[Congressional Record: January 29, 2008 (House)]
[Page H483]
PERMANENT FIX FOR FISA
(Mr. WILSON of South Carolina asked and was given permission to
address the House for 1 minute and to revise and extend his remarks.)
Mr. WILSON of South Carolina. Mr. Speaker, I rise today to call on
the Democrat majority to pass a permanent fix to our Nation's foreign
surveillance law and give our intelligence community the tools they
need to protect American families.
It has been 6 months since this body passed a temporary patch to the
Foreign Intelligence Surveillance Act. If Congress fails to pass a
permanent fix, our Nation's intelligence community will once again be
limited in their ability to track terrorists and defeat their efforts
to murder Americans.
In his State of the Union address last night, President Bush
reiterated to Members of both parties that the time to act is now. On
this most important of issues, we owe it to the American people not to
put American families at risk.
We can all agree that the safety and well-being of our Nation's
families is our utmost priority, so let's work together on an agreement
that will ensure that we meet the challenge of defending our Nation for
the long term. Our enemies will not hesitate to exploit our
intelligence loopholes. It is imperative that we not give them that
opportunity.
In conclusion, God bless our troops, and we will never forget
September 11th.
____________________
[Congressional Record: January 29, 2008 (House)]
[Page H484]
EXTENDING PROTECT AMERICA ACT UNNECESSARY
(Mr. HOLT asked and was given permission to address the House for 1
minute and to revise and extend his remarks.)
Mr. HOLT. Mr. Speaker, the House made a serious mistake last August
when it passed the Protect America Act. I opposed the legislation at
the time because it authorized a massive, unregulated electronic
fishing expedition, an approach guaranteed to ensnare innocent
Americans and a sloppy, inefficient way to collect intelligence. It
lacks the basic standard of court review of the government's actions.
If we have learned anything, it is when officials must establish
before an independent court that they know what they are doing when
they collect communications, we get better intelligence than we do
through indiscriminate collection and fishing expeditions.
Extending the PAA is unnecessary because existing orders issued under
it will continue for a year and are broad enough in scope to deal with
any contingencies that may arise.
In November we passed in this body a good bill to replace the PAA.
Congress should never pass legislation under duress brought on by
propaganda, misinformation, and fear-mongering. I urge my colleagues to
remember this when we debate the topic today.
____________________
[Congressional Record: January 29, 2008 (House)]
[Page H484-H485]
FISA
(Mr. PITTS asked and was given permission to address the House for 1
minute and to revise and extend his remarks.)
Mr. PITTS. Mr. Speaker, in August of last year, Congress passed the
Protect America Act to close a dangerous loophole in our ability to
collect intelligence information on foreign targets in foreign
countries.
[[Page H485]]
When this legislation expires on Thursday of this week, our
intelligence community, responsible to collect intelligence on
terrorist enemies, will lose their eyes and ears. Congress has stalled
for 6 months to review the policy and come up with a solution to bring
FISA up to date with our 21st century technologies and give our
intelligence community the tools they need to fight terrorism.
Now the House wants to pass a 30-day extension. The Senate can't even
agree to that. Democrats in Congress want to empower judges and lawyers
in their discovery proceedings and frivolous lawsuits over intelligence
needs.
The laws governing our intelligence collection should not be dealt
with in the same way one pays rent for an apartment, month to month. We
need to pass legislation to permanently create a solution that gives
our intelligence community the tools they need to fight terrorism that
threatens the security of every American.
____________________
[Congressional Record: January 29, 2008 (House)]
[Page H510-H517]
PROTECT AMERICA ACT OF 2007 EXTENSION
Mr. CONYERS. Madam Speaker, I move to suspend the rules and pass the
bill (H.R. 5104) to extend the Protect America Act of 2007 for 30 days,
as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 5104
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. 15-DAY EXTENSION OF THE PROTECT AMERICA ACT OF
2007.
Section 6(c) of the Protect America Act of 2007 (Public Law
110-55; 121 Stat. 557; 50 U.S.C. 1803 note) is amended by
striking ``180 days'' and inserting ``195 days''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Michigan (Mr. Conyers) and the gentleman from Texas (Mr. Smith) each
will control 20 minutes.
The Chair recognizes the gentleman from Michigan.
General Leave
Mr. CONYERS. Madam Speaker, I ask unanimous consent that all Members
have 5 legislative days to revise and extend their remarks and include
extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Michigan?
There was no objection.
Mr. CONYERS. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, the temporary Foreign Intelligence Surveillance Act
law that we enacted in August as a stopgap measure expires on Friday.
We passed the RESTORE Act in November to provide some FISA reform. The
Senate is at this moment completing the action. This extension will
give us time to consider responsible FISA reform in both Houses of the
Congress while fully preserving current intelligence capabilities while
we do so. I hope that everyone would agree that this is the most
responsible approach for protecting our freedom, as well as our
security.
I further hope that we would all agree that we need to consider FISA
reform responsibly, with the care it deserves, and to preserve the
prerogatives of the House to have our own voice heard.
This extension is not a vote on the temporary law that we have been
living under since August of last year, nor is it a vote against the
temporary bill or against what the Senate is working on. It is a vote
for avoiding a headlong rush into possibly ill-conceived legislation.
We should all be able to come together on that, and I am confident that
we can.
Madam Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, I reluctantly support H.R. 5104, which extends the
Protect America Act for 2 weeks.
Last year, the Director of National Intelligence, Admiral McConnell,
notified Congress about a dangerous loophole in our ability to collect
intelligence information overseas. Director McConnell estimated that
the intelligence community was missing two-thirds of all overseas
terrorist communications. Congress passed the Protect America Act last
August to close this loophole. Unfortunately, the legislation contained
an arbitrary 6-month sunset and is currently set to expire this Friday.
After 6 months of waiting, the Democratic majority is now coming
perilously close to threatening the safety of every American. But
rather than pass a long-term fix to the terrorist loophole, the
Democratic majority wants another extension. The White House promised
to veto the 30-day extension that the majority was going to bring to
the floor yesterday. Today's bill represents a compromise for only a 2-
week extension.
The truth is we do not need any temporary extension. In fact, there
is a bipartisan bill that we can and should pass today. The Senate
Intelligence Committee already has approved a bill to close the
terrorist loophole and provide liability protection to the
telecommunication companies. That is being blocked by the Democratic
majority.
As the deadline draws near, the urgent needs of the intelligence
community must be addressed. This is no time for partisanship. This is
a time for responsible action.
Any bill must include two critical provisions. First, Congress has
the responsibility to enact long-term legislation that allows
intelligence officials to conduct surveillance on foreign targets
without a court order. A U.S. Army intelligence officer in Iraq should
not have to contact a Federal judge in Washington to conduct
surveillance on Iraqi insurgents.
