[Congressional Record: October 16, 2007 (House)]
[Page H11622-H11628]


                              {time}  2000

                                  FISA

  The SPEAKER pro tempore. Under the Speaker's announced policy of
January 18, 2007, the gentleman from California (Mr. Daniel E. Lungren)
is recognized for 60 minutes as the designee of the minority leader.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, thank you for the
recognition.
  And I would say that this week ought to be known as ``FISA week.''
The reason I say that is because this week we will make an important
vote on determining whether or not we will have the ability to defend
our country, both now and in the future.
  As we have moved on a bipartisan basis since 9/11 to attempt to meet
the challenge of the threat internationally that is sometimes called
the ``war on terror,'' sometimes called the ``war of Islamo-fascism,''
sometimes called the ``war on radical jihad,'' no matter what the name,
the American people know what it is we are speaking of. We have, in
this House, in the Senate and in the executive branch adopted an
analysis which allows us to respond in the most effective way, and that
analysis is a risk-based analysis. And simply put, broken down into its
constituent parts, risk equals threat plus vulnerability plus
consequence.
  The interesting thing in this equation is that the knowledge base of
the bottom two elements, vulnerability and consequence, are within our
grasp. Now, what do I mean by that? What I mean by that is
vulnerability is our ability to assess how vulnerable our assets are
that might be attacked by the enemy surrounding us. We can make
educated judgments with respect to those assets, their value, how they
could be attacked or destroyed, and how we can protect them against
such attack or attempt of destruction.
  Similarly, consequence is within our knowledge base. We know, with a
successful attack, what the consequence would be. For instance, if the
attack were lodged against a dam, a catastrophic event, a collapse of a
dam as a result of an attack, we can measure what the consequences
would be. How? Well, we know the number of people that would be in the
way. We know the number of buildings that would be in the way. We can
make a determination as to the overall destructive power of the surging
water that would come through a destroyed dam. We can make an educated
judgment as to the time by which those assets that would be destroyed,
the time it would take to restore such assets, such as highways,
byways, such as shopping malls, homes, hospitals, all of those sorts of
things. So, within our risk assessment, we are capable, more or less,
of determining what our vulnerability is and what the consequences of a
successful attack would be.
  There is a third element, threat, which is not as much in control of
our already existing knowledge. Why? Because threat essentially is the
intention of the enemy, the targets of the enemy, the timing of the
enemy. That's what, in fact, a threat is. So, since that knowledge base
is not within our power, essentially, how do we deal with that? How do
we calculate what the threat is? We do so by utilizing intelligence. We
gather intelligence. We find information from the other side, if you
will, of the battle.
  This is not a novel approach. It is recognized in the Constitution
and the interpretations of the Constitution by the Supreme Court and
other Federal courts from the beginning of this Republic in that it is
recognized that the President of the United States was given Commander-
in-Chief powers. Why? Because of the failure of the Continental
Congress, because of the failure of the first Confederation of States
when they found that you could not have multiple commanders in chief.
You had to have a single executive, particularly in the area of war,
defense of our country, or relationships with foreign governments.
  Now, implicit in the ability or the capability of a Commander-in-
Chief to exercise military strength on behalf of the Nation to defend
itself, that is, to destroy those who would attempt to destroy us, yes,
to give the President of the United States the power to exercise lethal
action against the enemy, and that means, quite frankly, to wound or
kill the enemy, to stop the enemy from destroying us, implicit in that
authority is the authority to gather intelligence, the authority to
gather foreign intelligence. In other words, one of the ways you find
out what the enemy is to do on the battlefield is to find out what he
is saying, the conversations that take place on the other side, the
plans that they are developing, and the commands that they give to
carry out their intended lethal action. That, essentially, is foreign
intelligence.
  And what we are going to vote on this week is something called the
Foreign Intelligence Surveillance Act, FISA. Now, the reason I bring
this to the floor and I spell out these words is to remember what the
focus of this bill is. It is on foreign intelligence, not domestic
intelligence, not the ability to try and stop the mob from acting in
the United States, not the ability to stop certain criminals in the
United States from committing a crime or to investigate after they've
committed the crime in order to prove up the case against them and to
give them their just punishment, but rather, foreign intelligence,
intelligence which deals with foreign governments, foreign powers, and
associated organizations or people.
  The FISA Act was passed by the Congress in 1978, intended to
establish a statutory procedure authorizing the use of electronic
surveillance in the United States against foreign powers or agents of
foreign powers. FISA established two new courts. First, the Foreign
Intelligence Surveillance Court, which authorizes such electronic
surveillance, and secondly, the U.S. Foreign Intelligence Surveillance
Court of Review, which has jurisdiction

[[Page H11623]]

to review any denial of an order under FISA. These courts are made up
of Federal judges from around the country, and they meet in secret
session here in Washington, D.C.
  I would note that the House Permanent Select Committee on
Intelligence report that accompanied FISA in 1978 clearly expressed
Congress' intent to exclude from coverage overseas intelligence
activities. In other words, they never intended for the FISA court and
procedure to somehow have authority over what is truly overseas
intelligence activities dealing with foreign intelligence or
intelligence of foreign governments or foreign organizations.
  The report stated this: ``The Committee has explored the feasibility
of broadening this legislation to apply overseas, but has concluded
that certain problems and unique characteristics involved in overseas
surveillance preclude the simple extension of this bill to overseas
intelligence.'' In other words, it was not the focus of the 1978 act,
rather, the act focused on domestic surveillance of persons located
within the United States. The law was crafted specifically to exclude
surveillance operations against targets outside the U.S., including
those circumstances where the targets were in communication with
Americans, as long as the U.S. side of the communication was not the
real target. That's a very important thing to understand.
  In the ability to be able to record these messages or in some way
pick up these communications, you really have the ability to target one
side of the communication. And so what we do is we target a foreign
person in a foreign country.

