[Congressional Record: March 14, 2008 (House)]
[Page H1707-H1760]
FISA AMENDMENTS ACT OF 2008
Mr. ARCURI. Mr. Speaker, by direction of the Committee on Rules, I
call up House Resolution 1041 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 1041
Resolved, That upon adoption of this resolution it shall be
in order to take from the Speaker's table the bill (H.R.
3773) to amend the Foreign Intelligence Surveillance Act of
1978 to establish a procedure for authorizing certain
acquisitions of foreign intelligence, and for other purposes,
with the Senate amendment thereto, and to consider in the
House, without intervention of any point of order except
those arising under clause 10 of rule XXI, a motion offered
by the chairman of the Committee on the Judiciary or his
designee that the House concur in the Senate amendment with
the amendment printed in the report of the Committee on Rules
accompanying this resolution. The Senate amendment and the
motion shall be considered as read. The motion shall be
debatable for one hour, with 40 minutes equally divided and
controlled by the chairman and ranking minority member of the
Committee on the Judiciary and 20 minutes equally divided and
controlled by the chairman and ranking minority member of the
Permanent Select Committee on Intelligence. The previous
question shall be considered as ordered on the motion to its
adoption without intervening motion.
Sec. 2. During consideration of the motion to concur
pursuant to this resolution, notwithstanding the operation of
the previous question, the Chair may postpone further
consideration of the motion to such time as may be designated
by the Speaker.
The SPEAKER pro tempore (Mr. Pastor). The gentleman from New York is
recognized for 1 hour.
Mr. ARCURI. Mr. Speaker, for purposes of debate only, I yield the
customary 30 minutes to the gentleman from Washington (Mr. Hastings).
All time yielded during consideration of the rule is for purpose of
debate only.
General Leave
Mr. ARCURI. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days within which to revise and extend their remarks
and insert extraneous material into the Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from New York?
There was no objection.
Mr. ARCURI. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, House Resolution 1041 provides for consideration of the
Senate amendment to H.R. 3773, the FISA Amendments Act of 2008. The
rule makes in order a motion offered by the chairman of the Judiciary
Committee to concur in the Senate amendment with the amendment printed
in the Rules Committee report on this resolution.
Mr. Speaker, we have come a long way on the crucial issues of
intelligence-gathering. I commend Chairmen Conyers and Reyes for their
diligence in providing much-needed attention in evaluation of FISA,
while ensuring that we provide our Nation's intelligence community with
the necessary tools and resources to prevent a future terrorist attack
on our Nation.
[[Page H1708]]
Over the last few weeks, my office phone lines have been burning up
with calls from constituents regarding FISA and the need for Congress
to take action. Unfortunately, the calls were prompted by a far-
reaching misinformation campaign aimed to scare the public into
believing that the House majority is in some way prohibiting our
Nation's intelligence community from monitoring the terrorists. Nothing
could be further from the truth. Not only are these claims false, they
are unconscionable.
I don't believe any Member of this institution, Republican or
Democrat, wants to shackle our Nation's intelligence community from
preventing another terrorist attack. Frankly, I am getting alarmed by
the claims by some of my colleagues. For the last couple of weeks, we
have heard only one message from the other side of the aisle: take up
the Senate bill because it has the support of the President. I have no
interest in being a rubber stamp for this administration, nor of any
elected body, even the Senate. That is not why I was sent to Congress.
I certainly mean no disrespect to the Senate, but my constituents sent
me to Congress to use my judgment and conscience to help govern.
The chairman of the Judiciary Committee said it best earlier in the
week during our Rules Committee hearing when he said we are not an
appendage of the Senate. I couldn't agree with Mr. Conyers more. It is
our responsibility to the American people to exercise our legislative
duty. Furthermore, with an issue like FISA and intelligence-gathering,
I am confident that the American people would expect the House to
exercise that duty to the fullest extent possible.
We are a bicameral form of government. The changes we are proposing
to the Senate bill today represent a powerful step forward in the
legislative process. The administration has made it overwhelmingly
clear that they need to use electronic surveillance to track and
identify terrorist targets. And despite the misinformation campaign and
the rhetoric, the proposal we will vote on today makes it easier for
our Nation's intelligence community to wiretap suspected terrorists by
explicitly not requiring a court order to wiretap targets believed to
be outside the United States. In addition, the proposal provides for
surveillance of terrorists and other targets overseas who may be
communicating with Americans.
And we are all well aware of the issue of immunity for telecom
companies. It seems like that is all we have talked about here for the
past several months. As a former prosecutor, I can say from experience
and without hesitation, you never provide immunity to anyone unless you
are sure whom you are giving the immunity to and why you are giving the
immunity out.
One point that has not received enough emphasis over the last few
weeks is that the telecom companies have immunity under current law.
However, the problem is that anytime a telecommunication company goes
to court, this administration steps in and says this is classified
material and the question is deemed state secret, and therefore you are
not allowed to talk about it. In that way, the telecom companies are
not allowed to even defend themselves, but rather have to sit there and
answer for any charges civilly made against them.
I, for one, couldn't agree more that if the intelligence community
goes to a telecom company with adequate authorization and says, We need
communication records for person X because he or she is believed to be
a terrorist, the telecom company deserves to be afforded that
protection. Unfortunately, we have absolutely no idea what the
administration requested and what the telecom companies have provided.
Our proposal provides a commonsense, balanced approach to address the
immunity issue. We want to provide the telecom companies with a legal
way to present their defense in a secure proceeding and in a secure way
in district court without the administration asserting state secret
privileges to block those defenses.
And, again, don't be fooled by the misinformation campaign. We are
not talking about broadcasting the content of those defenses over the
public airwaves, rather just the opposite will be done in camera and in
secret. This would involve ex parte proceedings in camera. That is one-
on-one telecom company and a Federal district court judge behind closed
doors. That way, the determination of whether or not the classified
material is, in fact, a state secret is made by a neutral third party
and not just this administration.
Finally, our proposal establishes a bipartisan national commission
with subpoena power to investigate and report to the American people on
the administration's warrantless surveillance activities and to
recommend procedures and protections for the future in much the same
way that the 9/11 Commission did.
Mr. Speaker, we must bring the misinformation campaign and partisan
wrangling to an end. There is no question that there are groups and
individuals out there who seek to do us harm. There is no question that
my colleagues and I want to give the people who protect us from the
danger every tool they need to keep fighting terrorism. The proposal we
will vote on today will, in fact, provide our Nation's intelligence
community with the resources to prevent future acts of terrorism while
protecting the freedoms of the citizens under the Constitution.
Everyone in this body wants the same thing, and that is to protect
American citizens. This bill does exactly that.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself as much time
as I may consume.
(Mr. HASTINGS of Washington asked and was given permission to revise
and extend his remarks.)
Mr. HASTINGS of Washington. Mr. Speaker, I want to thank my friend
from New York (Mr. Arcuri) for yielding me the customary 30 minutes,
which I must note, Mr. Speaker, is more time than the entire House
Intelligence Committee will be permitted to debate the legislative
proposal covered by this rule. The Democrat Rules Committee is allowing
just 20 minutes for the members of the Select Committee on Intelligence
to debate this Democrat FISA proposal.
What is at stake is the safety and security of our Nation to protect
us against foreign terrorists threats by modernizing the 1970s
electronic surveillance law. The issue before the House is no less than
our intelligence community's ability to protect American citizens by
monitoring foreign terrorists communicating in foreign places. But the
respective members of the Intelligence Committee are to be given only
20 minutes to debate this issue.
It appears that Democrat leaders are not content with their record of
the most closed rules in the history of the U.S. House of
Representatives in shutting down every Member from being permitted to
offer amendments on the House floor. So now they are going so far as to
restrict the time the House is even permitted to debate bills that they
are trying to ram through this body.
Mr. Speaker, since the new Democrat majority took control of the
House Rules Committee last January a year ago, they have approved rules
that allow other committees far more time to debate matters of far less
importance than FISA. For example, H. Res. 214 provided a rule allowing
the Transportation Committee 1 hour of floor debate on legislation to
``authorize appropriations for sewer overflow control grants.''
H. Res. 269 gave the Financial Services Committee 1 hour to debate
housing assistance for Native Hawaiians.
H. Res. 327 gave an hour to the Science and Technology Committee to
discuss scholarships for math and science teachers.
H. Res. 331 gave the Resources Committee 1 hour of time, not just 20
minutes, but 1 hour of time to debate restoring the ``prohibition on
the commercial sale and slaughter of wild free roaming horses and
burros.''
Mr. Speaker, I believe my colleagues on the other side of the aisle
care sincerely about the security of our country and our fellow
citizens. But I fail to understand how it could be justified to allow
more House floor time to debate overflowing sewers and the killing of
wild burros than the members of the Intelligence Committee are allowed
today to discuss the urgent needs of FISA.
The answer is that Democrat leaders are working overtime to block the
[[Page H1709]]
House from voting on a bipartisan compromise bill that has passed the
Senate by a vote of 68-29. The bill passed the Senate over a month ago,
and on February 12, the Democrat leaders refused to allow the House to
even vote on that measure.
Twenty-one Blue Dog Democrats sent a letter to Speaker Pelosi at the
end of January declaring their support for the Senate FISA bill. But
there still hasn't been a vote. Mr. Speaker, I submit for the Record
that letter.
Congress of the United States,
Washington, DC, January 28, 2008.
Dear Madam Speaker: Legislation reforming the Foreign
Intelligence Surveillance Act (FISA) is currently being
considered by the Senate. Following the Senate's passage of a
FISA bill, it will be necessary for the House to quickly
consider FISA legislation to get a bill to the President
before the Protect America Act expires in February.
It is our belief that such legislation should include the
following provisions:
Require individualized warrants for surveillance of U.S.
citizens living or traveling abroad;
Clarify that no court order is required to conduct
surveillance of foreign-to-foreign communications that are
routed through the United States;
Provide enhanced oversight by Congress of surveillance laws
and procedures;
Compel compliance by private sector partners;
Review by FISA Court of minimization procedures;
Targeted immunity for carriers that participated in anti-
terrorism surveillance programs.
The Rockefeller-Bond FISA legislation contains satisfactory
language addressing all these issues and we would fully
support that measure should it reach the House floor without
substantial change. We believe these components will ensure a
strong national security apparatus that can thwart terrorism
across the globe and save American lives here in our country.
It is also critical that we update the FISA laws in a
timely manner. To pass a long-term extension of the Protect
America Act, as some may suggest, would leave in place a
limited, stopgap measure that does not fully address critical
surveillance issues. We have it within our ability to replace
the expiring Protect America Act by passing strong,
bipartisan FISA modernization legislation that can be signed
into law and we should do so--the consequences of not passing
such a measure could place our national security at undue
risk.
Sincerely,
Leonard Boswell, Marion Berry, Mike Ross, Bud Cramer,
Heath Shuler, Allen Boyd, Dan Boren, Jim Matheson,
Lincoln Davis, Tim Holden, Dennis Moore, Christopher
Carney, Earl Pomeroy, Melissa Bean, Joe Baca, John
Tanner, Jim Cooper, Brad Ellsworth, Charlie Melancon,
Zack Space.
When the Rules Committee met to discuss this bill on Wednesday,
several of my Democratic colleagues argued that the House shouldn't
have to give in to a my-way-or-the-highway or take-it-or-leave-it
approach when it comes to the bipartisan Senate bill.
I agree with my colleagues, Mr. Speaker. No Member of this House
should ever vote for legislation that they can't support. Members have
the right to vote their conscience. But, Mr. Speaker, simply allowing
the House to vote on a bipartisan FISA bill doesn't force any Members
to vote against his or her will. It just gives them an opportunity to
vote on a bill that has passed the other body overwhelmingly.
{time} 1030
It is the Democrat leaders and a liberal minority amongst that party
who are telling the rest of the House that it's their way or no way.
For days and weeks, they've refused the call of the 21 Blue Dog
Democrats for the House to act in the name of our Nation's security.
Democrat leaders are standing in the way of letting the House vote and
work its will because they fear a majority of this body will actually
approve the Senate bill.
Mr. Speaker, today, every Member of the House is going to have a
chance to vote and to allow the bipartisan Senate language to pass this
House. Let me be very clear what I intend to do when the previous
question is moved, because this will not be the ordinary motion. I will
amend just one clause of the rule, that is, section 2, so that the
section will then read, and I quote: Upon rejection of the motion to
concur specified in section 1, a motion that the House concur in the
Senate amendments to H.R. 3773 is hereby adopted.
What does that mean? What this means is that by voting ``no'' on the
previous question, the rule will be amended in such a way that
continues to allow the House to debate and vote on the proposal that's
offered by the Democrats today. But if the House Democrat proposal
fails, then the bipartisan Senate FISA bill is then agreed to by the
House. So we will have the vote on the Democrats' partisan FISA bill
presented to us today, but if the vote on the Democrat FISA bill fails,
then the games stop right there and the Senate bill goes to the
President for his signature. There's no more stalling, Mr. Speaker, no
more posturing.
It's time for the House to stand up and vote and get on with the
business of protecting America.
With that, Mr. Speaker, I reserve the balance of my time.
Mr. ARCURI. Mr. Speaker, it just seems to me that this debate is
becoming more and more political rather than focusing on what we're
here to do, and that is to ensure that the people of this country have
absolutely the best FISA bill that they can, a bill that not only
protects us but ensures that the Constitution is protected as well.
That's what this FISA bill does. It takes the best of all the things
that we have been trying to achieve over the past several months and
incorporates it into a bill, including unshackling the telecom
companies so that if they have done what has been asked of them and
what is permitted to do under the law, that they are allowed immunity.
We certainly don't want to prosecute people who have been trying to
help our country and keep our country safe. Nonetheless, this puts into
effect the important factors of ensuring that those things are done.
With that, Mr. Speaker, I would like to yield 2\1/2\ minutes to the
gentleman from Pennsylvania (Mr. Sestak).
Mr. SESTAK. Mr. Speaker, I was assigned to the Pentagon the day 9/11
happened. It was very obvious, sitting there at dead center, that the
world had changed. We in the military used to like away games. We liked
our wars over there. Suddenly we had a home game and things had to
change.
A few days later, I was appointed to be head of the Navy's
antiterrorism unit. Shortly after that, I was on the ground in
Afghanistan flying in with a fellow from the CIA with a suitcase filled
with millions of dollars. I wanted the best insurance, the best
intelligence. But I felt I always had that because I had worked at the
National Security Council, where in counterproliferation and
antiterrorism efforts there, I was able to see that whether it had been
President Reagan, President Clinton, or the first President Bush, FISA
provided that ability.
I like this bill. It is very similar to the Senate bill. If someone
in Saudi Arabia is talking to someone in Germany and it routes to the
United States, we can listen in without asking questions.
I remember being in the White House and being frustrated, because if
somebody was doing proliferation of weapons of mass destruction, we
couldn't, under FISA, get a warrant for them. This bill fixes that.
And then I step back in emergencies. This bill fixes it in an
emergency situation that you don't even have to ask permission; you can
just do it. And it extends from 3 days of having to come to the court
till 7 days. And then even if the court takes another 30 days, keep
listening. Thank you for that.
But the real differences come down to what I think is important,
because every day I was out there for 31 years in the military, I
wasn't just fighting an enemy or trying to deter him; I was fighting
for an ideal, the ideal of which America is founded upon, the rights of
civil rights. Therefore, I honestly believe what we have done in the
telecommunications companies and discussing immunity should be done by
the proper branch of government, the judicial branch, a court, the FISA
Court. Then if everything was not awry, then we can say, under the
provisions of the previous law, they have immunity.
And then I would like to also point out that it is very important to
me that we have oversight on reports that are coming, and they must
come to the FISA Court to explain the procedures they will follow. That
type of oversight is what I followed for. In short, I will never forget
being over there in charge of my carrier battle group, fighting in
Afghanistan, that what I was fighting for was security, number one,
properly balanced with civil rights. This bill
[[Page H1710]]
does do that. I wouldn't vote for it any other way unless it did.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield as
much time as he may consume to the distinguished ranking member of the
Rules Committee, the gentleman from California (Mr. Dreier).
Mr. DREIER. Mr. Speaker, I thank my friend for yielding and I
appreciate his fine work.
It's no secret that there is a lot of controversy surrounding this
issue of modernization of the Foreign Intelligence Surveillance Act and
everything that surrounds our effort to successfully prosecute this war
on terror. We know that sacrifices have been made. We know that
sacrifices continue to be made. And we're all very committed to the
civil liberties of every single American. That's why I'm convinced that
we are not going to take actions which will in any way undermine the
civil liberties of our fellow Americans.
It is very important to note, Mr. Speaker, that as we look at this
issue, there is a great deal of bipartisanship that exists.
Unfortunately, it's not in this body. And I recognize that as the
people's House we have a unique responsibility and we should not in any
way become a rubber stamp for action taken by the other body. But I
will say this. As we look at bipartisanship, it extends beyond our
colleagues in the United States Senate. It does exist right here in the
House, in that 21 Democrats signed a letter to the Speaker and made the
specific request that we have a chance to vote on the proposal that is,
in fact, the bipartisan compromise that did emerge from the Senate. We
also have had a bipartisan group of attorneys general across the
country who have indicated that they very much believe that we should
proceed with taking the action that is embodied in that bipartisan
compromise that has emerged from the Senate.
And, Mr. Speaker, I think one of the most important things that we
should note is not simply bipartisanship but something that clearly
transcends any kind of politics or partisanship, and that is the words
that come from the Director of National Intelligence, Mike McConnell.
And when I say that he transcends partisanship, I would like to remind
our colleagues that this is a man who has spent four decades of his
life working in the intelligence field. He was the head of the National
Security Agency for President Bill Clinton, and he now serves as the
Director of National Intelligence.
In testimony before the Judiciary Committee, he referred to the fact
that there has been a 66 percent reduction, a two-thirds reduction in
the amount of information that they need, that they should be able to
glean in the intelligence area. And he has said that in his discussions
and negotiations with those in the telecommunications industry that
they will not be able to continue as they have in the past to help us
prosecute this war if they don't have this immunity.
Now, Mr. Speaker, I think that one of the things that we in this
debate on the rule are saying is that, let's just allow a vote on that
bipartisan compromise, the so-called Rockefeller-Bond bill that emerged
from the Senate. Sixty-eight Democrats and Republicans came together
and agreed on it. And we had an interesting Rules Committee meeting,
Mr. Speaker, in which we simply said, okay, we're going to have a
chance to vote on the measure that will emerge from the majority, but
why if as my very dear friend, the chairman of the Committee on the
Judiciary, Mr. Conyers said, he said he wanted there to be an exchange
of ideas, if there's going to be an exchange of ideas, let's at least
allow our colleagues to have an up-or-down vote on that bipartisan
compromise which embodies the above-partisan recommendations of the
Director of National Intelligence, the bipartisan recommendations of
the attorneys general across the country and simply say that we should
have a chance to vote on it. It's very unfortunate that this rule
denies Members of the House of Representatives the opportunity to have
that vote.
Mr. Speaker, I urge my colleagues to vote down this rule. We need to
defeat this rule so that we can in fact have a package that will allow
us to do everything we need as we pursue our very, very important
responsibility, and that is to secure our Nation.
Mr. ARCURI. Mr. Speaker, I would like to yield 2 minutes to the
gentleman from New Jersey, a member of the Intelligence Committee, Mr.
Holt.
Mr. HOLT. Mr. Speaker, I thank the gentleman, and I am pleased to
rise to say that not only do we have enough time to debate this, but we
have a very good, well-structured bill in front of us.
It is an important role of the Federal Government to look after the
safety and the security of the American people. This bill does that. It
is a well-structured bill that gives telecom companies the opportunity
they have asked for to defend themselves in court. It provides for a
congressional commission that will look at how electronic surveillance
has been conducted and will make recommendations. It includes a
reasonable expiration date to keep Congress involved in the oversight
of this. And I would argue most importantly this legislation provides
prior involvement of the court in all intercepts of communications of
Americans. Critically important.
Here are the facts. This bill gives our intelligence community the
flexibility they need to collect information on our enemies while
protecting the American people in every aspect. And it mandates
extensive reviews and reporting requirements on the electronic
surveillance programs in question. It rejects the President's efforts
to redefine the relationship between the people and their government, a
very key point.
I commend the Speaker, the leader, the Chair of the Judiciary
Committee, the Chair of the Intelligence Committee for negotiating with
a firm tone and a principled approach to give us very good legislation,
a very good bill despite the fact that they've had to work with the
relentless drumbeat of propaganda and disinformation orchestrated by
the administration in this matter. I commend them for producing such
good legislation in such difficult circumstances.
Mr. HASTINGS of Washington. Mr. Speaker, may I inquire how much time
remains on both sides.
The SPEAKER pro tempore. The gentleman from Washington has 19\1/2\
minutes. The gentleman from New York has 18 minutes.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 5
minutes to the gentleman from California (Mr. Royce).
{time} 1045
Mr. ROYCE. I thank the gentleman.
Mr. Speaker, I am rising to oppose the rule. As I think you know, we
are going to end up in a circumstance here, according to our Director
of National Intelligence, where, for the first time, frankly, this
refusal to protect our telecom companies, who face some 40 lawsuits and
billions of dollars, our refusal to allow for the protection for them
to defend themselves will end up stopping the intelligence
professionals from conducting surveillance of foreign persons in
foreign countries. It's really because they cannot read the minds of
their terrorist targets and guarantee that they would not call the
United States or one of their people in the United States.
Unfortunately, sometimes they do. Mahmood Karimi came into this
country in the trunk of a car over the border of Mexico after paying
$5,000. He was the brother, by the way, of the Hezbollah general in
southern Lebanon who launched the attacks there.
I was in Haifa in August, and the Prime Minister of Israel, by the
way, told me that one of his great concerns was the advantages that had
been given up and the knowledge that had now become known to the
terrorists. He said one of the reasons we are having such difficulty
with Hezbollah is because they now know how the United States, how
other countries were able to apprehend the information before these
attacks came.
But in any event, the brother of the individual who was launching
those attacks some years ago actually came into the United States. I am
certain somehow he got phone calls out of Beirut, and I am sorry if we
violated his constitutional rights. I know there is the assumption that
once a foreign agent from a foreign country is in this country, we
don't have the right to monitor and violate his civil rights.
Here is what I do know about this individual: I know that he did
manage to get through our southern border in my State. I know that
somehow we apprehended him up in Detroit. I know that
[[Page H1711]]
once we did, we found 50 of his cohorts who were part of the Hezbollah
cell.
Now, I am not making the allegation that we used this kind of
intelligence in order to apprehend him, because, frankly, I don't know
how we apprehended him. I only give you that example to say these are
the types of individuals who are operating. He was trained by Iran; he
was trained by foreign intelligence. He was here in the United States,
and I imagine in one case out of 1,000, when someone is trying to make
a phone call from Beirut to their agent, let's say in Syria,
occasionally that call might come into the United States because there
might be a foreign agent here.
The point I want to make is that this is, frankly, more protection
than Americans get under court-ordered warrants in Mob and other
criminal cases. The issue we are debating, frankly, is pretty
important. It's an issue of life and death, frankly, as far as I am
concerned.
I serve as the ranking member of the Terrorism and Nonproliferation
Subcommittee. That there have not been attacks on our soil since 9/11
is due to the improved surveillance in real-time that we are able to
conduct against foreign terrorists.
Now, that good record in no way should lead us to discount the
jihadists, because the image of Osama bin Laden's allies operating in
some remote terrain somewhere may give the impression that our foes are
isolated. I want to share with you, because of the Internet our foes
are not isolated. We are confronting a virtual caliphate. Radical
jihadists are physically disbursed, but they are united through the
Internet. They use the tool there to recruit and plot their terrorist
attacks. They use electronic communications for just such a purpose,
and they are very sophisticated in that use.
How has the West attempted to confront that? Well, the British used
Electronic surveillance in real-time and they used it last year to stop
the attack on 10 transatlantic flights. They prevented that attack a
year ago by wiretapping. The French authorities used wiretaps to lure
jihadists basically into custody and prevented a bomb attack.
Given this threat, it is unfathomable that we would weaken our most
effective preventive tool. That's exactly what this bill does, in the
opinion of Admiral McConnell, whose job it is to protect our security.
Admiral McConnell said that we are actually missing a significant
portion of what we should be getting. Now, he has served both
Democratic and Republican administrations with distinction.
I would ask those so distrustful, go ahead, discount his estimate,
cut them in half, say we lose one-third of our intelligence as a result
of this bill passing and the problems that we foment with telecom
companies around the world. I would argue that is too much to give up.
I don't want to lose a single percent of our intelligence on terrorist
communications. With nuclear and biological material floating around
the globe, we don't have that margin of error.
Mr. ARCURI. I thank the gentleman from California. I just want to
assure him that I think I speak for the entire Democratic Caucus when I
say that we share his concern for the safety of this country.
However, when he speaks about things that just blatantly aren't true,
for some reason, and I don't know if it's an attempt to frighten the
American people, it's troubling. This bill, this FISA bill, allows the
government to wiretap any foreign national, whether they are overseas
or they are here. This is just blatantly untrue. What he says about the
fact is that we cannot wiretap, we can't monitor a person that comes to
this country who is a foreigner. It's just blatantly untrue. This FISA
bill allows that to happen.
It's somewhat disheartening when people mention facts that just
aren't true, and I certainly hope it's not for political reasons; but
let's stick to the facts, because the facts are clearly that this bill
allows that to happen.
I yield 2\1/2\ minutes to the gentlewoman from Texas, a member of the
Judiciary Committee, Ms. Jackson-Lee.
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Speaker, I imagine that Admiral
McConnell is watching and listening, and so allow me this morning to
thank all of the patriots that are stationed around the world that are
the front lines of the national security and defense and intelligence
community of this Nation. To the American people, let me say on your
behalf, we thank them, for they are working every day, and they are
working diligently, and they are being successful.
This rule today supporting the underlying bill should be passed,
because Admiral McConnell is aware that every single tool that he has
asked for, foreign-to-foreign and otherwise in terms of surveillance,
is in this bill.
Interestingly enough, if you will talk to members of the law
enforcement community and those who are dealing with terrorists, they
will tell you that they are intercepting terrorists. They are finding
terrorists every single day. I personally spoke to law enforcement who
noted in one region of the country that they have intercepted three
terrorists. So what we are doing today is providing the codified
document to secure your civil liberties, to suggest that if the focus
of your surveillance is actually an American, they have to have a court
intervention, a quick court intervention.
As it relates to our telecom companies, is anyone suggesting that
they are not patriots? Is anyone suggesting that they will not comply
with a request by the national security community?
They will, because in this bill it indicates to them that if they get
a letter that suggests that we need their help, that they are not
breaking the law, that all of the laws have been in compliance
certified by the AG, they get absolute immunity.
So going forward, there will be no question. If that happened in the
past, they have absolute immunity. There will be no gaping hole, and
the idea of avoiding retroactive immunity is a question to America. It
is protecting your civil liberties. Yes, we have been secure, or we
have avoided a tragedy since 9/11. It is because we have given them the
tools, and now we give them better tools.
It is important to pass this legislation, because it advances the
security of America. But what it says to the world is that we are not
terrorized by the terrorists. We believe in security, but we believe in
the civil liberties of all Americans.
The Constitution still stands.
Mr. Speaker, I rise today in support of the H. Res. 1041, Providing
for Consideration of the Senate Amendment to H.R. 3773, the Foreign
Intelligence Surveillance Act (FISA) Amendments Act. This Rule will
allow us to examine the Senate Amendment and to consider the many
concerns associated with this act.
We have worked as a body to resolve our issues with FISA and with
those of our Senate colleagues without eviscerating the fundamental
rights embodied in the Bill of Rights. Leadership has worked tirelessly
to not simply reconcile the Senate language with the RESTORE Act (H.R.
3773), which we passed in the House on November 15, 2007, but
leadership has also worked tirelessly to go beyond the RESTORE Act.
This current FISA Reform legislation has been borne out of this
tireless struggle. Let me detail some of the ways that the FISA Reform
Act balances security and liberty: adopting provisions from the Senate
bill that will for the first time provide statutory protections for
U.S. persons overseas, that ensures surveillance of their
communications are conducted through the courts; and providing a
mechanism for telecommunications carriers to prove their case that they
did not engage in any wrongdoing and to guarantee due process with a
fair hearing in court.
Like the RESTORE Act, the FISA reform legislation provides for
collection against terrorist organizations such as Al Qaeda, while
providing prior court approval of acquisition and an on-going process
of review and oversight in order to protect Americans' privacy.
The FISA Reform Act creates a bipartisan commission on Warrantless
Electronic Surveillance Activities with strong investigatory powers in
order to preserve the rule of law in pending and future lawsuits. This
revised version of the bill reiterates FISA's exclusive control for
conducting foreign intelligence surveillance, unless a specific
statutory authorization for surveillance is enacted. This is an area
where the House version has differed from the Senate.
Perhaps the most important distinction between the House version of
the bill and the Senate's version is that the Court must approve
surveillance procedures prior to the start of surveillance. Under the
Senate bill, the Director of National Intelligence and the Attorney
[[Page H1712]]
General authorize surveillance and submit procedures to the FISA Court
5 days after surveillance begins. Under the Senate bill, the FISA Court
has no firm deadline for approving the procedures. The Senate bill does
not go far enough in protecting the individual rights of Americans.
The FISA Reform Act requires submission to Congress and the FISA
Court of ``reverse targeting'' guidelines that are to be promulgated by
the NSA. Specifically, these guidelines will determine whether the
``significant purpose'' of the surveillance is to acquire
communications of a specific U.S. person. In this regard, the House
bill gives more teeth to the provisions in the Senate bill, which only
has general prohibitions against reverse targeting and does not require
the promulgation of agency guidelines addressing reverse targeting.
Both the FISA Reform Act and the Senate bill, provide for prospective
liability protection for telecommunications companies that assist with
lawful surveillance activities. However, the FISA Reform Act goes
further by ensuring that telecommunication companies complying with the
Protect America Act (PAA) have liability protection for lawful
surveillance that occurred after the expiration of the PAA.
Another major difference between the bills is that the FISA Reform
Act does not provide for any retroactive immunity. Instead, the FISA
Reform Act provides for a process to allow district courts to review
classified evidence in camera and ex parte (in front of the judge
without the presence of the plaintiff). This allows the
telecommunications companies to have their day in court and to assert
defenses that already exist under FISA and other statutes. This process
simply creates a pathway for companies to assert such defenses.
This process, which allows the Court to review information and the
companies to prove their case, prevents the Executive Branch from
blocking the companies from asserting their defenses under the doctrine
of ``state secrets'' privilege. The FISA Reform Act permits the
telecommunication companies an opportunity to defend themselves but
does not create any new defenses or immunity and it does not excuse any
conduct that may have been unlawful. Under the House bill,
telecommunication companies can prove their innocence in court without
the protection of the States immunity privilege. If these companies
cannot prove that their actions were proper then they will be held
accountable.
The Senate bill grants full immunity to any telecommunication company
where the Attorney General certified that assistance was requested as
part of the President's warrantless surveillance program. This blanket
immunity goes to far, and do not support full immunity.
I believe the FISA Reform Act is better because it provides the
telecommunications companies with due process and an opportunity to
prove their guilt or innocence. I cannot support a case for blanket
immunity and the FISA Reform Act does not allow it.
Lastly, the FISA Reform Act provides a forward looking provision that
establishes a bipartisan National Commission, appointed by Congress.
The Commission will investigate and report to Congress and the public
about the Administration's warrantless surveillance activities.
Homeland security is not a Democratic or a Republican issue, it is
not a House or Senate issue; it is an issue for all Americans--all of
us need to be secure in our homes, secure in our thoughts, and secure
in our communications.
I find it disturbing that our Republican colleagues will not join us
to ensure that Americans are safe here and abroad. Disturbing that they
do not recognize that we must protect the civil liberties of this
Nation just as we protect American lives.
Mr. Speaker, in August of last year, I strongly opposed S. 1927, the
so-called ``Protect America Act'' (PAA), when it came to a vote on the
House floor. Had the Bush administration and the Republican-dominated
109th Congress acted more responsibly in the two preceding years, we
would not have been in the position of debating legislation that had
such a profoundly negative impact on the national security and on
American values and civil liberties in the crush of exigent
circumstances. As that regrettable episode clearly showed, it is true
as the saying goes that haste makes waste.
The PAA was stampeded through the Congress in the midnight hour of
the last day before the long August recess on the dubious claim that it
was necessary to fill a gap in the Nation's intelligence gathering
capabilities identified by Director of National Intelligence Mike
McConnell. In reality, it would have circumvented the Fourth Amendment
to the Constitution and represented an unwarranted transfer of power
from the courts to the Executive Branch and a Justice Department led at
that time by an Attorney General whose reputation for candor and
integrity was, to put it charitably, subject to considerable doubt.
Under the House bill, the Foreign Intelligence Surveillance Court
(FISC) is indispensable and is accorded a meaningful role in ensuring
compliance with the law. The bill ensures that the FISC is empowered to
act as an Article III court should act, which means the court shall
operate neither as a rubber-stamp nor a bottleneck. Rather, the
function of the court is to validate the lawful exercise of executive
power on the one hand, and to act as the guardian of individual rights
and liberties on the other.
Moreover, Mr. Speaker, it is important to point out that the loudest
demands for blanket immunity did not come from the telecommunications
companies but from the administration, which raises the interesting
question of whether the administration's real motivation is to shield
from public disclosure the ways and means by which government officials
may have ``persuaded'' telecommunications companies to assist in its
warrantless surveillance programs.
My amendment, which was added during the markup last year, 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'' is a concept well known to members of the
Judiciary Committee but not so well understood by those less steeped in
the minutiae of electronic surveillance; it 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, as well as progressives
and civil liberties organizations, have with the FISA is that the
temptation of national security agencies to engage in reverse targeting
is often difficult to resist in the absence of strong safeguards to
prevent it.
My amendment, accepted in the House Judiciary mark up, reduced any
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 achieved 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 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 provided 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.
Mr. Speaker, nothing in the Act or the amendments to the Act should
require the Government to obtain a FISA order for every overseas target
on the off chance that they might pick up a call into or from the
United States. Rather, what should be required, is a FISA order only
where there is a particular, known person in the United States at the
other end of the foreign target's calls in whom the Government has a
significant interest such that a significant purpose of the
surveillance has become to acquire that person's communications.
The acquisition of communications will happen over time and the
Government will have the time to get an order while continuing its
surveillance. It is the national security interest to require the
Government to obtain an order at that point, so that it can lawfully
acquire all of the target person's communications rather than
continuing to listen to only some of them.
We are living in a time of economic crisis and acts of unfettered
terrorism. Former President Franklin Delano Roosevelt said that ``our
national determination to keep free of foreign wars and foreign
entanglements cannot prevent us from feeling deep concern when ideals
and principles that we have cherished are challenged.''
Like former President Roosevelt, we must secure our Nation from
foreign entanglements but at the same time we must continue to champion
the fundamental freedoms of all Americans regardless of whether the
surveillance occurs in the United States or abroad.
It is very important to me; and it should be very important to
Members of this body that we require what should be required in all
cases--a warrant any time there is surveillance of a United States
citizen.
In short, the Senate amendment to the House amendment makes a good
bill even better. For this reason alone, civil libertarians should
enthusiastically embrace the amended H.R. 3773.
The Bush administration would like the American people to believe
that Democrats do not want to protect America. My Republican colleagues
echo this false claim in both the chambers of Congress by questioning
our patriotism. But I remind them that tyrannical behavior often
questions the motivations of those seeking to protect civil liberties.
[[Page H1713]]
Let us not fall prey to false proclamations of an administration that
takes our Bill of Rights and lays it to the side when they feel like
it. Security must go hand-in-hand with liberty. Oppression of some for
the alleged security of others is not the example this great Nation
should set.
As I wrote in the Politico, ``the best way to win the war on terror
is to remain true to our democratic traditions. If it retains its
democratic character, no nation and no loose confederation of
international villains will defeat the United States in the pursuit of
its vital interests.''
Thus, the way forward to victory in the war on terror is for the
United States to redouble its commitment to the Bill of Rights and the
democratic values which every American will risk his or her life to
defend. It is only by preserving our attachment to these cherished
values that America will remain forever the home of the free, the land
of the brave, and the country we love.
Mr. 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.
I continue to 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.
In all candor, Mr. 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 not enough on the public record
about the nature and effectiveness of those programs, or the
trustworthiness of this administration, to indicate that they require a
blank check from Congress.
The Bush administration did not comply 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 upon incomplete
information from the Bush administration or upon erroneous revelations
leaked through the media. Instead Congress 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
the United States and abroad.
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.
Mr. Speaker, I encourage my colleagues to Join me In a vote of
support for H. Res. 1041, the Rule providing for FISA Amendments Act. I
yield back the balance of my time.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 3
minutes to the distinguished Republican Conference chairman, Mr. Putnam
from Florida.
Mr. PUTNAM. I thank my friend for the time.
Mr. Speaker, much of what we debate down here often is theoretical.
We say if this passes, we believe this will happen. If this fails, we
believe that will happen. Much of it is speculative. It is our opinions
coming down here and directing, gazing into the future about what we
think will happen.
Much in this toxic atmosphere that is Washington that we debate is
very partisan. This issue is neither theoretical nor partisan. It is
not theoretical anymore, because this is now the 27th day that we have
denied our intelligence agencies and law enforcement officials the
tools they need to keep America safe.
It is not partisan because the bill that we are asking you to vote
for and support here in a few minutes already passed the Senate with 68
Senators voting for it. It was voted out on a bipartisan basis.
Now, anyone who follows the activities of the Senate knows that they
have a hard time getting 68 votes for a Mother's Day resolution. For
them to find 68 votes on an issue of this magnitude is remarkable.
The only way that we can put back into place the provisions of the
Protect America Act that allow us to prevent future plots and
conspiracies and attacks on our homeland is to pass the Senate bill. If
we do not pass the Senate bill today, Congress will leave for 2 more
weeks, 2 more weeks that we will deny the eyes and ears to our law
enforcement and intelligence officials who keep us safe.
Now, let me just draw attention to the fact that 21 Blue Dog
Democrats have put their names to a letter saying pass the Senate bill;
68 Senators have voted to pass the Senate bill. The bipartisan Senate
Intelligence Committee said, and I quote, ``Electronic communication
service providers acted in good faith on a good faith belief that the
President's program and their assistance was lawful.''
This is not a theoretical debate. This is an important tool that we
must restore to the hands of our intelligence agencies before Congress
goes home for 2 more weeks. This is an example of the tyranny of the
few blocking the will of the many. It is not just Republicans who say
we need to pass this. It is Senator Rockefeller, chairman of the Senate
Intelligence Committee. It is 21 Blue Dog Democrats.
It is 25 States' attorneys general. This is too important to let it
slip through our fingers before we go home for 2 weeks. Pass the
previous question. Deem the Senate bill passed and give those who stand
on alert as the guardians of our freedom and liberty, liberty and
security on a daily basis, what they need to continue to keep us safe.
Don't extend the 27 days of darkness for another 2 weeks. Give them
the tools they need. Pass the previous question. Pass the Senate bill.
Mr. ARCURI. Mr. Speaker, I yield 4\1/2\ minutes to the gentleman from
New York, a member of the Judiciary Committee, Mr. Nadler.
