PDF Version
109th Congress Rept. 109-680
HOUSE OF REPRESENTATIVES
2d Session Part 2
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ELECTRONIC SURVEILLANCE MODERNIZATION ACT
_______
September 25, 2006.--Ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING AND ADDITIONAL VIEWS
[To accompany H.R. 5825]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 5825) to update the Foreign Intelligence Surveillance Act
of 1978, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Electronic Surveillance Modernization
Act''.
SEC. 2. FINDING.
Congress finds that article I, section 8, clause 18 of the
Constitution, known as the ``necessary and proper clause'', grants
Congress clear authority to regulate the President's inherent power to
gather foreign intelligence.
SEC. 3. FISA DEFINITIONS.
(a) Agent of a Foreign Power.--Subsection (b)(1) of section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801) is
amended--
(1) in subparagraph (B), by striking ``; or'' and inserting
``;''; and
(2) by adding at the end the following:
``(D) is reasonably expected to possess, control,
transmit, or receive foreign intelligence information
while such person is in the United States, provided
that the official making the certification required by
section 104(a)(7) deems such foreign intelligence
information to be significant; or''.
(b) Electronic Surveillance.--Subsection (f) of such section is
amended to read as follows:
``(f) `Electronic surveillance' means--
``(1) the installation or use of an electronic, mechanical,
or other surveillance device for acquiring information by
intentionally directing surveillance at a particular known
person who is reasonably believed to be in the United States
under circumstances in which that person has a reasonable
expectation of privacy and a warrant would be required for law
enforcement purposes; or
``(2) the intentional acquisition of the contents of any
communication under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, if both the sender and
all intended recipients are reasonably believed to be located
within the United States.''.
(c) Contents.--Subsection (n) of such section is amended to read as
follows:
``(n) `Contents', when used with respect to a communication, includes
any information concerning the substance, purport, or meaning of that
communication.''.
SEC. 4. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE AND OTHER
ACQUISITIONS FOR FOREIGN INTELLIGENCE PURPOSES.
(a) In General.--The Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is further amended by striking section 102 and
inserting the following:
``authorization for electronic surveillance for foreign intelligence
purposes
``Sec. 102. (a) In General.--Notwithstanding any other law, the
President, acting through the Attorney General, may authorize
electronic surveillance without a court order under this title to
acquire foreign intelligence information for periods of up to one year
if the Attorney General certifies in writing under oath that--
``(1) the electronic surveillance is directed at--
``(A) the acquisition of the contents of
communications of foreign powers, as defined in
paragraph (1), (2), or (3) of section 101(a), or an
agent of a foreign power, as defined in subparagraph
(A) or (B) of section 101(b)(1); or
``(B) the acquisition of technical intelligence,
other than the spoken communications of individuals,
from property or premises under the open and exclusive
control of a foreign power, as defined in paragraph
(1), (2), or (3) of section 101(a); and
``(2) the proposed minimization procedures with respect to
such surveillance meet the definition of minimization
procedures under section 101(h);
if the Attorney General reports such minimization procedures and any
changes thereto to the Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on Intelligence
of the Senate at least 30 days prior to the effective date of such
minimization procedures, unless the Attorney General determines
immediate action is required and notifies the committees immediately of
such minimization procedures and the reason for their becoming
effective immediately.
``(b) Minimization Procedures.--An electronic surveillance authorized
by this subsection may be conducted only in accordance with the
Attorney General's certification and the minimization procedures. The
Attorney General shall assess compliance with such procedures and shall
report such assessments to the Permanent Select Committee on
Intelligence of the House of Representatives and the Select Committee
on Intelligence of the Senate under the provisions of section 108(a).
``(c) Submission of Certification.--The Attorney General shall
immediately transmit under seal to the court established under section
103(a) a copy of his certification. Such certification shall be
maintained under security measures established by the Chief Justice
with the concurrence of the Attorney General, in consultation with the
Director of National Intelligence, and shall remain sealed unless--
``(1) an application for a court order with respect to the
surveillance is made under section 104; or
``(2) the certification is necessary to determine the
legality of the surveillance under section 106(f).
``authorization for acquisition of foreign intelligence information
``Sec. 102A. (a) In General.--Notwithstanding any other law, the
President, acting through the Attorney General may, for periods of up
to one year, authorize the acquisition of foreign intelligence
information concerning a person reasonably believed to be outside the
United States if the Attorney General certifies in writing under oath
that--
``(1) the acquisition does not constitute electronic
surveillance;
``(2) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of a wire
or electronic communications service provider, custodian, or
other person (including any officer, employee, agent, or other
specified person of such service provider, custodian, or other
person) who has access to wire or electronic communications,
either as they are transmitted or while they are stored, or
equipment that is being or may be used to transmit or store
such communications;
``(3) a significant purpose of the acquisition is to obtain
foreign intelligence information; and
``(4) the proposed minimization procedures with respect to
such acquisition activity meet the definition of minimization
procedures under section 101(h).
``(b) Specific Place Not Required.--A certification under subsection
(a) is not required to identify the specific facilities, places,
premises, or property at which the acquisition of foreign intelligence
information will be directed.
``(c) Submission of Certification.--The Attorney General shall
immediately transmit under seal to the court established under section
103(a) a copy of a certification made under subsection (a). Such
certification shall be maintained under security measures established
by the Chief Justice of the United States and the Attorney General, in
consultation with the Director of National Intelligence, and shall
remain sealed unless the certification is necessary to determine the
legality of the acquisition under section 102B.
``(d) Minimization Procedures.--An acquisition under this section may
be conducted only in accordance with the certification of the Attorney
General and the minimization procedures adopted by the Attorney
General. The Attorney General shall assess compliance with such
procedures and shall report such assessments to the Permanent Select
Committee on Intelligence of the House of Representatives and the
Select Committee on Intelligence of the Senate under section 108(a).
``directives relating to electronic surveillance and other acquisitions
of foreign intelligence information
``Sec. 102B. (a) Directive.--With respect to an authorization of
electronic surveillance under section 102 or an authorization of an
acquisition under section 102A, the Attorney General may direct a
person to--
``(1) immediately provide the Government with all
information, facilities, and assistance necessary to accomplish
the acquisition of foreign intelligence information in such a
manner as will protect the secrecy of the electronic
surveillance or acquisition and produce a minimum of
interference with the services that such person is providing to
the target; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence any
records concerning the electronic surveillance or acquisition
or the aid furnished that such person wishes to maintain.
``(b) Compensation.--The Government shall compensate, at the
prevailing rate, a person for providing information, facilities, or
assistance pursuant to subsection (a).
``(c) Failure to Comply.--In the case of a failure to comply with a
directive issued pursuant to subsection (a), the Attorney General may
petition the court established under section 103(a) to compel
compliance with the directive. The court shall issue an order requiring
the person or entity to comply with the directive if it finds that the
directive was issued in accordance with section 102(a) or 102A(a) and
is otherwise lawful. Failure to obey an order of the court may be
punished by the court as contempt of court. Any process under this
section may be served in any judicial district in which the person or
entity may be found.
``(d) Review of Petitions.--(1) In General.--(A) Challenge.--A person
receiving a directive issued pursuant to subsection (a) may challenge
the legality of that directive by filing a petition with the pool
established under section 103(e)(1).
``(B) Assignment of Judge.--The presiding judge designated pursuant
to section 103(b) shall assign a petition filed under subparagraph (A)
to one of the judges serving in the pool established by section
103(e)(1). Not later than 24 hours after the assignment of such
petition, the assigned judge shall conduct an initial review of the
directive. If the assigned judge determines that the petition is
frivolous, the assigned judge shall deny the petition and affirm the
directive or any part of the directive that is the subject of the
petition. If the assigned judge determines the petition is not
frivolous, the assigned judge shall, within 72 hours, consider the
petition in accordance with the procedures established under section
103(e)(2) and provide a written statement for the record of the reasons
for any determination under this subsection.
``(2) Standard of Review.--A judge considering a petition to modify
or set aside a directive may grant such petition only if the judge
finds that such directive does not meet the requirements of this
section or is otherwise unlawful. If the judge does not modify or set
aside the directive, the judge shall affirm such directive, and order
the recipient to comply with such directive.
``(3) Directives Not Modified.--Any directive not explicitly modified
or set aside under this subsection shall remain in full effect.
``(e) Appeals.--The Government or a person receiving a directive
reviewed pursuant to subsection (d) may file a petition with the court
of review established under section 103(b) for review of the decision
issued pursuant to subsection (d) not later than 7 days after the
issuance of such decision. Such court of review shall have jurisdiction
to consider such petitions and shall provide for the record a written
statement of the reasons for its decision. On petition by the
Government or any person receiving such directive for a writ of
certiorari, the record shall be transmitted under seal to the Supreme
Court, which shall have jurisdiction to review such decision.
``(f) Proceedings.--Judicial proceedings under this section shall be
concluded as expeditiously as possible. The record of proceedings,
including petitions filed, orders granted, and statements of reasons
for decision, shall be maintained under security measures established
by the Chief Justice of the United States, in consultation with the
Attorney General and the Director of National Intelligence.
``(g) Sealed Petitions.--All petitions under this section shall be
filed under seal. In any proceedings under this section, the court
shall, upon request of the Government, review ex parte and in camera
any Government submission, or portions of a submission, which may
include classified information.
``(h) Liability.--No cause of action shall lie in any court against
any person for providing any information, facilities, or assistance in
accordance with a directive under this section.
``(i) Use of Information.--Information acquired pursuant to a
directive by the Attorney General under this section concerning any
United States person may be used and disclosed by Federal officers and
employees without the consent of the United States person only in
accordance with the minimization procedures required by section 102(a)
or 102A(a). No otherwise privileged communication obtained in
accordance with, or in violation of, the provisions of this section
shall lose its privileged character. No information from an electronic
surveillance under section 102 or an acquisition pursuant to section
102A may be used or disclosed by Federal officers or employees except
for lawful purposes.
``(j) Use in Law Enforcement.--No information acquired pursuant to
this section shall be disclosed for law enforcement purposes unless
such disclosure is accompanied by a statement that such information, or
any information derived from such information, may only be used in a
criminal proceeding with the advance authorization of the Attorney
General.
``(k) Disclosure in Trial.--If the Government intends to enter into
evidence or otherwise use or disclose in any trial, hearing, or other
proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of the United States, against an
aggrieved person, any information obtained or derived from an
electronic surveillance conducted under section 102 or an acquisition
authorized pursuant to section 102A, the Government shall, prior to the
trial, hearing, or other proceeding or at a reasonable time prior to an
effort to disclose or use that information or submit it in evidence,
notify the aggrieved person and the court or other authority in which
the information is to be disclosed or used that the Government intends
to disclose or use such information.
``(l) Disclosure in State Trials.--If a State or political
subdivision of a State intends to enter into evidence or otherwise use
or disclose in any trial, hearing, or other proceeding in or before any
court, department, officer, agency, regulatory body, or other authority
of a State or a political subdivision of a State, against an aggrieved
person, any information obtained or derived from an electronic
surveillance authorized pursuant to section 102 or an acquisition
authorized pursuant to section 102A, the State or political subdivision
of such State shall notify the aggrieved person, the court, or other
authority in which the information is to be disclosed or used and the
Attorney General that the State or political subdivision intends to
disclose or use such information.
``(m) Motion to Exclude Evidence.--(1) In General.--Any person
against whom evidence obtained or derived from an electronic
surveillance authorized pursuant to section 102 or an acquisition
authorized pursuant to section 102A is to be, or has been, used or
disclosed in any trial, hearing, or other proceeding in or before any
court, department, officer, agency, regulatory body, or other authority
of the United States, a State, or a political subdivision thereof, may
move to suppress the evidence obtained or derived from such electronic
surveillance or such acquisition on the grounds that--
``(A) the information was unlawfully acquired; or
``(B) the electronic surveillance or acquisition was not
properly made in conformity with an authorization under section
102(a) or 102A(a).
``(2) Timing.--A person moving to suppress evidence under paragraph
(1) shall make the motion to suppress the evidence before the trial,
hearing, or other proceeding unless there was no opportunity to make
such a motion or the person was not aware of the grounds of the motion.
``(n) Review of Motions.--If a court or other authority is notified
pursuant to subsection (k) or (l), a motion is made pursuant to
subsection (m), or a motion or request is made by an aggrieved person
pursuant to any other statute or rule of the United States or any State
before any court or other authority of the United States or any State--
``(1) to discover or obtain an Attorney General directive or
other materials relating to an electronic surveillance
authorized pursuant to section 102 or an acquisition authorized
pursuant to section 102A, or
``(2) to discover, obtain, or suppress evidence or
information obtained or derived from an electronic surveillance
authorized pursuant to section 102 or an acquisition authorized
pursuant to section 102A,
the United States district court or, where the motion is made before
another authority, the United States district court in the same
district as the authority, shall, notwithstanding any other law, if the
Attorney General files an affidavit under oath that disclosure or an
adversary hearing would harm the national security of the United
States, review in camera and ex parte the application, order, and such
other materials relating to such electronic surveillance or such
acquisition as may be necessary to determine whether such electronic
surveillance or such acquisition authorized under this section was
lawfully authorized and conducted. In making this determination, the
court may disclose to the aggrieved person, under appropriate security
procedures and protective orders, portions of the directive or other
materials relating to the acquisition only where such disclosure is
necessary to make an accurate determination of the legality of the
acquisition.
``(o) Determinations.--If, pursuant to subsection (n), a United
States district court determines that the acquisition authorized under
this section was not lawfully authorized or conducted, it shall, in
accordance with the requirements of law, suppress the evidence which
was unlawfully obtained or derived or otherwise grant the motion of the
aggrieved person. If the court determines that such acquisition was
lawfully authorized and conducted, it shall deny the motion of the
aggrieved person except to the extent that due process requires
discovery or disclosure.
``(p) Binding Orders.--Orders granting motions or requests under
subsection (m), decisions under this section that an electronic
surveillance or an acquisition was not lawfully authorized or
conducted, and orders of the United States district court requiring
review or granting disclosure of directives, orders, or other materials
relating to such acquisition shall be final orders and binding upon all
courts of the United States and the several States except a United
States court of appeals and the Supreme Court.
``(q) Coordination.--(1) In General.--Federal officers who acquire
foreign intelligence information may consult with Federal law
enforcement officers or law enforcement personnel of a State or
political subdivision of a State, including the chief executive officer
of that State or political subdivision who has the authority to appoint
or direct the chief law enforcement officer of that State or political
subdivision, to coordinate efforts to investigate or protect against--
``(A) actual or potential attack or other grave hostile acts
of a foreign power or an agent of a foreign power;
``(B) sabotage, international terrorism, or the development
or proliferation of weapons of mass destruction by a foreign
power or an agent of a foreign power; or
``(C) clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of a
foreign power.
``(2) Certification Required.--Coordination authorized under
paragraph (1) shall not preclude the certification required by section
102(a) or 102A(a).
``(r) Retention of Directives and Orders.--A directive made or an
order granted under this section shall be retained for a period of not
less than 10 years from the date on which such directive or such order
is made.''.
(b) Table of Contents.--The table of contents in the first section of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by inserting after the item relating to section 102
the following:
``102A. Authorization for acquisition of foreign intelligence
information.
``102B. Directives relating to electronic surveillance and other
acquisitions of foreign intelligence information.''.
SEC. 5. JURISDICTION OF FISA COURT.
Section 103 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803) is amended by adding at the end the following new
subsection:
``(g) Applications for a court order under this title are authorized
if the President has, by written authorization, empowered the Attorney
General to approve applications to the court having jurisdiction under
this section, and a judge to whom an application is made may,
notwithstanding any other law, grant an order, in conformity with
section 105, approving electronic surveillance of a foreign power or an
agent of a foreign power for the purpose of obtaining foreign
intelligence information.''.
SEC. 6. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) in paragraph (6), by striking ``detailed
description'' and inserting ``summary description'';
(B) in paragraph (7)--
(i) in the matter preceding subparagraph (A),
by striking ``or officials designated'' and all
that follows through ``consent of the Senate''
and inserting ``designated by the President to
authorize electronic surveillance for foreign
intelligence purposes'';
(ii) in subparagraph (C), by striking
``techniques;'' and inserting ``techniques;
and'';
(iii) by striking subparagraph (D); and
(iv) by redesignating subparagraph (E) as
subparagraph (D);
(C) in paragraph (8), by striking ``a statement of
the means'' and inserting ``a summary statement of the
means'';
(D) in paragraph (9)--
(i) by striking ``a statement'' and inserting
``a summary statement''; and
(ii) by striking ``application;'' and
inserting ``application; and'';
(E) in paragraph (10), by striking ``thereafter;
and'' and inserting ``thereafter.''; and
(F) by striking paragraph (11).
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated by
paragraph (3), by striking ``or the Director of National
Intelligence'' and inserting ``the Director of National
Intelligence, or the Director of the Central Intelligence
Agency''.
SEC. 7. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (c)(1)--
(A) in subparagraph (D), by striking
``surveillance;'' and inserting ``surveillance; and'';
(B) in subparagraph (E), by striking ``approved;
and'' and inserting ``approved.''; and
(C) by striking subparagraph (F);
(3) by striking subsection (d);
(4) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(5) in subsection (d), as redesignated by paragraph (4), by
amending paragraph (2) to read as follows:
``(2) Extensions of an order issued under this title may be granted
on the same basis as an original order upon an application for an
extension and new findings made in the same manner as required for an
original order and may be for a period not to exceed one year.''.
(6) in subsection (e), as redesignated by paragraph (4), to
read as follows:
``(e) Notwithstanding any other provision of this title, an official
appointed by the President with the advice and consent of the Senate
that is designated by the President to authorize electronic
surveillance may authorize the emergency employment of electronic
surveillance if--
``(1) such official determines that an emergency situation
exists with respect to the employment of electronic
surveillance to obtain foreign intelligence information before
an order authorizing such surveillance can with due diligence
be obtained;
``(2) such official determines that the factual basis for
issuance of an order under this title to approve such
electronic surveillance exists;
``(3) such official informs the Attorney General of such
electronic surveillance;
``(4) the Attorney General or a designee of the Attorney
General informs a judge having jurisdiction under section 103
of such electronic surveillance as soon as practicable, but in
no case more than 7 days after the date on which such
electronic surveillance is authorized;
``(5) an application in accordance with this title is made to
such judge or another judge having jurisdiction under section
103 as soon as practicable, but not more than 7 days after such
electronic surveillance is authorized;
``(6) such official requires that the minimization procedures
required by this title for the issuance of a judicial order be
followed.
In the absence of a judicial order approving such electronic
surveillance, the surveillance shall terminate when the information
sought is obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of authorization by such
official, whichever is earliest. In the event that the application for
approval submitted pursuant to paragraph (5) is denied, or in any other
case where the electronic surveillance is terminated and no order is
issued approving the surveillance, no information obtained or evidence
derived from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency, regulatory
body, legislative committee, or other authority of the United States, a
State, or political subdivision thereof, and no information concerning
any United States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by Federal
officers or employees without the consent of such person, except with
the approval of the Attorney General if the information indicates a
threat of death or serious bodily harm to any person. A denial of the
application made pursuant to paragraph (5) may be reviewed as provided
in section 103.'';
(7) in subsection (h), as redesignated by paragraph (4)--
(A) by striking ``a wire or'' and inserting ``an'';
and
(B) by striking ``physical search'' and inserting
``physical search or in response to a certification by
the Attorney General or a designee of the Attorney
General seeking information, facilities, or technical
assistance from such person under section 102B''; and
(8) by adding at the end the following new subsection:
``(i) In any case in which the Government makes an application to a
judge under this title to conduct electronic surveillance involving
communications and the judge grants such application, the judge shall
also authorize the installation and use of pen registers and trap and
trace devices to acquire dialing, routing, addressing, and signaling
information related to such communications and such dialing, routing,
addressing, and signaling information shall not be subject to
minimization procedures.''.
SEC. 8. USE OF INFORMATION.
Section 106(i) of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1806(i)) is amended--
(1) by striking ``radio communication'' and inserting
``communication''; and
(2) by striking ``contents indicates'' and inserting
``contents contain significant foreign intelligence information
or indicate''.
SEC. 9. CONGRESSIONAL OVERSIGHT.
(a) Electronic Surveillance Under FISA.--Section 108 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1808) is amended--
(1) in subsection (a)(1), by inserting ``each member of''
before ``the House Permanent Select Committee on
Intelligence''; and
(2) in subsection (a)(2)--
(A) in subparagraph (B), by striking ``and'' at the
end;
(B) in subparagraph (C), by striking the period and
inserting ``; and''; and
(C) by adding at the end the following new
subparagraph:
``(D) the authority under which the electronic
surveillance is conducted.''; and
(3) in subsection (a), by adding at the end the following new
paragraph:
``(3) Each report submitted under this subsection shall
include reports on electronic surveillance conducted without a
court order.''.
(b) Intelligence Activities.--Section 501 of the National Security
Act of 1947 (50 U.S.C. 413) is amended--
(1) in subsection (a)(1), by inserting ``each member of''
before ``the congressional intelligence committees''; and
(2) in subsection (b), by inserting ``each member of'' before
``the congressional intelligence committees''.
SEC. 10. INTERNATIONAL MOVEMENT OF TARGETS.
(a) Electronic Surveillance.--Section 105(d) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)), as
redesignated by section 7(4), is amended by adding at the end the
following new paragraph:
``(4) An order issued under this section shall remain in force during
the authorized period of surveillance notwithstanding the absence of
the target from the United States, unless the Government files a motion
to extinguish the order and the court grants the motion.''.
(b) Physical Search.--Section 304(d) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1824(d)) is amended by adding at
the end the following new paragraph:
``(4) An order issued under this section shall remain in force during
the authorized period of surveillance notwithstanding the absence of
the target from the United States, unless the Government files a motion
to extinguish the order and the court grants the motion.''.
SEC. 11. COMPLIANCE WITH COURT ORDERS AND ANTITERRORISM PROGRAMS.
(a) In General.--Notwithstanding any other provision of law, and in
addition to the immunities, privileges, and defenses provided by any
other provision of law, no action shall lie or be maintained in any
court, and no penalty, sanction, or other form of remedy or relief
shall be imposed by any court or any other body, against any person for
an activity arising from or relating to any alleged intelligence
program involving electronic surveillance that the Attorney General or
a designee of the Attorney General certifies, in a manner consistent
with the protection of State secrets, is, was, or would be intended to
protect the United States from a terrorist attack. This section shall
apply to all actions or proceedings pending on or after the effective
date of this Act.
(b) Jurisdiction.--Any action or claim described in subsection (a)
that is brought in a State court shall be deemed to arise under the
Constitution and laws of the United States and shall be removable
pursuant to section 1441 of title 28, United States Code.
(c) Definitions.--In this section:
(1) The term ``electronic surveillance'' has the meaning
given the term in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(f)) on the day before
the date of the enactment of this Act.
(2) The term ``person'' has the meaning given the term in
section 2510(6) of title 18, United States Code.
SEC. 12. REPORT ON MINIMIZATION PROCEDURES.
(a) Report.--Not later than two years after the date of the enactment
of this Act, and annually thereafter until December 31, 2009, the
Director of the National Security Agency, in consultation with the
Director of National Intelligence and the Attorney General, shall
submit to the Permanent Select Committee on Intelligence of the House
of Representatives and the Select Committee on Intelligence of the
Senate a report on the effectiveness and use of minimization procedures
applied to information concerning United States persons acquired by
means that were considered electronic surveillance as that term was
defined by section 101(f) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801(f)) on the day before the date of the enactment
of this Act but no longer constitutes electronic surveillance as of the
effective date of this Act.
(b) Requirements.--A report submitted under subsection (a) shall
include--
(1) a description of the implementation, during the course of
communications intelligence activities conducted by the
National Security Agency, of procedures established to minimize
the acquisition, retention, and dissemination of nonpublicly
available information concerning United States persons;
(2) the number of significant violations, if any, of such
minimization procedures during the 18 months following the
effective date of this Act; and
(3) summary descriptions of such violations.
(c) Retention of Information.--Information concerning United States
persons shall not be retained solely for the purpose of complying with
the reporting requirements of this section.
(d) Minimization Procedures Defined.--In this section, the term
``minimization procedures'' has the meaning given the term in section
101(h) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(h)).
SEC. 13. TECHNICAL AND CONFORMING AMENDMENTS.
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is further amended--
(1) in section 101(h)(4), by striking ``approved pursuant to
section 102(a),'' and inserting ``authorized pursuant to
section 102 or any acquisition authorized pursuant to section
102A'';
(2) in section 105(a)(4), as redesignated by section
7(1)(B)--
(A) by striking ``104(a)(7)(E)'' and inserting
``104(a)(6)(D)''; and
(B) by striking ``104(d)'' and inserting ``104(c)'';
(3) in section 106--
(A) in subsection (j) in the matter preceding
paragraph (1), by striking ``105(e)'' and inserting
``105(d)''; and
(B) in subsection (k)(2), by striking
``104(a)(7)(B)'' and inserting ``104(a)(6)(B)''; and
(4) in section 108(a)(2)(C), by striking ``105(f)'' and
inserting ``105(e)''.
Purpose and Summary
Representative Heather Wilson, Judiciary Committee Chairman
Sensenbrenner, and Select Committee on Intelligence Chairman
Hoekstra introduced H.R. 5825, the ``Electronic Surveillance
Modernization Act,'' on July 18, 2006. This bill would
strengthen oversight of the executive branch and enhance
accountability, clarify the scope and applicability of FISA
(Foreign Intelligence Surveillance Act) warrants; and update
the 1978 Foreign Intelligence Surveillance Act to reflect
modern changes in technology and communication.
Background and Need for the Legislation
H.R. 5825 pertains to the manner in which the Federal
government collects oral, wire and electronic communications
for foreign intelligence purposes. Congress enacted the first
Federal wiretap statute during World War I.\1\ The authority
and limits of government surveillance have been the focus of
extensive judicial consideration. By the time the United States
Supreme Court ruled on the issue in Olmstead v. United
States,\2\ over 40 States had banned wiretapping. In the
Olmstead case, the Court found that a wiretap of a Seattle
bootlegger did not violate the Fourth Amendment because there
was not ``an official search and seizure of his person, or such
a seizure of his papers or his tangible material effects, or an
actual physical invasion of his house or curtilage for the
purposes of making a seizure.'' \3\ Subsequent decisions eroded
the Olmstead holding, however.
---------------------------------------------------------------------------
\1\ Charles Doyle, and Gina Stevens, Congressional Research
Service, Library of Congress, Privacy: An Overview of Federal Statutes
Governing Wiretapping and Electronic Eavesdropping, at 2 (2001).
\2\ 277 U.S. 438 (1928).
\3\ Id. at 466.
---------------------------------------------------------------------------
Today, United States courts tend to use a two-prong
expectation of privacy analysis to determine whether the Fourth
Amendment has been violated.\4\ Justice Harlan's concurrence in
Silverman v. United States,\5\ highlights the analysis stating
``. . . there is a twofold requirement, first that a person
have exhibited an actual (subjective) expectation of privacy
and, second, that the expectation be one that society is
prepared to recognize as reasonable.''
---------------------------------------------------------------------------
\4\ Charles Doyle, and Gina Stevens, Congressional Research
Service, Library of Congress, Privacy: An Overview of Federal Statutes
Governing Wiretapping and Electronic Eavesdropping, at 5 n.15 (2001).
\5\ 389 U.S. 347, 361 (1967).
---------------------------------------------------------------------------
In order to safeguard Fourth Amendment protections,
Congress has created procedures to allow limited law
enforcement access to private communications and communication
records. Specifically, Congress enacted Title III of the
Omnibus Crime Control and Safe Streets Act of 1968,\6\ that
outlines what is and is not permissible with regard to
wiretapping and electronic eavesdropping.\7\ Title III of the
Crime Control Act, authorizes the use of electronic
surveillance for crimes specified in 18 U.S.C. 2516.
---------------------------------------------------------------------------
\6\ 87 Stat. 197, 18 U.S.C. 2510-2520 (1970 ed.) (Title III of the
Crime Control Act).
\7\ Charles Doyle, and Gina Stevens, Congressional Research
Service, Library of Congress, Privacy: An Overview of Federal Statutes
Governing Wiretapping and Electronic Eavesdropping, at 6 (2001).
---------------------------------------------------------------------------
While Congress did not cover national security cases in the
Crime Control Act, it did include a disclaimer that the wiretap
laws did not affect the President's constitutional duty to
protect National Security. In 1972, the U.S. Supreme Court
rejected the claim that this disclaimer applied to domestic
security case.\8\ The Court specifically invited Congress to
establish similar standards for domestic intelligence that were
established for criminal investigations.\9\
---------------------------------------------------------------------------
\8\ United States v. United States District Court, 407 U.S. 297
(1972).
