies with FISA, it could go on.
Just to address the chairman's point, and this is on the same point
you are making, too, which is we should not be debating this on the
House floor, that you should introduce the bill, and it should be heard
in committee. Mr. Chairman, we have introduced the bill. I along with
Mr. Flake, Mr. Inglis, Mr. Leach, and others have introduced the bill.
We have not been able to get a hearing in committee, and so the only
opportunity for us to raise this issue is on the House floor
Mr. TIAHRT. Reclaiming my time, I suggest you pursue your bill then,
because what you are doing here absolutely ties the hands of the
Federal Government from protecting us, and it does not rewrite FISA.
Now, let me also make this argument that FISA is a very narrow
portion of our law. There is a much broader scope that is applicable to
the situation necessary to protect this country. So focusing on one
portion of the law is tying our hands and trying to make the whole
world comply with this one narrow segment of law, in my view, it ties
our hand, and I don't think we should do it.
What I would suggest is that you withdraw this amendment, pursue your
bill, along with the Republican cosponsors, because this does tie our
hands. It gives us an opportunity to be less safe, and I suggest the
gentleman withdraw his amendment.
Mr. INSLEE. Mr. Chairman, I move to strike the last word.
Mr. Chairman, there are times where the Constitution needs to be
considered, and this is one of those times. Those of us who support
this amendment, I hope that both Republicans and Democrats will do so
because I think Republicans and Democrats ought to agree on one central
proposition, and that is the proposition that our government ought to
protect our citizens aggressively, assertively. We need electronic
surveillance to be doing it to the full extent of the law, and that
intelligence should be done in compliance with the American way.
There is an American way to do intelligence, and there is a Chinese
way to do intelligence. There is a Turkish way to do intelligence.
There is a Russian way to do intelligence. And there is an American way
to do intelligence. And the American way to do intelligence is to do a
very simple thing: Comply with the law that has been passed and signed
by Congresses and Presidents.
And all this amendment does is say a very simple proposition: You
don't spend taxpayers' money to do illegal acts by the Federal
Government. That is all it says. And when it passes, we will do
assertive, aggressive intelligence of these scoundrels by doing a very
simple thing: Get a warrant. And if you do not have time to get a
warrant, get it 72 hours after you do the intelligence, because the
FISA Court allows that to happen. That is the simple proposition here.
Now, why is that important? It is important because the people who
fought the Revolution realized that no American is perfect, and that
includes no American President. To the proposition that all men are
created equal, you can add the proposition that no
[[Page H4279]]
man is created perfectly. And that is why we demand some judicial
oversight on this.
And, by the way, the central argument I have heard about this is that
a few Congressmen have said it is okay, apparently. Well, calling a few
Congressmen is not enough under the law. Why? Because the law is very
specific. It says that each application for an order approving
electronic surveillance under this subchapter shall be made by a
Federal officer in writing, upon oath or affirmation, to a judge. To a
judge. And we are great Congressmen. I have eminent respect for all the
people who were briefed on this. But not a single one of them wears a
black robe, and not a single one of them was given authority by the
United States Constitution to make this decision. Calling Ray or Norm
or any of my great colleagues and saying, ``Does this sound okay to
you,'' is not enough in American democracy.
Now, we have had other occasions in our democracy where we have been
challenged by fear, and I do not want to see us succumb to that again.
And for those of us who think it shouldn't bother us, the President is
not going to bug us, other nations have lost their liberty because of
that attitude, because some Supreme Court Justice said loss of liberty
does not come like a curtain coming down like a thunderclap. It comes
the way the twilight comes, gradually, and you do not notice.
Do not wink at this potential violation. Say that we are going to do
intelligence the American way. For those people in Iraq and Afghanistan
who are risking their lives for democracy and the liberties we enjoy,
don't we have enough gumption to send a simple message to the executive
branch of the United States from the U.S. Congress, a very simple
message that we expect the law to be fulfilled, that our personal
protection to be fulfilled by getting a warrant the way the law
requires? That is all that we require.
Mr. DANIEL E. LUNGREN of California. Mr. Chairman, I move to strike
the requisite number of words.
Mr. Chairman, I rise in opposition to this amendment.
There has been a lot of talk about following the law. People seem to
ignore what Griffin Bell said at the time the Carter administration
brought this bill before the Congress to be passed into law. At that
time he very carefully said that enactment of FISA did not exclude the
authority the President has under the Constitution.
We have heard on this floor about illegal acts. I would remind my
colleagues that the supreme law of the land is the Constitution, and
the President has inherent authority under Article II of the
Constitution in this area. We may not like it, but the fact of the
matter is that is one of the reasons you have elections for a
President, to have the authority and the power that he has under the
Constitution. The vesting clause of Article II of the Constitution
which gives the President executive authority, coupled with his
authority as Commander in Chief of the Armed Forces, forms the basis
for the surveillance of al Qaeda members and those who are affiliated
with al Qaeda.
The President's actions are certainly consistent with the Founding
Fathers, as expressed in John Jay's observation in Federalist Paper No.
64: ``The President . . . will be able to manage the business of
intelligence in such manner as prudence may suggest.'' An examination
of historical records makes clear that the Founding Fathers intended
the President to have primary, if not exclusive, control over the
business of intelligence. We may not like it, but that is what the
Constitution establishes. We may have a FISA law, but that does not
restrict the President if, in fact, he has inherent authority under the
Constitution.
The argument that the President has somehow violated the law
misunderstands that the Constitution is the supreme law of the land.
Congress has no more authority to intrude on the executive authority of
the President than the President does on the enumerated authority of
the Congress. As James Wilson argued during the ratification debate in
his own home State of Pennsylvania: ``The President of the United
States can shield himself and refuse to carry into effect an act of
Congress that violates the Constitution.'' In the same context, John
Jay points out in Federalist 64 that ``it surely does not follow that
because they have given the power of making laws to the Legislature,
that therefore they should likewise give them power to do every other
act of sovereignty by which the citizens are to be bound and
affected.'' The United States Supreme Court summed it up well in Ex
parte Miligan: ``Neither can the President in war more than in peace
intrude upon the proper authority of Congress, nor Congress upon the
proper authority of the President. Both are servants of the people,
whose will is expressed in the fundamental law.''
It is interesting to note for those who have talked about historical
record that the First Congress, which created the Department of
Treasury and the Departments of War and Foreign Affairs, gave Congress
access to the records and papers of the Treasury Department, but not to
the Departments of Foreign Affairs and War. It is clear that the power
of the President vis-a-vis Congress was broader with respect to foreign
affairs than it was in the domestic realm of governance. We may not
like it, but that is what the Constitution says.
According to Madison, the ultimate check on Presidential power
possessed by the Congress rests with the ``first principle in free
government.''
According to John Marshall in Marbury v. Madison, the limits on such
Presidential authority must be found elsewhere in the Constitution
itself.