Second, Congress must provide liability protection to U.S.
telecommunication companies that responded to government requests for
information following the terrorist attacks of September 11. Close to
40 frivolous lawsuits against the telephone companies already have been
filed. These companies deserve our thanks, not a flurry of meritless
lawsuits.
Terrorists have not placed an expiration date on their plots to
destroy the American way of life. Congress should not put an expiration
date on our intelligence community's ability to protect our Nation.
Madam Speaker, I reserve the balance of my time.
Mr. CONYERS. Madam Speaker, I am pleased to yield 2\1/2\ minutes to
the gentlewoman from California (Ms. Harman), the chairperson of the
Subcommittee of Intelligence on Homeland Security and a veteran Member
of the House on intelligence matters.
{time} 1530
Ms. HARMAN. Madam Speaker, I thank the gentleman for yielding and
commend him for his leadership. I also commend many on the other side,
including Mr. Hoekstra, for their devotion to getting intelligence
right.
I hope we have bipartisan agreement on the subject before us. But,
Madam Speaker, I feel compelled to correct the record. Last night in
his State of the Union address, the President said: ``If Congress does
not act by Friday, our ability to track terrorist threats would be
weakened and our citizens could be in greater danger.''
As a Member who worries 24/7 about terrorist threats against our
country, I strongly object to that statement. It is inaccurate and yet
again a bald-faced attempt to play the fear card and to jam Congress
into gutting a carefully crafted, three-decades old bipartisan law
called FISA, the Foreign Intelligence Surveillance Act.
FISA, Madam Speaker, does not expire on Friday. Only the hastily
cobbled together Protect America Act amendments to FISA expire on
Friday.
This country will not go dark on Friday. Our government has
aggressively used surveillance tools, and in the past year or so
secured warrants in compliance with FISA. Those warrants do not expire
on Friday.
As for the claim that citizens will be in greater danger, in my view
actions that fail to follow the laws Congress passes and ignore the
requirements of the fourth amendment put our democracy in grave danger.
Madam Speaker, security and liberty are not a zero-sum game.
In October, the House passed thoughtful legislation, the RESTORE Act,
to replace the flawed Protect America Act. Once the Senate acts later
this week and the House has had adequate time to review documents
concerning activities of telecommunications firms, we should conference
our bill. Fifteen days is a good estimate of how long it will take to
send a responsible bill to the President. Let's act responsibly. Vote
``aye.''
[[Page H511]]
Mr. SMITH of Texas. Madam Speaker, I yield 4 minutes to the gentleman
from Michigan (Mr. Hoekstra), who is the ranking member of the Select
Committee on Intelligence.
Mr. HOEKSTRA. Madam Speaker, while I will not oppose this bill, even
though it has not gone through regular order in the committee process,
I continue to have serious reservations about further putting off the
critical issue of FISA modernization. I also have significant concern
with the failure of the majority to ensure a long-term and effective
solution to the critical problem of ensuring that our intelligence
community has the tools that it needs to detect and protect potential
terrorists.
Last August, Congress acted on an overwhelming bipartisan basis after
months of prodding to pass the Protect America Act and close
significant intelligence gaps against foreign terrorists in foreign
countries. The failure to clarify the authorities of our intelligence
professionals on a long-term basis had clearly jeopardized America's
ability to detect and prevent potential terrorist attacks and to
effectively collect intelligence on foreign adversaries.
The Protect America Act expires on Friday, February 1. This temporary
extension will now push that date to February 15. While elements of
surveillance under the Protect America Act could have temporarily
continued without an extension, the failure to act permanently on the
lapsing authorities still ultimately threatens the capabilities of the
intelligence community to react with speed and agility to new threats
and changing circumstances.
We cannot continue to make excuses. We cannot continue to avoid our
responsibility to deal with this vital issue. National security should
not be on a week-to-week lease. I think both the President and Members
on our side of the aisle have made clear that our patience with further
delays to this vital legislation will be extremely limited.
Democrats have failed to do their job on this critical national
security issue, even after Speaker Pelosi boasted last August that they
would act as soon as possible. Their partisanship on this issue clearly
has failed. A bipartisan Senate solution, acceptable to the President,
has been available for weeks, but has been held up by liberal activists
over the issue of retroactive liability for third parties who may have
helped the government to detect potential terrorists.
Madam Speaker, columnist Stuart Taylor recently pointed out that
holding the private sector hostage to ideological extremism is a
``risky game.'' It is a risky game for our national security and may
chill cooperation in future emergencies. He wrote: ``Most Americans
would want the telecoms to say yes without hesitation. But the telecoms
would have reason to say no, or delay for a few dangerous days to
consult their lawyers, if liberals get their way in a battle currently
raging in Congress.''
[From the National Journal, Jan, 19, 2008]
Holding Telecoms Hostage: A Risky Game
(By Stuart Taylor, Jr.)
Suppose that the next big terrorist attack on our country
comes two weeks after a new Democratic president has taken
office. Simultaneous suicide bombings devastate 20 schools
and shopping malls around the country, killing 1,500 people.
The intelligence agencies believe that at least 20 more
trained jihadists, including American citizens, are in the
United States planning follow-up attacks.
The president is told that the best hope of stopping a
second wave of attacks is to immediately wiretap as many
calls and e-mails as possible from and to every private
citizen who has been to Pakistan or Afghanistan since 1999.
These hundreds of domestic wiretaps, with neither warrants
nor probable cause to suspect any individual of terrorist
ties might well violate the Foreign Intelligence Surveillance
Act.
The president nonetheless asks the major telephone
companies to place the taps for 30 days while the
administration seeks congressional approval. He or she also
assures the telecoms in writing that the new attorney general
has advised that the Constitution empowers the president to
temporarily override FISA during such an emergency--a
controversial theory never tested in court.
Most Americans would want the telecoms to say yes without
hesitation. But the telecoms would have reason to say no--or
delay for a few dangerous days to consult their lawyers--if
liberals and libertarians get their way in a battle currently
raging in Congress.
The issue is whether to immunize these same telecoms
retroactively, as President Bush and a bipartisan majority of
the Senate Select Committee on Intelligence (including
Chairman Jay Rockefeller IV) urge, from liability for having
said yes to Bush's warrantless surveillance program during
the unprecedented national crisis precipitated by the 9/11
attacks.
The telecoms face more than 40 class actions seeking
hundreds of billions of dollars in damages for their roles in
the Bush program, which they agreed to after being assured
that the attorney general had deemed the program lawful.
Allowing this litigation to continue would, as a group of
highly respected former Justice Department officials wrote in
a joint letter to the Senate Judiciary Committee, ``produce
perverse incentives that risk damage to our national
security,'' because ``both telecommunications carriers and
other corporations in the future will think twice before
assisting any agency of the intelligence community seeking
information.''