\9\ ``Moreover, we do not hold that the same type of standards and
procedures prescribed by Title III are necessarily applicable to this
case. We recognize that domestic security surveillance may involve
different policy and practical considerations from the surveillance of
`ordinary crime'. The gathering of security intelligence is often long
range and involves the interrelation of various sources and types of
information. The exact targets of such surveillance may be more
difficult to identify than in surveillance operations against many
types of crime specified in Title III. Often, too, the emphasis of
domestic intelligence gathering is on the prevention of unlawful
activity or the enhancement of the Government's preparedness for some
possible future crisis or emergency. Thus, the focus of domestic
surveillance may be less precise than that directed against more
conventional types of crime.
Given these potential distinctions between Title III criminal
surveillances and those involving the domestic security, Congress may
wish to consider protective standards for the latter which differ from
those already prescribed for specified crimes in Title III. Different
standards may be compatible with the Fourth Amendment [407 U.S. 297,
323] if they are reasonable both in relation to the legitimate need of
Government for intelligence information and the protected rights of our
citizens. For the warrant application may vary according to the
governmental interest to be enforced and the nature of citizen rights
deserving protection. As the Court said in Camara v. Municipal Court,
387 U.S. 523, 534-535 (1967):
``In cases in which the Fourth Amendment requires that a warrant to
search be obtained, `probable cause' is the standard by which a
particular decision to search is tested against the constitutional
mandate of reasonableness. . . . In determining whether a particular
inspection is reasonable--and thus in determining whether there is
probable cause to issue a warrant for that inspection--the need for the
inspection must be weighed in terms of these reasonable goals of code
enforcement.''
It may be that Congress, for example, would judge that the
application and affidavit showing probable cause need not follow the
exact requirements of 2518 but should allege other circumstances more
appropriate to domestic security cases; that the request for prior
court authorization could, in sensitive cases, be made to any member of
a specially designated court (e.g., the District Court for the District
of Columbia or the Court of Appeals for the District of Columbia
Circuit); and that the time and reporting requirements need not be so
strict as those in 2518. Id. at 322.
---------------------------------------------------------------------------
Congress enacted the Foreign Intelligence Surveillance Act
of 1978 (FISA),\10\ to prescribe procedures for foreign
intelligence collected domestically. FISA authorized the
Federal government to collect intelligence within the United
States on foreign powers and agents of foreign powers. It
established a special court to review and authorize or deny
wiretapping and other forms of electronic eavesdropping for
purposes of foreign intelligence gathering in domestic
surveillance cases. FISA was enacted by Congress to secure the
integrity of the Fourth Amendment while protecting the national
security interest of the United States by providing a mechanism
for the domestic collection of foreign intelligence
information.
---------------------------------------------------------------------------
\10\ 92 Stat. 1783, 50 U.S.C. 1801 et seq.
---------------------------------------------------------------------------
Changes in technology have caused an unintentional shift in
the focus and reach of FISA. When FISA was enacted, domestic
communications were ordinarily transmitted differently than
international communications. Domestic communications were
transmitted via ``wire'' while international communications
were transmitted via ``radio.'' Over time, however, wire became
the preferred method of transmitting international
communications, blurring the technology-centered distinction
between international and domestic communications.
As General Hayden testified before the Senate on July 26,
2006, the:
. . . NSA intercepts communications and it does so for only one
purpose: to protect the lives, the liberties and the well being
of the citizens of the United States from those who would do us
harm. By the late 1990s, that job was becoming very difficult.
The explosion of modern communications in terms of its volume,
variety and velocity threatened to overwhelm the Agency. The
September 11th attacks exposed an even more critical fault
line. The laws of the United States do (and should) distinguish
between the information space that is America and the rest of
the planet.
But modern telecommunications do not so cleanly respect
that geographic distinction. We exist on a unitary, integrated,
global telecommunications grid in which geography is an
increasingly irrelevant factor. What does ``place'' mean when
one is traversing the World Wide Web? There are no area codes
on the Internet.
And if modern telecommunications muted the distinctions of
geography, our enemy seemed to want to end the distinction
altogether. After all, he killed 3000 of our countrymen from
within the homeland.
In terms of both technology and the character of our enemy,
``in'' America and ``of'' America no longer were synonymous.
I testified about this challenge in open session to the
House Intelligence Committee in April of the year 2000. At the
time I created some looks of disbeliefwhen I said that if Usama
bin Ladin crossed the bridge from Niagara Falls, Ontario to Niagara
Falls, New York, there were provisions of U.S. law that would kick in,
offer him some protections and affect how NSA could now cover him. At
the time I was just using this as a stark hypothetical. Seventeen
months later this was about life and death.
The legal regime under which NSA was operating--the Foreign
Intelligence Surveillance Act--had been crafted to protect
American liberty and American security.
But the revolution in telecommunications technology has
extended the actual impact of the FISA regime far beyond what
Congress could ever have anticipated in 1978. And I don't think
that anyone could make the claim that the FISA statute was
optimized to deal with a 9/11 or to deal with a lethal enemy
who likely already had combatants inside the United States.
Because of the wording of the statute, the government looks
to four factors in assessing whether or not a court order was
required before NSA can lawfully intercept a communication: who
was the target, where was the target, how did we intercept the
communication, and where did we intercept the communication.
The [Specter] bill before the committee today effectively
re-examines the relevance of each of these factors and the
criteria we want to use with each.
Who is the target?
The FISA regime from 1978 onward focused on specific court
orders, against individual targets, individually justified and
individually documented. This was well suited to stable,
foreign entities on which we wanted to focus for extended
period of time for foreign intelligence purposes. It is less
well suited to provide the agility to detect and prevent
attacks against the homeland.
In short, its careful, individualized processes exacted
little cost when the goal was long term and exhaustive
intelligence coverage against a known and recognizable agent of
a foreign power. The costs were different when the objective
was to detect and prevent attacks, when we are in hot pursuit
of communications entering or leaving the United States
involving someone associated with al Qa'ida.
* * * * *
Where is the target?
As I said earlier, geography is becoming less relevant. In
the age of the Internet and a global communications grid that
routes communications by the cheapest available bandwidth
available each nanosecond, should our statutes presume that all
communications that touch America should be equally protected?
* * * * *
How did we intercept the communication?
For reasons that seemed sound at the time, current statute
makes a distinction between collection ``on a wire'' and
collection out of the air. When the law was passed, almost all
local calls were on a wire and almost all long haul
communications were in the air. In an age of cell phones and
fiber optic cables, that has been reversed . . . with powerful
and unintended consequences for how NSA can lawfully acquire a
signal. Legislators in 1978 should not have been expected to
predict the future of global telecommunications. Neither should
you. The statute should be technology neutral.
Where we intercept the communication?
A single communication can transit the world even if the
communicants are only a few miles apart. And in that transit
NSA may have multiple opportunities to intercept it as it moves
and changes medium. As long as a communication is otherwise
lawfully targeted, we should be indifferent to where the
intercept is achieved. Signals intelligence is a difficult art
and science, especially in today's telecommunication universe.
Intercept of a particular communication--one that would help
protect the homeland, for example--is always probabilistic, not
deterministic. No coverage is guaranteed. We need to be able to
use all the technological tools we have.
In that light, there are no communications more important
to the safety of the Homeland than those affiliated with al
Qa'ida with one end in the United States. And so why should our
laws make it more difficult to target the al Qa'ida
communications that are most important to us--those entering or
leaving the United States!\11\
---------------------------------------------------------------------------
\11\ FISA for the 21st Century: Hearing Before the S. Comm. on the
Judiciary, 109th Cong. (2006).
---------------------------------------------------------------------------
As we learned from the 9/11 attacks, the enemy will exploit
any vulnerability in our antiterrorism efforts with
catastrophic consequences. Congress must ensure that the law
enforcement and the intelligence communities are given the
necessary tools and resources to detect and deter credible
threats to our national security before they materialize.
Congress has enhanced the tools law enforcement and
intelligence officers need to fight and win the war against
terrorism by passing the USA PATRIOT Act, the Homeland Security
Act and the Intelligence Reform Act. However, the threat has
not receded, nor has the need to update current law to ensure
that FISA continues to serve the goals for which it was
established.
Congressional hearings demonstrate that FISA must be
streamlined and technology-neutral. Furthermore, testimony
highlighted the need for Congress to return FISA's focus to
protecting Fourth Amendment rights. The General Counsel for the
National Security Agency pointed out that ``the legislative
history of the 1978 statute states: `[t]he history and law
relating to electronic surveillance for `national security'
purposes have revolved around the competing demands of the
President's constitutional powers to gather intelligence deemed
necessary for the security of the nation and the requirements
of the Fourth Amendment.' \12\ With that balance in mind, H.R.
5825, the ``Electronic Surveillance Modernization Act,'' works
to accomplish these goals.
---------------------------------------------------------------------------
\12\ H. Rpt. 95-1283 at p. 15, 95th Congress, 2d Session, June 8,
1978.
---------------------------------------------------------------------------
Hearings
The Committee on the Judiciary Subcommittee on Crime,
Terrorism, and Homeland Security held two hearings on H.R. 5825
on the 6th and 12th of September 2006.
Committee Consideration
On September 20, 2006, the Committee met in open session
and ordered favorably reported the bill, H.R. 5825, with an
amendment, by rollcall vote with 20 ayes and 16 nays, a quorum
being present.
Vote of the Committee
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee notes that the
following rollcall votes occurred during the Committee's
consideration of H.R. 5825:
ROLLCALL NO. 5--DATE: 9-20-06
SUBJECT: Nadler motion to adjourn, which was not agreed to
by a rollcall vote of 14 ayes to 17 nays.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
MR. HYDE....................................
MR. COBLE................................... X
MR. SMITH................................... X
MR. GALLEGLY................................
MR. GOODLATTE...............................
MR. CHABOT.................................. X
MR. LUNGREN................................. X
MR. JENKINS................................. X
MR. CANNON.................................. X
MR. BACHUS.................................. X
MR. INGLIS.................................. X
MR. HOSTETTLER..............................
MR. GREEN................................... X
MR. KELLER..................................
MR. ISSA....................................
MR. FLAKE................................... X
MR. PENCE................................... X
MR. FORBES.................................. X
MR. KING.................................... X
MR. FEENEY.................................. X
MR. FRANKS.................................. X
MR. GOHMERT................................. X
MR. CONYERS................................. X
MR. BERMAN.................................. X
MR. BOUCHER.................................
MR. NADLER.................................. X
MR. SCOTT................................... X
MR. WATT.................................... X
MS. LOFGREN................................. X
MS. JACKSON LEE.............................
MS. WATERS.................................. X
MR. MEEHAN.................................. X
MR. DELAHUNT................................
MR. WEXLER.................................. X
MR. WEINER.................................. X
MR. SCHIFF.................................. X
MS. SANCHEZ................................. X
MR. VAN HOLLEN.............................. X
MRS. WASSERMAN SCHULTZ...................... X
MR. SENSENBRENNER, CHAIRMAN................. X
---------------------------
TOTAL................................... 14 17
------------------------------------------------------------------------
ROLLCALL NO. 6--DATE: 9-20-06
SUBJECT: Roll to record presence of Members to consider
amendments to H.R. 5825--there were 16 Members present.
------------------------------------------------------------------------
------------------------------------------------------------------------
MR. HYDE.........................
MR. COBLE........................ X
MR. SMITH........................ X
MR. GALLEGLY.....................
MR. GOODLATTE....................
MR. CHABOT....................... X
MR. LUNGREN...................... X
MR. JENKINS...................... X
MR. CANNON....................... X
MR. BACHUS....................... X
MR. INGLIS....................... X
MR. HOSTETTLER...................
MR. GREEN........................ X
MR. KELLER.......................
MR. ISSA.........................
MR. FLAKE........................ X
MR. PENCE........................ X
MR. FORBES....................... X
MR. KING......................... X
MR. FEENEY....................... X
MR. FRANKS....................... X
MR. GOHMERT......................
MR. CONYERS......................
MR. BERMAN.......................
MR. BOUCHER......................
MR. NADLER.......................
MR. SCOTT........................
MR. WATT.........................
MS. LOFGREN......................
MS. JACKSON LEE..................
MS. WATERS.......................
MR. MEEHAN.......................
MR. DELAHUNT.....................
MR. WEXLER.......................
MR. WEINER.......................
MR. SCHIFF.......................
MS. SANCHEZ......................
MR. VAN HOLLEN...................
MRS. WASSERMAN SCHULTZ...........
MR. SENSENBRENNER, CHAIRMAN...... X
--------------------------------------
TOTAL........................ 16
------------------------------------------------------------------------
ROLLCALL NO. 7--DATE 9-20-06
SUBJECT: Mr. Lungren amendment to H.R. 5825, which was
agreed to by a rollcall vote of 17 ayes to 2 nays. The
amendment modifies section 2 to narrow the new definition in
H.R. 5825 of an ``Agent of a Foreign Power'' that covers non-
U.S. persons who possess or receive foreign intelligence
information to covering only situations in which the relevant
foreign intelligence information is deemed significant. This
amendment would also amend the bill's modified definition of
``electronic surveillance.'' The amendment also amends section
3 of the bill that modified section 102(a) certification
process of FISA to ensure that it remains focused on foreign
power or agents of those foreign powers. Furthermore, the
amendment modifies section 5 and 6 that streamline the FISA
process to ensure that the court receives the information
necessary. The amendment expands section 5, FISA's emergency
authorization provision, to allow an emergency surveillance
from 5 days prior to court approval up to 7 days.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
MR. HYDE.................................... X
MR. COBLE................................... X
MR. SMITH................................... X
MR. GALLEGLY................................ X
MR. GOODLATTE............................... X
MR. CHABOT.................................. X
MR. LUNGREN................................. X
MR. JENKINS................................. X
MR. CANNON.................................. X
MR. BACHUS.................................. X
MR. INGLIS.................................. X
MR. HOSTETTLER.............................. X
MR. GREEN................................... X
MR. KELLER.................................. X
MR. ISSA.................................... X
MR. FLAKE................................... X
MR. PENCE................................... X
MR. FORBES.................................. X
MR. KING.................................... X
MR. FEENEY.................................. X
MR. FRANKS.................................. X
MR. GOHMERT................................. X
MR. CONYERS.................................
MR. BERMAN..................................
MR. BOUCHER.................................
MR. NADLER..................................
MR. SCOTT...................................
MR. WATT....................................
MR. LOFGREN.................................
MS. JACKSON LEE.............................
MR. WATERS..................................
MR. MEEHAN..................................
MR. DELAHUNT................................
MR. WEXLER..................................
MR. WEINER..................................
MR. SCHIFF..................................
MR. SANCHEZ.................................
MR. VAN HOLLEN..............................
MRS. WASSERMAN SCHULTZ......................
MR. SENSENBRENNER, CHAIRMAN................. X
---------------------------
TOTAL................................... 17 2
------------------------------------------------------------------------
ROLLCALL NO. 8--DATE: 9-20-06
SUBJECT: Mr. Schiff and Mr. Flake offered an amendment in
the nature of a substitute to H.R. 5825, which was not agreed
to by a rollcall vote of 18 ayes to 20 nays. This amendment
would have deemed the Foreign Intelligence Surveillance Act the
sole authorization for electronic surveillance to gather
foreign intelligence information; prohibited future
congressional action to amend this restriction; required the
President to report to the Judiciary and Intelligence
Committees on the Terrorist Surveillance Program; expanded the
judges who the Chief Justice could designate as having
jurisdiction to hear Foreign Intelligence Surveillance cases;
has language to streamline FISA; expanded the period for
applications for orders for emergency electronic surveillance;
and changed the Wartime exception that currently allows
warrantless surveillance to times when Congress declares war or
provides an authorization that contains a specific
authorization for electronic surveillance, among other things.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
MR. HYDE.................................... X
MR. COBLE................................... X
MR. SMITH................................... X
MR. GALLEGLY................................ X
MR. GOODLATTE............................... X
MR. CHABOT.................................. X
MR. LUNGREN................................. X
MR. JENKINS................................. X
MR. CANNON.................................. X
MR. BACHUS.................................. X
MR. INGLIS.................................. X
MR. HOSTETTLER.............................. X
MR. GREEN................................... X
MR. KELLER..................................
MR. ISSA.................................... X
MR. FLAKE................................... X
MR. PENCE................................... X
MR. FORBES.................................. X
MR. KING.................................... X
MR. FEENEY.................................. X
MR. FRANKS.................................. X
MR. GOHMERT................................. X
MR. CONYERS................................. X
MR. BERMAN.................................. X
MR. BOUCHER................................. X
MR. NADLER.................................. X
MR. SCOTT................................... X
MR. WATT.................................... X
MS. LOFGREN................................. X
MS. JACKSON LEE.............................
MS. WATERS.................................. X
MR. MEEHAN.................................. X
MR. DELAHUNT................................ X
MR. WEXLER.................................. X
MR. WEINER.................................. X
MR. SCHIFF.................................. X
MS. SANCHEZ................................. X
MR. VAN HOLLEN.............................. X
MRS. WASSERMAN SCHULTZ......................
MR. SENSENBRENNER, CHAIRMAN................. X
---------------------------
TOTAL................................... 18 20
------------------------------------------------------------------------
ROLLCALL NO. 13--DATE: 9-20-06
SUBJECT: Mr. Cannon offered an amendment to H.R. 5825,
which was agreed to by a rollcall vote of 22 ayes to 16 nays.
This amendment would limit the civil and criminal liability of
telecommunications carriers for any activity arising from, or
relating to, any alleged intelligence program involving
electronic surveillance that the government has certified is,
was, or would be intended to protect the United States from a
terrorist attack. The amendment applies to all pending and
future cases, and allows all such cases to be removed to
Federal court. The amendment also applies the old definition of
``electronic surveillance'' contained in FISA prior to
enactment of the Act.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
MR. HYDE.................................... X
MR. COBLE................................... X
MR. SMITH................................... X
MR. GALLEGLY................................ X
MR. GOODLATTE............................... X
MR. CHABOT.................................. X
MR. LUNGREN................................. X
MR. JENKINS................................. X
MR. CANNON.................................. X
MR. BACHUS.................................. X
MR. INGLIS.................................. X
MR. HOSTETTLER.............................. X
MR. GREEN................................... X
MR. KELLER..................................
MR. ISSA.................................... X
MR. FLAKE................................... X
MR. PENCE................................... X
MR. FORBES.................................. X
MR. KING.................................... X
MR. FEENEY.................................. X
MR. FRANKS.................................. X
MR. GOHMERT................................. X
MR. CONYERS................................. X
MR. BERMAN.................................. X
MR. BOUCHER.................................
MR. NADLER.................................. X
MR. SCOTT................................... X
MR. WATT.................................... X
MS. LOFGREN................................. X
MS. JACKSON LEE............................. X
MS. WATERS.................................. X
MR. MEEHAN.................................. X
MR. DELAHUNT................................ X
MR. WEXLER.................................. X
MR. WEINBER................................. X
MR. SCHIFF.................................. X
MS. SANCHEZ................................. X
MR. VAN HOLLEN.............................. X
MRS. WASSERMAN SCHULTZ...................... X
MR. SENSENBRENNER, CHAIRMAN................. X
---------------------------
TOTAL................................... 22 16
------------------------------------------------------------------------
ROLLCALL NO. 14
SUBJECT: Mr. Nadler offered an amendment to H.R. 5825,
which was not agreed to by a rollcall vote of 14 ayes to 22
nays. This amendment would have allowed any person to seek
injunctive relief to stop an intelligence program involving
electronic surveillance.
------------------------------------------------------------------------
Ayes Nays Present
------------------------------------------------------------------------
MR. HYDE.................................... X
MR. COBLE................................... X
MR. SMITH................................... X
MR. GALLEGLY................................ X
MR. GOODLATTE............................... X
MR. CHABOT.................................. X
MR. LUNGREN................................. X
MR. JENKINS................................. X
MR. CANNON.................................. X
MR. BACHUS.................................. X
MR. INGLIS.................................. X
MR. HOSTETTLER.............................. X
MR. GREEN................................... X
MR. KELLER..................................
MR. ISSA.................................... X
MR. FLAKE................................... X
MR. PENCE................................... X
MR. FORBES.................................. X
MR. KING.................................... X
MR. FEENEY.................................. X
MR. FRANKS.................................. X
MR. GOHMERT................................. X
MR. CONYERS................................. X
MR. BERMAN.................................. X
MR. BOUCHER.................................
MR. NADLER.................................. X
MR. SCOTT................................... X
MR. WATT.................................... X
MS. LOFGREN................................. X
MS. JACKSON LEE............................. X
MS. WATERS.................................. X
MR. MEEHAN..................................
MR. DELAHUNT................................
MR. WEXLER.................................. X
MR. WEINER.................................. X
MR. SCHIFF.................................. X
MS. SANCHEZ................................. X
MR. VAN HOLLEN.............................. X
MRS. WASSERMAN SCHULTZ...................... X
MR. SENSENBRENNER, CHAIRMAN................. X
---------------------------
TOTAL................................... 14 22
------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 5825, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
H.R. 5825--Electronic Surveillance Modernization Act
Summary: H.R. 5825 would modify the rules and procedures
the government must follow to use electronic surveillance
programs in the investigation of international terrorism. The
bill would amend the definition of electronic surveillance
under the Foreign Intelligence Surveillance Act (FISA) to
remove the current distinction between treatment of wire and
radio communications, and to focus FISA protections on domestic
communications. The bill also would expand the ability of the
government to conduct electronic surveillance without a warrant
in certain cases where the target of the surveillance is an
agent of a foreign power.
H.R. 5825 would authorize the President, under certain
conditions, to acquire foreign intelligence information
concerning a person believed to be outside of the United
States. To this end, the bill would authorize the Attorney
General to direct any person or organization with access to
such information to provide the United States government with
all assistance necessary to acquire such intelligence. The bill
directs that such persons shall be compensated at the
prevailing rate for such assistance.
In addition, H.R. 5825 also bakes a number of changes that
could reduce the volume of material required for a FISA
application, including minimizing the detailed descriptions of
both the nature of the foreign intelligence information sought
and the intended method of collection.
CBO has no basis for predicting how the volume or type of
surveillance would be changed if H.R 5825 were enacted.
Furthermore, information regarding surveillance techniques and
their associated costs are classified. For these reasons, CBO
cannot estimate the impact on the federal budget of
implementing H.R. 5825.
H.R. 5825 contains intergovernmental mandates, as defined
in the Unfunded Mandates Reform Act (UMRA), but CBO estimates
that costs to state and local governments would fall well below
the annual threshold established in UMRA ($64 million in 2006,
adjusted annually for inflation).
The bill also contains private-sector mandates as defined
in UMRA, but CBO has no basis for estimating the costs of those
mandates or whether the costs would exceed the annual threshold
established in UMRA ($128 million in 2006, adjusted annually
for inflation).
Estimated cost to the Federal Government: CBO cannot
estimate the budgetary impact of implementing H.R. 5825 because
we cannot predict how the volume or type of surveillance would
change under this legislation. Moreover, information regarding
surveillance technologies and their associated costs are
classified.
Any changes in federal spending under the bill would be
subject to the appropriation of the necessary funds. Enacting
H.R. 5825 would not affect direct spending or revenues.
Estimated impact on state, local, and tribal governments:
H.R. 5825 contains an intergovernmental mandate as defined in
UMRA because it would exempt from liability individuals that
comply with certain federal requests for information. That
exemption would preempt some state and local liability laws.
CBO estimates that such preemption would impose only minimal
costs on those governments.
The bill also contains a mandate because it would allow
federal law enforcement officers to direct public institutions
such as libraries to provide information. Because data about
the number of public entities currently complying with similar
requests and the costs of that compliance is classified, CBO
cannot estimate the total costs state and local governments
would incur to comply with this mandate. Based on information
from a recent survey of public libraries, however, CBO
estimates that the number of requests likely would be small and
that the total costs to those entities would be well below the
annual threshold established in UMRA ($64 million in 2006,
adjusted annually for inflation).
Estimated impact on the private sector: H.R. 5825 contains
private-sector mandates as defined in UMRA by requiring certain
entities to assist the government with electronic surveillance
and providing liability protections for those entities. CBO has
no basis for estimating the costs of the mandates or whether
the costs would exceed the annual threshold established in UMRA
for private-sector mandates ($128 million in 2006, adjusted
annually for inflation).
The bill would authorize the Attorney General, after
obtaining the certification required under the bill, to direct
a person to immediately provide the government with all
information, facilities, and assistance necessary to conduct
electronic surveillance and to acquire foreign intelligence.
Under current law, the Attorney General may direct a ``common
carrier'' to provide such assistance with electronic
surveillance. This bill would expand the scope of entities that
must comply with the government orders in such cases. Because
CBO has no information about how often such entities would be
directed to provide assistance or the costs associated with
providing assistance, CBO has no basis for estimating the costs
of this mandate. The bill also would authorize the government
to compensate, at the prevailing rate, a person for providing
such information, facilities or assistance.
H.R. 5825 also would provide protection from a cause of
action for any person providing information, facilities, or
assistance as well as conducting physical searches in
accordance with a directive from the Attorney General under the
bill. Because the bill would eliminate existing rights to seek
compensation for injury caused by certain acts, it would impose
a private-sector mandate. The cost of the mandate would be the
forgone net value of awards and settlements that could be
received under current law. Because of the lack of information
about both the value of awards in such cases and the number of
claims that would be filed in the absence of this legislation,
CBO cannot estimate the cost of this mandate.
Estimate prepared by: Federal Costs: Jason Wheelock. Impact
on State, Local, and Tribal Governments: Melissa Merrell.
Impact on the Private Sector: Victoria Liu.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
5825 continues the effort by Congress to provide the
Administration with reasonable tools and authorities to prevent
terrorist attacks on our nation, while protecting Fourth
Amendment rights. The bill makes FISA technology neutral and
simplifies the process for obtaining a FISA court order.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article 1, section 8, and the Fourth
Amendment of the Constitution.
Earmarks
Pursuant to H. Res. 1000, adopted by the House on September
14, 2006, the Committee states that this legislation contains
no earmarks.
Section-by-Section Analysis and Discussion
The following discussion describes the bill as reported by
the Committee.
Section 1. Short title
This section sets forth the title of the bill as the
``Electronic Surveillance Modernization Act.''
Section 2. Finding
This section contains a finding about the balance between
congressional and presidential authority.
Section 3. FISA definitions
This section updates definitions in the Foreign
Intelligence Surveillance Act in an effort to update the law
and make it technology neutral. Section 3(a) amends the
definition of ``Agent of a Foreign Power,'' and also the
definition ``Electronic Surveillance.'' Section 50 U.S.C.
1801(b) (the Foreign Intelligence Surveillance Act of 1978)
provides the definitions used to determine the target of
surveillance under FISA. This section of the bill amends the
definition of ``Agent of a Foreign Power'' under section 50
U.S.C. 1801(b)(1) by adding new subparagraph D. Section
1801(b)(1) covers any person other than a United States person,
who--
(A) acts in the United States as an officer or
employee of a foreign power, or as a member of a
foreign power as defined in subsection (a)(4) of this
section;
(B) acts for or on behalf of a foreign power which
engages in clandestine intelligence activities in the
United States contrary to the interests of the United
States, when the circumstances of such person's
presence in the United States indicate that such person
may engage in such activities in the United States, or
when such person knowingly aids or abets any person in
the conduct of such activities or knowingly conspires
with any person to engage in such activities; or
(C) engages in international terrorism or activities
in preparation therefore.
Section 3(a) of the bill would add new subparagraph D to
the definition, which states ``Agent of a foreign power'' for
any person other than a United States person, includes a person
who ``is reasonably expected to possess, control, transmit or
receive foreign intelligence information while in the United
States, provided that the official making the certification
required by section 104(a)(7) deems such foreign intelligence
information to be significant;''. This new definition applies
only to situations in which the relevant foreign intelligence
information is deemed significant.
Section 3(b) of the bill would update the term ``Electronic
Surveillance'' to account for significant changes in technology
since the 1978 passage of FISA. The Committee believes these
changes will return FISA to its original purpose of protecting
Fourth Amendment concerns by focusing on the fundamental
question of whose communications are being targeted and not on
the type of technology used or where communications are
intercepted. The definition turns on targeting a particular
known person (a) believed to be in the United States, (b) in
circumstances in which that person has (i) a reasonable
expectation of privacy and (ii) a warrant would be required for
law enforcement purposes. The Committee strongly believes that
the focus must be on the target to determine what applies and
does not apply and whether fourth amendment privacy rights are
implicated. A non-U.S. person, who is a terrorist in
Afghanistan does not have the same privacy rights of a U.S.
person and our surveillance laws should reflect this.
Furthermore, the government should not be required to use
different surveillance procedures based on whether a terrorist
uses radio communications or wire communications to plot
another attack on U.S. soil.
Section 3(c) would make the definition of ``content'' for
consistent with the definition used in the Federal criminal
code.
Section 4. Authorization for electronic surveillance and other
acquisitions for foreign intelligence purposes
Section 4 of the bill would amend the current section
102(a) certification process to expand the circumstances under
which the government may conduct electronic surveillance
without court order of foreign powers or agents of foreign
powers. The drafters of FISA were trying to carve out Foreign
to Foreign communications, the testimony before the
Subcommittee on Crime, Terrorism, and Homeland Security
explained that technology changes have made it impossible to
use this provision. This section updates the section to cover
agents of a foreign power and make the language technology
neutral.