  Contrary to what Congress originally intended, due to the changes in
technology and resulting interpretation of the FISA Act, warrants have
been recently required in order to conduct surveillance against
terrorists located overseas in some circumstances. Why? The technology
changed in that, in 1978, most local communication was by wire, most
international communication was wireless by satellite. We could take it
basically out of the air, for want of a better description, and it was
overseas. The 1978 act did not contemplate bringing those
conversations, those communications within the ambit of FISA.
  In the intervening years, we've had a revolution in technology by
which most local communication now is by wireless and international
communication basically comes by wire. And the fact of the matter is
the nodes or the centers or the switching places, whatever you want to
call it, not technical terms, happen to be, most of them, in the United
States. And so suddenly the interpretation of FISA, now looking at the
connection where you would try and somehow be able to capture this
conversation that really was of someone overseas and not American, now,
because it transited somehow the U.S., an interpretation by the FISA
court was that a warrant was now needed.
  Now, why would this present a problem for our intelligence community?
Admiral McConnell, the former head of the National Security Agency,
NSA, under President Clinton and now the current Director of National
Intelligence, explained this to our Judiciary Committee. It takes about
200 man-hours to prepare a request for a court order in the FISA court
for just one telephone number; 200 man-hours. As he explained to the
judiciary in the other body, intelligence community agencies were
required to make a showing of probable cause in order to target for
surveillance the communications of a foreign intelligence target
located overseas; then, they need to explain the probable cause finding
in documentation and obtain approval of the FISA court to collect
against a foreign terrorist located in a foreign country.
  Frequently, although not always, that person's communications were
with another foreign person located overseas. In such cases, prior to
the Protect America Act, that's the act that we passed before we left
in August, which I might add is not going to be allowed to be
considered on the floor, at least the Rules Committee told us earlier
today they would allow no amendments, the FISA's requirement to obtain
a court order based on a showing of probable cause slowed, and in some
cases, prevented altogether the government's ability to collect foreign
intelligence information out serving any substantial privacy or civil
liberties interests.
  Again, as the legislative history of the 1978 FISA Act made clear, it
was never the intention of the act to cover surveillance of non-U.S.
persons overseas so long as the U.S. person located in the United
States was not the real target of the surveillance. Yet prior to the
enactment of the bill that we passed in August, which has a sunset in
February of next year, that's the reason we have to consider it this
week, our intelligence community was saddled with the requirement that
they devote substantial resources for the preparation of applications
required to be submitted to the FISA court.

                              {time}  2015

  As an economist might say, this substantial diversion of resources
imposed opportunity costs measured in terms of the intelligence
analysis which was not done because of the need to complete paperwork
in order to surveil foreign intelligence assets outside the U.S. who
were never intended to be covered by the old law. In other words, you
had to take the analysts off the job of looking at current
communications that might protect us against attacks in the United
States or elsewhere by those who want to kill Americans, who have said,
by the way, that they would be justified in killing 4 million
Americans, 2 million of whom would be women and children. We take them
off that pursuit and instead put them on this job of doing the
intellectual work that would allow for the paperwork to be presented to
the FISA Court.
  Furthermore, in response to a question I posed to him, Admiral
McConnell affirmed that prior to the Protect America Act, again, the
act we passed just before we left in August, the intelligence community
attempted to work under the laws interpreted by the court but found
that as a result of working under those restrictions, his agency was
prohibited from successfully targeting foreign conversations that
otherwise would have been targeted for possible terrorist activity.
Think of that: those kinds of conversations that we always were able to
pick up before, before we ever had a FISA, after we had the 1978 FISA
Act, we were not able to pick up anymore.
  In fact, he said that prior to the enactment of the Protect America
Act this past August, we were not collecting somewhere between one-half
and two-thirds of the foreign intelligence information which would have
been collected were it not for the recent legal interpretations of FISA
requiring the government to obtain FISA warrants for overseas
surveillance. To put it in graphic terms, we have put blinders on one
of our two eyes as to the ability for us to look at those dots and
connect those dots that the 9/11 Commission said we weren't finding and
weren't connecting before 9/11.
  The consequences of this for our Nation's security are very real. As
Admiral McConnell explained to our committee: ``In the debate over the
summer and since, I heard from individuals from both inside and outside
the government assert that threats to our Nation do not justify this
authority. Indeed, I have been accused of exaggerating the threats that
face our Nation,'' said Admiral McConnell.
  He continued: ``Allow me to attempt to dispel this notion. The
threats that we face are real and they are indeed serious. In July of
this year, we released a National Intelligence Estimate, commonly
referred to as an NIE, on the terrorist threat to the homeland. In
short, these assessments conclude the following: the United States will
face a persistent and evolving terrorist threat over the next 3
years.'' Why 3 years? That is the total time of the NIE. They are not
saying it will only just be 3 years, but in the time frame that they
were supposed to assess, this threat will continue.
  They say that the main threat comes from Islamic terrorist groups and
cells, especially al Qaeda. Al Qaeda continues to coordinate with
regional terrorist groups such as al Qaeda in Iraq, across North Africa
and other regions.
  Al Qaeda will likely continue to focus on prominent political,
economic, and infrastructure targets with a goal of producing mass
casualties. Mass casualties. That means thousands, if not millions, of
Americans if they were successful. Visually dramatic destruction,
significant economic aftershock and fear among the