This particular group includes Jack Goldsmith, James Comey,
Patrick Philbin, and John Ashcroft. They (especially the
first three) won bipartisan applause for leading a rebellion
in 2004 against overreaching claims of power by Bush, who
chose to secretly override FISA not just for a few weeks but
for years.
``Given our experiences,'' the former officials wrote, ``we
can certainly understand that reasonable people may question
and wish to probe the legal bases for such intelligence
activities.'' But the proper forum is the congressional
oversight process, they asserted, not ``a public lawsuit
against private companies that were asked to assist their
nation.''
Such leading Democrats as former Sen. Bob Kerrey, former
Rep. (and 9/11 commission Co-Chair) Lee Hamilton, and former
Attorney General Benjamin Civiletti have also called for
immunizing the telecoms.
On the other hand, People for the American Way, like other
liberal groups, argues that immunity would ``protect telecoms
that knowingly violated law.'' But the telecoms did not
violate the law--even if Bush did--according to an October
26, 2007, Senate Intelligence Committee report urging
adoption of the immunity proposal as part of an important
bill updating FISA.
The committee, after forcing the administration to show
investigators the relevant presidential and Justice
Department documents, found that the record showed that the
telecoms ``acted on a good-faith belief that the president's
program, and their assistance, was lawful.'' Courts have for
centuries seen such a good-faith belief as grounds for
immunizing from lawsuits private parties that heed government
officials' requests for help in protecting public safety,
especially in emergencies.
And, in fact, hardly anyone in Congress thinks that the
telecoms should (or will) be forced to pay huge damages to
the plaintiffs, who after all have suffered no real harm. So
why are some senators, including Patrick Leahy, the Senate
Judiciary Committee's senior Democrat, fighting the immunity
proposal?
The real reasons are election-year pressure from liberal
groups and the hope that the lawsuits will force public
disclosure of information embarrassing to the Bush
Administration. Leahy said in a press release that he opposed
giving retroactive immunity to the telecoms because that
would reduce their incentives to protect privacy and ``would
eliminate the courts as a check on the illegality of the
warrantless wiretapping of Americans that the administration
secretly engaged in for almost six years.''
Leahy may well be right that some aspects of the highly
classified wiretapping program were illegal. Indeed,
Goldsmith, who took over the Justice Department's Office of
Legal Counsel in late 2003 and later touched off the above-
mentioned rebellion, has publicly called the still-secret OLC
surveillance memos that he inherited a ``legal mess.''
In my own view, Bush's decision to secretly override FISA
for a time immediately after 9/11 was probably a lawful
exercise of his war powers. But his legal rationale became
weaker and weaker when he continued to override the law for
months and years without seeking congressional approval.
It is one thing to say that the president has inherent
power to disregard an outdated law during an emergency in
which immediate action might save many lives. It is something
else to say that the president can secretly continue to
disregard that law for several years without ever seeking to
amend it. (See my 1/28/06 column.)
But doubts about the legality of Bush's actions are no
justification for holding hostage telecoms that relied on the
administration's assurances of legality and were in no
position to second-guess its assertions that the surveillance
program was essential to national security.
Not, that is, unless we want to risk that the telecoms,
credit card companies, banks, airlines, hospitals, and other
private companies--whose cooperation is essential to finding
terrorists before they strike--will balk or delay when the
next president seeks their help in an emergency.
And to keep things in perspective, let's remember that even
if Bush did violate the law, the terrorist groups targeted by
his surveillance program have taken thousands of American
lives; that the program itself has apparently caused no
serious harm to anyone (except terrorists); and that no
evidence exists that Bush or anyone else has ever made
[[Page H512]]
any improper use of any intercepted communications.
Opponents of immunity say that the telecoms have nothing to
fear in court if they can show that they acted lawfully. And
it does seem most unlikely that the telecoms would ultimately
lose; the lawsuits face huge obstacles, including the state
secrets privilege and doubts about the plaintiffs' standing
to sue, as well as the strong evidence that the telecoms
acted lawfully.
But even a remote risk of massive liability for doing the
right thing in the past might deter some from doing the right
thing in the future. And in the vast, interminable,
unpredictable, often perverse meat grinder that high-stakes
litigation has become in this country, victory in court would
come only after many years of expensive legal battles,
uncertainty, downward pressure on stock prices, and publicity
damaging to the telecoms' international business interests.
This prospect might drive them to accept a nuisance
settlement that would yield millions of dollars for the
plaintiffs' lawyers and very little for anyone else. Indeed,
that's what many plaintiffs' lawyers are hoping for.
Some senators and others have proposed ways to relieve the
telecoms of monetary liability while keeping the litigation
alive to force a healthy public airing of information about
what Bush and his aides did. One such proposal would have the
government cover any damage awards; another would place a
very low cap on any damages; a third would ask the FISA court
to decide whether the telecoms broke the law. Such expedients
would be better than no protection at all. But they would not
give the telecoms the finality and the relief from litigation
costs that they want and deserve.
In any event, it seems unlikely that any kind of litigation
against the telecoms will yield much new information about
what Bush and his aides did. The main reason is that any such
evidence is probably inextricably intertwined with
operational details of the surveillance, which are highly
(and properly) classified. And lawsuits against the
government, which would be unaffected by immunizing the
telecoms, would be a more logical vehicle for exposing
whatever can properly be exposed.
But the bottom line is that a remote chance of exposing any
Bush misconduct is simply not a good enough reason to run
even a small risk of losing potentially lifesaving
intelligence. And it's simply unfair to hold hostage private
companies that thought they were helping to save lives and
did nothing wrong.
Partisan political points and the nonexistent rights of radical
jihadists shouldn't be more important than giving the most effective
tools to the intelligence community to detect and prevent attacks. As
soon as the Senate passes this comprehensive bipartisan bill, the House
should consider it immediately in order to send a responsible bill to
the President as quickly as possible.
There is bipartisan agreement that Congress must act immediately to
ensure a long-term effective solution that empowers intelligence
community professionals to act with speed and agility against foreign
targets, provides retroactive liability protection for third parties
who may have assisted the government after 9/11, and ensures that court
orders will continue to be required for any surveillance targeting
Americans.
We should stop the bipartisan obstructionism and move forward with
permanent legislation to fully ensure the protection of the American
people and their civil rights.
Mr. CONYERS. Madam Speaker, I am pleased now to yield 3 minutes to
the distinguished gentleman from Ohio, Mr. Dennis Kucinich.
Mr. KUCINICH. Madam Speaker, I rise today in opposition to H.R. 5104,
a 30-day extension of the Protect America Act.
When the Protect America Act was passed by this body on August 4,
2007, I voted against the legislation because it gave legitimacy to the
administration's surveillance of Americans without warrants. It is in
the best interest of our Nation to allow this temporary law to expire
and return to the permanent FISA law until this body can agree on
legislation that protects our Constitution and upholds the civil
liberties of U.S. citizens.