Look, we ought to look at what Justice White observed in his
concurring opinion in the Katz decision. These are the words of Justice
White: ``Wiretapping to protect the security of the Nation has been
authorized by successive Presidents.'' In other words, it did not start
with this administration. He said, ``The present administration would
apparently save national security cases from restrictions against
wiretapping.'' Again, Justice White's words: ``We should not require
the warrant procedure and the magistrate's judgment if the President of
the United States or his chief legal officer, the Attorney General, has
considered the requirements of national security and authorized
electronic surveillance as reasonable.''
As explained publicly by the President, he followed the prescription
of Justice White. He has personally had hands-on over this. He has had
his Attorney General with hands-on authority over this. But then in
addition, he did notify the Congress. He notified the leadership of the
House and the Senate. He notified the leadership of the House and the
Senate committees of jurisdiction. No, he did not notify all of us, but
he comported with the law and the interpretation of the Constitution
suggested by Justice White.
I would suggest if one looks up the definition of the word
``moderate'' in Webster's Dictionary, you would find the picture of
Justice White. He started the middle ground on all of this.
So I would suggest, as we look at this, we understand that we may
have a debate about how the President has done it, but to suggest that
what he has done is unlawful or illegal does not recognize either the
Constitution or the comments of the Founding Fathers in support of the
Constitution.
Mr. DICKS. Mr. Chairman, I move to strike the requisite number of
words.
Mr. Chairman, when President Carter signed the FISA into law, he said
in his signing statement: The bill requires for the first time a prior
judicial warrant for all electronic surveillance for foreign
intelligence or counterintelligence purposes in the United States in
which communications of U.S. persons might be intercepted. It clarifies
the executive's authority to gather foreign intelligence by electronic
surveillance in the United States. It will remove any doubt about the
legality of those surveillances which are conducted to protect our
country against espionage and international terrorism. It will assure
FBI field agents and others involved in intelligence collection that
their acts are authorized by statute, and, if a person's communications
are concerned, by a court order, and it will protect the privacy of the
American people.
In my reading of FISA, and I served for 8 years on the Intelligence
Committee, 4 years as the ranking member, I do not think there is an
exception here. I do not think the President of the United States has
inherent authority to violate FISA.
If you took Mr. Lungren's approach to this problem, he can comply
with
[[Page H4280]]
FISA when he wants to. He does not have to do it ever. That simply
cannot be the reason Congress enacted this statute.
I think President Carter had it right when he signed this into law.
There is one way and only one way to gather foreign surveillance
information domestically, and that is you go and get a warrant and go
to the FISA Court first. First. And maybe you have 72 hours to do that.
That is certainly understandable.
But in my mind, if you want to change FISA, change FISA. But I cannot
accept an interpretation that says the President can comply with FISA
when he wants to, and he does not have to comply with it when he does
not think it is in his best interest to do so. He is not a king. He is
a President.
Mr. INSLEE. Mr. Chairman, will the gentleman yield?
Mr. DICKS. I yield to the gentleman from Washington.
Mr. INSLEE. Mr. Chairman, I want people to understand the sweeping
scope of Mr. Lungren's argument. What he argues is that the President
of the United States, during a time of fear and war that we are now in,
has the unchecked, unfettered, unlimited authority to ignore not just
FISA, but any law passed by the Congress of the United States and
signed by any President. His argument here means that no law restricts
this President or any other President to do anything else. Not just
intelligence. Torture, false imprisonment; you go as far as you want.
Mr. DICKS. Mr. Chairman, reclaiming my time, I want to ask the author
of the amendment.
Both of you are the authors of this amendment.
There is no restriction on the utilization of money if the President
has complied with FISA; is that not correct?
Mr. SCHIFF. Mr. Chairman, will the gentleman yield?
Mr. DICKS. I yield to the gentleman from California.
Mr. SCHIFF. That is absolutely right. The only thing that the
amendment does is it says that when you are surveilling people on our
home soil here in the United States of America, it has to be authorized
by FISA. If it is not authorized by FISA, if it is outside of FISA, you
cannot use the funds in this bill.
{time} 1645
The gentleman from Illinois says, ``Trust us. There are some of us
that know the program, trust us. We can't disclose information about
the program here on the House floor.'' I am not asking anyone to
disclose information about the program on the House floor. The only
question raised by this amendment is are we funding programs that are
in contravention of existing law, FISA.
I think you are exactly right about my colleague from California's
argument, which is basically the President has the inherent authority
to do anything he wants when he wants, surveil who he wants when he
wants, how he wants, for whatever reason he wants.
In fact, this is why I made the point. When the Attorney General
testified in committee, he said he believed, as evidently my colleague
from California does, the President has the inherent authority to tap
calls between two Americans on American soil, that he wouldn't rule
that out.
Well, I am not satisfied by an argument that says, trust us. We are
from the government.
Mr. DICKS. Mr. Chairman, reclaiming my time, I think President Carter
had it right. He said all electronic surveillance for foreign
intelligence or counterintelligence purposes in the United States has
to come under the FISA Court. That makes sense. That is, I think, the
purpose of this amendment, is to make certain that the money is being
expended in compliance with FISA.
The gentleman is a cosponsor of this amendment. Is that your
understanding?
Mr. INSLEE. Mr. Chairman, if the gentleman will yield, that is
exactly right. The President can do all of the intelligence he needs to
do in a way that complies with FISA. That is what we want him to do.
That is what the Constitution requires.
Mr. FLAKE. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I thank the gentleman, the main sponsor of this
amendment, and I am pleased to be a cosponsor of it.
I would love for the President to have this authority, as he should
have it. I would love to give him this authority, but I think unless he
is going to go under FISA, he ought to come ask for it. I think that he
needs it, I think it is proper.
But when we are told, as we have been on the Judiciary Committee by
the Attorney General, that he feels that any domestic surveillance
could be okay, he wouldn't rule it out, what isn't allowed? Why does
the President need FISA at all if he can simply go around it? What
purpose does FISA serve? Why did we go through what we went through for
months and months with the initial PATRIOT Act and then for a year to
reauthorize it?
In the end, we had to ask ourselves, after hearing the testimony of
the Attorney General, why did we do this? Why are we so specific and so
careful about the powers that we give to the executive when they can
simply ignore it and go on their own? It simply begs the question if
you are not going to use FISA, why not just run amuck?
I submit that the acid test for Republicans on this has to be, would
we be comfortable if a Democrat were in the White House using this
authority? I have to say I wouldn't be. But nor am I comfortable with a
member of my own party having it.
There is a separation of powers argument here. We are a coequal
branch of government, and I think it is our constitutional obligation
to say if you are not going to use FISA, tell us why. Tell us what we
need to do to make it more applicable.
We have offered that numerous times in the Judiciary Committee, yet
we are told, no, you don't need to change it. Of course we don't need
to change it if they can simply go around it. So I think the
gentleman's amendment is perfectly proper.
Believe me, if this amendment passes, and the administration feels
compelled, they will come directly to Congress and ask for the
authority, but they will do it right, and I think the Congress will be
glad to give it to them. But there has to be bounds here.