[[Page H11624]]

U.S. population. These terrorists are weapons proficient. They are
innovative and they are persistent. Al Qaeda will continue to seek to
acquire chemical, biological, radiological and nuclear material for
attack; and they will use them given the opportunity. This is the
threat we face today and one that our intelligence community is
challenged to counter. So says Admiral McConnell.
  This is the real issue, the 800-pound gorilla in the room, if you
will, which remains the central question before us: How do we best
protect America and the American people from another cataclysmic event?
I do not believe it is good enough for us to say we are preparing to
respond to an attack. I believe what we need to do is to prepare to
prevent such an attack.
  As I have suggested before, when you assess the risk which allows us
a proper assessment to be able to determine how we best array our
resources against such an attack, we need to have threat, plus
vulnerability, plus consequence. And the only way you can assess threat
is by having proper intelligence.
  As the National Security Estimate makes clear, those who seek to kill
us continue in their resolve to, once again, inflict mass casualties
upon our Nation. The threat is still there. Although we have been
successful in thwarting another attack since 9/11, there are no
guarantees in this business. In fact, if you would look at the polls
that I've seen most recently, you will find that something like 70
percent of the American people, in fact I believe it is 73 percent of
the American people in the latest poll I saw, believe that we, that the
U.S. Government, has been effective in forestalling a terrorist attack
on our shores. However, 57 percent believe that we are less safe. So
you put those two things together, you try and figure out what the
American people are saying. I think what we are saying is they believe
that many of the things that we have done in government with the
support of the American people and the funding of the American people
have been successful in forestalling a terrorist attack on American
shores, but they know that al Qaeda and their affiliates and associates
have not been deterred to the extent that they are still trying to do
us harm.
  So they see a continuing problem, and they expect us to see the
continuing problem and bring us the efforts necessary to protect
against a successful attack as seen from the other side.
  Independent sources such as Brian Jenkins in the RAND Corporation
have stressed that intelligence capability is a key element in our
effort to protect our homeland. He states this: ``In the terror attacks
since 9/11, we have seen combinations of local conspiracies inspired
by, assisted by, and guided by al Qaeda's central leadership. It is
essential that while protecting the basic rights of American citizens,
we find ways to facilitate the collection and exchange of intelligence
across national and bureaucratic borders.''
  In this regard, Admiral McConnell came before us last August asking
for changes in the 1978 FISA Act. When you think about it, a definition
of ``electronic surveillance'' constructed almost 28 years ago
certainly could not have kept pace with changes in technology.
Ironically, as I said, when FISA was first enacted, almost all
international communications were wireless. The cell phone did not even
exist. Although the revolution in telecommunications technology has
improved the quality of all of our lives, it has taken a quantum leap
beyond the law.
  When FISA was passed in 1978, almost all local calls were on a wire
and almost all international calls were wireless. However, now the
situation is upside down. International communications which would have
been wireless 29 years ago are now transmitted by wire. While wireless
radio and satellite communications were excluded from FISA's coverage
in 1978, certain wire or fiber optic transmissions fell under the
definition of electronic surveillance. Thus, changes in technology have
brought communications within the scope of FISA which Congress never
intended to cover in 1978.