Mr. NADLER. Mr. Speaker, the last few weeks, the last few minutes we
have heard assertions from our colleagues on the other side of the
aisle that are false and designed to mislead and frighten the American
people. They claim that we allowed the Protect America Act to expire,
that we are dark for 27 days.
Ken Wainstein, the Assistant Attorney General of the United States,
and the Bush administration admitted that because of the provisions of
the group warrants in the Protect America Act that had gone on for a
year, didn't change anything. It is still in effect, number one.
Number two, we forget, this House passed a FISA updating
modernization bill in November, on November 14. We called it the
RESTORE Act. We waited for the Senate to pass a bill so we could go to
conference and compromise on it. When did they pass a bill? Not in
November, not in December, not in January. Because of Republican foot-
dragging, they didn't pass the bill until February, mid-February, three
months after we passed the bill here, and two days before we went home
for a week for the Presidents Day recess.
The President came out and said it's up to the House to pass the
Senate bill, no questions asked. But there are a lot of questions about
the Senate bill. Maybe our bill isn't perfect, but their bill is far
from perfect, and our bill is closer to perfect than theirs.
{time} 1100
So then we said, well, if you don't want, because catastrophe will
happen, according to the President and the Republicans if we go home
without passing the Senate bill, we will extend the Protect America Act
for 3 weeks until we can come back and deal with this. Who voted it
down? The Republicans. They said, no, don't extend it. The President
said he would veto an extension.
So let's not hear any remarks on this floor from that side about how
we are dark because the act expired. It expired because they made it
expire. They voted against a 21-day extension that we could have
renewed if necessary until we got this all figured out. So let's not
hear any less-than-honest assertions about we are dark and we are
unprotected and it is the Democrats' fault.
Mr. Speaker, we have a very good bill here. It gives the intelligence
community every single tool they need and
[[Page H1714]]
every tool they say they need. How does it differ from the Senate bill?
In two ways. One, it provides for some closer judicial supervision,
because while we are giving the intelligence community the tools they
need to wiretap on American citizens, on people who are not American
citizens, we have to make sure that our constitutional rights and
liberties are protected so that this country, which we have all
defended, and we all want to defend, remains worthy of being defended
by defending our own liberties.
Remember why we enacted protections in the first place, because the
administration at the time wiretapped Martin Luther King. We don't want
that to happen again by a future administration. And so we must protect
our civil liberties.
We are told that telecom companies, if we don't provide retroactive
immunity, they won't cooperate in the future, we won't get their help.
Number one, that is an aspersion on their patriotism. Number two, they
can be compelled to do so under court order. And number three, they
have always had immunity. They have it now. All they have to do to have
immunity is to have a request from the administration that says: A, we
need your help; B, you are not violating the law if you do what we ask;
and C, you don't need a court order. If they get that request, whether
those assertions are true or not, as long as the administration says we
need your help, what we are asking you to do won't violate the law, and
you don't need a court order, they are absolutely immune. And they have
always had this immunity.
So why do they need retroactive immunity, they say because the
administration won't permit them to go to court and say we were asked
for help, we gave that help. We have this request and we got the legal
assurances because the administration won't let that go to court
because it says it will violate State secrets.
So what does our bill do? It says you can go to court under secret
procedures to protect the security of the State secrets, but you can
assert your defense in court and get the case thrown out if you at
least got the assurance by the administration in advance, which is all
the law required. If you didn't get that, then you have no respect for
the privacy rights of Americans and you don't deserve immunity. Even if
we gave retroactive immunity for the future to the telecom company that
helped us next week, they still have the same requirements for
immunity. And if they wanted to go to court to assert them if someone
sued them, they would still have to go to court and say the same thing.
So you are dealing with a one-time fix.
Retroactive immunity takes it out of the courts and says Congress
shall say to American citizens you're wrong, you can't protect your
constitutional rights in court, you're right. That is a duty for the
courts, not for Congress. That is the basis of the protections of all
of our rights. The Senate bill goes the wrong way. We protect the
telecom companies and protect our liberties. It is the right way to go.
I urge adoption of this rule.
Mr. HASTINGS of Washington. Mr. Speaker, I am pleased to yield 1
minute to the gentleman from Ohio (Mr. Boehner), the distinguished
Republican leader.
Mr. BOEHNER. Let me thank my colleague from Washington for yielding.
My colleagues, several years ago when the current Speaker, Speaker
Pelosi, had my job as the minority leader, she said that bills should
generally come to the floor under a fair and open process with
amendments allowed and substitutes allowed.
And yet here we are today once again violating the very words that
she said how the minority should be treated by bringing a bill to the
floor, a Senate bill with amendments crafted by the House with no
opportunity for amendments, no opportunity for substitutes. And no
opportunity to vote straight up or down on the bipartisan bill that
came over from the Senate.
I think that what we have seen here is just a pattern of we are for
this, we create rules that allow the minority the opportunity to be
fairly heard, and yet they are routinely violated.
And so the only way we can have a straight up-or-down vote on the
Senate bill that passed the Senate 68-29, the only way we can have a
vote on that is to defeat the previous question. Why do we want to deny
the Members of the House to vote on the bipartisan Senate bill? I can
probably tell you, that's because it would pass. A majority of the
Members of the House of Representatives are in favor of the Senate
bill. But House leaders are standing in the way of the opportunity for
House Members to actually vote on that bill.
We can get into the merits of the changes that were made to the
Senate bill that are being debated here. I think they handcuff our
intelligence officials. I think that they open up a wide avenue for
trial lawyers to hold communication companies at bay and threaten their
very willingness to help us in this very serious business of tracking
down those who would want to do Americans harm.
And so I would ask my colleagues to defeat the previous question.
Let's have a chance to vote on the bipartisan Senate bill and let's
allow the House to work its will.
Mr. ARCURI. Mr. Speaker, I yield 3 minutes to the gentleman from
Texas, the distinguished chairman of the Intelligence Committee, Mr.
Reyes.
Mr. REYES. Mr. Speaker, I thank the gentleman for yielding.
I'm not a lawyer, but I am told by lawyers that every lawyer learns
to argue the following way: When the law is against you, they are
taught to argue the facts. When the facts are against you, they are
taught to argue the law. To a certain extent, that is what is going on
here today.
We just heard from the distinguished minority leader that he wants
the House to go in neutral, put our engine in neutral and just vote on
what the Senate has sent over. In other words, we want to rush to
rubber-stamp what the administration wants. That's not going to happen.
We also heard this morning that somehow my good friend from
Washington State says they haven't had enough time to debate these
issues, the FISA issue. I would remind my good friend that we had
invited our colleagues on the Republican side to work with us, to go
through a process, the process of setting up our ability to go to
conference, and they refused. They refused to participate. So it is not
a failure of getting enough time to participate in the debate; it is a
failure of wanting to participate because the rationale is let's
rubber-stamp what the administration wants, which is the Senate
version.
We also heard that somehow we are losing information. Somehow we are
at a disadvantage because the Protect America Act expired. Nothing
could be further from the truth. I would remind all of the Members that
were here last night that I held up two documents, and one of those
documents authored by the DNI and the Attorney General gave you the
information that refutes that argument.
We have done everything that the DNI has asked us to do in this bill.
He wants us to give the intelligence community the ability to monitor
foreign to foreign. This bill does that.
He wants us to give the telecom companies the opportunity to state
their case in order to get immunity. This bill does that.
The third thing he wanted was to make sure that any time that there
is an American involved or an American address or phone involved, that
a warrant be secured. This bill requires that.
This bill puts the FISA Court back in the process. That's the
American way.
I will close by saying that I come from a State that reveres the
second amendment, our right to bear arms. But I would submit to all of
you, my colleagues here, that that amendment would be irrelevant if we
were to give the administration exactly what they want, and that is the
ability to monitor anyone, any time, for any reason, because a weapon
or a gun is not going to do you any good if the government knows your
every move.
The Senate version is their answer to give the administration exactly
what they want. We took a different approach. Instead of being in
neutral, we are telling the administration and, with all due respect,
we are telling the Senate, let's reconcile our differences. We have
given the DNI every single thing that he wants. And simply stated
today, that dog is not hunting that would create an atmosphere of fear
for America.
[[Page H1715]]
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself 15 seconds
before I yield to the gentleman from Pennsylvania.
The gentleman from Texas just said that he wanted to reconcile the
differences between the House position and the Senate; yet there has
never been a motion or an attempt by the House to go to conference on
these two bills. If you truly want to have a compromise, why don't you
go to conference? That hasn't happened.
Mr. Speaker, I yield 2 minutes to the gentleman from Pennsylvania
(Mr. Dent).
Mr. DENT. Mr. Speaker, I rise to urge that we defeat the previous
question so we can adopt the Protect America Act.
People in this country think that Washington, D.C., is broken, and
they are absolutely right. It is. And this issue is proof positive of
why Washington, D.C., is broken. Yes, we do have an agreement. It is a
bipartisan agreement, 68 votes in the Senate. There is a majority here,
but the majority leadership won't allow us to consider this very
important and necessary legislation.
Senator Rockefeller, the Democratic chairman of the Intelligence
Committee in the Senate, has said our intelligence capacities are being
degraded because we have failed to pass the Protect America Act.
You know, it is time that we put the national interest ahead of the
special interests. Why are we protecting the most litigious among us in
our society at the expense of our troops serving overseas? We know the
issues. It is retroactive immunity. The telecommunications companies
were attempting to help us in good faith, and no good deed goes
unpunished. That is what it happening here. It is time to get the job
done.
I'm going to refer to an article I read in the Wall Street Journal
back in January, 2006, by Debra Burlingame, the sister of the pilot who
crashed into the Pentagon. The title is, ``Al Qaeda, not the FBI, is
the greater threat to America.'' I think we should heed her advice and
recall, because of that wall that existed before 9/11 between the
intelligence agency and our domestic law enforcement, it prevented us
from being more effective.
Today, we are placing barriers between our government and those who
want to help us in the telecommunications sector, but they are going to
be forced to comply with this. They will not be able to do so
voluntarily. We know what the issue is. The Fraternal Order of Police,
many State attorneys general, the VFW, all agree we should pass the
bipartisan. We have it within our means to do it. I don't understand
why not. It is important for the majority leadership to explain to this
House why they won't let this bipartisan agreement be adopted.
The American people are watching. They want us to get the job done.
They have had enough.
Mr. Speaker, I include the Burlingame article for the Record.
[From the Wall Street Journal, Jan. 30, 2006]
Our Right to Security
al qaeda, not the fbi, is the greater threat to america
(By Debra Burlingame)
One of the most excruciating images of the September 11
attacks is the sight of a man who was trapped in one of the
World Trade Center towers. Stripped of his suit jacket and
tie and hanging on to what appears to be his office curtains,
he is seen trying to lower himself outside a window to the
floor immediately below. Frantically kicking his legs in an
effort to find a purchase, he loses his grip, and falls.
That horrific scene and thousands more were the images that
awakened a sleeping nation on that long, brutal morning.
Instead of overwhelming fear or paralyzing self-doubt, the
attacks were met with defiance, unity and a sense of moral
purpose. Following the heroic example of ordinary citizens
who put their fellow human beings and the public good ahead
of themselves, the country's leaders cast aside politics and
personal ambition and enacted the USA Patriot Act just 45
days later.
A mere four-and-a-half years after victims were forced to
choose between being burned alive and jumping from 90
stories, it is frankly shocking that there is anyone in
Washington who would politicize the Patriot Act. It is an
insult to those who died to tell the American people that the
organization posing the greatest threat to their liberty is
not al Qaeda but the FBI. Hearing any member of Congress
actually crow about ``killing'' or ``playing chicken'' with
this critical legislation is as disturbing today as it would
have been when Ground Zero was still smoldering. Today we
know in far greater detail what not having it cost us.
Critics contend that the Patriot Act was rushed into law in
a moment of panic. The truth is, the policies and guidelines
it corrected had a long, troubled history and everybody who
had to deal with them knew it. The ``wall'' was a tortuous
set of rules promulgated by Justice Department lawyers in
1995 and imagined into law by the Foreign Intelligence
Surveillance Act (FISA) court.
Conceived as an added protection for civil liberties
provisions already built into the statute, it was the wall
and its real-world ramifications that hardened the failure-
to-share culture between agencies, allowing early information
about 9/11 hijackers Khalid al-Mihdhar and Nawaf al-Hazmi to
fall through the cracks. More perversely, even after the
significance of these terrorists and their presence in the
country was known by the FBI's intelligence division, the
wall prevented it from talking to its own criminal division
in order to hunt them down.
Furthermore, it was the impenetrable FISA guidelines and
fear of provoking the FISA court's wrath if they were
transgressed that discouraged risk-averse FBI supervisors
from applying for a FISA search warrant in the Zacarias
Moussaoui case. The search, finally conducted on the
afternoon of 9/11, produced names and phone numbers of people
in the thick of the 9/11 plot, so many fertile clues that
investigators believe that at least one airplane, if not
all four, could have been saved.
In 2002, FISA's appellate level Court of Review examined
the entire statutory scheme for issuing warrants in national
security investigations and declared the ``wall'' a
nonsensical piece of legal overkill, based neither on express
statutory language nor reasonable interpretation of the FISA
statute. The lower court's attempt to micromanage the
execution of national security warrants was deemed an
assertion of authority which neither Congress or the
Constitution granted it. In other words, those lawyers and
judges who created, implemented and so assiduously enforced
the FISA guidelines were wrong and the American people paid
dearly for it.
Despite this history, some members of Congress contend that
this process-heavy court is agile enough to rule on quickly
needed National Security Agency (NSA) electronic surveillance
warrants. This is a dubious claim. Getting a FISA warrant
requires a multistep review involving several lawyers at
different offices within the Department of Justice. It can
take days, weeks, even months if there is a legal dispute
between the principals. ``Emergency'' 72-hour intercepts
require sign-offs by NSA lawyers and pre-approval by the
attorney general before surveillance can be initiated.
Clearly, this is not conducive to what Gen. Michael Hayden,
principal deputy director of national intelligence, calls
``hot pursuit'' of al Qaeda conversations.
The Senate will soon convene hearings on renewal of the
Patriot Act and the NSA terrorist surveillance program. A
minority of senators want to gamble with American lives and
``fix'' national security laws, which they can't show are
broken. They seek to eliminate or weaken anti-terrorism
measures which take into account that the Cold War and its
slow-moving, analog world of landlines and stationary targets
is gone. The threat we face today is a completely new
paradigm of global terrorist networks operating in a high-
velocity digital age using the Web and fiber-optic
technology. After four-and-a-half years without another
terrorist attack, these senators think we're safe enough to
cave in to the same civil liberties lobby that supported that
deadly FISA wall in the first place. What if they, like those
lawyers and judges, are simply wrong?
Meanwhile, the media, mouthing phrases like ``Article II
authority,'' ``separation of powers'' and ``right to
privacy,'' are presenting the issues as if politics have
nothing to do with what is driving the subject matter and its
coverage. They want us to forget four years of relentless
``connect-the-dots'' reporting about the missed chances that
``could have prevented 9/11.'' They have discounted the
relevance of references to the two 9/11 hijackers who lived
in San Diego. But not too long ago, the media itself reported
that phone records revealed that five or six of the hijackers
made extensive calls overseas.
NBC News aired an ``exclusive'' story in 2004 that
dramatically recounted how al-Hazmi and al-Mihdhar, the San
Diego terrorists who would later hijack American Airlines
flight 77 and fly it into the Pentagon, received more than a
dozen calls from an al Qaeda ``switchboard'' inside Yemen
where al-Mihdhar's brother-in-law lived. The house received
calls from Osama Bin Laden and relayed them to operatives
around the world. Senior correspondent Lisa Myers told the
shocking story of how, ``The NSA had the actual phone number
in the United States that the switchboard was calling, but
didn't deploy that equipment, fearing it would be accused of
domestic spying.'' Back then, the NBC script didn't describe
it as ``spying on Americans.'' Instead, it was called one of
the ``missed opportunities that could have saved 3,000
lives.''
Another example of opportunistic coverage concerns the
Patriot Act's ``library provision.'' News reports have given
plenty of ink and airtime to the ACLU's unsupported claims
that the government has abused this important records
provision. But how many Americans know that several of the
hijackers repeatedly accessed computers at public
[[Page H1716]]
libraries in New Jersey and Florida, using personal Internet
accounts to carry out the conspiracy? Al-Mihdhar and al-Hazmi
logged on four times at a college library in New Jersey
where they purchased airline tickets for AA 77 and later
confirmed their reservations on Aug. 30. In light of this,
it is ridiculous to suggest that the Justice Department
has the time, resources or interest in ``investigating the
reading habits of law abiding citizens.''
We now have the ability to put remote control cameras on
the surface of Mars. Why should we allow enemies to
annihilate us simply because we lack the clarity or resolve
to strike a reasonable balance between a healthy skepticism
of government power and the need to take proactive measures
to protect ourselves from such threats? The mantra of civil-
liberties hard-liners is to ``question authority''--even when
it is coming to our rescue--then blame that same authority
when, hamstrung by civil liberties laws, it fails to save us.
The old laws that would prevent FBI agents from stopping the
next al-Mihdhar and al-Hazmi were built on the bedrock of a
35-year history of dark, defeating mistrust. More Americans
should not die because the peace-at-any-cost fringe and
antigovernment paranoids still fighting the ghost of Nixon
hate George Bush more than they fear al Qaeda. Ask the
American people what they want. They will say that they want
the commander in chief to use all reasonable means to catch
the people who are trying to rain terror on our cities. Those
who cite the soaring principle of individual liberty do not
appear to appreciate that our enemies are not seeking to
destroy individuals, but whole populations.
Three weeks before 9/11, an FBI agent with the bin Laden
case squad in New York learned that al-Mihdhar and al-Hazmi
were in this country. He pleaded with the national security
gatekeepers in Washington to launch a nationwide manhunt and
was summarily told to stand down. When the FISA Court of
Review tore down the wall in 2002, it included in its ruling
the agent's Aug. 29, 2001, email to FBI headquarters:
``Whatever has happened to this--someday someone will die--
and wall or not--the public will not understand why we were
not more effective and throwing every resource we had at
certain problems. Let's hope the National Security Law Unit
will stand behind their decisions then, especially since the
biggest threat to us now, [bin Laden], is getting the most
`protection.' ''
The public has listened to years of stinging revelations
detailing how the government tied its own--hands in stopping
the devastating attacks of September 11. It is an
irresponsible violation of the public trust for members of
Congress to weaken the Patriot Act or jeopardize the NSA
terrorist surveillance program because of the same illusory
theories that cost us so dearly before, or worse, for rank
partisan advantage. If they do, and our country sustains yet
another catastrophic attack that these antiterrorism tools
could have prevented, the phrase ``connect the dots'' will
resonate again--but this time it will refer to the trail of
innocent American blood which leads directly to the Senate
floor.
Mr. ARCURI. Mr. Speaker, I would again just like to point out that
what this bill does is unshackle the telecommunications companies
because what we do want to do in this particular case is ensure that
they are able to defend themselves if they have cooperated with the
government and followed the law, and that is exactly what this bill
does.
Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman from Kansas
(Mrs. Boyda).
Mrs. BOYDA of Kansas. Mr. Speaker, I just had to come down to the
floor and speak on this. No one, there isn't anybody who disagrees that
we ought to be wiretapping the terrorists. No one disagrees with that.
Democrats, Republicans, everyone wants to keep this country safe.
{time} 1115
Let's make something real clear about what's at stake here. What's at
stake is whether we wiretap Americans. That's what we're talking about.
The bill that we proposed that we have here, it can be summarized in
one thing: wiretap first, get permission later. Go out and be
aggressive. As a matter of fact, you can spy on Americans. You can do
anything. You can spy, you can go out there and keep our country safe.
But when it comes to spying on Americans, that's the difference here.
We believe that you need a warrant to do that, even after the fact of 6
or 7 days later to go back and tell the court what you've done.
I, for one, do not, and am not able to stand here and say, as the
other side says, that the terrorists have already won; we need to give
up our basic constitutional right. I don't believe that the terrorists
have won, and I find it extremely discouraging.
What I find so troubling is the same, same rhetoric that we heard for
this march to Iraq and, quite honestly, lately this march to Iran. Its
the same rhetoric that we're hearing now. It's ``trust me.''
Well, I'll tell you what. I didn't get sent to Washington, DC not to
speak up. A lot of people are worried sick that a 30-second ad is going
to kick them out of office. And I'll tell you what, I will not put my
own re-election ahead of the absolute determination that I have to make
sure, first and foremost, that my family and your family are safe, but
that we do not shred that Constitution to do it. This is not an either/
or, and we need to find a balance. I do not believe the terrorists have
won.
Mr. HASTINGS of Washington. Mr. Speaker, I reserve my time.
Mr. ARCURI. Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman
from California (Ms. Zoe Lofgren), a member of the Judiciary Committee.
Ms. ZOE LOFGREN of California. Mr. Speaker, I rise to urge support of
the rule so we can adopt H.R. 3773.
There's been a lot of very misleading and confusing rhetoric about
the issue of immunity. The truth is the phone companies have immunity
already under current law. It's 18 U.S. Code, section 2511. And let me
just read part of it: ``Notwithstanding any other law, providers of
communications services are authorized to provide information in two
cases: if there's a court order, or if they receive a certification in
writing by a person specified in the title or the Attorney General of
the United States that says either no warrant or court order is
required, all the statutory requirements have been met and the
assistance is required.''
The statute says no cause of action shall lie in any court against
any provider of wire or electronic communications if they have received
this certification.
I submit the entire text of section 2511 for the Record.
[From Westlaw, 18 U.S.C.A. Sec. 2511, Effective: Nov. 25, 2002]
United States Code Annotated Currentness
Title 18. Crimes and Criminal Procedure (Refs & Annos)
Part I. Crimes (Refs & Annos)
Chapter 119. Wire and Electronic Communications Interception
and Interception of Oral Communications (Refs & Annos)
Sec. 2511. Interception and disclosure of wire, oral, or
electronic communications prohibited
(1) Except as otherwise specifically provided in this
chapter any person who--
(a) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to
intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any
other person to use or endeavor to use any electronic,
mechanical, or other device to intercept any oral
communication when--
(i) such device is affixed to, or otherwise transmits a
signal through, a wire, cable, or other like connection used
in wire communication; or
(ii) such device transmits communications by radio, or
interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such
device or any component thereof has been sent through the
mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the
premises of any business or other commercial establishment
the operations of which affect interstate or foreign
commerce; or (B) obtains or is for the purpose of obtaining
information relating to the operations of any business or
other commercial establishment the operations of which affect
interstate or foreign commerce; or
(v) such person acts in the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession
of the United States;
(c) intentionally discloses, or endeavors to disclose, to
any other person the contents of any wire, oral, or
electronic communication, knowing or having reason to know
that the information was obtained through the interception of
a wire, oral, or electronic communication in violation of
this subsection;
(d) intentionally uses, or endeavors to use, the contents
of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained
through the interception of a wire, oral, or electronic
communication in violation of this subsection; or
(e) (i) intentionally discloses, or endeavors to disclose,
to any other person the contents of any wire, oral, or
electronic communication, intercepted by means authorized by
sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516,
and 2518 of this chapter, (ii) knowing or having reason to
know that the information was obtained through the
interception of such a communication in connection with a
criminal investigation, (iii) having obtained
[[Page H1717]]
or received the information in connection with a criminal
investigation, and (iv) with intent to or improperly
obstruct, impede, or interfere with a duly authorized
criminal investigation,
shall be punished as provided in subsection (4) or shall be
subject to suit as provided in subsection (5).
(2)(a)(i) It shall not be unlawful under this chapter for
an operator of a switchboard, or an officer, employee, or
agent of a provider of wire or electronic communication
service, whose facilities are used in the transmission of a
wire or electronic communication, to intercept, disclose, or
use that communication in the normal course of his employment
while engaged in any activity which is a necessary incident
to the rendition of his service or to the protection of the
rights or property of the provider of that service, except
that a provider of wire communication service to the public
shall not utilize service observing or random monitoring
except for mechanical or service quality control checks.
(ii) Notwithstanding any other law, providers of wire or
electronic communication service, their officers, employees,
and agents, landlords, custodians, or other persons, are
authorized to provide information, facilities, or technical
assistance to persons authorized by law to intercept wire,
oral, or electronic communications or to conduct electronic
surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, if such provider, its
officers, employees, or agents, landlord, custodian, or other
specified person, has been provided with--
(A) a court order directing such assistance signed by the
authorizing judge, or
(B) a certification in writing by a person specified in
section 2518(7) of this title or the Attorney General of the
United States that no warrant or court order is required by
law, that all statutory requirements have been met, and that
the specified assistance is required.
setting forth the period of time during which the provision
of the information, facilities, or technical assistance is
authorized and specifying the information, facilities, or
technical assistance required. No provider of wire or
electronic communication service, officer, employee, or agent
thereof, or landlord, custodian, or other specified person
shall disclose the existence of any interception or
surveillance or the device used to accomplish the
interception or surveillance with respect to which the person
has been furnished a court order or certification under this
chapter, except as may otherwise be required by legal process
and then only after prior notification to the Attorney
General or to the principal prosecuting attorney of a State
or any political subdivision of a State, as may be
appropriate. Any such disclosure, shall render such person
liable for the civil damages provided for in section 2520. No
cause of action shall lie in any court against any provider
of wire or electronic communication service, its officer,
employees, or agents, landlord, custodian, or other specified
person for providing information, facilities, or assistance
in accordance with the terms of a court order, statutory
authorization, or certification under this chapter.
(b) It shall not be unlawful under this chapter for an
officer, employee, or agent of the Federal Communications
Commission, in the normal course of his employment and in
discharge of the monitoring responsibilities exercised by the
Commission in the enforcement of chapter 5 of title 47 of the
United States Code, to intercept a wire or electronic
communication, or oral communication transmitted by radio, or
to disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a
person acting under color of law to intercept a wire, oral,
or electronic communication, where such person is a party to
the communication or one of the parties to the communication
has given prior consent to such interception.
(d) It shall not be unlawful under this chapter for a
person not acting under color of law to intercept a wire,
oral, or electronic communication where such person is a
party to the communication or where one of the parties to the
communication has given prior consent to such interception
unless such communication is intercepted for the purpose of
committing any criminal or tortious act in violation of the
Constitution or laws of the United States or of any State.
(e) Notwithstanding any other provision of this title or
section 705 or 706 of the Communications Act of 1934, it
shall not be unlawful for an officer, employee, or agent of
the United States in the normal course of his official duty
to conduct electronic surveillance, as defined in section 101
of the Foreign Intelligence Surveillance Act of 1978, as
authorized by that Act.
(f) Nothing contained in this chapter or chapter 121 or
206 of this title, or section 705 of the Communications Act
of 1934, shall be deemed to affect the acquisition by the
United States Government of foreign intelligence information
from international or foreign communications, or foreign
intelligence activities conducted in accordance with
otherwise applicable Federal law involving a foreign
electronic communications system, utilizing a means other
than electronic surveillance as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978, and procedures
in this chapter or chapter 121 and the Foreign Intelligence
Surveillance Act of 1978 shall be the exclusive means by
which electronic surveillance, as defined in section 101 of
such Act, and the interception of domestic wire, oral, and
electronic communications may be conducted.
(g) It shall not be unlawful under this chapter or chapter
121 of this title for any person--
(i) to intercept or access an electronic communication
made through an electronic communication system that is
configured so that such electronic communication is readily
accessible to the general public;
(ii) to intercept any radio communication which is
transmitted--
(I) by any station for the use of the general public, or
that relates to ships, aircraft, vehicles, or persons in
distress;
(II) by any governmental, law enforcement, civil defense,
private land mobile, or public safety communications system,
including police and fire, readily accessible to the general
public;
(III) by a station operating on an authorized frequency
within the bands allocated to the amateur, citizens band, or
general mobile radio services; or
(IV) by any marine or aeronautical communications system;
(iii) to engage in any conduct which--
(I) is prohibited by section 633 of the Communications Act
of 1934; or
(II) is excepted from the application of section 705(a) of
the Communications Act of 1934 by section 705(b) of that Act;
(iv) to intercept any wire or electronic communication the
transmission of which is causing harmful interference to any
lawfully operating station or consumer electronic equipment,
to the extent necessary to identify the source of such
interference; or
(v) for other users of the same frequency to intercept any
radio communication made through a system that utilizes
frequencies monitored by individuals engaged in the provision
or the use of such system, if such communication is not
scrambled or encrypted.
(h) It shall not be unlawful under this chapter--
(i) to use a pen register or a trap and trace device (as
those terms are defined for the purposes of chapter 206
(relating to pen registers and trap and trace devices) of
this title); or
(ii) for a provider of electronic communication service to
record the fact that a wire or electronic communication was
initiated or completed in order to protect such provider,
another provider furnishing service toward the completion of
the wire or electronic communication, or a user of that
service, from fraudulent, unlawful or abusive use of such
service.
(i) It shall not be unlawful under this chapter for a
person acting under color of law to intercept the wire or
electronic communications of a computer trespasser
transmitted to, through, or from the protected computer, if--
(I) the owner or operator of the protected computer
authorizes the interception of the computer trespasser's
communications on the protected computer;
(II) the person acting under color of law is lawfully
engaged in an investigation;
(III) the person acting under color of law has reasonable
grounds to believe that the contents of the computer
trespasser's communications will be relevant to the
investigation; and
(IV) such interception does not acquire communications
other than those transmitted to or from the computer
trespasser.
(3)(a) Except as provided in paragraph (b) of this
subsection, a person or entity providing an electronic
communication service to the public shall not intentionally
divulge the contents of any communication (other than one to
such person or entity, or an agent thereof) while in
transmission on that service to any person or entity other
than an addressee or intended recipient of such communication
or an agent of such addressee or intended recipient.
(b) A person or entity providing electronic communication
service to the public may divulge the contents of any such
communication--
(i) as otherwise authorized in section 2511(2)(a) or 2517
of this title;
(ii) with the lawful consent of the originator or any
addressee or intended recipient of such communication;
(iii) to a person employed or authorized, or whose
facilities are used, to forward such communication to its
destination; or
(iv) which were inadvertently obtained by the service
provider and which appear to pertain to the commission of a
crime, if such divulgence is made to a law enforcement
agency.
(4)( a) Except as provided in paragraph (b) of this
subsection or in subsection (5), whoever violates subsection
(1) of this section shall be fined under this title or
imprisoned not more than five years, or both.
(b) Conduct otherwise an offense under this subsection that
consists of or relates to the interception of a satellite
transmission that is not encrypted or scrambled and that is
transmitted--
(i) to a broadcasting station for purposes of
retransmission to the general public; or
(ii) as an audio subcarrier intended for redistribution to
facilities open to the public, but not including data
transmissions or telephone calls,
is not an offense under this subsection unless the conduct is
for the purposes of direct or indirect commercial advantage
or private financial gain.
[(c) Redesignated (b)]
(5)(a)(i) If the communication is--
(A) a private satellite video communication that is not
scrambled or encrypted and
[[Page H1718]]
the conduct in violation of this chapter is the private
viewing of that communication and is not for a tortious or
illegal purpose or for purposes of direct or indirect
commercial advantage or private commercial gain; or
(B) a radio communication that is transmitted on
frequencies allocated under subpart D of part 74 of the rules
of the Federal Communications Commission that is not
scrambled or encrypted and the conduct in violation of this
chapter is not for a tortious or illegal purpose or for
purposes of direct or indirect commercial advantage or
private commercial gain,
then the person who engages in such conduct shall be subject
to suit by the Federal Government in a court of competent
jurisdiction.
(ii) In an action under this subsection--
(A) if the violation of this chapter is a first offense for
the person under paragraph (a) of subsection (4) and such
person has not been found liable in a civil action under
section 2520 of this title, the Federal Government shall be
entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or
subsequent offense under paragraph (a) of subsection (4) or
such person has been found liable in any prior civil action
under section 2520, the person shall be subject to a
mandatory $500 civil fine.
(b) The court may use any means within its authority to
enforce an injunction issued under paragraph (ii)(A), and
shall impose a civil fine of not less than $500 for each
violation of such an injunction.
credit(s)
(Added Pub. L. 90-351, Title III, Sec. 802, June 19, 1968,
82 Stat. 213, and amended Pub. L. 91-358, Title II,
Sec. 211(a), July 29, 1970, 84 Stat. 654; Pub. L. 95-511,
Title II, Sec. 201(a) to (c), Oct. 25, 1978, 92 Stat. 1796,
1797; Pub. L. 98-549, Sec. 6(b)(2), Oct. 30, 1984, 98 Stat.
2804; Pub. L. 99-508, Title I, Sec. 101(b), (c)(l), (5), (6),
(d), (t), 102, Oct. 21, 1986, 100 Stat. 1849 to 1853; Pub. L.
103-322, Title XXXII, Sec. 320901, Title XXXIII,
Sec. 330016(1)(f)(G), Sept. 13, 1994, 108 Stat. 2123, 2147;
Pub. L. 103-414, Title II, Sec. 202(b), 204, 205, Oct. 25,
1994, 108 Stat. 4290, 4291; Pub. L. 104-294, Title VI,
Sec. 604(b)(42), Oct. 11, 1996, 110 Stat. 3509; Pub. L. 107-
56, Title II, Sec. Sec. 204, 217(2), Oct. 26, 2001, 115 Stat.
281, 291; Pub. L. 107-296, Title II, Sec. 225(h)(2), Nov. 25,
2002, 116 Stat. 2158.)
Current through P.L. 110-195 (excluding P.L. 110-181)
approved 3-12-08
Simply put, the phone companies have immunity. The only issue is, do
they get their day in court to tell a judge that they have immunity?
This bill allows for that.
I think the phone companies, like any other party, have a right to
assert their defenses and be heard by a judge and have their case be
heard. This bill provides for that.
Now, why wouldn't the Bush administration be supportive?
I think the administration is more concerned about their liability
than the phone companies.
Mr. HASTINGS of Washington. Mr. Speaker, I continue to reserve my
time.
Mr. ARCURI. Mr. Speaker, I am prepared to close. We have no further
speakers on our side.
Mr. HASTINGS of Washington. Mr. Speaker, how much time do I have?
The SPEAKER pro tempore. The gentleman from Washington has 8\1/4\
minutes.
Mr. HASTINGS of Washington. Mr. Speaker, I yield myself the balance
of the time.
Mr. Speaker, earlier in this debate I put into the Record the January
28 letter from the 21 Blue Dog Democrats to Speaker Pelosi in support
of the bipartisan Senate bill. And I'd like to quote from that letter,
Mr. Speaker:
``Following the Senate's passage of a FISA bill, it will be necessary
for the House to quickly consider FISA legislation to get a bill to the
President before the Protect America Act expires in February.''
Mr. Speaker, the Protect America Act has expired, as has the entire
month of February. But House Democrat leaders have not acted, as these
21 Blue Dog Democrats have asked, on our national security needs.
I will quote again from the Blue Dog Democrat letter: ``We have it
within our ability to replace the expiring Protect America Act by
passing strong bipartisan FISA modernization legislation that can be
signed into law, and we should do so. The consequences of not passing
such a measure would place our national security at undue risk.''
I regret to say, Mr. Speaker, that for 27 days, our country's
national security has been put at undue risk because FISA legislation
has not been passed because the Democrat leaders are blocking the House
from voting, from even voting on the Senate proposal that passed the
Senate by a 68-29 vote.
So let me be very clear about what I'm talking about when I'm going
to ask my colleagues to vote ``no'' on the previous question, and why
that will be an attempt, or will be a means, by which we can address
the Senate bill for the first time in this body, because this, what I'm
going to do, is not an ordinary motion.
By voting ``no,'' Mr. Speaker, on the previous question, I will seek
to amend one specific clause of the rule, H. Res. 1041, so that the
House will still be permitted to debate the FISA bill that this
underlying rule makes in order; but if that bill, and if that proposal
does not pass this body, then the House, under the provision that I'm
seeking to amend the rule, will agree to the Senate bill; and,
therefore, the bill would be sent to the President to become law.
Mr. Speaker, I ask unanimous consent to have the text of the
amendment and extraneous material inserted into the Record prior to the
vote on the previous question.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Washington?
There was no objection.
Mr. HASTINGS of Washington. Now let me just review where we are on
this, just to put this into a time frame. The Protect America Act was
first put into place last August, set to expire in February so they
could work out the differences.
Now, the Senate had their proposal, as I mentioned, and as has been
mentioned by our leader, passed by a big margin, 68-29.
The House has their version. There's nothing unusual with both Houses
in a bicameral legislative body having two versions of the same issue.
And the way you generally resolve that is to go to conference and work
out the difference.
We have not had the opportunity, in this body, to go to conference
with the Senate on this bill. Further, we have been denied time and
time again to have an opportunity to even vote on the Senate
amendments. By defeating the previous question, we will have that
opportunity.
So I urge my colleagues to vote to defeat the previous question so we
can amend the rule to have an opportunity to vote and address the
Senate bill that passed overwhelmingly.
Mr. Speaker, I yield back the balance of my time.
Mr. ARCURI. Mr. Speaker, as I said earlier, we must bring the
misinformation campaign and partisan wrangling to an end.
There is no question that there are groups and individuals out there
who would seek to do America harm. There is no question that my
colleagues and I want to give the people who protect us from the danger
every tool they need to fight terrorism.
The proposal we will vote on today will, in fact, provide our
Nation's Intelligence Community with the resources to prevent future
acts of terrorism, while protecting the freedoms of our citizens under
the Constitution.
I strongly urge a ``yes'' vote on the previous question and on the
rule.
The material previously referred to by Mr. Hastings of Washington is
as follows:
Amendment to H. Res. 1041 Offered by Mr. Hastings of Washington
Strike section 2 and insert in lieu thereof the following:
``Sec. 2. Upon rejection of the motion to concur specified
in section 1, a motion that the House concur in the Senate
amendmemt to H.R. 3773 is hereby adopted.''.
(The information contained herein was provided by
Democratic Minority on multiple occasions throughout the
l09th Congress.)
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous
question on a special rule, is not merely a procedural vote.
A vote against ordering the previous question is a vote
against the Democratic majority agenda and a vote to allow
the opposition, at least for the moment, to offer an
alternative plan. It is a vote about what the House should be
debating.
Mr. Clarence Cannon's Precedents of the House of
Representatives, (VI, 308-311) describes the vote on the
previous question on the rule as ``a motion to direct or
control the consideration of the subject before the House
being made by the Member in charge.'' To defeat the previous
question is to give the opposition a chance to decide the
subject before the House. Cannon cites the Speaker's ruling
of January 13, 1920, to the effect that ``the refusal of the
House to sustain the demand for the previous question passes
the control of the resolution to the opposition'' in order to
offer an amendment. On March 15, 1909, a member of the
majority party offered a rule resolution. The House defeated
[[Page H1719]]
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald, who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
Because the vote today may look bad for the Democratic
majority they will say ``the vote on the previous question is
simply a vote on whether to proceed to an immediate vote on
adopting the resolution . . . . . [and] has no substantive
legislative or policy implications whatsoever.'' But that is
not what they have always said. Listen to the definition of
the previous question used in the Floor Procedures Manual
published by the Rules Committee in the 109th Congress, (page
56). Here's how the Rules Committee described the rule using
information from Congressional Quarterly's ``American
Congressional Dictionary'': ``If the previous question is
defeated, control of debate shifts to the leading opposition
member (usually the minority Floor Manager) who then manages
an hour of debate and may offer a germane amendment to the
pending business.''