This section would also provide a new and streamlined
Attorney General certification process permitting the Attorney
General to direct electronic communications service providers
to provide certain information, facilities, or technical
assistance for a period of up to 1 year, provided that the
provision of these resources does not constitute ``electronic
surveillance.'' The new process the manner in which the
information is to be obtained and creates a mechanism forthe
FISA Court to review and enforce the directives as well as allowing for
challenges to the process.
This section of the bill would modernize the law by
providing the AG with the ability to ``require'' rather than
``direct'' common carriers to provide access to communications
or equipment. Since the leaks of classified information to the
press, some companies are concerned about assisting law
enforcement in the war on terrorism without a legal document
directing them to do so.
Section 5. Jurisdiction of the FISA court
This section provides that applications for a court order
under this title are authorized if the President has, by
written authorization, empowered the Attorney General to
approve applications to the court having jurisdiction under
this section, and a judge to whom an application is made may,
notwithstanding any other law, grant an order, in conformity
with section 105, approving electronic surveillance of a
foreign power or an agent of a foreign power for the purpose of
obtaining foreign intelligence information.
Section 6. Applications for court orders
This section of the bill amends section 104 of FISA (50
U.S.C. 1804). Section 104 of FISA covers the process and
circumstances by which an application for a court order
authorizing electronic surveillance for foreign intelligence
purposes may be sought. An application for such a court order
must still be made by a Federal officer in writing on oath or
affirmation to a FISC judge. The application must still be
approved by the Attorney General based upon his finding that
the criteria and requirements set forth in 50 U.S.C. Sec. 1801
et seq. have been met. This section would reduce the volume of
material required for a FISA application.
Section 7. Issuance of an order
This section of the bill would amend section 105 of FISA
(50 U.S.C. Sec. 1805) that covers the issuance of an order
based on the application in section 104 of FISA (50 U.S.C.
Sec. 1804). This section modifies the issuance of order section
to be consistent with the changes in the application process.
Current protections and minimization procedures will remain in
place to protect unintended targets. This section also amends
50 U.S.C. Sec. 1805(f) that covers emergency orders to extend
the period before a judge must be notified of an emergency
employment of electronic surveillance from not more than 72
hours to not more than 158 hours (7 days).
Section 8. Use of information
This section strike the term ``radio'' in effort to make
the statute technology neutral. Additionally section 106(I) of
FISA directs the destruction of unintentionally acquired
information, unless the contents indicate a threat of death or
serious bodily harm to any person. The bill would add to the
exception contents that contain significant foreign
intelligence information.
Section 9. Congressional oversight
Section 9 would strengthen and expand congressional
oversight by amending current law that requires the
Administration to inform the Intelligence Committees to instead
require the Administration to inform each Member of the House
Permanent Select Committee on Intelligence and Senate Select
Committee on Intelligence of electronic surveillance activities
conducted under this Act.
Section 10. International movement of targets
This section provides that an order issued under this
section shall remain in force during the authorized period of
surveillance notwithstanding the absence of the target from the
United States, unless the Government files a motion to
extinguish the order and the court grants the motion.
Section 11. Compliance with court orders and antiterrorism programs
This section would limit the civil and criminal liability
of telecommunications carriers for any activity arising from,
or relating to, any alleged intelligence program involving
electronic surveillance that the government has certified is,
was, or would be intended to protect the United States from a
terrorist attack. The amendment applies to all pending and
future cases, and allows all such cases to be removed to
Federal court. The amendment also applies the old definition of
``electronic surveillance'' contained in FISA prior to
enactment of the Act.
Section 12. Report on minimization procedures
This section would require reporting to Congress that would
permit Congress to conduct efficient and appropriate oversight
of the implementation of FISA modernization at NSA. H.R. 5825
would update the definition of ``electronic surveillance'' in
FISA to help restore the statute to its intended focus on the
surveillance of the domestic communications of persons in the
United States and more generally on situations in which the
constitutional interests are greatest. The bill would limit the
circumstances under which it is necessary to obtain an order
from the FISA Court, thereby help to focus FISA resources on
the circumstances in which those resources are most important.
This Amendment would provide for reporting to Congress--
allowing better congressional oversight--on the treatment of
U.S. person information for several years and would help
Congress see whether the changes have had the desired effects.
Specifically, this section requires the NSA to provide a report
to the intelligence committees on the effectiveness of the
procedures applied to safeguard U.S. person information
acquired by means that constituted ``electronic surveillance''
under the current FISA, but do not constitute ``electronic
surveillance'' under the modernized FISA. The reports would
require:
A description of the ``minimization''
procedures implemented by the NSA to protect this
information pertaining to U.S. Persons;
The number of significant violations of
those procedures; and,
Summary descriptions of those violations.
Section 13. Technical and conforming amendments
This section makes technical corrections to the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
* * * * * * *
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978
AN ACT To authorize electronic surveillance to obtain foreign
intelligence information.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That this
Act may be cited as the ``Foreign Intelligence Surveillance Act
of 1978''.
TABLE OF CONTENTS
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
Sec. 101. Definitions.
* * * * * * *
102A. Authorization for acquisition of foreign intelligence information.
102B. Directives relating to electronic surveillance and other
acquisitions of foreign intelligence information.
* * * * * * *
TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
DEFINITIONS
Sec. 101. As used in this title:
(a) * * *
(b) ``Agent of a foreign power'' means--
(1) any person other than a United States person,
who--
(A) * * *
(B) acts for or on behalf of a foreign power
which engages in clandestine intelligence
activities in the United States contrary to the
interests of the United States, when the
circumstances of such person's presence in the
United States indicate that such person may
engage in such activities in the United States,
or when such person knowingly aids or abets any
person in the conduct of such activities or
knowingly conspires with any person to engage
in such activities; [or]
* * * * * * *
(D) is reasonably expected to possess,
control, transmit, or receive foreign
intelligence information while such person is
in the United States, provided that the
official making the certification required by
section 104(a)(7) deems such foreign
intelligence information to be significant; or
* * * * * * *
[(f) ``Electronic surveillance'' means--
[(1) the acquisition by an electronic, mechanical, or
other surveillance device of the contents of any wire
or radio communications sent by or intended to be
received by a particular, known United States person
who is in the United States, if the contents are
acquired by intentionally targeting that United States
person, under circumstances in which a person has a
reasonable expectation of privacy and a warrant would
be required for law enforcement purposes;
[(2) the acquisition by an electronic, mechanical, or
other surveillance device of the contents of any wire
communication to or from a person in the United States,
without the consent of any party thereto, if such
acquisition occurs in the United States, but does not
include the acquisition of those communications of
computer trespassers that would be permissible under
section 2511(2)(i) of title 18, United States Code;
[(3) the intentional acquisition by an electronic,
mechanical, or other surveillance device of the
contents of any radio communication, under
circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required
for law enforcement purposes, and if both the sender
and all intended recipients are located within the
United States; or
[(4) the installation or use of an electronic,
mechanical, or other surveillance device in the United
States for monitoring to acquire information, other
than from a wire or radio communication, under
circumstances in which a person has a reasonable
expectation of privacy and a warrant would be required
for law enforcement purposes.]
(f) ``Electronic surveillance'' means--
(1) the installation or use of an electronic,
mechanical, or other surveillance device for acquiring
information by intentionally directing surveillance at
a particular known person who is reasonably believed to
be in the United States under circumstances in which
that person has a reasonable expectation of privacy and
a warrant would be required for law enforcement
purposes; or
(2) the intentional acquisition of the contents of
any communication under circumstances in which a person
has a reasonable expectation of privacy and a warrant
would be required for law enforcement purposes, if both
the sender and all intended recipients are reasonably
believed to be located within the United States.
* * * * * * *
(h) ``Minimization procedures'', with respect to electronic
surveillance, means--
(1) * * *
* * * * * * *
(4) notwithstanding paragraphs (1), (2), and (3),
with respect to any electronic surveillance [approved
pursuant to section 102(a),] authorized pursuant to
section 102 or any acquisition authorized pursuant to
section 102A procedures that require that no contents
of any communication to which a United States person is
a party shall be disclosed, disseminated, or used for
any purpose or retained for longer than 72 hours unless
a court order under section 105 is obtained or unless
the Attorney General determines that the information
indicates a threat of death or serious bodily harm to
any person.
* * * * * * *
[(n) ``Contents'', when used with respect to a communication,
includes any information concerning the identity of the parties
to such communications or the existence, substance, purport, or
meaning of that communication.]
(n) ``Contents'', when used with respect to a communication,
includes any information concerning the substance, purport, or
meaning of that communication.
* * * * * * *
[AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE
PURPOSES
[Sec. 102. (a)(1) Notwithstanding any other law, the
President, through the Attorney General, may authorize
electronic surveillance without a court order under this title
to acquire foreign intelligence information for periods of up
to one year if the Attorney General certifies in writing under
oath that--
[(A) the electronic surveillance is solely directed
at--
[(i) the acquisition of the contents of
communications transmitted by means of
communications used exclusively between or
among foreign powers, as defined in section
101(a) (1), (2), or (3); or
[(ii) the acquisition of technical
intelligence, other than the spoken
communications of individuals, from property or
premises under the open and exclusive control
of a foreign power, as defined in section
101(a) (1), (2), or (3);
[(B) there is no substantial likelihood that the
surveillance will acquire the contents of any
communications to which a United States person is a
party; and
[(C) the proposed minimization procedures with
respect to such surveillance meet the definition of
minimization procedures under section 101(h); and
if the Attorney General reports such minimization procedures
and any changes thereto to the House Permanent Select Committee
on Intelligence and the Senate Select Committee on Intelligence
at least thirty days prior to their effective date, unless the
Attorney General determines immediate action is required and
notifies the committees immediately of such minimization
procedures and the reason for their becoming effective
immediately.
[(2) An electronic surveillance authorized by this subsection
may be conducted only in accordance with the Attorney General's
certification and the minimization procedures adopted by him.
The Attorney General shall assess compliance with such
procedures and shall report such assessments to the House
Permanent Select Committee on Intelligence and the Senate
Select Committee on Intelligence under the provisions of
section 108(a).
[(3) The Attorney General shall immediately transmit under
seal to the court established under section 103(a) a copy of
his certification. Such certification shall be maintained under
security measures established by the Chief Justice with the
concurrence of the Attorney General, in consultation with the
Director of National Intelligence, and shall remain sealed
unless--
[(A) an application for a court order with respect to
the surveillance is made under sections 101(h)(4) and
104; or
[(B) the certification is necessary to determine the
legality of the surveillance under section 106(f).
[(4) With respect to electronic surveillance authorized by
this subsection, the Attorney General may direct a specified
communication common carrier to--
[(A) furnish all information, facilities, or
technical assistance necessary to accomplish the
electronic surveillance in such a manner as will
protect its secrecy and produce a minimum of
interference with the services that such carrier is
providing its customers; and
[(B) maintain under security procedures approved by
the Attorney General and the Director of National
Intelligence any records concerning the surveillance or
the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such
carrier for furnishing such aid.
[(b) Applications for a court order under this title are
authorized if the President has, by written authorization,
empowered the Attorney General to approve applications to the
court having jurisdiction under section 103, and a judge to
whom an application is made may, notwithstanding any other law,
grant an order, in conformity with section 105, approving
electronic surveillance of a foreign power or an agent of a
foreign power for the purpose of obtaining foreign intelligence
information, except that the court shall not have jurisdiction
to grant any order approving electronic surveillance directed
solely as described in paragraph (1)(A) of subsection (a)
unless such surveillance may involve the acquisition of
communications of any United States person.]
AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE
PURPOSES
Sec. 102. (a) In General.--Notwithstanding any other law,
the President, acting through the Attorney General, may
authorize electronic surveillance without a court order under
this title to acquire foreign intelligence information for
periods of up to one year if the Attorney General certifies in
writing under oath that--
(1) the electronic surveillance is directed at--
(A) the acquisition of the contents of
communications of foreign powers, as defined in
paragraph (1), (2), or (3) of section 101(a),
or an agent of a foreign power, as defined in
subparagraph (A) or (B) of section 101(b)(1);
or
(B) the acquisition of technical
intelligence, other than the spoken
communications of individuals, from property or
premises under the open and exclusive control
of a foreign power, as defined in paragraph
(1), (2), or (3) of section 101(a); and
(2) the proposed minimization procedures with respect
to such surveillance meet the definition of
minimization procedures under section 101(h);
if the Attorney General reports such minimization procedures
and any changes thereto to the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate at least 30 days prior
to the effective date of such minimization procedures, unless
the Attorney General determines immediate action is required
and notifies the committees immediately of such minimization
procedures and the reason for their becoming effective
immediately.
(b) Minimization Procedures.--An electronic surveillance
authorized by this subsection may be conducted only in
accordance with the Attorney General's certification and the
minimization procedures. The Attorney General shall assess
compliance with such procedures and shall report such
assessments to the Permanent Select Committee on Intelligence
of the House of Representatives and the Select Committee on
Intelligence of the Senate under the provisions of section
108(a).
(c) Submission of Certification.--The Attorney General shall
immediately transmit under seal to the court established under
section 103(a) a copy of his certification. Such certification
shall be maintained under security measures established by the
Chief Justice with the concurrence of the Attorney General, in
consultation with the Director of National Intelligence, and
shall remain sealed unless--
(1) an application for a court order with respect to the
surveillance is made under section 104; or
(2) the certification is necessary to determine the legality
of the surveillance under section 106(f).
AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION
Sec. 102A. (a) In General.--Notwithstanding any other law,
the President, acting through the Attorney General may, for
periods of up to one year, authorize the acquisition of foreign
intelligence information concerning a person reasonably
believed to be outside the United States if the Attorney
General certifies in writing under oath that--
(1) the acquisition does not constitute electronic
surveillance;
(2) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of
a wire or electronic communications service provider,
custodian, or other person (including any officer,
employee, agent, or other specified person of such
service provider, custodian, or other person) who has
access to wire or electronic communications, either as
they are transmitted or while they are stored, or
equipment that is being or may be used to transmit or
store such communications;
(3) a significant purpose of the acquisition is to
obtain foreign intelligence information; and
(4) the proposed minimization procedures with respect
to such acquisition activity meet the definition of
minimization procedures under section 101(h).
(b) Specific Place Not Required.--A certification under
subsection (a) is not required to identify the specific
facilities, places, premises, or property at which the
acquisition of foreign intelligence information will be
directed.
(c) Submission of Certification.--The Attorney General shall
immediately transmit under seal to the court established under
section 103(a) a copy of a certification made under subsection
(a). Such certification shall be maintained under security
measures established by the Chief Justice of the United States
and the Attorney General, in consultation with the Director of
National Intelligence, and shall remain sealed unless the
certification is necessary to determine the legality of the
acquisition under section 102B.
(d) Minimization Procedures.--An acquisition under this
section may be conducted only in accordance with the
certification of the Attorney General and the minimization
procedures adopted by the Attorney General. The Attorney
General shall assess compliance with such procedures and shall
report such assessments to the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate under section 108(a).
DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS
OF FOREIGN INTELLIGENCE INFORMATION
Sec. 102B. (a) Directive.--With respect to an authorization
of electronic surveillance under section 102 or an
authorization of an acquisition under section 102A, the
Attorney General may direct a person to--
(1) immediately provide the Government with all
information, facilities, and assistance necessary to
accomplish the acquisition of foreign intelligence
information in such a manner as will protect the
secrecy of the electronic surveillance or acquisition
and produce a minimum of interference with the services
that such person is providing to the target; and
(2) maintain under security procedures approved by
the Attorney General and the Director of National
Intelligence any records concerning the electronic
surveillance or acquisition or the aid furnished that
such person wishes to maintain.
(b) Compensation.--The Government shall compensate, at the
prevailing rate, a person for providing information,
facilities, or assistance pursuant to subsection (a).
(c) Failure to Comply.--In the case of a failure to comply
with a directive issued pursuant to subsection (a), the
Attorney General may petition the court established under
section 103(a) to compel compliance with the directive. The
court shall issue an order requiring the person or entity to
comply with the directive if it finds that the directive was
issued in accordance with section 102(a) or 102A(a) and is
otherwise lawful. Failure to obey an order of the court may be
punished by the court as contempt of court. Any process under
this section may be served in any judicial district in which
the person or entity may be found.
(d) Review of Petitions.--(1) In General.--(A) Challenge.--A
person receiving a directive issued pursuant to subsection (a)
may challenge the legality of that directive by filing a
petition with the pool established under section 103(e)(1).
(B) Assignment of Judge.--The presiding judge designated
pursuant to section 103(b) shall assign a petition filed under
subparagraph (A) to one of the judges serving in the pool
established by section 103(e)(1). Not later than 24 hours after
the assignment of such petition, the assigned judge shall
conduct an initial review of the directive. If the assigned
judge determines that the petition is frivolous, the assigned
judge shall deny the petition and affirm the directive or any
part of the directive that is the subject of the petition. If
the assigned judge determines the petition is not frivolous,
the assigned judge shall, within 72 hours, consider the
petition in accordance with the procedures established under
section 103(e)(2) and provide a written statement for the
record of the reasons for any determination under this
subsection.
(2) Standard of Review.--A judge considering a petition to
modify or set aside a directive may grant such petition only if
the judge finds that such directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall affirm such directive, and order the recipient to comply
with such directive.
(3) Directives Not Modified.--Any directive not explicitly
modified or set aside under this subsection shall remain in
full effect.
(e) Appeals.--The Government or a person receiving a
directive reviewed pursuant to subsection (d) may file a
petition with the court of review established under section
103(b) for review of the decision issued pursuant to subsection
(d) not later than 7 days after the issuance of such decision.
Such court of review shall have jurisdiction to consider such
petitions and shall provide for the record a written statement
of the reasons for its decision. On petition by the Government
or any person receiving such directive for a writ of
certiorari, the record shall be transmitted under seal to the
Supreme Court, which shall have jurisdiction to review such
decision.
(f) Proceedings.--Judicial proceedings under this section
shall be concluded as expeditiously as possible. The record of
proceedings, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures established by the Chief Justice of the
United States, in consultation with the Attorney General and
the Director of National Intelligence.
(g) Sealed Petitions.--All petitions under this section shall
be filed under seal. In any proceedings under this section, the
court shall, upon request of the Government, review ex parte
and in camera any Government submission, or portions of a
submission, which may include classified information.
(h) Liability.--No cause of action shall lie in any court
against any person for providing any information, facilities,
or assistance in accordance with a directive under this
section.
(i) Use of Information.--Information acquired pursuant to a
directive by the Attorney General under this section concerning
any United States person may be used and disclosed by Federal
officers and employees without the consent of the United States
person only in accordance with the minimization procedures
required by section 102(a) or 102A(a). No otherwise privileged
communication obtained in accordance with, or in violation of,
the provisions of this section shall lose its privileged
character. No information from an electronic surveillance under
section 102 or an acquisition pursuant to section 102A may be
used or disclosed by Federal officers or employees except for
lawful purposes.
(j) Use in Law Enforcement.--No information acquired pursuant
to this section shall be disclosed for law enforcement purposes
unless such disclosure is accompanied by a statement that such
information, or any information derived from such information,
may only be used in a criminal proceeding with the advance
authorization of the Attorney General.
(k) Disclosure in Trial.--If the Government intends to enter
into evidence or otherwise use or disclose in any trial,
hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other
authority of the United States, against an aggrieved person,
any information obtained or derived from an electronic
surveillance conducted under section 102 or an acquisition
authorized pursuant to section 102A, the Government shall,
prior to the trial, hearing, or other proceeding or at a
reasonable time prior to an effort to disclose or use that
information or submit it in evidence, notify the aggrieved
person and the court or other authority in which the
information is to be disclosed or used that the Government
intends to disclose or use such information.
(l) Disclosure in State Trials.--If a State or political
subdivision of a State intends to enter into evidence or
otherwise use or disclose in any trial, hearing, or other
proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of a State or a political
subdivision of a State, against an aggrieved person, any
information obtained or derived from an electronic surveillance
authorized pursuant to section 102 or an acquisition authorized
pursuant to section 102A, the State or political subdivision of
such State shall notify the aggrieved person, the court, or
other authority in which the information is to be disclosed or
used and the Attorney General that the State or political
subdivision intends to disclose or use such information.
(m) Motion to Exclude Evidence.--(1) In General.--Any person
against whom evidence obtained or derived from an electronic
surveillance authorized pursuant to section 102 or an
acquisition authorized pursuant to section 102A is to be, or
has been, used or disclosed in any trial, hearing, or other
proceeding in or before any court, department, officer, agency,
regulatory body, or other authority of the United States, a
State, or a political subdivision thereof, may move to suppress
the evidence obtained or derived from such electronic
surveillance or such acquisition on the grounds that--
(A) the information was unlawfully acquired; or
(B) the electronic surveillance or acquisition was
not properly made in conformity with an authorization
under section 102(a) or 102A(a).
(2) Timing.--A person moving to suppress evidence under
paragraph (1) shall make the motion to suppress the evidence
before the trial, hearing, or other proceeding unless there was
no opportunity to make such a motion or the person was not
aware of the grounds of the motion.
(n) Review of Motions.--If a court or other authority is
notified pursuant to subsection (k) or (l), a motion is made
pursuant to subsection (m), or a motion or request is made by
an aggrieved person pursuant to any other statute or rule of
the United States or any State before any court or other
authority of the United States or any State--
(1) to discover or obtain an Attorney General
directive or other materials relating to an electronic
surveillance authorized pursuant to section 102 or an
acquisition authorized pursuant to section 102A, or
(2) to discover, obtain, or suppress evidence or
information obtained or derived from an electronic
surveillance authorized pursuant to section 102 or an
acquisition authorized pursuant to section 102A,
the United States district court or, where the motion is made
before another authority, the United States district court in
the same district as the authority, shall, notwithstanding any
other law, if the Attorney General files an affidavit under
oath that disclosure or an adversary hearing would harm the
national security of the United States, review in camera and ex
parte the application, order, and such other materials relating
to such electronic surveillance or such acquisition as may be
necessary to determine whether such electronic surveillance or
such acquisition authorized under this section was lawfully
authorized and conducted. In making this determination, the
court may disclose to the aggrieved person, under appropriate
security procedures and protective orders, portions of the
directive or other materials relating to the acquisition only
where such disclosure is necessary to make an accurate
determination of the legality of the acquisition.
(o) Determinations.--If, pursuant to subsection (n), a United
States district court determines that the acquisition
authorized under this section was not lawfully authorized or
conducted, it shall, in accordance with the requirements of
law, suppress the evidence which was unlawfully obtained or
derived or otherwise grant the motion of the aggrieved person.
If the court determines that such acquisition was lawfully
authorized and conducted, it shall deny the motion of the
aggrieved person except to the extent that due process requires
discovery or disclosure.
(p) Binding Orders.--Orders granting motions or requests
under subsection (m), decisions under this section that an
electronic surveillance or an acquisition was not lawfully
authorized or conducted, and orders of the United States
district court requiring review or granting disclosure of
directives, orders, or other materials relating to such
acquisition shall be final orders and binding upon all courts
of the United States and the several States except a United
States court of appeals and the Supreme Court.
(q) Coordination.--(1) In General.--Federal officers who
acquire foreign intelligence information may consult with
Federal law enforcement officers or law enforcement personnel
of a State or political subdivision of a State, including the
chief executive officer of that State or political subdivision
who has the authority to appoint or direct the chief law
enforcement officer of that State or political subdivision, to
coordinate efforts to investigate or protect against--
(A) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
(B) sabotage, international terrorism, or the
development or proliferation of weapons of mass
destruction by a foreign power or an agent of a foreign
power; or
(C) clandestine intelligence activities by an
intelligence service or network of a foreign power or
by an agent of a foreign power.
(2) Certification Required.--Coordination authorized under
paragraph (1) shall not preclude the certification required by
section 102(a) or 102A(a).
(r) Retention of Directives and Orders.--A directive made or
an order granted under this section shall be retained for a
period of not less than 10 years from the date on which such
directive or such order is made.
DESIGNATION OF JUDGES
Sec. 103. (a) * * *
* * * * * * *
(g) Applications for a court order under this title are
authorized if the President has, by written authorization,
empowered the Attorney General to approve applications to the
court having jurisdiction under this section, and a judge to
whom an application is made may, notwithstanding any other law,
grant an order, in conformity with section 105, approving
electronic surveillance of a foreign power or an agent of a
foreign power for the purpose of obtaining foreign intelligence
information.
APPLICATION FOR AN ORDER
Sec. 104. (a) Each application for an order approving
electronic surveillance under this title shall be made by a
Federal officer in writing upon oath or affirmation to a judge
having jurisdiction under section 103. Each application shall
require the approval of the Attorney General based upon his
finding that it satisfies the criteria and requirements of such
application as set forth in this title. It shall include--
(1) * * *
* * * * * * *
(6) a [detailed description] summary description of
the nature of the information sought and the type of
communications or activities to be subjected to the
surveillance;
(7) a certification or certifications by the
Assistant to the President for National Security
Affairs or an executive branch official [or officials
designated by the President from among those executive
officers employed in the area of national security or
defense and appointed by the President with the advice
and consent of the Senate] designated by the President
to authorize electronic surveillance for foreign
intelligence purposes--
(A) * * *
* * * * * * *
(C) that such information cannot reasonably
be obtained by normal investigative techniques;
and
[(D) that designates the type of foreign
intelligence information being sought according
to the categories described in section 101(e);
and]
[(E)] (D) including a statement of the basis
for the certification that--
(i) * * *
* * * * * * *
(8) [a statement of the means] a summary statement of
the means by which the surveillance will be effected
and a statement whether physical entry is required to
effect the surveillance;
(9) [a statement] a summary statement of the facts
concerning all previous applications that have been
made to any judge under this title involving any of the
persons, facilities, or places specified in the
application, and the action taken on each previous
application; and
(10) a statement of the period of time for which the
electronic surveillance is required to be maintained,
and if the nature of the intelligence gathering is such
that the approval of the use of electronic surveillance
under this title should not automatically terminate
when the described type of information has first been
obtained, a description of facts supporting the belief
that additional information of the same type will be
obtained thereafter[; and].
[(11) whenever more than one electronic, mechanical
or other surveillance device is to be used with respect
to a particular proposed electronic surveillance, the
coverage of the devices involved and what minimization
procedures apply to information acquired by each
device.]
[(b) Whenever the target of the electronic surveillance is a
foreign power, as defined in section 101(a) (1), (2), or (3),
and each of the facilities or places at which the surveillance
is directed is owned, leased, or exclusively used by that
foreign power, the application need not contain the information
required by paragraphs (6), (7)(E), (8), and (11) of subsection
(a), but shall state whether physical entry is required to
effect the surveillance and shall contain such information
about the surveillance techniques and communications or other
information concerning United States persons likely to be
obtained as may be necessary to assess the proposed
minimization procedures.]
[(c)] (b) The Attorney General may require any other
affidavit or certification from any other officer in connection
with the application.
[(d)] (c) The judge may require the applicant to furnish such
other information as may be necessary to make the
determinations required by section 105.
[(e)] (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 National Intelligence]
the Director of National Intelligence, or the Director of the
Central Intelligence Agency, the Attorney General shall
personally review under subsection (a) an application under
that subsection for a target described in section 101(b)(2).
* * * * * * *
ISSUANCE OF AN ORDER
Sec. 105. (a) Upon an application made pursuant to
section 104, the judge shall enter an ex parte order as
requested or as modified approving the electronic surveillance
if he finds that--
[(1) the President has authorized the Attorney
General to approve applications for electronic
surveillance for foreign intelligence information;]
[(2)] (1) the application has been made by a Federal
officer and approved by the Attorney General;
[(3)] (2) on the basis of the facts submitted by the
applicant there is probable cause to believe that--
(A) * * *
* * * * * * *
[(4)] (3) the proposed minimization procedures meet
the definition of minimization procedures under section
101(h); and
[(5)] (4) the application which has been filed
contains all statements and certifications required by
section 104 and, if the target is a United States
person, the certification or certifications are not
clearly erroneous on the basis of the statement made
under section [104(a)(7)(E)] 104(a)(6)(D) and any other
information furnished under section [104(d)] 104(c).
* * * * * * *
(c)(1) specifications.--An order approving an electronic
surveillance under this section shall specify--
(A) * * *
* * * * * * *
(D) the means by which the electronic
surveillance will be effected and whether
physical entry will be used to effect the
surveillance; and
(E) the period of time during which the
electronic surveillance is approved[; and].
[(F) whenever more than one electronic,
mechanical, or other surveillance device is to
be used under the order, the authorized
coverage of the devices involved and what
minimization procedures shall apply to
information subject to acquisition by each
device.]