  Similarly, the rise of a global telecommunications network rendered
irrelevant the premium placed on geographic location by the 1978 act.
As Admiral McConnell explained to our committee, it is the Judiciary
Committee, in the old days location was much easier. Today, with mobile
communications, it is much more difficult.
  So a target can move around. So the evolution of communications over
time has made it much more difficult. So what we were attempting to do
is get us back to 1978 so we could do our business and legitimately
target foreign targets and keep track of threats and respect the
privacy rights of Americans. Because a cell phone, he continued, for
example, with a foreign number, GSM system, theoretically could come
into the United States and you wouldn't appreciate it had changed. So
you would have to now work that problem, and if you did then determine
that it was in the United States and you had a legitimate foreign
intelligence interest, at that point, you have to get a warrant.
  It was with this backdrop that we enacted the Protect America Act
this past August. According to Admiral McConnell, this act has provided
us with the tools to close our gaps in our foreign intelligence
collection. Think of that. That is what the 9/11 Commission asked us to
do, close those gaps. He found those gaps that were at least as wide
and even wider following the decision by the FISA Court earlier this
year. He said, and says, that the bill we passed in August has closed
those gaps.
  He described five pillars in the important new law. First, it
clarified the definition of electronic surveillance under FISA that it
would not be interpreted to include surveillance directed at a person
reasonably believed to be located outside the U.S. Under the law, it is
not required for our intelligence community to obtain a FISA warrant
when the subject of the surveillance is a foreign intelligence target
located outside the U.S. This important element of the law is entirely
consistent with the legislative history of the 1978 act. As I
previously mentioned, it was not intended to reach foreign intelligence
outside the U.S.
  The second pillar of the act we passed in August establishes a role
for the FISA Court in determining that the procedures used by the
intelligence community are reasonable in terms of their capacity to
determine that surveillance target is outside the U.S. The third pillar
of the act provides the Attorney General and the Director of National
Intelligence with the authority to direct communications providers to
provide information, facilities and assistance necessary to obtain
other information when targeting foreign intelligence targets outside
the U.S.
  The corollary of this obligation to provide intelligence information
is the fourth pillar which establishes liability protection for private
parties who assist the intelligence community when complying with a
lawful direction under the law.
  Finally, the law continues the requirement that the intelligence
community must obtain a court order to conduct electronic surveillance
or a physical search when the targeted person is located in the U.S.
  Admiral McConnell defined the concept of the gap to be closed to mean
foreign intelligence information that we should have been collecting. I
am sure that most Americans would agree with the admiral that in a
world with weapons of mass destruction there is no room for gaps in our
intelligence capacity. Let me repeat: this is the considered judgment
of a career officer in the U.S. Navy who headed the National Security
Agency under President Clinton for 4 years and who now serves as the
Director of National Intelligence. It is his considered judgment that
the changes we made in the law in August were necessary.
  Although it was scheduled to sunset 180 days after enactment on
February 5, the ink was hardly dry before the left-wing blogosphere was
going bananas. Now, don't get my wrong. I defend the right of any
American to scrutinize and seek a different course concerning our
national security policy. However, based on Admiral McConnell's service
to his country to Democrat and Republican administrations, I would
suggest that those who seek substantive changes in what he has told us
to be necessary should face a heavy burden of proof. In fact, in his
appearance before the Judiciary Committee while reserving the right to
see the fine print, he indicated he himself was open

[[Page H11625]]

to discussions concerning changes in the end.
  I would also make the observation that it is time for all of us to
agree that this is not about President Bush. Whether you hate him or
love him or don't have any feelings about him at all, that is not the
issue here. We are talking about the security of our Nation, the safety
of our people, the men, women, children, grandchildren we encounter in
our districts at Little League games, Girl Scout meetings, and our town
halls. Those who send us here to represent them are depending on us to
protect their lives and the lives of their children. This is the
context within which we must consider this ultimate matter of our
responsibility.
  While the law we passed in August, the Protect America Act,
represents a major step forward in protecting the American people,
there remain elements of the larger package unveiled by Admiral
McConnell and General Hayden which should receive our prompt attention.
  First and foremost, it is imperative for this body to extend
liability protection to companies who responded to the entreaties of
their government since the 9/11 attacks. That is why I am so
disappointed when I appeared before the Rules Committee earlier today
and we were told, as we walked in, as anybody walked in with an
amendment, We will listen to you, but we have already decided it is
going to be a closed rule. One of the amendments offered would have
given this liability protection. At a time when our country was in
peril, these companies responded to the call for help. In an earlier
era, maybe in a simpler time, this might have been described as
patriotism. But now, instead of kudos, what do they get? They receive a
summons and a complaint. They were met by costly litigation because of
their willingness to respond to our country in a time of need.
  When we brought the issue up in our Judiciary Committee, one of the
members on the other side of the aisle said, Well, these companies have
millions dollars' worth of lawyers so they can defend themselves. Boy,
that is the way we ought to do things. We are going to fight the war on
terror with summonses and warrants.