Deschler's Procedure in the U.S. House of Representatives,
the subchapter titled ``Amending Special Rules'' states: ``a
refusal to order the previous question on such a rule [a
special rule reported from the Committee on Rules] opens the
resolution to amendment and further debate.'' (Chapter 21,
section 21.2) Section 21.3 continues: Upon rejection of the
motion for the previous question on a resolution reported
from the Committee on Rules, control shifts to the Member
leading the opposition to the previous question, who may
offer a proper amendment or motion and who controls the time
for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Democratic
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Mr. ARCURI. Mr. Speaker, I yield back the balance of my time, and I
move the previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. HASTINGS of Washington. Mr. Speaker, I object to the vote on the
ground that a quorum is not present and make the point of order that a
quorum is not present.
The SPEAKER pro tempore. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas 217,
nays 190, not voting 23, as follows:
[Roll No. 143]
YEAS--217
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Costa
Costello
Courtney
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Eshoo
Etheridge
Farr
Fattah
Filner
Foster
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hill
Hinchey
Hirono
Hodes
Holden
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Langevin
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meek (FL)
Melancon
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Paul
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Reyes
Richardson
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Tsongas
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Wu
Wynn
Yarmuth
NAYS--190
Aderholt
Akin
Alexander
Bachmann
Bachus
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bean
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono Mack
Boozman
Brady (TX)
Broun (GA)
Brown (SC)
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carney
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Cooper
Crenshaw
Culberson
Davis (KY)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Donnelly
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
Engel
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Inglis (SC)
Issa
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Lampson
Latham
LaTourette
Latta
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Myrick
Neugebauer
Pearce
Pence
Petri
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Saxton
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Westmoreland
Whitfield (KY)
Wilson (NM)
Wilson (SC)
Wittman (VA)
Wolf
Young (FL)
NOT VOTING--23
Boustany
Brown-Waite, Ginny
Cramer
Cubin
Gilchrest
Granger
Hinojosa
Hooley
Hunter
LaHood
McMorris Rodgers
Meeks (NY)
Musgrave
Nunes
Oberstar
Peterson (PA)
Pickering
Rangel
Rush
Tancredo
Weller
Woolsey
Young (AK)
{time} 1148
Mr. MANZULLO changed his vote from ``yea'' to ``nay.''
Mr. BAIRD changed his vote from ``nay'' to ``yea.''
Mr. CARSON of Indiana changed his vote from ``present'' to ``yea.''
So the previous question was ordered.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. HASTINGS of Washington. Mr. Speaker, on that I demand the yeas
and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas 221,
nays 188, not voting 21, as follows:
[Roll No. 144]
YEAS--221
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Costa
Costello
Courtney
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Eshoo
Etheridge
Farr
Fattah
Filner
[[Page H1720]]
Foster
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hill
Hinchey
Hirono
Hodes
Holden
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Langevin
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meek (FL)
Melancon
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Reyes
Richardson
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Tsongas
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Wu
Wynn
Yarmuth
NAYS--188
Aderholt
Akin
Alexander
Bachmann
Bachus
Barrett (SC)
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono Mack
Boozman
Brady (TX)
Broun (GA)
Brown (SC)
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Cooper
Crenshaw
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
Engel
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Hall (TX)
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Inglis (SC)
Issa
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
Lamborn
Lampson
Latham
LaTourette
Latta
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Myrick
Neugebauer
Paul
Pearce
Pence
Petri
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Saxton
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Westmoreland
Whitfield (KY)
Wilson (NM)
Wilson (SC)
Wittman (VA)
Wolf
Young (FL)
NOT VOTING--21
Boustany
Brown-Waite, Ginny
Cramer
Cubin
Gilchrest
Hinojosa
Hooley
Hunter
LaHood
Meeks (NY)
Musgrave
Nunes
Oberstar
Peterson (PA)
Pickering
Rangel
Rush
Tancredo
Weller
Woolsey
Young (AK)
{time} 1205
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Personal explanation
Mr. HINOJOSA. Mr. Speaker, on rollcall Nos. 143 and 144, I was
unavoidably detained. Had I been present, I would have voted ``yea'' on
rollcall Nos. 143 and 144.
Mr. CONYERS. Mr. Speaker, pursuant to House Resolution 1041, I call
up the bill (H.R. 3773) to amend the Foreign Intelligence Surveillance
Act of 1978 to establish a procedure for authorizing certain
acquisitions of foreign intelligence, and for other purposes, with a
Senate amendment thereto, and ask for its immediate consideration in
the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore (Mr. Ross). The Clerk will designate the
Senate amendment.
The text of the Senate amendment is as follows:
Senate amendment:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of
2008'' or the ``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Additional procedures regarding certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of domestic communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of mass destruction.
Sec. 111. Technical and conforming amendments.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Definitions.
Sec. 202. Limitations on civil actions for electronic communication
service providers.
Sec. 203. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 204. Preemption of State investigations.
Sec. 205. Technical amendments.
TITLE III--OTHER PROVISIONS
Sec. 301. Severability.
Sec. 302. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS
OUTSIDE THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC
SURVEILLANCE.
``Nothing in the definition of electronic surveillance
under section 101(f) shall be construed to encompass
surveillance that is targeted in accordance with this title
at a person reasonably believed to be located outside the
United States.
``SEC. 702. DEFINITIONS.
``(a) In General.--The terms `agent of a foreign power',
`Attorney General', `contents', `electronic surveillance',
`foreign intelligence information', `foreign power',
`minimization procedures', `person', `United States', and
`United States person' shall have the meanings given such
terms in section 101, except as specifically provided in this
title.
``(b) Additional Definitions.--
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the Senate;
and
``(B) the Permanent Select Committee on Intelligence of the
House of Representatives.
``(2) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(3) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence
Surveillance Court of Review' and `Court of Review' mean the
court established by section 103(b).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored; or
``(E) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), or (D).
[[Page H1721]]
``(5) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``SEC. 703. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE
THE UNITED STATES OTHER THAN UNITED STATES
PERSONS.
``(a) Authorization.--Notwithstanding any other law, the
Attorney General and the Director of National Intelligence
may authorize jointly, for periods of up to 1 year, the
targeting of persons reasonably believed to be located
outside the United States to acquire foreign intelligence
information.
``(b) Limitations.--An acquisition authorized under
subsection (a)--
``(1) may not intentionally target any person known at the
time of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably
believed to be located outside the United States if the
purpose of such acquisition is to target a particular, known
person reasonably believed to be in the United States, except
in accordance with title I or title III;
``(3) may not intentionally target a United States person
reasonably believed to be located outside the United States,
except in accordance with sections 704, 705, or 706;
``(4) shall not intentionally acquire any communication as
to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United
States; and
``(5) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (f);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (d) and (e).
``(d) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (h).
``(e) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt minimization procedures that meet the definition
of minimization procedures under section 101(h) or section
301(4) for acquisitions authorized under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (h).
``(f) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 7 days after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States and that such procedures have been
approved by, or will be submitted in not more than 5 days for
approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (h);
``(ii) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) does not result in the intentional acquisition of any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States, and that such procedures have
been approved by, or will be submitted in not more than 5
days for approval by, the Foreign Intelligence Surveillance
Court pursuant to subsection (h);
``(iii) the procedures referred to in clauses (i) and (ii)
are consistent with the requirements of the fourth amendment
to the Constitution of the United States and do not permit
the intentional targeting of any person who is known at the
time of acquisition to be located in the United States or the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
acquisition to be located in the United States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h) or section 301(4); and
``(II) have been approved by, or will be submitted in not
more than 5 days for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (h);
``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition does not constitute electronic
surveillance, as limited by section 701; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (h).
``(g) Directives and Judicial Review of Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court,
which shall have jurisdiction to review such a petition.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section, or is otherwise unlawful.
``(D) Procedures for initial review.--A judge shall conduct
an initial review not later than 5 days after being assigned
a petition described in subparagraph (C). If the judge
determines that the petition consists of claims, defenses, or
other legal contentions that are not warranted by existing
law or by a nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new law, the
judge shall immediately deny the petition and affirm the
directive or any part of the directive that is the subject of
the petition and order the recipient to comply with the
directive or any part of it. Upon making such a determination
or promptly thereafter, the judge shall provide a written
statement for the record of the reasons for a determination
under this subparagraph.
``(E) Procedures for plenary review.--If a judge determines
that a petition described in subparagraph (C) requires
plenary review, the judge shall affirm, modify, or set aside
the directive that is the subject of that petition not later
than 30 days after being assigned the petition, unless the
judge, by order for reasons stated, extends that time as
necessary to comport with the due process clause of the fifth
amendment to the Constitution of the United States. Unless
the judge sets aside the directive, the judge shall
immediately affirm or affirm with modifications the
directive, and order the recipient to comply with the
directive in its entirety or as modified. The judge shall
provide a written statement for the records of the reasons
for a determination under this subparagraph.
``(F) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(G) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
[[Page H1722]]
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court, which shall have jurisdiction to review
such a petition.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
filed under subparagraph (A) shall issue an order requiring
the electronic communication service provider to comply with
the directive or any part of it, as issued or as modified, if
the judge finds that the directive meets the requirements of
this section, and is otherwise lawful.
``(D) Procedures for review.--The judge shall render a
determination not later than 30 days after being assigned a
petition filed under subparagraph (A), unless the judge, by
order for reasons stated, extends that time if necessary to
comport with the due process clause of the fifth amendment to
the Constitution of the United States. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(E) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(F) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of the decision issued pursuant to
paragraph (4) or (5). The Court of Review shall have
jurisdiction to consider such a petition and shall provide a
written statement for the record of the reasons for a
decision under this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(h) Judicial Review of Certifications and Procedures.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (c) and the targeting and minimization procedures
adopted pursuant to subsections (d) and (e).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (f) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (d) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (e) to assess
whether such procedures meet the definition of minimization
procedures under section 101(h) or section 301(4).
``(5) Orders.--
``(A) Approval.--If the Court finds that a certification
required by subsection (f) contains all of the required
elements and that the targeting and minimization procedures
required by subsections (d) and (e) are consistent with the
requirements of those subsections and with the fourth
amendment to the Constitution of the United States, the Court
shall enter an order approving the continued use of the
procedures for the acquisition authorized under subsection
(a).
``(B) Correction of deficiencies.--If the Court finds that
a certification required by subsection (f) does not contain
all of the required elements, or that the procedures required
by subsections (d) and (e) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the Court's order--
``(i) correct any deficiency identified by the Court's
order not later than 30 days after the date the Court issues
the order; or
``(ii) cease the acquisition authorized under subsection
(a).
``(C) Requirement for written statement.--In support of its
orders under this subsection, the Court shall provide,
simultaneously with the orders, for the record a written
statement of its reasons.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government may
appeal any order under this section to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such order. For any decision
affirming, reversing, or modifying an order of the Foreign
Intelligence Surveillance Court, the Court of Review shall
provide for the record a written statement of its reasons.
``(B) Continuation of acquisition pending rehearing or
appeal.--Any acquisitions affected by an order under
paragraph (5)(B) may continue--
``(i) during the pendency of any rehearing of the order by
the Court en banc; and
``(ii) if the Government appeals an order under this
section, until the Court of Review enters an order under
subparagraph (C).
``(C) Implementation pending appeal.--Not later than 60
days after the filing of an appeal of an order under
paragraph (5)(B) directing the correction of a deficiency,
the Court of Review shall determine, and enter a
corresponding order regarding, whether all or any part of the
correction order, as issued or modified, shall be implemented
during the pendency of the appeal.
``(D) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under subparagraph
(A). The record for such review shall be transmitted under
seal to the Supreme Court of the United States, which shall
have jurisdiction to review such decision.
``(i) Expedited Judicial Proceedings.--Judicial proceedings
under this section shall be conducted as expeditiously as
possible.
``(j) Maintenance and Security of Records and
Proceedings.--
``(1) Standards.--A record of a proceeding under this
section, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures adopted by the Chief Justice of the United
States, in consultation with the Attorney General and the
Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--A directive made or an order
granted under this section shall be retained for a period of
not less than 10 years from the date on which such directive
or such order is made.
``(k) Assessments and Reviews.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the targeting and
minimization procedures required by subsections (e) and (f)
and shall submit each such assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) the congressional intelligence committees.
``(2) Agency assessment.--The Inspectors General of the
Department of Justice and of any element of the intelligence
community authorized to acquire foreign intelligence
information under subsection (a) with respect to their
department, agency, or element--
``(A) are authorized to review the compliance with the
targeting and minimization procedures required by subsections
(d) and (e);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United
States person identity and the number of United States person
identities subsequently disseminated by the element concerned
in response to requests for identities that were not referred
to by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that were
later determined to be located in the United States and, to
the extent possible, whether their communications were
reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) the congressional intelligence committees.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of an element of
the intelligence community conducting an acquisition
authorized under subsection (a) shall direct the element to
conduct an annual review to determine whether there is reason
to believe that foreign intelligence information has been or
will be obtained from the acquisition. The annual review
shall provide, with respect to such acquisitions authorized
under subsection (a)--
``(i) an accounting of the number of disseminated
intelligence reports containing a reference to a United
States person identity;
``(ii) an accounting of the number of United States person
identities subsequently disseminated by that element in
response to requests for identities that were not referred to
by name or title in the original reporting;
``(iii) the number of targets that were later determined to
be located in the United States and, to the extent possible,
whether their communications were reviewed; and
``(iv) a description of any procedures developed by the
head of an element of the intelligence community and approved
by the Director of National Intelligence to assess, in a
manner consistent with national security, operational
requirements and the privacy interests of United States
persons, the extent to which the acquisitions authorized
under subsection (a) acquire the communications of United
States persons, as well as the results of any such
assessment.
[[Page H1723]]
``(B) Use of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall use each such review to evaluate the
adequacy of the minimization procedures utilized by such
element or the application of the minimization procedures to
a particular acquisition authorized under subsection (a).
``(C) Provision of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall provide such review to--
``(i) the Foreign Intelligence Surveillance Court;
``(ii) the Attorney General;
``(iii) the Director of National Intelligence; and
``(iv) the congressional intelligence committees.
``SEC. 704. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES OF
UNITED STATES PERSONS OUTSIDE THE UNITED
STATES.
``(a) Jurisdiction of the Foreign Intelligence Surveillance
Court.--
``(1) In general.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order approving the
targeting of a United States person reasonably believed to be
located outside the United States to acquire foreign
intelligence information, if such acquisition constitutes
electronic surveillance (as defined in section 101(f),
regardless of the limitation of section 701) or the
acquisition of stored electronic communications or stored
electronic data that requires an order under this Act, and
such acquisition is conducted within the United States.
``(2) Limitation.--In the event that a United States person
targeted under this subsection is reasonably believed to be
located in the United States during the pendency of an order
issued pursuant to subsection (c), such acquisition shall
cease until authority, other than under this section, is
obtained pursuant to this Act or the targeted United States
person is again reasonably believed to be located outside the
United States during the pendency of an order issued pursuant
to subsection (c).
``(b) Application.--
``(1) In general.--Each application for an order under this
section shall be made by a Federal officer in writing upon
oath or affirmation to a judge having jurisdiction under
subsection (a)(1). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application, as set forth in this
section, and shall include--
``(A) the identity of the Federal officer making the
application;
``(B) the identity, if known, or a description of the
United States person who is the target of the acquisition;
``(C) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the United States
person who is the target of the acquisition is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(D) a statement of the proposed minimization procedures
that meet the definition of minimization procedures under
section 101(h) or section 301(4);
``(E) a description of the nature of the information sought
and the type of communications or activities to be subjected
to acquisition;
``(F) a certification made by the Attorney General or an
official specified in section 104(a)(6) that--
``(i) the certifying official deems the information sought
to be foreign intelligence information;
``(ii) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(iii) such information cannot reasonably be obtained by
normal investigative techniques;
``(iv) designates the type of foreign intelligence
information being sought according to the categories
described in section 101(e); and
``(v) includes a statement of the basis for the
certification that--
``(I) the information sought is the type of foreign
intelligence information designated; and
``(II) such information cannot reasonably be obtained by
normal investigative techniques;
``(G) a summary statement of the means by which the
acquisition will be conducted and whether physical entry is
required to effect the acquisition;
``(H) the identity of any electronic communication service
provider necessary to effect the acquisition, provided,
however, that the application is not required to identify the
specific facilities, places, premises, or property at which
the acquisition authorized under this section will be
directed or conducted;
``(I) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(J) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(2) Other requirements of the attorney general.--The
Attorney General may require any other affidavit or
certification from any other officer in connection with the
application.
``(3) Other requirements of the judge.--The judge may
require the applicant to furnish such other information as
may be necessary to make the findings required by subsection
(c)(1).
``(c) Order.--
``(1) Findings.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court
shall enter an ex parte order as requested or as modified
approving the acquisition if the Court finds that--
``(A) the application has been made by a Federal officer
and approved by the Attorney General;
``(B) on the basis of the facts submitted by the applicant,
for the United States person who is the target of the
acquisition, there is probable cause to believe that the
target is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(C) the proposed minimization procedures meet the
definition of minimization procedures under section 101(h) or
section 301(4); and
``(D) the application which has been filed contains all
statements and certifications required by subsection (b) and
the certification or certifications are not clearly erroneous
on the basis of the statement made under subsection
(b)(1)(F)(v) and any other information furnished under
subsection (b)(3).
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under
paragraph (1), a judge having jurisdiction under subsection
(a)(1) may consider past activities of the target, as well as
facts and circumstances relating to current or future
activities of the target. However, no United States person
may be considered a foreign power, agent of a foreign power,
or officer or employee of a foreign power solely upon the
basis of activities protected by the first amendment to the
Constitution of the United States.
``(3) Review.--
``(A) Limitation on review.--Review by a judge having
jurisdiction under subsection (a)(1) shall be limited to that
required to make the findings described in paragraph (1).
``(B) Review of probable cause.--If the judge determines
that the facts submitted under subsection (b) are
insufficient to establish probable cause to issue an order
under paragraph (1), the judge shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal an
order under this clause pursuant to subsection (f).
``(C) Review of minimization procedures.--If the judge
determines that the proposed minimization procedures required
under paragraph (1)(C) do not meet the definition of
minimization procedures under section 101(h) or section
301(4), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (f).
``(D) Review of certification.--If the judge determines
that an application required by subsection (b) does not
contain all of the required elements, or that the
certification or certifications are clearly erroneous on the
basis of the statement made under subsection (b)(1)(F)(v) and
any other information furnished under subsection (b)(3), the
judge shall enter an order so stating and provide a written
statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (f).
``(4) Specifications.--An order approving an acquisition
under this subsection shall specify--
``(A) the identity, if known, or a description of the
United States person who is the target of the acquisition
identified or described in the application pursuant to
subsection (b)(1)(B);
``(B) if provided in the application pursuant to subsection
(b)(1)(H), the nature and location of each of the facilities
or places at which the acquisition will be directed;
``(C) the nature of the information sought to be acquired
and the type of communications or activities to be subjected
to acquisition;
``(D) the means by which the acquisition will be conducted
and whether physical entry is required to effect the
acquisition; and
``(E) the period of time during which the acquisition is
approved.
``(5) Directions.--An order approving acquisitions under
this subsection shall direct--
``(A) that the minimization procedures be followed;
``(B) an electronic communication service provider to
provide to the Government forthwith all information,
facilities, or assistance necessary to accomplish the
acquisition authorized under this subsection in a manner that
will protect the secrecy of the acquisition and produce a
minimum of interference with the services that such
electronic communication service provider is providing to the
target;
``(C) an electronic communication service provider to
maintain under security procedures approved by the Attorney
General any records concerning the acquisition or the aid
furnished that such electronic communication service provider
wishes to maintain; and
``(D) that the Government compensate, at the prevailing
rate, such electronic communication service provider for
providing such information, facilities, or assistance.
``(6) Duration.--An order approved under this paragraph
shall be effective for a period not to exceed 90 days and
such order may be renewed for additional 90-day periods upon
submission of renewal applications meeting the requirements
of subsection (b).
``(7) Compliance.--At or prior to the end of the period of
time for which an acquisition is approved by an order or
extension under this section, the judge may assess compliance
with the minimization procedures by reviewing the
circumstances under which information concerning United
States persons was acquired, retained, or disseminated.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision of this Act, if the
Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to the
acquisition of foreign intelligence
[[Page H1724]]
information for which an order may be obtained under
subsection (c) before an order authorizing such acquisition
can with due diligence be obtained, and
``(B) the factual basis for issuance of an order under this
subsection to approve such acquisition exists,
the Attorney General may authorize the emergency acquisition
if a judge having jurisdiction under subsection (a)(1) is
informed by the Attorney General, or a designee of the
Attorney General, at the time of such authorization that the
decision has been made to conduct such acquisition and if an
application in accordance with this subsection is made to a
judge of the Foreign Intelligence Surveillance Court as soon
as practicable, but not more than 7 days after the Attorney
General authorizes such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by
this section for the issuance of a judicial order be
followed.
``(3) Termination of emergency authorization.--In the
absence of a judicial order approving such acquisition, the
acquisition shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of authorization
by the Attorney General, whichever is earliest.
``(4) Use of information.--In the event that such
application for approval is denied, or in any other case
where the acquisition is terminated and no order is issued
approving the acquisition, no information obtained or
evidence derived from such acquisition, except under
circumstances in which the target of the acquisition is
determined not to be a United States person during the
pendency of the 7-day emergency acquisition period, shall be
received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in or before any court, grand
jury, department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from
such acquisition shall subsequently be used or disclosed in
any other manner by Federal officers or employees without the
consent of such person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(e) Release From Liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with an
order or request for emergency assistance issued pursuant to
subsections (c) or (d).
``(f) Appeal.--
``(1) Appeal to the foreign intelligence surveillance court
of review.--The Government may file an appeal with the
Foreign Intelligence Surveillance Court of Review for review
of an order issued pursuant to subsection (c). The Court of
Review shall have jurisdiction to consider such appeal and
shall provide a written statement for the record of the
reasons for a decision under this paragraph.
``(2) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under paragraph (1).
The record for such review shall be transmitted under seal to
the Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``SEC. 705. OTHER ACQUISITIONS TARGETING UNITED STATES
PERSONS OUTSIDE THE UNITED STATES.
``(a) Jurisdiction and Scope.--
``(1) Jurisdiction.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order pursuant to
subsection (c).
``(2) Scope.--No element of the intelligence community may
intentionally target, for the purpose of acquiring foreign
intelligence information, a United States person reasonably
believed to be located outside the United States under
circumstances in which the targeted United States person has
a reasonable expectation of privacy and a warrant would be
required if the acquisition were conducted inside the United
States for law enforcement purposes, unless a judge of the
Foreign Intelligence Surveillance Court has entered an order
or the Attorney General has authorized an emergency
acquisition pursuant to subsections (c) or (d) or any other
provision of this Act.
``(3) Limitations.--
``(A) Moving or misidentified targets.--In the event that
the targeted United States person is reasonably believed to
be in the United States during the pendency of an order
issued pursuant to subsection (c), such acquisition shall
cease until authority is obtained pursuant to this Act or the
targeted United States person is again reasonably believed to
be located outside the United States during the pendency of
an order issued pursuant to subsection (c).
``(B) Applicability.--If the acquisition is to be conducted
inside the United States and could be authorized under
section 704, the procedures of section 704 shall apply,
unless an order or emergency acquisition authority has been
obtained under a provision of this Act other than under this
section.
``(b) Application.--Each application for an order under
this section shall be made by a Federal officer in writing
upon oath or affirmation to a judge having jurisdiction under
subsection (a)(1). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application as set forth in this section
and shall include--
``(1) the identity, if known, or a description of the
specific United States person who is the target of the
acquisition;
``(2) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the United States
person who is the target of the acquisition is--
``(A) a person reasonably believed to be located outside
the United States; and
``(B) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(3) a statement of the proposed minimization procedures
that meet the definition of minimization procedures under
section 101(h) or section 301(4);
``(4) a certification made by the Attorney General, an
official specified in section 104(a)(6), or the head of an
element of the intelligence community that--
``(A) the certifying official deems the information sought
to be foreign intelligence information; and
``(B) a significant purpose of the acquisition is to obtain
foreign intelligence information;
``(5) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(6) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(c) Order.--
``(1) Findings.--If, upon an application made pursuant to
subsection (b), a judge having jurisdiction under subsection
(a) finds that--
``(A) on the basis of the facts submitted by the applicant,
for the United States person who is the target of the
acquisition, there is probable cause to believe that the
target is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(B) the proposed minimization procedures, with respect to
their dissemination provisions, meet the definition of
minimization procedures under section 101(h) or section
301(4); and
``(C) the application which has been filed contains all
statements and certifications required by subsection (b) and
the certification provided under subsection (b)(4) is not
clearly erroneous on the basis of the information furnished
under subsection (b),
the Court shall issue an ex parte order so stating.
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under
paragraph (1)(A), a judge having jurisdiction under
subsection (a)(1) may consider past activities of the target,
as well as facts and circumstances relating to current or
future activities of the target. However, no United States
person may be considered a foreign power, agent of a foreign
power, or officer or employee of a foreign power solely upon
the basis of activities protected by the first amendment to
the Constitution of the United States.
``(3) Review.--
``(A) Limitations on review.--Review by a judge having
jurisdiction under subsection (a)(1) shall be limited to that
required to make the findings described in paragraph (1). The
judge shall not have jurisdiction to review the means by
which an acquisition under this section may be conducted.
``(B) Review of probable cause.--If the judge determines
that the facts submitted under subsection (b) are
insufficient to establish probable cause to issue an order
under this subsection, the judge shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal an
order under this clause pursuant to subsection (e).
``(C) Review of minimization procedures.--If the judge
determines that the minimization procedures applicable to
dissemination of information obtained through an acquisition
under this subsection do not meet the definition of
minimization procedures under section 101(h) or section
301(4), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (e).
``(D) Scope of review of certification.--If the judge
determines that the certification provided under subsection
(b)(4) is clearly erroneous on the basis of the information
furnished under subsection (b), the judge shall enter an
order so stating and provide a written statement for the
record of the reasons for such determination. The Government
may appeal an order under this subparagraph pursuant to
subsection (e).
``(4) Duration.--An order under this paragraph shall be
effective for a period not to exceed 90 days and such order
may be renewed for additional 90-day periods upon submission
of renewal applications meeting the requirements of
subsection (b).
``(5) Compliance.--At or prior to the end of the period of
time for which an order or extension is granted under this
section, the judge may assess compliance with the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
disseminated, provided that the judge may not inquire into
the circumstances relating to the conduct of the acquisition.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision in this subsection, if
the Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subsection (c) before an order
under that
[[Page H1725]]
subsection may, with due diligence, be obtained, and
``(B) the factual basis for issuance of an order under this
section exists,
the Attorney General may authorize the emergency acquisition
if a judge having jurisdiction under subsection (a)(1) is
informed by the Attorney General or a designee of the
Attorney General at the time of such authorization that the
decision has been made to conduct such acquisition and if an
application in accordance with this subsection is made to a
judge of the Foreign Intelligence Surveillance Court as soon
as practicable, but not more than 7 days after the Attorney
General authorizes such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by
this section be followed.
``(3) Termination of emergency authorization.--In the
absence of an order under subsection (c), the acquisition
shall terminate when the information sought is obtained, if
the application for the order is denied, or after the
expiration of 7 days from the time of authorization by the
Attorney General, whichever is earliest.
``(4) Use of information.--In the event that such
application is denied, or in any other case where the
acquisition is terminated and no order is issued approving
the acquisition, no information obtained or evidence derived
from such acquisition, except under circumstances in which
the target of the acquisition is determined not to be a
United States person during the pendency of the 7-day
emergency acquisition period, shall be received in evidence
or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(e) Appeal.--
``(1) Appeal to the court of review.--The Government may
file an appeal with the Foreign Intelligence Surveillance
Court of Review for review of an order issued pursuant to
subsection (c). The Court of Review shall have jurisdiction
to consider such appeal and shall provide a written statement
for the record of the reasons for a decision under this
paragraph.
``(2) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under paragraph (1).
The record for such review shall be transmitted under seal to
the Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``SEC. 706. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.
``(a) Joint Applications and Orders.--If an acquisition
targeting a United States person under section 704 or section
705 is proposed to be conducted both inside and outside the
United States, a judge having jurisdiction under section
704(a)(1) or section 705(a)(1) may issue simultaneously, upon
the request of the Government in a joint application
complying with the requirements of section 704(b) or section
705(b), orders under section 704(c) or section 705(c), as
applicable.
``(b) Concurrent Authorization.--If an order authorizing
electronic surveillance or physical search has been obtained
under section 105 or section 304 and that order is still in
effect, the Attorney General may authorize, without an order
under section 704 or section 705, an acquisition of foreign
intelligence information targeting that United States person
while such person is reasonably believed to be located
outside the United States.
``SEC. 707. USE OF INFORMATION ACQUIRED UNDER TITLE VII.
``(a) Information Acquired Under Section 703.--Information
acquired from an acquisition conducted under section 703
shall be deemed to be information acquired from an electronic
surveillance pursuant to title I for purposes of section 106,
except for the purposes of subsection (j) of such section.
``(b) Information Acquired Under Section 704.--Information
acquired from an acquisition conducted under section 704
shall be deemed to be information acquired from an electronic
surveillance pursuant to title I for purposes of section 106.
``SEC. 708. CONGRESSIONAL OVERSIGHT.
``(a) Semiannual Report.--Not less frequently than once
every 6 months, the Attorney General shall fully inform, in a
manner consistent with national security, the congressional
intelligence committees, the Committee on the Judiciary of
the Senate, and the Committee on the Judiciary of the House
of Representatives, concerning the implementation of this
title.
``(b) Content.--Each report made under subparagraph (a)
shall include--
``(1) with respect to section 703--
``(A) any certifications made under subsection 703(f)
during the reporting period;
``(B) any directives issued under subsection 703(g) during
the reporting period;
``(C) a description of the judicial review during the
reporting period of any such certifications and targeting and
minimization procedures utilized with respect to such
acquisition, including a copy of any order or pleading in
connection with such review that contains a significant legal
interpretation of the provisions of this section;
``(D) any actions taken to challenge or enforce a directive
under paragraphs (4) or (5) of section 703(g);
``(E) any compliance reviews conducted by the Department of
Justice or the Office of the Director of National
Intelligence of acquisitions authorized under subsection
703(a);
``(F) a description of any incidents of noncompliance with
a directive issued by the Attorney General and the Director
of National Intelligence under subsection 703(g), including--
``(i) incidents of noncompliance by an element of the
intelligence community with procedures adopted pursuant to
subsections (d) and (e) of section 703; and
``(ii) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under subsection 703(g); and
``(G) any procedures implementing this section;
``(2) with respect to section 704--
``(A) the total number of applications made for orders
under section 704(b);
``(B) the total number of such orders either granted,
modified, or denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under section 704(d) and the total
number of subsequent orders approving or denying such
acquisitions; and
``(3) with respect to section 705--
``(A) the total number of applications made for orders
under 705(b);
``(B) the total number of such orders either granted,
modified, or denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under subsection 705(d) and the total
number of subsequent orders approving or denying such
applications.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et. seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``Sec. 701. Limitation on definition of electronic surveillance.
``Sec. 702. Definitions.
``Sec. 703. Procedures for targeting certain persons outside the United
States other than United States persons.
``Sec. 704. Certain acquisitions inside the United States of United
States persons outside the United States.
``Sec. 705. Other acquisitions targeting United States persons outside
the United States.
``Sec. 706. Joint applications and concurrent authorizations.
``Sec. 707. Use of information acquired under title VII.
``Sec. 708. Congressional oversight.''.
(c) Technical and Conforming Amendments.--
(1) Title 18, united states code.--
(A) Section 2232.--Section 2232(e) of title 18, United
States Code, is amended by inserting ``(as defined in section
101(f) of the Foreign Intelligence Surveillance Act of 1978,
regardless of the limitation of section 701 of that Act)''
after ``electronic surveillance''.
(B) Section 2511.--Section 2511(2)(a)(ii)(A) of title 18,
United States Code, is amended by inserting ``or a court
order pursuant to section 705 of the Foreign Intelligence
Surveillance Act of 1978'' after ``assistance''.
(2) Foreign intelligence surveillance act of 1978.--
(A) Section 109.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended by
adding at the end the following:
``(e) Definition.--For the purpose of this section, the
term `electronic surveillance' means electronic surveillance
as defined in section 101(f) of this Act regardless of the
limitation of section 701 of this Act.''.
(B) Section 110.--Section 110 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1810) is amended by--
(i) adding an ``(a)'' before ``Civil Action'',
(ii) redesignating subsections (a) through (c) as
paragraphs (1) through (3), respectively; and
(iii) adding at the end the following:
``(b) Definition.--For the purpose of this section, the
term `electronic surveillance' means electronic surveillance
as defined in section 101(f) of this Act regardless of the
limitation of section 701 of this Act.''.
(C) Section 601.--Section 601(a)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1))
is amended by striking subparagraphs (C) and (D) and
inserting the following:
``(C) pen registers under section 402;
``(D) access to records under section 501;
``(E) acquisitions under section 704; and
``(F) acquisitions under section 705;''.
(d) Termination of Authority.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a)(2), (b), and (c) shall
cease to have effect on December 31, 2013.
(2) Continuing applicability.--Section 703(g)(3) of the
Foreign Intelligence Surveillance Act of 1978 (as amended by
subsection (a)) shall remain in effect with respect to any
directive issued pursuant to section 703(g) of that Act (as
so amended) for information, facilities, or assistance
provided during the period such directive was or is in
effect. Section 704(e) of the Foreign Intelligence
Surveillance Act of 1978 (as amended by subsection (a)) shall
remain in effect with respect to an order or request for
emergency assistance under that section. The use of
information acquired by an acquisition conducted under
[[Page H1726]]
section 703 of that Act (as so amended) shall continue to be
governed by the provisions of section 707 of that Act (as so
amended).
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF DOMESTIC
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
``statement of exclusive means by which electronic surveillance and
interception of domestic communications may be conducted
``Sec. 112. The procedures of chapters 119, 121, and 206
of title 18, United States Code, and this Act shall be the
exclusive means by which electronic surveillance (as defined
in section 101(f), regardless of the limitation of section
701) and the interception of domestic wire, oral, or
electronic communications may be conducted.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by adding after the item
relating to section 111, the following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of domestic communications
may be conducted.''.
(c) Conforming Amendments.--Section 2511(2) of title 18,
United States Code, is amended in paragraph (f), by striking
``, as defined in section 101 of such Act,'' and inserting
``(as defined in section 101(f) of such Act regardless of the
limitation of section 701 of such Act)''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Inclusion of Certain Orders in Semiannual Reports of
Attorney General.--Subsection (a)(5) of section 601 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1871) is amended by striking ``(not including orders)'' and
inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings, applications, or memoranda of
law associated with such decision, order, or opinion, not
later than 45 days after such decision, order, or opinion is
issued; and
``(2) a copy of any such decision, order, or opinion, and
any pleadings, applications, or memoranda of law associated
with such decision, order, or opinion, that was issued during
the 5-year period ending on the date of the enactment of the
FISA Amendments Act of 2008 and not previously submitted in a
report under subsection (a).
``(d) Protection of National Security.--The Attorney
General, in consultation with the Director of National
Intelligence, may authorize redactions of materials described
in subsection (c) that are provided to the committees of
Congress referred to in subsection (a), if such redactions
are necessary to protect the national security of the United
States and are limited to sensitive sources and methods
information or the identities of targets.''.
(c) Definitions.--Such section 601, as amended by
subsections (a) and (b), is further amended by adding at the
end the following:
``(e) Definitions.--In this section:
``(1) Foreign intelligence surveillance court; court.--The
term `` `Foreign Intelligence Surveillance Court' '' means
the court established by section 103(a).
``(2) Foreign intelligence surveillance court of review;
court of review.--The term `Foreign Intelligence Surveillance
Court of Review' means the court established by section
103(b).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if designated by the President as a certifying official--'';
(E) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(F) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3) of this subsection, by striking ``or the
Director of National Intelligence'' and inserting ``the
Director of National Intelligence, or the Director of the
Central Intelligence Agency''.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(6) by amending subsection (e), as redesignated by
paragraph (5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(A) reasonably determines that an emergency situation
exists with respect to the employment of electronic
surveillance to obtain foreign intelligence information
before an order authorizing such surveillance can with due
diligence be obtained;
``(B) reasonably determines that the factual basis for
issuance of an order under this title to approve such
electronic surveillance exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under section 103 at the time of
such authorization that the decision has been made to employ
emergency electronic surveillance; and
``(D) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not later than 7 days after the Attorney
General authorizes such surveillance.
``(2) If the Attorney General authorizes the emergency
employment of electronic surveillance under paragraph (1),
the Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate
when the information sought is obtained, when the application
for the order is denied, or after the expiration of 7 days
from the time of authorization by the Attorney General,
whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) In the event that such application for approval is
denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, upon the request of the applicant, the
judge shall also authorize the installation and use of pen
registers and trap and trace devices, and direct the
disclosure of the information set forth in section
402(d)(2).''.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by
striking ``radio communication'' and inserting
``communication''.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(E) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if designated by the President as a certifying official--'';
and
(2) in subsection (d)(1)(A), by striking ``or the Director
of National Intelligence'' and inserting ``the Director of
National Intelligence, or the Director of the Central
Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
[[Page H1727]]
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of a physical search if the Attorney General reasonably--
``(A) determines that an emergency situation exists with
respect to the employment of a physical search to obtain
foreign intelligence information before an order authorizing
such physical search can with due diligence be obtained;
``(B) determines that the factual basis for issuance of an
order under this title to approve such physical search
exists;
``(C) informs, either personally or through a designee, a
judge of the Foreign Intelligence Surveillance Court at the
time of such authorization that the decision has been made to
employ an emergency physical search; and
``(D) makes an application in accordance with this title to
a judge of the Foreign Intelligence Surveillance Court as
soon as practicable, but not more than 7 days after the
Attorney General authorizes such physical search.
``(2) If the Attorney General authorizes the emergency
employment of a physical search under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
physical search, the physical search shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 7 days from the
time of authorization by the Attorney General, whichever is
earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5)(A) In the event that such application for approval is
denied, or in any other case where the physical search is
terminated and no order is issued approving the physical
search, no information obtained or evidence derived from such
physical search shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such physical search shall subsequently be used
or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(B) The Attorney General shall assess compliance with the
requirements of subparagraph (A).''.
(c) Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended--
(1) in section 304(a)(4), as redesignated by subsection (b)
of this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND
TRACE DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``7 days''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``7 days''.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges.--Subsection (a) of section 103
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803) is amended by inserting ``at least'' before
``seven of the United States judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978, as amended by
subsection (a) of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection may,
on its own initiative, or upon the request of the Government
in any proceeding or a party under section 501(f) or
paragraph (4) or (5) of section 703(h), hold a hearing or
rehearing, en banc, when ordered by a majority of the judges
that constitute such court upon a determination that--
``(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by
the court en banc. When exercising such authority, the court
en banc shall comply with any requirements of this Act on the
exercise of such authority.