The FISA Court has ruled to prohibit warrantless spying on Americans
when communications between foreign targets overseas are routed through
the U.S. The permanent FISA law leaves in place mechanisms to monitor
potential terrorist activity with the approval of the FISA Court.
We cannot allow baseless claims of being soft on terror to drive this
debate. Those who use fear to gain power for themselves are in effect
subverting our Constitution.
We are at a moment in the history of this country where it is
absolutely important that Congress must not accept a false choice. We
must defend Americans and our Constitution from the politics of fear.
We must demand that the President cease his attacks on our civil
liberties.
I oppose this legislation, and I will oppose all future attempts by
this body to pass fear-provoking legislation that sanctions oppression
against the American people.
When our Constitution was written and amended, the fourth amendment
said: ``The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.''
This fourth amendment has been the bedrock of the freedoms that
Americans enjoy from a government that would use its power to go deeply
into people's private affairs.
We must stand for our Constitution. We must stand for the Bill of
Rights. That is the purpose of my presence at this very moment before
this House.
Mr. CONYERS. Madam Speaker, I yield myself such time as I may
consume.
Last August, a number of Members with whom I agree lamented the fact
that we got jammed by the other body and the clock and ended up with a
bad law. Here I am again today trying to stop that same thing from
happening again. And yet, in what I can call only in kindness misguided
perfectionism, there are those here who would come to the floor to
criticize this bill, a 15-day extension. Now it is easy to do that; it
is harder to get a good law from both of these bodies at the same time,
and that's only what this committee is trying to do this afternoon.
Madam Speaker, I reserve the balance of my time.
Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman
from California (Mr. Issa), who is a member of both the Judiciary and
Intelligence Committees.
Mr. ISSA. Madam Speaker, 1 minute is just the right amount of time to
deal with an issue that is as simple as this: we cannot allow our
enemies abroad to have secrets, and we must maintain the secret of how
we discover, uncover, reveal, and react to their attempts to hide their
activities, including the attempt to kill Americans. That's what this
is all about. That's what we are looking for within the next 15 days. I
am supportive of this bill because I want to make sure that we cover
these two points.
It is not enough to simply attack your enemy when he attacks you. We
clearly have to know what he intends to do, including when he
communicates with his operatives in America from overseas; and we very
clearly need to not let our enemies, through discovery in more than 40
lawsuits leveled against all of our communications companies, uncover
what they may or may not have done.
I want to make sure that we understand: it is not just what
communications companies may have done. We do not want our enemies to
know what they may not have done.
Mr. CONYERS. Madam Speaker, I am pleased to yield to the
distinguished majority leader of the House of Representatives, Steny
Hoyer, 1 minute.
Mr. HOYER. I thank the distinguished chairman for yielding.
I rise in support of this particular extension. I do not rise and did
not rise in support of the underlying bill that we are extending. And I
think the gentleman from Ohio raised some valid points, as the chairman
thinks he raised valid points as well.
But the issue here is really one of allowing this body an opportunity
to pass a bill that speaks to the constitutional issues that have been
raised, as well as the substantive issues raised by Mr. Issa in what we
all want to do: protect America and Americans.
Today the House is voting on a 15-day extension, nothing more,
nothing less. Before we do that, I want to remind my colleagues that
this body has already passed legislation to reauthorize FISA.
On November 15, 2\1/2\ months ago, this body passed the RESTORE Act,
a bill that modernizes the technologically outdated Foreign
Intelligence Surveillance Act of 1978, gives the intelligence community
the authority to intercept critical foreign communications, and
[[Page H513]]
protects our fundamental constitutional rights.
The bill was skillfully assembled by two of our best chairmen, John
Conyers and Silvestre Reyes. Those chairmen join me today in support of
this short-term extension for several reasons. First, despite the
body's efforts over 2\1/2\ months ago, the Senate has yet to complete
its work on its own FISA legislation. This week they failed to get
cloture on either alternative. We are going to await its bill and look
forward to an undoubtedly challenging, but productive, conference. This
will take some time.
Second, on the question of immunity, which the President has so
highly touted, our committees have been asking for 8 months to see the
legal documents pertaining to the President's terrorist surveillance
program. And we have received 8 straight months of denials. The White
House only offered this access last Friday. It is reasonable to
conclude that for the committees to carry out its own responsibilities
and constitutional duties, it needs some time to do that.
This afternoon, our Judiciary members will be read-in to the program,
and only next week will they begin to digest the hefty stack of
documents that, in turn, will help them make a judgment on what, if
any, immunity is merited. My position has been that in order to give
immunity, we need to know what we are giving immunity for and what the
justification for the actions were. Again, we need time for this
important review. This extension gives us that time.
Finally, let me say to my colleagues that even if we were unable to
do this extension, and this is very important, even if we were unable
to do this extension, February 1 were to come and go without any new
legislation, no one should fall victim to those fear-mongers who
suggest that our intelligence community could ``go dark.'' It would
not. That is simply not the case.
The authorizations issued under the Protect America Act are in effect
for up to one full year. So any requests that have been made and
authorized up to this point in time from August on would be in effect
at least through next July even if they had been authorized in August.
The authorization issued under the Protect America Act will help
protect us to that extent.
This means that all of the surveillance in effect today will remain
in effect for least 6 more months. Even the administration's own
Assistant Attorney General for National Security, Kenneth Wainstein,
acknowledged this, saying that if the PAA were allowed to expire,
intelligence officials would still be able to continue eavesdropping on
already approved targets for another year.
{time} 1545
In fact, out of an abundance of caution, last Thursday, when I
announced the schedule for this week, I urged the administration, if it
had any authorizations, it needed to proceed on that for fear that we
might not extend this act. I think we'll do that today, so that fear
will not be realized.
For those new threats that develop after February 1, let us not
forget that the underlying statute still gives the administration 3
days' worth of emergency authority to immediately begin surveillance
without going to the Court, no lesser court. The Court, by the way, now
has no backlog.
I encourage my colleagues to support this legislation. It is simply
much like a CR, which is not a judgment on the merits of a particular
appropriation bill one way or the other. It is simply a judgment that
the congressional will ought to be done, that we ought to make our
judgment based upon a conference report, with the Senate having passed
a bill, which it has been unable yet to do.
So I urge my colleagues to support this bill, not because you support
the underlying bill, but because you share with me and with Mr. Conyers
and Mr. Kucinich and Mr. Issa and all the others who have dealt with
this bill a concern about protecting our country and protecting our
Constitution.
Mr. SMITH of Texas. Madam Speaker, I yield 3 minutes to the gentleman
from California (Mr. Lungren), who is a member of the Judiciary
Committee and the Homeland Security Committee.
Mr. DANIEL E. LUNGREN of California. Madam Speaker, first of all, let
me say I rise in support of this bill. Unfortunately, we are at this
occasion where we have to have this short-term extension.