* * * * * * *
[(d) Whenever the target of the electronic surveillance is a
foreign power, as defined in section 101(a) (1), (2), or (3),
and each of the facilities or places at which the surveillance
is directed is owned, leased, or exclusively used by that
foreign power, the order used need not contain the information
required by subparagraphs (C), (D), and (F) of subsection
(c)(1), but shall generally describe the information sought,
the communications or activities to be subjected to the
surveillance, and the type of electronic surveillance involved,
including whether physical entry is required.]
[(e)] (d)(1) An order issued under this section may approve
an electronic surveillance for the period necessary to achieve
its purpose, or for ninety days, whichever is less, except that
(A) an order under this section shall approve an electronic
surveillance targeted against a foreign power, as defined in
section 101(a), (1), (2), or (3), for the period specified in
the application or for one year, whichever is less, and (B) an
order under this Act for a surveillance targeted against an
agent of a foreign power who is not a United States person may
be for the period specified in the application or for 120 days,
whichever is less.
[(2) Extensions of an order issued under this title may be
granted on the same basis as an original order upon an
application for an extension and new findings made in the same
manner as required for an original order, except that (A) an
extension of an order under this Act for a surveillance
targeted against a foreign power, a defined in section 101(a)
(5) or (6), or against a foreign power as defined in section
101(a)(4) that is not a United States person, may be for a
period not to exceed one year if the judge finds probable cause
to believe that no communication of any individual United
States person will be acquired during the period, and (B) an
extension of an order under this Act for a surveillance
targeted against an agent of a foreign power who is not a
United States person may be for a period not to exceed 1 year.]
(2) Extensions of an order issued under this title may be
granted on the same basis as an original order upon an
application for an extension and new findings made in the same
manner as required for an original order and may be for a
period not to exceed one year.
* * * * * * *
(4) An order issued under this section shall remain in force
during the authorized period of surveillance notwithstanding
the absence of the target from the United States, unless the
Government files a motion to extinguish the order and the court
grants the motion.
[(f) Notwithstanding any other provision of this title, when
the Attorney General reasonably determines that--
[(1) an emergency situation exists with respect to
the employment of electronic surveillance to obtain
foreign intelligence information before an order
authorizing such surveillance can with due diligence be
obtained; and
[(2) the factual basis for issuance of an order under
this title to approve such surveillance exists;
he may authorize the emergency employment of electronic
surveillance if a judge having jurisdiction under section 103
is informed by the Attorney General or his designee at the time
of such authorization that the decision has been made to employ
emergency electronic surveillance and if an application in
accordance with this title is made to that judge as soon as
practicable, but not more than 72 hours after the Attorney
General authorizes such surveillance. If the Attorney General
authorizes such emergency employment of electronic
surveillance, he shall require that the minimization procedures
required by this title for the issuance of a judicial order be
followed. In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate when
the information sought is obtained, when the application for
the order is denied, or after the expiration of 72 hours from
the time of authorization by the Attorney General, whichever is
earliest. In the event that such application for approval is
denied, or in any other case where the electronic surveillance
is terminated and no order is issued approving the
surveillance, no information obtained or evidence derived from
such surveillance shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person acquired
from such surveillance shall subsequently be used or disclosed
in any other manner by Federal officers or employees without
the consent of such person, except with the approval of the
Attorney General if the information indicates a threat of death
or serious bodily harm to any person. A denial of the
application made under this subsection may be reviewed as
provided in section 103.]
(e) Notwithstanding any other provision of this title, an
official appointed by the President with the advice and consent
of the Senate that is designated by the President to authorize
electronic surveillance may authorize the emergency employment
of electronic surveillance if--
(1) such official determines that an emergency
situation exists with respect to the employment of
electronic surveillance to obtain foreign intelligence
information before an order authorizing such
surveillance can with due diligence be obtained;
(2) such official determines that the factual basis
for issuance of an order under this title to approve
such electronic surveillance exists;
(3) such official informs the Attorney General of
such electronic surveillance;
(4) the Attorney General or a designee of the
Attorney General informs a judge having jurisdiction
under section 103 of such electronic surveillance as
soon as practicable, but in no case more than 7 days
after the date on which such electronic surveillance is
authorized;
(5) an application in accordance with this title is
made to such judge or another judge having jurisdiction
under section 103 as soon as practicable, but not more
than 7 days after such electronic surveillance is
authorized;
(6) such official requires that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
In the absence of a judicial order approving such electronic
surveillance, the surveillance shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 7 days from the
time of authorization by such official, whichever is earliest.
In the event that the application for approval submitted
pursuant to paragraph (5) is denied, or in any other case where
the electronic surveillance is terminated and no order is
issued approving the surveillance, no information obtained or
evidence derived from such surveillance shall be received in
evidence or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if the
information indicates a threat of death or serious bodily harm
to any person. A denial of the application made pursuant to
paragraph (5) may be reviewed as provided in section 103.
[(g)] (f) Notwithstanding any other provision of this title,
officers, employees, or agents of the United States are
authorized in the normal course of their official duties to
conduct electronic surveillance not targeted against the
communications of any particular person or persons, under
procedures approved by the Attorney General, solely to--
(1) * * *
* * * * * * *
[(h)] (g) Certifications made by the Attorney General
pursuant to section 102(a) and applications made and orders
granted under this title shall be retained for a period of at
least ten years from the date of the certification or
application.
[(i)] (h) No cause of action shall lie in any court against
any provider of [a wire or] an electronic communication
service, landlord, custodian, or other person (including any
officer, employee, agent, or other specified person thereof)
that furnishes any information, facilities, or technical
assistance in accordance with a court order or request for
emergency assistance under this Act for electronic surveillance
or [physical search] physical search or in response to a
certification by the Attorney General or a designee of the
Attorney General seeking information, facilities, or technical
assistance from such person under section 102B.
(i) In any case in which the Government makes an application
to a judge under this title to conduct electronic surveillance
involving communications and the judge grants such application,
the judge shall also authorize the installation and use of pen
registers and trap and trace devices to acquire dialing,
routing, addressing, and signaling information related to such
communications and such dialing, routing, addressing, and
signaling information shall not be subject to minimization
procedures.
USE OF INFORMATION
Sec. 106. (a) * * *
* * * * * * *
(i) In circumstances involving the unintentional acquisition
by an electronic, mechanical, or other surveillance device of
the contents of any [radio] communication, under circumstances
in which a person has a reasonable expectation of privacy and a
warrant would be required for law enforcement purposes, and if
both the sender and all intended recipients are located within
the United States, such contents shall be destroyed upon
recognition, unless the Attorney General determines that the
[contents indicates] contents contain significant foreign
intelligence information or indicate a threat of death or
serious bodily harm to any person.
(j) If an emergency employment of electronic surveillance is
authorized under section [105(e)] 105(d) and a subsequent order
approving the surveillance is not obtained, the judge shall
cause to be served on any United States person named in the
application and on such other United States persons subject to
electronic surveillance as the judge may determine in his
discretion it is in the interest of justice to serve, notice
of--
(1) * * *
* * * * * * *
(k)(1) * * *
(2) Coordination authorized under paragraph (1) shall not
preclude the certification required by section [104(a)(7)(B)]
104(a)(6)(B) or the entry of an order under section 105.
* * * * * * *
CONGRESSIONAL OVERSIGHT
Sec. 108. (a)(1) On a semiannual basis the Attorney
General shall fully inform each member of the House Permanent
Select Committee on Intelligence and the Senate Select
Committee on Intelligence, and the Committee on the Judiciary
of the Senate, concerning all electronic surveillance under
this title. Nothing in this title shall be deemed to limit the
authority and responsibility of the appropriate committees of
each House of Congress to obtain such information as they may
need to carry out their respective functions and duties.
(2) Each report under the first sentence of paragraph
(1) shall include a description of--
(A) * * *
(B) each criminal case in which information
acquired under this Act has been authorized for
use at trial during the period covered by such
report; [and]
(C) the total number of emergency employments
of electronic surveillance under section
[105(f)] 105(e) and the total number of
subsequent orders approving or denying such
electronic surveillance[.]; and
(D) the authority under which the electronic
surveillance is conducted.
(3) Each report submitted under this subsection shall
include reports on electronic surveillance conducted
without a court order.
* * * * * * *
TITLE III--PHYSICAL SEARCHES WITHIN THE UNITED STATES FOR FOREIGN
INTELLIGENCE PURPOSES
* * * * * * *
ISSUANCE OF AN ORDER
Sec. 304. (a) * * *
* * * * * * *
(d)(1) * * *
* * * * * * *
(4) An order issued under this section shall remain in force
during the authorized period of surveillance notwithstanding
the absence of the target from the United States, unless the
Government files a motion to extinguish the order and the court
grants the motion.
* * * * * * *
----------
SECTION 501 OF THE NATIONAL SECURITY ACT OF 1947
GENERAL CONGRESSIONAL OVERSIGHT PROVISIONS
Sec. 501. (a)(1) The President shall ensure that each member
of the congressional intelligence committees are kept fully and
currently informed of the intelligence activities of the United
States, including any significant anticipated intelligence
activity as required by this title.
* * * * * * *
(b) The President shall ensure that any illegal intelligence
activity is reported promptly to each member of the
congressional intelligence committees, as well as any
corrective action that has been taken or is planned in
connection with such illegal activity.
* * * * * * *
Markup Transcript
BUSINESS MEETING
WEDNESDAY, SEPTEMBER 20, 2006
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. (chairman of the committee) presiding.
[Intervening business.]
Chairman Sensenbrenner. Pursuant to notice, I now call up
the bill H.R. 5825, the Electronic Surveillance Modernization
Act, for purposes of--the committee will be in order. Pursuant
to notice, I now call up the bill H.R. 5825, the Electronic
Surveillance Modernization Act, for purposes of markup and move
its favorable recommendation to the House.
Can we have some order here please? Members, please take--
and staff will please take their conversations and press
inquiries out into the hallway.
The Chair moves the favorable recommendation to the House.
Without objection, the bill will be considered as read and open
for amendment at any point.
[The bill, H.R. 5825, follows:]
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes to explain the bill--once there's order. If there is
not order, the Chair is going to start naming names. Thank you.
Today, the committee considers H.R. 5825, the Electronic
Surveillance Modernization Act, a bill introduced by
Representative Heather Wilson, Chairman Hoekstra and myself.
This legislation reflects Congress' ongoing efforts to provide
the administration with reasonable tools and authorities to
prevent terrorist attacks on our Nation.
H.R. 5825 would return the focus of FISA to protecting
those with the fourth amendment expectation of privacy. The
bill makes FISA technology neutral and simplifies the process
for getting a FISA court order.
When FISA was enacted, domestic communications and
international communications were transmitted in a
predominantly different manner. Domestic communications were
transmitted via wire, while international communications were
transmitted via radio. In recent years, international
communications are increasingly transmitted through undersea
cables which were considered wire. This bill recognized that
international communications should be treated the same whether
transmitted by wire technology or radio technology. The bill
would remove the current technology----
Mr. Watt. Mr. Chairman, we are having trouble hearing you.
I am sorry.
Chairman Sensenbrenner. The gentleman from California is
correct.
Mr. Watt. California? Wherever. North Carolina, Mr.
Chairman.
Chairman Sensenbrenner. Well, I was stared at by the
gentleman from California, but you are correct.
Mr. Watt. They can't hear you in North Carolina or
California, Mr. Chairman.
Chairman Sensenbrenner. Well, I am more worried about North
Carolina, because it is closer.
The bill would remove the current technology distinction
between the terms wire and radio communications and would use a
technology neutral definition for electronic surveillance.
It would also specifically require that when a person has a
reasonable expectation of privacy, FISA applies.
The bill also addresses the government's use of warrantless
surveillance to monitor a suspected terrorist's international
communications tape.
On December 16 of last year, based on the leak of
classified information, the New York Times published a story
regarding the terrorist surveillance program operated by the
NSA. The President subsequently acknowledged that he had
authorized the program after 9/11 to intercept the
international communications of those with known links to al
Qaeda and related terrorist organizations.
Notwithstanding the administration's position that this
program is fully consistent with U.S. law and the Constitution,
the President has called on Congress to provide specific
authorization for this program and to make additional changes
to U.S. laws governing electronic surveillance. The bill
attempts to encompass such surveillance without infringing on
the President's authority to protect national security.
The Subcommittee on Crime, Terrorism and Homeland Security
recently held two hearings on the bill and other legislation
relating to the surveillance of electronic communications. At
these hearings, there was broad consensus among witnesses and
members that this bill could be improved, which is why we are
considering it at this markup today.
As I noted earlier, the legislation is a priority for the
President and critical to our national efforts to detect and
disrupt acts of terrorism before they occur on American soil.
I would note this legislation is expected to come up for
consideration on the House floor as early as next week.
Therefore, it is imperative that the committee act on the bill
today lest we risk foregoing our opportunity to improve it.
I yield back the balance of my time and recognize the
gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
This is a very important measure, and I state from the
outset I strongly support intercepting each and every
conversation involving al Qaeda and its supporters. I also
support commonsense updates to the Foreign Intelligence
Surveillance Act, FISA, in order to have our surveillance
capabilities keep pace with modern technologies.
The problem that confronts us in the measure before us is
that it is, one, unconstitutional, two, deeply flawed, and of
highly questionable timing to boot.
First, let's talk about the flaws. The flaw is that it
would radically rewrite FISA, gutting core provisions and
safeguards and exposing millions of innocent Americans to
warrantless surveillance. Among other things, the bill does
nothing to impose limits on unchecked Presidential power to
conduct warrantless surveillance, which has been the subject of
much discussion here of late.
Secondly, it extends FISA's surveillance to broad new
categories of individuals, corporations and the United States
having no connection to foreign governments or terrorist
organizations. The Computer and Communications Industry
Association wrote to the Committee on the Judiciary just
yesterday that the mere possibility of widespread, secret,
unchecked surveillance of the billions of messages that flow
among our customers, especially U.S. citizens, will corrode the
fundamental openness and freedom necessary to our communication
networks.
The next consideration is that it allows warrantless
surveillance of innocent Americans in the United States and
allows the government to maintain records and massive databases
on such individuals in perpetuity. It grants broad new powers
to conduct physical searches on all United States persons, as
well as their relatives, landlords, business communication
providers, without court approval.
In addition, this measure grants expansive new authority to
conduct warrantless surveillance and physical searches without
warrant against any and all Americans after an undefined, armed
or terrorist attack on any American person or property anywhere
in the world for an indefinite duration.
Now, with those--one, two, three, four, five, six--
criticisms of the problems of this legislation, I could stop
right there. There are six reasons to turn this legislation
back on the spot.
But I believe the measure is further unconstitutional for
it contravenes the fourth amendment requirement that
individualized judicial warrants are required for our
government to intercept communications of Americans. The need
is particularly vital in the present case, as the individuals
will never learn of the surveillance.
Further, by eliminating the requirement that the government
show that the warrant is reasonable and narrowly tailored, the
bill flies in the face of the fourth amendment's particularity
requirement.
Finally, I must also question whether the committee even
should be holding this markup at this time. The question of
timing--9 months--almost 9 months after we first learned of the
warrantless surveillance program, there has been no attempt to
conduct an independent inquiry into its legality. Not only has
the Congress failed to conduct any sort of investigation but
the administration summarily rejected all requests for special
counsels as well as reviews by the Department of Justice and
the Department of Defense Inspectors General.
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Conyers. I ask unanimous consent that my remaining
statement go into the record.
Chairman Sensenbrenner. Without objection, so ordered.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Chairman Sensenbrenner. Without objection, all members may
place opening statements in the record at this point.
Are there amendments?
The Chair has an amendment at the desk, which the Clerk
will report.
The Clerk. Mr. Chairman, I have two amendments from you.
Chairman Sensenbrenner. This is the one that is 009 XML.
The Clerk. Mr. Chairman, amendment to H.R. 5825 offered by
Mr. Sensenbrenner.
Strike sections 7 and 8, page 12, line 1 through page 16,
line 21.
[The amendment follows:]
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes.
The amendment strikes sections 7 and 8 of the Wilson bill.
Section 7 would amend the authorization term of during time of
war and section 11 of FISA. Under the Wilson bill, the
President through the Attorney General is authorized to collect
essential surveillance without a court order to acquire foreign
intelligence information for a period of not to exceed 60 days
after an armed attack against the U.S.
The current law allows for warrantless surveillance for 15
days after a declaration of war by the Congress. Notification
to each member of the two intelligence committees is required.
According to the conference report on FISA, the conferees
intended that this period would allow for time for
consideration of any amendment to the Act that may be
appropriate during a wartime emergency. It went on to say that
the conferees expected such amendment would be reported with
recommendations within 7 days and that each House would vote on
the amendment within 7 days thereafter.
The Wilson bill changed the trigger for declaration of war
to an armed attack and extended the time for warrantless
surveillance to 60 days. Section 11 was not intended to provide
adequate time for the government to conduct warrantless
surveillance in a time of war but rather for Congress to act
expeditiously after such a declaration of war to amend the law.
Furthermore, the new language is vague and does not allow
the Intelligence Committee to work to prevent another attack if
they have to wait for an armed attack.
The amendment strikes section 7. Section 8 would govern
electronic surveillance after a terrorist attack that would not
be covered under FISA. The President, acting through the
Attorney General, would have the authority to authorize
electronic surveillance to acquire foreign intelligence
information without a court order under specified
circumstances.
Under this authority, the President would have to submit
notification to each member of the Intelligence Committees and
of the FISA court. Notification must state that the U.S. has
been the subject of a terrorist attack and must identify the
terrorist organizations or affiliates of terrorist
organizations believed to be responsible for the terrorist
attacks.
For someone to be the target of such surveillance there
must be a reason to believe that such a person is communicating
with a terrorist organization that is reasonably believed to be
responsible for the attack. There must be reasonable cause to
believe the information obtained from the electronic
surveillance may be foreign intelligence information. This
section of the bill would require recertification every 45 days
and minimization procedures for electronic surveillance
conducted under the section. The language again requires the
government to wait until after attack.
The mission of the government is to prevent another
terrorist attack, and that is the very purpose of the terrorism
surveillance programs. At the hearings held by the Subcommittee
on Crime, members and witnesses expressed a concern that this
trigger would not allow them to prevent an attack. These
sections, I believe, should be stricken, while better language
should be crafted.
I yield back the balance of my time.
The gentleman from Michigan.
Mr. Conyers. Mr. Chairman, I find that striking section 7--
I rise in support of the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes, and more if he needs it.
Mr. Conyers. I appreciate the amendment. Because, by
eliminating these two sections, you have taken care of at least
one, maybe two points of the criticism that I offered initially
against the bill.
So I support the amendment and return the balance of my
time.
Chairman Sensenbrenner. The question is on the amendment
offered by the Chair. Those in favor will say aye; those
opposed, no.
The ayes appear to have it. The ayes have it. The amendment
is agreed to.
Are there further amendments?
Mr. Lungren. Mr. Chairman.
Chairman Sensenbrenner. Gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I have an amendment at the desk.
Mr. Conyers. Point of procedure, Mr. Chairman. Don't we go
to the other side?
Chairman Sensenbrenner. Well, the gentleman from California
is very pushy, so he has been recognized.
The Clerk will report the amendment.
The Clerk. Amendment to H.R. 5825 offered by Mr. Dan E.
Lungren of California.
Strike section 2, page 1, line 6, through page 3, line 20,
and insert the following:
Section 2. FISA definitions.
Mr. Lungren. Mr. Chairman, I ask unanimous consent that
the amendment be considered----
Chairman Sensenbrenner. Just wait till the amendment is
distributed, because it is somewhat lengthy.
The clerk will continue to report.
The Clerk. Subsection (a). Agent of a Foreign Power.
Subsection (b)(1) of section 101 of the Foreign Intelligence
Surveillance Act of 1978, 50 U.S. Code----
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman will be recognized
for 5 minutes.
Mr. Lungren. Thank you very much, Mr. Chairman.
I support the goals to update, streamline and make FISA
technology neutral. At the same time, I am concerned that the
bill's language needed to be amended to ensure that the
safeguards built in FISA remain and that the original purpose
of FISA is clarified.
Section 2(a) of the bill would add a new category to the
definition of a, quote, agent of a foreign power, end quote, to
ensure that the definition captures non-U.S. persons who
possess or receive foreign intelligence information. While I
support amending this definition, my amendment would narrow the
application of this provision to situations in which the
relevant foreign intelligence information is deemed, quote,
significant.
Section 2(b) would amend FISA's definition of electronic
surveillance in a manner that would return FISA to its original
purpose by focusing on where and on whom the surveillance is
being directed. The definition, as I would amend it, would turn
on targeting on a particular known person, A, believed to be in
the United States, B, in circumstances which that person has,
(i), a reasonable expectation of privacy or, (ii), a warrant
would be required for law enforcement purposes.
The testimony that we heard at subcommittee from both the
Department of Justice witness and the NSA witness suggested the
need for what is essentially a technical amendment to the bill
in order to clarify this definition by emphasizing that the key
is, quote, intentionally directing the surveillance at a
particular known person, end quote.
I believe we need to focus on the target to determine what
applies and does not apply and whether fourth amendment privacy
rights are implicated. A non-U.S. person who is a terrorist in
Afghanistan does not have the same privacy rights of U.S.
person, and our surveillance laws should reflect that, and I
believe my amendment does so.
Section 3 of the bill would amend the current section
102(a) certification process to expand the circumstances under
which the government may conduct electronic surveillance
without court order of foreign powers or agents of foreign
powers. Currently, under 102(a)(1)(A), the only time the
government could use this authority was when the means of
communications are exclusively used by a foreign power or
foreign power to a foreign power or controlled by the foreign
power. In 1978, this technology was standard.
When communications were controlled by a foreign power,
there was no reason to go to a FISA court, because it was
technical intelligence under the open and exclusive control of
a foreign power or was a foreign power talking to another
foreign power. Consequently, there was little chance that a
U.S. person would be involved.
Now communications are done differently, where the
technology used to communicate could be a U.S.-controlled
telecommunications company or a U.S. person or U.S. persons
working at the embassy.
The drafters of FISA were trying to carve out foreign to
foreign communications. The testimony before the subcommittee
explained that this technology has changed, making it
impossible to use this provision. So H.R. 5825 expands this
section to cover agents of a foreign power and makes the
application of the law technology neutral.
I share the sentiment embodied in the language. However, I
believe it goes too far and that we should restrict the
expansion of the current law to agents of foreign powers that
are actually connected to foreign powers.
Section 3 of the bill would also provide a new and
streamlined Attorney General certification process, permitting
the Attorney General to direct electronic communication service
providers to provide certain information to facilities or
technical assistance for period of up to 1 year, provided that
the provision of these resources does not constitute electronic
surveillance.
I think if we are going to add such a process we need to
restrict the manner in which the information is to be obtained
and create a mechanism for the FISA court to review and enforce
the directives as well as allowing for challenges to the
process, and that is what my amendment would seek to do.
Section 4 would significantly streamline the FISA
application process, would eliminate requirements to provide
certain categories of information currently necessary to a FISA
application. I would hope that we all support this objective,
but I would suggest that some of the application requirements
that 5825 would eliminate, such as detailed statements
concerning prior FISA applications involving the target, and
the means by which surveillance will be affected, is too blunt
of an instrument rather than eliminate the requirements of----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Lungren. Mr. Chairman, I ask unanimous consent for 3
additional minutes
Chairman Sensenbrenner. Without objection.
Mr. Lungren. Rather than eliminate the requirement of this
information, which is in the bill as introduced, my amendment
would require general summary statements to be brought forward.
Section 5 of the bill would require the maximum duration of
FISA orders to be 1 year. There was no argument made at the
subcommittee for this change. Furthermore, the other changes we
have made to streamline the process render such a change
unnecessary, and my amendment would strike this change in the
law.
Section 5 of H.R. 5825 would also amend FISA's emergency
authorization provision by allowing surveillance to continue
for 5 days prior to court approval. I agreed with the
administration's testimony, and expanded duration for emergency
application of 7 days, and also allow senior officials rather
than the Attorney General solely to authorize such
surveillance.
Finally, section 10 of the bill would continue a FISA-
ordered coverage on a target even after they left the United
States unless the government filed a motion to extinguish the
order and the court granted the motion, and that is section 10
of this.
So what I have attempted to do is to respond to a number of
the concerns expressed by the minority side, shared by a number
on the majority side, that the bill as originally introduced,
while going in the right direction overall, probably went a
little too far. And so what we have tried to do is narrow the
focus, put it more towards the direction I think we all talked
about in our discussions after the two hearings that we had.
I think it still goes in the direction the administration
wants. I believe it gives them what they need but I believe it
maintains a number of the protections that we have in the past,
on a bipartisan basis, put into the FISA law, and I would ask
support for the amendment.
Chairman Sensenbrenner. The time of the gentleman has
expired. For what purpose does the gentleman seek recognition?
Mr. Conyers. I rise to strike the requisite number of
words.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. Mr. Chairman, I would like to ask the author
of this amendment, Mr. Lungren, how many sections are changed
within these 25 pages of amendment?
How many places?
Mr. Lungren. Section 2(a), 2(b), section 3.
Mr. Conyers. Just the number. Sounds like it is about a
dozen to me.
Mr. Lungren. Six sections in the bill, in the underlying
bill.
Mr. Conyers. Has the gentleman from California had an
opportunity to discuss this with other members of the Committee
on the judiciary?
Mr. Lungren. We have had discussions through staff with
other members on the Judiciary, as I understand it. And also I
might say that most of these were brought up to me during our
hearings by members of the committee, including members of the
minority. I was trying to respond to specific concerns raised
where people articulated the position that they believed we
needed to bring FISA up to date, we needed to make it
technology neutral, but they thought that the language in the
underlying bill went beyond what was necessary.
Mr. Conyers. Well, what I would like to ask the gentleman,
I thank him for his summary of what he was trying to do, which
is something I think we would agree with, but I would like the
gentleman to know that no one on my staff remembers being
discussed--having any discussions about the provision, and it
would seem to me that in the fullness of our cooperation that
if the gentleman could withdraw this amendment--he counted six
changes I think--it seemed to me that there were more sections
cited in his presentation. We may be able to respond favorably
to the objectives stated by the gentleman from California or,
in the alternative, we might be able to form amendments that
would make it more acceptable to us.
But at this point it is impossible for this member to gain
any appreciation of the significant changes that the gentleman
has attempted. And so I would ask that this be withheld until
we have had an opportunity to examine this with the care that
is required. This did not come up during the hearings. There
was no markup in the subcommittee. And we are confronted with
what I think are huge changes, some of which may be favorable
to the majority of the members of the subcommittee.
Mr. Lungren. Would the gentleman yield? The only thing I
can say in response is I am not, obviously, responsible for the
timetable set as we are dealing with--in the ending weeks of a
Congress. I attended and even chaired one of the hearings that
we had on this, trying to make sure that everybody had ample
opportunity to ask questions, made a conscientious effort to
try and identify the areas of concerns of members on both
sides, particularly on the minority side, and have tried to
work with staff to develop this. I am under the time gun as
well. And so I am worried if I withdraw this and don't bring it
at this time, we may miss the opportunity for our committee to
actually work it out.
Mr. Conyers. Let me just ask the gentlemen, could we break
this down into individual amendments that we can consider one
at a time? Six different sections being modified, 25 pages I
think is--this sounds like a ``trust me'' amendment if I have
ever seen one.
Mr. Lungren. You and I have always trusted one another.
Mr. Conyers. I would love to trust you, but not in 25
pages' worth.
Mr. Schiff. Would the gentleman yield?
Mr. Conyers. I ask for unanimous consent to proceed for an
additional minute.
Chairman Sensenbrenner. Without objection.
Mr. Schiff. I thank the gentleman for yielding. Mr. Flake
and I have been working on a substitute amendment that we are
prepared to offer today that addresses a lot of the concerns
shared on both side of the aisle as well, and I could go
through the provisions of that amendment and ask how it differs
from what you are proposing, Mr. Lungren. I don't know if we
are going to have the opportunity to go through all the details
of your proposal, all the details of ours, and all the details
of the base bill.
This illustrates, I think, the difficulty in marking up a
bill like this on such short order when we have just had the
first classified hearing on these issues less than a week ago.
In the substitute that Mr. Flake and I are offering, we
provide that the authorization to use military force is not an
exception to FISA. We provide that FISA is the exclusive means
by which domestic electronic surveillance for foreign
intelligence purposes can be conducted.
Mr. Conyers. Mr. Speaker, I ask for 2 additional minutes.
Chairman Sensenbrenner. Without objection.
Mr. Conyers. I continue to yield to the gentleman.
Mr. Schiff. I thank the gentleman. We require that the
President submit to the Intelligence Committee and to the
Judiciary Committee a classified report on the TSB program and
any other program that is used for intelligence purposes that
is outside of FISA.
We also provide and authorize the Chief Justice of the
Supreme Court to appoint additional FISA court judges.
Mr. Conyers. Could I ask my friend to suspend, because I
want to offer a motion to table so that your amendment can be
brought--your substitute, without being prejudiced if this
happens to go through.