We are the elected representatives. It struck me when one of the
Members in opposition to this amendment said a lot of people in the
executive branch know about this program. That ought to be disturbing
to a lot of us, that far more people in the executive branch know about
this program than the elected representatives of the people. Does that
not disturb anybody around here that many people over in the executive
know about it and we don't?
We are told in the National Security Act that the President is
supposed to inform the committees of jurisdiction. It doesn't say a few
members of those committees, the committees of jurisdiction.
I think we simply ought to follow this. This is a reasonable
amendment. I would urge those in my party and the other party to
support it.
Mr. VAN HOLLEN. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I am pleased to join with my colleagues in offering
this amendment.
I think we should all be able to agree on a couple things. This is an
extremely important issue. It should be beyond partisan politics. We
should use all our means to intercept communications from al Qaeda for
our national security. We should also abide by the rule of law.
The rule of law is not an a la carte thing. You don't get to pick and
choose which laws you like and which laws you don't like. We don't say
to the American people when we pass statutes in this Congress and they
are duly signed by the President in accordance with the Constitution,
pick the ones you like to comply with and ignore the ones we don't
like.
Well, this President and any President should not be held to any
different standard than the American people when it comes to abiding by
laws duly passed by this Congress and signed by the President in
accordance with the Constitution, and that is what this debate is all
about.
The amendment is very simple. It is so straightforward, I am just
going to read a portion of it right now. ``None of the funds made
available in this act may be used to engage in electronic surveillance
in the United States except as authorized under the Foreign
[[Page H4281]]
Intelligence Surveillance Act of 1978'' and other chapters cited here.
In other words, comply with the laws passed by this Congress and
signed by the President.
Now, we have heard from our colleagues on the Intelligence Committee
to trust us, this is a needed program. A lot of us haven't had the
benefit of that information. But I would say, many of us have not
disputed the need for the program.
Maybe we should have this program. We certainly want to intercept any
communications from al Qaeda. But it does concern me that the members
of the same Intelligence Committee cannot tell us whether or not the
program as it is currently configured is complying with FISA. That
certainly is not a classified thing, whether or not it is configured to
comply with FISA. The fact that the members of the Intelligence
Committee cannot tell us whether it is configured with FISA or not is
troubling.
Mr. DICKS. Mr. Chairman, will the gentleman yield?
Mr. VAN HOLLEN. I yield to the gentleman from Washington.
Mr. DICKS. Mr. Chairman, all of the articles in the Washington Post
that talked about this said that it wasn't, in some cases. None of us
get in trouble for disclosing that fact. Your amendment doesn't
restrict money if it does comply with it.
Mr. VAN HOLLEN. Mr. Chairman, reclaiming my time, absolutely. If it
complies with FISA, it is fine.
Now, what is troubling is the Attorney General was asked way back why
he didn't come to Congress to seek changes to the law to accommodate
this program, and he said he considered that possibility, but then he
didn't think Congress would pass it. Well, if that is your conclusion,
you don't get to just say, well, I am going to ignore the law and
circumvent it. You have to work with Congress.
What is really troubling is I think all of us here, if we heard the
same information that members of the Intelligence Committee say they
have access to, would also conclude it may be a necessary program. But
if it is, let's put it within the confines of the law. That is all this
amendment does.
Yes, it authorizes electronic surveillance. We want it to authorize
electronic surveillance. But we want to authorize electronic
surveillance within the confines of existing law, and if existing law
can't accommodate that program, let's come back here, let's pass a
statute and change it.
Those who say FISA hasn't been changed, it is outdated, the fact of
the matter is we have made eight changes to FISA since its enactment in
1978. We can make more changes to FISA right now to accommodate this
program.
But let's just make it clear: If you don't think you can get a law
passed by the Congress, you don't get to choose to ignore it. It is not
an a la carte system. Our Constitution is based on the rule of law. We
can protect the American people, we can intercept al Qaeda
communications, and we can do it in accordance with the rule of law.
I urge my colleagues to adopt this amendment.
Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the
requisite number of words.
Mr. Chairman, I congratulate the authors of this amendment. The
debate here and potentially the outcome confirm a very important point:
We do not suffer in this country from a problem of the Presidential
usurpation of power. We suffer from congressional dereliction of duty.
It is not a case of the President overreaching. It is a case of us
ducking and dodging and letting him do all the tough issues.
This amendment is a very simple one. Now, Members have said on the
other side, I heard the gentleman from Kansas say, why don't you bring
in a bill? Two reasons: First of all, if we brought in a bill, it would
never see the light of day. How can a majority party which has
specialized in strangling legislation at its birth complain when we
don't think that is a good way to debate important issues?
But there is another reason. This is one that can sustain a veto. The
Supreme Court has made it very clear: It will not referee disputes
between the executive and legislative branches. The only way you can
put some restraint on a President who is acting without restraint is by
an amendment that says there are limits on what he can do with the
money.
Now, we have heard selected quotations from John Jay. Poor old John
Jay hasn't been mentioned in years. I am glad his spirit has been
invoked. But nobody much cares about John Jay most of the time.
We have had some Supreme Court cases cited. Youngstown Sheet and Tube
against Sawyer, which restricted the President in a time of war, was
not mentioned.
Let's be very clear: History does not dictate the answer. This calls
on every Member of this House to say what kind of Constitution do you
want? Do you want one in which the President can have unchecked
executive power, not just in time of war, but any time?
We are in what the President now says is a war against terrorism that
is unlikely to have an end. So we are not talking about temporary
wartime powers. We are talking about what kind of Constitution do you
want?
We have a President who has asserted his right to do whatever he
thinks necessary to protect the country, including, remember, arresting
American citizens and having them incarcerated indefinitely with no
chance to present a case. The Supreme Court said, whoa, that goes a
little too far. But this is what the President has asserted with regard
to FISA.
One gentleman said, well, remember what Griffin Bell said. I will be
honest with you, I have found that as a general principle, ignoring
Griffin Bell is a good idea. I have always done that in important
cases. But what Griffin Bell said or didn't say doesn't tell us.
And this is the question, not what John Jay said or this one said,
because you can quote each other to death. What kind of Constitution do
you want? Do you want one where the President of the United States
without any check can do what he thinks best? Because, by the way, the
courts won't be involved here, because they can avoid a court decision
by never prosecuting based on this evidence.
So the only potential check here is if we say no. Yes, you can
wiretap, as long as you can get a warrant. And getting warrants under
FISA is not hard. But we do not like the principle of an unchecked
Presidential power.
I will yield to my friend from California if he will begin by
answering this question: Conservatives tell me they like to be textual
with regard to the Constitution. Would he cite for me, I thought maybe
the Constitution got changed while I wasn't looking, so I went and read
article II, it took about a minute and a half, it is a pretty small
article. I am glad to see the President can get paid. It is right there
in the Constitution.
But would he cite for me the text of the Constitution, article II,
which empowers the President to do this, even if Congress tells him not
to?