But let me just say a couple of things in response to what the
majority leader said. In the first instance he said that if we don't
have the Protect America Act, but we have the underlying bill, it will
work well enough to deal with the problems in an emergency situation.
Unfortunately, that's contradicted by the head of our intelligence
services. The reason we are here is because it doesn't work.
Secondly, the majority leader said the RESTORE Act, the so-called
RESTORE Act that we passed in November is a bill that we passed that
should take care of these problems. It is a bill that does not work,
and I will give you just one example of its difficulty.
In section 2(a)(2), treatment of inadvertent interceptions, it grants
greater protections to Osama bin Laden than it would to an American
citizen heard inadvertently in the United States. That happens to be a
fact. We've debated it on this floor. Not a single person on that side
of the aisle has been able to contradict that. And even the chairman of
the Constitutional Law Subcommittee has come to me and said we are
right; a huge mistake was made. And yet that was the bill that was
passed here and that we are told and the American people are being told
needs to go forward.
Frankly, the bill we passed in August, the Protect America Act, is
nothing short of a legislative LASIK surgery. We had the head of the
intelligence services of the United States come to us and say we were
blinded so that we could not see over 60 percent of the legitimate
terrorist targets in the world because of an interpretation of the law
impacted by the new technology; that is, the way communications are
transmitted. It was at his request that we looked at this. We did that
in August. We've opened our eyes. We've been able to look at those
targets, those legitimate targets around the world. And if we do not
act today we will close our eyes once again.
The fact of the matter is, the strangeness of this institution, of
only allowing the Protect America Act for 6 months, then coming and
saying, Well, the new bill ought to be limited to 30 days, or 15 days,
is really something we ought to examine.
Does anyone suggest that the threat out there is a 6-month threat, a
15-day threat, a 30-day threat? It is an almost permanent threat that
we see out there. We need legislation that will give us certainty, that
will allow us to keep our eyes open, to gather the intelligence
necessary to protect our homeland.
You can argue about the Iraq war all you want. This goes to the
essence of protecting us against the terrorists who would bring the war
to our shores, who have already brought the war to our shores. This
goes to the effectiveness of the techniques that are used in today's
new technology.
We were asked by Admiral McConnell to do the job. We did the job in
August, with the exception of not giving the protection to those
communications companies who actually responded to a patriotic request
to help in this fight.
For some reason, my friends on the other side believe in the reverse
Good Samaritan act: Don't help us; be worried. But bring your attorneys
when asked.
Mr. CONYERS. Madam Speaker, it is with great pleasure I recognize a
distinguished member of the Judiciary Committee, Adam Schiff of
California, for 2 minutes.
Mr. SCHIFF. Madam Speaker, last year the President and the Director
of National Intelligence pushed for legislation that would make it
easier for the NSA to collect intelligence on Americans and groups
abroad. Among other things, the administration's legislation would
allow warrantless eavesdropping of virtually all communications of
Americans with anyone outside the U.S., so long as the government
declared that the surveillance was directed at people reasonably
believed to be located outside the U.S.
I opposed the bill when it was considered by the House and instead
joined with Chairman Conyers and Chairman Reyes in support of a
responsible alternative that would have met the needs of the Director
of National Intelligence
[[Page H514]]
without compromising the privacy of law-abiding Americans in ways that
don't improve our security. The proposal included robust oversight and
audit provisions designed to determine the impact of these changes on
Americans. Unfortunately, Congress was forced hastily to pass the
administration's version before adjourning in August. Nonetheless,
Congress provided the law would sunset in 6 months to ensure that
modifications were quickly made.
Over 2 months ago the House returned to this debate by passing the
RESTORE Act, legislation that updated FISA, provided these effective
surveillance tools while ensuring robust oversight. Importantly, the
RESTORE Act also provided protections to ensure that communications of
U.S. persons were not acquired without some court involvement or
supervision, provisions that were left out of the proposal passed in
August.
The other body has also drafted legislation aimed at modifying the
bill that passed out of the House in August to provide oversight and
additional protections. Unfortunately, they haven't completed their
work. Some very thoughtful proposals like that by Senator Dianne
Feinstein offer fresh ways to break the impasse over some very
difficult issues. The proposals that they are debating and attempting
to finalize have a number of notable departures from the House-passed
version. With the August bill set to expire in 3 days, it's necessary
for us to seek a temporary extension in order to ensure this House has
a role in crafting its revision. The impending deadlines necessitate an
extension, and I'm proud to support that very modest extension.
Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman
from Iowa (Mr. King), who is a distinguished member of the Judiciary
Committee.
Mr. KING of Iowa. Madam Speaker, I rise in support of this 15-day
extension to the FISA law, but I ask the question, why are we here? And
the reason we are here is because of a court decision that I think
appropriately defined the letter of the language in the 1978 FISA law.
But because the technology changes, that court decision was made. And
that opened up this can of worms, this Pandora's box of who's concerned
about whose civil liberties versus how we provide this balance in our
intelligence. And I would point out that this is a two-front war that
we're fighting: One is in the Middle East, successfully I will add, and
the other one is the surveillance that protects us domestically here at
home and provides for our military to have the tools to work with
overseas. That is the highest constitutional responsibility that we
have. We have congressional oversight. We can look into this and see
what's going on with the FISA law anyway, but the effort to protect our
retroactive liability of those companies that cooperate with our
intelligence community is essential. We will lose our ability to do
surveillance if we lose the ability of the companies to cooperate with
us. And this is not a trial lawyer's issue; it's a national security
issue.
Mr. CONYERS. Madam Speaker, we reserve our time at this point.
Mr. SMITH of Texas. Madam Speaker, may I ask how much time remains on
each side.
The SPEAKER pro tempore. The gentleman from Texas has 8 minutes
remaining. The gentleman from Michigan has 9\1/2\ minutes remaining.
Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to my colleague
from Texas (Mr. Gohmert) who is the ranking member of the Crime,
Terrorism, and Homeland Security Subcommittee of the Judiciary
Committee.
Mr. GOHMERT. Madam Speaker, it seems what we're experiencing here and
have been for the last 6 months is just the eternal optimism. I love
that in the Democratic majority. But it's like the fellow that fell off
the tall building and at each floor was heard to say, ``I'm doing okay
so far.'' The trouble is, you're going to have the day of reckoning.
And here we had the 6-month extension back August 4. Now, we've heard
the majority leader come in and say, Well, it was basically, in so many
words, it was the White House's fault because they could have given us
this information about the immunity of the companies, and that's what's
held this up. But if you go back to August 4 and the vote that did not
have the immunity in it, there were 41 Democrats that voted for it and
181 Democrats that voted against it and 9 didn't vote. It was the
Republicans that passed this. It didn't have anything to do with
immunity. It had to do with one group wanted to make sure our
intelligence protected us and had the tools they need, and the other
was more concerned about the rights of terrorists.