Mr. Schiff. I appreciate it. Whatever the procedural
mechanism. I think the reason we are having such trouble here
today is that, unlike the PATRIOT bill procedure where the
judiciary--the Justice Department came to this committee with a
proposal that we could analyze in detail, that we had weeks,
particularly with the reauthorization to go over and study, the
Justice Department hasn't come to this committee for a bill
changing FISA. It has been 5 years since 9/11. The Justice
Department hasn't come to us for a bill. But we have different
member bills.
Mr. Conyers. Mr. Chairman, I make a motion to table the
Lungren amendment.
Chairman Sensenbrenner. The Chair would observe that the
motion is not timely made. Under House rule 16, clause 4, paren
(e) paren (ii) the motion to table only lies before debate
begins on an amendment or a motion. The question----
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. The time of the gentleman from
Michigan has expired. For what purposes does the gentleman from
New York seek recognition?
Mr. Nadler. In view of the fact that none of us have any
idea what is in this bill, and we should consider it properly,
I move we stand adjourned until tomorrow morning.
Chairman Sensenbrenner. The question is on the motion to
adjourn.
Those in favor will say aye.
Opposed, no.
The noes appear to have it.
Mr. Nadler. rollcall vote.
Chairman Sensenbrenner. rollcall vote is ordered on the
motion to adjourn.
Those in favor of adjourning will, as your names are
called, answer aye.
Those opposed, no.
The Clerk will call the roll.
The Clerk. Mr. Hyde.
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Mr. Smith.
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly.
[No response.]
The Clerk. Mr. Goodlatte.
[No response.]
The Clerk. Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Mr. Jenkins.
[No response.]
The Clerk. Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus.
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Inglis.
Mr. Inglis. Pass.
The Clerk. Mr. Inglis, pass.
Mr. Hostettler.
[No response.]
The Clerk. Mr. Green.
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller.
[No response.]
The Clerk. Mr. Issa.
[No response.]
The Clerk. Mr. Flake.
Mr. Flake. Pass.
The Clerk. Mr. Flake, pass.
Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes.
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King.
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mr. Franks.
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert.
Mr. Gohmert. How am I recorded?
The Clerk. Mr. Chairman, Mr. Gohmert has not yet voted.
Mr. Gohmert. Then I vote no.
The Clerk. Mr. Gohmert, no.
Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt.
Mr. Watt. Mr. Watt, aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren.
[No response.]
The Clerk. Ms. Jackson Lee.
[No response.]
The Clerk. Ms. Waters.
[No response.]
The Clerk. Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
[No response.]
The Clerk. Mr. Weiner.
Mr. Weiner. No.
The Clerk. Mr. Weiner, no.
Mr. Schiff.
[No response.]
The Clerk. Ms. Sanchez.
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Mr. Van Hollen.
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Ms. Wasserman Schultz.
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye.
Mr. Chairman.
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote? The gentleman from South Carolina, Mr. Inglis.
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Flake.
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Chairman Sensenbrenner. The gentleman from Tennessee, Mr.
Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Berman.
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Meehan.
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Chairman Sensenbrenner. Further members who wish to cast or
their change vote? The Clerk will report.
Mr. Watt. Mr. Chairman, might I inquire how I am listed?
The Clerk. Mr. Watt is recorded as aye.
Chairman Sensenbrenner. Gentlewoman from California, Ms.
Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye.
Chairman Sensenbrenner. The Clerk will report.
The gentleman from Florida, Mr. Wexler.
Mr. Wexler. Yes
The Clerk. Mr. Wexler, aye.
Chairman Sensenbrenner. The Clerk will report.
The other gentlelady from California, Ms. Waters.
Ms. Waters. Yes.
The Clerk. Ms. Waters, aye.
Mr. Weiner. Mr. Chairman, how am I recorded?
Chairman Sensenbrenner. The gentleman from New York.
The Clerk. Mr. Chairman, Mr. Weiner is recorded as no.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Chairman Sensenbrenner. The Clerk will report.
The Clerk. Mr. Chairman, there are 14 ayes and 17 nays.
Chairman Sensenbrenner. The motion to adjourn is not agreed
to. The question is on agreeing to the amendment offered----
Mr. Weiner. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from New York----
Mr. Weiner. Make a point of order. A quorum is not present.
Chairman Sensenbrenner. The Clerk will call the roll.
The Clerk. Mr. Hyde.
[No response.]
The Clerk. Mr. Coble.
[No response.]
The Clerk. Mr. Smith.
[No response.]
The Clerk. Mr. Gallegly.
[No response.]
The Clerk. Mr. Goodlatte.
[No response.]
The Clerk. Mr. Chabot.
Mr. Chabot. Present.
The Clerk. Mr. Chabot, present.
Mr. Lungren.
Mr. Lungren. Present.
The Clerk. Mr. Lungren, present.
Mr. Jenkins.
[No response.]
The Clerk. Mr. Cannon.
[No response.]
The Clerk. Mr. Bachus.
Mr. Cannon. Present.
The Clerk. Mr. Cannon present.
Mr. Bachus.
[No response.]
The Clerk. Mr. Inglis.
Mr. Inglis. Present.
The Clerk. Mr. Inglis, present. Mr. Hostettler.
[No response.]
The Clerk. Mr. Green.
Mr. Green. Present.
The Clerk. Mr. Green, present.
Mr. Keller.
[No response.]
The Clerk. Mr. Issa.
[No response.]
The Clerk. Mr. Flake.
Mr. Flake. Present.
The Clerk. Mr. Flake, present.
Mr. Pence.
Mr. Pence. Present.
The Clerk. Mr. Pence, present.
Mr. Forbes.
Mr. Forbes. Present.
The Clerk. Mr. Forbes, present.
Mr. King.
Mr. King. Present.
The Clerk. Mr. King, present.
Mr. Feeney.
Mr. Feeney. Present.
The Clerk. Mr. Feeney, present.
Mr. Franks.
Mr. Franks. Present.
The Clerk. Mr. Franks, present.
Mr. Gohmert.
[No response.]
The Clerk. Mr. Conyers.
[No response.]
The Clerk. Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
[No response.]
The Clerk. Mr. Scott.
[No response.]
The Clerk. Mr. Watt.
[No response.]
The Clerk. Ms. Lofgren.
[No response.]
The Clerk. Ms. Jackson Lee.
[No response.]
The Clerk. Ms. Waters.
[No response.]
The Clerk. Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
[No response.]
The Clerk. Mr. Weiner.
Mr. Feeney. Mr. Chairman, a point of order.
Chairman Sensenbrenner. The Clerk will continue calling the
roll.
The Clerk. Mr. Schiff.
[No response.]
The Clerk. Ms. Sanchez.
[No response.]
The Clerk. Mr. Van Hollen.
[No response.]
The Clerk. Ms. Wasserman Schultz.
[No response.]
The Clerk. Mr. Chairman.
Chairman Sensenbrenner. Present.
Members in the Chamber who wish to record their presence.
The gentleman from Texas, Mr. Smith.
Mr. Smith. I vote present.
The Clerk. Present.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Coble.
Mr. Coble. Present.
The Clerk. Mr. Coble, present.
Chairman Sensenbrenner. The gentleman from Alabama, Mr.
Bachus.
Mr. Bachus. Present.
The Clerk. Mr. Bachus, present.
Chairman Sensenbrenner. The gentleman from Tennessee, Mr.
Jenkins.
Mr. Jenkins. Present.
The Clerk. Mr. Jenkins, present.
Mr. Feeney. Mr. Chairman, a point of order with respect to
the rollcall.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Feeney. The gentleman from New York was here to raise
the absence of a quorum. Is his presence imputed as here for
purposes of the quorum?
Chairman Sensenbrenner. No.
The Clerk will report.
The Clerk. Mr. Chairman, there are 16 members present.
Chairman Sensenbrenner. A working quorum is present. The
question is on agreeing to the amendment offered by the
gentleman from California, Mr. Lungren.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it and the
amendment is agreed to.
Mr. Flake. I request a rollcall vote.
Chairman Sensenbrenner. Rollcall is ordered. Those in favor
of the Lungren amendment will, as your names are called, answer
aye. Those opposed, no.
And the Clerk will call the roll.
The Clerk. Mr. Hyde.
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly.
[No response.]
The Clerk. Mr. Goodlatte.
[No response.]
The Clerk. Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Mr. Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Mr. Inglis.
[No response.]
The Clerk. Mr. Hostettler.
[No response.]
The Clerk. Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Mr. Keller.
[No response.]
The Clerk. Mr. Issa.
[No response.]
The Clerk. Mr. Flake.
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye.
Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye.
Mr. King.
Mr. King. Aye.
The Clerk. Mr. King, aye.
Mr. Feeney.
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye.
Mr. Franks.
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye.
Mr. Gohmert.
[No response.]
The Clerk. Mr. Conyers.
[No response.]
The Clerk. Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
[No response.]
The Clerk. Mr. Scott.
[No response.]
The Clerk. Mr. Watt.
[No response.]
The Clerk. Ms. Lofgren.
[No response.]
The Clerk. Ms. Jackson Lee.
[No response.]
The Clerk. Ms. Waters.
[No response.]
The Clerk. Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
[No response.]
The Clerk. Mr. Weiner.
[No response.]
The Clerk. Mr. Schiff.
[No response.]
The Clerk. Ms. Sanchez.
[No response.]
The Clerk. Mr. Van Hollen.
[No response.]
The Clerk. Ms. Wasserman Schultz.
[No response.]
The Clerk. Mr. Chairman.
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote. The gentleman from South Carolina, Mr.
Inglis.
Mr. Inglis. No.
The Clerk. Mr. Inglis, no.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes? The gentleman from California, Mr. Issa.
Mr. Issa. No.
The Clerk. Mr. Issa, no. On the Lungren amendment, yes.
Chairman Sensenbrenner. The other gentleman from
California, Mr. Gallegly.
Mr. Gallegly. Yes.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote? If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 17 ayes and 2 nays.
Chairman Sensenbrenner. The amendment is agreed to.
Are there further amendments? If there are no further
amendments----
Mr. Flake. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Arizona seek recognition?
Mr. Feeney. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. Who has an amendment at the desk?
The Clerk will report the Feeney amendment.
Mr. Feeney. The gentleman from Arizona sought recognition
but I do have an amendment at the desk.
Chairman Sensenbrenner. Does the gentleman from Arizona
have an amendment?
I was talking about the other gentleman from Arizona. You
sought recognition. For what purpose?
Mr. Flake. I will defer to the other gentleman from
Arizona.
Chairman Sensenbrenner. Let's go first to the Feeney
amendment. The Clerk will report the Feeney amendment.
The Clerk. Amendment to H.R. 5825 offered by Mr. Feeney of
Florida.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and the gentleman from Florida is recognized
for 5 minutes.
[The amendment follows:]
Mr. Feeney. Thank you. This is an important bill to give
the proper tools to our law enforcement and Intelligence
Community to detect and prevent terrorism. However, there are
some legitimate fourth amendment concerns, especially when you
only have one branch of government, the executive, involved in
reviewing its own policies without another branch being
involved.
What this amendment does is to provide for reporting to
Congress on an annual basis so we can have better congressional
oversight on the treatment of U.S. persons information for
several years and would help Congress see whether the changes
that we have made with this bill have had the desired effects.
Specifically, the report on an annual basis would be to the
U.S. Intelligence Committee and the United States House, the
United States Senate. It would require a description of the
minimization procedures implemented by the NSA to protect the
information pertaining to U.S. persons, the number of
significant violations of those procedures, and summary
descriptions for each and every one of those violations.
Mr. Chairman, I think this requirement would permit
Congress to conduct efficient and effective oversight of this
program and would commend it to my colleagues.
Chairman Sensenbrenner. Does the gentleman yield back? The
question is on agreeing to the Feeney amendment.
Those in favor say aye.
Opposed, no.
The ayes appear to have it. The ayes have it and the
amendment is agreed to.
We now have how many votes? Three votes. Without objection,
the committee stands recessed until immediately after the third
vote. Members should please come back promptly and the
committee stands in recess.
[Recess.]
Chairman Sensenbrenner. The committee will be in order. A
working quorum is present.
When the committee recessed for the votes, pending was a
motion by the Chair to report the bill H.R. 5825 favorably. The
bill was considered as read and open for amendment at any point
and several amendments had been agreed to. Are there further
amendments?
Mr. Schiff. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from California, Mr. Schiff, seek recognition?
Mr. Schiff. I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment in the nature of a substitute to H.R.
5825 offered by Mr. Schiff of California and Mr. Flake of
Arizona: Strike all after the enacting clause and insert the
following.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and the gentleman from California is
recognized for 5 minutes.
[The amendment follows:]
Mr. Schiff. Mr. Chairman, Ranking Member, members of the
committee, today I offer a bipartisan amendment----
Chairman Sensenbrenner. The committee will be in order and
the chatter in the room shall adjourn. The committee will not
adjourn.
The gentleman from California may continue.
Mr. Schiff. Thank you, Mr. Chairman. Today I offer a
bipartisan amendment with Representative Flake of Arizona to
address the issue before us today. This amendment recognizes
two important principles: first, that our government must have
all the tools necessary and all the authority required to
pursue al Qaeda and other terrorists who would seek to harm our
country; and second, that we are a Nation of laws and that
concern over administrative burden as we use all the tools
available to fight terrorism should not supersede devotion to
the Constitution and the expectation of privacy of each United
States citizen.
While the President possesses the inherent authority to
engage in electronic surveillance of the enemy outside the
country, Congress possesses the authority to regulate foreign
intelligence surveillance within the United States. And in
fact, Congress has spoken in this area through the Foreign
Intelligence Surveillance Act.
When Congress passed this statute it intended to provide
the sole authority for such surveillance on American soil. Our
amendment reinforces existing law, that the government must
obtain a court order when U.S. persons are targeted or
surveillance occurs in the United States.
When Mr. Flake and I questioned the Attorney General when
he testified before this committee in April, 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 that 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.
The Schiff-Flake substitute responds to these issues that
have been raised by officials at NSA and the Department of
Justice over the last several months in testimony to Congress.
First, addressing the point Mr. Deitz made in committee, we
explicitly make clear that foreign-to-foreign communications
are outside of FISA and don't require court order. If a
communication to which a U.S. person is a party is
inadvertently intercepted, minimization procedures approved by
the Attorney General should be followed.
Second, we extend the FISA emergency exception from 72
hours to 168 hours, 7 days. This permits law enforcement to
initiate surveillance in an emergency situation before going to
the FISA court for a warrant.
If the current 72 hours has been sufficient for the 5 years
since 9/11, surely 7 days can be considered a significant
improvement. This authority can also be used to thwart imminent
attacks.
Third, we expand the FISA wartime exception to provide
that, in addition to a declaration of war by Congress, that the
authorization to use military force can also trigger the FISA
wartime exception for the purposes of allowing 15 days of
warrantless surveillance if there is an explicit provision
authorizing electronic surveillance under that FISA provision.
Finally, our amendment streamlines the FISA application
process, provides authorization to appoint additional FISA
judges and additional personnel at DOJ, the FBI and NSA to
ensure speed and agility in drafting and considering FISA order
applications.
Electronic surveillance of al Qaeda operatives and others
seeking to harm our country must continue. It simply can and
should comply with FISA, and I urge my colleagues to support
this amendment.
Let me go through very quickly the specific provisions.
First, the authorization to use military force is not an
exception to FISA. Second, we reiterate that FISA is the
exclusive means by which domestic electronic surveillance for
intelligence purposes can be conducted. Third, we require
information to be provided to the Intelligence and Judiciary
Committees, in classified form, on the TSP program or any other
program involving electronic surveillance of U.S. persons in
the United States for foreign intelligence that is outside of
FISA.
Fifth, we authorize the Chief Justice of the United States
to appoint additional FISA court judges if necessary.
Six, we streamline the FISA application process.
Seventh, we authorize emergency electronic surveillance for
up to 7 days.
Eighth, we enhance the surveillance authority in wartime by
providing that FISA, through the authorization, use military
force when the explicit references made can be triggered.
Ninth, we make it clear that the acquisition of
communications between foreigner to foreigner----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Schiff. Would the gentleman give me 30 additional
seconds?
Finally, tenth, we authorize the Foreign Intelligence
Surveillance Court, DOJ, FBI, and NSA to hire additional staff
for the preparation and consideration of applications for
electronic surveillance.
These are the ten steps that are outlined in the substitute
bill, and I would urge its favorable consideration.
Chairman Sensenbrenner. The time of the gentleman has once
again expired. For what purposes does the gentleman from Utah,
Mr. Cannon, seek recognition?
Mr. Cannon. Strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Cannon. Thank you, Mr. Chairman. I am just trying to
understand this amendment. And if the gentleman from California
would indulge me, looking at page 5, line 9, line starting (a),
Exclusive Means. Would the gentleman mind looking that through
and explaining it, because it sounds to me like this does
extraordinarily change the nature of what we are doing here.
Mr. Schiff. Would you restate the provision you are
referring to?
Mr. Cannon. On page 5 of your amendment, line 9, paren (a),
Exclusive Means: Notwithstanding any other provision of law the
Foreign Intelligence Surveillance Act of 1978, et cetera, shall
be the exclusive means by which electronic surveillance for the
purposes of gathering foreign intelligence information may be
conducted.
Mr. Schiff. Yes. As I was relating, we are reiterating that
the Foreign Intelligence Surveillance Act is the exclusive
means by which domestic electronic surveillance can be
conducted. This is designed to distinguished between foreign-
to-foreign communications which are within the prerogative of
the executive and which Mr. Deitz testified were problematic
under FISA because if the communication touched down in the
United States or was gathered in the United States,
notwithstanding the fact it was between two foreigners on
foreign soil, that FISA was implicated. We want to make it
clear FISA is not implicated in those circumstances.
But where we are talking about the surveillance of
Americans on American soil, that if it is not authorized by
FISA, it is not authorized. Because none of us on this
committee know what is in the President's terrorist
surveillance program.
Mr. Cannon. Reclaiming my time. If you have an American
citizen who has decided to become a terrorist and is residing
in a Middle Eastern country but communicates by means of the
Internet, a voice on the Internet, and uses a server that is in
the United States, you are saying that that communication can't
be intercepted except under FISA.
Mr. Schiff. No. What I am saying is that when you have
surveillance of Americans on American soil, that that is
exclusively within FISA. So if we are conducting surveillance
today under the TSP program, it needs to be brought under FISA
if we are surveilling Americans on American soil.
Mr. Cannon. Reclaiming my time and looking forward to help
understand this. Section 4 Disclosure Requirements, line 23 of
page 5, just skip a paragraph, it says: Report--as soon as
practicable, et cetera, the President shall submit to the
Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives, and for the
House and also for the Senate, and then it lists substantial
things that need to be--do we want to change the nature of this
committee? And in my office, I have a new office in Rayburn, I
have a safe that is locked open so we won't get something
locked in. Are we all going to have to have safes and use this
committee and use information in this committee the way the
Intelligence Committees operate?
Mr. Schiff. If the gentleman would yield. No, I wouldn't
recommend anyone bring classified information out of the
classified setting. What this provides, though, is that if we
are the Judiciary Committee and we have jurisdiction over the
U.S. Constitution and we are not informed of when surveillance
is being done of Americans without a court order, we cannot
uphold our constitutional duty to ensure that its provisions
are being adhered to.
Now, members of this committee have gone to classified
briefings, some members decided not to go. Every member has to
make that decision for themselves. But for my own part, if I am
being asked to authorize a program or if I am being asked to
amend FISA or make wholesale changes to the law without even
knowing why they are necessary, I don't think I can do my
constitutional duty. So I do think that things that are
within----
Mr. Cannon. Reclaiming my time, since I think it is quickly
advancing. Let me just say that we are sort of like an
appellate court here. I don't think we ought to be involved in
the facts as--particularly as suggested by this amendment. I
think this amendment does substantial damage to the underlying
bill, and I encourage my colleagues to reject this amendment
and I yield back the balance of my time.
Chairman Sensenbrenner. The question is on the--for what
purposes does----
Mr. Nadler. Strike the last word.
I will be very brief. I will say this provision does not do
substantial damage. It basically restates current law and says
with respect to people in the United States, FISA is exclusive.
I yield back.
Chairman Sensenbrenner. For what purposes does the
gentleman from Arizona seek recognition?
Mr. Flake. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Flake. I thank the Chairman. Let me just state it from
my perspective from this side of the aisle. I believe that the
war on terrorism is going to be won or lost through the
gathering of intelligence. That is the most important thing we
can do. The last thing I want to do is to hamstring the
administration in ways that they shouldn't be hamstrung.
I believe--and none of us know what is going on in the
TSP--but my guess is it is some pretty important stuff and we
ought to be glad that some intelligence there is being
gathered. But for those of us who believe that there is likely
vital intelligence being gathered, what happens 2 years from
now? Are we to assume the war on terrorism is going to be won
in the next 2 years? Because if it isn't, unless we have
institutionalized this program under FISA, the next President
could simply say, I don't want to exercise my Article II
powers, and this program is done away with. What kind of gaps
would that leave in our intelligence?
I have yet to hear a persuasive case why we can't
institutionalize the TSP or any other surveillance programs
that are going on under FISA. And I think that is the effort
here, that is what we are trying to do. We simply cannot
continue to have two programs, or more than two, one run on the
books and one run off the books. And unless there is some kind
of exclusivity provision that, Mr. Cannon, you alluded to or
pointed out, unless we have an exclusivity provision that
actually works, we will continue to have an on-the-book program
and an off-the-book program. And we can make all kind of
changes, we can spend until tomorrow this time, or all week,
making changes to streamline FISA or to make it more nimble or
to react better, and it will mean nothing because if the
President simply says, I have authority to go outside of it,
then he will go outside of it and we won't even know what is
going on.
Are we a committee of oversight or not? Do we have some
jurisdiction here? I would argue that we do. And if we do, we
ought to ensure that the tools are given for the President to
conduct necessary surveillance. And that is what we have
attempted to do within this.
Mr. Schiff did a great job explaining what the bill is
about. It simply makes it easier. We have been given compelling
evidence that FISA needs to be changed. There are some changes;
we wish we would have heard about these changes sooner, I might
add, but changes need to be made. We are willing to make those
changes. But what I think we should not be willing to do is to
concede that we will have a program run off the books.
I can say, as one who believes that we need to gather
intelligence, I worry tremendously about what will happen 2
years from now if we haven't institutionalized this program, if
we leave it up to the next President to decide whether or not
we ought to be gathering this intelligence. So with that, I
yield back.
Chairman Sensenbrenner. For what purpose does the gentleman
from Michigan seek recognition?
Mr. Conyers. I rise in support of----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Conyers. I will be brief because I think when we get
through with the several amendments, we will be able to dispose
of this, hopefully, successfully and we will be finished for
the day. So I join with those who compliment the gentleman from
California and the gentleman from Arizona on some
reasonableness here.
The most important thing to me is that we extend the
emergency provision from 72 hours to 168 hours; from 3 days to
7 days. We make it clear that there is an exclusivity provision
in this measure that means that domestic electronic
surveillance for foreign intelligence purposes will be
controlled under FISA. It will be specific. And we also make
clear that the authorization for the use of military force is
not an exception.
We increase the forces here. We put in more manpower, we
improve the system, we try to get more personnel for speed and
agility. And for that reason, I urge the members on both sides
of the committee to support this substitute, and I return the
unused time.
Chairman Sensenbrenner. The question is on agreeing to the
amendment in the nature of a substitute offered by the
gentleman from California, Mr. Schiff.
Those in favor will say aye; opposed, no.
The noes appear to have it.
Record vote is ordered.
Those in favor of the Schiff amendment in the nature of a
substitute will, as your name is called, answer aye.
Those opposed, no.
And the Clerk will call the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Mr. Coble.
[No response.]
The Clerk. Mr. Smith.
Mr. Smith. No.
The Clerk. Mr. Smith, no.
Mr. Gallegly.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly, no.
Mr. Goodlatte.
[No response.]
The Clerk. Mr. Chabot.
[No response.]
The Clerk. Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
The Clerk. Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no.
Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus.
Mr. Bachus. No.
The Clerk. Mr. Bachus, no.
Mr. Inglis.
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye.
Mr. Hostettler.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no.
Mr. Green.
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller.
[No response.]
The Clerk. Mr. Issa.
Mr. Issa. No.
The Clerk. Mr. Issa, no.
Mr. Flake.
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye.
Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes.
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King.
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney.
The Clerk. Mr. Feeney, no.
Mr. Franks.
Mr. Franks. No.
The Clerk. Mr. Franks, no.
Mr. Gohmert.
Mr. Gohmert. No.
The Clerk. Mr. Gohmert, no.
Mr. Conyers.
Mr. Conyers. Ate.
The Clerk. Mr. Conyers, aye.
Mr. Berman.
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Mr. Boucher.
Mr. Boucher. Aye.
The Clerk. Mr. Boucher, aye.
Mr. Nadler.
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt.
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye.
Ms. Jackson Lee.
[No response.]
The Clerk. Ms. Waters.
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan.
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Mr. Delahunt.
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye.
Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff.
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez.
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Mr. Van Hollen.
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Ms. Wasserman Schultz.
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye.
Mr. Chairman.
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Members who wish to cast or change
their vote. The gentleman from North Carolina, Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. Further members who wish to cast or
change their vote. If not, the Clerk will report.
For what purpose does the gentlewoman from Florida, Ms.
Wasserman Schultz, seek recognition?
Mrs. Wasserman Schultz. How am I recorded?
The Clerk. Mr. Chairman, Ms. Wasserman Schultz is recorded
as aye.
Mr. Chairman, there are 18 ayes and 20 nays.
Chairman Sensenbrenner. The amendment in the nature of a
substitute is not agreed to.
[Intervening business.]
Chairman Sensenbrenner. The unfinished business of the
committee is the motion to report the bill, 5825.
Mr. Cannon. Mr. Chairman.
Chairman Sensenbrenner. When the committee broke for the
last series of votes, the Chair made a motion to report the
bill favorably. The bill was considered as read and open for
amendment at any point. Several amendments had been adopted.
Are there further amendments?
Mr. Cannon. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from----
Mr. Cannon. Mr. Chairman, I have an amendment at the desk.
Mr. Nadler. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. A point of order is reserved. The
Clerk will report the amendment.
The Clerk. Mr. Chairman, I have two Cannon amendments.
Chairman Sensenbrenner. Which one does the gentleman wish
reported?
Mr. Cannon. I think we shall show you which amendment is
appropriate.
Chairman Sensenbrenner. Well, the Clerk has to report the
amendment.
Mr. Cannon. They have the appropriate amendment.
Chairman Sensenbrenner. There are two amendments, gentleman
from Utah. Which one do you wish to offer?
Mr. Cannon. The one that the clerk has, is now passing out.
The Clerk. Amendment to H.R. 5825 offered by Mr. Cannon of
Utah. Page 18, after line three insert the following new
section. Section 10 compliance with court orders and----
[The amendment follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read and subject to the reservation of the
gentleman from New York. The gentleman from Utah is recognized
for 5 minutes.
Mr. Cannon. Thank you, Mr. Chairman. The debate before us
centers on what the legitimate roles of Congress and the
executive branch are in terms of foreign policy and
intelligence gathering matters. It is an issue that goes to the
heart of the Constitution.
Mr. Nadler. Mr. Chairman, I cannot hear the gentleman.
Mr. Cannon. Is it the mike that is inadequate, my voice, or
too much noise in the background? I can't hear you.
The Constitution leaves little doubt that the President is
expected to have the primary role of conducting foreign policy,
but Congress has a role and the debate today indulges us in
defining that role. This amendment does not delve into the
constitutional relationship between Congress and the Executive.
This amendment deals with an issue of fairness. It deals with
the issue of whether individuals or companies that comply with
government orders are liable to third parties for following
these orders.
This amendment would eliminate the 60-plus lawsuits that
have been filed because companies complied with government
orders. Absent an effective immunity provision that allows a
company to avoid these legal quagmires, an individual or
company will be reluctant to cooperate with any authorized
government surveillance program, and that will severely
undercut this country's terror fighting capabilities and the
safety of our constituents. Should these claims proceed to
judgment, the financial liabilities could add up to hundreds of
billions of dollars, enough to destroy any industry. Although I
do not believe these suits will succeed, the defense costs
alone will be considerable. But what is worse is the chilling
effect on compliance for future requests. We can argue what the
law is, but we all agree that we should encourage compliance
with our laws.
This amendment will separate questionable litigation from a
national security imperative and focuses our attention where it
should be, which is what is constitutionally allowed. If the
overall program is illegal or unconstitutional, that is for us
and the courts to decide. Judges who are sought out in a forum
shopping frenzy should not issue decisions that could undermine
our protection from a future terrorist attack through the
revelation of classified sources or methods.
If you oppose the program administered by this
administration, if you don't believe in the constitutional
theories regarding the executive's authority, that is an issue
for discussion. That is our right as Members of Congress to
debate. But it does not relate to this amendment.
I urge support of this amendment, which will provide
liability protection for those who comply with the
certification from the Attorney General. I reserve the balance
of my time. I yield back.
Chairman Sensenbrenner. Does the gentleman from New York
insist on his point of order?