I will just add this. With regard to Youngstown Sheet and Tube, as I
recall the analysis, it was there are three situations. I will ask for
additional time, because I would like to have a colloquy. The President
acting alone, the President acting with Congress, and the President
acting in contradiction to what Congress has said.
The analysis has always been acting with Congress, the President is
at the peak of his powers. Acting alone, it is unclear. Acting in
contravention to what Congress has said, he is at his weakest. Here,
since we have FISA, this is in contravention to what Congress has told
him to do.
So I would now yield to the gentleman. Would he begin just by citing
the parts of the Constitution that are relevant, and then, obviously,
he is free to say what he wishes.
Mr. DANIEL E. LUNGREN of California. I thank the gentleman for
yielding. I was speaking of the vesting clause in the U.S. Constitution
that gives the President with the executive powers----
Mr. FRANK of Massachusetts. Please read it. I would ask the gentleman
literally to please read it, because I think it doesn't say what he
says it says. Please read it.
Mr. DANIEL E. LUNGREN of California. I don't have the exact words.
Mr. FRANK of Massachusetts. I would ask, would a page bring me the
Constitution while we are talking?
Mr. DANIEL E. LUNGREN of California. It is the vesting clause of the
Constitution, vesting in the President
[[Page H4282]]
the executive authority, coupled with his authority as Commander in
Chief.
Now, let me just say to the gentleman, so we can make it clear, I
have never argued that the President has this authority in all things,
as some have suggested, to kill people, to do this, to do that. I have
cited authority which suggested in the area of gathering foreign
intelligence, which is about what we are talking.
Secondly, I would just say that the gentleman is right that we do
have the power of the purse.
The CHAIRMAN. The time of the gentleman from Massachusetts (Mr.
Frank) has expired.
(By unanimous consent, Mr. Frank of Massachusetts was allowed to
proceed for 2 additional minutes.)
Mr. FRANK of Massachusetts. I yield to the gentleman from California.
{time} 1700
Mr. DANIEL E. LUNGREN of California. I don't argue at all that this
is an inappropriate amendment to be considered, because this is the
proper exercise of our authority to the power of the purse. What I have
suggested is the arguments that the President is acting illegally or
unlawfully are not appropriate, because he is acting under the
Constitution, in my judgment.
Mr. FRANK of Massachusetts. I take back my time. So the gentleman
then agrees with this point. There is nothing inappropriate about this
amendment. So while he believes the President is within his power to do
this, does the gentleman agree that if this amendment is adopted by a
majority, the President would be bound by it?
Mr. DANIEL E. LUNGREN of California. He would be bound by it with
respect to the expenditure of funds in this particular bill. I don't
think there is any question about that.
Mr. FRANK of Massachusetts. So that if he can find, I thank the
gentleman and I appreciate that. I take back my time. The gentleman
knows the rules. The gentleman knows the rules. He may not know the
Constitution, but he knows the rules. I take back my time just to say,
so we understand----
The CHAIRMAN. The time of the gentleman from Massachusetts (Mr.
Frank) has again expired.
(By unanimous consent, Mr. Frank was allowed to proceed for 1
additional minute.)
Mr. FRANK of Massachusetts. Let us have the common ground. The
question here, and I think I will accept this, we are not debating
constitutionality here; we are debating what public policy ought to be.
The gentleman from California agrees it is appropriate for us to
consider it and agrees that, if it passes, the President is bound by
it.
Now, I would yield to the gentleman. Are there other places the
President can then find this money? Is that what the gentleman is
saying? If the President were to be bound by this, would the gentleman
suggest the President could then do this anyway in some other fashion?
I would yield to him.
Mr. DANIEL E. LUNGREN of California. This doesn't cover all
expenditures of the President under all circumstances. This is limited
to the funds that are contained in this bill, as you know, because it
is an appropriation bill.
But could I mention one thing, because there has been some question
about this. The FISA court of review issued an opinion in 2002 which
stated: all the other courts that have decided the issue held that the
President did have inherent authority to conduct warrantless searches
to obtain foreign intelligence information.
Mr. FRANK of Massachusetts. We are beyond that. Look, I do not think
the Constitution, I will be honest with you, I think people decide and
then they pick the----
Mr. DANIEL E. LUNGREN of California. Can we talk about----
MR. FRANK of Massachusetts. I am taking back my time. Let us debate
the merits. Let us not hide behind----
The CHAIRMAN. The time of the gentleman from Massachusetts (Mr.
Frank) has again expired.
(By unanimous consent, Mr. Frank was allowed to proceed for 2
additional minutes.)
Mr. FRANK of Massachusetts. I just want to say, stop hiding behind
varying degrees of constitutional interpretation. By hiding behind
them, I mean this: I don't think that people sat and said, oh, geez
this is what John Jay told me and this is what I am bound by. I think
we are talking here about what we think public policy ought to be.
Should the President or should not the President have to get a warrant
through FISA? That is the text of this amendment. Let us debate the
public policy.
I yield first to the gentleman from Washington.
Mr. DICKS. I just want to say to the gentleman, I agree with that. I
also think that the American Bar Association looked at this. They came
to the conclusion that the President had to comply with the FISA law.
Mr. FRANK of Massachusetts. Let me just say this. Here is the
constitutional text that my friend from California invoked, and pretty
accurately. Good memory the gentleman has. Article II, section 1: The
executive power shall be vested in a President of the United States of
America, period.
Now, he says that gives him the power. This is circular. Why does the
President have the power? Because he has the executive power. But we
are precisely here defining for ourselves, as Americans today, what the
executive power is and has meant to be. All this says is that he has
the executive power. Does the executive power mean he can lock somebody
up without a trial as he has said it does? Does the executive power
mean he can ignore an act of Congress and wiretap when he wants to?
That is the question. Saying that the executive power is vested in him
simply is a way of putting the question. The question is, What is the
executive power?
I yield to the gentleman from California.
Mr. SCHIFF. I thank the gentleman for yielding. I just want to get to
one question that has I think not been answered to the opposition to
this amendment. And that is, the suggestion is by those who know the
program better than I do that parts of it don't meet the requirements
of FISA. And my question is, Why can't this program be authorized by
law? Why can't we change the law to authorize it?
Mr. FRANK of Massachusetts. I will answer the gentleman's question:
because the President and his supporters do not want to concede that
there is any limit on his power even if he could get this done through
FISA, and that is the----
The CHAIRMAN. The time of the gentleman from Massachusetts (Mr.
Frank) has again expired.
Mr. FRANK. I ask for an additional minute.
The CHAIRMAN. Is there objection to the request of the gentleman from
Massachusetts?
Mr. YOUNG of Florida. Reserving the right to object, and I will not
object, but we are talking in circles. We are not even talking about
some of the main issues that are before us. The sponsor of the
amendment just admitted that we are talking about an authorization.
This is an appropriations bill. This should be done at an authorization
committee where you all are.
Mr. FRANK of Massachusetts. I thank the gentleman.
Mr. YOUNG of Florida. Just a minute. It is under my reservation.