Now, I would submit to you that this isn't about 6 months. It's not
about 15 days. We could put it off 30 days, another 6 months, but the
day of reckoning is coming. And our enemies that want to destroy our
way of life, they don't think in terms of 15 days, 30 days. They think
in terms of generations, and they've got to be defeated.
So I understand and I appreciate my dear friend, Mr. Kucinich, and
the concerns about civil liberties. I'm concerned about them, too. But
when it involves, as this act does, a foreign terrorist on foreign
soil, and I know the concern is, Well, what if they call an American
citizen? And I'll leave you with this: I would submit to you, if your
friends are getting calls from foreign terrorists on foreign soil,
again, tell them to tell the terrorists not to call them at home and
they'll be okay.
We need to pass this. We need to give our intelligence the tools they
need.
Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman
from Connecticut (Mr. Shays). He is a former chairman, now ranking
member of the National Security Subcommittee of the Government
Oversight and Reform Committee. He is also a senior Republican member
of the Homeland Security Committee as well.
Mr. SHAYS. Madam Speaker, the Cold War is over and the world is a
more dangerous place. Our strategy is no longer containment reaction
and mutually assured destruction. That went out the window on September
11. It is detection, prevention, preemption, and, when necessary, even
unilateral action.
As the 9/11 Commission points out, we are not combating terrorism as
if it's some ethereal being. We are confronting Islamists terrorists,
real people who would do us harm. If you want to deal with the
consequence of a terrorist attack, write a weak FISA law. But if you
want to detect and prevent a terrorist act, write a law that works and
help insure the communication industry works with us.
The SPEAKER pro tempore. The gentleman from Michigan advises that he
is ready to close.
Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to the gentleman
from Arizona (Mr. Franks). He is the ranking member of the
Constitution, Civil Rights, and Civil Liberties Subcommittee of the
Judiciary Committee.
{time} 1600
Mr. FRANKS of Arizona. Madam Speaker, jihadist terrorism is an
existential threat to human peace. Our Terrorist Surveillance Program
is the most powerful tactical weapon we have against terrorists. If we
knew where every terrorist in the world was tonight, we could end the
war on terror within weeks. Director of National Intelligence, Mike
McConnell, has repeatedly asked this body to update this critical tool,
and he has been met only with stalling from Democrats.
This tool only allows us to target America's enemies on foreign soil
with electronic surveillance, and it continues to protect those that
are on foreign soil including, Madam Speaker, if Osama bin Laden was in
a hotel on Capitol Hill, we could not target his phone or e-mail with
electronic surveillance without a FISA warrant.
This continues to protect Americans. And if we cannot pass this
critical legislation in the day in which we live, we not only fail our
primary purpose as a Congress; we fail the American people in future
generations.
Madam Speaker, we need to pass this.
Mr. SMITH of Texas. Madam Speaker, I yield myself the balance of the
time.
The Senate Intelligence Committee has already approved a bipartisan
bill to replace the Protect America Act. It contains important
provisions to help the intelligence committee gather foreign
surveillance and provides liability protection to telecommunications
[[Page H515]]
companies that assisted the government after the terrorist attacks on
9/11.
The Democratic majority has a duty to end political gamesmanship with
America's national security and immediately pass legislation that gives
our intelligence community the tools they need to protect us.
Madam Speaker, given the rapidly approaching Friday deadline, today I
ask that my colleagues support a temporary extension; but, of course,
that's with the understanding that we come back immediately and pass a
good bill that is long term, that gives liability protection to the
telephone companies, and that doesn't force us to get a court order to
listen to Osama bin Laden when he makes a cell phone call from a cave
in Pakistan to initiate attacks on the United States.
I hope that any bill that we consider in the coming days will have
those provisions in them.
Madam Speaker, I yield back the balance of my time.
Mr. CONYERS. Madam Speaker, I yield myself the balance of my time.
I rise, first, to thank the Members of the House for this very
reasonable debate, and I want to thank particularly my colleagues on
the other side. Ranking Member Smith has been excellent in helping us
work out, as closely as we can with reservations, nothing is perfect,
but I appreciate the spirit with which he has come to the floor today.
The extension is not a vote for the temporary law that we have been
living under since August. It is not a vote against the temporary bill
or against what the Senate is working on. It is a vote only to avoid a
head-long rush into possibly ill-conceived legislation. And I think we
have all been able to come together on that.
I'm grateful to our leadership and to the Members on the other side
of the aisle for the discussion that brings us here this afternoon.
Mr. PAUL. Madam Speaker, I rise in opposition to the extension of the
Protect America Act of 2007 because the underlying legislation violates
the U.S. Constitution.
The mis-named Protect America Act allows the U.S. government to
monitor telephone calls and other electronic communications of American
citizens without a warrant. This clearly violates the Fourth Amendment,
which states:
``The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.''
The Protect America Act sidelines the FISA Court system and places
authority over foreign surveillance in the director of national
intelligence and the attorney general with little if any oversight.
While proponents of this legislation have argued that the monitoring of
American citizens would still require a court-issued warrant, the bill
only requires that subjects be ``reasonably believed to be outside the
United States.'' Further, it does not provide for the Fourth Amendment
protection of American citizens if they happen to be on the other end
of the electronic communication where the subject of surveillance is a
non-citizen overseas.
We must remember that the original Foreign Intelligence Surveillance
Act was passed in 1978 as a result of the U.S. Senate investigations
into the Federal government's illegal spying on American citizens. Its
purpose was to prevent the abuse of power from occurring in the future
by establishing guidelines and prescribing oversight to the process. It
was designed to protect citizens, not the government. The effect seems
to have been opposite of what was intended. These recent attempts to
``upgrade'' FISA do not appear to be designed to enhance protection of
our civil liberties, but to make it easier for the government to spy on
us!
The only legitimate ``upgrade'' to the original FISA legislation
would be to allow surveillance of conversations that begin and end
outside the United States between non-U.S. citizens where the telephone
call is routed through the United States. Technology and the global
communications market have led to more foreign to foreign calls being
routed through the United States. This adjustment would solve the
problems outlined by the administration without violating the rights of
U.S. citizens.
While I would not oppose technical changes in FISA that the
intelligence community has indicated are necessary, Congress should not
use this opportunity to chip away at even more of our constitutional
protections and civil liberties. I urge my colleagues to oppose this
and any legislation that violates the Fourth Amendment of the
Constitution.
Ms. SCHAKOWSKY. Madam Speaker, I rise today in strong opposition to
H.R. 5104. I do so because there is no reason to extend the Protect
America Act. Should the Protect America Act expire, our intelligence
community will not be left in the ``dark,'' as some suggest. Rather the
FISA courts will simply return to operating under the original FISA
law, a law which protected the civil liberties of all Americans while
also granting the President the tools he needs to conduct an aggressive
campaign against terror.