``(C) For purposes of this paragraph, the court en banc
shall consist of all judges who constitute the court
established under this subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered
under any title of this Act, while the court established
under subsection (a) conducts a rehearing, while an appeal is
pending to the court established under subsection (b), or
while a petition of certiorari is pending in the Supreme
Court of the United States, or during the pendency of any
review by that court.
``(2) The authority described in paragraph (1) shall apply
to an order entered under any provision of this Act.''.
(d) Authority of Foreign Intelligence Surveillance Court.--
Section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803), as amended by this Act, is amended by
adding at the end the following:
``(h)(1) Nothing in this Act shall be considered to reduce
or contravene the inherent authority of the Foreign
Intelligence Surveillance Court to determine, or enforce,
compliance with an order or a rule of such Court or with a
procedure approved by such Court.
``(2) In this subsection, the terms `Foreign Intelligence
Surveillance Court' and `Court' mean the court established by
subsection (a).''.
SEC. 110. WEAPONS OF MASS DESTRUCTION.
(a) Definitions.--
(1) Foreign power.--Subsection (a)(4) of section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(a)(4)) is amended by inserting ``, the international
proliferation of weapons of mass destruction,'' after
``international terrorism''.
(2) Agent of a foreign power.--Subsection (b)(1) of such
section 101 is amended--
(A) in subparagraph (B), by striking ``or'' at the end
(B) in subparagraph (C), by striking ``or'' at the end; and
(C) by adding at the end the following new subparagraphs:
``(D) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor;
or
``(E) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor,
for or on behalf of a foreign power; or''.
(3) Foreign intelligence information.--Subsection (e)(1)(B)
of such section 101 is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(4) Weapon of mass destruction.--Such section 101 is
amended by inserting after subsection (o) the following:
``(p) `Weapon of mass destruction' means--
``(1) any destructive device described in section
921(a)(4)(A) of title 18, United States Code, that is
intended or has the capability to cause death or serious
bodily injury to a significant number of people;
``(2) any weapon that is designed or intended to cause
death or serious bodily injury through the release,
dissemination, or impact of toxic or poisonous chemicals or
their precursors;
``(3) any weapon involving a biological agent, toxin, or
vector (as such terms are defined in section 178 of title 18,
United States Code); or
``(4) any weapon that is designed to release radiation or
radioactivity at a level dangerous to human life.''.
(b) Use of Information.--
(1) In general.--Section 106(k)(1)(B) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
1806(k)(1)(B)) is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(2) Physical searches.--Section 305(k)(1)(B) of such Act
(50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage
or international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(c) Technical and Conforming Amendment.--Section 301(1) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1821(1)) is amended by inserting `` `weapon of mass
destruction','' after `` `person',''.
SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 703''; and
(2) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 703''.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. DEFINITIONS.
In this title:
(1) Assistance.--The term ``assistance'' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
(2) Contents.--The term ``contents'' has the meaning given
that term in section 101(n) of the
[[Page H1728]]
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(n)).
(3) Covered civil action.--The term ``covered civil
action'' means a civil action filed in a Federal or State
court that--
(A) alleges that an electronic communication service
provider furnished assistance to an element of the
intelligence community; and
(B) seeks monetary or other relief from the electronic
communication service provider related to the provision of
such assistance.
(4) Electronic communication service provider.--The term
``electronic communication service provider'' means--
(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
(B) a provider of an electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
(C) a provider of a remote computing service, as that term
is defined in section 2711 of title 18, United States Code;
(D) any other communication service provider who has access
to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
(E) a parent, subsidiary, affiliate, successor, or assignee
of an entity described in subparagraph (A), (B), (C), or (D);
or
(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
(5) Element of the intelligence community.--The term
``element of the intelligence community'' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.
(a) Limitations.--
(1) In general.--Notwithstanding any other provision of
law, a covered civil action shall not lie or be maintained in
a Federal or State court, and shall be promptly dismissed, if
the Attorney General certifies to the court that--
(A) the assistance alleged to have been provided by the
electronic communication service provider was--
(i) in connection with an intelligence activity involving
communications that was--
(I) authorized by the President during the period beginning
on September 11, 2001, and ending on January 17, 2007; and
(II) designed to detect or prevent a terrorist attack, or
activities in preparation for a terrorist attack, against the
United States; and
(ii) described in a written request or directive from the
Attorney General or the head of an element of the
intelligence community (or the deputy of such person) to the
electronic communication service provider indicating that the
activity was--
(I) authorized by the President; and
(II) determined to be lawful; or
(B) the electronic communication service provider did not
provide the alleged assistance.
(2) Review.--A certification made pursuant to paragraph (1)
shall be subject to review by a court for abuse of
discretion.
(b) Review of Certifications.--If the Attorney General
files a declaration under section 1746 of title 28, United
States Code, that disclosure of a certification made pursuant
to subsection (a) would harm the national security of the
United States, the court shall--
(1) review such certification in camera and ex parte; and
(2) limit any public disclosure concerning such
certification, including any public order following such an
ex parte review, to a statement that the conditions of
subsection (a) have been met, without disclosing the
subparagraph of subsection (a)(1) that is the basis for the
certification.
(c) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General (or Acting Attorney General) or a designee
in a position not lower than the Deputy Attorney General.
(d) Civil Actions in State Court.--A covered civil action
that is brought in a State court shall be deemed to arise
under the Constitution and laws of the United States and
shall be removable under section 1441 of title 28, United
States Code.
(e) Rule of Construction.--Nothing in this section may be
construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
(f) Effective Date and Application.--This section shall
apply to any covered civil action that is pending on or filed
after the date of enactment of this Act.
SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES
UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.), as amended by section 101, is further
amended by adding after title VII the following new title:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``SEC. 801. DEFINITIONS.
``In this title:
``(1) Assistance.--The term `assistance' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
``(2) Attorney general.--The term `Attorney General' has
the meaning give that term in section 101(g).
``(3) Contents.--The term `contents' has the meaning given
that term in section 101(n).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
``(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A), (B),
(C), or (D); or
``(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
``(5) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community as specified or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``(6) Person.--The term `person' means--
``(A) an electronic communication service provider; or
``(B) a landlord, custodian, or other person who may be
authorized or required to furnish assistance pursuant to--
``(i) an order of the court established under section
103(a) directing such assistance;
``(ii) a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
or
``(iii) a directive under section 102(a)(4), 105B(e), as in
effect on the day before the date of the enactment of the
FISA Amendments Act of 2008 or 703(h).
``(7) State.--The term `State' means any State, political
subdivision of a State, the Commonwealth of Puerto Rico, the
District of Columbia, and any territory or possession of the
United States, and includes any officer, public utility
commission, or other body authorized to regulate an
electronic communication service provider.
``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
``(a) Requirement for Certification.--
``(1) In general.--Notwithstanding any other provision of
law, no civil action may lie or be maintained in a Federal or
State court against any person for providing assistance to an
element of the intelligence community, and shall be promptly
dismissed, if the Attorney General certifies to the court
that--
``(A) any assistance by that person was provided pursuant
to an order of the court established under section 103(a)
directing such assistance;
``(B) any assistance by that person was provided pursuant
to a certification in writing under section 2511(2)(a)(ii)(B)
or 2709(b) of title 18, United States Code;
``(C) any assistance by that person was provided pursuant
to a directive under sections 102(a)(4), 105B(e), as in
effect on the day before the date of the enactment of the
FISA Amendments Act of 2008, or 703(h) directing such
assistance; or
``(D) the person did not provide the alleged assistance.
``(2) Review.--A certification made pursuant to paragraph
(1) shall be subject to review by a court for abuse of
discretion.
``(b) Limitations on Disclosure.--If the Attorney General
files a declaration under section 1746 of title 28, United
States Code, that disclosure of a certification made pursuant
to subsection (a) would harm the national security of the
United States, the court shall--
``(1) review such certification in camera and ex parte; and
``(2) limit any public disclosure concerning such
certification, including any public order following such an
ex parte review, to a statement that the conditions of
subsection (a) have been met, without disclosing the
subparagraph of subsection (a)(1) that is the basis for the
certification.
``(c) Removal.--A civil action against a person for
providing assistance to an element of the intelligence
community that is brought in a State court shall be deemed to
arise under the Constitution and laws of the United States
and shall be removable under section 1441 of title 28, United
States Code.
``(d) Relationship to Other Laws.--Nothing in this section
may be construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
``(e) Applicability.--This section shall apply to a civil
action pending on or filed after the date of enactment of the
FISA Amendments Act of 2008.''.
SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.
Title VIII of the Foreign Intelligence Surveillance Act (50
U.S.C. 1801 et seq.), as added by section 203 of this Act, is
amended by adding at the end the following new section:
``SEC. 803. PREEMPTION.
``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic
communication service provider's alleged assistance to an
element of the intelligence community;
``(2) require through regulation or any other means the
disclosure of information about an electronic communication
service provider's alleged assistance to an element of the
intelligence community;
``(3) impose any administrative sanction on an electronic
communication service provider for assistance to an element
of the intelligence community; or
[[Page H1729]]
``(4) commence or maintain a civil action or other
proceeding to enforce a requirement that an electronic
communication service provider disclose information
concerning alleged assistance to an element of the
intelligence community.
``(b) Suits by the United States.--The United States may
bring suit to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United
States shall have jurisdiction over any civil action brought
by the United States to enforce the provisions of this
section.
``(d) Application.--This section shall apply to any
investigation, action, or proceeding that is pending on or
filed after the date of enactment of the FISA Amendments Act
of 2008.''.
SEC. 205. TECHNICAL AMENDMENTS.
The table of contents in the first section of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), as amended by section 101(b), is further amended by
adding at the end the following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.
TITLE III--OTHER PROVISIONS
SEC. 301. SEVERABILITY.
If any provision of this Act, any amendment made by this
Act, or the application thereof to any person or
circumstances is held invalid, the validity of the remainder
of the Act, any such amendments, and of the application of
such provisions to other persons and circumstances shall not
be affected thereby.
SEC. 302. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.
(a) In General.--Except as provided in subsection (c), the
amendments made by this Act shall take effect on the date of
the enactment of this Act.
(b) Repeal.--
(1) In general.--Except as provided in subsection (c),
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by striking the items
relating to sections 105A, 105B, and 105C.
(c) Transitions Procedures.--
(1) Protection from liability.--Notwithstanding subsection
(b)(1), subsection (l) of section 105B of the Foreign
Intelligence Surveillance Act of 1978 shall remain in effect
with respect to any directives issued pursuant to such
section 105B for information, facilities, or assistance
provided during the period such directive was or is in
effect.
(2) Orders in effect.--
(A) Orders in effect on date of enactment.--Notwithstanding
any other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978--
(i) any order in effect on the date of enactment of this
Act issued pursuant to the Foreign Intelligence Surveillance
Act of 1978 or section 6(b) of the Protect America Act of
2007 (Public Law 110-55; 121 Stat. 556) shall remain in
effect until the date of expiration of such order; and
(ii) at the request of the applicant, the court established
under section 103(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803(a)) shall reauthorize such order
if the facts and circumstances continue to justify issuance
of such order under the provisions of such Act, as in effect
on the day before the date of the enactment of the Protect
America Act of 2007, except as amended by sections 102, 103,
104, 105, 106, 107, 108, 109, and 110 of this Act.
(B) Orders in effect on december 31, 2013.--Any order
issued under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101 of this
Act, in effect on December 31, 2013, shall continue in effect
until the date of the expiration of such order. Any such
order shall be governed by the applicable provisions of the
Foreign Intelligence Surveillance Act of 1978, as so amended.
(3) Authorizations and directives in effect.--
(A) Authorizations and directives in effect on date of
enactment.--Notwithstanding any other provision of this Act
or of the Foreign Intelligence Surveillance Act of 1978, any
authorization or directive in effect on the date of the
enactment of this Act issued pursuant to the Protect America
Act of 2007, or any amendment made by that Act, shall remain
in effect until the date of expiration of such authorization
or directive. Any such authorization or directive shall be
governed by the applicable provisions of the Protect America
Act of 2007 (121 Stat. 552), and the amendment made by that
Act, and, except as provided in paragraph (4) of this
subsection, any acquisition pursuant to such authorization or
directive shall be deemed not to constitute electronic
surveillance (as that term is defined in section 101(f) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(f)), as construed in accordance with section 105A of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805a)).
(B) Authorizations and directives in effect on december 31,
2013.--Any authorization or directive issued under title VII
of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 101 of this Act, in effect on December 31,
2013, shall continue in effect until the date of the
expiration of such authorization or directive. Any such
authorization or directive shall be governed by the
applicable provisions of the Foreign Intelligence
Surveillance Act of 1978, as so amended, and, except as
provided in section 707 of the Foreign Intelligence
Surveillance Act of 1978, as so amended, any acquisition
pursuant to such authorization or directive shall be deemed
not to constitute electronic surveillance (as that term is
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978, to the extent that such section
101(f) is limited by section 701 of the Foreign Intelligence
Surveillance Act of 1978, as so amended).
(4) Use of information acquired under protect america
act.--Information acquired from an acquisition conducted
under the Protect America Act of 2007, and the amendments
made by that Act, shall be deemed to be information acquired
from an electronic surveillance pursuant to title I of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) for purposes of section 106 of that Act (50 U.S.C.
1806), except for purposes of subsection (j) of such section.
(5) New orders.--Notwithstanding any other provision of
this Act or of the Foreign Intelligence Surveillance Act of
1978--
(A) the government may file an application for an order
under the Foreign Intelligence Surveillance Act of 1978, as
in effect on the day before the date of the enactment of the
Protect America Act of 2007, except as amended by sections
102, 103, 104, 105, 106, 107, 108, 109, and 110 of this Act;
and
(B) the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall enter an
order granting such an application if the application meets
the requirements of such Act, as in effect on the day before
the date of the enactment of the Protect America Act of 2007,
except as amended by sections 102, 103, 104, 105, 106, 107,
108, 109, and 110 of this Act.
(6) Extant authorizations.--At the request of the
applicant, the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall
extinguish any extant authorization to conduct electronic
surveillance or physical search entered pursuant to such Act.
(7) Applicable provisions.--Any surveillance conducted
pursuant to an order entered pursuant to this subsection
shall be subject to the provisions of the Foreign
Intelligence Surveillance Act of 1978, as in effect on the
day before the date of the enactment of the Protect America
Act of 2007, except as amended by sections 102, 103, 104,
105, 106, 107, 108, 109, and 110 of this Act.
(8) Transition procedures concerning the targeting of
united states persons overseas.--Any authorization in effect
on the date of enactment of this Act under section 2.5 of
Executive Order 12333 to intentionally target a United States
person reasonably believed to be located outside the United
States shall remain in effect, and shall constitute a
sufficient basis for conducting such an acquisition targeting
a United States person located outside the United States
until the earlier of--
(A) the date that authorization expires; or
(B) the date that is 90 days after the date of the
enactment of this Act.
Motion Offered by Mr. Conyers
Mr. CONYERS. Mr. Speaker, pursuant to House Resolution 1041, I have a
motion at the desk.
The SPEAKER pro tempore. The Clerk will designate the motion.
The text of the motion is as follows:
Motion offered by Mr. Conyers:
Mr. Conyers moves that the House concur in the Senate
amendment to H.R. 3773 with the amendment printed in House
Report 110-549.
The text of the House amendment to the Senate amendment is as
follows:
In lieu of the matter proposed to be inserted by the
Senate, insert the following:
SEC. 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of
2008'' or the ``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Additional procedures regarding certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of certain communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign intelligence surveillance court.
Sec. 110. Review of previous actions.
Sec. 111. Weapons of mass destruction.
Sec. 112. Statute of limitations.
TITLE II--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
Sec. 201. Statutory defenses.
Sec. 202. Technical amendments.
TITLE III--COMMISSION ON WARRANTLESS ELECTRONIC SURVEILLANCE ACTIVITIES
Sec. 301. Commission on Warrantless Electronic Surveillance Activities.
TITLE IV--OTHER PROVISIONS
Sec. 401. Severability.
[[Page H1730]]
Sec. 402. Effective date.
Sec. 403. Repeals.
Sec. 404. Transition procedures.
Sec. 405. No rights under the FISA Amendments Act of 2008 for
undocumented aliens.
Sec. 406. Surveillance to protect the United States.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS
OUTSIDE THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``SEC. 701. DEFINITIONS.
``(a) In General.--The terms `agent of a foreign power',
`Attorney General', `contents', `electronic surveillance',
`foreign intelligence information', `foreign power',
`minimization procedures', `person', `United States', and
`United States person' have the meanings given such terms in
section 101, except as specifically provided in this title.
``(b) Additional Definitions.--
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the Senate;
and
``(B) the Permanent Select Committee on Intelligence of the
House of Representatives.
``(2) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(3) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence
Surveillance Court of Review' and `Court of Review' mean the
court established by section 103(b).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored; or
``(E) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), or (D).
``(5) Intelligence community.--The term `intelligence
community' has the meaning given the term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).
``SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE
THE UNITED STATES OTHER THAN UNITED STATES
PERSONS.
``(a) Authorization.--Notwithstanding any other provision
of law, pursuant to an order issued in accordance with
subsection (i)(3) or a determination under subsection
(g)(1)(B), the Attorney General and the Director of National
Intelligence may authorize jointly, for a period of up to 1
year from the effective date of the authorization, the
targeting of persons reasonably believed to be located
outside the United States to acquire foreign intelligence
information.
``(b) Limitations.--An acquisition authorized under
subsection (a)--
``(1) may not intentionally target any person known at the
time of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably
believed to be located outside the United States in order to
target a particular, known person reasonably believed to be
in the United States;
``(3) may not intentionally target a United States person
reasonably believed to be located outside the United States;
``(4) may not intentionally acquire any communication as to
which the sender and all intended recipients are known at the
time of the acquisition to be located in the United States;
and
``(5) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (g)
or a determination under paragraph (1)(B) of such subsection;
and
``(2) the procedures and guidelines required pursuant to
subsections (d), (e), and (f).
``(d) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(2) Judicial review.--The procedures required by
paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(e) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt minimization procedures for acquisitions
authorized under subsection (a) that--
``(A) in the case of electronic surveillance, meet the
definition of minimization procedures under section 101(h);
and
``(B) in the case of a physical search, meet the definition
of minimization procedures under section 301(4).
``(2) Judicial review.--The minimization procedures
required by paragraph (1) shall be subject to judicial review
pursuant to subsection (i).
``(f) Guidelines for Compliance With Limitations.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt guidelines to ensure--
``(A) compliance with the limitations in subsection (b);
and
``(B) that an application is filed under section 104 or
303, if required by this Act.
``(2) Criteria.--With respect to subsection (b)(2), the
guidelines adopted pursuant to paragraph (1) shall contain
specific criteria for determining whether a significant
purpose of an acquisition is to acquire the communications of
a specific United States person reasonably believed to be
located in the United States. Such criteria shall include
consideration of whether--
``(A) the department or agency of the Federal Government
conducting the acquisition has made an inquiry to another
department or agency of the Federal Government to gather
information on the specific United States person;
``(B) the department or agency of the Federal Government
conducting the acquisition has provided information that
identifies the specific United States person to another
department or agency of the Federal Government;
``(C) the department or agency of the Federal Government
conducting the acquisition determines that the specific
United States person has been the subject of ongoing interest
or repeated investigation by a department or agency of the
Federal Government; and
``(D) the specific United States person is a natural
person.
``(3) Training.--The Director of National Intelligence
shall establish a training program for appropriate personnel
of the intelligence community to ensure that the guidelines
adopted pursuant to paragraph (1) are properly implemented.
``(4) Submission to congress and foreign intelligence
surveillance court.--The Attorney General shall submit the
guidelines adopted pursuant to paragraph (1) to--
``(A) the congressional intelligence committees;
``(B) the Committees on the Judiciary of the House of
Representatives and the Senate; and
``(C) the Foreign Intelligence Surveillance Court.
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), if the
Attorney General and the Director of National Intelligence
seek to authorize an acquisition under this section, the
Attorney General and the Director of National Intelligence
shall provide, under oath, a written certification, as
described in this subsection.
``(B) Emergency authorization.--If the Attorney General and
the Director of National Intelligence determine that an
emergency situation exists, immediate action by the
Government is required, and time does not permit the
completion of judicial review pursuant to subsection (i)
prior to the initiation of an acquisition, the Attorney
General and the Director of National Intelligence may
authorize the acquisition and shall submit to the Foreign
Intelligence Surveillance Court a certification under this
subsection as soon as possible but in no event more than 7
days after such determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a)--
``(I) is targeted at persons reasonably believed to be
located outside the United States and such procedures have
been submitted to the Foreign Intelligence Surveillance
Court; and
``(II) does not result in the intentional acquisition of
any communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States, and such procedures have been
submitted to the Foreign Intelligence Surveillance Court;
``(ii) guidelines have been adopted in accordance with
subsection (f) to ensure compliance with the limitations in
subsection (b) and to ensure that applications are filed
under section 104 or section 303, if required by this Act;
``(iii) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h) or section 301(4) in accordance with
subsection (e); and
[[Page H1731]]
``(II) have been submitted to the Foreign Intelligence
Surveillance Court;
``(iv) the procedures and guidelines referred to in clauses
(i), (ii), and (iii) are consistent with the requirements of
the fourth amendment to the Constitution of the United
States;
``(v) a significant purpose of the acquisition is to obtain
foreign intelligence information;
``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition complies with the limitations in
subsection (b);
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of an element of the intelligence
community; and
``(C) include--
``(i) an effective date for the authorization that is
between 30 and 60 days from the submission of the written
certification to the court; or
``(ii) if the acquisition has begun or will begin in less
than 30 days from the submission of the written certification
to the court--
``(I) the date the acquisition began or the effective date
for the acquisition;
``(II) a description of why implementation was required in
less than 30 days from the submission of the written
certification to the court; and
``(III) if the acquisition is authorized under paragraph
(1)(B), the basis for the determination that an emergency
situation exists, immediate action by the government is
required, and time does not permit the completion of judicial
review prior to the initiation of the acquisition.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court before the initiation
of an acquisition under this section, except in accordance
with paragraph (1)(B). The Attorney General shall maintain
such certification under security measures adopted by the
Chief Justice of the United States and the Attorney General,
in consultation with the Director of National Intelligence.
``(5) Review.--A certification submitted pursuant to this
subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives and Judicial Review of Directives.--
``(1) Authority.--Pursuant to an order issued in accordance
with subsection (i)(3) or a determination under subsection
(g)(1)(B), the Attorney General and the Director of National
Intelligence may direct, in writing, an electronic
communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition authorized in accordance with this
section in a manner that will protect the secrecy of the
acquisition and produce a minimum of interference with the
services that such electronic communication service provider
is providing to the target of the acquisition; and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
provision of law, no cause of action shall lie in any court
against any electronic communication service provider for
providing any information, facilities, or assistance in
accordance with a directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court,
which shall have jurisdiction to review such a petition.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section or is otherwise unlawful.
``(D) Procedures for initial review.--A judge shall conduct
an initial review of a petition filed under subparagraph (A)
not later than 5 days after being assigned such petition. If
the judge determines that the petition does not consist of
claims, defenses, or other legal contentions that are
warranted by existing law, a nonfrivolous argument for
extending, modifying, or reversing existing law, or
establishing new law, the judge shall immediately deny the
petition and affirm the directive or any part of the
directive that is the subject of the petition and order the
recipient to comply with the directive or any part of it.
Upon making such a determination or promptly thereafter, the
judge shall provide a written statement for the record of the
reasons for a determination under this subparagraph.
``(E) Procedures for plenary review.--If a judge determines
that a petition filed under subparagraph (A) requires plenary
review, the judge shall affirm, modify, or set aside the
directive that is the subject of that petition not later than
30 days after being assigned the petition. If the judge does
not set aside the directive, the judge shall immediately
affirm or modify the directive and order the recipient to
comply with the directive in its entirety or as modified. The
judge shall provide a written statement for the records of
the reasons for a determination under this subparagraph.
``(F) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(G) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(5) Enforcement of directives.--
``(A) Order to compel.--If an electronic communication
service provider fails to comply with a directive issued
pursuant to paragraph (1), the Attorney General may file a
petition for an order to compel the electronic communication
service provider to comply with the directive with the
Foreign Intelligence Surveillance Court, which shall have
jurisdiction to review such a petition.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Procedures for review.--A judge considering a
petition filed under subparagraph (A) shall issue an order
requiring the electronic communication service provider to
comply with the directive or any part of it, as issued or as
modified not later than 30 days after being assigned the
petition if the judge finds that the directive meets the
requirements of this section and is otherwise lawful. The
judge shall provide a written statement for the record of the
reasons for a determination under this paragraph.
``(D) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of a decision issued pursuant to paragraph
(4) or (5). The Court of Review shall have jurisdiction to
consider such a petition and shall provide a written
statement for the record of the reasons for a decision under
this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(i) Judicial Review of Certifications and Procedures.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification submitted
pursuant to subsection (g) and the targeting and minimization
procedures required by subsections (d) and (e).
``(B) Time period for review.--The Court shall review the
certification submitted pursuant to subsection (g) and the
targeting and minimization procedures required by subsections
(d) and (e) and approve or deny an order under this
subsection not later than 30 days after the date on which a
certification is submitted.
``(2) Review.--The Court shall review the following:
``(A) Certifications.--A certification submitted pursuant
to subsection (g) to determine whether the certification
contains all the required elements.
``(B) Targeting procedures.--The targeting procedures
required by subsection (d) to assess whether the procedures
are reasonably designed to ensure that the acquisition
authorized under subsection (a) is limited to the targeting
of persons reasonably believed to be located outside the
United States and does not result in the intentional
acquisition of any communication as to which the sender and
all intended recipients are known at the time of the
acquisition to be located in the United States.
``(C) Minimization procedures.--The minimization procedures
required by subsection (e) to assess whether such procedures
meet the definition of minimization procedures
[[Page H1732]]
under section 101(h) or section 301(4) in accordance with
subsection (e).
``(3) Orders.--
``(A) Approval.--If the Court finds that a certification
submitted pursuant to subsection (g) contains all of the
required elements and that the procedures required by
subsections (d) and (e) are consistent with the requirements
of those subsections and with the fourth amendment to the
Constitution of the United States, the Court shall enter an
order approving the certification and the use of the
procedures for the acquisition.
``(B) Correction of deficiencies.--If the Court finds that
a certification submitted pursuant to subsection (g) does not
contain all of the required elements or that the procedures
required by subsections (d) and (e) are not consistent with
the requirements of those subsections or the fourth amendment
to the Constitution of the United States--
``(i) in the case of a certification submitted in
accordance with subsection (g)(1)(A), the Court shall deny
the order, identify any deficiency in the certification or
procedures, and provide the Government with an opportunity to
correct such deficiency; and
``(ii) in the case of a certification submitted in
accordance with subsection (g)(1)(B), the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the Court's order--
``(I) correct any deficiency identified by the Court not
later than 30 days after the date the Court issues the order;
or
``(II) cease the acquisition authorized under subsection
(g)(1)(B).
``(C) Requirement for written statement.--In support of its
orders under this subsection, the Court shall provide,
simultaneously with the orders, for the record a written
statement of its reasons.
``(4) Appeal.--
``(A) Appeal to the court of review.--The Government may
appeal any order under this section to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such order. For any decision
affirming, reversing, or modifying an order of the Foreign
Intelligence Surveillance Court, the Court of Review shall
provide for the record a written statement of its reasons.
``(B) Continuation of acquisition pending rehearing or
appeal.--Any acquisition affected by an order under paragraph
(3)(B)(ii) may continue--
``(i) during the pendency of any rehearing of the order by
the Court en banc; and
``(ii) if the Government appeals an order under this
section, subject to subparagraph (C), until the Court of
Review enters an order under subparagraph (A).
``(C) Implementation of emergency authority pending
appeal.--Not later than 60 days after the filing of an appeal
of an order issued under paragraph (3)(B)(ii) directing the
correction of a deficiency, the Court of Review shall
determine, and enter a corresponding order regarding whether
all or any part of the correction order, as issued or
modified, shall be implemented during the pendency of the
appeal. The Government shall conduct an acquisition affected
by such order issued under paragraph (3)(B)(ii) in accordance
with an order issued under this subparagraph or shall cease
such acquisition.
``(D) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under subparagraph
(A). The record for such review shall be transmitted under
seal to the Supreme Court of the United States, which shall
have jurisdiction to review such decision.
``(5) Schedule.--
``(A) Replacement of authorizations in effect.--If the
Attorney General and the Director of National Intelligence
seek to replace an authorization issued pursuant to section
105B of the Foreign Intelligence Surveillance Act of 1978, as
added by section 2 of the Protect America Act of 2007 (Public
Law 110-55), the Attorney General and the Director of
National Intelligence shall, to the extent practicable,
submit to the Court a certification under subsection (g) and
the procedures required by subsections (d), (e), and (f) at
least 30 days before the expiration of such authorization.
``(B) Reauthorization of authorizations in effect.--If the
Attorney General and the Director of National Intelligence
seek to replace an authorization issued pursuant to this
section, the Attorney General and the Director of National
Intelligence shall, to the extent practicable, submit to the
Court a certification under subsection (g) and the procedures
required by subsections (d), (e), and (f) at least 30 days
prior to the expiration of such authorization.
``(C) Consolidated submissions.--The Attorney General and
Director of National Intelligence shall, to the extent
practicable, annually submit to the Court a consolidation
of--
``(i) certifications under subsection (g) for
reauthorization of authorizations in effect;
``(ii) the procedures required by subsections (d), (e), and
(f); and
``(iii) the annual review required by subsection (l)(3) for
the preceding year.
``(D) Timing of reviews.--The Attorney General and the
Director of National Intelligence shall, to the extent
practicable, schedule the completion of the annual review
under subsection (l)(3) and a semiannual assessment under
subsection (l)(1) so that they may be submitted to the Court
at the time of the consolidated submission under subparagraph
(C).
``(E) Construction.--The requirements of subparagraph (C)
shall not be construed to preclude the Attorney General and
the Director of National Intelligence from submitting
certifications for additional authorizations at other times
during the year as necessary.
``(6) Compliance.--At or before the end of the period of
time for which a certification submitted pursuant to
subsection (g) and procedures required by subsection (d) and
(e) are approved by an order under this section, the Foreign
Intelligence Surveillance Court may assess compliance with
the minimization procedures required by subsection (e) by
reviewing the circumstances under which information
concerning United States persons was acquired, retained, or
disseminated.
``(j) Judicial Proceedings.--
``(1) Expedited proceedings.--Judicial proceedings under
this section shall be conducted as expeditiously as possible.
``(2) Time limits.--A time limit for a judicial decision in
this section shall apply unless the Court, the Court of
Review, or any judge of either the Court or the Court of
Review, by order for reasons stated, extends that time for
good cause.
``(k) Maintenance and Security of Records and
Proceedings.--
``(1) Standards.--The Foreign Intelligence Surveillance
Court shall maintain a record of a proceeding under this
section, including petitions filed, orders granted, and
statements of reasons for decision, under security measures
adopted by the Chief Justice of the United States, in
consultation with the Attorney General and the Director of
National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--The Director of National
Intelligence and the Attorney General shall retain a
directive made or an order granted under this section for a
period of not less than 10 years from the date on which such
directive or such order is made.
``(l) Assessments and Reviews.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the procedures and
guidelines required by subsections (d), (e), and (f) and
shall submit each assessment to--
``(A) the congressional intelligence committees;
``(B) the Committees on the Judiciary of the House of
Representatives and the Senate; and
``(C) the Foreign Intelligence Surveillance Court.
``(2) Agency assessment.--The Inspectors General of the
Department of Justice and of each element of the intelligence
community authorized to acquire foreign intelligence
information under subsection (a), with respect to such
Department or such element--
``(A) are authorized to review compliance with the
procedures and guidelines required by subsections (d), (e),
and (f);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the disseminated intelligence
reports containing a reference to a United States person
identity and the number of United States person identities
subsequently disseminated by the element concerned in
response to requests for identities that were not referred to
by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the targets that were later
determined to be located in the United States and, to the
extent possible, whether their communications were reviewed;
and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence;
``(iii) the congressional intelligence committees;
``(iv) the Committees on the Judiciary of the House of
Representatives and the Senate; and
``(v) the Foreign Intelligence Surveillance Court.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of each element of
the intelligence community conducting an acquisition
authorized under subsection (a) shall conduct an annual
review to determine whether there is reason to believe that
foreign intelligence information has been or will be obtained
from the acquisition. The annual review shall provide, with
respect to such acquisitions authorized under subsection
(a)--
``(i) the number and nature of disseminated intelligence
reports containing a reference to a United States person
identity;
``(ii) the number and nature of United States person
identities subsequently disseminated by that element in
response to requests for identities that were not referred to
by name or title in the original reporting;
``(iii) the number of targets that were later determined to
be located in the United States and, to the extent possible,
whether their communications were reviewed; and
``(iv) a description of any procedures developed by the
head of such element of the intelligence community and
approved by the Director of National Intelligence to assess,
[[Page H1733]]
in a manner consistent with national security, operational
requirements and the privacy interests of United States
persons, the extent to which the acquisitions authorized
under subsection (a) acquire the communications of United
States persons, and the results of any such assessment.
``(B) Use of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall use each such review to evaluate the
adequacy of the minimization procedures utilized by such
element or the application of the minimization procedures to
a particular acquisition authorized under subsection (a).
``(C) Provision of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall provide such review to--
``(i) the Foreign Intelligence Surveillance Court;
``(ii) the Attorney General;
``(iii) the Director of National Intelligence;
``(iv) the congressional intelligence committees; and
``(v) the Committees on the Judiciary of the House of
Representatives and the Senate.
``(m) Construction.--Nothing in this Act shall be construed
to require an application under section 104 for an
acquisition that is targeted in accordance with this section
at a person reasonably believed to be located outside the
United States.
``SEC. 703. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES OF
UNITED STATES PERSONS OUTSIDE THE UNITED
STATES.
``(a) Jurisdiction of the Foreign Intelligence Surveillance
Court.--
``(1) In general.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to review an application and
enter an order approving the targeting of a United States
person reasonably believed to be located outside the United
States to acquire foreign intelligence information if the
acquisition constitutes electronic surveillance or the
acquisition of stored electronic communications or stored
electronic data that requires an order under this Act and
such acquisition is conducted within the United States.
``(2) Limitation.--If a United States person targeted under
this subsection is reasonably believed to be located in the
United States during the pendency of an order issued pursuant
to subsection (c), such acquisition shall cease unless
authority, other than under this section, is obtained
pursuant to this Act or the targeted United States person is
again reasonably believed to be located outside the United
States during the pendency of an order issued pursuant to
subsection (c).
``(b) Application.--
``(1) In general.--Each application for an order under this
section shall be made by a Federal officer in writing upon
oath or affirmation to a judge having jurisdiction under
subsection (a)(1). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application, as set forth in this
section, and shall include--
``(A) the identity of the Federal officer making the
application;
``(B) the identity, if known, or a description of the
United States person who is the target of the acquisition;
``(C) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the United States
person who is the target of the acquisition is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(D) a statement of proposed minimization procedures
that--
``(i) in the case of electronic surveillance, meet the
definition of minimization procedures in section 101(h); and
``(ii) in the case of a physical search, meet the
definition of minimization procedures in section 301(4);
``(E) a description of the nature of the information sought
and the type of communications or activities to be subjected
to acquisition;
``(F) a certification made by the Attorney General or an
official specified in section 104(a)(6) that--
``(i) the certifying official deems the information sought
to be foreign intelligence information;
``(ii) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(iii) such information cannot reasonably be obtained by
normal investigative techniques;
``(iv) identifies the type of foreign intelligence
information being sought according to the categories
described in each subparagraph of section 101(e); and
``(v) includes a statement of the basis for the
certification that--
``(I) the information sought is the type of foreign
intelligence information designated; and
``(II) such information cannot reasonably be obtained by
normal investigative techniques;
``(G) a summary statement of the means by which the
acquisition will be conducted and whether physical entry is
required to effect the acquisition;
``(H) the identity of any electronic communication service
provider necessary to effect the acquisition, provided,
however, that the application is not required to identify the
specific facilities, places, premises, or property at which
the acquisition authorized under this section will be
directed or conducted;
``(I) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(J) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(2) Other requirements of the attorney general.--The
Attorney General may require any other affidavit or
certification from any other officer in connection with the
application.
``(3) Other requirements of the judge.--The judge may
require the applicant to furnish such other information as
may be necessary to make the findings required by subsection
(c)(1).
``(c) Order.--
``(1) Findings.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court
shall enter an ex parte order as requested or as modified by
the Court approving the acquisition if the Court finds that--
``(A) the application has been made by a Federal officer
and approved by the Attorney General;
``(B) on the basis of the facts submitted by the applicant,
for the United States person who is the target of the
acquisition, there is probable cause to believe that the
target is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(C) the proposed minimization procedures--
``(i) in the case of electronic surveillance, meet the
definition of minimization procedures in section 101(h); and
``(ii) in the case of a physical search, meet the
definition of minimization procedures in section 301(4);
``(D) the application that has been filed contains all
statements and certifications required by subsection (b) and
the certification or certifications are not clearly erroneous
on the basis of the statement made under subsection
(b)(1)(F)(v) and any other information furnished under
subsection (b)(3).
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of paragraph (1)(B), a
judge having jurisdiction under subsection (a)(1) may
consider past activities of the target and facts and
circumstances relating to current or future activities of the
target. No United States person may be considered a foreign
power, agent of a foreign power, or officer or employee of a
foreign power solely upon the basis of activities protected
by the first amendment to the Constitution of the United
States.
``(3) Review.--
``(A) Limitation on review.--Review by a judge having
jurisdiction under subsection (a)(1) shall be limited to that
required to make the findings described in paragraph (1).
``(B) Review of probable cause.--If the judge determines
that the facts submitted under subsection (b) are
insufficient to establish probable cause under paragraph
(1)(B), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
subparagraph pursuant to subsection (f).
``(C) Review of minimization procedures.--If the judge
determines that the proposed minimization procedures referred
to in paragraph (1)(C) do not meet the definition of
minimization procedures as required under such paragraph the
judge shall enter an order so stating and provide a written
statement for the record of the reasons for such
determination. The Government may appeal an order under this
subparagraph pursuant to subsection (f).
``(D) Review of certification.--If the judge determines
that an application under subsection (b) does not contain all
of the required elements, or that the certification or
certifications are clearly erroneous on the basis of the
statement made under subsection (b)(1)(F)(v) and any other
information furnished under subsection (b)(3), the judge
shall enter an order so stating and provide a written
statement for the record of the reasons for such
determination. The Government may appeal an order under this
subparagraph pursuant to subsection (f).
``(4) Specifications.--An order approving an acquisition
under this subsection shall specify--
``(A) the identity, if known, or a description of the
United States person who is the target of the acquisition
identified or described in the application pursuant to
subsection (b)(1)(B);
``(B) if provided in the application pursuant to subsection
(b)(1)(H), the nature and location of each of the facilities
or places at which the acquisition will be directed;
``(C) the nature of the information sought to be acquired
and the type of communications or activities to be subjected
to acquisition;
``(D) the means by which the acquisition will be conducted
and whether physical
[[Page H1734]]
entry is required to effect the acquisition; and
``(E) the period of time during which the acquisition is
approved.