Let us bring this to a close. We can repeat our arguments so many
times. I withdraw my reservation.
The CHAIRMAN. The gentleman withdraws his reservation.
The gentleman from Massachusetts is recognized for 1 minute.
Mr. FRANK of Massachusetts. In my remaining minute, I understand, I
will say that my good friend from Pennsylvania I think is probably not
distressed that we are talking about something that is not the heart of
the bill. But the fact is, I will close by this, we are talking about
it here because this is the only enforceable way to put restraints on
the President. And I will tell you why I think it is important.
Chaplain Yee at Guantanamo, Burton Mayfield in Oregon, Wen Ho Lee under
the Clinton administration, there are, sadly, cases of entirely
innocent individuals who were prosecuted and gone after.
I don't think the President is ill intended here. And I think the law
enforcement people are the good guys; I just don't think they are the
perfect guys. So I want to give them power, but I want to subject that
to some check beforehand and some process afterwards. And that is what
we are
[[Page H4283]]
saying here. We are fully in favor of empowering law enforcement, but
we do not want them to be exclusive in the exercise of that power. And
asking that they go before a judge to justify it when they are going to
be wiretapping an American seems to us to be reasonable and to do no
harm to America.
And to repeat my answer to the gentleman from California: the
opponents of this amendment are the proponents of the view that the
President's power should be entirely unchecked, and that is dangerous.
Mr. HOEKSTRA. Mr. Chairman, I move to strike the last word.
I thank the Chair, and I appreciate the discussion and the debate
that we have had on this amendment. I join with the chairman of the
subcommittee and the ranking member of the subcommittee in opposing
this amendment.
It would jeopardize one of the most critical abilities to detect and
prevent terrorist attacks on the United States. In addition, it would
interfere with an ongoing course of oversight that has been conducted
on a bipartisan basis by the leadership in the authorizing committee
since the inception of this program.
It is the day after 9/11 and the President has asked NSA, other parts
of the intelligence community, the military: What is the threat? How do
we most effectively respond? And what is the threat to the Nation? And
he has asked the intel community and the military to come back with
various options as how best to protect the United States in that time
of uncertainty, and the executive branch and the various agencies come
back with a series of proposals as to exactly what they believe can be
done and should be done to keep America safe.
The President doesn't act unilaterally; the President acts in a
collaborative basis. It is not an overreaching of an Executive.
To my colleague from Arizona, if a President of the other party went
through the same processes that this President went through and
exercised these authorities would I support that President? My answer
would be different than my colleague from Arizona; the answer would be,
yes, because the process was very straightforward. Four times within
the first 8 months after 9/11, it was a collaborative process between
leaders of this House and the U.S. Senate who sat down with the
executive branch and reviewed this program in detail. Do you know what
they said? This is a program that is necessary in a time of
uncertainty. We support this program, and it needs to move forward.
We have had some discussions and disagreements as to the extent of
the number of people that should have been briefed on the authorizing
committee. We have worked through that process, and now every single
person who has the desire to be briefed on this program is briefed on
the program and have had the opportunity or will be given the
opportunity when they get new questions to have every single one of
their questions answered.
We have a way ahead on our authorizing committee. The ranking member
has introduced legislation that she thinks may address some of the
issues. But we know that FISA and electronic surveillance is a very,
very difficult issue because technology has changed significantly since
FISA was originally developed. And so we are going to move forward, and
I am thrilled that within the Intelligence Committee we are going to
continue a bipartisan way ahead. It doesn't mean we are going to agree,
but it does mean that we have laid out a process as to what the needs
are of the intelligence community to keep America safe, what the legal
framework is, and evaluate the changes in technology and the
environment so that we can do the necessary oversight and protect and
balance civil liberties with the needs of America's security.
Ms. HARMAN. Mr. Chairman, will the gentleman yield?
Mr. HOEKSTRA. I yield to the gentlewoman from California.
Ms. HARMAN. I appreciate it that you mentioned bipartisanship and
mentioned our committee. I had not been planning to speak during this
debate. I have great admiration for the bipartisan sponsors of this
amendment. I also agree with their point, which is that the total
program must comply fully with FISA. But my view is, as the chairman
has stated, that we should deal with this issue in the legislative
committee. And the reason we should deal with this issue in the
legislative committee is that it is, as everybody here fully
understands, very, very complicated. A number of us, 50 of us, are
supporting H.R. 5371, The Listen Act.
The CHAIRMAN. The time of the gentleman from Michigan (Mr. Hoekstra)
has expired.
(By unanimous consent, Mr. Hoekstra was allowed to proceed for 2
additional minutes.)
Ms. HARMAN. I would like to ask our chairman: Will you agree that
that bill and perhaps others will be the subject of the committee
oversight and the subject of a legislative hearing in our committee at
a reasonable future date?
Mr. HOEKSTRA. Reclaiming my time, absolutely. And as we have talked
about it, and I appreciate the patience of my colleague as we have
worked through the briefings of the entire committee and as we move
forward, the legislative hearing on H.R. 5371 and other legislative
initiatives that some of our colleagues are developing that address
both the FISA issues which may apply to the current program but also
which will be further reaching in terms of taking a look at different
technology and those type of things as that has evolved is something
that I think we can do on a bipartisan basis, and I am committed to
doing.
Ms. HARMAN. And if you would yield to me again, first, to note that
the American Bar Association and numerous civil liberties groups
support H.R. 5371. But my further question is, Do you agree that the
entire program should be covered by law? The President may have
inherent authority to do things, but eavesdropping on Americans in
America must be covered by the law that Congress passed. I am not
asking you to agree to that point because you may not, although I feel
strongly about it. But I am asking you whether you agree that it is the
Congress that should determine the legal basis for the President's
actions and not the White House acting unilaterally.
Mr. HOEKSTRA. Reclaiming my time. I thank the gentlewoman for her
comments. From my perspective, it is very, very important that Congress
create the legal framework by which the President exercises his
authority. And the only thing that could overrule our legislative box
that in our case we put the intelligence community in would be the
overriding authority of the Constitution.
I thank my colleagues.
Mr. HINCHEY. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I want to thank my colleagues for bringing this issue
to the floor in the form of this amendment today. I think that they
have done the country a great service. If this House had been doing its
job properly, this issue would have been out here on the floor of the
House of Representatives quite some time ago.
The fundamental principle that we are dealing with here is simply
this: we are a Nation of law. All of our law is based upon the
Constitution. There is nothing in the Constitution that gives the
President of the United States the authority to violate the law. The
President of the United States has violated the law.
This is not the first administration that has sought to govern the
country on the basis of the creation of a climate of fear. As one of
our colleagues pointed out earlier in this debate, that can be traced
all the way back to the Adams administration, the first Adams
administration. But that attempt eventually was overthrown, and it
didn't take a long time.
{time} 1715
The last time we had a President of the United States who wanted to
engage in illegal surveillance on the American people, the last time we
had a President like this one who was engaging in that kind of
activity, was the Nixon administration. President Nixon engaged in
illegal surveillance on the American people. As a result of that and
other things, he was forced out of office.