As many of my colleagues have argued today, the original FISA law,
which passed in 1978 needs to be updated. It was passed to address
surveillance concerns at a different time in our Nation's history, when
some of the technological strides we have made since, were simply
unimaginable. As a member of the Intelligence Committee, I strongly
support efforts by the Speaker and leaders of both parties to work
together to update FISA. However, I cannot in good conscience vote in
favor of a one-month extension of the Protect America Act. I cannot do
so because the reality is that the Protect America Act does not make
Americans any safer--rather it allows the Government to pursue an
enormous and untargeted collection of international communications
without court order or meaningful oversight by either Congress or the
courts. Furthermore, it is one of the most damaging pieces of
legislation against civil liberties I have seen in my eight years in
the U.S. Congress.
I feel so strongly that the Protect America Act is an affront to our
values, that in my opinion it is in the best interest of all Americans
that this misguided bill be allowed to expire rather than extended for
even one more day.
In order to understand why I feel so strongly, let me take a moment
to outline some of the most abhorrent provisions in the bill we are
considering extending:
First, it allows the Attorney General to issue program warrants for
international calls without court review. This provision removes the
FISA court, which has overseen the process for 30 years and instead
places the Attorney General in charge of determining the legitimacy of
surveillance. Needless to say, this is an enormous responsibility and
we must all question the wisdom of placing so much authority on the
shoulders of one Administration official.
Secondly, it includes no provisions to prevent ``reverse targeting,''
the practice whereby surveillance is conducted on a foreign person in
order to hear their conversations with a person in the United States
who is the actual target. Under the Protect America Act, these
conversations can be heard, recorded and stored without a warrant.
Lastly, the Protect America Act reduces the oversight capabilities of
Congress by requiring the Attorney General to provide to Congress only
the information the Justice Department sees fit to report. This
provision removes an important check upon America's secret surveillance
program.
Taken together, the Protect America Act represents a significant
infringement on each American's civil liberties and allows for a
potentially dangerous abuse of power by our government. I urge each of
my colleagues to vote against its extension and allow the original FISA
law to be reinstated. Doing so will allow the Congress time to work on
a bipartisan update of the FISA and in the meantime give the
intelligence community the tools they require while also protecting the
rights and liberties of all Americans.
Mr. UDALL of Colorado. Madam Speaker, I will reluctantly support this
short extension of current law dealing with electronic surveillance
related to efforts to counter the threat of terrorism.
My support is reluctant because I did not vote for the current law,
which I think does not properly balance the need to counteract that
threat with protection of Americans' rights and liberties. But today I
will support a brief extension of that law--scheduled to expire in two
days' time--for several reasons.
First, I do think the basic law in this area--the Foreign
Intelligence Surveillance Act, or FISA--needs to be updated to respond
to changes in technology, which was the purpose of the current,
temporary law.
Last August, I voted for a bill (H.R. 3356) to provide such an
update. Unfortunately, while that bill was supported by a majority of
the House, it did not receive the two-thirds vote required by the
procedure under which it was considered, and so was not adopted. Its
defeat resulted from the opposition of the Bush Administration--
supported by all but 3 of our Republican colleagues--which was
demanding instead that the House approve a different version.
Regrettably, that tactic succeeded and the result was passage of the
current law, which I did not support.
Then, last November, I again voted for a bill to update FISA, H.R.
3773, the ``Responsible Electronic Surveillance That is Overseen,
Reviewed, and Effective'' (or RESTORE) Act.
That bill is not perfect, but as I said then I did not insist on
perfection because I thought the House should act to correct the
shortcomings of the temporary law enacted last
[[Page H516]]
year and because in my opinion the RESTORE Act would give the
Administration the authority it says it needs to conduct surveillance
on terrorist targets while restoring many of the protections that the
temporary law has reduced.
The House passed the RESTORE Act on November 15th, and we have been
waiting for the Senate to act. President Bush has criticized the House-
passed bill because it does not grant retroactive immunity from
lawsuits for telecommunications companies that assisted in the
Administration's secret surveillance program without being compelled to
do so by a warrant. As I said in November, I think it might be
appropriate to consider that, but not until the Bush Administration has
responded to bipartisan requests for information about the past
activities of these companies under the program. I have not been ready
to grant immunity for the companies' past activities while we don't
know what those activities were.
Recently, the Administration has finally relented and is allowing
appropriate review of documents on this subject. But that review is not
yet complete--and so the second reason I support this legislation is to
allow the review to continue before Congress is required again to act
on this subject. This would not be necessary if the Administration had
not been so resistant to the idea of properly informing Congress and
providing the relevant information, but now it is needed.
Finally, because the Senate has been slow to act, I think the current
law should be extended briefly to provide a reasonable opportunity for
any differences between the House-passed bill and whatever the Senate
may approve to be resolved through careful and thorough discussion
rather than in the kind of exaggerated haste that too often leads to
unsatisfactory results.
Therefore, despite what I think are the very real flaws of the
current, temporary law, I will support this measure to extend it for an
additional 30 days.
Ms. JACKSON-LEE of Texas. Madam Speaker, I rise today with great
concern to H.R. 5104, to extend the Protect American Act of 2007 for 30
days. I thank the distinguished chairman of the Judiciary Committee and
I applaud him for his consistent and impeccable commitment to civil
liberties and civil rights.
Madam Speaker, this administration has the legal responsibility to
protect the American people. Let no one come to this floor and suggest
that what we are doing today is going to save lives, because last year
we passed legislation that indicated that foreign-to-foreign
communication had no barriers, no barriers for those who are seeking
intelligence.
Yet when an American was involved, the Bill of Rights, the fourth
amendment, civil liberties with the underpinnings, and therefore a
court intervened. Extending the Protect America Act for 30 days in the
hopes that the Senate will produce a version that we are satisfied with
is not a sufficient reason for violating the civil rights and liberties
of the American people.
Homeland security is not a Republican or a Democratic issue. It is an
issue for all Americans--all of us. Not one of us who sang ``God Bless
America'' on the steps of this House will allow anyone to undermine the
security of America.
The original legislation offered by the House Majority gave the
Administration everything that they needed. However, the legislation
that ultimately triumphed, and which this bill today would extend, is a
disgrace to the United States constitution. By passing this bill today,
we are compromising the Bill of Rights. We are telling Americans that
no matter what your business is, you are subject to the unscrupulous,
undisciplined, irresponsible scrutiny of the Attorney General and
others without court intervention.
This is not the day to play politics. It is too important to balance
civil liberties along with the homeland security and the protection
needs of America. I feel confident that the House FISA Bill does do
that. I am disheartened by the other body for their failure to
recognize that we can secure America by securing the American people
with fair security laws and by giving them their civil liberties. I
find the Senate language extremely troublesome, and I am extremely
disappointed that we could not reach common ground based on the
original language passed by this House.