``(5) Directions.--An order approving an acquisition under
this subsection shall direct--
``(A) that the minimization procedures referred to in
paragraph (1)(C), as approved or modified by the Court, be
followed;
``(B) an electronic communication service provider to
provide to the Government forthwith all information,
facilities, or assistance necessary to accomplish the
acquisition authorized under such order in a manner that will
protect the secrecy of the acquisition and produce a minimum
of interference with the services that such electronic
communication service provider is providing to the target of
the acquisition;
``(C) an electronic communication service provider to
maintain under security procedures approved by the Attorney
General any records concerning the acquisition or the aid
furnished that such electronic communication service provider
wishes to maintain; and
``(D) that the Government compensate, at the prevailing
rate, such electronic communication service provider for
providing such information, facilities, or assistance.
``(6) Duration.--An order approved under this subsection
shall be effective for a period not to exceed 90 days and
such order may be renewed for additional 90-day periods upon
submission of renewal applications meeting the requirements
of subsection (b).
``(7) Compliance.--At or prior to the end of the period of
time for which an acquisition is approved by an order or
extension under this section, the judge may assess compliance
with the minimization procedures referred to in paragraph
(1)(C) by reviewing the circumstances under which information
concerning United States persons was acquired, retained, or
disseminated.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision of this Act, if the
Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subsection (c) before an order
authorizing such acquisition can with due diligence be
obtained, and
``(B) the factual basis for issuance of an order under this
subsection to approve such acquisition exists,
the Attorney General may authorize such acquisition if a
judge having jurisdiction under subsection (a)(1) is informed
by the Attorney General, or a designee of the Attorney
General, at the time of such authorization that the decision
has been made to conduct such acquisition and if an
application in accordance with this section is made to a
judge of the Foreign Intelligence Surveillance Court as soon
as practicable, but not more than 7 days after the Attorney
General authorizes such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes an acquisition under paragraph (1), the Attorney
General shall require that the minimization procedures
referred to in subsection (c)(1)(C) for the issuance of a
judicial order be followed.
``(3) Termination of emergency authorization.--In the
absence of a judicial order approving an acquisition
authorized under paragraph (1), such acquisition shall
terminate when the information sought is obtained, when the
application for the order is denied, or after the expiration
of 7 days from the time of authorization by the Attorney
General, whichever is earliest.
``(4) Use of information.--If an application for approval
submitted pursuant to paragraph (1) is denied, or in any
other case where the acquisition is terminated and no order
is issued approving the acquisition, no information obtained
or evidence derived from such acquisition, except under
circumstances in which the target of the acquisition is
determined not to be a United States person, shall be
received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in or before any court, grand
jury, department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from
such acquisition shall subsequently be used or disclosed in
any other manner by Federal officers or employees without the
consent of such person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(e) Release From Liability.--Notwithstanding any other
provision of law, no cause of action shall lie in any court
against any electronic communication service provider for
providing any information, facilities, or assistance in
accordance with an order or request for emergency assistance
issued pursuant to subsections (c) or (d).
``(f) Appeal.--
``(1) Appeal to the foreign intelligence surveillance court
of review.--The Government may file an appeal with the
Foreign Intelligence Surveillance Court of Review for review
of an order issued pursuant to subsection (c). The Court of
Review shall have jurisdiction to consider such appeal and
shall provide a written statement for the record of the
reasons for a decision under this paragraph.
``(2) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review under paragraph (1). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(g) Construction.--Nothing in this Act shall be construed
to require an application under section 104 for an
acquisition that is targeted in accordance with this section
at a person reasonably believed to be located outside the
United States.
``SEC. 704. OTHER ACQUISITIONS TARGETING UNITED STATES
PERSONS OUTSIDE THE UNITED STATES.
``(a) Jurisdiction and Scope.--
``(1) Jurisdiction.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order pursuant to
subsection (c).
``(2) Scope.--No department or agency of the Federal
Government may intentionally target, for the purpose of
acquiring foreign intelligence information, a United States
person reasonably believed to be located outside the United
States under circumstances in which the targeted United
States person has a reasonable expectation of privacy and a
warrant would be required if the acquisition were conducted
inside the United States for law enforcement purposes, unless
a judge of the Foreign Intelligence Surveillance Court has
entered an order with respect to such targeted United States
person or the Attorney General has authorized an emergency
acquisition pursuant to subsection (c) or (d) or any other
provision of this Act.
``(3) Limitations.--
``(A) Moving or misidentified targets.--If a targeted
United States person is reasonably believed to be in the
United States during the pendency of an order issued pursuant
to subsection (c), acquisitions relating to such targeted
United States Person shall cease unless authority is obtained
pursuant to this Act or the targeted United States person is
again reasonably believed to be located outside the United
States during the pendency of such order.
``(B) Applicability.--If an acquisition is to be conducted
inside the United States and could be authorized under
section 703, the acquisition may only be conducted if
authorized under section 703 or in accordance with another
provision of this Act other than this section.
``(b) Application.--Each application for an order under
this section shall be made by a Federal officer in writing
upon oath or affirmation to a judge having jurisdiction under
subsection (a)(1). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application as set forth in this section
and shall include--
``(1) the identity of the Federal officer making the
application;
``(2) the identity, if known, or a description of the
specific United States person who is the target of the
acquisition;
``(3) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the United States
person who is the target of the acquisition is--
``(A) a person reasonably believed to be located outside
the United States; and
``(B) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(4) a statement of proposed minimization procedures
that--
``(A) in the case of electronic surveillance, meet the
definition of minimization procedures in section 101(h); and
``(B) in the case of a physical search, meet the definition
of minimization procedures in section 301(4);
``(5) a certification made by the Attorney General, an
official specified in section 104(a)(6), or the head of an
element of the intelligence community that--
``(A) the certifying official deems the information sought
to be foreign intelligence information; and
``(B) a significant purpose of the acquisition is to obtain
foreign intelligence information;
``(6) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(7) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(c) Order.--
``(1) Findings.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court
shall enter an ex parte order as requested or as modified by
the Court if the Court finds that--
``(A) the application has been made by a Federal officer
and approved by the Attorney General;
``(B) on the basis of the facts submitted by the applicant,
for the United States person who is the target of the
acquisition, there is probable cause to believe that the
target is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(C) the proposed minimization procedures--
``(i) in the case of electronic surveillance, meet the
definition of minimization procedures in section 101(h); and
[[Page H1735]]
``(ii) in the case of a physical search, meet the
definition of minimization procedures in section 301(4);
``(D) the application that has been filed contains all
statements and certifications required by subsection (b) and
the certification provided under subsection (b)(5) is not
clearly erroneous on the basis of the information furnished
under subsection (b).
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under
paragraph (1)(B), a judge having jurisdiction under
subsection (a)(1) may consider past activities of the target
and facts and circumstances relating to current or future
activities of the target. No United States person may be
considered a foreign power, agent of a foreign power, or
officer or employee of a foreign power solely upon the basis
of activities protected by the first amendment to the
Constitution of the United States.
``(3) Review.--
``(A) Limitations on review.--Review by a judge having
jurisdiction under subsection (a)(1) shall be limited to that
required to make the findings described in paragraph (1). The
judge shall not have jurisdiction to review the means by
which an acquisition under this section may be conducted.
``(B) Review of probable cause.--If the judge determines
that the facts submitted under subsection (b) are
insufficient to establish probable cause under paragraph
(1)(B), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (e).
``(C) Review of minimization procedures.--If the judge
determines that the proposed minimization procedures referred
to in paragraph (1)(C) do not meet the definition of
minimization procedures as required under such paragraph, the
judge shall enter an order so stating and provide a written
statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (e).
``(D) Scope of review of certification.--If the judge
determines that an application under subsection (b) does not
contain all the required elements, or that the certification
provided under subsection (b)(5) is clearly erroneous on the
basis of the information furnished under subsection (b), the
judge shall enter an order so stating and provide a written
statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (e).
``(4) Duration.--An order under this paragraph shall be
effective for a period not to exceed 90 days and such order
may be renewed for additional 90-day periods upon submission
of renewal applications meeting the requirements of
subsection (b).
``(5) Compliance.--At or prior to the end of the period of
time for which an order or extension is granted under this
section, the judge may assess compliance with the
minimization procedures referred to in paragraph (1)(C) by
reviewing the circumstances under which information
concerning United States persons was disseminated, provided
that the judge may not inquire into the circumstances
relating to the conduct of the acquisition.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision of this section, if the
Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subsection (c) before an order
under that subsection may, with due diligence, be obtained,
and
``(B) the factual basis for the issuance of an order under
this section exists,
the Attorney General may authorize such acquisition if a
judge having jurisdiction under subsection (a)(1) is informed
by the Attorney General or a designee of the Attorney General
at the time of such authorization that the decision has been
made to conduct such acquisition and if an application in
accordance with this section is made to a judge of the
Foreign Intelligence Surveillance Court as soon as
practicable, but not more than 7 days after the Attorney
General authorizes such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes an emergency acquisition under paragraph (1), the
Attorney General shall require that the minimization
procedures referred to in subsection (c)(1)(C) be followed.
``(3) Termination of emergency authorization.--In the
absence of an order under subsection (c), the acquisition
authorized under paragraph (1) shall terminate when the
information sought is obtained, if the application for the
order is denied, or after the expiration of 7 days from the
time of authorization by the Attorney General, whichever is
earliest.
``(4) Use of information.--If an application submitted
pursuant to paragraph (1) is denied, or in any other case
where an acquisition under this section is terminated and no
order with respect to the target of the acquisition is issued
under subsection (c), no information obtained or evidence
derived from such acquisition, except under circumstances in
which the target of the acquisition is determined not to be a
United States person, shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(e) Appeal.--
``(1) Appeal to the court of review.--The Government may
file an appeal with the Foreign Intelligence Surveillance
Court of Review for review of an order issued pursuant to
subsection (c). The Court of Review shall have jurisdiction
to consider such appeal and shall provide a written statement
for the record of the reasons for a decision under this
paragraph.
``(2) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under paragraph (1).
The record for such review shall be transmitted under seal to
the Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``SEC. 705. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.
``(a) Joint Applications and Orders.--If an acquisition
targeting a United States person under section 703 or section
704 is proposed to be conducted both inside and outside the
United States, a judge having jurisdiction under section
703(a)(1) or section 704(a)(1) may issue simultaneously, upon
the request of the Government in a joint application
complying with the requirements of section 703(b) and section
704(b), orders under section 703(c) and section 704(c), as
appropriate.
``(b) Concurrent Authorization.--
``(1) Electronic surveillance.--If an order authorizing
electronic surveillance has been obtained under section 105
and that order is still in effect, during the pendency of
that order the Attorney General may authorize, without an
order under section 703 or 704, electronic surveillance for
the purpose of acquiring foreign intelligence information
targeting that United States person while such person is
reasonably believed to be located outside the United States.
``(2) Physical search.--If an order authorizing a physical
search has been obtained under section 304 and that order is
still in effect, during the pendency of that order the
Attorney General may authorize, without an order under
section 703 or 704, a physical search for the purpose of
acquiring foreign intelligence information targeting that
United States person while such person is reasonably believed
to be located outside the United States.
``SEC. 706. USE OF INFORMATION ACQUIRED UNDER TITLE VII.
``Information acquired pursuant to section 702 or 703 shall
be considered information acquired from an electronic
surveillance pursuant to title I for purposes of section 106.
``SEC. 707. CONGRESSIONAL OVERSIGHT.
``(a) Semiannual Report.--Not less frequently than once
every 6 months, the Attorney General shall fully inform, in a
manner consistent with national security, the congressional
intelligence committees and the Committees on the Judiciary
of the Senate and the House of Representatives, concerning
the implementation of this title.
``(b) Content.--Each report made under subsection (a) shall
include--
``(1) with respect to section 702--
``(A) any certifications made under section 702(g) during
the reporting period;
``(B) with respect to each certification made under
paragraph (1)(B) of such section, the reasons for exercising
the authority under such paragraph;
``(C) any directives issued under section 702(h) during the
reporting period;
``(D) a description of the judicial review during the
reporting period of any such certifications and targeting and
minimization procedures adopted pursuant to subsections (d)
and (e) of section 702 utilized with respect to such
acquisition, including a copy of any order or pleading in
connection with such review that contains a significant legal
interpretation of the provisions of section 702;
``(E) any actions taken to challenge or enforce a directive
under paragraph (4) or (5) of section 702(h);
``(F) any compliance reviews conducted by the Attorney
General or the Director of National Intelligence of
acquisitions authorized under subsection 702(a);
``(G) a description of any incidents of noncompliance with
a directive issued by the Attorney General and the Director
of National Intelligence under subsection 702(h), including--
``(i) incidents of noncompliance by an element of the
intelligence community with procedures and guidelines adopted
pursuant to subsections (d), (e), and (f) of section 702; and
``(ii) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under subsection 702(h); and
``(H) any procedures implementing section 702;
``(2) with respect to section 703--
``(A) the total number of applications made for orders
under section 703(b);
``(B) the total number of such orders--
``(i) granted;
``(ii) modified; or
[[Page H1736]]
``(iii) denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under section 703(d) and the total
number of subsequent orders approving or denying such
acquisitions; and
``(3) with respect to section 704--
``(A) the total number of applications made for orders
under 704(b);
``(B) the total number of such orders--
``(i) granted;
``(ii) modified; or
``(iii) denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under subsection 704(d) and the total
number of subsequent orders approving or denying such
applications.
``SEC. 708. SAVINGS PROVISION.
``Nothing in this title shall be construed to limit the
authority of the Federal Government to seek an order or
authorization under, or otherwise engage in any activity that
is authorized under, any other title of this Act.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et. seq.) is amended--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``Sec. 701. Definitions.
``Sec. 702. Procedures for targeting certain persons outside the United
States other than United States persons.
``Sec. 703. Certain acquisitions inside the United States of United
States persons outside the United States.
``Sec. 704. Other acquisitions targeting United States persons outside
the United States.
``Sec. 705. Joint applications and concurrent authorizations.
``Sec. 706. Use of information acquired under title VII.
``Sec. 707. Congressional oversight.
``Sec. 708. Savings provision.''.
(c) Technical and Conforming Amendments.--
(1) Title 18, united states code.--Section
2511(2)(a)(ii)(A) of title 18, United States Code, is amended
by inserting ``or a court order pursuant to section 704 of
the Foreign Intelligence Surveillance Act of 1978'' after
``assistance''.
(2) Foreign intelligence surveillance act of 1978.--Section
601(a)(1) of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1871(a)(1)) is amended--
(A) in subparagraph (C), by striking ``and''; and
(B) by adding at the end the following new subparagraphs:
``(E) acquisitions under section 703; and
``(F) acquisitions under section 704;''.
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
``statement of exclusive means by which electronic surveillance and
interception of certain communications may be conducted
``Sec. 112. (a) Except as provided in subsection (b), the
procedures of chapters 119, 121, and 206 of title 18, United
States Code, and this Act shall be the exclusive means by
which electronic surveillance and the interception of
domestic wire, oral, or electronic communications may be
conducted.
``(b) Only an express statutory authorization for
electronic surveillance or the interception of domestic wire,
oral, or electronic communications, other than as an
amendment to this Act or chapters 119, 121, or 206 of title
18, United States Code, shall constitute an additional
exclusive means for the purpose of subsection (a).''.
(b) Offense.--Section 109(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809(a)) is amended by
striking ``authorized by statute'' each place it appears in
such section and inserting ``authorized by this Act, chapter
119, 121, or 206 of title 18, United States Code, or any
express statutory authorization that is an additional
exclusive means for conducting electronic surveillance under
section 112.''; and
(c) Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2)(a) of
title 18, United States Code, is amended by adding at the end
the following:
``(iii) If a certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the specific statutory provision, and shall certify
that the statutory requirements have been met.''; and
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by inserting after the
item relating to section 111 the following new item:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.''.
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Inclusion of Certain Orders in Semiannual Reports of
Attorney General.--Subsection (a)(5) of section 601 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1871) is amended by striking ``(not including orders)'' and
inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings, applications, or memoranda of
law associated with such decision, order, or opinion, not
later than 45 days after such decision, order, or opinion is
issued; and
``(2) a copy of any such decision, order, or opinion, and
any pleadings, applications, or memoranda of law associated
with such decision, order, or opinion, that was issued during
the 5-year period ending on the date of the enactment of the
FISA Amendments Act of 2008 and not previously submitted in a
report under subsection (a).
``(d) Protection of National Security.--The Attorney
General, in consultation with the Director of National
Intelligence, may authorize redactions of materials described
in subsection (c) that are provided to the committees of
Congress referred to in subsection (a), if such redactions
are necessary to protect the national security of the United
States and are limited to sensitive sources and methods
information or the identities of targets.''.
(c) Definitions.--Such section 601, as amended by
subsections (a) and (b), is further amended by adding at the
end the following:
``(e) Definitions.--In this section:
``(1) Foreign intelligence surveillance court.--The term
`Foreign Intelligence Surveillance Court' means the court
established by section 103(a).
``(2) Foreign intelligence surveillance court of review.--
The term `Foreign Intelligence Surveillance Court of Review'
means the court established by section 103(b).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(E) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(F) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3) of this subsection, by striking ``or the
Director of National Intelligence'' and inserting ``the
Director of National Intelligence, or the Director of the
Central Intelligence Agency''.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(6) by amending subsection (e), as redesignated by
paragraph (5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(A) reasonably determines that an emergency situation
exists with respect to the employment of electronic
surveillance to obtain foreign intelligence information
before
[[Page H1737]]
an order authorizing such surveillance can with due diligence
be obtained;
``(B) reasonably determines that the factual basis for the
issuance of an order under this title to approve such
electronic surveillance exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under section 103 at the time of
such authorization that the decision has been made to employ
emergency electronic surveillance; and
``(D) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not later than 7 days after the Attorney
General authorizes such surveillance.
``(2) If the Attorney General authorizes the emergency
employment of electronic surveillance under paragraph (1),
the Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate
when the information sought is obtained, when the application
for the order is denied, or after the expiration of 7 days
from the time of authorization by the Attorney General,
whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) In the event that such application for approval is
denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, upon the request of the applicant, the
judge shall also authorize the installation and use of pen
registers and trap and trace devices, and direct the
disclosure of the information set forth in section
402(d)(2).''.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by
striking ``radio communication'' and inserting
``communication''.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed''; and
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(2) in subsection (d)(1)(A), by striking ``or the Director
of National Intelligence'' and inserting ``the Director of
National Intelligence, or the Director of the Central
Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of a physical search if the Attorney General--
``(A) reasonably determines that an emergency situation
exists with respect to the employment of a physical search to
obtain foreign intelligence information before an order
authorizing such physical search can with due diligence be
obtained;
``(B) reasonably determines that the factual basis for
issuance of an order under this title to approve such
physical search exists;
``(C) informs, either personally or through a designee, a
judge of the Foreign Intelligence Surveillance Court at the
time of such authorization that the decision has been made to
employ an emergency physical search; and
``(D) makes an application in accordance with this title to
a judge of the Foreign Intelligence Surveillance Court as
soon as practicable, but not more than 7 days after the
Attorney General authorizes such physical search.
``(2) If the Attorney General authorizes the emergency
employment of a physical search under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
physical search, the physical search shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 7 days from the
time of authorization by the Attorney General, whichever is
earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5)(A) In the event that such application for approval is
denied, or in any other case where the physical search is
terminated and no order is issued approving the physical
search, no information obtained or evidence derived from such
physical search shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such physical search shall subsequently be used
or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(B) The Attorney General shall assess compliance with the
requirements of subparagraph (A).''.
(c) Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended--
(1) in section 304(a)(4), as redesignated by subsection (b)
of this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND
TRACE DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``7 days''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``7 days''.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges.--Subsection (a) of section 103
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803) is amended by inserting ``at least'' before
``seven of the United States judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978, as amended by
subsection (a) of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection, on
its own initiative or upon the request of the Government in
any proceeding or a party under section 501(f) or paragraph
(4) or (5) of section 703(h), may hold a hearing or
rehearing, en banc, when ordered by a majority of the judges
that constitute such court upon a determination that--
``(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by
the court en banc. When exercising such authority, the court
en banc shall comply with any requirements of this Act on the
exercise of such authority.
``(C) For purposes of this paragraph, the court en banc
shall consist of all judges who constitute the court
established under this subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered
under any title of this Act, while the court established
under subsection (a) conducts a rehearing, while an appeal is
pending to the court established
[[Page H1738]]
under subsection (b), or while a petition of certiorari is
pending in the Supreme Court of the United States, or during
the pendency of any review by that court.
``(2) The authority described in paragraph (1) shall apply
to an order entered under any provision of this Act.''.
(d) Authority of Foreign Intelligence Surveillance Court.--
Section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803), as amended by this Act, is further
amended by adding at the end the following:
``(i) Nothing in this Act shall be construed to reduce or
contravene the inherent authority of the court established by
subsection (a) to determine or enforce compliance with an
order or a rule of such court or with a procedure approved by
such court.''.
SEC. 110. INSPECTOR GENERAL REVIEW OF PREVIOUS ACTIONS.
(a) Definitions.--In this section:
(1) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(A) the Select Committee on Intelligence and the Committee
on the Judiciary of the Senate; and
(B) the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(2) Foreign intelligence surveillance court.--The term
``Foreign Intelligence Surveillance Court'' means the court
established by section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(3) President's surveillance program and program.--The
terms ``President's Surveillance Program'' and ``Program''
mean the intelligence activity involving communications that
was authorized by the President during the period beginning
on September 11, 2001, and ending on January 17, 2007,
including the program referred to by the President in a radio
address on December 17, 2005 (commonly known as the Terrorist
Surveillance Program).
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, the National Security Agency, and any other
element of the intelligence community that participated in
the President's Surveillance Program shall complete a
comprehensive review of, with respect to the oversight
authority and responsibility of each such Inspector General--
(A) all of the facts necessary to describe the
establishment, implementation, product, and use of the
product of the Program;
(B) the procedures and substance of, and access to, the
legal reviews of the Program;
(C) communications with and participation of individuals
and entities in the private sector related to the Program;
(D) interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program;
and
(E) any other matters identified by any such Inspector
General that would enable that Inspector General to complete
a review of the Program, with respect to such Department or
element.
(2) Cooperation and coordination.--
(A) Cooperation.--Each Inspector General required to
conduct a review under paragraph (1) shall--
(i) work in conjunction, to the extent practicable, with
any other Inspector General required to conduct such a
review; and
(ii) utilize, to the extent practicable, and not
unnecessarily duplicate or delay such reviews or audits that
have been completed or are being undertaken by any such
Inspector General or by any other office of the Executive
Branch related to the Program.
(B) Coordination.--The Inspectors General shall designate
one of the Inspectors General required to conduct a review
under paragraph (1) that is appointed by the President, by
and with the advice and consent of the Senate, to coordinate
the conduct of the reviews and the preparation of the
reports.
(c) Reports.--
(1) Preliminary reports.--Not later than 60 days after the
date of the enactment of this Act, the Inspectors General of
the Department of Justice, the Office of the Director of
National Intelligence, the National Security Agency, and any
other Inspector General required to conduct a review under
subsection (b)(1) shall submit to the appropriate committees
of Congress an interim report that describes the planned
scope of such review.
(2) Final report.--Not later than 1 year after the date of
the enactment of this Act, the Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, the National Security Agency, and any other
Inspector General required to conduct a review under
subsection (b)(1) shall submit to the appropriate committees
of Congress and the Commission established under section
301(a) a comprehensive report on such reviews that includes
any recommendations of any such Inspectors General within the
oversight authority and responsibility of any such Inspector
General.
(3) Form.--A report submitted under this subsection shall
be submitted in unclassified form, but may include a
classified annex. The unclassified report shall not disclose
the name or identity of any individual or entity of the
private sector that participated in the Program or with whom
there was communication about the Program, to the extent that
information is classified.
(d) Resources.--
(1) Expedited security clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by an
Inspector General or any appropriate staff of an Inspector
General for a security clearance necessary for the conduct of
the review under subsection (b)(1) is carried out as
expeditiously as possible.
(2) Additional personnel for the inspectors general.--An
Inspector General required to conduct a review under
subsection (b)(1) and submit a report under subsection (c) is
authorized to hire such additional personnel as may be
necessary to carry out such review and prepare such report in
a prompt and timely manner. Personnel authorized to be hired
under this paragraph--
(A) shall perform such duties relating to such a review as
the relevant Inspector General shall direct; and
(B) are in addition to any other personnel authorized by
law.
SEC. 111. WEAPONS OF MASS DESTRUCTION.
(a) Definitions.--
(1) Foreign power.--Subsection (a) of section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(a)) is amended--
(A) in paragraph (5), by striking ``persons; or'' and
inserting ``persons;'';
(B) in paragraph (6), by striking the period and inserting
``; or''; and
(C) by adding at the end the following new paragraph:
``(7) an entity not substantially composed of United States
persons that is engaged in the international proliferation of
weapons of mass destruction.''.
(2) Agent of a foreign power.--Subsection (b)(1) of such
section 101 is amended--
(A) in subparagraph (B), by striking ``or'' at the end; and
(B) by adding at the end the following new subparagraph:
``(D) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor;
or''.
(3) Foreign intelligence information.--Subsection (e)(1)(B)
of such section 101 is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(4) Weapon of mass destruction.--Such section 101 is
amended by adding at the end the following new subsection:
``(p) `Weapon of mass destruction' means--
``(1) any explosive, incendiary, or poison gas device that
is intended or has the capability to cause a mass casualty
incident;
``(2) any weapon that is designed or intended to cause
death or serious bodily injury to a significant number of
persons through the release, dissemination, or impact of
toxic or poisonous chemicals or their precursors;
``(3) any weapon involving a biological agent, toxin, or
vector (as such terms are defined in section 178 of title 18,
United States Code) that is designed, intended, or has the
capability of causing death, illness, or serious bodily
injury to a significant number of persons; or
``(4) any weapon that is designed, intended, or has the
capability of releasing radiation or radioactivity causing
death, illness, or serious bodily injury to a significant
number of persons.''.
(b) Use of Information.--
(1) In general.--Section 106(k)(1)(B) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
1806(k)(1)(B)) is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(2) Physical searches.--Section 305(k)(1)(B) of such Act
(50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage
or international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(c) Technical and Conforming Amendment.--Section 301(1) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1821(1)) is amended by inserting ``weapon of mass destruction
,'' after ``person,''.
SEC. 112. STATUTE OF LIMITATIONS.
(a) In General.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended by
adding at the end the following new subsection:
``(e) Statute of Limitations.--No person shall be
prosecuted, tried, or punished for any offense under this
section unless the indictment is found or the information is
instituted not later than 10 years after the commission of
the offense.''.
(b) Application.--The amendment made by subsection (a)
shall apply to any offense committed before the date of the
enactment of this Act if the statute of limitations
applicable to that offense has not run as of such date.
TITLE II--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
SEC. 201. STATUTORY DEFENSES.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by adding after title VII the
following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``SEC. 801. DEFINITIONS.
``In this title:
``(1) Assistance.--The term `assistance' means the
provision of, or the provision of access to, information
(including communication contents, communications records,
[[Page H1739]]
or other information relating to a customer or
communication), facilities, or another form of assistance.
``(2) Attorney general.--The term `Attorney General' has
the meaning given that term in section 101(g).
``(3) Contents.--The term `contents' has the meaning given
that term in section 101(n).
``(4) Covered civil action.--The term `covered civil
action' means a suit in Federal or State court against any
person for providing assistance to an element of the
intelligence community.
``(5) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
``(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A), (B),
(C), or (D); or
``(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
``(6) Intelligence community.--The term `intelligence
community' has the meaning given that term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).
``(7) Person.--The term `person' means--
``(A) an electronic communication service provider; or
``(B) a landlord, custodian, or other person who may be
authorized or required to furnish assistance pursuant to--
``(i) an order of the court established under section
103(a) directing such assistance;
``(ii) a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
or
``(iii) a directive under section 102(a)(4), 105B(e), as
added by section 2 of the Protect America Act of 2007 (Public
Law 110-55), or 703(h).
``(8) State.--The term `State' means any State, political
subdivision of a State, the Commonwealth of Puerto Rico, the
District of Columbia, and any territory or possession of the
United States, and includes any officer, public utility
commission, or other body authorized to regulate an
electronic communication service provider.
``SEC. 802. PROCEDURES FOR COVERED CIVIL ACTIONS.
``(a) Intervention by Government.-- In any covered civil
action, the court shall permit the Government to intervene.
Whether or not the Government intervenes in the civil action,
the Attorney General may submit any information in any form
the Attorney General determines is appropriate and the court
shall consider all such submissions.
``(b) Factual and Legal Determinations.--In any covered
civil action, any party may submit to the court evidence,
briefs, arguments, or other information on any matter with
respect to which a privilege based on state secrets is
asserted. The court shall review any such submission in
accordance with the procedures set forth in section 106(f)
and may, based on the review, make any appropriate
determination of fact or law. The court may, on motion of the
Attorney General, take any additional actions the court deems
necessary to protect classified information. The court may,
to the extent practicable and consistent with national
security, request that any party present briefs and arguments
on any legal question the court determines is raised by such
a submission even if that party does not have full access to
the submission. The court shall consider whether the
employment of a special master or an expert witness, or both,
would facilitate proceedings under this section.
``(c) Location of Review.--The court may conduct the review
in a location and facility specified by the Attorney General
as necessary to ensure security.
``(d) Removal.--A covered civil action that is brought in a
State court shall be deemed to arise under the Constitution
and laws of the United States and shall be removable under
section 1441 of title 28, United States Code.
``(e) Special Rule for Certain Cases.--For any covered
civil action alleging that a person provided assistance to an
element of the intelligence community pursuant to a request
or directive during the period from September 11, 2001
through January 17, 2007, the Attorney General shall provide
to the court any request or directive related to the
allegations under the procedures set forth in subsection (b).
``(f) Applicability.--This section shall apply to a civil
action pending on or filed after the date of the enactment of
this Act.''.
SEC. 202. TECHNICAL AMENDMENTS.
The table of contents in the first section of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``Sec. 801. Definitions
``Sec. 802. Procedures for covered civil actions.''.
TITLE III--COMMISSION ON WARRANTLESS ELECTRONIC SURVEILLANCE ACTIVITIES
SEC. 301. COMMISSION ON WARRANTLESS ELECTRONIC SURVEILLANCE
ACTIVITIES.
(a) Establishment of Commission.--There is established in
the legislative branch a commission to be known as the
``Commission on Warrantless Electronic Surveillance
Activities'' (in this section referred to as the
``Commission'').
(b) Duties of Commission.--
(1) In general.--The Commission shall--
(A) ascertain, evaluate, and report upon the facts and
circumstances relating to electronic surveillance activities
conducted without a warrant between September 11, 2001 and
January 17, 2007;
(B) evaluate the lawfulness of such activities;
(C) examine all programs and activities relating to
intelligence collection inside the United States or regarding
United States persons that were in effect or operation on
September 11, 2001, and all such programs and activities
undertaken since that date, including the legal framework or
justification for those activities; and
(D) report to the President and Congress the findings and
conclusions of the Commission and any recommendations the
Commission considers appropriate.
(2) Protection of national security.--The Commission shall
carry out the duties of the Commission under this section in
a manner consistent with the need to protect national
security.
(c) Composition of Commission.--
(1) Members.--The Commission shall be composed of 9
members, of whom--
(A) 5 members shall be appointed jointly by the majority
leader of the Senate and the Speaker of the House of
Representatives; and
(B) 4 members shall be appointed jointly by the minority
leader of the Senate and the minority leader of the House of
Representatives.
(2) Qualifications.--It is the sense of Congress that
individuals appointed to the Commission should be prominent
United States citizens with significant depth of experience
in national security, Constitutional law, and civil
liberties.
(3) Chair; vice chair.--
(A) Chair.--The Chair of the Commission shall be jointly
appointed by the majority leader of the Senate and the
Speaker of the House of Representatives from among the
members appointed under paragraph (1)(A).
(B) Vice chair.--The Vice Chair of the Commission shall be
jointly appointed by the minority leader of the Senate and
the minority leader of the House of Representatives from
among the members appointed under paragraph (1)(B).
(4) Deadline for appointment.--All members of the
Commission shall be appointed not later than 90 days after
the date of the enactment of this Act.
(5) Initial meeting.--The Commission shall hold its first
meeting and begin operations not later than 45 days after the
date on which a majority of its members have been appointed.
(6) Subsequent meetings.--After its initial meeting, the
Commission shall meet upon the call of the Chair.
(7) Quorum.--A majority of the members of the Commission
shall constitute a quorum, but a lesser number may hold
hearings.
(8) Vacancies.--Any vacancy in the Commission shall not
affect its powers and shall be filled in the same manner in
which the original appointment was made.
(d) Powers of Commission.--
(1) Hearings and evidence.--The Commission or, on the
authority of the Chair, any subcommittee or member thereof
may, for the purpose of carrying out this section, hold such
hearings and sit and act at such times and places, take such
testimony, receive such evidence, and administer such oaths
as the Commission, such designated subcommittee, or
designated member may determine advisable.
(2) Subpoenas.--
(A) Issuance.--
(i) In general.--The Commission may issue subpoenas
requiring the attendance and testimony of witnesses and the
production of any evidence relating to any matter that the
Commission is empowered to investigate under this section.
The attendance of witnesses and the production of evidence
may be required from any place within the United States at
any designated place of hearing within the United States.
(ii) Signature.--Subpoenas issued under this paragraph may
be issued under the signature of the Chair of the Commission,
the chair of any subcommittee created by a majority of the
Commission, or any member designated by a majority of the
Commission and may be served by any person designated by such
Chair, subcommittee chair, or member.
(B) Enforcement.--
(i) In general.--If a person refuses to obey a subpoena
issued under subparagraph (A), the Commission may apply to a
United States district court for an order requiring that
person to appear before the Commission to give testimony,
produce evidence, or both, relating to the matter under
investigation. The application may be made within the
judicial district where the hearing is conducted or where
that person is found, resides, or transacts business. Any
failure to obey the order of the court may be punished by the
court as civil contempt.
[[Page H1740]]
(ii) Jurisdiction.--In the case of contumacy or failure to
obey a subpoena issued under subparagraph (A), the United
States district court for the judicial district in which the
subpoenaed person resides, is served, or may be found, or
where the subpoena is returnable, may issue an order
requiring such person to appear at any designated place to
testify or to produce documentary or other evidence. Any
failure to obey the order of the court may be punished by the
court as a contempt of that court.
(iii) Additional enforcement.--In the case of the failure
of a witness to comply with any subpoena or to testify when
summoned under authority of this paragraph, the Commission,
by majority vote, may certify a statement of fact attesting
to such failure to the appropriate United States attorney,
who shall bring the matter before the grand jury for its
action, under the same statutory authority and procedures as
if the United States attorney had received a certification
under sections 102 through 104 of the Revised Statutes of the
United States (2 U.S.C. 192 through 194).
(3) Contracting.--The Commission may, to such extent and in
such amounts as are provided in appropriations Acts, enter
into contracts to enable the Commission to discharge its
duties under this section.
(4) Information from federal agencies.--
(A) In general.--The Commission is authorized to secure
directly from any executive department, bureau, agency,
board, commission, office, independent establishment, or
instrumentality of the Government documents, information,
suggestions, estimates, and statistics for the purposes of
this section. Each department, bureau, agency, board,
commission, office, independent establishment, or
instrumentality shall furnish such documents, information,
suggestions, estimates, and statistics directly to the
Commission upon request made by the Chair, the chair of any
subcommittee created by a majority of the Commission, or any
member designated by a majority of the Commission.
(B) Receipt, handling, storage, and dissemination.--
Information shall only be received, handled, stored, and
disseminated by members of the Commission and its staff in a
manner consistent with all applicable statutes, regulations,
and Executive orders.
(5) Assistance from federal agencies.--
(A) General services administration.--The Administrator of
General Services shall provide to the Commission on a
reimbursable basis administrative support and other services
for the performance of the Commission's functions.
(B) Other departments and agencies.--In addition to the
assistance prescribed in subparagraph (A), departments and
agencies of the United States may provide to the Commission
such services, funds, facilities, staff, and other support
services as they may determine advisable and as may be
authorized by law.
(6) Gifts.--The Commission may accept, use, and dispose of
gifts or donations of services or property.
(7) Postal services.--The Commission may use the United
States mails in the same manner and under the same conditions
as departments and agencies of the United States.
(e) Staff of Commission.--
(1) In general.--
(A) Appointment and compensation.--The Chair, in
consultation with Vice Chair and in accordance with rules
agreed upon by the Commission, may appoint and fix the
compensation of an executive director and such other
personnel as may be necessary to enable the Commission to
carry out its functions, without regard to the provisions of
title 5, United States Code, governing appointments in the
competitive service, and without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of such title
relating to classification and General Schedule pay rates,
except that no rate of pay fixed under this paragraph may
exceed the equivalent of that payable for a position at level
V of the Executive Schedule under section 5316 of title 5,
United States Code.
(B) Personnel as federal employees.--
(i) In general.--The executive director and any personnel
of the Commission who are employees shall be employees under
section 2105 of title 5, United States Code, for purposes of
chapters 63, 81, 83, 84, 85, 87, 89, 89A, 89B, and 90 of that
title.
(ii) Members of commission.--Clause (i) shall not be
construed to apply to members of the Commission.
(2) Detailees.--A Federal Government employee may be
detailed to the Commission without reimbursement from the
Commission, and such detailee shall retain the rights,
status, and privileges of his or her regular employment
without interruption.
(3) Consultant services.--The Commission is authorized to
procure the services of experts and consultants in accordance
with section 3109 of title 5, United States Code, at rates
not to exceed the daily rate paid a person occupying a
position at level IV of the Executive Schedule under section
5315 of title 5, United States Code.
(f) Security Clearances for Commission Members and Staff.--
(1) Expeditious provision of clearances.--The appropriate
Federal agencies or departments shall cooperate with the
Commission in expeditiously providing to the Commission
members and staff appropriate security clearances to the
extent possible pursuant to existing procedures and
requirements, except that no person shall be provided with
access to classified information under this section without
the appropriate security clearances.
(2) Access to classified information.--All members of the
Commission and commission staff, as authorized by the Chair
or the designee of the Chair, who have obtained appropriate
security clearances, shall have access to classified
information related to the surveillance activities within the
scope of the examination of the Commission and any other
related classified information that the members of the
Commission determine relevant to carrying out the duties of
the Commission under this section.
(3) Facilities and resources.--The Director of National
Intelligence shall provide the Commission with appropriate
space and technical facilities approved by the Commission.
(g) Compensation and Travel Expenses.--
(1) Compensation.--Each member of the Commission may be
compensated at a rate not to exceed the daily equivalent of
the annual rate of basic pay in effect for a position at
level IV of the Executive Schedule under section 5315 of
title 5, United States Code, for each day during which that
member is engaged in the actual performance of the duties of
the Commission.
(2) Travel expenses.--While away from their homes or
regular places of business in the performance of services for
the Commission, members of the Commission shall be allowed
travel expenses, including per diem in lieu of subsistence,
in the same manner as persons employed intermittently in the
Government service are allowed expenses under section 5703(b)
of title 5, United States Code.