Mr. Nadler. Yes, I do.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Nadler. Mr. Chairman, I raise a point of order against
the amendment because it is not germane to the bill. This
amendment would exempt from liability any individual or
corporation for any activity arising from any intelligence
program certified by the Attorney General to be intended to
protect the United States from a terrorist attack, not just
FISA. The amendment is nongermane for several reasons.
First, the bill is limited to the Foreign Intelligence
Surveillance Act only and does not extend to any other
intelligence program that may arise, as does this amendment.
Second, the underlying bill does not pertain to or raise
any liability issues arising under intelligence programs. In
these two regards the amendment introduces new issues outside
the scope of the bill and, as such, is nongermane.
Chairman Sensenbrenner. The Chair is prepared to rule. The
underlying bill pertains only to FISA. The amendment by the
gentleman from Utah extends liability protection to private
parties for, quote, an activity arising from or relating to the
provision of an element of the Intelligence Community, unquote.
As such, the amendment exceeds the scope of the underlying bill
and is thus nongermane, and the Chair sustains the point of
order.
Are there further amendments.
Mr. Cannon. Mr. Chairman, I have an amendment at the desk.
It is the other amendment.
Chairman Sensenbrenner. The Clerk will report the other
amendment.
The Clerk. Amendment to H.R. 5820.
Mr. Nadler. Mr. Chairman, I reserve a point of order on
this amendment.
Chairman Sensenbrenner. The point order is reserved.
The Clerk. Offered by Mr. Cannon of Utah. Page 18 after
line three insert the following new section. Section 10.
[The amendment follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read, and the gentleman from Utah is recognized
for 5 minutes subject to the reservation of the gentleman from
New York.
Mr. Cannon. This amendment is similar to the prior
amendment but it strikes out the language beginning on the
latter part of line 9, ``the provision,'' to ``and ending on,''
as you will see in the amendment that is being passed out. And
I think that that goes to the heart of the gentleman's concern
about germaneness, and I move its favorable passage.
Chairman Sensenbrenner. Does the gentleman from New York
insist on his point of order?
Mr. Nadler. Yes, Mr. Chairman, I do.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Nadler. Mr. Chairman, it is the same point of order as
the other amendment. The change in the amendment does not cure
the problem. It still says against any person for an activity
arising from or relating to any alleged intelligence program
involving electronic surveillance, the Attorney General, et
cetera. Whether or not it is under FISA, so that, and remember,
we did not make FISA exclusive in the underlying bill as some
of us wanted to. So there are or could be intelligence programs
outside of FISA which fall under the scope of this amendment
which do not fall within the scope of the bill. Therefore, the
bill, the amendment exceeds the scope of the bill.
Chairman Sensenbrenner. The Chair is prepared to rule.
Mr. Nadler. And is therefore not germane.
Chairman Sensenbrenner. The Chair is prepared to rule. The
Chair does not believe that the doctored amendment that is
before us exceeds the scope of the bill because on page two,
lines 8 through 13, inclusive, the term electronic surveillance
as defined is the meaning given the term by the Foreign
Intelligence Surveillance Act, as amended. So the Chair
overrules the point of order.
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia seek recognition?
Mr. Scott. To raise another point of order that this bill
has a removal clause in it under page two, line three that
isn't part of the original bill.
Chairman Sensenbrenner. Well, that point of order is not
timely because it was raised and not reserved after the
gentleman from Utah was recognized to explain the amendment.
The question is on the amendment offered by the gentleman
from Utah, Mr. Cannon. Those in favor will say aye. Opposed,
no. The ayes appear to have it. The ayes have it and the
amendment is agreed to.
Mr. Watt. Recorded vote, Mr. Chairman.
Chairman Sensenbrenner. A recorded vote has been requested
by the gentleman from North Carolina. Those in favor of the
amendment offered by the gentleman from Utah, Mr. Cannon, will,
as your names are called, answer aye. Those opposed, no. And
the Clerk will call the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. Aye.
The Clerk. Mr. Hyde votes aye.
Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble votes aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith votes aye.
Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly votes aye.
Mr. Goodlatte.
[No response.]
The Clerk.Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot votes aye.
Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. Lungren votes aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins votes aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon votes aye.
Mr. Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus votes aye.
Mr. Inglis.
Mr. Inglis. Aye.
The Clerk. Mr. Inglis votes aye.
Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler votes aye.
Mr. Green.
[No response.]
The Clerk. Mr. Keller.
[No response.]
The Clerk. Mr. Issa.
Mr. Issa. Aye.
The Clerk. Mr. Issa votes aye.
Mr. Flake.
Mr. Flake. Aye.
The Clerk. Mr. Flake votes aye.
Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence votes aye.
Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes votes aye.
Mr. King.
Mr. King. Aye.
The Clerk. Mr. King votes aye.
Mr. Feeney.
Mr. Feeney. Aye.
The Clerk. Mr. Feeney votes aye.
Mr. Franks.
Mr. Franks. Aye.
The Clerk. Mr. Franks votes aye.
Mr. Gohmert.
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert votes aye.
Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers votes no.
Mr. Berman.
Mr. Berman. No.
The Clerk. Mr. Berman votes no.
Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
Mr. Nadler. No.
The Clerk. Mr. Nadler votes no.
Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott votes no.
Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt votes no.
Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Ms. Lofgren votes no.
Ms. Jackson Lee.
[No response.]
The Clerk. Ms. Waters.
Ms. Waters. No.
The Clerk. Ms. Waters votes no.
Mr. Meehan.
Mr. Meehan. No.
The Clerk. Mr. Meehan votes no.
Mr. Delahunt.
Mr. Delahunt. No.
The Clerk. Mr. Delahunt votes no.
Mr. Wexler.
Mr. Wexler. No.
The Clerk. Mr. Wexler votes no.
Mr. Weiner.
Mr. Weiner. No.
The Clerk. Mr. Weiner votes no.
Mr. Schiff.
Mr. Schiff. No.
The Clerk. Mr. Schiff votes no.
Ms. Sanchez.
Ms. Sanchez. No.
The Clerk. Ms. Sanchez votes no.
Mr. Van Hollen.
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen votes no.
Ms. Wasserman Schultz.
[No response.]
The Clerk. Mr. Chairman.
Chairman Sensenbrenner. Aye.
Chairman Sensenbrenner. Members who wish to cast or change
their vote. Gentleman from Wisconsin, Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Chairman Sensenbrenner. Gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Ms. Jackson Lee. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no.
Chairman Sensenbrenner. The Clerk will report.
The Clerk. Mr. Chairman, there are 22 ayes and 16 nays.
Chairman Sensenbrenner. Then the amendment is agreed to.
Are there further amendments?
Ms. Jackson Lee. Mr. Chairman, I have an amendment at the
desk.
Chairman Sensenbrenner. The gentlewoman from Texas has an
amendment at the desk which will the Clerk will report.
Mr. Smith. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. A point of order is reserved by the
gentleman from Texas.
The Clerk. Amendment to H.R. 5825, offered by Ms. Jackson
Lee of Texas. Strike section 9(a) on page 17, lines one through
three and insert the following: One, in subsection (a) one by
striking the house permanent select Committee on Intelligence
and all that follows through of the Senate and inserting----
Ms. Jackson Lee. I am sorry. I think you have the wrong
amendment. This has to do with the inclusion the judiciary
committee. 001 X M L. Section 11.
The Clerk. Amendment to H.R. 5825, offered by Ms. Jackson
Lee. At the end of the bill add the following new section,
section 11 reiteration of FISA as executive authorization of
electronic surveillance for foreign intelligence purposes,
subsection (a), in general notwithstanding----
[The information follows:]
Chairman Sensenbrenner. Subject to the reservation of the
gentleman from Texas, the gentlewoman from Texas is recognized
for 5 minutes.
Ms. Jackson Lee. I thank the distinguished chairman. I am
going to take a little bit of my time. This is a very simple
amendment.
Mr. Scott. Mr. Chairman, has the amendment been passed out?
Chairman Sensenbrenner. I have it.
Mr. Watt. We don't.
Ms. Jackson Lee. Section 11. She read the correct
amendment.
Chairman Sensenbrenner. Does the gentleman wish to have the
Clerk rereport the amendment?
Mr. Scott. I think it is on the way. No, Mr. Chairman. I
think it is on the way now. We just hadn't received it. So I'll
withdraw my reservation.
Chairman Sensenbrenner. The gentlewoman from Texas is
recognized for 5 minutes subject to the reservation.
Ms. Jackson Lee. Mr. Chairman, if I might, I want to make
sure they have the correct amendment. It is an amendment to--
yes, thank you. The amendment presently before the members
reiterates that FISA is the exclusive procedure and authority
for wiretapping Americans to gather foreign intelligence. In
the absence of the reaffirmation of this critically important
principle, H.R. 5825 would have the unacceptable consequence of
rewarding the President's refusal to follow FISA by exempting
him from following these procedures. The effect of this would
be to allow any President to make up his own rules. This would
make tangible President Nixon's 1977 claim to David Frost, when
the President does it it means that it is not illegal.
Without my amendment, Mr. Chairman, H.R. 5825 would undo
the Congress manifest intent in passing FISA which was designed
to curb the practice by which the executive branch may conduct
warrantless electronic surveillance on its own unilateral
determination. It is more than a truism that real security for
the American people comes not from deferring to the President,
but from preserving the separation of powers. My amendment does
precisely that and is for this reason worthy of support. I
would ask my colleagues to leave the rights of the American
people within the protection of the independent Federal
judiciary, and ask my colleagues to support the amendment.
Chairman Sensenbrenner. Does the gentleman from Texas
insist on his point of order?
Mr. Smith. Mr. Chairman, I'll withdraw my point of order.
Chairman Sensenbrenner. Before recognizing Mr. Lungren, let
me say that the next votes are anticipated on the House floor
about 5:30. The Rules Committee will be meeting on the
immigration bills that will be coming up in the House tomorrow.
If we do not get this bill reported out by 5:30 then we will
reconvene here at 7:00 tonight to finish our work on this bill.
Members are advised to temper their remarks if they don't want
to come back.
For what purpose does the gentleman from California seek
recognition?
Mr. Lungren. Mr. Chairman, in opposition to the amendment.
Chairman Sensenbrenner. And the gentleman's recognized for
5 minutes.
Mr. Lungren. I will temper my remarks if possible. Mr.
Chairman, this amendment, as I read it, would require all
electronic surveillance to be done under FISA. As such, it is
so broadly drafted that it could prevent our soldiers from
intercepting battlefield communications in Iraq or al Qaeda
phone calls originating outside the United States to persons
inside the U.S. because it could do grave damage to the safety
of our military and our ability to detect and deter terrorist
threats, even though that may not be intent of the gentlelady
from Texas, I would urge my colleagues not only to look at this
amendment carefully but to oppose it.
The amendment is over broad and could prohibit the
intercept of enemy communications on the battlefield. As
drafted, the amendment would require all electronic
surveillance to be conducted pursuant to FISA. The FISA
definition of electronic surveillance sets forth four
circumstances under which the government must obtain a warrant
in order to intercept communications. This amendment would mean
that those four circumstances are the only means by which the
executive branch may obtain any electronic surveillance. By
implication, any other electronic surveillance which does not
fall within those four circumstances would be prohibited. Thus,
if an insurgent in Iraq uses a cell phone to communicate with
his terrorist friends and that call is the requisite nexus with
the United States, our military would be required to obtain a
FISA warrant to intercept the call or any such interception
would be illegal.
I don't believe that is what we intend, and I certainty
can't imagine that we intend our soldiers to obtain FISA
warrants before engaging in that activity. Additionally, if the
call does not have the requisite FISA nexus, any interception
would be illegal since FISA would be exclusive means, according
to the terms of the amendment. I am certain that is not what
the drafters of the amendment intended; however, that is what
we have here.
The amendment also impermissibly restricts the President's
recognized inherent authority to collect intelligence needed to
protect the U.S. The amendment also hamstrings the Nation's
traditional longstanding inherent constitutional authority as
Commander in Chief. The President's traditional and
longstanding inherent constitutional authority to collect the
intelligence needed to protect our Nation.
As I have tried to point out from time to time, as we have
dealt with this issue from the beginning of our republic and
throughout recent history, Presidents have acted pursuant to
their inherent authority to collect foreign intelligence
without a warrant. Congress has acknowledged repeatedly that
such authority exists. Our Federal courts have repeatedly
reaffirmed the power of the President to act independent of
Congressional authorization in the area of foreign
intelligence. The FISA court itself has recognized this. No one
can serious doubt that framers vested in the Commander in Chief
all authority inherent to protect our Nation and citizens from
foreign threats. In reliance on this constitutional principle
Presidents, Democrat and Republican, throughout history have
utilized their inherent authority to collect foreign
intelligence information within the U.S. using warrantless
surveillance. Beginning in at least 1940 Presidents Roosevelt,
Truman, Johnson and Carter, as well as Republican Presidents,
ordered warrantless wiretaps to protect our citizens against
spies, saboteurs and foreign subversives. This is not and
should not be a partisan principle. It is one that recognize
the need of Presidents to act with deliberate speed and in
keeping with their constitutional responsibilities to protect
our citizens as they have in the past from Nazi saboteurs,
Russian spies and the likes of the terrorists that we see today
who seek to do harm against the United States.
Indeed, Presidents of both parties have recognized the
importance of the Executive's inherent authority. While FISA
itself was first debated in 1978, Attorney General Griffin Bell
made it clear that President Carter acknowledged and intended
to preserve his inherent authority to protect Americans against
foreign threats. Bell testified that the FISA bill Congress had
drafted failed to recognize the President's inherent authority,
but that the regulation did not and indeed could not take away
the power from the President under the Constitution. President
Clinton's Justice Department apparently took the same view.
Jamie Gorelich, Deputy Attorney General in the Clinton
administration, testified in 1994 during FISA reauthorization
that the Department of Justice believes and case history
supports the President has inherent authority to conduct
warrantless physical searches for foreign intelligence
purposes. And the long and short of it is, this amendment, if
adopted, would change the history, would be inconsistent with
the history of the United States and the authority of the
President as recognized by Presidents, both Democrat and
Republican, and Supreme Court decisions as well as FISA Court
decisions.
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from California, Ms. Lofgren, seek recognition?
Ms. Lofgren. To strike the last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Lofgren. And to yield to my colleague from Texas.
Ms. Jackson Lee. I thank the distinguished gentlewoman. I
hope, as my good friend from California on the other side of
the aisle seemed to not be able to contain his glee, I would
like to put a more serious approach and spin on this. And with
all of his commentary, this is a restatement of basic existing
law. And all that it says is that it rejects the elimination of
exclusivity of the procedures of FISA to collect electronic
data and electronic surveillance. And we have made the
argument, those of us who find fault with this legislation,
that in fact you are able to secure surveillance with present
FISA and certain additional reform. Mr. Lungren has suggested
that that is not possible and cited a litany of high commentary
from Republican and Democratic Presidents. But Mr. Schiff
provided a reasonable response to how the protection of
intelligence could also include the protection of the rights of
Americans. So now attempt to do it by amendment. And this
amendment is not overbroad. It is not difficult to understand.
It simply restores the idea of FISA being the main focus of the
FISA--excuse me, of electronic surveillance.
So I would indicate to my colleagues that this amendment is
reasonable; it is constrained and it is serious. And
unfortunately, as we abolish the Constitution in this
particular committee at this time, we are not able to see the
forest for the trees. And I yield back.
Mr. Cannon. Would the gentlewoman yield?
Ms. Lofgren. I would be happy to yield further to Mr.
Schiff.
Mr. Schiff. I thank the gentlewoman for yielding. I just
wanted to state briefly that I disagree with my colleague from
California's legal interpretation of the breadth of this
amendment. I think the amendment is fairly narrow. It defines
the term ``electronic surveillance'' as that which is given in
FISA, so it does not apply to the terrorists on the battlefield
in some foreign country, foreign to foreign communication. It
makes reference to section 1801(f) of FISA, which pertains to
surveillance of known U.S. persons who are in the U.S.,
communications to or from a person in the U.S., communications
where all intended, the sender and all intended recipients are
in the United States. So the sections that it makes reference
to, by and large, apply to whether the information is gathered
through technology in the United States or of U.S. persons, so
I think it is fairly narrow.
I do believe that FISA is the exclusive authorization for
domestic surveillance, and I think that is essentially what the
amendment sets out. And I yield back.
Ms. Lofgren. And with that, I would yield back, Mr.
Chairman.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentlewoman from Texas, Ms. Jackson
Lee. Those in favor will say aye. Those opposed, no. The noes
appear to have it. The noes have it. The amendment is not
agreed to. Are there further amendments?
Ms. Jackson Lee. I have an amendment at the desk.
Chairman Sensenbrenner. For what purpose does the
gentlewoman from Texas seek recognition?
Ms. Jackson Lee. I have an amendment at the desk, Mr.
Chairman. I am going to try and give the, it looks as if it is
amendment 358.XML.
Chairman Sensenbrenner. How many amendments does the
gentlewoman from Texas have?
Ms. Jackson Lee. Mr. Chairman, this will be my last
amendment.
Chairman Sensenbrenner. Okay. The Clerk will report. Point
of order is reserved.
The Clerk. Amendment to H.R. 5825 offered by Ms. Jackson
Lee of Texas. Strike section 9(a) one page 17, lines one
through three, and insert the following. In subsection (a)
one----
[The amendment follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentlewoman from Texas, subject to the
reservation, is recognized for 5 minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. As I
have watched the ins and outs of our hearings and this markup
this afternoon, I can't help but feel enormously disappointed,
not because we are not crafty and know the ins and outs of
committee procedures, we understand how to reconsider a vote
that was fair and meaningful. But, of course, we have made
light of what I think will be devastating consequences out of
the military tribunal vote, where we now put our military
soldiers in jeopardy, and this legislation, where we have
rejected the fairness litmus test.
The American people have been so terrorized and frightened
by the representations of our government that you may be right,
that they are swayed toward the extinguishing of their own
rights, the loss of their own dignity, the collection of data
without restraints, the sending of young men and women off to
war without the protection of the Geneva Convention under the
pretense that we would be safer. I beg to differ. And I think
this committee has an enormous responsibility to not view this
in the lightheartedness that I sense.
A gentleman earlier in the debate wanted to make light of
the Armed Services members who voted for the military
tribunals. Well, I had information that Democrats voted for Mr.
Skelton's substitute, 32 to 26, but it failed. So frankly, we
now will leave this room with the stomping of the Constitution
and the ignoring of the Geneva Convention and the potential of
detainees that happen to be wearing the American flag on their
sleeves in more jeopardy than they have ever been, and we will
leave this room with the concept of congressional oversight
being literally ignored. And I might say that we have some
competition. I know that I will get a response from the other
side of the aisle, but we have some competition with the era of
the 1950's, because we are not listening to combined voices of
reasons, Democrat and Republicans.
John McCain, Senator Graham, Senator Warner, bipartisan
voices that have raised their voices on the military tribunal
and some who have raised their voices on the electronic
surveillance. Because data shopping, if you will, with no
understanding whether or not are you getting information that
is not necessary, is really a concern. And my amendment is
simply this, to add the Judiciary Committee to the names of the
committees that would receive the information from the Attorney
General about whether or not they are minimizing the amount of
data that would be collected.
So we are just simply asking that the Intelligence
Committee and the Judiciary Committee would be the committees
that the Attorney General would report to when they report
about the status of the electronic data collection under FISA,
simple, not broad, narrow, and it simply adds our jurisdiction
to the responsibility of the Attorney General. I would hope, in
a spirit of oversight and reflection of the rights of the
American people, that this committee that has the
responsibility of holding the Constitution in its hands would
at least allow itself to be reported to as the Intelligence
Committee is reported to.
I would ask my colleagues to support this amendment. I
yield back.
Chairman Sensenbrenner. Does the gentleman from Texas
insist upon his point of order?
Mr. Smith. No, Mr. Chairman, I do not insist on my point of
order.
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes in opposition to the amendment and will take it.
Looking at this amendment, this amendment is going to
jeopardize any intelligence agent and anybody in the United
States or outside the United States that utilizes intelligence.
What the gentlewoman from Texas' amendment does is it requires
that these highly classified reports be sent to each member of
the congressional Intelligence Committees and the Committee on
the Judiciary of both the House of Representatives and the
Senate. You might as well send a copy to the New York Times and
the Washington Post and every other newspaper in the country
because this place is leaky as a sieve, and all of us know it.
I think this amendment is a shocking amendment because this
country will have no secrets if this amendment becomes law.
Ms. Jackson Lee. Will the gentleman yield?
Chairman Sensenbrenner. No, I won't.
Ms. Jackson Lee. Well, speak for yourself because I don't
consider myself a leaky sieve.
Chairman Sensenbrenner. But there are plenty of leaky
sieves around here, you know. And sending 40 copies here and
one to each member of the Intelligence Committee and those on
the other side of the Capitol building means that it is going
to become a matter of public record, and people will die as a
result of it. This amendment ought to be rejected. And I yield
back the balance of my time.
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. Strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Nadler. I just want to understand the Chairman's
objection. The amendment says they have got to send all this
stuff to every member of the two Intelligence Committees and
the two Judiciary Committees, correct?
Chairman Sensenbrenner. If the gentleman will yield, that
is correct.
Mr. Nadler. And what is the current law?
Chairman Sensenbrenner. The current law says that it goes
to the Intelligence Committee as an institution and members can
go to the Intelligence Committee and look at it. And that was
one of the parts of the Church Commission report to try to give
Congress oversight, but not take out an ad on the front page of
the newspaper.
Mr. Nadler. Reclaiming my time. So, in other words, when
you say to the Intelligence Committee as an institution, it
goes to the chairman and he or she sets up some place where
members can look at it but not take copies; is that what you
are saying?
Chairman Sensenbrenner. If the gentleman will yield, that
is the current law.
Mr. Nadler. And if the law were changed--reclaiming my time
again. And if the law were changed to say to the Judiciary
Committee as an institution in the same way as to the
Intelligence Committee, would you think that would be
objectionable?
Chairman Sensenbrenner. If the gentleman will yield.
Mr. Nadler. Yes.
Chairman Sensenbrenner. The answer to that question is yes,
because members of the Judiciary Committee can walk across the
street and see intelligence reports in the committee that the
House has established to collect and review intelligence
reports and to do oversight over the Intelligence Community.
Mr. Nadler. And further, if the gentleman would yield. I am
sorry, reclaiming my time. And under the current law, members
of the Judiciary Committee have the same right as members of
the Intelligence Committee to see that information at the
Intelligence Committee office?
Chairman Sensenbrenner. The rules were changed, I believe
two Congresses ago, to give us access to that type of
information.
Mr. Nadler. I thank the gentleman. I am told that that the
rules were changed, but it is not in statute. It would be
better if it were in the statute. But under those
circumstances, I think it would be a good idea.
Ms. Jackson Lee. Would the gentleman yield for a moment
please?
Mr. Nadler. Yes, I yield.
Ms. Jackson Lee. I thank the distinguished gentleman.
Again, I would like to put on the record that I don't consider
my colleagues here a leaking coffee pot. And I would argue that
it would be appropriate to change existing law and I would even
accept a friendly amendment that it be to the chairman and
Ranking Member of the Judiciary Committee. But I beg to differ
with the chairman's interpretation of what kinds of leaks would
occur because frankly, to be very honest with you, who in this
room could raise their hand and not read a story about leaks
coming from the Intelligence Committee? This is a question of
oversight, and I would hold my colleagues to the kind of
standard, the kind of standard that would argue for saving
lives. And I would not put on my colleagues that they would
jeopardize lives by going and providing intelligence to the New
York Times or to the Sacramento Bee.
And I ask my colleagues to support this amendment. I would
accept a friendly amendment that would limit it to the chairs
of the committee.
Mr. Nadler. Thank you. Reclaiming my time. I would just--
Mr. Chairman, I am informed that although the--we were told a
moment ago that the current law is correct, the underlying bill
that we are considering today, that we are presumably going to
report, changes that so that that information goes not to the
Intelligence Committee institutionally, but to every member of
the Intelligence Committee. If that is the case, I would--then
I wonder, since we have jurisdiction over FISA, why that
shouldn't be the Judiciary Committee also.
Chairman Sensenbrenner. If the gentleman will yield, that
is not our jurisdiction under House Rule X. That is what the
problem is.
Mr. Nadler. Wait a minute. Well, now I am really confused.
Under the underlying Wilson bill that we are having, am I
correct that, in fact, the information will go to every member
of the Intelligence Committees?
Chairman Sensenbrenner. If the gentleman will yield, the
answer to the question is yes, because rule X gives them
oversight responsibility over this. Rule X does not give this
committee oversight responsibility.
Mr. Nadler. But we have oversight responsibility over FISA,
do we not?
Chairman Sensenbrenner. If the gentleman will yield. The
answer to the question is yes. But that is different than
actually providing intelligence to members of this committee
which is outside of our rule X jurisdiction.
Mr. Nadler. Let me just say that I find what the chairman
said a few minutes ago about keeping the number of people down
who get this, all be it others can look at it, a useful thing.
But if the Intelligence Committee as a whole, both Intelligence
Committees, I don't--I think it is a slur on the members of
this committee to say that this committee is more of a sieve
than the Intelligence Committee. I am not sure that either is a
sieve. But I think, given our FISA jurisdiction, we should have
the same access as the members of the Intelligence Committee.
Chairman Sensenbrenner. The question occurs on the
amendment offered by the gentlewoman from Texas, Ms. Jackson
Lee. Those in favor will say aye. Opposed, no. The noes appear
to have it. The noes have it. The amendment is not agreed to.
Mr. Flake. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Arizona, Mr.
Flake.
Mr. Flake. I have an amendment at the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
Mr. Flake. This is a section 2 finding, and I would ask
unanimous consent, given the changes that were made with the
Lungren amendment, to place this in the appropriate place in
the bill.
Chairman Sensenbrenner. Without objection, the modification
referred to by the gentleman of Arizona is agreed to, and the
Clerk will report the amendment.
The Clerk. Amendment to H.R. 5825 offered by Mr. Flake of
Arizona. Page one, after line 5 insert the following new
section. Section two finding. Congress finds article I, section
8, clause 18 of the Constitution, known as the necessary and
proper clause, grants Congress clear and unequivocal authority
to regulate the President's inherent power to gather foreign
intelligence.
[The amendment follows:]
Chairman Sensenbrenner. The gentleman from Arizona is
recognized for 5 minutes.
Mr. Flake. Thank you, Mr. Chairman. This amendment simply
states the Congressional finding that Congress has the
authority to regulate the President's inherent power to gather
foreign intelligence. The Constitution clearly states in
article I, section 8, clause 18 that Congress shall have the
power to, quote, make all laws which shall be necessary and
proper for carrying into execution the foregoing powers and all
other powers vested by this Constitution in the government of
the United States in any department or officer thereof. The
President's inherent power to gather foreign intelligence is a
power vested by the Constitution. And therefore, according to
this clause, Congress can regulate it when it is, quote,
necessary and proper.
After years of abuses of wiretapping in America, where
wiretapping was done by the executive branch without
congressional regulation, Congress decided to finally create
FISA under this authority. The President, at that time, agreed
and signed FISA into law. I believe this is an important
constitutional argument to make when talking about whether
Congress can or cannot regulate the NSA wiretap program.
I urge my colleagues to adopt the amendment, and I would
simply state that this is, this could be termed the ``we are
not potted plants'' amendment. It simply states that----
Mr. Nadler. Would the gentleman yield?
Mr. Flake. Just 1 minute. It simply states that, and if you
disagree with this amendment, apparently you might disagree
with all of FISA because FISA was an effort to assert
congressional authority after years of abuses by the executive
branch. When FISA was implemented in 1978 the Congress agreed
that Congress has the power to regulate the President's actions
or the President's inherent authority. This is simply
reaffirming that prerogative. And with that I will yield to the
gentleman from New York.
Mr. Nadler. Yeah. I commend the gentleman for his
amendment. I would just ask, I would ask if he would remove the
word ``inherent'' because I don't want to get into a debate as
to whether the President has that inherent power under the
Constitution. I think that power probably derives from his
power as Commander in Chief once the Congress has declared war.
It doesn't change the meaning of your amendment. But it is
clear that Congress is granted the clear and unequivocal power
to regulate the President's power to gather foreign
intelligence. We don't have to get into a separate debate as to
where that power comes from.
Mr. Flake. I would resist that change. I think we do agree
that the President has inherent authority, but the argument
here is does Congress have the ability to regulate it. And I
don't know that there is a serious question or argument about
whether or not the President has inherent authorities as
Commander in Chief.
Mr. Schiff. Would the gentleman yield?
Mr. Flake. I would.
Mr. Schiff. I would just like to voice my agreement with my
colleague from Arizona. I don't think there is an argument
about whether the President has inherent authority to gather
foreign intelligence certainly on foreign battlefields. The
President does so. So I see no objection to the inclusion of
the term ``inherent.'' and the question is whether Congress has
the power to regulate that, particularly when it involves U.S.
persons on U.S. soil. And I voice my support in favor of your
amendment.