I would ask my colleagues to defeat this so that we can go back to
the bill that protects the civil liberties of Americans and provides
homeland security. I ask my colleagues to support the Bill of Rights
and National Security.
Had the Bush Administration and the Republican-dominated 109th
Congress acted more responsibly in the 2 preceding years, we would not
be in the position of debating legislation that has such a profound
impact on the national security and on American values and civil
liberties in the crush of exigent circumstances. More often that not,
it is true as the saying goes that haste makes waste.
Madam Speaker, the legislation before us is intended to fill a gap in
the Nation's intelligence gathering capabilities identified by Director
of National Intelligence Mike McConnell, by amending the Foreign
Intelligence Surveillance Act, FISA. But in reality it eviscerates the
Fourth Amendment to the Constitution and represents an unwarranted
transfer of power from the courts to the Executive Branch and a Justice
Department led by an Attorney General whose reputation for candor and
integrity is, to put it charitably, subject to considerable doubt.
Madam Speaker, FISA has served the Nation well for nearly 30 years,
placing electronic surveillance inside the United States for foreign
intelligence and counter-intelligence purposes on a sound legal footing
and I am far from persuaded that it needs to be jettisoned or
substantially amended. But given the claimed exigent circumstances by
the Administration, let me briefly discuss some of the changes to FISA
I am prepared to support on a temporary basis, not to exceed 120 days.
To give a detailed illustration of just how superior the RESTORE Act,
which the House passed October, is to the ill-considered and hastily
enacted Protect America Act, I wish to take a few moments to discuss an
important improvement in the bill that was adopted in the full
Judiciary Committee markup.
The Jackson-Lee Amendment added during the markup made a constructive
contribution to the RESTORE Act by laying down a clear, objective
criterion for the Administration to follow and the FISA court to
enforce in preventing reverse targeting.
``Reverse targeting,'' a concept well known to members of this
Committee but not so well understood by those less steeped in the
arcana of electronic surveillance, is the practice where the government
targets foreigners without a warrant while its actual purpose is to
collect information on certain U.S. persons.
One of the major concerns that libertarians and classical
conservatives, as well as progressives and civil liberties
organizations, have with the PAA is that the understandable temptation
of national security agencies to engage in reverse targeting may be
difficult to resist in the absence of strong safeguards in the PAA to
prevent it.
My amendment reduces even further any such temptation to resort to
reverse targeting by requiring the Administration to obtain a regular,
individualized FISA warrant whenever the ``real'' target of the
surveillance is a person in the United States.
The amendment achieves this objective by requiring the Administration
to obtain a regular FISA warrant whenever a ``significant purpose of an
acquisition is to acquire the communications of a specific person
reasonably believed to be located in the United States.'' The current
language in the bill provides that a warrant be obtained only when the
Government ``seeks to conduct electronic surveillance'' of a person
reasonably believed to be located in the United States.
It was far from clear how the operative language ``seeks to'' is to
be interpreted. In contrast, the language used in my amendment,
``significant purpose,'' is a term of art that has long been a staple
of FISA jurisprudence and thus is well known and readily applied by the
agencies, legal practitioners, and the FISA Court. Thus, the Jackson-
Lee Amendment provides a clearer, more objective, criterion for the
Administration to follow and the FISA court to enforce to prevent the
practice of reverse targeting without a warrant, which all of us can
agree should not be permitted.
First, I am prepared to accept temporarily obviating the need to
obtain a court order for foreign-to-foreign communications that pass
through the United States. But I do insist upon individual warrants,
based on probable cause, when surveillance is directed at people in the
United States.
The Attorney General must still be required to submit procedures for
international surveillance to the Foreign Intelligence Surveillance
Court for approval, but the FISA Court should not be allowed to issue a
``basket warrant'' without making individual determinations about
foreign surveillance.
There should be an initial 15-day emergency authority so that
international surveillance can begin while the warrants are being
considered by the Court. And there must also be congressional
oversight, requiring the Department of Justice Inspector General to
conduct an audit every 60 days of U.S. person communications
intercepted under these warrants, to be submitted to the Intelligence
and Judiciary Committees. Finally, as I have stated, this authority
must be of short duration and must expire by its terms in 120 days.
In all candor, Madam Speaker, I must restate my firm conviction that
when it comes to the track record of this President's warrantless
surveillance programs, there is still nothing on the public record
about the nature and effectiveness of those programs, or the
trustworthiness of this Administration, to indicate that they require
any legislative response, other than to reaffirm the exclusivity of
FISA and insist that it be followed. This could have
[[Page H517]]
been accomplished in the 109th Congress by passing H.R. 5371, the
``Lawful Intelligence and Surveillance of Terrorists in an Emergency by
NSA Act,'' ``LISTEN Act,'' which I have co-sponsored with the then
Ranking Members of the Judiciary and Intelligence Committees, Mr.
Conyers and Ms. Harman.
The Bush administration has not complied with its legal obligation
under the National Security Act of 1947 to keep the Intelligence
Committees ``fully and currently informed'' of U.S. intelligence
activities. Congress cannot continue to rely on incomplete information
from the Bush administration or revelations in the media. It must
conduct a full and complete inquiry into electronic surveillance in the
United States and related domestic activities of the NSA, both those
that occur within FISA and those that occur outside FISA.
The inquiry must not be limited to the legal questions. It must
include the operational details of each program of intelligence
surveillance within the United States, including: (1) Who the NSA is
targeting; (2) how it identifies its targets; (3) the information the
program collects and disseminates; and most important; (4) whether the
program advances national security interests without unduly
compromising the privacy rights of the American people.
Given the unprecedented amount of information Americans now transmit
electronically and the post-9/11 loosening of regulations governing
information sharing, the risk of intercepting and disseminating the
communications of ordinary Americans is vastly increased, requiring
more precise--not looser--standards, closer oversight, new mechanisms
for minimization, and limits on retention of inadvertently intercepted
communications.
Madam Speaker, the legislation before us is not necessary. The bill
which a majority of the House voted to pass last year is more than
sufficient to address the intelligence gathering deficiency identified
by Director McConnell. That bill, H.R. 3356, provided ample amount of
congressional authorization needed to ensure that our intelligence
professionals have the tools that they need to protect our Nation,
while also safeguarding the rights of law-abiding Americans. That is
why I supported H.R. 3356, but cannot support H.R. 5104.
I encourage my colleagues to join me in voting against the unwise and
ill-considered reauthorization of the Protect America Act of 2007.
Mr. CONYERS. Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Michigan (Mr. Conyers) that the House suspend the rules
and pass the bill, H.R. 5104, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
The title was amended so as to read: ``A Bill to extend the Protect
America Act of 2007 for 15 days.''.
A motion to reconsider was laid on the table.
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