                              {time}  2030

  We are going to sue them out of existence. Oh, I'm sorry. We are not
suing the terrorists; we are suing the companies who helped us respond
to the terrorists. Figure that one out.
  Mr. Speaker, I would go so far as to suggest that regardless of what
you think of the war in Iraq, regardless of what you may think of the
war on terror, this violates all notions of fundamental fairness. It
sends the worst possible message, not only to companies, but to the
American public itself, that those who would come to the aid of their
country are fools, and it is those on such an ideological crusade
seeking to protect this Nation through lawsuits that are somehow the
true American heroes. Rosy the Riveter of World War II fame has been
replaced by lawyers in three-piece suits.
  Some of you may be old enough to remember the standard text used in
our typing classes. We would practice over and over again. Boy, I
recall this, typing out the following sentence: Now is the time for all
good men to come to the aid of their country. Of course it would have
been better stated that: Now is the time for all good men and women to
come to the aid of their country.
  This was an ethos which went unchallenged. Believe me, in typing
classes it wasn't a Republican idea, it wasn't a Democratic idea, it
was an American idea, so noncontroversial, that it was standard text:
Now is the time for all good men and women to come to the aid of their
country.
  Mr. Speaker, we must not send a message to our companies and the
American people that if you respond to your government when our fellow
citizens are threatened by a cataclysmic attack that the very
government which sought your help will not be there for you when the
ideologues come after you with lawsuits.
  Even if you hate this President so much you can't see him to succeed
in anything, at least consider the possibility that there will be a war
down the line that you may support. Furthermore, those who drive around
with 1/20/09 bumper stickers need to consider the fact that maybe,
possibly there could be a new occupant in the White House more to their
liking. He or she is going to need all the help that he or she can get.
  Mr. Speaker, the war on terror is not going to end with the term of
the current President. The new administration is going to need to call
on the help of all Americans, including companies like those whose only
offense was to respond to the tragedy of 9/11. By what? Serving their
government.
  Consider the additional downside of using litigation as an
ideological weapon. As anyone who picks up the daily newspaper knows,
there is always a story concerning the latest lawsuits. The litigation
system can produce leaks of the most sensitive information. It is not
the dissemination of information to the public which is even our
principal concern. Rather, potential leaks of sensitive information to
terrorists will better equip them with the ability to maneuver in the
plan which they are committed to doing, killing innocent Americans.
  Unfortunately, H.R. 3773, to be considered on this floor, the so-
called RESTORE Act that we passed out of Judiciary Committee last week
and passed out of the Intelligence Committee, and which is scheduled
for floor action as early as tomorrow, fails to address this issue. It
does nothing, zero, provides no protection for the companies who came
to the aid of our Nation after 9/11. As a matter of fact, if you listen
to what happened in the Rules Committee, if you heard the debate in the
Judiciary Committee, I presume if you heard the debate in the
Intelligence Committee, you would not consider these companies to be
something valuable in the defense of our Nation. They are suspect. They
are questioned. They are, in essence, patsies, if you really look at
this.
  Mr. Speaker, the Protect America Act does not contain retroactive
liability protection; not because we didn't believe in it, but because
Admiral McConnell agreed to delay discussion on the agreement in order
to reach an agreement on the law we passed in August to enable us to
close the critical gaps in our Nation's intelligence-gathering ability
prior to the August break. Since by its own terms that law was to
expire February 5, this was an issue to be resolved at this time.
  Unfortunately, the RESTORE Act resolves it by ignoring it. It is,
therefore, essential for this body to take the necessary action to
ensure that those who responded to the call for help after 9/11 will
not be fed to the litigators.
  Mr. Speaker, I would be pleased to yield to my friend from New Mexico
(Mrs. Wilson), a member of the Intelligence Committee, a former member
of our military forces, and someone who has been probably the most
articulate in explaining the need for the changes in the law that we
passed in August and for making that permanent as we go forward.
  Mrs. WILSON of New Mexico. Mr. Speaker, I thank my colleague from
California. I very much appreciate his hosting this Special Order this
evening.
  Mr. Speaker, before the August break we fixed a problem. It was a
problem that grew worse over the course of this year in that we were
increasingly hampered in our ability to prevent another terrorist
attack on this country because of the change in telecommunications and
a law that was woefully outdated.
  It's called the Foreign Intelligence Surveillance Act. It was put in
place in 1978 to protect the civil liberties of Americans. Think about
it. 1978 was the year that I graduated from high school. The telephone
hung on the wall in the kitchen. Cell phones had not been invented. The
word ``Internet'' did not even exist. Technology has changed since
1978, and the law had not kept pace.
  In 1978, almost all long-haul communications went over the air.
Almost all international communications went over the air, and they
were explicitly exempted from the provisions of the Foreign
Intelligence Surveillance Act. Our intelligence community folks would
go ahead and collect those communications if they had foreign
intelligence value. They minimized or suppressed any involvement of
Americans who were innocent and just happened to be referred to in a
conversation or

[[Page H11626]]

something. But there were no restrictions on foreign intelligence
collection.
  Mr. Speaker, unfortunately, technology has now changed, and what used
to be over the air is now almost all on a wire. The courts have found
that under the old Foreign Intelligence Surveillance Act, before we
changed it in August of this year, that if you touched a wire in the
United States, even if you were targeting a foreign terrorist talking
to another foreign terrorist who had no connection to the United States
at all, then you needed a warrant. This began very rapidly to cripple
our intelligence capability with respect to terrorism in particular.
  The Director for National Intelligence, Admiral McConnell, has
testified in open session that without the changes, without keeping the
changes, making them permanent, that we put in place in August, we will
lose between one-half and two-thirds of our intelligence collection on
terrorism. Think about this for a second.
  Now we all remember where we were on the morning of September 11,
remember who we were with, what we were wearing, what we had for
breakfast. Most Americans don't remember where they were when the
British Government arrested 16 people who were within 48 hours of
walking onto airliners at Heathrow Airport and blowing them up
simultaneously over the Atlantic. They don't remember it because it
didn't happen.