Subsequently the Congress developed the Foreign Intelligence
Surveillance Act, FISA, in 1978. There are some of us who believe that
FISA itself is a compromise of the fourth amendment of the
Constitution. The fourth amendment of the Constitution guarantees
[[Page H4284]]
independence and privacy to every single American citizen, and there
are some of us who believe that the FISA Act compromises that.
Nevertheless, it is the law.
So what do we have now? We have a President who has gone beyond the
Foreign Intelligence Surveillance Act, who has engaged in illegal
surveillance against the American citizens.
Announcement by the Chairman
The CHAIRMAN. The Chair would direct the Member not to refer to the
President of the United States in accusatory terms.
Mr. HINCHEY. Mr. Chairman, I intend to speak in the way that I
believe is appropriate, and I will continue to do so.
The Foreign Intelligence Surveillance Act was set up to ensure that
the President did not violate the law and go beyond it. This
administration has violated the law. We have not addressed that. The
House of Representatives, the Senate has not addressed this issue.
Now we have an opportunity to address it by virtue of the fact that
we have this amendment before us. This is an important vote today.
Every Member of this House should act in accordance with the law and
accordance with the Constitution and vote for this amendment.
Mr. SCHIFF. Mr. Chairman, will the gentleman yield?
Mr. HINCHEY. I yield to the gentleman from California.
Mr. SCHIFF. Mr. Chairman, I thank the gentleman for yielding. I will
be very quick. Two final points in response to what the chairman and
the ranking member of the Intelligence Committee had to say.
First, there is legislation on this subject, bipartisan legislation,
that was introduced on March 16. We have had no oversight hearing on
it, no markup on it, nothing, zero, zilcho, nada, which is why we are
on the appropriations bill, the only vehicle in which we could raise
this issue.
Second, both Members have said that this amendment would somehow
jeopardize an existing NSA program. What that means is that far from my
colleague from California's point, that the program does not comply
with FISA. Otherwise, how could it be jeopardized? So there is an
admission by the chair of the committee that the existing program does
not meet the requirements of FISA.
What still has gone unanswered is why can we not make changes to FISA
and the existing law? If this is such a vital program, why does it have
to be done outside of the law?
Mr. DICKS. Mr. Chairman, will the gentleman yield?
Mr. HINCHEY. I yield to the gentleman from Washington.
Mr. DICKS. Mr. Chairman, the major point here that the opposition to
this makes is the President has inherent authority. That has not been
tested at the Supreme Court because once FISA was enacted, that was
enacted to limit unbridled Presidential authority. I believe FISA is
the only way that you can proceed; that the President must go to FISA
if he is going to conduct these kind of foreign intelligence
activities.
Mr. HINCHEY. Mr. Chairman, reclaiming my time, the gentleman is
exactly right. That is the law currently. Whether that law violates the
Constitution is an open question. Nevertheless, because it has not been
contested, it is the law, and the President, the administration, all of
us have to live by that law.
There is nothing that gives the President of the United States or
anyone in this administration the authority to engage in surveillance
of the American people, not a single American citizen, outside of the
definition requirements within the Foreign Intelligence Surveillance
Act.
Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
Mr. HINCHEY. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. Mr. Chairman, the Supreme Court has made
it very clear it will not referee fundamental constitutional debates
over power between the executive and legislative branches. Only if you
got a case would this get to the Court, and they will dodge and duck
and never allow there to be a case. This is the only constitutional way
to confront it.
Mr. WELDON of Florida. Mr. Chairman, I move to strike the last word.
This is, I think, a very important debate, and I am glad we are
having it. I think this is an absolutely terrible amendment. The
question is really do you believe we are at war or not. The President
has made it very clear. You have a known al Qaeda operative.
Let us go back to World War II. You have got a German or a Japanese
agent, in Germany, in the south Pacific, speaking to various people,
and we are listening in. Now, would the American people in World War
II, if they began speaking to somebody in the United States or a known
American citizen, want the listening device put down and go to a judge?
That is what we are talking about.
He is in a cave, he is in Afghanistan, he is in Baghdad, he is
talking. Let us talk about Israel, okay? Do you think the Mossad, if
somebody is speaking from Jordan, and there are known terrorists
operatives, and they are speaking to somebody in Israel, they want to
put down the listening device and go in front of a judge? That is what
we are talking about. Are we at war, or are we not at war? It is a
known al Qaeda operative.
They are overseas, and suddenly they are talking to an American
citizen, be it in the United States or elsewhere, and it is time to put
down and stop listening and go find a judge and put together a brief
and get a judge to review it? I believe we are at war, and they want to
kill us. They want to kill our wives. They want to kill our children.
This is a good debate because this debate has been going on for
months and months, and this is a horrible, horrible amendment because
it ties one hand behind our back, and it should be defeated, and we
should vote it soon and vote it down.
Mr. INSLEE. Mr. Chairman, will the gentleman yield?
Mr. WELDON of Florida. I yield to the gentleman from Washington.
Mr. INSLEE. Mr. Chairman, I appreciate your courtesy, and I do think
this is an important debate. I appreciate your perspective.
I want to ask you a forthright question. Do you understand that under
the scenario you have posed, that you can go over the executive, 72
hours after the event, 72 hours after the event, you go and get a
warrant, you can continue your tap, you can get the intelligence, 72
hours? Do you understand that is allowed?
Mr. WELDON of Florida. I understand that I want them to keep
listening. I want the information, and this is what the debate is
about. You want to stop. You want go to a judge. I do not think we
should.
Mr. INSLEE. Mr. Chairman, if the gentleman will yield, I want to make
sure you understand. I want to make sure the gentleman understands that
under this amendment you do not have to stop listening to anybody ever.
We want to continue listening, and we simply require that 72 hours
after that, we ask the executive to have another set of eyeballs take a
look at it to make sure it is compliant. Does the gentleman understand
this amendment does not stop anybody ever, as long as you go and have a
warrant 72 hours after the intelligence gathering? Do you understand
that is the purpose of our amendment? Because it is.
Mr. DANIEL E. LUNGREN of California. Mr. Chairman, will the gentleman
yield?
Mr. WELDON of Florida. I yield to the gentleman from California.
Mr. DANIEL E. LUNGREN of California. Mr. Chairman, that begs the
question as to whether or not you can, in fact, effectively do that
with the 72-hour limitation. There are those running the program that
suggest that that is not possible, not because necessarily the
limitation on going to court, but all of the work that needs to go
forward before you get to the court to get the approval. That is what
we ought to be talking about.
Mr. WELDON of Florida. Mr. Chairman, reclaiming my time, as I
understand it, what you all have laid out is not that easy to do
basically; that you have to make a case in front of a judge, and if it
is a known al Qaeda operative, I think we should be listening to all of
their conversations.
Mr. INSLEE. Mr. Chairman, if you will yield just for a moment, I just
want to make sure members understand what we are voting on.