Mr. Flake. I thank the gentleman. And reclaiming my time,
again, this is simply stating that Congress has authority to
regulate. We know the previous Congresses have asserted that
authority because we have FISA and we are simply wanting to
reiterate that. And I can't imagine that we would at this point
say no, we don't have that authority and we are giving it all
up, we have no right. That would be to say that we don't take
FISA seriously at all. And I know that this committee does and
that this Congress can and does take its oversight
responsibility seriously. With that, I yield back.
Chairman Sensenbrenner. Before recognizing the gentleman
from California to speak in opposition to the amendment, the
Chair will state that 3 minutes ago, while the potted plant
from Arizona was waxing eloquently, we got an e-mail that there
will be no more votes on the floor today. This was done in
deference to keeping this committee in session.
However, the Rules Committee is waiting upon us to grant a
rule relative to the immigration bills, and they are currently
scheduled at 6:15. I think they would really appreciate it if
we wrapped it up by then. For what purpose does the----
Mr. Conyers. Will the gentleman yield?
Chairman Sensenbrenner. I yield to the gentleman from
Michigan.
Mr. Conyers. We have only one amendment. That should be
quickly disposed of. It is an important amendment and I think
that will close it down.
Chairman Sensenbrenner. Okay. The gentleman from California
is recognized for 5 minutes in opposition to this amendment,
with the admonition that the clock is running quickly.
Mr. Lungren. Thank you very much, Mr. Chairman. I have
always tried to look at a clock running quickly. I rise in
opposition to the gentleman's amendment because this is a very,
very serious question of constitutional law. It goes to the
question of the proper relationship of the two branches of
government established under article I and article II. And the
gentleman refers to the necessary and proper clause, which I
think, properly understood, means that Congress has the powers
that are necessary and proper to carry out the express powers
given to it in the Constitution. If the person has inherent
power, we don't have the right to regulate it. And that was
stated in the FISA appellate court decision, ``In Re: Sealed.''
it does not mean we are potted plants and that we are
powerless. If you go to the underlying understanding of the
relationship between the two branches of government, the
Executive and Legislative, our power remains in the power of
the purse and ultimately the power of impeachment. Now, I
realize the last one is an extreme matter and I am not
suggesting we bring it out easily. But the framers of the
Constitution appeared to try and balance the tension or deal
with the tension that exists with the two branches in this area
as in others, but particularly in this area, but again allowing
us the power of the purse. We can restrict, if you will, the
President's use of his inherent powers by the power of the
purse, which is different than regulating that power as a
substantive matter.
And that is where I find a real problem with us stating
this as a finding. I think this finding is an opinion, but I
think this opinion is actually contrary to the greatest weight
of constitutional writings that have taken place on that. And
for that reason, I would ask that the gentleman's amendment be
voted down.
Chairman Sensenbrenner. The question is on the----
Mr. Hostettler. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Indiana, Mr. Hostettler, seek recognition?
Mr. Hostettler. Mr. Chairman, I move to strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Hostettler. Mr. Chairman, I won't take near the 5
minutes. But I just want to highlight a portion of the
Constitution, article I, section 8, that the gentleman from
Arizona references. And there are a number of powers that are
given to Congress in article I, section 8 that are enumerated
and limit the power of Congress. But in one area that Congress
has sole, explicit and exclusive authority is found in article
I, section 8, I believe, subsection (14). But to preface that,
Congress, in subsection (11) of article I, section 8 has the
power to declare war, (12), to raise and support armies, (13),
to provide and maintain a navy, and then finally, to make rules
for the government and regulation of the land and naval forces.
Article I, section 8 gives sole exclusive explicit authority to
Congress to make rules for the government and regulation of the
land and naval forces. There are no limitations in the
Constitution for governing and regulating the land and naval
forces. This obviously was before the creation of an air force.
But many of us believe that this power extends there. And so I
would simply say that according to the Constitution and the
clear wording of the Constitution, when married to the
necessary and proper clause that the gentleman from Arizona
states, that, in fact, this is exclusive authority of the
Congress to regulate all elements of the land and naval forces.
And I yield back the balance of my time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Arizona, Mr. Flake.
Mr. Van Hollen. Mr. Chairman.
Chairman Sensenbrenner. Gentleman from Maryland, Mr. Van
Hollen.
Mr. Van Hollen. I thank you, Mr. Chairman. Move to strike
the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Van Hollen. I thank you, Mr. Chairman. I am supporting
the amendment by Mr. Flake. And it seems to me that our entire
discussion on the piece of legislation that has been before the
committee today with respect to electronic surveillance is
premised on the understanding that Congress has some regulatory
authority over this area. If not, this whole discussion and
exercise has been for nothing because the President could
totally disregard what the committee has done so far. And
whether you are for or against the final bill, the final bill
does attempt to regulate this area. And the amendment by Mr.
Flake simply says we have the power to do what we have already
done today and what this committee may do in the future with
regard to this area.
Now, I would find it unbelievable that we would say that
everything we have done today is, we have no authority really
to do it; that if the President wanted, the President could
totally ignore it. And I further find it in the realm of sort
of never, never land that we have spent, as a committee, many,
many sessions with respect to the PATRIOT Act where we have
also debated at length regarding provisions of FISA. And if we
don't have any authority to do that, what is the point? And all
this amendment does is underscore the fact that we have an
important role in this area and that the President can't
totally ignore FISA, which is on the books today, that the
President can't ignore what we are about to do, the President
can't ignore what we have done in the PATRIOT Act. It is a
simple statement, I think, of the fact that Congress has an
important role to play. If you don't support this amendment, we
might as well pack it up and forget about the legislation we
are dealing with today. That may be what the President would
like us to do, but it certainly seems to me it is not what
Congress should do.
Mr. Flake. Will the gentleman yield?
Mr. Van Hollen. I would be happy to yield.
Mr. Flake. Thank you. You said it much better than I did.
But that is exactly what this is about. If we are going through
this entire exercise today, we would, by voting down this
amendment, we would be saying it really doesn't matter. And I
would submit that we will walk out that door a lot less
relevant than when we walked in here this morning because we
had that authority, that power. It has been recognized by
previous Congresses. I think that we ought to recognize it
today.
The gentleman from Florida had a suggestion, and I would
like to hear that.
Mr. Feeney. I would ask unanimous consent to change the
language of the amendment to strike the words ``and
unequivocal.'' by definition of a checks and balance system,
our powers are equivocated, all three legislative branches,
number one. And Number two, the power to regulate, if we had
unequivocal powers to regulate, would basically be the power to
eliminate. And the finding that the gentleman from Arizona has
in this amendment says that the President does have inherent
power. So I suggest if you would take out the word
``unequivocal'' a lot of us could support the amendment and we
could move on.
Mr. Flake. With that I would agree to take out----
Chairman Sensenbrenner. Without objection, the modification
suggested by the gentleman from Florida is agreed to.
Mr. Conyers. Mr. Chairman, I move the previous question.
Chairman Sensenbrenner. Does the gentleman move the
previous question on the bill and the amendment?
Mr. Conyers. No, just the amendment.
Chairman Sensenbrenner. Without objection, the previous
question on the amendment only is ordered. Those in favor of
the Flake amendment will say aye. Opposed, no. The ayes appear
to have it. The ayes have it. The amendment is agreed is. Are
there further amendments?
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 5825 offered by Mr. Nadler.
Insert at the end the following new section. Section blank,
preservation of remedies. Notwithstanding section 10 of this
act, the court may consider an action----
[The amendment follows:]
Chairman Sensenbrenner. Without objection, the amendment is
considered as read. The gentleman from New York is recognized
for 5 minutes.
Mr. Nadler. Thank you. I won't take 5 minutes, Mr.
Chairman. We adopted an amendment by Mr. Cannon a little while
ago and that amendment said that notwithstanding any other
provision of law, no action may be maintained in any court, no
penalty, sanction or form of remedy or relief shall be imposed
by any court against someone for any activity relating to any
alleged intelligence program involving electronic surveillance
that the Attorney General or his designees certifies is very
important because it is necessary to prevent an attack.
I presume the intent of that amendment was to say that as
long as someone is acting in good faith he shouldn't have to
worry about criminal liability or civil sanctions or damages,
and there should be no deterrence to someone doing what he
should do as long as the Attorney General certified that this
is a very necessary thing. I have no problem with that. And
that is what the amendment does. But, I don't think we should
also say that just because the Attorney General certifies that
some activity is necessary, in his opinion, to deter and
attack, if someone thinks that that activity is
unconstitutional or is illegal under the law we are passing, or
under some other law, he shouldn't be able to go to court and
seek an injunction to say it is unconstitutional. I certainly
agree with Mr. Cannon. No one who acts should have to worry
about civil or criminal liability or damages. There should be
no deterrence. And this amendment simply says that is fine. But
if someone, if there is a question of constitutionality or
legality, just the fact that the Attorney General said
something is very necessary shouldn't preclude someone from
going to court and asking for an injunction based on the
illegality or asserted illegality or unconstitutionality. It is
to stop the Attorney General or his designee from breaking the
law and having no judicial forum to challenge that.
Mr. Cannon. Would the gentleman yield?
Mr. Nadler. Sure.
Mr. Cannon. The injunctive relief, I am sorry. I have just
gotten this. I am trying to sort it through. The injunctive
relief would lie against the Attorney General or against the
person or corporation that is being asked?
Mr. Nadler. It would lie, well, that would depend on who
they sued. It would lie against the people carrying out
whatever they allege was illegal.
Mr. Cannon. In other words, so under your amendment, if a
telephone company was providing access to information, that
telephone company could be the object of an injunction as
opposed to the United States?
Mr. Nadler. Yes. They could be enjoined from future action.
There could be no penalty against them. There could be no
damages, but if what they are doing is determined by a court to
be illegal, they could be told to stop doing it anymore.
Mr. Cannon. So, it would seem to me that what you would
want to be doing is to stop the Attorney General from asking
for information, and that is where the injunction would lie,
because if you allow lawsuits for injunctive relief against
corporations, or persons, then you end up encouraging the kind
of lawsuits that I think my amendment was intended to avoid.
Mr. Nadler. No. Reclaiming my time. I think you have to
allow a lawsuit for an injunction against whoever, whoever is
carrying out the program or authorizes the program. Maybe it
should be against the Attorney General. But I don't think you
can limit it to be against the Attorney General because if
someone, a telephone company or somebody is doing something
pursuant, because the Attorney General said it was okay to do,
but it isn't, in fact, okay to do legally, you have to go to
court to be able to say to them it is illegal; you are to stop
doing it. I don't think you want to go to court to say to the
Attorney General, tell them to stop doing it because maybe he
has no authority to tell them to stop doing it.
But what your amendment is intended to do, I think, is to
say that no one, if the Attorney General asked the telephone
company to do something, they shouldn't have to worry about
being sued for damages; they shouldn't have to worry about
civil or criminal liability. But I think anybody always has to
be held subject to a lawsuit to say, stop doing what they are
doing if it is illegal.
Mr. Cannon. Would the gentleman yield?
Mr. Nadler. Sure.
Mr. Cannon. My purpose in my amendment was to limit the
vexatious lawsuits that cost money to defend and divert
resources. I am not sure how I would react to something that
allowed an injunction to lie against the Attorney General, but
it seems to me that since it is not likely that these lawsuits,
60 or so that are out there, are likely to succeed, all this
does is change the nature of the vexatious lawsuit.
Mr. Nadler. Well, reclaiming my time. The 60 or so lawsuits
that are out there are for damages and so forth. What you are
really talking about is, at least for what they are doing now,
probably one lawsuit to say it is illegal. If there is some
other program maybe you get one or two lawsuits saying that is
illegal. I don't think you are going to get a lot of----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from California seek recognition? The gentleman from Alabama.
Mr. Bachus. Thank you. I would like to ask the gentleman
offering the amendment, when you say the court, what court are
you talking about?
Mr. Nadler. I presume I am talking about the Federal court
because you would go into Federal court if you were alleging
against----
Mr. Bachus. It doesn't say that in your amendment. It just
says the court.
Mr. Nadler. Well, this doesn't confer--it is a court of
competent jurisdiction by definition. This does not confer
jurisdiction on anybody. This simply says we are not taking it
away from them.
Mr. Bachus. I am just saying, you know, without anything
else----
Mr. Nadler. Would it make you happier if we said a Federal
court of competent jurisdiction?
Mr. Bachus. That is the Federal court having competent
jurisdiction over the----
Mr. Nadler. I am sorry. Reclaiming my time. There is a
provision on section 10 in Mr. Cannon's amendment which says,
there is a provision that this does not contradict that says
any action or claim described in subsection (8) that is brought
in a State court shall be deemed to arise under the
constitutional----
Mr. Bachus. I am just saying right now you just said it
would allow any court.
Mr. Nadler. Federal court. Because of the provision----
Mr. Bachus. I think if you are going to consider it ought
to be limited to a Federal court having jurisdiction over this
program----
Mr. Nadler. I will--reclaiming my time, I think that is
what it does, and if it will make you happy I would ask
unanimous consent to say a Federal court with appropriate
jurisdiction may consider that.
Mr. Bachus. And you say any alleged intelligence program.
Does this mean that anyone could walk into a Federal court and
allege that there was an intelligence program and get an
injunction?
Mr. Nadler. That language is tracked from Mr. Cannon's
amendment which we just voted for and it refers to the same
page. All we are trying to say here is that we are not taking
away the ability of a Federal court of competent jurisdiction
to entertain an injunction. We are taking away their ability to
entertain a lawsuit for damages or a criminal action, but we
are not taking away their ability to entertain a lawsuit.
Mr. Bachus. Of course they can then get back, and if they
have an injunction, then that would shut down the entire
program.
Mr. Nadler. If the court found it was illegal, yes, that is
the point of it. If the court found, if the Attorney General
says this is, or his designee, this is a very important program
necessary to protect us against attack, but this program is
totally illegal or unconstitutional, a Federal court of
competent jurisdiction, appealable to the Supreme Court, ought
to be able to say that. That is the point of the amendment.
Ms. Lofgren. Would the gentleman yield for a question?
Mr. Bachus. The gentleman will yield to the gentleman from
Ohio.
Mr. Nadler. It is Mr. Bachus's time, I think.
Mr. Bachus. I yield to the gentleman from Ohio.
Mr. Chabot. I want to make sure I understand the
gentleman's amendment. In essence what we are saying here;
thank you, Mr. Lungren. What the gentleman's amendment would do
is it would allow a program that essentially is acquiring
information to prevent terrorist acts from occurring in our
country, in essence is what it is. And you would allow, who
would have standing to bring these types of lawsuit, if I could
ask the gentleman?
Mr. Nadler. First of all, if the gentleman would yield.
Mr. Chabot. It is his time.
Mr. Bachus. My point is, and I will just say to this
committee, the gentleman offering the amendment, if the courts
have already ruled that this intelligence program is
constitutional, then to then allow any court across the
country, any Federal court to shut this program down, I don't
know how that is appropriate, particularly when they are going
in and you could, any Internet provider----
Mr. Nadler. Will the gentleman yield?
Mr. Bachus. I would yield.
Mr. Nadler. First of all, I would ask unanimous consent to
change the amendment to say a Federal court of competent
jurisdiction to meet the gentleman's request.
Mr. Bachus. That would be an improvement.
Chairman Sensenbrenner. Without objection, the modification
referred to by the gentleman from New York is agreed to.
Mr. Nadler. Thank you. And I thank the gentleman for
suggesting that. Secondly, the plaintiff presumably would be
someone who thinks his constitutional rights are being
violated. And our system of government says that if someone
thinks his constitutional or other rights are being violated he
has the right to go to court and say so. And if the court
agrees with him, they can order that constitutional or legal
violation to stop.
Mr. Bachus. Would you be willing to add to that no damages
could be assessed against the utilities?
Mr. Nadler. Yes, but I think the underlying----
Mr. Bachus. Or some indemnification?
Mr. Nadler. Mr. Bachus, the underlying bill says exactly
that. The Cannon amendment said exactly that. And all I am
doing is narrowing it by saying notwithstanding section 10,
section 10 says no relief, no penalty, sanction or other form
of remedy or relief shall be imposed. We are not changing that.
Mr. Bachus. Of course you know the utility is going to then
have to pay attorney's fees.
Mr. Nadler. We are not changing that except with respect
to----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Scott. Mr. Chairman.
Ms. Lofgren. Mr. Chairman.
Chairman Sensenbrenner. You guys really do want to come
back after 7:00, don't you? The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. I speak in favor, very briefly in favor of the
amendment and just point out that it doesn't go far enough. The
underlying problem with the Cannon amendment is it immunizes
people from criminal activity. They can be breaking the law. If
John Mitchell authorized a criminal wiretap, everybody involved
would be immunized by the Cannon amendment, and you can't even
get into court to stop it. The Nadler amendment would at least
let you get an injunction to stop it, although you can't throw
anybody in jail for--he said good faith. There is no good faith
exception in here. You can know you are breaking the law. If
John Mitchell authorized it you can break the law under the
Cannon amendment. Nadler's amendment, all that would do is just
let some court stop the thing from going on.
Mr. Cannon. Would the gentleman yield?
Mr. Scott. I yield.
Mr. Cannon. Dan, go ahead.
Mr. Lungren. As a matter of historical fact, John Mitchell
is now dead. But more importantly, as I understand this
amendment, it, as a condition precedent to the right to seek
injunctive relief, you have to have a program where the
Attorney General has certified that it involves the protection
of state secrets, is, was or intended to protect the U.S. from
terrorist attacks.
Mr. Scott. Reclaiming my time. If you have got a slimy
Attorney General who makes a certification, everybody breaking
the law pursuant to that certification is immunized, knowing
they are breaking the law.
Ms. Lofgren. Would the gentleman yield for a question?
Mr. Lungren. If he doesn't certify, you don't have a right.
Mr. Scott. That is what the underlying amendment does. At
least this amendment will let you stop it.
Ms. Lofgren. Would the gentleman yield?
Mr. Scott. I yield to gentleman from New York.
Mr. Nadler. An Attorney General may not always be honest.
He may not always be correct. All this says is if a future
Attorney General authorizes a program, makes the certification
that it is, you know, all important, and it is illegal, it is
criminal, it is whatever, nobody is subject to criminal
penalties. Nobody is subject to a damage suit. But you can go
to court and seek an injunction to stop that program. That is
what my amendment says.
Mr. Cannon. Would the gentleman yield?
Mr. Scott. I yield.
Mr. Cannon. But I think we agree on what you are saying.
But the implications are significant. If the Attorney General
does something wrong, then the Attorney General should be
subject to a suit. As I understand the amendment----
Mr. Scott. No. No. Your amendment immunized him, too.
Nobody can get busted for criminal enterprise. I yield to the
gentlelady from California.
Ms. Lofgren. I think this is being made a lot more
complicated than it needs to be, frankly, because the
underlying amendment, which I opposed, is very broad. It
immunizes past and future, potentially even criminal activity.
I will give you a scenario. You have the current Attorney
General certifies a program pursuant to the underlying
amendment. The next Attorney General finds out that a phone
company is doing something that, in her judgment, jeopardizes
the state secrets of the United States. It would allow that
Attorney General to take, to initiate or to allow another to
initiate injunctive relief. You can't, under the amendment that
is being offered, you can't do anything without the Attorney
General or her designee certifying. So you have got a
constraint right there in the amendment. But this, the
underlying amendment is so broad that you could actually end up
endangering the security. I am sure that the--I know that Mr.
Cannon would not have intended that, but the fact is you could
end up endangering the security of the United States, even
though you didn't mean to because you have completely tied the
hands. And I thank the gentleman for yielding. And correct me
if my understanding of the amendment is incorrect.
Mr. Cannon. Would the gentleman yield? The amendment before
us I think is relatively simple, and the underlying amendment
that I made earlier is quite direct. I think the consideration
here, the concern here is that if the Attorney General
authorizes a program that is somehow defective, there ought to
be a process whereby in court that program can be corrected.
The question is, should the person who gets the order from the
Attorney General, that is person in the way it is described in
the amendment----
Mr. Scott. Reclaiming our time. That is what the Nadler
amendment does. There is no mechanism for getting--under your
amendment there is nothing. Once it is certified everybody's--
--
Mr. Cannon. If the gentleman would yield. If you look at
the definition of person, the Attorney General is subject to
some kind of----
Mr. Scott. Not under your amendment. I yield to the
gentleman from New York.
Mr. Nadler. First of all, under your amendment, there is no
ability to change it. Nobody can go to court. Second of all----
Chairman Sensenbrenner. The time of the gentleman has
expired.
Mr. Nadler. Mr. Chairman, I would ask for an additional
minute.
Mr. Chabot. Mr. Chairman.
Chairman Sensenbrenner. For what purpose does the gentleman
from Ohio seek recognition?
Mr. Chabot. Mr. Chairman, I move the previous question.
Chairman Sensenbrenner. Does the gentleman move the
previous question on the amendment and the bill?
Mr. Chabot. Yes, Mr. Chairman.
Chairman Sensenbrenner. The question is shall the previous
question be ordered on the amendment and the bill. It is a
nondebatable motion. Those in favor will say aye. Opposed no.
The ayes appear to have it. The ayes have it. The previous
question is ordered.
The question is on agreeing to the amendment offered by the
gentleman from New York, Mr. Nadler. Those in favor will say
aye. Opposed, no. The noes appear to have it. The noes have it.
The amendment is not agreed to.
Mr. Van Hollen. Mr. Chairman, I move for a rollcall vote.
Chairman Sensenbrenner. The rollcall is ordered. Those in
favor of the Nadler amendment will as your names are called
answer aye. Those opposed, no. And the Clerk will call the
roll.
The Clerk. Mr. Hyde.
Mr. Hyde. No.
The Clerk. Mr. Hyde votes no.
Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble votes no.
Mr. Smith.
Mr. Smith. No.
The Clerk. Mr. Smith votes no.
Mr. Gallegly.
Mr. Gallegly. No.
The Clerk. Mr. Gallegly votes no.
Mr. Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte votes no.
Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot votes no.
Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren votes no.
Mr. Jenkins.
Mr. Jenkins. No.
The Clerk. Mr. Jenkins votes no.
Mr. Cannon.
Mr. Cannon. No.
The Clerk. Mr. Cannon votes no.
Mr. Bachus.
Mr. Bachus. No.
The Clerk. Mr. Bachus votes no.
Mr. Inglis.
Mr. Inglis. No.
The Clerk. Mr. Inglis votes no.
Mr. Hostettler.
Mr. Hostettler. No.
The Clerk. Mr. Hostettler votes no.
Mr. Green.
Mr. Green. No.
The Clerk. Mr. Green votes no.
Mr. Keller.
[No response.]
The Clerk. Mr. Issa.
Mr. Issa. No.
The Clerk. Mr. Issa votes no.
Mr. Flake.
Mr. Flake. No.
The Clerk. Mr. Flake votes no.
Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence votes no.
Mr. Forbes.
Mr. Forbes. No.
The Clerk. Mr. Forbes votes no.
Mr. King.
Mr. King. No.
The Clerk. Mr. King votes no.
Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney votes no.
Mr. Franks.
Mr. Franks. No.
The Clerk. Mr. Franks votes no.
Mr. Gohmert.
Mr. Gohmert. No.
The Clerk. Mr. Gohmert votes no.
Mr. Conyers.
Mr. Conyers. Aye.
The Clerk. Mr. Conyers votes aye.
Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
Mr. Nadler. Aye.
The Clerk. Mr. Nadler votes aye.
Mr. Scott.
Mr. Scott. Aye.
The Clerk. Mr. Scott votes aye.
Mr. Watt.
Mr. Watt. Aye.
The Clerk. Mr. Watt votes aye.
Ms. Lofgren.
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren votes aye.
Ms. Jackson Lee.
Ms. Jackson Lee. Pass.
The Clerk. Ms. Jackson Lee passes.
Ms. Waters.
[No response.]
The Clerk. Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
Mr. Wexler. Aye.
The Clerk. Mr. Wexler votes aye.
Mr. Weiner.
Mr. Weiner. Aye.
The Clerk. Mr. Weiner votes aye.
Mr. Schiff.
Mr. Schiff. Aye.
The Clerk. Mr. Schiff votes aye.
Ms. Sanchez.
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez votes aye.
Mr. Van Hollen.
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen votes aye.
Ms. Wasserman Schultz.
[No response.]
The Clerk. Mr. Chairman.
Chairman Sensenbrenner. No.
Members who wish to cast or change their vote. Gentleman
from California, Mr. Berman.
Mr. Berman. Aye.
The Clerk. Mr. Berman aye.
Chairman Sensenbrenner. Gentlewoman from Florida, Ms.
Wasserman Schultz.
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye.
Chairman Sensenbrenner. Gentlewoman from Texas, Ms. Jackson
Lee.
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes? If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 13 ayes and 22 nays.
Chairman Sensenbrenner. And the----
Mr. Scott. Mr. Chairman.
Chairman Sensenbrenner. The amendment is not.
Mr. Scott. Mr. Chairman, Ms. Waters just walked in.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. Aye.
Chairman Sensenbrenner. Waters is an aye.
Mr. Scott. Thank you, Mr. Chairman.
Chairman Sensenbrenner. And the Clerk will report again.
The Clerk. Mr. Chairman, there are 14 ayes and 22 nays.
Chairman Sensenbrenner. The amendment is not agreed to.
The previous question has been ordered on the question of
reporting the bill, H.R. 5825, favorably, as amended. A
reporting quorum is present. The question occurs on the motion
to report the bill, H.R. 5825, favorably, as amended.
All those in favor signify by saying aye.
Opposed no.
The ayes appear to have it. A recorded vote is requested.
Those in favor of reporting the bill, H.R. 5825, favorably, as
amended, will as your names are called say aye. Those opposed,
no. The Clerk will call the roll.
The Clerk. Mr. Hyde.
Mr. Hyde. Aye.
The Clerk. Mr. Hyde votes aye.
Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble votes aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith votes aye.
Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly votes aye.
Mr. Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte votes aye.
Mr. Chabot.
Mr. Chabot. Aye.
The Clerk. Mr. Chabot votes aye.
Mr. Lungren.
Mr. Lungren. Aye.
The Clerk. Mr. Lungren votes aye.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins votes aye.
Mr. Cannon
Mr. Cannon. Aye.
The Clerk. Mr. Cannon aye.
Mr. Bachus.
Mr. Bachus. Yes.
The Clerk. Mr. Bachus votes yes.
Mr. Inglis.
Mr. Inglis. No.
The Clerk. Mr. Inglis votes no.
Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler aye.
Mr. Green.
Mr. Green. Aye.
The Clerk. Mr. Green votes aye.
Mr. Keller.
[No response.]
The Clerk. Mr. Issa.
Mr. Issa. Aye.
The Clerk. Mr. Issa votes aye.
Mr. Flake.
Mr. Flake. No.
The Clerk. Mr. Flake votes no.
Mr. Pence.
Mr. Pence. Aye.
The Clerk. Mr. Pence votes aye.
Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes votes aye.
Mr. King.
Mr. King. Aye.
The Clerk. Mr. King votes aye.
Mr. Feeney.
Mr. Feeney. Aye.
The Clerk. Mr. Feeney votes aye.
Mr. Franks.
Mr. Franks. Aye.
The Clerk. Mr. Franks votes aye.
Mr. Gohmert.
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert votes aye.
Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers votes no.
Mr. Berman.
[No response.]
The Clerk. Mr. Boucher.
[No response.]
The Clerk. Mr. Nadler.
Mr. Nadler. No.
The Clerk. Mr. Nadler votes no.
Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott votes no.
Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt votes no.
Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Ms. Lofgren votes no.
Ms. Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee votes no.
Ms. Waters.
Ms. Waters. No.
The Clerk. Ms. Waters votes no.
Mr. Meehan.
[No response.]
The Clerk. Mr. Delahunt.
[No response.]
The Clerk. Mr. Wexler.
Mr. Wexler. No.
The Clerk. Mr. Wexler votes no.
Mr. Weiner.
Mr. Weiner. No.
The Clerk. Mr. Weiner votes no.
Mr. Schiff.
Mr. Schiff. No.
The Clerk. Mr. Schiff votes no.
Ms. Sanchez.
Ms. Sanchez. No.
The Clerk. Ms. Sanchez votes no.
Mr. Van Hollen.
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen votes no.
Ms. Wasserman Schultz.
Ms. Wasserman Schultz. No.
The Clerk. Ms. Wasserman Schultz votes no.
Mr. Chairman.
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Sensenbrenner votes aye.
Chairman Sensenbrenner. Are there members who wish to cast
or change their votes? The gentleman from California, Mr.
Berman.
Mr. Berman. No.
The Clerk. Mr. Berman votes no.
Chairman Sensenbrenner. Further members who wish to cast or
change their votes? If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 20 ayes and 16 nays.
Chairman Sensenbrenner. And the motion to favorably report
the bill, as amended, is agreed to.
Without objection, the bill will be reported favorably to
the House in the form of a single amendment in the nature of a
substitute incorporating the amendments adopted here today.