  The American people want us to prevent the next terrorist attack.
They don't want to have to remember where they were when a preventable
disaster happened. That is what intelligence gives us, and that is why
the Protect America Act is so important and why we have to make it
permanent.
  Sadly, the Democratic majority is going to bring a bill to the House
this week which will gut the progress that we made in early August.
They say things in this bill that, on its face, initially you think,
well, that makes sense. One of them is you would not need a warrant for
any foreign-to-foreign communication.
  Well, doesn't that solve the problem? Wait a second. If Mr. Lungren,
my colleague from California, was a foreign terrorist, just for the
purposes of discussion, how do I know who he is going to call next? I
don't. And if the law says that it is a felony to listen to the
conversation of someone who is a foreigner calling into the United
States, that means as soon as I collect that conversation, as soon as
that terrorist makes a phone call into the United States, I become a
felon. As a result, you have to have warrants on everyone.
  It doesn't relieve the system of this huge legal bureaucracy. It
means they have to get warrants on every foreigner in foreign
countries, even if they are only talking to foreigners, because they
might some day pick up the phone and call an American. And, oh, by the
way, that is the conversation we want to be listening to. If we have a
terrorist affiliated with al Qaeda calling into the United States, you
bet we should be on that conversation. We should be all over that like
white on rice. We shouldn't be waiting to get a warrant from a judge in
Washington, D.C.
  But it gets worse than that. They also put in this bill some things
called blanket warrants.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, reclaiming my time,
I have referred to that section, that first section where they say you
don't need it if it is foreign-to-foreign as the ``furtive fig leaf''
section of the bill, which appears to give Admiral McConnell what he
needs, but because of the actual practicality of it, denies him the
opportunity to do it, because essentially that was sort of the state of
the law prior to the time we passed the law in August, and he told us
it doesn't work.
  Mrs. WILSON of New Mexico. If the gentleman would yield further, that
is exactly right. There is already a provision in the law and was in
1978 that if it was foreign-to-foreign communication, you didn't need a
warrant.
  There are some circumstances where you are tapping into a line that
is between a command headquarters of the former Soviet Army and one of
their missile silos where it is a dedicated line. But modern
telecommunications don't operate that way, and the terrorists who are
trying to kill us are using modern commercial telecommunications. They
are not using dedicated lines between headquarters. They don't even
have headquarters.
  Mr. DANIEL E. LUNGREN of California. If the gentlewoman would allow
me to reclaim my time for a moment, evidently some on the other side of
the aisle have listened to a little bit of our complaint here, so in
the manager's amendment they have included what they consider to be the
saving piece of that first section, which says if the electronic
surveillance referred to in paragraph 1 inadvertently collects a
communication in which at least one party to the communication is
located inside the U.S. or is a United States person, the contents of
such communication shall be handled in accordance with minimization
procedures adopted by the Attorney General.
  If that is all they did, that would be fine with me. But they then go
on to say this, that require that no contents of any communication to
which the United States person is a party shall be disclosed,
disseminated or used for any purpose or retained for longer than 7
days, unless you get a court order or unless the Attorney General
determines specifically in this case that the information indicates a
threat of death or serious bodily harm to any person.
  Now, Admiral McConnell has suggested to us that time frame, they say
you can't keep it longer than 7 days, may not be practical within the
contours of how we actually get that information, number one; and,
secondly, you can't use that information. You can't give it to anybody.
You can't disclose it to the FBI, even though the information doesn't
make the person in the United States a target, the information
contained in that conversation is all about Osama bin Laden calling
into the United States and something he says that is important for our
purposes. That is the extraordinary thing here, because it says no
contents of any communication to which the United States person is a
party shall be disclosed, disseminated or used.
  It is exactly contrary to what Admiral McConnell said, which is the
law should be directed at the identity of the individual we are
targeting. So in this case, because you now capture a conversation that
has taken place with the foreign person in a foreign land into the
United States, even though it doesn't give rise to anything that would
make a target of that person in the United States, you can't use any of
that conversation with respect to the target for which you don't need a
warrant, even though that person could be Osama bin Laden or one of his
top people.
  That is nuts. With all due respect, I use the word ``nuts,'' but I
think that is probably proper.
  Mrs. WILSON of New Mexico. Let's just think of an example here. Let's
say Osama bin Laden or one of his chief lieutenants did call into the
United States to a completely innocent person, a completely innocent
person under this law which the Democrats are going to try to pass this
week, and what he says in that conversation is ``Don't go to the Sears
Tower tomorrow. Stay away from the Sears Tower tomorrow.'' Whoever in
the intelligence community gets that communication is barred by law
from giving it to anyone who can take any action to prevent a terrorist
attack on this country.
  Mr. DANIEL E. LUNGREN of California. Unless they go to court and get
an order, which requires all of the necessary preparation that Admiral
McConnell has told us we cannot do.
  Mrs. WILSON of New Mexico. You may not even know who the person is
being called, other than it is an area code and number in the United
States, which means you don't have any probable cause. You have to send
the FBI out and find out whose number that is and whether they are
reasonably believed to be involved in a crime.

                              {time}  2045

  But the threat is immediate. We cannot have our intelligence agencies
tied up in legal redtape when they are the first line of defense for
this country in the war on terrorism.
  I am appalled that we have people in this body who put forward
legislation who seem to be more concerned about protecting the civil
liberties of terrorists overseas than they are about protecting
Americans here at home and preventing the next terrorist attack.

[[Page H11627]]