(h) Nonapplicability of Federal Advisory Committee Act.--
(1) In general.--The Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to the Commission.
(2) Public meetings.--The Commission shall hold public
hearings and meetings to the extent appropriate.
(3) Public hearings.--Any public hearings of the Commission
shall be conducted in a manner consistent with the protection
of information provided to or developed for or by the
Commission as required by any applicable statute, regulation,
or Executive order.
(i) Reports and Recommendations of Commission.--
(1) Interim reports.--The Commission may submit to the
President and Congress interim reports containing such
findings, conclusions, and recommendations for corrective
measures as have been agreed to by a majority of Commission
members.
(2) Final report.--Not later than one year after the date
of its first meeting, the Commission, in consultation with
appropriate representatives of the intelligence community,
shall submit to the President and Congress a final report
containing such information, analysis, findings, conclusions,
and recommendations as have been agreed to by a majority of
Commission members.
(3) Form.--The reports submitted under paragraphs (1) and
(2) shall be submitted in unclassified form, but may include
a classified annex.
(4) Recommendations for declassification.--The Commission
may make recommendations to the appropriate department or
agency of the Federal Government regarding the
declassification of documents or portions of documents.
(j) Termination.--
(1) In general.--The Commission, and all the authorities of
this section, shall terminate 60 days after the date on which
the final report is submitted under subsection (i)(2).
(2) Administrative activities before termination.--The
Commission may use the 60-day period referred to in paragraph
(1) for the purpose of concluding its activities, including
providing testimony to committees of Congress concerning its
report and disseminating the final report.
(k) Definitions.--In this section:
(1) Intelligence community.--The term ``intelligence
community'' has the meaning given the term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).
(2) United states person.--The term ``United States
person'' has the meaning given the term in section 101(i) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(i)).
(l) Funding.--
(1) In general.--There are authorized to be appropriated
such sums as may be necessary to carry out the activities of
the Commission under this section.
(2) Duration of availability.--Amounts made available to
the Commission under paragraph (1) shall remain available
until the termination of the Commission.
TITLE IV--OTHER PROVISIONS
SEC. 401. SEVERABILITY.
If any provision of this Act, any amendment made by this
Act, or the application thereof to any person or
circumstances is held invalid, the validity of the remainder
of the Act, any such amendments, and of the application of
such provisions to other persons and circumstances shall not
be affected thereby.
SEC. 402. EFFECTIVE DATE.
Except as provided in section 404, the amendments made by
this Act shall take effect on the date of the enactment of
this Act.
SEC. 403. REPEALS.
(a) Repeal of Protect America Act of 2007 Provisions.--
(1) Amendments to fisa.--
(A) In general.--Except as provided in section 404,
sections 105A, 105B, and 105C of the
[[Page H1741]]
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805a, 1805b, and 1805c) are repealed.
(B) Technical and conforming amendments.--
(i) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 nt) is amended by striking the items relating
to sections 105A, 105B, and 105C.
(ii) Conforming amendments.--Except as provided in section
404, section 103(e) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803(e)) is amended--
(I) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702(h)(4)''; and
(II) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 702(h)(4)''.
(2) Reporting requirements.--Except as provided in section
404, section 4 of the Protect America Act of 2007 (Public Law
110-55; 121 Stat. 555) is repealed.
(3) Transition procedures.--Except as provided in section
404, subsection (b) of section 6 of the Protect America Act
of 2007 (Public Law 110-55; 121 Stat. 556) is repealed.
(b) FISA Amendments Act of 2008.--
(1) In general.--Except as provided in section 404,
effective December 31, 2009, title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by section
101(a), is repealed.
(2) Technical and conforming amendments.--Effective
December 31, 2009--
(A) the table of contents in the first section of such Act
(50 U.S.C. 1801 nt) is amended by striking the items related
to title VII;
(B) except as provided in section 404, section 601(a)(1) of
such Act (50 U.S.C. 1871(a)(1)) is amended to read as such
section read on the day before the date of the enactment of
this Act; and
(C) except as provided in section 404, section
2511(2)(a)(ii)(A) of title 18, United States Code, is amended
by striking ``or a court order pursuant to section 704 of the
Foreign Intelligence Surveillance Act of 1978''.
SEC. 404. TRANSITION PROCEDURES.
(a) Transition Procedures for Protect America Act of 2007
Provisions.--
(1) Continued effect of orders, authorizations,
directives.--Notwithstanding any other provision of law, any
order, authorization, or directive issued or made pursuant to
section 105B of the Foreign Intelligence Surveillance Act of
1978, as added by section 2 of the Protect America Act of
2007 (Public Law 110-55; 121 Stat. 552), shall continue in
effect until the expiration of such order, authorization, or
directive.
(2) Applicability of protect america act of 2007 to
continued orders, authorizations, directives.--
Notwithstanding any other provision of this Act or of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.)--
(A) subject to paragraph (3), section 105A of such Act, as
added by section 2 of the Protect America Act of 2007 (Public
Law 110-55; 121 Stat. 552), shall continue to apply to any
acquisition conducted pursuant to an order, authorization, or
directive referred to in paragraph (1); and
(B) sections 105B and 105C of such Act (as so added) shall
continue to apply with respect to an order, authorization, or
directive referred to in paragraph (1) until the expiration
of such order, authorization, or directive.
(3) Use of information.--Information acquired from an
acquisition conducted pursuant to an order, authorization, or
directive referred to in paragraph (1) shall be deemed to be
information acquired from an electronic surveillance pursuant
to title I of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) for purposes of section 106 of
such Act (50 U.S.C. 1806).
(4) Protection from liability.--Subsection (l) of section
105B of the Foreign Intelligence Surveillance Act of 1978, as
added by section 2 of the Protect America Act of 2007, shall
continue to apply with respect to any directives issued
pursuant to such section 105B.
(5) Jurisdiction of foreign intelligence surveillance
court.--Notwithstanding any other provision of this Act or of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801 et seq.), section 103(e), as amended by section 5(a) of
the Protect America Act of 2007 (Public Law 110-55; 121 Stat.
556), shall continue to apply with respect to a directive
issued pursuant to section 105B of the Foreign Intelligence
Surveillance Act of 1978, as added by section 2 of the
Protect America Act of 2007, until the expiration of all
orders, authorizations, and directives issued or made
pursuant to such section.
(6) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any other
provision of this Act, the Protect America Act of 2007
(Public Law 110-55), or the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.), section 4 of the
Protect America Act of 2007 shall continue to apply until the
date that the certification described in subparagraph (B) is
submitted.
(B) Certification.--The certification described in this
subparagraph is a certification--
(i) made by the Attorney General;
(ii) submitted as part of a semi-annual report required by
section 4 of the Protect America Act of 2007;
(iii) that states that there will be no further
acquisitions carried out under section 105B of the Foreign
Intelligence Surveillance Act of 1978, as added by section 2
of the Protect America Act of 2007, after the date of such
certification; and
(iv) that states that the information required to be
included under such section 4 relating to any acquisition
conducted under such section 105B has been included in a
semi-annual report required by such section 4.
(7) Effective date.--Paragraphs (1) through (6) shall take
effect as if enacted on August 5, 2007.
(b) Transition Procedures for FISA Amendments Act of 2008
Provisions.--
(1) Orders in effect on december 31, 2009.--Notwithstanding
any other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), any order, authorization, or directive issued or made
under title VII of the Foreign Intelligence Surveillance Act
of 1978, as amended by section 101(a), shall continue in
effect until the date of the expiration of such order,
authorization, or directive.
(2) Applicability of title vii of fisa to continued orders,
authorizations, directives.--Notwithstanding any other
provision of this Act or of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), with
respect to any order, authorization, or directive referred to
in paragraph (1), title VII of such Act, as amended by
section 101(a), shall continue to apply until the expiration
of such order, authorization, or directive.
(3) Challenge of directives; protection from liability; use
of information.--Notwithstanding any other provision of this
Act or of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.)--
(A) section 103(e) of such Act, as amended by section 113,
shall continue to apply with respect to any directive issued
pursuant to section 702(h) of such Act, as added by section
101(a);
(B) section 702(h)(3) of such Act (as so added) shall
continue to apply with respect to any directive issued
pursuant to section 702(h) of such Act (as so added);
(C) section 703(e) of such Act (as so added) shall continue
to apply with respect to an order or request for emergency
assistance under that section;
(D) section 706 of such Act (as so added) shall continue to
apply to an acquisition conducted under section 702 or 703 of
such Act (as so added); and
(E) section 2511(2)(a)(ii)(A) of title 18, United States
Code, as amended by section 101(c)(1), shall continue to
apply to an order issued pursuant to section 704 of the
Foreign Intelligence Surveillance Act of 1978, as added by
section 101(a).
(4) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any other
provision of this Act or of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), section
601(a) of such Act (50 U.S.C. 1871(a)), as amended by section
101(c)(2), and sections 702(l) and 707 of such Act, as added
by section 101(a), shall continue to apply until the date
that the certification described in subparagraph (B) is
submitted.
(B) Certification.--The certification described in this
subparagraph is a certification--
(i) made by the Attorney General;
(ii) submitted to the Select Committee on Intelligence of
the Senate, the Permanent Select Committee on Intelligence of
the House of Representatives, and the Committees on the
Judiciary of the Senate and the House of Representatives;
(iii) that states that there will be no further
acquisitions carried out under title VII of the Foreign
Intelligence Surveillance Act of 1978, as amended by section
101(a), after the date of such certification; and
(iv) that states that the information required to be
included in a review, assessment, or report under section 601
of such Act, as amended by section 101(c), or section 702(l)
or 707 of such Act, as added by section 101(a), relating to
any acquisition conducted under title VII of such Act, as
amended by section 101(a), has been included in a review,
assessment, or report under such section 601, 702(l), or 707.
(5) Transition procedures concerning the targeting of
united states persons overseas.--Any authorization in effect
on the date of enactment of this Act under section 2.5 of
Executive Order 12333 to intentionally target a United States
person reasonably believed to be located outside the United
States shall continue in effect, and shall constitute a
sufficient basis for conducting such an acquisition targeting
a United States person located outside the United States
until the earlier of--
(A) the date that such authorization expires; or
(B) the date that is 90 days after the date of the
enactment of this Act.
SEC. 405. NO RIGHTS UNDER THE FISA AMENDMENTS ACT OF 2008 FOR
UNDOCUMENTED ALIENS.
This Act and the amendments made by this Act shall not be
construed to prohibit surveillance of, or grant any rights
to, an alien not permitted to be in or remain in the United
States.
SEC. 406. SURVEILLANCE TO PROTECT THE UNITED STATES.
This Act and the amendments made by this Act shall not be
construed to prohibit the intelligence community (as defined
in section 3(4) of the National Security Act of 1947 (50
U.S.C. 401a(4))) from conducting lawful surveillance that is
necessary to--
[[Page H1742]]
(1) prevent Osama Bin Laden, al Qaeda, or any other
terrorist or terrorist organization from attacking the United
States, any United States person, or any ally of the United
States;
(2) ensure the safety and security of members of the United
States Armed Forces or any other officer or employee of the
Federal Government involved in protecting the national
security of the United States; or
(3) protect the United States, any United States person, or
any ally of the United States from threats posed by weapons
of mass destruction or other threats to national security.
The SPEAKER pro tempore. Pursuant to House Resolution 1041, the
motion shall be debatable for 1 hour, with 40 minutes equally divided
and controlled by the chairman and ranking minority member of the
Committee on the Judiciary and 20 minutes equally divided and
controlled by the chairman and ranking minority member of the Permanent
Select Committee on Intelligence.
The gentleman from Michigan (Mr. Conyers) and the gentleman from
Texas (Mr. Smith) each will control 20 minutes, and the gentleman from
Texas (Mr. Reyes) and the gentleman from Michigan (Mr. Hoekstra) each
will control 10 minutes.
The Chair recognizes the gentleman from Michigan.
General Leave
Mr. CONYERS. Mr. 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. Mr. Speaker, I yield myself such time as I may consume.
Ladies and gentlemen of the House, we finally come to the point in
time where we consider the Foreign Intelligence Surveillance Act
amendments, and I am delighted to bring this measure to the floor.
I begin by observing that there are few rights that are more
fundamental to our democracy than the right to have protections against
unreasonable search and seizure, and there are few responsibilities
that are more important than the government's protecting us from
foreign threats. I submit that the measure before us does both of those
and regards them as the two most important acts that we can pursue as
responsible Members of the Congress. That conflict or tension goes to
the very core of who we are as a Nation.
Now, for more than 30 years, we have relied on the Foreign
Intelligence Surveillance Act to strike the appropriate balance between
the government's need to protect our rights from foreign attack and our
citizens' right to be free from unreasonable searches and seizures and
to have freedom of speech. The heart of that bargain was that the
government could indeed use its awesome power of surveillance but only
through independent court review. That's FISA since 1978.
Now, a few years ago, the administration unilaterally chose to engage
in warrantless surveillance of American citizens without court review.
And last August, when this scheme appeared to be breaking down, this
administration pushed through a law that it had caused to be drafted
that essentially transferred the power of independent review from the
courts to the Attorney General of the United States. Today, we will be
voting on legislation to restore that proper balance.
And so we present to you an uncomplicated consideration of a measure
that has three titles. The first allows the government to obtain a
single court order to approve surveillance against all members of any
known terrorist group. It includes important safeguards to make sure
that this power is not used to target innocent Americans.
{time} 1215
The chairman of the Intelligence Committee has a lot more to say
about that.
The second title deals with the difficult issue of how we make sure
that those telecom carriers who assisted the government in the
aftermath of the September 11 tragedy are not placed in a position
where they cannot defend themselves in court.
And then, finally, the last title provides an accounting of the
highly controversial warrantless surveillance program. The
administration tells us they have nothing to hide and the program was
lawful in their program or its implementation. If that is the case,
they should have nothing to fear from this blue ribbon commission that
will be created by the enactment of the provision before us.
Now, we learned only yesterday that the Federal Bureau of
Investigation was continuing to misuse the authorities that we granted
it under the PATRIOT Act 6 years ago to unlawfully obtain information
about law-abiding Americans. Just yesterday. We learned 4 days ago that
the National Security Agency was using its massive power to create a
nationwide database of American citizens. Four days ago.
And so that's why I believe it important that we include the civil
liberties safeguards set forth in the legislation today. We have been
working very closely with the American Civil Liberties Union in that
regard, and we have a half dozen other organizations that have fully
endorsed the bill.
The legislation before us gives the administration and the agencies
every tool they need to protect our Nation against terrorism, while at
the same time protecting our own citizens' civil rights and liberties.
I urge that we carefully examine the proposition before us.
And I will reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, I yield myself such time as I may
consume.
This debate today is not about Republican or Democratic arguments. It
is not about right or left ideology. It is simply about protecting our
country, and it is about protecting American lives. This might be a
good time to recall the story of the American soldiers who were killed
in Iraq last May. When the U.S. military discovered that the soldiers
had been kidnapped by terrorists, they launched a full scale search and
rescue mission.
In the early hours of the operation, U.S. intelligence officials on
the ground discovered a lead that required immediate electronic
surveillance of telephone conversations. But the terrorist loophole,
which requires a court order from Washington before conducting
surveillance on a foreign target, prevented our intelligence officials
from gathering information from almost 10 hours.
The body of one of the soldiers was later found in the Euphrates
River. The terrorists claim to have executed the other two soldiers.
We will never know if that information could have saved the lives of
our soldiers. But we do know that the terrorist loophole tied our hands
then and perhaps is costing us lives now.
Prior to enactment of the Protect America Act, the Director of
National Intelligence, Admiral McConnell, warned Congress that our
intelligence community was missing two-thirds of all overseas terrorist
communications. Three weeks ago, the Protect America Act expired, and
our intelligence community lost the tools they need to monitor
terrorists overseas and protect Americans here at home. We may never
recover the foreign intelligence lost because of Congress's inaction.
This intelligence might have given us information about terrorist
plots or foreign espionage. I hope these missed opportunities will not
lead to a terrorist attack in the United States or in other countries
that could have been prevented.
We are now 27 days late and much intelligence short because of the
Democratic leadership's refusal to consider the bipartisan Senate bill.
If they had brought it to the floor 3 weeks ago, it would have passed
easily; and America would be safer today. But rather than modernize the
Foreign Intelligence Surveillance Act, the Democrat majority's bill
actually weakens it.
First, the Democrats' bill requires a court order before the
government can begin surveillance of a foreign terrorist overseas. FISA
has never required a court order to target foreigners overseas. As we
saw in May, this causes significant delays in gathering foreign
intelligence, placing Americans at risk.
Second, the Democrats' bill denies giving immunity to
telecommunications providers who assisted the government following the
terrorist attacks of September 11, 2001. The past
[[Page H1743]]
and future cooperation of these companies is essential to our national
security.
Ninety-eight percent of America's communications technology is owned
by private sector companies. We cannot conduct foreign surveillance
without them. But if we continue to subject them to billion-dollar
lawsuits, we risk losing their cooperation in the future. In fact, this
bill is so flawed that the President has promised to veto it. Even
more, Senator Reid, the Democratic majority leader, acknowledges that
this legislation will never pass in the Senate.
Congress can and must do better than this bill. Our liberties, our
security, and the future of our Nation depend on it.
I urge my colleagues to oppose this fatally flawed piece of
legislation, and I ask the Democratic majority to bring the bipartisan
Senate bill to the House floor for a vote.
Mr. Speaker, I will reserve the balance of my time.
Mr. REYES. Mr. Speaker, I yield myself such time as I may consume.
I am proud to rise today in support of H.R. 3773, the FISA Amendments
Act of 2008. This bill arms our intelligence community with powerful
new tools to track and identify terrorist targets outside the United
States. At the same time, it restores essential constitutional
protections to Americans that were sharply eroded when the President
signed the law known as the Protect America Act last August.
We have put the security of Americans first and foremost, with close
attention to their constitutional rights. We have also included
provisions to allow companies that acted lawfully to make that argument
to the courts. If they did nothing wrong, as they have said, then they
will be immune from any lawsuit.
Title I of this bill ensures that the government does not need to get
an individualized warrant when it targets communications of targets
overseas, the so-called foreign-to-foreign. This is the central problem
that the administration cited with FISA in August, and we have fixed
it.
Let me be clear, Mr. Speaker, this bill does not require individual
warrants for foreign targets before surveillance can begin. It does
require the FISA Court to ensure that the procedures that the
government uses to identify foreign targets are designed to protect the
rights of Americans. This independent front-end review is necessary to
ensure that the rights of Americans are being properly protected before
any violations occur. However, we also provide a generous emergency
provision, at least 30 days, so that the surveillance can begin in an
emergency before the government has to go get approval from a court.
In title II, we address the issue of the lawsuits filed against the
telecom companies who allegedly participated in the President's
warrantless surveillance program. This bill allows the courts to
carefully safeguard classified information under well-established
protocols. This information that the companies may wish to use to
defend themselves now gives them that opportunity. This will also allow
the companies to defend themselves in a secure effort. If they are
innocent, they will face no damage. If they broke the law, they will be
held to account. But this issue will be decided by a court, the
American way.
Title III of this bill establishes a bipartisan national commission
to investigate warrantless tapping. I believe that the Nation is deeply
concerned about what has gone on for the last 7 years. And I also want
to restore some of the trust in the intelligence community. Title III
is designed to do just that, by bringing these things into light in a
careful and bipartisan manner. The American people deserve to know the
truth about what has happened. This provision makes that happen.
This is an important step forward, Mr. Speaker. So I urge my
colleagues to vote ``yes.''
I reserve the balance of my time.
Mr. SMITH of Texas. Mr. Speaker, not enough attention is given to
what the Director of National Intelligence and the Attorney General
think about this piece of legislation; and in order to serve that
purpose, I yield 2 minutes to the gentleman from Florida (Mr. Feeney),
who is also a member of the Judiciary Committee.
Mr. FEENEY. Mr. Speaker, there couldn't be a more critical discussion
to have this morning before we cast this critical vote. The chairman of
the Intelligence Committee, I must say, I respectfully disagree with in
terms of the devastating consequences his proposal would have. The
Attorney General of the United States and the Director of National
Intelligence have looked at this proposal, and here is what they have
said about the majority's proposal: ``Requiring prior court approval to
gather foreign intelligence from foreign targets located overseas: the
reason Congress did not include such a requirement when it passed the
original FISA statute and with good reason, these foreign targets have
no right to any court review of such surveillance under our
Constitution. We know from experience requiring prior court approval is
a formula for delay. Thus, this framework would impede vital foreign
intelligence collection and put the Nation at unnecessary and greater
risk.''
Ladies and gentlemen, assume that you are the head of a corporation
or a business in America after America is attacked, thousands of lives
and several cities attacked; assuming that there is imminent threats to
dozens of other cities and millions of others; assuming the Attorney
General or the President contacts you and say that you have access to
information that will save millions of Americans. What would you do? I
hope you would cooperate.
That is what many companies did, and now they are subject, in San
Francisco, to over 50 lawsuits for tens of billions of dollars. The
question is whether we ought to protect patriotic companies that for
several hundred years have had a privilege to cooperate with
government. It's true that technically they may have immunity. But here
is what you haven't acknowledged: the immunity is useless to them
because they cannot assert it. It would be a violation of Federal law.
Mr. Speaker, I will submit for the Record a letter from the general
counsel of AT&T, the victim of one of these trial lawyer suits to the
tune of tens of billions of dollars as he talks about the state secrets
doctrine that prevents them from protecting themselves in a court of
law, as he talks about the dilemma that they face in the future going
forward if they want to help Americans defend themselves.
Mr. CONYERS. Mr. Speaker, I would like to recognize Jim Marshall of
Georgia, who has worked with us on this month in and month out, for
1\1/2\ minutes.
Mr. MARSHALL. I thank you, Mr. Chairman.
Mr. Speaker, may I engage the chairman of the Judiciary Committee and
the chairman of the Intelligence Committee for purposes of a colloquy.
Mr. CONYERS. Of course.
Mr. REYES. I would be happy to oblige my good friend from Georgia.
Mr. MARSHALL. I would like to clarify some elements of the process to
be established under title II of the bill we debate today. Title II of
the bill would assist the telecommunications carriers in dealing with
the civil lawsuits they currently face by permitting them to use
classified information in defense of claims against them.
I want to be clear that any review of classified information would
only take place in the judge's chambers without the plaintiffs or their
representatives present. The bill requires the judge to follow the
procedures in section 106(f) of FISA.
Am I correct in my understanding that section 106(f) of FISA requires
that the review of any classified information must take place in camera
and ex parte and that such classified information must remain secret,
that it is not to be disclosed to the plaintiffs, their representatives
or any others except those authorized to receive such information by
virtue of their security clearances?
Mr. CONYERS. Mr. Marshall, I couldn't put it any more appropriately
myself.
Mr. REYES. That is correct.
Mr. MARSHALL. I would also like to clarify what sort of trial would
be involved in this process. Am I correct in my understanding that
under the bill being debated, if this judicial process in any way
involves classified information, the classified portion of the trial
[[Page H1744]]
would be conducted by a judge without a jury; the judge would privately
inspect, but not reveal, classified information relevant to the case;
and that the process would be limited to the in camera ex parte
procedures already outlined in FISA?
Mr. REYES. That is correct.
Mr. CONYERS. I agree, as well.
{time} 1230
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from Iowa (Mr. King), a member of the Judiciary Committee.
Mr. KING of Iowa. I thank the ranking member for yielding.
Mr. Speaker, you know, we are here not really talking about the issue
of rights. I haven't found anyone yet who has had their rights trampled
on, their rights to be free from unreasonable search and seizure, as
the chairman announced from the beginning.
As I look at what is going on here in policy, there is a situation
going on right now in New York, in that area, where you have
contractors that answered the call and the crisis of 9/11, and they are
under lawsuits by the thousands, and I think we are in pretty much
unanimous agreement that we should indemnify them for answering the
call to protect America. I don't understand the difference between why
we would not want to indemnify an information company that answered the
call to protect America.
To me, those are the closest two comparisons that we can get. If we
protect contractors when they went to that smoking hole in that war
zone, why won't we protect telecommunication companies when they
stepped up on good faith and believed that they were legally operating
under the law?
Where is that first citizen that has had their privacy violated? I
haven't found one yet. None have been brought forward. I sat in hours
of classified briefings. No one even uttered the name of a person who
had their rights violated.
The chairman talked about restoring the proper balance. Well, here is
the thing that sits behind this restoring the proper balance. This is
from page 8 of the AT&T letter. ``The legal paradox has implications
not just for the carrier defendants, but for the Nation's security in
general. It suggests to private companies that even good-faith
cooperation is apparently authorized, and lawful intelligence activity
can expose them to serious legal and business risk. This creates
incentives to resist cooperation.''
That sets up a scenario where we are saying to companies, cooperate
with us, but you might have to face, and will face, billions and
billions of dollars of lawsuits, two score more of lawsuits, two dozen
or more aggregated under a single court, Ninth Circuit, San Francisco,
and they are watching their share values go down and watching their
opportunities diminish around the world. And then we put them in the
face of the paradox, what do you do if there is another attack on
America?
These scales of justice are now out of balance because the trial
lawyers have put this thing out of balance, and the political pressure
and the risk to the American people of the security of being attacked
again are what is weighing on the other side. When the fear of attack
gets greater and when the political benefit becomes that point, then we
will offset the trial lawyers and we will get a bill.
Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from New
York (Mr. Nadler), a coauthor of the bill before us today and the
chairman of the Constitution Committee.
Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, I rise in support of this carefully crafted legislation
which gives our intelligence agencies all the tools they say they need
to protect our country while protecting our fundamental civil
liberties.
In the last few weeks, we have heard countless assertions from our
colleagues on the other side that are false and misleading. They claim
that we allowed the Protect America Act to expire, when it was the
Republicans who blocked attempts to extend that bill temporarily, and
they continue to claim that retroactive immunity for the telecom
companies is necessary for the security of the country.
The telecom companies aided the administration's surveillance
program. Some people, American citizens, believe their constitutional
rights were violated and brought a lawsuit against the government and
telecom companies.
There are two narratives here. One is that these companies
patriotically aided the administration to protect Americans from
terrorists. The other is that they conspired with a lawless
administration to violate the constitutional rights of Americans. Which
of these narratives is right is for a court to decide. It is not the
role of Congress to decide legal cases between private parties. That is
why we have courts.
We had told the telecom companies they would not be subject to
lawsuits for doing their duty. But whether they were doing their duty
or abusing the rights of Americans is precisely the issue.
In any event, the existing law already provides absolute immunity if
their help was requested and if they were given a statement by the
Attorney General or various other government officials stating that the
requested help did not require a warrant or court order and would not
break the law. They have immunity. Whether those statements are true or
not, they can rely absolutely on the government's assertions.
So why do they think they need retroactive immunity? Because of the
administration's sweeping assertion of the State secrets doctrine, will
has prevented the companies from claiming their immunity.
This bill allows the telecom companies in secret in court to present
the evidence for their immunity and to get their immunity, if they
obeyed the law. And I remind that obeying the law means simply
obtaining a statement from the government that the company's help is
needed and that the requested help does not require a court order or
violated the law. A company that assisted in spying on its customers
without getting that simple assurance from the government does not
deserve immunity. And even if we voted retroactive immunity, they would
still have to prove that immunity for what they do next week in the
same way, and they would have the same problem.
So, by solving the State secrets problem, we give the companies the
immunity they need, if they need it, and if they obeyed the law. This
still gives our intelligence agencies what they need. I urge its
adoption.
Mr. Speaker, I rise in strong support of H.R. 3733, the FISA
Amendments Act. This carefully crafted legislation gives our
intelligence agencies all the tools they say they need to protect our
country, while protecting our fundamental civil liberties.
Mr. Speaker, let us be clear about what this legislation does not do.
It does not require individual warrants for the targeting of foreign
terrorists located outside the United States. For three decades, that
has been the law, and it will still be the law under this bill. There
is no dispute about this.
The bill starts with the recognition that the intelligence community
needs to surveil all members of a terrorist group--once that group is
identified. Any suggestion that it requires individualized warrants to
intercept communications of terrorists overseas is wrong.
The bill maintains the traditional requirement of a warrant when our
intelligence agencies seek to conduct surveillance on Americans. And
because some foreign surveillance may record conversations with
Americans, the bill requires that, when the Government proposes to
undertake surveillance of a foreign group or entity, it must first
apply to the FISA court, except that, in an emergency, the surveillance
can begin immediately, and the court can consider the surveillance
procedures later.
In both this bill and the Senate bill, the government must inform the
court of the procedures it will use to ensure that it is targeting only
foreigners overseas and how it will ``minimize'' domestic information
it might inadvertently pick up. The only real difference is that the
Senate bill lets them listen first, then go to the court within 5 days.
This bill requires that they go to the FISA Court first. But in an
emergency, we give them 7 days to listen before they go to the court.
So will someone please tell me how this minor difference between the
bills somehow gives rights to terrorist?
There is one thing that this bill does not do, and this great body
must not do--provide blanket, retroactive immunity to the
telecommunication companies that assisted in the President's
warrantless wiretapping program. Such a move would fly in the face of
our notions of justice.
Mr. Speaker, in the last few weeks, we have heard countless
assertions from our colleagues on the other side that are false and
[[Page H1745]]
misleading. They claim that we allowed the Protect America Act to
expire--when it was the Republicans who blocked attempts to extend that
legislation temporarily. And they continue to claim that retroactive
immunity for the telecom companies is necessary for the security of the
country. But they have failed to provide any evidence for that claim.
The telecom companies aided the Administration's surveillance
program. Some people--American citizens--believe their constitutional
rights were violated, and brought suit against the government and the
telecom companies. There are two narratives here. One is that the
telecom companies patriotically aided the Administration in protecting
Americans from terrorists. The other is that the telecom companies
conspired with a lawless Administration to violate the Constitutional
rights of Americans. Which of these narratives is correct is for a
court to decide.
It is not the role of Congress to decide legal cases between private
parties. That is why we have courts. If the claims are not meritorious,
the courts will throw them out. But if the claims do have merit, we
have no right to dismiss them without even reviewing the evidence.
We are told that the telecom companies should not be subject to
lawsuits for doing their duty. But whether they were doing their duty,
or abusing the rights of Americans, is precisely the issue. And that is
a legal issue for the courts to decide.
In any event, the existing law, in a wise balance of national
security and constitutional rights that this bill does not change,
already provides absolute immunity to the telecom companies if their
help was requested, and if they were given a statement by the Attorney
General, or by various other government officials, stating that the
requested help did not require a warrant or court order and would not
break the law. They have immunity whether those statements were true or
not. They can rely absolutely on the government's assertions.
So why do they think they need retroactive immunity? Because of the
Administration's sweeping assertion of the ``state secrets'' doctrine,
which has prevented the companies from claiming their immunity.
Title II of this bill will allow the telecoms to show the courts, in
a secure setting, if they were obeying the law or if they weren't. It
will allow the telecom companies to assert their immunity in court, and
to present the relevant documents and evidence to the court in a secret
session that protects any ``state secrets.'' The courts can then judge
whether the telecom company obeyed the law--in which case it has
complete immunity--or whether it did not. And, I remind you, that
``obeying the law'' means simply obtaining a statement from the
government that the company's help is needed, and that the requested
help does not require a court order or violate the law. A company that
assisted in spying on its customers without getting that simple
assurance does not deserve immunity.
Mr. Speaker, this bill gives our intelligence agencies what they say
they need. But it also demands that their extraordinary powers be used
properly, and that they follow our laws and our Constitution. This bill
will help limit this Administration's disregard for the rule of law. It
is a carefully crafted measure, and deserves the support of every
member in this body.
Mr. SMITH of Texas. I yield 2 minutes to the gentleman from Indiana
(Mr. Pence), a member of the Judiciary Committee and the Foreign
Affairs Committee.
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. I thank the gentleman for yielding.
Mr. Speaker, I rise in opposition to the FISA Amendments Act of 2008.
America is at war. We have to do all we can to protect ourselves from
those who seek to do us and our communities and our families harm. But
for the past few weeks, we have unilaterally disarmed, because this
House has failed to pass an acceptable long-term extension of the
Foreign Intelligence Surveillance Act, and it will fail again today.
The United States Senate passed a workable bipartisan compromise by a
vote of 68-29 that extended FISA for nearly 6 years. The Senate bill
provided necessary immunity to communication providers who aided the
government after 9/11, and they are now facing numerous frivolous
lawsuits as a result. It also closed a massive loophole in our foreign
intelligence surveillance laws that prevents us from listening to
terrorists in one foreign country who are talking to a terrorist in
another foreign country; yet the Senate bill is not before us today.
It is extraordinary that a bipartisan compromise and accomplishment
in the United States Senate is not being considered before this House
today.
Last August, Republicans and Democrats on the Judiciary Committee
came together in the Protect America Act and we forged a compromise,
but it was only embraced in the short term. And, sadly, the Senate will
not pass this bill, even if it passes the House today, and if it did,
the President will veto it. So what we are involved in here is a futile
attempt at compromise that will fail.
Speaking less as a Congressman and more as a father and as an
American who was here on September 11, I urge my colleagues to take a
breath, to step back, to examine the spirit of compromise evidenced by
our colleagues in the Senate, and find a way to give our foreign
intelligence gathering the tools they need to protect our families.
Mr. REYES. Mr. Speaker, I am proud to say that the 110th Congress is
not a rubber stamp for anybody, the Senate or the administration.
I now yield 2\1/2\ minutes to the distinguished gentleman from Iowa
(Mr. Boswell), the vice chairman of the Intelligence Committee.
(Mr. BOSWELL asked and was given permission to revise and extend his
remarks.)
Mr. BOSWELL. Mr. Speaker, I thank Chairman Reyes for the time and
your dedicated leadership and hard work to effect oversight over our
Nation's multiple intelligence gathering agencies.
In the process of this debate regarding FISA, we have strived to make
America safe and exercise and protect the Constitution and Americans'
civil liberties. As I have heard Congressman Tierney say at different
times, if we had followed FISA, we wouldn't be here today, and I
appreciate that very, very much. Unfortunately, for whatever reason,
and I don't know, none of us do, whatever reason, this President has
repeatedly used executive orders and end-run the provisions,
protections of FISA that work for the purposes intended.
Several weeks ago, I became concerned that our private telecom
companies might be falsely accused and have the effect of putting a
chill on their response in the future. I felt a gut confidence that
pressure from on high was put on, i.e., we have an emergency, and we,
the government, must have your assistance or a terrible event would
happen. I think back on my own training in my life, and I know
something about those terrible events that could happen, because I put
together weapons of mass destruction in my own training, so it kind of
haunts you sometimes.
So, yes, I, like others, like 20 others, signed a letter of concern.
By the way, it was not a Blue Dog letter or a Blue Dog position. It was
individuals, some of whom were Blue Dogs.
Now, over the course of these past weeks, a credit to Chairman Reyes
and Chairman Conyers and our super staff, an acceptable solution has
been found that makes FISA, supports FISA, and gives protection to
those who assist within the provisions of the law.
For example, those who feel their civil rights have been violated can
seek justice, and the telecoms who feel they have complied with the law
can be defended. A judge would review the classified evidence and
decide. This means to me that the Constitution and civil rights are
protected, and the telecoms who are asked or pressured to assist in an
emergency can know that classified evidence will be seen by the judge.
Classified evidence would be seen by a judge and the providers' defense
would be taken into account. I believe this to be a solution.
So, in closing, I would say this will protect the Constitution and
the American people's civil rights, plus I support the bill because it
gives the intelligence community the tools it needs and gives the
telecom companies the means to defend themselves from unfair lawsuits.
The bill provides telecom companies a way to present their defense in
district court without the administration using State secrets to block
the defense. If a company is simply doing its patriotic duty and
following the law, this bill ensures the company will not be punished.
I urge everyone who signed the letter with me to support this
resolution.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to the gentleman
from Ohio (Mr. Chabot), a member of both the Judiciary Committee and
the Foreign Affairs Committee.
Mr. CHABOT. I thank the gentleman for yielding.
[[Page H1746]]
Mr. Speaker, we are on the floor today debating yet again another set
of amendments to FISA, another set of amendments that limit the ability
of law enforcement and intelligence communities to make this Nation
safer, another set of amendments that have no chance of becoming law.
What these amendments do confirm is that we are a litigious society,
that some are willing to put lawsuits over safety.
Prior to the passage of the Protect America Act, our intelligence
community told us that they missed more than two-thirds of all overseas
terrorist communications because of gaps and inconsistencies in the
law. In August, we closed those holes, giving law enforcement and the
intelligence communities the tools and resources they need to stay one
step ahead.
Disappointingly, 26 days have passed since those provisions expired.
For 26 days now, our law enforcement and intelligence communities have
had to revert back to the status quo. They have had to revert back to a
status that allows terrorists to have the upper hand. And yet this
Chamber continues to bring legislation that we know will not do the
job, all the while, knowing that there is a solution, a bipartisan
solution, to this predicament.
The bipartisan solution lies in the legislation passed by the Senate
30 days ago. These amendments continue and build on the authorizations
provided by the Protect America Act, ensuring that surveillance
continues on foreign targets outside the United States. Immunity is
provided to our communication partners, FISA applications, and orders
are processed in a more timely manner, and lengthening the periods of
emergency authorization for electronic surveillance.
Yet this bill is mindful of our Constitution and the protections it
affords to U.S. citizens, whether they are inside or outside the United
States. Moreover, the authority provided by the bill sunsets in 6
years, allowing Congress to revisit if issues arise.
I urge my colleagues to not make the safety of the American people a
partisan issue.
There are many things that we can disagree on, but the safety of this
country should not be one of them. Let's not send the message that
litigation is more important than patriotism, but that we are committed
to standing as one in doing what is necessary and needed to keep this
Nation safe.
{time} 1245
Mr. CONYERS. Mr. Speaker, could I remind my two distinguished members
of Judiciary, Mike Pence of Indianapolis and Steve Chabot of Ohio, that
the reason we are not taking up the Senate provisions is that the House
has a better idea, and we are coequal. They don't give us whatever they
want.
The Chair is pleased now to recognize Bobby Scott of Virginia,
chairman of the Crime Committee, for 2 minutes.
Mr. SCOTT of Virginia. I would like to thank the chairs of the
Judiciary Committee and the Intelligence Committee for their hard work
in addressing the issue of warrantless surveillance under the Foreign
Intelligence Surveillance Act and for introducing legislation that
addresses national security challenges presented by global terrorism.
This bill provides that any wiretap which would be legal under the
President's proposal will be legal under this legislation. It merely
requires that under some circumstances that a warrant be obtained prior
to the wiretap or if there is an emergency after the wiretap begins.
The warrant procedure is a modest protection of our civil liberties.
This bill does not balance civil liberties with national security,
because all of the wiretaps would be permitted; but this bill just
provides a little oversight. The idea of wiretaps without oversight has
to be considered in the context of some recent documents of the
Department of Justice.
Republican-appointed officials have accused this administration of
firing U.S. Attorneys because they did not indict Democrats in time to
affect an upcoming election. We have been unable to ascertain the truth
of the allegations for several reasons.
First, high-ranging administration officials question the credibility
of Attorney General Gonzales' original response to the allegations. One
high-ranking Justice Department official quit; another pleaded the
fifth. White House officials have refused to respond to our subpoenas.