If this amendment passes, the President of the United States and his
executive authority will be able to continue
[[Page H4285]]
to listen to these conversations unimpeded, unimpeded, as long as they
go to a judge 72 hours after.
Mr. WELDON of Florida. Mr. Chairman, reclaiming my time, I think they
should be able to do that. If you have a known al Qaeda operative, we
should be listening to all their conversations. We should be listening
to all conversations from all al Qaeda operatives.
Ms. HARMAN. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I rise to engage the chairman of the Intelligence
Committee in a colloquy. Let me just state before we have this
colloquy, my position is that FISA, as presently drafted, must cover
the entire program. This is my position after being fully briefed on
the program, as the chairman said, and being fully briefed by the NSA
and the Justice Department about how FISA works. It is my position that
FISA can and must cover the full program. Be that as it may, I would
like to ask the chairman some questions.
As you noted, Mr. Chairman, some of us on the committee and a total
of 50 Members of this House have introduced H.R. 5371, the LISTEN Act,
which would require that this program be brought fully under FISA, and
which also states that more resources will be made available to change
the way FISA is implemented so that using electronic means, more staff,
whatever it takes, there will be a more efficient way to get 72-hour
emergency warrants. I know you are aware of the contents of our bill.
My question to you is are you prepared to hold a legislative hearing
in the Intelligence Committee on our bill and any other bills that may
be pending before our committee that address this issue of FISA as it
is connected to the NSA program?
Mr. HOEKSTRA. Mr. Chairman, will the gentlewoman yield?
Ms. HARMAN. I yield to the gentleman from Michigan.
Mr. HOEKSTRA. Mr. Chairman, I thank you for yielding.
As the gentlewoman knows, we have worked through this very much in a
collaborative process. We followed on the heels of the former chairman
and the former ranking member in trying to make sure that we do this in
a bipartisan basis.
We have had a number of briefings on this program to fully understand
how FISA works both from the NSA, from Justice and a number of place.
It is interesting for those people who are not part of the committee,
who make categorical statements that nothing has happened, and we know
that we have had a way forward, where we have done things.
But in terms of your simple question, I just had to take the shot,
the opportunity to respond to just what I thought were some unfair
characterizations as to what you and I have been doing in the
committee.
I commit that we will have a legislative hearing on this and other
proposals that will create a framework that hopefully can move out of
committee, but there will be a legislative hearing, yes.
Ms. HARMAN. Mr. Chairman, reclaiming my time, are you prepared
following the legislative hearing or hearings to report a bill to the
House floor? Will you personally agree not to block any bill from being
reported to the House floor?
Mr. HOEKSTRA. I will not use my position as chairman of the committee
to block a consensus of the Intelligence Committee to move a bill to
the floor.
Ms. HARMAN. Mr. Chairman, I want to clarify this for myself and
others who are listening.
You are prepared to consider this bill, H.R. 5371, which would force
this entire program to comply with FISA. Actually much credit for the
construct of H.R. 5371 does go to Mr. Schiff and Mr. Flake. I just want
to clarify, and then I would like to yield, H.R. 5371 says the entire
program must comply with FISA, and we will hold a legislative hearing
on this bill and other bills, the committee will then report
legislation to the House floor; is that correct?
Mr. HOEKSTRA. We will hold a legislative hearing, and we will
determine whether there is a consensus in the committee that will
enable us to move a bill that would reform FISA and move it to the
floor.
Ms. HARMAN. Well, our bill, reclaiming my time, does not reform FISA.
It just gives resources to make FISA work.
Mr. FRANK of Massachusetts. Mr. Chairman, will the gentlewoman yield?
Ms. HARMAN. I yield to the gentleman from Massachusetts.
Mr. FRANK of Massachusetts. Mr. Chairman, we are further along than
we were, but the phrase ``consensus,'' consensus is nice, but nothing
in the House rules or the Constitution or the writings of John Jay say
that it is a prerequisite for moving legislation.
I would hope that the gentleman would say on an issue that we all
agree is important, a bill will come to the floor, the majority will
decide, but I do not think those of us not on the committee ought to
only get an opportunity to legislate on this if there is a consensus.
Now, if you are telling us do not do it as an amendment to the
appropriations bill, Mr. Chairman, because the bill is going to come
forward, we need to know that a bill is going to come forward,
consensus or not, and then the House can decide what it wants to do.
Mr. HOEKSTRA. Mr. Chairman, will the gentlewoman yield?
Ms. HARMAN. Mr. Chairman, I yield to the gentleman from Michigan, and
I would appreciate it if he would answer that comment.
Mr. HOEKSTRA. Mr. Chairman, to my good friend from Massachusetts,
consensus means that we have 12 votes to move a bill out of committee.
All right. Consensus does not mean 21 ayes and zero noes. Okay. So
thank you for that clarification.
I think it is also important to know that moving a bill to floor that
would deal with this issue, we would probably not be the only committee
of jurisdiction. Other committees would have jurisdiction as well.
The CHAIRMAN. The time of the gentlewoman from California (Ms.
Harman) has expired.
(On request of Mr. Schiff, and by unanimous consent, Ms. Harman was
allowed to proceed for 30 additional seconds.)
Mr. SCHIFF. Mr. Chairman, will the gentlewoman yield?
Ms. HARMAN. I yield to the gentleman from California.
Mr. SCHIFF. Mr. Chairman, I just point out to the chair and ranking
member, I know my bill, and I assume that the gentlewoman's also, has
now been referred to both Intel and Judiciary, and without a similar
commitment from Judiciary, there is really no commitment that would
come to the floor.
Ms. HARMAN. Mr. Chairman, I wish the Judiciary Committee would also
act. Mr. Conyers is a lead author with me of the bill I am talking
about. But I think it is critical that the Intelligence Committee act
because we have the membership that is briefed on the program, and if
we report a bill to the House floor for action, I would hope that the
House would respond to that promptly.
{time} 1730
Mr. NADLER. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I must confess I am a little ambivalent about this
amendment because the amendment seems to say that we should obey the
law, and some people might get the implication if we don't pass the
amendment that we are free not to obey the law.
The amendment says that ``funds are prohibited from being used to
engage in electronic surveillance in the United States except as
authorized under the Foreign Intelligence Surveillance Act or title
III.'' Well, the Foreign Intelligence Surveillance Act says that. It
says that this title and title III shall be the exclusive, exclusive,
that is the word used in the law, the exclusive authority for domestic
surveillance, for domestic wiretapping. Anything outside of that is
illegal. Anything the administration is doing outside of FISA and title
III, by the terms of FISA, is illegal.
Certainly we should obey the law. I will vote for this amendment
because I can't imagine the House saying we shouldn't obey the law,
although I hear some of that from the other side. The fact is that this
entire program, insofar as it is done outside of FISA or title III, is
by definition illegal because the law says so, period.