  This would be an unprecedented extension of judicial oversight into
foreign intelligence operations. We don't even do this in criminal
cases, and my colleague is much more experienced in criminal law than I
am. But if we are listening to a Mafia kingpin and he happens to call
his son's second grade teacher.
  Mr. DANIEL E. LUNGREN of California. Or his sainted mother or his
brother, the priest.
  Mrs. WILSON of New Mexico. Anybody. And we are not prevented from
using that information until we get a warrant on the priest or his
mother or his son's second grade teacher. The target is the Mafia
kingpin.
  This legislation will tie our intelligence community in knots in
order to protect the civil liberties of terrorists in foreign countries
who are trying to kill Americans.
  There are some in this body who may believe we shouldn't have
intelligence services. I believe it was Hoover who said that gentlemen
shouldn't read each other's mail. Well, we are not dealing with
gentlemen here. We are dealing with terrorists who are trying to kill
Americans and are using commercial communications to talk to each
other. We must do everything we can to prevent that terrorist attack,
and that means listening to their conversations if we get an
opportunity to do so.
  Mr. DANIEL E. LUNGREN of California. I would like to pose this
question to the gentlelady. The gentlelady has studied this issue for a
long time and was one of the first people to raise certain points of
considered alarm, trying to bring a sense of urgency to this House to
respond to the threat that is out there.
  There is another troubling aspect of the bill to be brought to the
floor. It has a sunset of December 31, 2009. So that would suggest to
anybody looking from the outside that there is an end game or an end
date at which the threat no longer exists. Can the gentlelady give us
any advice, considered opinion, as to whether or not this threat is
long lasting? Or should we limit this law just to the next 2 years?
  Mrs. WILSON of New Mexico. I don't think anybody believes that the
threat of Islamic terrorism to the United States, or other foreign
threats, are somehow going to go away in the next 18 months. That is
just not going to happen. What is even worse about this bill, while
they set up some system of blanket warrants with respect to some
national security matters, they do not allow any so-called blanket
warrants for things that are outside of direct threats to the United
States, which is unprecedented in foreign intelligence collection.
  That means if we are trying to listen to Hugo Chavez in Venezuela, or
we are trying to figure out whether the leader of Sudan is about to
launch another wave of genocide in Darfur, or we want to listen in to
what the Chinese or the North Koreans are talking to each other about
with respect to the Six-Party Talks and the potential for weapons of
mass destruction on the Korean Peninsula, we are absolutely prohibited
from listening to those conversations without a warrant from a court in
the United States of America. The courts have never been involved in
that way. Never in the history of this country, nor should they be.
Foreign intelligence collection of foreigners in foreign countries has
never been subject to warrants here in the United States.
  Mr. DANIEL E. LUNGREN of California. Today I presented two amendments
before the Rules Committee for consideration on this floor. Both were
denied. One would have expanded the definition of foreign intelligence
individuals or states to include nonstate actors who are involved in
proliferation of weapons of mass destruction.
  The reason I did that is al Qaeda is not a state. There are free
actors out there who would attempt to work with nation states or with
organizations such as al Qaeda; and technically under the definition
currently in the FISA law, they are not covered so that we couldn't do
these sorts of things you talk about, listening in on their
conversations without warrants, even though they may be as much a
threat as a small nation state somewhere. But yet we don't even have an
opportunity to discuss that on the floor of the House because that
amendment and every other amendment was denied.
  Mrs. WILSON of New Mexico. There is historical precedent for this,
one of a Pakistani who ran a criminal enterprise, an international
network that was selling nuclear materials and the capability to build
nuclear weapons to people and countries around the world. While he was
Pakistani by nationality and had helped with the Pakistan Government's
weapons program, there was no question that he wasn't acting as an
agent of Pakistan, at least I don't think there was. He was running a
criminal enterprise for money, and we should be able to listen in and
track people like that.
  Likewise, I think our foreign intelligence should be able to listen
to narco-rings in Burma and be able to detect whether there are cocaine
smugglers who are trying to ship drugs into the United States.
  These are all foreigners who are doing things that we do not like
that are not in our interests and our intelligence capabilities should
be used to disrupt those things. This law would shut that down. Shut it
down. And Admiral McConnell has been very clear on that.
  Mr. DANIEL E. LUNGREN of California. Let us return to the protections
of Americans.
  In the criminal justice system for years and years and years,
somewhere between 30 and 50 years, we have done minimization, which
means that if you have a wiretap on a Mafia member, and as I say, he
calls his sainted mother or his priest, and the conversation has
nothing to do with Mafia activities, that is minimized. That is, it is
taken out of the data field and thrown away, essentially. If he says
something in that conversation, while not implicating the other person
in the conversation that is of benefit to our investigation, that is,
he comments he is going to be going to Nashville and that's an
important piece of information for us to know, we can use that. If the
receiver of the conversation or communication, by what he or she says,
indicates activity of an illegal nature such that that person becomes a
target, it is at that point we require a warrant for that person.
  Similarly, the way the law that we passed in August works is once you
have the legal nonwarrant wiretap, or whatever you want to call it,
catch of or capture of the communication because the target is a
foreigner in a foreign country and you have reason to believe they are
involved in some way that is covered under the law, that conversation
or communication to someone within the United States is treated in the
very same way.
  If the conversation has nothing to do with terror, it is minimized.
It is thrown out. If the conversation contained some information about
the legal target that is of benefit, we can use that information
against that target. If in fact the response or the statement made by
the person in the United States, the American, is of a nature that
gives us cause to believe that person is involved in terror, we then go
get a warrant because that person becomes a target. Is that the
gentlelady's understanding of how we operate?

  Mrs. WILSON of New Mexico. That is exactly how this law works. If the
target is an American, you need a warrant. If the target is a
foreigner, you don't need a warrant; foreigner in a foreign country.
  I think one of the things that is important to remember here,
something that has been the greatest accomplishment in the last 6 years
in this country has been what has not happened. We have not had another
terrorist attack on our soil. And it is not because they haven't tried.
  Osama bin Laden and al-Zawahiri have been very clear: they want to
kill millions of Americans, and they will do it if they can.
  The question is whether we will use the tools at our disposal,
entirely constitutional and legal tools, in order to prevent the next
terrorist attack, to stop the attack on the USS Cole, to prevent the
planes from taking off from Heathrow to kill thousands of innocent
Americans. Intelligence is the first line of defense in the war on
terrorism. It is possible to provide our intelligence community with
the tools to keep us safe while protecting the civil liberties of
Americans, and that is the perspective that the Democrat majority has
lost.