Without objection, the staff is directed to make any technical
and conforming changes. And all members will be given 2 days,
as provided by the House rules, in which to submit additional
dissenting or supplemental or minority views.
I think we put in a good day's work for a day's pay and
without objection, the subcommittee stands adjourned.
[Whereupon, at 6:08 p.m., the committee was adjourned.]
DISSENTING VIEWS
We strongly support intercepting each and every
conversation involving al Qaeda and its supporters. We have in
the past and continue to support common sense updates to the
Foreign Intelligence Surveillance Act (``FISA'') so that our
surveillance capabilities can keep pace with modern
technologies--as a matter of fact, all of us supported a
bipartisan substitute offered by Representatives Schiff (D-CA)
and Flake (R-AZ) which would have accomplished these goals
without sacrificing our rights and liberties.\1\ However, we
dissent from the legislation reported by the Judiciary
Committee because instead of bringing the President's
warrantless surveillance program under the law, it dramatically
expands his authority and permits even broader and more
intrusive warrantless surveillance of the phone calls and e-
mails of innocent Americans. The legislation also raises severe
constitutional questions, and was subject to an ill-considered
and unfair process.\2\
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\1\ The Majority rejected this bipartisan substitute amendment by a
vote of 18-20. The bipartisan amendment included language: (1)
clarifying the Authorization for Use of Military Force did not contain
legal authority for warrantless wiretapping in the United States; (2)
reiterating that FISA is the exclusive means of conducting electronic
surveillance for foreign intelligence in the United States; (3)
requiring the President must submit a report to Congress on classified
surveillance programs; (4) permitting the Chief Justice of the United
States can appoint additional FISA judges; (5) streamlining the FISA
application process; (6) extending emergency FISA authority from 3 days
to 7 days; (7) allowing for use of wartime FISA exception also after
congressional authorization for use of military force; (8) clarifying
that FISA warrants are not needed for intercepting foreign-foreign
communications; and (9) authorizing the hiring of additional
intelligence personnel.
\2\ The legislation is opposed by technology companies and groups
concerned with the civil liberties of Americans, including the Computer
& Communications Ind. Ass'n, the ACLU, the Center for National Security
Studies, and the Center for Democracy and Technology.
---------------------------------------------------------------------------
Description of the Legislation
The legislation reported by the Committee proposes numerous
significant changes to FISA, which governs the surveillance of
foreign powers, terrorist organizations and their agents. These
changes would dramatically expand the ability of the
Administration to wiretap and gather information on innocent
Americans without court approval or legal recourse.
The legislation amends FISA in several ways that would
expand the Administration's ability to eavesdrop on telephone
calls, e-mails and other communications of U.S. citizens,
without obtaining court approval. First, Section 3(b) alters
the definition of ``electronic surveillance'' in a manner that
permits the warrantless surveillance of the international
communications of any American who is not a specific target.\3\
The bill also amends an operative section of FISA to permit
warrantless surveillance of Americans for one year if it
involves communications with foreign powers. Proposed new
section 102 of FISA (added by section 4 of the bill)
accomplishes this by eliminating a requirement in current law
requiring that when the government wiretaps foreign powers,
there should be no substantial likelihood that Americans'
conversations will be captured.\4\
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\3\ Section 3(b) of the reported bill proposes a number of changes
to FISA, one of which amends the definition of ``electronic
surveillance'' in FISA to the (1) interception of communications
acquired by targeting a person who is reasonably believed to be in the
United States; and (2) interception of any communication if both the
sender and all recipients are in the United States.
\4\ Section 4(a) of the bill proposes a new section 102 of FISA
that would allow the surveillance without a court order of
communications of foreign powers but would not contain an exclusivity
limitation that exists in current law; as a result, it would apply to
all six categories of foreign powers and could permit capture of
communications to or from U.S. persons.
Section 4(a) of the bill also proposes a new section 102A of FISA
that would allow the government to acquire intelligence information
about persons the government asserts are not in the Untied States. In
such cases the Attorney General could obtain an order for up to one
year without a court order if the acquisition does not constitute
electronic surveillance but pertains to foreign intelligence
information.
---------------------------------------------------------------------------
Proposed new section 102A of FISA also grants the
Administration new unilateral authority to conduct any and all
forms of allegedly non-wiretap surveillance on innocent U.S.
citizens so long as one of the targets is ``reasonably believed
to be outside of the United States.'' This section, for
example, would permit the Administration to review call records
and other stored communications from communication providers
and other persons and perhaps even content if the Attorney
General merely certifies the information is not electronic
surveillance as defined in FISA.\5\
---------------------------------------------------------------------------
\5\ For instance, the Attorney General could say that surveilling
communications from inside the United States to outside the United
States does not constitute ``electronic surveillance'' within the
definition of FISA. As such, he may argue that the government does not
require a warrant and could collect as much content as desired and
without limitation.
---------------------------------------------------------------------------
Under proposed new section 102B of FISA, the Attorney
General would be granted the unilateral power to implement the
new intelligence authorities identified in new sections 102 and
102A by demanding that any person--including a communications
provider, internet company, landlord, or family member--assist
with the execution of both electronic surveillance or other
acquisition of intelligence information (such parties would
also be insulated from legal liability for complying with such
a directive). Any individual challenging the directive would
have limited rights to challenge the order in court.\6\
---------------------------------------------------------------------------
\6\ This cause of action likely is pre-empted by section 11 of the
bill, which prohibits any court review of any actions related to any
intelligence programs.
---------------------------------------------------------------------------
The bill also permits the government to permanently retain
surveillance information inadvertently collected on innocent
Americans pursuant to these and other provisions of FISA.\7\
Section 4 of the bill does this by rewriting provisions in
existing law that govern the use of information collected
pursuant to FISA directives under new section 102B to strike an
existing requirement that unintentionally-acquired information
be destroyed unless there is a threat of death or serious
injury.\8\ Section 8 of the bill further permits the government
to retain permanently any unintentionally-acquired information
collected pursuant to wire, radio, or electronic communications
if the government finds foreign intelligence information is
present (current law is limited to the retention of radio
communications if there is information about a death or serious
bodily injury).
---------------------------------------------------------------------------
\7\ See new section 102B of FISA as proposed by the reported bill.
\8\ Section 106 of FISA (section 1806 of title 50) governs the use
of information collected via FISA.
---------------------------------------------------------------------------
In addition and significantly, the bill would eliminate
court review of intelligence programs. Section 11 of the bill
(incorporating the amendment offered by Representative Chris
Cannon (R-UT)) would preclude any court from hearing any case
or imposing any civil or criminal liability over any activity
related to any ``alleged intelligence program involving
electronic surveillance'' that is certified by the Attorney
General to be intended to protect the United States from a
terrorist attack. In addition to having the effect of
dismissing all pending challenges to the legality of the
president's warrantless surveillance program, this provision
would prevent any other legal challenges from being brought in
the future concerning any misuse or abuse of surveillance
powers.
The legislation contains other provisions that expand
Administration power to obtain information, including:
Section 3(a) of the legislation, which broadens
the government's ability to obtain information from foreign
persons located within the United States, including individuals
and corporations, even if they have no connection to a foreign
government or terrorist organization.\9\
---------------------------------------------------------------------------
\9\ Section 3(a) of the bill would add to the category of non-U.S.
persons who could be agents of foreign powers. It would include anyone
(including corporations) who ``is reasonably expected to possess,
control, transmit, or receive foreign intelligence information while
such person is in the United States, provided that the official making
the certification [for a FISA order] deems such foreign intelligence
information to be significant.'' Current law defines ``foreign
intelligence information'' as (1) that which can protect the United
States against terrorist attack or (2) information with respect to a
foreign power or territory that relates to the defense or security or
foreign affairs of the United States. 50 U.S.C. Sec. 1801(e).
Under the new definition, it is possible that the foreign employee
of a U.S. corporation could be subject to a wiretap if his or her job
entails working with encryption technology or computer parts (either of
which could constitute foreign intelligence information).
---------------------------------------------------------------------------
Section 6 of the bill, which permits any official
designed by the President, even those involved in leaking
classified information, to seek FISA surveillance requests.
Currently, only the National Security Adviser or Senate-
confirmed presidential appointees with responsibility for
national security or defense can submit a certification in a
FISA application that the wiretap is needed to collected
intelligence.\10\
---------------------------------------------------------------------------
\10\ The legislation also broadens the government's authority with
respect to emergency FISA surveillance, instances when the government
can use FISA surveillance absent a court order. In addition to
extending from 3 days to 7 days the period permitted for emergency
surveillance, it also would permit any Sentate-confirmed presidential
appointee to authorize emergency surveillance; current law limits that
authority to Justice Department officials: the Attorney General, Deputy
Attorney General, the Assistant Attorney General for National Security.
---------------------------------------------------------------------------
Section 7 of the legislation, which makes it more
difficult for judges to review extensions of FISA orders. Under
the legislation extensions of FISA orders would have to be
issued for periods of up to one year; the current limit is 90
days in most cases.
Section 7 of the legislation also eliminates the
requirement that the government obtain a court order prior to
installing a pen register or trap-and-trace device. The bill
does this by providing that anytime a judge issues an order for
electronic surveillance involving communications the judge also
must issue an order authorizing the use of pen register and
trap-and-trace devices related to such communications.
Section 7 permits any Senate-confirmed
presidential appointee to authorize emergency surveillance,
even those that have nothing to do with national security or
the Justice Department. Congress recently amended FISA to
permit the Deputy Attorney General or the Assistant Attorney
General for National Security to make such emergency
authorizations.\11\
---------------------------------------------------------------------------
\11\ Sec. 506(a)(5) of Public Law 109-177.
---------------------------------------------------------------------------
The bill also includes a few provisions nominally designed
to rein in surveillance abuses, but which appear in actuality
to be mere ``window dressing.'' For example, section 12 of the
bill contains a provision requiring the Director of the
National Security Agency, in consultation with the Director of
National Intelligence and the Attorney General, to submit to
the House and Senate intelligence committees a report on
minimization procedures.\12\ In addition, section 2 of the bill
includes a ``finding'' that the necessary and proper clause of
the Constitution grants Congress the authority to regulate the
President's power to gather foreign intelligence.\13\ This is a
non-binding assertion, and given the President's proclivity to
interpret laws that fly in the face of supposedly-binding
statutory language,\14\ cannot be expected to provide any
meaningful limitation on the president's authority. Also,
Section 9 states that reports on FISA use would go to all
members of the intelligence committees (as opposed the
committees as a whole as provided in current law). This modest
step will do very little to enhance accountability.
---------------------------------------------------------------------------
\12\ Section 12 of the reported bill. This report specifically
would pertain to the applicability of such procedures to information
concerning U.S. persons acquired under FISA electronic surveillance as
it has been defined prior to the date of enactment of this bill.
\13\ Section 2 of the reported bill.
\14\ Charlie Savage, Bush Challenges Hundreds of Laws: President
Cites Powers of His Office, Boston Globe, Apr. 30, 2006, at A1.
---------------------------------------------------------------------------
Finally, the legislation includes a number of miscellaneous
and less controversial provisions. For example, section 7 of
the legislation extends from 3 days to 7 days the period
permitted for emergency surveillance. Section 6 would permit
the government to submit a summary of information supporting a
FISA application as opposed to a complete description. Section
10 of the bill provides that if a FISA physical search or
surveillance warrant is issued for a person in the United
States, then that warrant would continue in effect if the
person leaves the United States.
Concerns With the Legislation
A. THE LEGISLATION CONTAINS SIGNIFICANT NEW STATUTORY AUTHORIZATIONS
THAT THREATEN THE PRIVACY OF INNOCENT AMERICANS
An initial concern with the legislation is that it does not
impose any limits on the President's power to conduct
warrantless surveillance on innocent Americans in violation of
FISA. This is because the bill does not state that it contains
the exclusive means for the government to conduct surveillance,
warrantless or otherwise.\15\ Rather, the legislation appears
to assume the president has ``inherent authority'' to conduct
the type of warrantless surveillance first disclosed by The New
York Times in December, 2005, and goes beyond that to grant the
president even further statutory authority to intercept the
communications of innocent Americans without any court
approval. The Justice Department even admitted as such when it
testified before the Crime Subcommittee that the bill and the
warrantless wiretapping program are separate.\16\
---------------------------------------------------------------------------
\15\ The Majority rejected two efforts at ensuring that FISA would
be the exclusive means of collecting foreign intelligence via
electronic surveillance. The Majority first rejected by a vote of 18-20
a bipartisan amendment offered by Representative Jeff Flake (R-AZ) and
Representative Adam Schiff (D-CA) that clarified that FISA was the
exclusive means of conducting such surveillance. The Majority also
defeated by voice vote an amendment offered by Representative Sheila
Jackson Lee (D-TX) clarifying such exclusivity.
\16\ H.R. 5825, the ``Electronic Surveillance Modernization Act:''
Hearing Before the Subcomm. on Crime of the H. Comm. on the Judiciary,
109th Cong., 2d Sess. (Sept. 12, 2006) (statement of John Eisenberg,
Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Dept.
of Justice).
---------------------------------------------------------------------------
Second, the legislation permits vastly expanded government
wiretapping of innocent Americans without a warrant and without
probable cause. As described above, the bill allows for
warrantless wiretapping of virtually all international
communications, even if they involve a person within the United
States, including U.S. citizens, as long as the government
asserts that it was not targeting a U.S. citizen. As Jim
Dempsey of the Center for Democracy and Technology testified,
``[c]urrently, FISA requires a court order to intercept wire
communications into or out of the [United States], many of
which involve U.S. citizens. Under the proposed new
[definitions in the bill], wire communications to or from the
[United States] could be intercepted using the vacuum cleaner
of the NSA, without a warrant, so long as the government is not
targeting a known person in the [United States].'' \17\ The
Computer and Communications Industry Association--a trade
association including Microsoft, Google, and Verizon--agreed,
writing that ``the mere possibility of widespread, secret, and
unchecked surveillance of the billions of messages that flow
among our customers, especially U.S. citizens, will corrode the
fundamental openness and freedom necessary to our
communications networks.'' \18\ The Administration has never
articulated why such vast new authority to conduct warrantless
surveillance involving innocent Americans is necessary, given
that FISA already permits surveillance to be conducted without
a warrant on an emergency basis prior to obtaining court
review.
---------------------------------------------------------------------------
\17\ Legislative Proposals to Update the Foreign Intelligence
Surveillance Act (H.R. 4976, H.R. 5223, H.R. 5371, H.R. 5825, S. 2453,
and S. 2455.): Hearing Before the Subcomm. on Crime of the H. Comm. on
the Judiciary, 109th Cong., 2d Sess. (Sept. 6, 2006).
\18\ Letter from Ed Black, President and CEO, Computer &
Communications Ind. Ass'n, to the Hon. F. James Sensenbrenner, Jr., and
the Hon. John Conyers, Jr., House Comm. on the Judiciary, Sept. 19,
2006. The Association further noted that this unchecked surveillance
could lead to retaliation and similar communications surveillance on
Americans by other countries. It wrote that its ``industry is
confronted with escalating monitoring and surveillance by repressive
foreign regimes. When challenged, totalitarian states often justify
their policies by pointing to U.S. government practices.'' Id.
---------------------------------------------------------------------------
Third, the legislation authorizes the Attorney General to
unilaterally engage in non-electronic surveillance involving
innocent Americans (such as reviewing stored communications and
call records) and unilaterally issuing directives against
communications providers to obtain both electronic surveillance
and other information. We have never received any justification
for such broad new and unchecked authority, which was slipped
into the legislation at the last minute with no supporting
record or adequate explanation.
Fourth, we are concerned that allowing the government to
maintain permanent records on innocent U.S. citizens based on
the records of their warrantless surveillance would also
unnecessarily intrude on the privacy rights of innocent
Americans. Under current law, the required destruction of
unintentionally-acquired FISA information ensures that the
government cannot maintain records on individuals, such as
American citizens, who pose no threat to the nation. The bill
would remove entirely any protections that U.S. citizens and
lawful permanent residents have from government surveillance.
These records could include information related to First
Amendment and Second Amendment activity. Again, we have never
received a justification for such expanded intrusions on
American's privacy.
Fifth, the legislation includes an unprecedented court
stripping provision in the form of the Cannon Amendment which
would not only terminate pending and future cases challenging
the president's controversial warrantless surveillance program,
but would nullify the few rights provided to American citizens
in the legislation. For example, while the legislation grants
persons the nominal right to challenge directives to provide
intelligence information to the Attorney General, the Cannon
amendment--which supercedes any and all inconsistent laws--
strips the court of that authority.
Finally, we would dispute the proponents much repeated
assertion that the committee-reported legislation is needed to
``modernize'' FISA and make it ``technology neutral.'' The
Congressional Research Service has confirmed that since its
inception in 1978, 51 separate provisions in twelve different
laws have updated FISA, many of them made in the last five
years.\19\ To the extent further changes are required, we all
supported the provisions included in the Schiff-Flake
substitute which eliminated the law's differential treatment of
different technologies and approved warrantless surveillance of
all foreign-to-foreign communications which transmit through
the U.S.
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\19\ Since the September 11 attacks, Congress amended FISA to
extend its emergency exemption from 24 to 72 hours, and the PATRIOT Act
included some twenty-five separate updates to FISA including: (i)
expanding the scope of FISA pen register authority; (ii) lowering the
standard for FISA pen-traps; (iii) lowering the legal standard for FISA
surveillance; (v) extending the duration of FISA warrants; (vi)
expanding the scope of business records that can be sought with a FISA
order; (vii) allowing for ``John Doe'' roving wiretaps; (vii) requiring
the intelligence community to set FISA requirements and assist with
dissemination of FISA Information; (ix) immunizing those complying with
FISA orders; (x) lowering the standard for National Security Letters;
and (xi) expanding NSL approval authorities. Subsequent to the passage
of the PATRIOT Act, Congress has again at the Administration's request
broadened FISA to allow surveillance of ``Lone Wolf'' terrorists and
the FISA courts have streamlined their procedures to accommodate the
Administration's requests.
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B. THE LEGISLATION RAISES SIGNIFICANT CONSTITUTIONAL QUESTIONS
The legislation raises serious if not intractable questions
under both the Fourth Amendment and the principle of separation
of powers and due process.
First, the bill may well violate the Fourth Amendment
protections against ``unreasonable searches and seizures,'' and
requiring judicially approved warrants issued with
``particular[ity]'' and ``upon probable cause.'' There is
little doubt that the Fourth Amendment fully applies to
electronic surveillance. In Katz v. United States,\20\ the
Supreme Court held that the Fourth Amendment requires adherence
to judicial processes in the case of national security
wiretaps, and that searches conducted outside the judicial
process, are per se unreasonable under the Fourth Amendment,
subject only to emergency and similar exceptions. In United
States v. U.S. District Court (the Keith case),\21\ the Court
specifically held that, in the case of intelligence gathering
involving domestic security surveillance, prior judicial
approval was required to satisfy the Fourth Amendment.\22\ As
discussed above, the legislation permits the widespread
practice of intercepting the international telephone calls and
e-mails of innocent Americans. As such, it would seem to
contradict the requirements of the Fourth Amendment, as long
interpreted by the courts.
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\20\ 389 U.S. 347 (1967).
\21\ 407 U.S. 297 (1972).
\22\ Id. at 313-14, 317, 319-20. The Court further stated: ``These
Fourth Amendment freedoms cannot properly be guaranteed if domestic
security surveillance may be conducted solely within the discretion of
the Executive Branch.'' Id. at 317-318.
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Second, the bill would seem to violate separation of powers
and due process requirements.\23\ It does so with respect to
the Cannon amendment, which would preclude any court from
hearing any legal challenges related to intelligence programs
involving electronic surveillance. Despite the fact that
Article III of the Constitution grants to the courts the
judicial power over all cases in law and equity arising under
the Constitution and laws of the United States, and harmed
individuals have long been understood to be entitled to assert
their due process rights in a court of law, the Cannon
amendment would bar existing and future lawsuits and preclude
any civil or criminal liability, including injunctive relief,
for any activity related to any intelligence program involving
FISA's definition of electronic surveillance.\24\ Such immunity
is retroactive to any program in existence dating back to
September 11, 2001. As noted above, the practical impact of the
Cannon amendment is to nullify the enforceability of any rights
granted in the bill or otherwise to protect one's privacy. Kate
Martin of the Center for National Security Studies notes the
breadth of the Cannon amendment, observing, ``the amendment . .
. would jeopardize Americans'' fundamental right to challenge
unconstitutional surveillance of their communications in
court.''
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\23\ By denying the courts their historical role as the final legal
authority, the legislation appears to usurp judicial power. Since the
Supreme Court's ruling in Marbury v. Madison, the separation of powers
doctrine has been well established. See Marbury v. Madison, 5 U.S. 137
(1803).
\24\ It is important to note that the Majority rejected by a vote
of 14-22 an amendment offered by Representative Jerrold Nadler (D-NY)
to preserve the ability of courts to order injunctive relief for
unlawful government programs.
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C. THE LEGISLATION WAS CONSIDERED UNDER A FLAWED AND UNFAIR PROCESS
The entire process by which this legislation traveled
through the Judiciary Committee was seriously flawed. At the
outset, attempts at conducting independent investigations of
the President's program were thwarted at every turn. Nearly
nine months after we first learned of the warrantless
surveillance program, there has been no attempt to conduct an
independent inquiry into its legality. Not only has Congress
failed to conduct any sort of investigation, but the
Administration summarily rejected all requests for special
counsels as well as reviews by the Department of Justice and
Department of Defense Inspectors General.\25\ When the Justice
Department's Office of Professional Responsibility finally
opened an investigation, the President himself squashed it by
denying the investigators security clearances.\26\ Furthermore,
the Department has completely ignored the numerous questions
posed by this Committee and the Wexler Resolution of Inquiry
the Judiciary Committee previously adopted requesting copies of
Administration documents concerning surveillance
activities.\27\
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\25\ Letter from Glenn A. Fine, Inspector General, Department of
Justice, to Congresswoman Zoe Lofgren et. al. (Jan. 4, 2006); Letter
from Thomas F. Gimble, Acting Inspector General, Department of Defense,
to Congresswoman Zoe Lofgren et. al. (Jan. 10, 2006).
\26\ Dan Eggen, Bush Thwarted Probe into NSA Wiretapping, Wash.
Post, July 19, 2006, at A4 (referring to testimony of Attorney General
Alberto Gonzales before the Senate Judiciary Committee).
\27\ H. Res. 819, 109th Cong., 2d Sess.
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Second, Members of the Committee have never been briefed on
the nature and extent of the President's warrantless
surveillance program. Although, the Justice Department did
conduct a briefing for House Judiciary Committee Members on
September 12, 2006, that briefing was limited to the tech
neutrality portion of the Wilson bill. The NSA failed to honor
or even respond to a request made by sixteen Democratic Members
of the Judiciary Committee for even a classified briefing on
the entirety of the NSA program.\28\
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\28\ Letters from Democratic Members, U.S. House Comm. on the
Judiciary, to Robert Deitz, General Counsel, NSA (Sept. 12, 2006).
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Third, the process by which the markup was conducted was
both haphazard and unfair, as the Majority substantially
altered the bill without providing Minority Members any notice
or opportunity to review the 25 pages of changes. Dispensing
with the usual practice of alternating between Majority and
Minority amendments, after offering his own amendment, Chairman
Sensenbrenner recognized, over Democratic protestations,
Representative Dan Lungren (R-CA) to offer an amendment that
substantially altered the underlying bill. By virtue of its
scope, the Majority's amendment precluded numerous additional
Democratic amendments. Representative Conyers raised a ``point
of procedure,'' recalling that the normal practice is to
alternate between Majority and Minority Members. Chairman
Sensenbrenner responded by saying ``Well, the Gentleman from
California is very pushy so he's been recognized.'' \29\ It is
also notable and unfortunate that the Chairman ruled
Representative Cannon's amendment which provided that
notwithstanding any other law precludes court review of ``any
alleged intelligence program involving electronic
surveillance'' to be in order, again over Democratic
objections. In point of fact, such an amendment falls outside
the jurisdiction of the Judiciary Committee's jurisdiction
should not have been considered at our markup.
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\29\ Markup of H.R. 5825, the ``Electronic Surveillance
Modernization Act,'' House Comm. on the Judiciary, 109th Cong., 2nd
Sess. (Sept. 20, 2006). Once debate began on the amendment,
Representative Conyers asked that the amendment be withdrawn until the
Members had time to digest its contents. Mr. Conyers acknowledged the
possibility that Democrats might agree with the substance of the
amendment but that more time was needed to review it. He also noted
that there were changes to at least 6 sections of the underlying bill,
that the amendment was 25 pages long, and that staff for the Minority
had not been consulted about any of these changes. He stated that it
was ``impossible for this Member to gain any appreciation of the
significant changes the Gentleman has attempted'' and asked that it be
withheld until Democrats had the ``opportunity to examine it with the
care that is required.'' Id. Representative Schiff also asked for
cooperation in light of the fact that he and Representative Flake had
been working on a bipartisan substitute to the underlying bill. He
noted that there was no way to know how the changes from the Lungren
amendment affected the carefully drafted substitute. Id. Representative
Conyers moved to table the Lungren amendment but the Chairman
prohibited the motion from being offered. Representative Nadler then
moved to adjourn the Committee meeting until the following day so that
the Members could have a chance to review the amendment. On a party-
line vote, this motion was defeated 14-17. The amendment eventually
passed the committee by a vote of 17-2.
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Conclusion
We believe that every communication to and from an al Qaeda
member should be subject to government surveillance and support
Congress providing the President with the tools needed to
accomplish that goal. In doing so, however, Congress must not
abdicate its responsibility or negate the role of the courts to
act as a check against unilateral presidential powers. We
dissent from the legislation before us because it fails to rein
in the president's warrantless surveillance program, expands
the NSA's authority to expose millions of innocent Americans to
warrantless surveillance, jeopardizes the privacy rights of
American citizens and raises serious and significant
constitutional concerns. The American people deserve better
than this bill and this ill-conceived process of legislating.
John Conyers, Jr.
Rick Boucher.
Robert C. Scott.
Zoe Lofgren.
Maxine Waters.
Bill Delahunt.
Anthony D. Weiner.
Linda T. Sanchez.
Debbie Wasserman Schultz.
Howard L. Berman.
Jerrold Nadler.
Melvin L. Watt.
Sheila Jackson Lee.
Martin T. Meehan.
Robert Wexler.
Adam B. Schiff.
Chris Van Hollen.
ADDITIONAL VIEWS
We could not support H.R. 5825, the ``Electronic
Surveillance Modernization Act,'' because of the wholesale
changes the legislation would make to our existing regime of
domestic electronic surveillance and the impact these changes
would have on the expectations of privacy shared by each United
States citizen.
Instead, we offered a bipartisan amendment in the nature of
a substitute to ensure that the Government has all the tools
necessary and all the authority required to pursue al Qaeda and
other terrorists who would seek to harm our country. Our
amendment also stood for the principle that administrative
burden and load, as we use all the tools available to fight
terrorism, should not supersede devotion to the Constitution
and the expectation of privacy of each United States citizen.
While the President possesses the inherent authority to
engage in electronic surveillance of the enemy outside the
country, Congress possesses the authority to regulate foreign
intelligence surveillance within the United States. Congress
has indeed spoken in this area through the Foreign Intelligence
Surveillance Act (FISA). When Congress passed FISA, it intended
to provide the sole authority for such surveillance on American
soil. Our amendment would have reinforced this existing law--
that the government must obtain a court order when U.S. persons
are targeted or surveillance occurs in the United States.
Our bipartisan substitute also responded to the issues that
have been raised by officials at the NSA and the Department of
Justice over the last several months in testimony to Congress.
First, the proposal made clear that foreign-to-foreign
communications are outside of FISA and don't require a court
order. If a communication to which a U.S. person is a party is
inadvertently intercepted, minimization procedures approved by
the AG should be followed.
Second, our amendment provided an extension of the FISA
emergency exception from 72 hours to 168 hours, or seven days.
This permits law enforcement to initiate surveillance in an
emergency situation before going to the FISA court for a
warrant. If the current 72 hours has been sufficient in the 5
years since September 11th, surely 7 days can be considered a
significant improvement. Importantly, this authority can be
used to thwart imminent attacks.
Third, our amendment expanded the FISA ``wartime
exception'' to provide that in addition to a ``declaration of
war'' by Congress, that an ``authorization for the use of
military force'' can also trigger the FISA ``wartime
exception'' for purposes of allowing 15 days of warrantless
surveillance if there is an explicit provision authorizing
electronic surveillance under that FISA provision.
Finally, our amendment streamlined the FISA application
process, provided authorization to appoint additional FISA
judges and additional personnel at DOJ, the FBI, and the NSA,
to ensure speed and agility in the drafting and consideration
of FISA order applications.
Electronic surveillance of al Qaeda operatives and others
seeking to harm our country must continue; it simply can and
should comply with FISA. We believe our substitute accomplished
these joint goals.
Adam B. Schiff.
Jeff Flake.