It is this Justice Department that seeks unprecedented authority to
wiretap citizens without traditional oversight or even articulating the
primary purpose of the wiretaps.
Furthermore, the bill does not offer retroactive immunity for illegal
activities. The fact is that the telecom companies which may benefit
from retroactive immunity already have immunity for any reasonable
actions they may have taken. This bill provides a procedural change
which ensures that these claims of immunity can properly be considered.
In summary, this bill provides for all of the security protections
sought by the President, but it also provides modest protection for our
civil liberties. Therefore, we should support the bill.
Mr. SMITH of Texas. Mr. Speaker, I yield 2 minutes to my colleague
from Texas (Mr. Gohmert), who is not only on the Judiciary Committee
but also the ranking member of the Crime, Terrorism and Homeland
Security Subcommittee.
Mr. GOHMERT. Mr. Speaker, we have just heard reference to the Senate
bill; and my friend, for whom I have great respect, our chairman of
Judiciary, Chairman Conyers, mentioned that we are coequal branches. I
would submit to you, we are an even more important branch because we
are more accountable to the people than the Senate is.
The difference, though, in the Senate bill and this bill is, the
Senate Democrats got input and allowed input into the bill from their
Republican colleagues, and we are not allowed to make amendments on
this bill. All we can do is come up and point out problems with it.
My friend, Mr. Nadler, whom I have come to believe has a brilliant
legal intellect, has come on the floor this morning and said that there
is false information from our side, that we are falsely misleading. He
said that we have been less than honest. That bothers me to no end,
because he knows some of the talking points that are being talked on
this floor are just not right.
Now, I have read the bill. It's a better bill than the manager's
amendment we dealt with last time; it is. But we are still not there,
and we still haven't been allowed enough input to make it better.
But we also heard from one of our colleagues across the aisle that
said he fought in Afghanistan, and he was a soldier. Thank God we have
him and others that would do that. But the telecoms in the week, 2
weeks, 4 weeks right after 9/11, when we did not know if we were going
to have thousands of Americans lost any day, they were put in a
terrible situation.
You know the law. The law is very restricted on who in the telecom
company can see the request or the demand from the administration, from
the NSA or whoever makes it. You know that. I pushed to make sure in
the law that they are at least allowed to talk to a lawyer, but they
are restricted there.
Put yourself in their place. They get a request in any hypothetical
case after Americans are killed in an act of war on our soil.
Mr. REYES. Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman
from California, Ms. Anna Eshoo, who chairs our Subcommittee on
Intelligence Community Management.
Ms. ESHOO. I thank the distinguished chairman of the House
Intelligence Committee.
Mr. Speaker, I rise in support of H.R. 3773. Today's debate really
goes to the heart of the two highest responsibilities of Members of
Congress, to preserve our Constitution and to secure our Nation.
Front and center, that's what this bill does, it accomplishes both.
It gives the intelligence community the most flexible tools for our
professionals for their surveillance of terrorists and other necessary
targets overseas. It accomplishes that. It safeguards our
constitutional rights by requiring the FISA Court to approve targeting
and minimization standards at the front end, when no emergency exists
and to assure that Americans are not targeted.
It protects the private sector by providing prospective liability
protection for telecommunications companies that provide lawful
assistance to the government, and it provides those companies a way to
present their defenses
[[Page H1747]]
in secure proceedings, in district court, without the administration
using state secrets to block those defenses.
These are the most critical tools and safeguards, and that's why
Members of Congress can be assured that they will be taking all the
right steps by supporting this bill.
The bill is one that we should all support, and I am proud to support
it.
Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to my colleague
from Texas (Mr. McCaul), who is a member of the Homeland Security
Committee and the Foreign Affairs Committee.
Mr. McCAUL of Texas. Mr. Speaker, we all took an oath in this Chamber
to protect and defend the Constitution of the United States from all
enemies, both foreign and domestic. That is what this debate here today
is really all about.
By allowing the Protect America Act to expire, we are extending
constitutional protections to foreign terrorists. This bill does
nothing to fix that problem.
We need to pass this Senate bill that passed overwhelmingly on a
bipartisan basis. I worked in the Justice Department on FISA warrants.
The statute was never designed to apply to foreign terrorists in a
foreign country, as recently stated by admiral Bobby Inman, the
principal author of the FISA statute.
I want to point out two articles that were in The New York Times
today: ``Afghanistan: Taliban Destroy Cell Towers.'' ``Taliban
Threatens Afghan Cellphone Companies.''
This is what is happening. We need to protect America now by making
the Protect America Act permanent. The Taliban in their own words,
their own statements, says the surveillance program has ``caused heavy
casualties to Taliban'' in great proportions.
It is time to pass the Protect America Act.
Mr. CONYERS. I wanted my friend Judge Gohmert to know that the reason
we didn't get the bipartisanship that the other body did is that you
guys boycotted our meetings. Your ranking member or leader could have
sent anybody to our meetings, but you didn't come. So now you are
complaining.
Mr. Speaker, I am happy to recognize Debbie Wasserman Schultz, a
valuable member of our Judiciary Committee, for 1 minute.
Ms. WASSERMAN SCHULTZ. Mr. Speaker, I began my service in Congress
fighting for the right to privacy. Above all else, Americans' ability
to communicate without the fear of having the government tap their
phones, listen to their conversations or intercept their private
communication is a right that just cannot be discarded.
Our good friends on the other side of the aisle have said if an
American is not communicating with a terrorist, then they have nothing
to fear. The manner in which the administration has conducted the
warrantless surveillance program has undermined our citizens'
confidence in the bedrock belief that we live in a free country where
we do not live in constant fear of the government looking over our
shoulder.
This is a cherished right that has been arrogantly cast aside by an
administration run amok. After a careful review of both classified and
unclassified materials concerning the administration's warrantless
wiretapping program, I, like so many of my Judiciary Committee
colleagues, concluded that the immunity that is proposed by the
administration is unnecessary and goes too far.
We must be vigilant when protecting our citizens' right to privacy.
It is a rare, unique, and important right that we cannot allow to be
subjected to death by a thousand cuts. If the administration has its
way and this right falls, what is next? We must stand in the breach and
make sure that Americans' right to privacy is preserved.
I urge my colleagues to support this bill.
Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to the gentlewoman
from Tennessee (Mrs. Blackburn), whom we wish were a member of the
Judiciary Committee.
Mrs. BLACKBURN. Mr. Speaker, the legislation before the House today
is nothing short of an abdication of the liberal majority's
responsibility to protect the American people. Yesterday's Investor's
Business Daily editorial sums the bill up nicely, a ``FISA Fix for
Lawyers.'' I could not say it better myself. After all, this bill is
nothing short of an earmark for the trial bar, and it reveals the
brazen partisan interest of this Democrat majority.
Rather than accept the bipartisan legislation adopted in the Senate
and endorsed by our Nation's security experts, the liberal elite of
this House instead brings forward a $72,440,904 thank you note to the
trial bar. Why $72,440,904? That's the amount the trial attorneys have
contributed to Democrat candidates in the 2008 election cycle.
But it might only be a down payment for the potential liability
interest that they have if they get their way on their earmark bill. We
have to say, at what cost? We have heard the story that I used in a
Memphis story on February 28 of our three American soldiers who were
kidnapped.
Mr. CONYERS. Mr. Speaker, I am honored to recognize the Speaker of
the House of Representatives, the Honorable Nancy Pelosi, for 1 minute.
Ms. PELOSI. I thank Mr. Conyers, the Chair of the Judiciary
Committee, for yielding and thank Mr. Reyes, the chairman of the
Intelligence Committee, for bringing this legislation to the floor.
They know, as does each and every one of us, that our primary
responsibility is to protect the American people.
Mr. Speaker, we take an oath of office, as has been referenced, to
protect and defend the Constitution of the United States from all
enemies foreign and domestic.
In the preamble it states that one of our primary responsibilities is
to provide for the common defense. We take those responsibilities
seriously, and I don't take seriously any statements by some in this
body that any person here is abdicating that responsibility.
All of us understand also the role that intelligence plays. In
protecting our troops, force protection, that used to be our primary
responsibility and now, of course, Homeland Security is part of that.
None of us would send our troops into harm's way without the
intelligence to perform their mission and keep them safe, although some
have been willing to send our men and women in uniform into harm's way
without the equipment they need to keep them safe, but we don't make
any accusations against them that they are not patriotic Americans who
don't want to protect the American people.
Chairman Conyers and Chairman Reyes have already pointed out in some
detail this legislation will meet our responsibility to protect America
while also protecting our precious civil liberties. The President has
said that our legislation will not make America safe. The President is
wrong, and I think he knows it. He knows that our legislation contains
within it the principles that were suggested by the Director of
National Intelligence, Mr. McConnell, early on, as to what is needed to
protect our people in terms of intelligence.
{time} 1300
The administration demands that Congress grant immunity to companies
for activities about which the President wants only a small number of
Members of Congress, and no member of the judicial branch, deciding on
any currently filed lawsuits to know anything about.
The bill before us acknowledges that immunity for the companies may
already exist under current law and allows that determination to be
decided by a judge with due protection for classified information, not
by hundreds of people who really do not have the facts.
Why should the administration oppose a judicial determination of
whether the companies already have immunity. Well, there are at least
three explanations. First, the President knows that it's the
administration's incompetence in failing to follow the procedures in
statute is what has prevented immunity from being conveyed. That is one
possibility. They simply didn't do it right.
Second, the administration's legal argument that the surveillance
requests were lawfully authorized was wrong, or public reports that the
surveillance activities undertaken by the companies went far beyond
anything about which any Member of Congress was notified, as is
required by the law.
[[Page H1748]]
None of these alternatives is attractive, but they clearly
demonstrate why the administration's insistence that Congress provide
retroactive immunity has never been about national security or about
concerns for the companies. It has always been about protecting the
administration.
As important as the issue of immunity might be, it is chiefly
important to the administration and the telecommunications companies as
they look back to events that occurred as many as 6 years ago. What is
truly important to the security of our country and the protections of
our Constitution going forward are the amendments made to the FISA bill
in title I in this bill that is on the floor today, the so-called
surveillance title of the bill.
The bill contains three of the essential provisions of the bill
passed by the House in November and, in doing so, explicitly rejects
the heart of the President's warrantless surveillance program. Those
provisions are:
One, the reinstatement that FISA remains the exclusive means to
authorize electronic surveillance. The President likes to think he has
inherent authority to surveil, to collect on anybody, and this bill
restates that FISA is the exclusive authority. This was a point
conceded to in 1978 when the Congress of the United States established
the FISA law, passed the FISA law, which was signed by the President of
the United States, thereby his recognition of Congress's ability to
make the courts, the third branch of government, the exclusive
authority for the collection of intelligence in the United States. That
is exclusivity.
Second, except in emergencies, FISA Court approval must take place
before surveillance begins, but there are exceptions in case of
emergency.
Third, a refusal to follow the Senate in excluding, and this is very
important because people are talking about the Senate bill as though it
is some great thing. This is very important: A refusal to follow the
Senate in excluding from the definition of electronic surveillance
activities historically considered within the definition. In other
words, if they don't want the law to apply to a particular activity,
they will just say it doesn't fall into this bill.
If the administration's change in the definition was accepted, FISA-
derived information, including U.S. person information, could be data-
mined with fewer protections than are currently in place under FISA.
This is very important to each and every person in America.
The President insists that we pass the Senate bill as is. Yet even
that legislation's chief author, Chairman Rockefeller, agrees that many
of the House provisions improve the Senate bill.
This legislation before us today will ensure that our intelligence
professionals have the tools they need to protect the American people.
And the President knows it.
This legislation will ensure that we protect what it means to be an
American, our precious civil rights and civil liberties. Both goals are
essential and both are achieved in this bill. I urge its passage.
Mr. SMITH of Texas. Mr. Speaker, I yield myself 1 minute.
Mr. Speaker, this might be a good time to read excerpts from a letter
to the Speaker. This letter was written 2 days ago by the Attorney
General and by the Director of National Intelligence, and I think
Members and the American people are going to be very interested in what
these two individuals had to say.
They expressed particular concern about requiring prior court
approval to gather foreign intelligence from foreign targets located
overseas.
The letter says: ``Congress did not include such a requirement when
it passed the original FISA statute, and with good reason. These
foreign targets have no right to any court review of such surveillance
under our Constitution. We know from experience that requiring prior
court approval is a formula for delay. Thus, this framework would
impede vital foreign intelligence collection and put the Nation at
unnecessary and greater risk.''
They conclude about this bill that it does not provide the
intelligence community the tools it needs to collect effectively
foreign intelligence information vital for the security of the Nation.
Mr. Speaker, what else do we need to hear? Members need to know this.
I reserve the balance of my time.
Mr. REYES. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from
Rhode Island (Mr. Langevin) who serves on our Intelligence Committee.
(Mr. LANGEVIN asked and was given permission to revise and extend his
remarks.)
Mr. LANGEVIN. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, I rise in support of H.R. 3773, a careful and reasoned
approach to electronic surveillance. Though people have talked a lot
about immunity, we must remember that because of changes in technology,
this is a bill to update the way we conduct electronic surveillance.
I approached this subject with two principles in mind. First, our
surveillance must be effective. Second, the rights of Americans must be
protected. On the second point, there is a real difference between the
Senate and the House bills.
The issue is how both bills handle the calls of Americans. Under the
Senate bill, the DNI and the Attorney General approve surveillance and
then go to the court, with no set timeline for ruling. Under the House
bill, the program of surveillance, not the specific individual targets,
is submitted to the court. The government will essentially ask the
court: Is this method of handling the communications of Americans
appropriate, careful, and, most importantly, constitutional?
The approval of a program of surveillance allows the government to
get approval before there is an operational requirement. So there will
never be any operational sacrifice here. If it were going to slow down
intelligence collection or cause operational problems, I can see where
some might take issue with that. But the simple fact is that the way
this bill is drafted, there is no excuse for not getting the approvals
in place in advance.
I am all for strong intelligence authorities. The beauty of this bill
is it combines that with care for our civil liberties, without
sacrificing either.
Mr. HOEKSTRA. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman
from Missouri (Mr. Blunt), the distinguished minority whip.
Mr. BLUNT. Mr. Speaker, I thank Mr. Hoekstra for the leadership he
has given on this issue.
The problem we have with the bill on the floor today is, in
everything I read, it can't become law. That is one problem. A bigger
problem is that it doesn't address the fundamental question of how we
treat these companies for doing what we asked them to do after 9/11.
It is clear from all of the facts that as the FISA law anticipated,
that the leaders of the House and the leaders of the Senate on the
Intelligence Committee would be informed of what was going on. And, in
fact, in October of 2001 and November of 2001, in March of 2002, those
leaders were informed. On our side, the ranking Democrat at the time is
the current Speaker of the House. Porter Goss, the future CIA director,
was the chairman of the committee. They were informed on all of those
occasions, and these companies only have liability protection if they
were pursuing what was given to them as a lawful government order;
orders that Members of Congress, including the now Speaker, were told
would be issued to these companies.
This program doesn't work without voluntary compliance on the foreign
side. It also doesn't work without subpoenas on the American side, the
U.S. side. Every U.S. effort has to include a subpoena. The 1978 law
anticipated that. The law we would like to have on the books today
continues that. But for foreign subpoenas, to have to get a court order
for a foreign request of somebody in a foreign country simply bogs this
program down to the point it won't work. We proved that in July of last
year when this FISA came to a screeching halt.
This bill is not the improvement that we need. There is a bipartisan
majority in the House ready to pass a bill that could go to the
President today, be signed today.
We are now 4 weeks away from the time when we said, if we just had a
21-day extension, we would solve this problem. This problem needs to be
solved. It needs to be solved now. I urge the majority to step back and
bring a bill to the House that can pass and become law.
[[Page H1749]]
I urge my colleagues to vote ``no'' on this replacement.
Mr. CONYERS. Mr. Speaker, I recognize an invaluable member of the
Judiciary Committee, Keith Ellison from Minnesota, for 1 minute.
Mr. ELLISON. Mr. Speaker, today I rise to support the House
Democratic FISA bill, a bill that provides for collection of data to
protect America against people who would harm us, but also, and very
importantly, provides court approval of acquisition and an ongoing
process of review and oversight in order to protect Americans' privacy.
The bill goes beyond the RESTORE Act which we passed in the House,
and I supported, by adopting statutory protections for U.S. persons
overseas to ensure that surveillance of their communications are always
conducted through the courts.
The House bill does not confer retroactive immunity on telecom
carriers alleged to have participated under the President's warrantless
surveillance program. It provides a mechanism for the carriers to
assert existing immunity claims and to guarantee that they have a fair
hearing in court currently prevented by the administration's assertion
of the State secrets privilege.
In order to fully ascertain the scope and legality of the TSP, the
House bill also creates a bipartisan commission on warrantless
electronic surveillance activities with strong investigatory powers.
Mr. SMITH of Texas. Mr. Speaker, I reserve the balance of my time.
Mr. HOEKSTRA. Mr. Speaker, I would like to recognize my colleague,
the gentleman from Texas (Mr. Thornberry) for 3 minutes.
Mr. THORNBERRY. Mr. Speaker, Chairman Conyers said a few moments ago
the House will not be permitted to vote on the Senate bill because he
has a better idea. Let me suggest three reasons why he does not have a
better idea.
Number one, the bill before us sets up a new process to adjudicate
immunity. Now, if a company voluntarily answered the request of their
government, they did not do so to get a chance to have another legal
process, to pay some more lawyers to file some more motions. That is
not what they were doing. They were doing it to answer the call of
their country, and I think most Americans believe that Good Samaritans
should be thanked rather than punished with a new legal process.
But I would also suggest that this new legal process chills any hope
of voluntary cooperation in the future, not just for intelligence but
for quick response for law enforcement matters as well.
I don't see how any company can meet the obligations of the laws this
Congress has passed to its shareholders and others and voluntarily
submit themselves to another legal process to pay some more lawyers and
file some more motions.
{time} 1315
Secondly, this bill requires court approval of processes, of
procedures before foreign surveillance of foreign targets can ever
begin.
Now, under the Protect America Act, the FISA Court took months to
approve the procedures. And so it's reasonable to assume it's going to
take months to approve the procedures under this bill were it to become
law. The problem is, you can't begin foreign surveillance of foreign
targets under this law until those procedures are approved. And I am
perplexed how Members on either side can feel comfortable having months
more go by before we can have that intelligence information.
Thirdly, this bill sets up a new commission. And I understand it may
be politically desirable to set up a new commission and have new
investigations and have some more folks on a commission looking to make
their mark. I understand politically why that would be attractive. But
it seems to me that, one, there is no need to do that. What do we have
the Intelligence Committee for, if it is not to investigate and
understand, as has been done thoroughly in this case. So I must
conclude that this new commission must be an attempt to deflect
responsibility away from those in this Congress who had the
responsibility to oversee these programs.
We have a better option. We should take it.
Mr. CONYERS. I am pleased to yield 1\1/2\ minutes to the gentlelady
from California (Ms. Harman), a former member of the Intelligence
Committee. I wish I could give her more time.
(Ms. HARMAN asked and was given permission to revise and extend her
remarks.)
Ms. HARMAN. My oldest grandchild, Lucy, is 2 today. She, my other two
grandchildren, and my four children are never out of my thoughts as I
wrestle with what are the right and wise security policies to protect
our country.
I served 6 years on the Armed Services Committee, 8 on the
Intelligence Committee, and 4 on the Homeland Security Committee where
I chair its intelligence subcommittee.
I received so-called ``Gang of Eight'' briefings on the operational
details of the terrorist surveillance program from 2003 to 2006, and I
regularly receive classified threat briefings.
Some in this Chamber in both parties seek my views on security
issues, and I hope my advice is helpful. On the matter before us it is
as follows:
First, the world is very dangerous and we need to protect against
threats.
Second, actions we take can and must comply fully with the rule of
law. FISA has served us well for 30 years. Its framework is still
sound.
Third, FISA does need some tweaking, but the technical changes are
not controversial.
Fourth, FISA has already provided immunity for telecom firms which
follow its provisions. Telecom firms are now protected under FISA.
Fifth, telecom firms are now complying with FISA.
And, sixth, press accounts, especially Monday's story in the Wall
Street Journal, make clear there are other programs out there that
haven't been told to Congress.
We can't pass retroactive immunity when we don't know what we're
talking about.
So happy birthday, Lucy. May you grow up in a country with security
and liberty.
Passing the bill before us is a good start.
Mr. HOEKSTRA. Mr. Speaker, at this time I would like to yield 2
minutes to my colleague from the State of Michigan, a member of the
Intelligence Committee, Mr. Rogers.
Mr. ROGERS of Michigan. Mr. Speaker, two problems with where we're
going: one is, this will, in effect, require intelligence officials to
seek a Federal court warrant for foreign targets overseas. That is
undeniable. Everybody in the intelligence community says it. The Senate
even came across in a bipartisan bill, led by Democrats, who agree to
the same principle and said that's the wrong direction to go to protect
America.
The other serious problem: one of your great distinguished Members,
Elijah Cummings, took a courageous stand in a courageous moment when he
had serious crime in his district in Baltimore. He went out, went on TV
on a PSA and said, please cooperate with the local police to solve this
crime. Please step up and cooperate so that we can solve these crimes
together.
What we are effectively doing today, we're effectively telling
businesses, large and small, and citizens from neighborhoods to
corporate citizens to individual citizens, everybody who every day
across America says, I will cooperate with law enforcement to solve
crime because it's the right thing to do, you send an absolute chilling
effect across. And I've heard this from businesses not related to this
particular issue, telecom companies, companies who cooperate on
kidnappings, companies that cooperate on trying to find people who are
fugitives, who have raped children, people who cooperate on catching
drug dealers. They've said, you know, if you show up and ask me that, I
want to help. But what this body is telling them, you might not be
protected. It might not be just enough. And if you have enough money,
and we have enough trial lawyers, you're going to find yourself in
court.
So what these people are saying is, maybe I can't cooperate with my
government anymore. Maybe I can't, in good faith, like good Samaritans
have done all 200-plus years of this great Nation, come forward and say
we are in this together. We are united to stop crime, to keep our homes
and neighborhoods safe and to protect our country from terrorism.
The CIA case also said it's not good. The military leader said it's
dangerous,
[[Page H1750]]
the intelligence community said it's dangerous, and so did the
Democrats in the Senate. Let's join them and do this right.
Mr. CONYERS. Mr. Speaker, I'm going to recognize Barbara Lee, but I
want my dear friend from Michigan to know you cannot give retroactive
immunity when you don't know what you're immunizing. That's the
problem.
I turn now to the co-chair of the Progressive Caucus, a distinguished
civil rights fighter who has her own experiences, and we yield proudly
to Barbara Lee of California for 1 minute.
Ms. LEE. I want to thank Chairman Conyers and Chairman Reyes for
bringing this legislation to the floor which does contain the
safeguards necessary to protect the liberties of the American people,
while giving the intelligence community powers to protect our Nation,
which are very important in this bill.
Now, let me tell you, I know from personal experience about wiretaps
during the J. Edgar Hoover period and the unwarranted domestic
surveillance and wire tapping as a result of the Cointelpro program.
Many innocent people, their lives were destroyed, personal information
was gathered from innocent people, yes, including myself, who were no
threat to national security. Dr. King and his family were the victims
of government-sponsored wiretapping.
We must never go down this road again. So I fully support this bill
because it explicitly declares that the FISA Court is the sole
authority for electronic surveillance. It prohibits this reverse
targeting. It also makes sure that we do not provide retroactive
immunity to telecom companies that participated in any illegal spying
by this administration.
This bill will protect America and, equally important, protect
American civil liberties and values as guaranteed, mind you, guaranteed
by the fourth amendment.
Mr. HOEKSTRA. Mr. Speaker, Mr. Smith and I both have only one speaker
remaining, so we would reserve our right to close in the order as
determined.
Mr. REYES. Mr. Speaker, I only have one more speaker remaining as
well.
Mr. CONYERS. Mr. Speaker, how much time have I remaining?
The SPEAKER pro tempore. The gentleman from Michigan (Mr. Conyers)
has 2\3/4\ minutes remaining.
Mr. CONYERS. The gentleman from Washington (Mr. Inslee), who has
worked with us on this matter, is recognized for 1 minute.
(Mr. INSLEE asked and was given permission to revise and extend his
remarks.)
Mr. INSLEE. Mr. Speaker, from time to time, we are called to, again,
define what it means to be an American. And this is never more so than
when security concerns threaten our commitment to liberty. And at those
moments, at this moment, we need to be imbued with the spirit of 1776,
a spirit against tyranny, a spirit that recognizes that the rule of law
is the ultimate bulwark of liberty.
A Nation that threw off the shackles of King George should never
yield to an executive who seeks to trample on the rule of law. Whether
it was inconvenient, whether it was bothersome, whether it was
frustrating, we should never yield to an executive who believes himself
above the rule of law. We should never yield to an Executive that,
instead of coming to Congress to change a law, simply decides to ignore
it.
We are nothing without this commitment. We are everything with it.
Stand for liberty. Pass this bill.
Mr. CONYERS. Mr. Speaker, I yield everything but 1 minute to the
gentlelady from Illinois, Jan Schakowsky.
The SPEAKER pro tempore. The gentlewoman from Illinois is recognized
for 45 seconds.
Ms. SCHAKOWSKY. This FISA legislation is proof that we can protect
the American people, keep our country and our families safe without
violating American's civil liberties. The Republicans have posed a
false choice, tried to convince us, the American people, that the only
way to protect this country from terrorists is to sacrifice our civil
liberties, particularly when it comes to this administration perhaps
illegally telling the telecommunications companies to share our private
communications with them.
The Republicans want to wave a wand, grant amnesty to the phone
companies, retroactive immunity to turn over information about their
customers, not only letting the companies off the hook, but protecting
the administration from judicial scrutiny about its warrantless
surveillance programs.
This program, this legislation that we have introduced, is a fair way
to resolve this conflict issue.
Mr. CONYERS. Mr. Speaker, I yield to the gentlelady from Texas (Ms.
Jackson-Lee) for a unanimous consent request.
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Having heard all of the answers to all of
the questions that have been raised by the opposition, knowing that
full justice, civil liberties and the protection is in this bill, I
rise in support of the underlying bill.
Mr. Speaker, I rise today in support of the Senate Amendment to H.R.
3773, the Foreign Intelligence Surveillance Act (FISA). This body has
worked diligently with our colleagues in the Senate to ensure that the
civil liberties of American citizens are appropriately addressed.
We have worked to not simply reconcile the Senate language with the
RESTORE Act (H.R. 3773) which we passed in the House on November 15,
2007, but to go beyond the RESTORE Act as part of FISA Reform
legislation by: Adopting provisions from the Senate bill that will for
the first time provide statutory protections for U.S. persons overseas,
that ensures surveillance of their communications are conducted through
the courts; and Providing a mechanism for telecommunications carriers
to prove their case that they did not engage in any wrongdoing and to
guarantee due process with a fair hearing in court.
Like the RESTORE Act, the FISA reform legislation provides for
collection against terrorist organizations such as Al Qaeda, while
providing prior court approval of acquisition and an on-going process
of review and oversight in order to protect Americans' privacy.
The revised House bill creates a bipartisan commission on Warrantless
Electronic Surveillance Activities with strong investigatory powers in
order to preserve the rule of law in pending and future lawsuits. This
revised version of the bill continues to reiterate FISA's exclusive
control for conducting foreign intelligence surveillance, and requires
explicit statutory authorization for any means outside of FISA. This is
an area where the House version has differed from the Senate.
Homeland security is not a Democratic or a Republican issue, it is
not a House or Senate issue; it is an issue for all Americans--all of
us need to be secure in our homes, secure in our thoughts, and secure
in our communications.
I find it disturbing that our Republican colleagues will not join us
to ensure that Americans are safe here and abroad. Disturbing that they
do not recognize that we must protect the civil liberties of this
nation just as we protect American lives.
Mr. Speaker, in August of this year, I strongly opposed S. 1927, the
so-called ``Protect America Act'' (PAA) when it came to a vote on the
House floor. Had the Bush Administration and the Republican-dominated
109th Congress acted more responsibly in the two preceding years, we
would not have been in the position of debating legislation that had
such a profoundly negative impact on the national security and on
American values and civil liberties in the crush of exigent
circumstances. As that regrettable episode clearly showed, it is true
as the saying goes that haste makes waste.
The PAA was stampeded through the Congress in the midnight hour of
the last day before the long August recess on the dubious claim that it
was necessary to fill a gap in the nation's intelligence gathering
capabilities identified by Director of National Intelligence Mike
McConnell. In reality it would have eviscerated the Fourth Amendment to
the Constitution and represented an unwarranted transfer of power from
the courts to the Executive Branch and a Justice Department led at that
time by an Attorney General whose reputation for candor and integrity
was, to put it charitably, subject to considerable doubt.
Under the House bill, the Foreign Intelligence Surveillance Court,
FISC is indispensable and is accorded a meaningful role in ensuring
compliance with the law. The bill ensures that the FISC is empowered to
act as an Article III court should act, which means the court shall
operate neither as a rubber-stamp nor a bottleneck. Rather, the
function of the court is to validate the lawful exercise of executive
power on the one hand, and to act as the guardian of individual rights
and liberties on the other.
[[Page H1751]]
Moreover, Mr. Speaker, it is important to point out that the loudest
demands for blanket immunity did not come from the telecommunications
companies but from the administration, which raises the interesting
question of whether the administration's real motivation is to shield
from public disclosure the ways and means by which government officials
may have ``persuaded'' telecommunications companies to assist in its
warrantless surveillance programs. I call my colleagues' attention to
an article published in the Washington Post in which it is reported
that Joseph Nacchio, the former CEO of Qwest, alleges that his company
was denied NSA contracts after he declined in a February 27, 2001
meeting at Fort Meade with National Security Agency, NSA,
representatives to give the NSA customer calling records.
To give a detailed illustration of just how superior the RESTORE Act
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.
My amendment, which was 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.
Mr. Speaker, nothing in the Act or the amendments to the Act should
require the Government to obtain a FISA order for every overseas target
on the off chance that they might pick up a call into or from the
United States. Rather, what should be required, is a FISA order only
where there is a particular, known person in the United States at
the other end of the foreign target's calls in whom the Government has
a significant interest such that a significant purpose of the
surveillance has become to acquire that person's communications.
This will usually happen over time and the Government will have the
time to get an order while continuing its surveillance. It is the
national security interest to require it to obtain an order at that
point, so that it can lawfully acquire all of the target person's
communications rather than continuing to listen to only some of them.
It is very important to me, and it should be very important to
Members of this body that we require what should be required in all
cases--a warrant anytime there is surveillance of a United States
citizen.
In short, the Senate amendment to the House version makes a good bill
even better. For this reason alone, civil libertarians should
enthusiastically embrace H.R. 3773.
Nearly two centuries ago, Alexis de Tocqueville, who remains the most
astute student of American democracy, observed that the reason
democracies invariably prevail in any martial conflict is because
democracy is the governmental form that best rewards and encourages
those traits that are indispensable to martial success: initiative,
innovation, resourcefulness, and courage.
As I wrote in the Politico, ``the best way to win the war on terror
is to remain true to our democratic traditions. If it retains its
democratic character, no nation and no loose confederation of
international villains will defeat the United States in the pursuit of
its vital interests.''
Thus, the way forward to victory in the war on terror is for the
United States country to redouble its commitment to the Bill of Rights
and the democratic values which every American will risk his or her
life to defend. It is only by preserving our attachment to these
cherished values that America will remain forever the home of the free,
the land of the brave, and the country we love.
Mr. Speaker, FISA has served the Nation well for nearly 30 years,
placing electronic surveillance inside the United States for foreign
intelligence and counterintelligence purposes on a sound legal footing,
and I am far from persuaded that it needs to be jettisoned.
However, I know that FISA as it is run currently attempts to
circumvent the Bill of Rights and the civil liberties of the American
people. I continue to 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.
In all candor, Mr. 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 not enough on the public record
about the nature and effectiveness of those programs, or the
trustworthiness of this administration, to indicate that they require a
blank check from Congress.
The Bush administration did not comply 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.
Mr. Speaker, I encourage my colleagues to join me in a vote of
support for the FISA Amendments Act, H.R. 3773, as it seeks to balance
our Nation's securities and our civil liberties.
Mr. HOEKSTRA. Mr. Speaker, before I close, could the Speaker tell me
exactly how much time I have left.
The SPEAKER pro tempore. The gentleman from Michigan (Mr. Hoekstra)
has 3 minutes remaining; the gentleman from Texas (Mr. Smith) has 2\1/
2\ minutes remaining; the gentleman from Michigan (Mr. Conyers) has 1
minute remaining; and the gentleman from Texas (Mr. Reyes) has 1\1/2\
minutes remaining.
Mr. HOEKSTRA. Mr. Speaker, I yield myself the balance of my time.
What is this Congress thinking? Some of my colleagues are scaring the
American people into believing that the men and women in the
intelligence community are spying on them. In reality, our intelligence
professionals are focused solely on identifying and stopping the threat
from radical jihadists.
What's this Congress thinking? Some of my colleagues want to reward
opportunist trial lawyers who are suing the very companies that stood
up in America's hour of need. We should recognize what these companies
did and protect them from these frivolous lawsuits.
What is this Congress thinking? Some of the key leadership in this
House, including this current Speaker, were fully briefed and involved
in developing the strategies that were implemented to keep America safe
in the aftermath of 9/11. Now some are running from those decisions.
They should take responsibility for their actions.
[[Page H1752]]
{time} 1330
At the funerals last week for the victims of the recent terrorist
attack in Jerusalem, Rabbi Shapira delivered a eulogy charging the
government with not doing enough to keep Israel safe, for not
delivering the strong leadership to face down a deadly enemy. That same
enemy wants to attack America.
The 9/11 Commission said, ``Terrorists could acquire without great
expense communications devices that were varied, global, instantaneous,
complex, and encrypted.''
As Rabbi Shapira last week questioned the leadership of his country,
and in light of what the 9/11 Commission told us years ago, I ask the
leadership of this House are we doing enough.
Is the 2001 FISA law adequate? The answer has been, and continues to
be, a resounding ``no.''
Are we doing enough to protect America, our troops, and our allies,
when we go home without finishing this crucial work on intelligence
surveillance? Is it acceptable to have our intelligence capabilities
continue to erode? Continuing down this path is dangerous.
I hope that when we return, America will not have its own Rabbi
Shapira, our own Rabbi Shapira asking, Why did Congress go home without
finishing its work? Why didn't the Democratic Congress do better? Why
didn't the House recognize the danger and the threat?
We should complete this work today. We should vote on the Senate
bill. Why are we going home? Why are we going home with the work
unfinished one more time?
With that, I yield back the balance of my time.
Mr. REYES. Mr. Speaker, before I yield the balance of our time, I
would like to insert into the Record at this point several letters of
endorsement for H.R. 3773.
Center for Democracy
and Technology,
Washington, DC, March 12, 2008.
Re Vote ``Yes'' on H.R. 3773, the FISA Amendments Act.
Dear Representative: We are writing to urge you to support
legislation to amend the Foreign Intelligence Surveillance
Act that the House of Representatives will soon consider. The
bill, an amendment in the nature of a substitute to H.R.
3773, is a responsible compromise between the House RESTORE
Act and the Senate FISA legislation. This compromise includes
most of the civil liberties protections in the RESTORE Act
while also providing the intelligence agencies the
flexibility they need to monitor the international
communications of people believed to be abroad. The
legislation would replace the Protect America Act (``PAA,''
Pub. L. No. 110-55), which became law in August 2007 and
which expired a few weeks ago.
Like the RESTORE Act, the compromise bill permits
authorization of surveillance programs targeting persons
abroad who may be communicating with people in the United
States. The compromise bill makes it clear that the
government does not have to make an individualized showing of
probable cause for targeting any person reasonably believed
to be abroad, unless that person is a U.S. citizen or green
card holder. It provides intelligence agencies great
flexibility in adding new surveillance targets to existing
authorizations. The compromise bill also makes it clear that
no order is required for surveillance of foreign-to-foreign
communications. The compromise bill includes no blanket
immunity from civil liability for telecommunications carriers
who assisted with illegal warrantless surveillance from
October 2001 through January 17, 2007, but it does allow
carriers to defend themselves against those lawsuits while
protecting classified information.
Unlike the PAA, the compromise bill includes significant
civil liberties protections that merit your support.
Prior Court Approval. Most importantly, the compromise bill
requires court approval of surveillance procedures prior to
the commencement of surveillance. Except in emergencies, the
compromise bill bars the executive branch from commencing
surveillance unless the Foreign Intelligence Surveillance
Court (``FISA court'') has approved of targeting and
minimization procedures designed to protect Americans. The
targeting procedures must be reasonably designed to ensure
that communications to be acquired will be those of persons
reasonably believed to be located outside the United States.
The minimization procedures limit the circumstances in which
a U.S. citizen or green card holder can be identified when
information resulting from intelligence surveillance is
disseminated. We are disappointed that under the compromise
bill, the authorization for surveillance comes from the
Director of National Intelligence (``DNI'') and the Attorney
General (``AG''), and not from the FISA court, as would have
been provided under the RESTORE Act. While we would have
preferred the RESTORE Act approach, surveillance under both
bills cannot commence unless the FISA court has first
approved the procedures under which it would be conducted.
Court Compliance Assessment. The compromise bill explicitly
authorizes the FISA court not only to assess the adequacy of
surveillance procedures at the front end, but also to assess
whether those procedures are being complied with on a going
forward basis. It provides that the court shall assess
compliance with the minimization procedures it has approved,
and it acknowledges that nothing in the bill prohibits the
FISA court from having inherent authority to assess
compliance with those procedures and other procedures it has
approved. While the extent of the court's inherent authority
is unclear, we understand that the Administration has agreed
that the court has inherent authority to assess compliance.
Prevention of Reverse Targeting. The compromise bill bars
the targeting of a person reasonably believed to be outside
the United States for the purpose of targeting a particular,
known person reasonably believed to be in the United States.
A number of provisions support this bar. They help ensure
that surveillance targeted at persons abroad will not be used
to circumvent individualized court order requirements that
protect Americans from unwarranted surveillance. The bill
requires the AG, in consultation with the DNI, to adopt
guidelines to ensure compliance with the reverse targeting
limitation. Those guidelines must contain criteria for
determining whether a ``significant purpose'' of an
acquisition is to acquire the communications of a specific,
known U.S. citizen or lawful permanent resident reasonably
believed to be in the United States. Those criteria must in
turn reflect consideration of criteria listed in the bill
that tend to show whether a person in the U.S. has become of
significant intelligence interest. The guidelines must be
submitted to Congress. AG/DNI certifications submitted to the
FISA court in connection with authorized surveillance are
reviewed by the FISA court for completeness, and must attest
that guidelines meeting the reverse targeting limitation have
been adopted. The Inspectors General and the AG/DNI both
report to Congress on whether the reverse targeting
guidelines are being followed.
FISA Exclusivity. The compromise bill takes a significant
step toward the goal of clarifying that FISA is the exclusive
means of conducting surveillance in the United States for
foreign intelligence purposes. It does this by cutting off
the argument advanced by the Administration that Congress may
implicitly authorize warrantless surveillance when it
authorizes the use of force following an attack on the United
States, or when it passes other legislation. Under the bill,
such authorization would need to be explicit.