[[Page H11628]]

  When Admiral McConnell appeared before the Judiciary Committee, he
wanted to make clear our understanding of the technology of the capture
of conversations. And he put it this way: he said when you are
conducting surveillance in the context of electronic surveillance, you
can only target one end of the conversation. So you have no control
over who that number might call or who they might receive a call from.
He then went on to say if you require a warrant in circumstances that
we have never required before, as is the implication of the bill to be
brought before us, he said if you have to predetermine it is a foreign-
to-foreign before you do it, it is impossible. That's the point. You
can only target one. If you are going to target, you have to program
some equipment to say I am going to look at number 1, 2, 3. So
targeting in this sense, you are targeting a phone number that is
foreign. So that's the target. The point is you have no control over
who that target might call or who might call that target.
  Is that consistent with your understanding in the years you have been
on the Intelligence Committee and the years you have looked at this
issue?
  Mrs. WILSON of New Mexico. That is exactly right. The biggest problem
is that the terrorists who are trying to attack us, and even foreign
governments, are increasingly using commercial communications. So they
don't have dedicated lines between a couple of government buildings. In
modern communications, those communications will flow wherever it is
fastest to get to wherever they are calling to. Sometimes that call
will transit the United States, and we shouldn't require a warrant just
because the point of access to that conversation happens to be within
the United States.
  Mr. DANIEL E. LUNGREN of California. I know we only have about 5
minutes left. This is testimony that Admiral McConnell gave before the
Judiciary Committee. He was asked this directly by a Member from the
other side of the aisle: How many Americans have been wire tapped
without a court order?
  The direct response by the DNI, none. He went on to say there are no
wiretaps against Americans without a court order. None. What we are
doing is we target a foreign person in a foreign country. If that
foreign person calls in the United States, we have to do something with
the call. The process is called minimization. It was the law in 1978.
It is the way it is handled.
  Is that your understanding?
  Mrs. WILSON of New Mexico. That is my understanding, and he has
testified to that in the Intelligence Committee as well. That is what
gets lost here. People seem to think that somehow this impacts the
civil liberties of Americans. No, this bill that the Democrats are
bringing to the floor this week will extend civil liberties protections
to foreigners trying to kill Americans. It will make it harder for our
soldiers and our law enforcement folks and our intelligence community
to find out when the next attack is coming in order to prevent it.
  I don't understand why they are going in this direction. Sometimes I
don't think they really understand what they are doing here. Sometimes
I think it is not entirely intentional on the part of some of these
folks, that they really do not understand how this works and how badly
they are crippling American intelligence if they pass this law.
  Mr. DANIEL E. LUNGREN of California. We should recall the words of
the United States Supreme Court in the Keith case which is the case
that dealt with wiretaps in the United States. They said that while
there was no warrant exception in domestic surveillance cases, it was
not addressing the question of activities related to foreign powers and
their agents. And in that unanimous opinion, the court noted that were
the government to fail ``to preserve the security of its people,
society itself could become so disordered that all rights and liberties
would be endangered.''
  Justice White, a John Kennedy appointment to the Court who
personified the definition of a moderate, said this in his concurring
opinion in the Katz v. U.S. case: ``We should not require the warrant
procedure in a magistrate's judgment if the President of the United
States or his chief legal officer, the Attorney General, has considered
the requirements of national security and authorized electronic
surveillance as reasonable.''
  In other words, the court when it dealt with this issue those years
ago recognized the difference between a criminal justice system and a
system of intelligence and counterterrorism to protect our country from
attack by those who would basically destroy everything, including our
Constitution and our constitutional foundation.
  Mrs. WILSON of New Mexico. If you think about how the challenge has
changed since the Cold War, in the Cold War, we had early warning
systems. We had Cheyenne Mountain that was watching early warning
systems to see if Soviet bombers were heading towards us or missile
systems had launched, immediately scrambling airplanes and taking
immediate action to protect this country.

                              {time}  2100

  And we had intelligence systems set up to be able to detect and give
us that early warning. The problem has changed, but the need for early
warning is still there.
  Now, what we didn't do when we got a detection that bombers were
coming towards the United States was call the lawyers in Washington to
see if we could launch our airplanes to protect us. The system was set
up to be fast and immediately responsive.
  What the Democrats are going to do this week is to say if you get a
detection, if you believe you have early warning, that the terrorists
are coming to destroy Americans or attack Americans, put that on hold
while you go get a warrant, talk to judges, take hours to decide
whether we can respond. That will not allow us to protect America.
  Mr. DANIEL E. LUNGREN of California. The gentlelady is exactly
correct, and let me suggest, to get down to basics, that when
surveillance is directed overseas, legitimate concerns relating to
purely domestic surveillance are not implicated. We should all be
concerned about the protections of civil liberties, as the 9/11
Commission put it.
  The choice between security and liberty is a false choice as nothing
is more likely to endanger America's liberties than the success of a
terrorist attack at home.
  And I thank the gentlelady for her comments.
  Mrs. WILSON of New Mexico. I thank the gentleman for having this hour
tonight.

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