Now, I just came from the airport, and I heard a little of the
debate, with people saying, well, maybe it is too hard to get a
warrant. Maybe the work that has to go on beforehand is too
[[Page H4286]]
hard and takes too long to get a warrant, even 72 hours after the
surveillance begins, which is what FISA says. Well, if that is the
case, let the administration make that case and let us amend FISA.
Remember why FISA was passed. FISA was passed because of tyrannical,
illegal conduct by the FBI and by prior administrations that was
considered by the Congress. After hearings and after revelations, they
said, my God, we curtailed liberty in this country. We invaded the
liberty of law-abiding, peaceful citizens under the cover of law, and
we should never do that again; we are going to enact some safeguards.
And Congress enacted FISA to be that safeguard.
And to say if you want to do domestic surveillance, if you think
someone is a Communist agent, in those days, or an al Qaeda agent
today, here is the procedure by which you get the authority to wiretap
that person. Should a known al Qaeda agent be wiretapped all the time?
I would say, yes, but a court would say, yes, too. In fact, we provided
in that law for a secret court. You can go get an exparte order on
secret evidence in a secret proceeding, and you can even do it after
the fact, 72 hours.
Now, maybe it should be 96 hours or 5 days. Maybe someone could make
a case for that. Let Congress change the law for that. But simply to
say, the FBI tells us, the administration tells us that obeying the law
is too difficult?
I remember a few years ago hearing ringing phrases from Henry Hyde
and a lot of other people about the rule of law. We should impeach a
President because he allegedly violated the rule of law. And now we
come to this floor and say ignore the law? The administration, if it is
too hard, can ignore the law?
The law says that FISA and title III are the exclusive authority for
wiretapping in the United States, period. No ifs, ands, or buts. All
this amendment does is repeat it.
As I said, I am ambivalent about it because I don't know that we
should have to repeat it, but apparently we do. So I urge the adoption
of this amendment, and I would remind everybody that to vote against
this amendment is to say we are endorsing the violation of the law. We
don't care about the rule of law. We endorse the administration's
illegal and extraconstitutional action and we are making ourselves
complicit in that and there is no protection, because the President now
claims the power to disobey any law under his inherent authority under
article II as Commander in Chief.
That is a power even George, III, didn't claim, to just disobey the
law when he judges it necessary because of his being Commander in Chief
of the armed services. He is Commander in Chief of the Armed Services,
not of the United States. He is not Commander in Chief of the United
States. He is not a monarch.
No President should have the power to disobey the law or to set aside
the law when he thinks it necessary. If he thinks changing the law is
necessary, come to Congress, change the law, enact a change in FISA. I
might support it; I might not. But Congress will work its will. Enact a
change in FISA.
Simply to say, as this amendment does, that no funds shall be used
except in accordance with law, because the law says no electronic
surveillance shall occur, that is the words, no electronic surveillance
except as provided in this act or in title III. That is the law. That
is what this says. If we have any shame at all, we should adopt this
amendment.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from California (Mr. Schiff).
The question was taken; and the Chairman announced that the noes
appeared to have it.
Mr. SCHIFF. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN. Pursuant to clause 6 of rule XVIII, further proceedings
on the amendment offered by the gentleman from California will be
postponed.
[...]
Amendment Offered by Mr. Schiff
The CHAIRMAN. The pending business is the demand for a recorded vote
on the amendment offered by the gentleman from California (Mr. Schiff)
on which further proceedings were postponed and on which the noes
prevailed by voice vote.
The Clerk will redesignate the amendment.
The Clerk redesignated the amendment.
Recorded Vote
The CHAIRMAN. A recorded vote has been demanded.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 207,
noes 219, not voting 6, as follows:
[Roll No. 295]
AYES--207
Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldwin
Bartlett (MD)
Bass
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Case
Chandler
Clay
Cleaver
Conyers
Cooper
Costa
Costello
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Tom
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Duncan
Emanuel
Engel
Eshoo
Etheridge
Farr
Fattah
Feeney
Filner
Flake
Ford
Frank (MA)
Garrett (NJ)
Gilchrest
Gillmor
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hastings (FL)
Herseth
Higgins
Hinchey
Hinojosa
Holden
Holt
Honda
Hooley
Hostettler
Hoyer
Inslee
Israel
Istook
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
LaTourette
Leach
Lee
Levin
Lewis (GA)
Lipinski
Lofgren, Zoe
Lowey
Lynch
Mack
Maloney
Markey
Marshall
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McIntyre
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Nadler
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Ross
Rothman
Roybal-Allard
Rush
Ryan (OH)
Sabo
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sanders
Schakowsky
Schiff
Schwartz (PA)
Scott (GA)
Scott (VA)
Serrano
Shays
Sherman
Simmons
Slaughter
Smith (WA)
Solis
Stark
Strickland
Stupak
Tanner
Tauscher
Taylor (MS)
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Upton
Van Hollen
Velazquez
Visclosky
Wamp
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Wexler
Woolsey
Wu
Wynn
NOES--219
Aderholt
Akin
Alexander
Bachus
Baker
Barrett (SC)
[[Page H4290]]
Barrow
Barton (TX)
Beauprez
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boswell
Boustany
Bradley (NH)
Brady (TX)
Brown (SC)
Brown-Waite, Ginny
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cantor
Capito
Carter
Castle
Chabot
Chocola
Clyburn
Coble
Cole (OK)
Conaway
Cramer
Crenshaw
Cubin
Culberson
Davis (KY)
Davis (TN)
Davis, Jo Ann
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Edwards
Ehlers
Emerson
English (PA)
Everett
Ferguson
Fitzpatrick (PA)
Foley
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Gerlach
Gibbons
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Green (WI)
Gutknecht
Hall
Harman
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hyde
Inglis (SC)
Issa
Jenkins
Jindal
Johnson (CT)
Johnson, Sam
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Latham
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Manzullo
Marchant
Matheson
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris
Melancon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Mollohan
Murphy
Murtha
Musgrave
Myrick
Neugebauer
Ney
Northup
Norwood
Nunes
Osborne
Oxley
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Pombo
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Royce
Ruppersberger
Ryan (WI)
Ryun (KS)
Saxton
Schmidt
Schwarz (MI)
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shuster
Simpson
Skelton
Smith (NJ)
Smith (TX)
Snyder
Sodrel
Souder
Spratt
Stearns
Sullivan
Sweeney
Tancredo
Taylor (NC)
Terry
Thomas
Thornberry
Tiahrt
Tiberi
Turner
Walden (OR)
Walsh
Weldon (FL)
Weldon (PA)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--6
Cannon
Davis (FL)
Evans
Hunter
Napolitano
Nussle
{time} 1827
Messrs. SULLIVAN, McCAUL of Texas, BONILLA, HOBSON, NEY, SOUDER,
GOHMERT, and EHLERS changed their vote from ``aye'' to ``no.''
Messrs. GORDON, BISHOP of Georgia, Ms. KAPTUR, Messrs. BERRY, COOPER,
WAMP, ROSS, REYES, SALAZAR, and SHAYS changed their vote from ``no'' to
``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