Telecom Immunity. Unlike the Senate bill, the compromise
bill wisely rejects proposals to grant blanket retroactive
immunity to telecommunications carriers that assisted with
illegal warrantless surveillance for more than five years
following the attacks of September 11, 2001. Telecoms should
be immune when they assist surveillance that meets the
statutory requirements, and should face civil liability when
they assist with requests for assistance with unlawful
surveillance. The compromise bill preserves this incentive
system, which helps ensure that telecoms prevent unlawful
surveillance. In lieu of retroactive immunity, the compromise
bill frees telecoms to present in court information tending
to show that they complied with the law, even though such
information may be subject to the state secrets privilege. It
signals the courts that such submissions must be protected
from disclosure and should be handled in accordance with the
relevant provision of FISA, Section 106(f).
The compromise bill also includes the following significant
provisions:
A December 31, 2009 sunset to prompt Congress to reconsider
the legislation in a timely manner, and to encourage
Executive branch compliance with reporting duties imposed in
the legislation and with congressional requests for
information;
An Inspectors General audit of post 9-11 warrantless
surveillance that may represent the best chance of shedding
light on this surveillance, to the extent consistent with
national security concerns; and
A requirement for court orders based on probable cause for
surveillance of Americans and green card holders who are
believed to be abroad, in lieu of the Attorney General
certification of probable cause now required by executive
order.
For all of these reasons, we encourage you to vote for the
compromise bill when it is considered by the House of
Representatives. It represents a responsible effort to
preserve both liberty and security, and it is legislation the
Administration would be wise to support.
For more information, please see our latest policy brief on
FISA legislation (http://www
.cdt.org/publications/policyposts/2008/3) or contact the
Director of CDT's Project on Freedom, Security & Technology,
Gregory T. Nojeim, at 202/637-9800 x113.
Sincerely,
Leslie Harris,
President and CEO.
Gregory T. Nojeim,
Director, Project on Freedom, Security & Technology.
[[Page H1753]]
____
Center for National
Security Studies,
Washington, DC,
March 12, 2008.
Re H.R. 3733 Substitute Amending the Foreign Intelligence
Surveillance Act.
Hon. John Conyers,
Chairman, Judiciary Committee,
Hon. Silvestre Reyes,
Chairman, Permanent Select Committee
on Intelligence, House of Representatives,
Washington, DC.
Dear Chairmen Conyers and Reyes: We write on behalf of the
Center for National Security Studies, which is the only
organization whose sole mission is to work to protect civil
liberties and human rights in the context of national
security issues. For more than thirty years, the Center has
worked to find solutions that both respect civil liberties
and advance national security interests. The Center advocated
for constitutional protections in the Foreign Intelligence
Surveillance Act when it was first enacted and has litigated
and repeatedly testified against unconstitutional government
surveillance since then.
We are writing to outline our views on the substitute bill,
which we understand will be brought to the floor for a vote
this week.
The new bill (H.R. 3773 substitute) is substantially better
than the Protect America Act enacted in August or the bill
passed by the Senate last month. The substitute contains
strong reporting requirements that will ensure that Congress
obtains access to the information needed for public and
congressional consideration of what permanent amendments
should be made to the FISA. At the same time, the bill would
authorize the surveillance of Americans' international
communications without a warrant in some circumstances where
we believe that the Fourth Amendment requires a warrant.
However, the bill contains important protections against such
unconstitutional surveillance, many of which were not
included in the bill passed by the Senate. Given the votes
for that severely flawed bill and the Protect America Act, we
welcome this substitute as an important step toward restoring
constitutional privacy protections and congressional and
public oversight.
A. The new bill contains important provisions to establish
accountability for the illegal surveillance by this
administration as well as guarantees for future oversight. In
particular, and unlike the bill passed by the Senate, it
contains:
1. A December 2009 sunset so a new Congress will revisit
these temporary powers;
2. A required Inspector General audit of all warrantless
electronic surveillance and a public report, which will
ensure that information about past programs is preserved and
reviewed;
3. Better congressional reporting requirements about future
surveillance;
4. Creation of a commission appointed by Congress with
subpoena power to investigate and report to the American
people about the Administration's warrantless surveillance;
and
5. No retroactive immunity for the telecommunications
carriers that carried out the warrantless surveillance of
Americans' communications.
We applaud your efforts to require an accounting of the
administration's past illegal surveillance of Americans. The
Inspector General audit, the commission, and the other
congressional and public reporting requirements would lay the
groundwork for the next administration and the next Congress
to gain a full understanding of this administration's illegal
surveillance, its underlying interpretations of applicable
laws, and the impact of any changes to FISA this year. This
bill would help ensure that more information, not just the
administration's rhetoric and selective disclosures, are made
available to Congress, and will give Congress and the
American people the opportunity to assess surveillance
procedures on the basis of a complete record in 2009. In this
connection, we applaud your commitment to revisiting in
advance of that sunset date what the substantive standards
and procedures for surveillance of Americans should be in
order to better protect Americans' constitutional rights and
ensure effective national security measures.
B. The bill also contains stronger judicial review
procedures than does the Senate bill.
1. It does not contain the rewrite of the definition of
``electronic surveillance'' contained in the Senate bill,
which would have weakened even further the FISA's protections
for the rights of people in the U.S.
2. It requires judicial review in advance of surveillance
except in emergencies.
3. It contains specific protections from the RESTORE Act
for Americans' international communications.
4. It requires a court order based on probable cause to
target Americans who are overseas. (This requirement is also
in the Senate bill.)
5. The bill also reinforces that surveillance must be
conducted within the requirements of the FISA or federal
criminal law and not at the President's say-so.
In sum, the bill provides many more protections than any
proposal the administration has helped draft on these issues,
including the bill passed by the Senate last month.
Thank you for your consideration of our views.
Sincerely,
Kate Martin,
Director.
Lisa Graves,
Deputy Director.
____
March 12, 2008.
Groups Urge Further Investigation of Telecom's Actions Before Any Vote
on Retroactive Immunity
Dear Member of Congress: Our thirty-four organizations
write to support the March 6 Dear Colleague letter on telecom
immunity legislation from House Energy and Commerce Committee
Chairman John Dingell, Subcommittee on Telecommunications and
the Internet Chairman Edward Markey, and Subcommittee on
Oversight and Investigations Chairman Bart Stupak. These
respective Chairs urged Congress to uphold its duty to make
an informed decision by first learning and evaluating ``all
the facts'' prior to any vote on immunity. They specifically
referenced a whistleblowing disclosure from Mr. Babak Pasdar
whose affidavit was distributed last week to all House
offices. We ask the House to support the chairmen and not
grant retroactive immunity as part of any bill to amend the
Foreign Intelligence Surveillance Act.
The Dear Colleague letter summarized a threat to privacy
rights that is the bottom line in Mr. Pasdar's affidavit:
That an unnamed major wireless telecommunications carrier may
have given the government unmonitored access to data
communications from that company's mobile devices, including
e-mail, text messages, and Internet use.
Mr. Pasdar's statement describes a mysterious ``Quantico
Circuit'' with apparently unfettered access to this carrier's
mobile device data network as well as its core business
network, which includes billing records and fraud-detection
information. The other end of that Quantico Circuit may have
had capabilities to physically track the whereabouts of
innocent subscribers and monitor communications and other
personal, behavioral habits. Yet, according to Mr. Pasdar,
the line was configured so that the carrier could have no
record of what information had been transmitted. Of equal
concern was his allegation that there was no security to
protect this line--an unheard of vulnerability in a carrier
environment.
Mr. Dingell, Mr. Markey, and Mr. Stupak are right. Mr.
Pasdar's concerns are strikingly similar to those raised by
another whistleblower, Mr. Mark Klein from AT&T. Their
combined disclosures raise grave questions. For example, who
was at the other end of the Quantico Circuit, and what
information have they been obtaining? Does such access
comport with long-standing federal law? Is the circuit legal?
Is its apparent lack of security legal or wise? How long has
it been in operation? Who paid for construction and operation
of the Quantico Circuit? Was the telecom paid by its
recipients for using the circuit? What were the terms?
You must get answers to these questions to make an informed
decision about what the Senate's broad retroactive telecom
immunity provision would sweep in. Congress should schedule
hearings and exercise any other investigative authority
necessary to determine the truth about our privacy and
telecom companies--before Congress votes on any bill that
would give amnesty to these companies.
We urge you not to retreat on the immunity issue in the
face of Administration scare tactics. A rush to judgment
would not improve national security, and would unnecessarily
jeopardize our rights to privacy. Four experts and former
aides to the current Director of National Intelligence
explained last week that alternate authority exists under
current law to continue ongoing surveillance for up to a
year, as well as to obtain new approvals as needed. No
special immunity is needed, as the FISA court can order
telecoms to cooperate with lawful foreign intelligence
surveillance.
If Messrs. Pasdar and Klein are telling the truth, they
have described the tip of an iceberg. Congress must find out
what is underneath. Accordingly, we urge you to investigate
these matters fully and not grant retroactive immunity in the
meantime.
Sincerely,
Christopher Finan, President, American Booksellers
Foundation for Free Expression; Nancy Talanian,
Director, Bill of Rights Defense Committee; Chief Gary
Harrison, Chickaloon Village, Alaska; Lyn Hurwich,
President, Circumpolar Conservation Union; Jesselyn
Radack, Coalition for Civil Rights and Democratic
Liberties; Matthew Fogg, Congress Against Racism and
Corruption in Law Enforcement (CARCLE); Ben Smilowitz,
Disaster Accountability Project; Dr. Jim Murtagh,
Doctors for Open Government (DFOG); Jim Babka,
President, DownsizeDC.org, Inc.; John Richard,
Director, Essential Information.
George Anderson, Ethics in Government Group, (EGG); Mike
Stollenwerk, Fairfax County Privacy Council; Steven
Aftergood, Project Director, Federation of American
Scientists; Conrad Martin, Executive Director, Fund for
Constitutional Government; Gwen Marshall, Co-chairman,
Georgians for Open Government; Tom Devine, Legal
Director, Government Accountability Project; James C.
Turner, Executive Director, HALT, Inc.--An Organization
of Americans for Legal Reform; Helen Salisbury, MD,
Health Integrity Project; Scott Armstrong, President,
Information Trust; Michael Ostrolenk, National
Director, Liberty Coalition.
[[Page H1754]]
Dr. Janet Chandler, Co-Director, TAF Mentoring Project;
Joan E. Bertin, Esq., Executive Director, National
Coalition Against Censorship; Zena D. Crenshaw,
Executive Director, National Judicial Conduct and
Disability Law Project, Inc.; Mike Kohn, General
Counsel, National Whistleblower Center; Ron Marshall,
Chairman, The New Grady Coalition; Sean Moulton,
Director, Federal Information Policy OMB Watch; Patrice
McDermott, Director, OpenTheGovernment.org; Darlene
Fitzgerald, Patrick Henry Center; David Arkush,
Director, Congress Watch Public Citizen; John W.
Whitehead, President, Rutherford Institute; Daphne
Wysham, Director, Sustainable Energy and Economy
Network; Kevin Kuritzky, The Student Health Integrity
Project (SHIP); Jeb White, President, and C.E.O.,
Taxpayers Against Fraud; Dane von Breichenruchardt,
President U.S. Bill of Rights Foundation; Linda Lewis,
USDA Homeland Security Specialist (retired).
Mr. Speaker, I now yield the remaining time to the gentleman from
Massachusetts (Mr. Tierney), a valued and distinguished member of the
Intelligence Committee.
Mr. TIERNEY. Mr. Speaker, over history, and particularly since 1970,
we have been able to find balance of getting the necessary intelligence
collection and also having the protection of our liberties and our
constitutional rights; through wars, in fact through the Cold War,
which are much more severe existential threats than we see today, to a
Cold War where we had nuclear powers that we thought were ready to
attack us. We didn't know when and we didn't know to what degree. We
never found it necessary to totally abdicate our constitutional rights
and privileges. It is unnecessary for us to do that. It is shameful
that some think that now is an opportunity for us to do that.
The legislation before us today allows us to, in timely ways, collect
all of the intelligence we need. It allows us to do it before a court
order in cases of emergency. It allows us to do it without delay. It
allows us to have provisions for oversight. It allows us to do
everything to protect this country and it protects our civil liberties.
We have a situation with phone companies now wanting immunity.
They've always had immunity. The question is did they go for it. Did
they have a court order or did they have the proper certification? Why
won't the White House let all Members of Congress see that? It would
answer the questions if they saw the documents.
All Members of Congress should see the Presidential order and discuss
whether the breadth and scope was so breathtaking that they would rush
to make sure that courts intervene to make sure we had the
constitutional protections there and make sure that we saw the memos
that were there for legal justification and whether or not they weren't
farcical in some respects and make sure that we saw what went on
between the companies and the administration.
If the companies think that they have reason to believe that, despite
the fact that they didn't take advantage of their immunity provisions,
they still have a claim of defense, we've provided a way for them to go
to court so they can make that case. Going forward, they have immunity
and a way to protect themselves in the past.
Let's get over the nonsense and pass this law.
Mr. SMITH of Texas. Mr. Speaker, I yield the balance of my time to
the gentleman from California (Mr. Daniel E. Lungren), a member of the
Judiciary Committee and a member of the Homeland Security Committee.
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, oftentimes what is
said on this floor reveals the differences between the two parties or
the difference between the two approaches. The gentleman who just spoke
before me made an allegation about the breathtaking and overwhelming
nature of the President's request for information. Frankly, I thought
what was at stake at the time was the breathtaking and overwhelming
threat that this Nation faced after 9/11. That's what the President was
responding to. That's what the President utilized in his request of
American companies that come to the aid of their country. And here we
stand saying we cannot reward them except to give them lawsuits.
The gentleman from Texas (Mr. Reyes) says if the companies are
innocent, as if there is some question. I sat through all of those
briefings. There is, in my judgment, not one iota of evidence that the
companies acted inappropriately whatsoever. Not one iota of evidence
sitting there after question after question after question; yet, on
this floor, we raised the very question of those companies by saying if
they are innocent. And what does Mr. Reyes say? If they are innocent,
then it will be decided the good old American way: Go to court.
Well, I'm a lawyer, but I don't think most Americans think the
American way in every instance is to go to court. If you look at the
legislation we have before us, it is rewarding the Good Samaritans with
a lawsuit.
There is a fig leaf here, yes. Now the majority side says, You know,
there is a problem that we have to address with respect to
telecommunications companies. That's progress, because when we were
arguing on the floor with your previous provisions, you didn't even
admit that. Now you do it, and now you say we are going to take care of
it by the State's secrets doctrine and by going to a secret court
proceeding.
It is a fig leaf to allow Members to vote for a bill you know is
never going to become law. It is not effective. How do I know? Twenty-
five attorneys general of the United States say it doesn't work. They
say support the provision that's contained in the Senate bill.
Democrats and Republicans alike from Texas, from North Carolina, from
Oklahoma, from Florida, from Alabama, Arkansas, Alaska, Colorado,
Georgia, Idaho, Indiana, Kansas, Maryland, Michigan, Nebraska, New
Hampshire, North Dakota, Rhode Island, South Dakota, Virginia, West
Virginia, Washington, Utah, South Carolina, and Pennsylvania.
No, Mr. Speaker, the President is not wrong. No, Mr. Speaker, he is
not doing this to protect himself. He's doing it as these attorneys
general of the United States recognize to allow us to go forward in
protecting the American people.
Don't harm these telecommunications companies with friendly fire.
Mr. CONYERS. Mr. Speaker, it's my privilege to yield the balance of
our time to the majority leader, Steny Hoyer, whose legal expertise has
held him in good stead over the months that we've worked on the Foreign
Intelligence Surveillance Act.
Mr. HOYER. Mr. Speaker, this is indeed an important day for our
country, for the House of Representatives, and for the American people.
An important day because we focus on the protection that we owe to our
people and to our country, not only from terrorists but from those who
would undermine the Constitution of the United States.
Let me just briefly put in context where we are today some 7 years
and 2 months after the start of this administration. From 2001 to 2006,
the President of the United States did not veto a single bill. Why did
he not veto a single bill? Because the Congress would not send him a
bill that he did not want sent to him. It was a complacent, complicit
Congress. And as a result of that complacency of the representatives of
the American people, the administration came to believe that it could
do anything it wanted without oversight or accountability.
And because of that, when we were put at risk by 9/11, the
administration's response, perhaps led by the Vice President, was that
we do not need to follow the law. There was a law in place. It's still
in place. It still provides for the protection of the American people.
It's called the Foreign Surveillance Intelligence Act. But as too often
has been the case in this administration, they chose not to follow the
law. They chose, instead, to follow their own predilections. And that's
why we are here today.
In addition to that, we were in a condition where technology had
changed. The administration was absolutely correct on that point. And
both the Intelligence Committee in the Senate and the Intelligence
Committee in the House knew they had to respond to that. As a matter of
fact, Mr. Hoekstra and Ms. Harman, as the chairman and ranking member,
and Mr. Goss prior to that, knew that we had to move towards that. That
is now a result of the legislation we see before us.
My good friend and distinguished colleague, the former attorney
general of the State of California who's been in this body for some
years. He was here,
[[Page H1755]]
then he went back to California. He read from the letter of the
attorneys general. One of them was Maryland. I talked to him yesterday.
Sometimes people put letters in front of us that are not accurate and
we don't check all of the facts. I presume that the other attorneys
general that were presented with this letter are in the same position.
Let me read from this letter: ``Senate Intelligence Committee
Chairman John D. Rockefeller authored S. 2248 to solve a critical
problem that arose when the Protect America Act was allowed to lapse on
February 16, 2008.'' Hopefully, everybody in this body knows that
information is inaccurate. Senator Rockefeller started to draft his
legislation, and the Senate Intelligence Committee, long before
February of 2008, the House Intelligence Committee and the House
Judiciary Committee and Senate Judiciary Committee, long before that
ever happened. That information is inaccurate. I don't hold the
attorneys general personally responsible for that inaccuracy. But I
will tell you, my own attorney general, a signatory on this letter, had
been misinformed. That's unfortunate.
I presume by the association, the overwhelming majority of these
attorneys general are Republicans, but I don't think it was a partisan
letter, per se, but it is shocking to me that an attorney general of a
State in this country would say, ``whatever action is necessary to keep
our citizens safe.'' There have been those down through history who,
when we have been at risk, have said whatever action we take is
justified, and the Constitution has suffered in that process.
We have a responsibility to do both, not just one. The attorneys
general in their letter also said this: ``Intelligence officials must
obtain FISA warrants every time they attempt to monitor suspected
terrorists in overseas countries.'' That is categorically false. I do
not believe that any one of the attorneys general that signed this
letter believed it to be false, but it is wrong. They are misinformed.
We have an opportunity today to move this process forward to protect
America and protect our Constitution. Senator Rockefeller, the chairman
of the Senate Foreign Intelligence Committee, a committee from the
Senate, passed a bipartisan bill. And I am so interested to hear all of
the Members on the Republican side talk about how a Senate, bipartisan-
passed bill ought to pass this House.
My, my, my. If Congressman DeLay were here now, he would turn over in
his seat. His premise was the Senate doggone well ought to pass House
bills and not ask any questions. That was his position. He had no
intent to pass, no matter how bipartisan a Senate bill was, Tom DeLay
had no use for talking to Senate Republicans about what he ought to
pass.
And by the way, if the President said pass it, if it was the
Patients' Bill of Rights that he didn't want and it passed the Senate
and the House, it didn't pass out of the conference committee because
the President didn't want it. And by the way, on the prescription drug
bill that a large number of your caucus was against, you passed anyway.
It took you 3 hours to vote it, but you passed it. And so many of your
Members came kicking and screaming to the final result and lament that
vote this very day, and all of you on that side of the aisle know it.
Not all of you, but a large number.
Our responsibility is not to take a Senate bill or a House bill at
face value. It is to exercise our best judgment to serve the American
people as best we can.
{time} 1345
I will close with this: Senator Rockefeller, the chairman of the
committee, strong proponent of the bipartisan bill, said this on March
11, 2008, just a few days ago:
``Today's House proposal reflects progress in bringing the two bills
together, and it is a step in the right direction.'' He concluded his
statement by saying this: ``As soon as the House sends us this new
bill, we will once again roll up our sleeves and get back to work on a
final compromise that the House, the Senate, and the White House can
support.''
Ladies and gentlemen of this House, that's what the Founding Fathers
had in mind when they created the House of Representatives and the
United States Senate and they gave to the President of the United
States a role in the legislative process. We have an opportunity today
to serve the protection of our country, the interception of
communications dangerous to our people, and to uphold our oath to
preserve and protect the Constitution of the United States. Let us take
that opportunity.
Mr. VAN HOLLEN. Mr. Speaker, I rise in support of H.R. 3773. This
bill reestablishes the role of the Court into foreign surveillance if
and when a U.S. person becomes a target of such surveillance. H.R. 3773
also authorizes the FISA court to review the ``minimization''
procedures used by intelligence agencies regarding the use of material
that has been inadvertently intercepted. Moreover, this bill authorizes
the FISA court to also review the ``targeting'' procedures that involve
U.S. persons. Finally, the bill creates a commission to review the
President's previous warrantless surveillance program and to report to
Congress. It is important to note that H.R. 3773 contains no
retroactive immunity for the telephone companies for their past
accommodation to intercept the communications of U.S. persons without a
court order.
After the terrorist attack on September 11, 2001, our security
agencies worked to improve their intelligence operations to ensure that
such a plot could never again be executed on U.S. soil. However, this
Administration, rather than assessing the need to make adjustments to
surveillance authorities, embarked upon an unauthorized secret program
authorized by nothing more than Executive fiat and clearly outside of
the Foreign Intelligence Surveillance Act, FISA. The telecommunication
industry was directed to comply with demands of the Administration with
or without the requisite authority. Some telecommunications companies
complied some did not.
Despite repeated requests from Democratic Members of Congress for the
Administration to assess the limitations of the existing FISA law and
to request necessary changes, the Administration refused to do so. Only
after James Risen in 2006 exposed the fact that the Administration had
been engaged in a massive domestic spying operation did the
Administration begin to address the need to reconcile the program with
some semblance of statutory authority. To that end, last summer the
Administration identified a change in technology that warranted a
change to the law. The change in the telecommunications industry has
placed nodes and other technological backbones on U.S. soil regardless
of the flow of information. Consequently, many foreign-to-foreign
communications pass through the U.S. without involving U.S. persons.
This technological ``touch down'' under existing law would require a
court order and needed to be changed.
From that request for a technical change, the Administration, with
the assistance of the Republicans in Congress, launched an initiative
to virtually remove court orders for the surveillance of American
persons. Moreover, the Administration launched an additional initiative
to provide blanket retroactive immunity for all the phone companies and
ISPs that intercepted communications in the absence of a legal
authorization. This immunity was demanded without the disclosure of the
acts that would be subject to such immunization. Currently, there are
almost 40 lawsuits pending that have challenged the legality of the
President's unauthorized surveillance program.
All of these past cynical efforts to engage in an illicit
surveillance program have now transformed into a campaign to engage in
a widespread cover-up of past illegalities. The Republicans and the
President cloak their surreptitious activity in a cloak of national
security. However, the American people know better. We all want to stop
terrorism. We all agree that foreign-to-foreign communications should
be intercepted without needing a court order. We all agree that merely
because such a communication is transported through a device that sits
on U.S. soil, it should not impose any impediment to the surveillance
of these communications. Where we disagree is in the need to carry on
an illegal program, to defy any accountability and then come to
Congress to seek legislation that is purely designed to conceal
wrongdoing.
The bill before us today accomplishes the following:
Provides for surveillance of terrorist and other targets overseas who
may be communicating with Americans.
Requires the FISA court to approve targeting and minimization
procedures--to ensure that Americans are not targeted and that their
inadvertently intercepted communications are not disseminated. These
procedures must be approved prior to surveillance beginning--except in
an emergency, in which case the government may begin surveillance
immediately, and the procedures must be approved by the court within 30
days. (This may be extended if the court determines it needs more time
to decide the matter.)
[[Page H1756]]
Provides prospective liability protection for telecommunications
companies that provide lawful assistance to the government.
Requires a court order based on probable cause to conduct
surveillance targeted at Americans, whether inside the United States or
abroad.
Requires an Inspector General report on the President's warrantless
surveillance program.
Prohibits ``reverse targeting'' of Americans.
Explicitly establishes FISA Exclusivity--that FISA is the exclusive
way to conduct foreign intelligence surveillance inside the U.S. Any
other means requires an express statutory authorization.
Sunsets these authorities on December 31, 2009 (same as the PATRIOT
Act sunset).
Moreover, this bill is as important for what it does not contain,
i.e. retroactive immunity. This bill does provide telecom companies a
way to present their defenses in secure proceedings in district court
without the Administration using ``state secrets'' to block those
defenses. Finally, this bill also establishes a bipartisan, National
Commission--with subpoena power--to investigate and report to the
American people on the Administration's warrantless surveillance
activities, and to recommend procedures and protections for the future.
We all want to prevent the acts of terrorism. However, some of us
believe that we can protect our Nation without throwing away all of the
rules that have been designed to protect the Constitutional rights of
Americans. The scare tactics that have been used by this Administration
to further cloak their illegal programs are reprehensible. What is more
is that these tactics are not even marginally credible.
The President's national security programs by and large have been a
failure, his misadventure into Iraq on a quest for nonexistent weapons
of mass destruction have led us on a path of a substantial loss of
life, resources and moral standing in the world. Moreover, it has
diverted our attention from those who did attack us on 9/11, Al-Qaeda
and its Taliban allies who are regrouping and strengthening, according
to declassified U.S. intelligence estimates, along the Afghanistan-
Pakistan border. In addition, the President's authorization to use
torture on U.S. soil, as well as outsourcing it to foreign countries,
by way of rendition, has compromised the security of our troops and
diplomatic corps around the world. These practices have done much more
to compromise our national security than to protect it. For these
reasons, the President is not in a position to invoke national security
on any grounds and certainly not to justify a warrantless domestic
spying program and retroactive immunity for those who were complicit in
this activity.
Mr. BLUMENAUER. Mr. Speaker, over the past few months, we've had a
lot of back and forth on this issue. For those who have been at the
table, I want to express my appreciation for your hard work and the
quality of your debate. I am proud of the fortitude displayed by the
Speaker and the Intelligence Committee during this process: There will
be no blanket immunity for telecom companies, there will be a two-year
sunset, and there will be a commission to thoroughly investigate this
administration's shameful wiretapping program.
For the past seven years I have been highly critical of Republican
wiretapping legislation. I have voted against past efforts to expand
the ability of this administration to intrude in the lives and privacy
of innocent citizens. Most recently, I supported the expiration of the
Protect America Act because I am confident that the dedicated members
of the intelligence community do not need to violate the rights of
Americans in order to protect them.
The bill before us will not solve every potential abuse of FISA, but
it does provide stronger legal protections for Americans and introduces
a measure of oversight. As this issue continues to play out into the
future, it is my hope that our next steps will include even stronger
protections for innocent Americans, clearer legal standards for FISA to
judge surveillance procedures, and explicit requirements for the
destruction of unnecessary data.
Ms. MATSUI. Mr. Speaker, liberty and security are not mutually
exclusive. Quite the opposite; they go hand in hand.
The FISA Amendments Act recognizes this reality. This legislation is
a balanced compromise that protects our country and ensures that our
basic American freedoms remain intact.
Our great country is founded on civil liberties, and secured by our
intelligence community.
Much of what keeps us safe is our commitment to upholding the values
of freedom and liberty.
All the security in the world is meaningless if we fail to protect
the values that make our country worth defending in the first place.
If we surrender the basic principles that make us who we are, we
will forever change what it means to be American.
Mr. Speaker, I know what can happen when we abandon our core
American values. I was born in an internment camp, and my own family
suffered the consequences when our country succumbed to the rhetoric of
fear.
That was a dark time in our Nation's history--one we cannot afford
to repeat.
That is why the legislation before us today is so important.
It protects the liberties that we cherish, liberties that are the
birthright of every American citizen.
At the same time, it recognizes the need for the surveillance of our
enemies.
It gives our intelligence agencies the tools necessary to keep us
safe, and provides strong legal clarity for the intelligence community.
The compromise solution we have negotiated also allows
telecommunications companies to defend themselves in a court of law.
It takes Congress out of the equation and puts legal decisions back
where they belong: in the court system.
I am confident that this process will result in a fair solution to
the civil cases that have been brought against these companies.
That is why this balanced legislation deserves the support of every
Member of this House.
This bill will keep us safe, and it will keep us free.
I urge passage of the FISA Amendments Act of 2008,
Mr. MOORE of Kansas. Mr. Speaker, I rise today to express my cautious
support for this House amendment to the Senate-approved version of H.R.
3773, the FISA Amendments Act of 2008. I extend my gratitude for the
hard work that Chairmen Conyers and Reyes have put into this
legislation, as well as Speaker Pelosi and Majority Leader Hoyer for
their efforts to negotiate with the Senate to work out the differences
between the different approaches to update the Foreign Intelligence
Surveillance Act [FISA] of 1978.
We will never forget the awful terrorist attacks of September 11,
2001, on our country. And we must keep in mind there are still those
who wish to do us harm as we authorize essential surveillance
authorities balanced by the civil liberty protections ensured by our
Constitution. It is disappointing that the Bush Administration and our
Republican colleagues have refused to participate in negotiations to
date, but I am hopeful that with this new bill approved by the House,
we can quickly work out our honest differences to provide our
intelligence and law enforcement agencies with the tools required to
monitor potential agents with terrorist intentions against the United
States.
This bill is a step in the right direction, but I have serious
reservations with certain provisions that I urge Congress to promptly
resolve in the coming weeks. I strongly believe in the merits of the
Senate-approved FISA legislation drafted by Chairman Rockefeller and
Ranking Member Bond, and I support a final bill that includes the
following provisions: Require individualized warrants for surveillance
of U.S. citizens living or traveling abroad; clarify no court order is
required to conduct surveillance of foreign-to-foreign communications
that are routed through the United States; provide enhanced oversight
by Congress of surveillance laws and procedures; compel compliance by
private sector partners; review by FISA Court of minimization
procedures; and targeted immunity for carriers that allegedly
participated in anti-terrorism surveillance programs.
As a District Attorney for 12 years, I understand the importance of
cooperation with private-sector partners in law enforcement matters.
Without their cooperation in times of emergency, the community I was
sworn to protect would be less safe and secure. The National Sheriffs'
Association, the International Association of Chiefs of Police, the
Fraternal Order of Police and the National Troopers Coalition have all
expressed their support for the targeted immunity that the Rockefeller-
Bond FISA bill would provide. Key members of the 9/11 Commission have
also voiced their support for the Rockefeller-Bond FISA bill. 9/11
Commission Co-Chair and former Congressman Lee Hamilton wrote that:
``To the extent that companies helped the government, they were acting
out of a sense of patriotic duty and in the belief that their actions
were legal. Dragging them through litigation would set a bad precedent.
It would deter companies and private citizens from helping in future
emergencies. . . .'' 9/11 Commissioner and former Senator Bob Kerrey
affirmed that sentiment when he stated: ``We wrote in the 9/11
Commission report that `unity of purpose and unity of effort are the
way that we will defeat this enemy and make America safer for our
children and our grandchildren.' We cannot hope to achieve such unity
of effort if on the one hand we call upon private industry to aid us in
this fight, and on the other allow them to be sued for their good-faith
efforts to help.''
I agree with the 21 state attorneys general who wrote in a December
11, 2007, letter to Senate leadership: ``The provisions of
[Rockefeller-Bond] are consistent with existing, long-standing law and
policy. Congress has long
[[Page H1757]]
provided legal immunity for carriers when, in reliance on government
assurances of legality or otherwise in good faith, they cooperate with
law enforcement and intelligence agencies . . . provisions of S. 2248
would . . . establish a thoughtful, multi-step process involving
independent review by the Attorney General and the courts that, only
when completed, would lead to dismissal of the claims.''
Congress must continue the hard work of negotiating a suitable
compromise that equips our intelligence agents with the tools they need
to protect our country, while ensuring that our civil liberties--which
make us the greatest nation in the world--remain protected.
Mr. DINGELL. Mr. Speaker, I voted against the original Patriot Act, I
voted against the reauthorization of the Patriot Act in 2005, I voted
against the President's Protect America Act that was signed into law
last August, and I remain prepared to vote against any legislation that
does not adequately protect our constitutionally guaranteed civil
rights. I have some concerns about this legislation. I don't believe it
is perfect. However, I am prepared to vote in support of it today as a
sign that we in the House are prepared to negotiate a bipartisan
solution that will end the deadlock on this issue.
I note that the President has already rejected this overture, and
once again insisted that he will veto any bill that does not grant
blanket amnesty to the telecommunications companies that are alleged to
have assisted the Bush Administration in conducting illegal warrantless
wiretap programs. It is unfortunate that the President has taken this
position, but I can assure him that there are those of us who will not
be moved by his intransigence.
I have repeatedly asked the Bush Administration to provide me with a
briefing about the warrantless wiretap programs that took place without
Congressional authorization so I could determine for myself whether
amnesty is justified, and these requests have been repeatedly denied.
After seven years of lies and obfuscation, I refuse to take the
President at his word that amnesty for telecommunications companies is
in the best interest of the American people, and I refuse to vote for
amnesty until I am given the opportunity to review the evidence
supporting it.
Mr. NADLER. Mr. Speaker, I rise in strong support of H.R. 3773, the
FISA Amendments Act. This carefully crafted legislation gives our
intelligence agencies all the tools they need to protect our country,
while protecting our fundamental civil liberties.
Mr. Speaker, let us be clear about what this legislation does not do.
It does not require individual warrants for the targeting of foreign
terrorists located outside the United States. For three decades, that
has been the law, and it will still be the law under this bill. There
is no dispute about this.
The bill starts with the recognition that the intelligence community
needs to surveil all members of a terrorist group--once that group is
identified. Any suggestion that it requires individualized warrants to
intercept communications of terrorists overseas is wrong.
The bill maintains the traditional requirement of a warrant when our
intelligence agencies seek to conduct surveillance on Americans. And
because some foreign surveillance may record conversations with
Americans, the bill requires that, when the Government proposes to
undertake surveillance of a foreign group or entity, it must first
apply to the FISA court, except that, in an emergency, the surveillance
can begin immediately, and the court can consider the surveillance
procedures later.
In both this bill and the Senate bill, the Government has to inform
the court of the procedures it will use to ensure that it is targeting
only foreigners overseas and how it will ``minimize'' domestic
information it might inadvertently pick up. The only real difference is
that the Senate bill lets them listen first, then go to the court
within 5 days. This bill requires that they go to the FISA Court first.
But in an emergency, we give them 7 days to listen before they go to
the court. So will someone please tell me how this minor difference
between the bills somehow gives rights to terrorists?
There is one thing that this bill does not do, and this great body
must not do--provide blanket, retroactive immunity to the
telecommunication companies that assisted in the President's
warrantless wiretapping program. Such a move would fly in the face of
our notions of justice.
Mr. Speaker, in the last few weeks, we have heard countless
assertions from our colleagues on the other side that are false and
misleading. They claim that we allowed the Protect America Act to
expire--when it was the Republicans who blocked attempts to extend that
legislation temporarily. And they continue to claim that retroactive
immunity for the telecom companies is necessary for the security of the
country. But they have failed to provide any evidence for that claim.
The telecom companies aided the Administration's surveillance
program. Some people--American citizens--believe their constitutional
rights were violated, and brought suit against the government and the
telecom companies. There are two narratives here. One is that the
telecom companies patriotically aided the Administration in protecting
Americans from terrorists. The other is that the telecom companies
conspired with a lawless Administration to violate the Constitutional
rights of Americans. Which of these narratives is correct is for a
court to decide.
It is not the role of Congress to decide legal cases between private
parties. That is why we have courts. If the claims are not meritorious,
the courts will throw them out. But if the claims do have merit, we
have no right to dismiss them without even reviewing the evidence.
We are told that the telecom companies should not be subject to
lawsuits for doing their duty. But whether they were doing their duty,
or abusing the rights of Americans, is precisely the issue. And that is
a legal issue for the courts to decide.
In any event, the existing law, in a wise balance of national
security and constitutional rights that this bill does not change,
already provides absolute immunity to the telecom companies if their
help was requested, and if they were given a statement by the Attorney
General, or various other government officials, stating that the
requested help did not require a warrant or court order and would not
break the law. They have immunity whether those statements were true or
not. They can rely absolutely on the government's assertions.
So why do they think they need retroactive immunity? Because of the
Administration's sweeping assertion of the ``state secrets'' doctrine,
which has prevented the companies from claiming their immunity.
Title II of this bill will allow the telecoms to show the courts, in
a secure setting, if they were obeying the law or if they weren't. It
will allow the telecom companies to assert their immunity in court, and
to present the relevant documents and evidence to the court in a secret
session that protects any ``state secrets.'' The courts can then judge
whether the telecom company obeyed the law--in which case it has
complete immunity--or whether it did not. And, I remind you, that
``following the law'' means simply obtaining a statement from the
government that the company's help is needed, and that the requested
help does not require a court order or violate the law. A company that
assisted in spying on its customers without getting that simple
assurance does not deserve immunity.
Mr. Speaker, this bill gives our intelligence agencies what they say
they need. But it also demands that their extraordinary powers be used
properly, and that they follow our laws and our Constitution. This bill
will help limit this Administration's disregard for the rule of law. It
is a carefully crafted measure, and deserves the support of every
member in this body.
Mr. UDALL of New Mexico. Mr. Speaker, for the past several months,
Congress has debated one of the most important issues that we face: the
struggle to protect America while preserving the guaranteed liberties
that make America great. During this vital discussion, some argued that
Congress should stop deliberating and pass a reckless proposal that
would unnecessarily sacrifice our constitutional rights. I disagreed.
The legislation we discuss today, which was the product of deep
deliberation and compromise, will keep America both safe and free. It
is a credit to this House and to the American people.
Today's legislation contains a number of carefully crafted provisions
intended to protect the civil liberties of Americans at home and abroad
while ensuring that the intelligence community can do its job. The
wisest decision the House made in this bill was to grant
telecommunications companies an opportunity to defend themselves in a
confidential FISA court trial. This is in stark contrast to the
administration's attempt to provide retroactive immunity for
telecommunications companies that may have violated the law. The Bush
administration claims that the telecommunications companies have
evidence that would exonerate them but cannot be revealed in court
because of confidentiality concerns. Our bill ensures that the American
people will get their day in court and the companies will have the
chance to defend their actions. This compromise is fair to the
companies and to those whose rights they may have violated.
I believe we can protect our Nation while upholding the values that
make America a beacon of hope to people around the world. America is
strong because we are a nation of freedom and a nation of laws. By
refusing to grant blanket immunity to those who violated Americans'
rights, the House reaffirms the rule of law and the importance of
liberty. The Senate should follow our lead.
Mr. KUCINICH. Mr. Speaker, I rise today in opposition to the FISA
Amendments Act of 2008.
This legislation is a commendable improvement over the irresponsible
Protect America
[[Page H1758]]
Act passed by this body in August. I am thankful that this new bill
does not include retroactive immunity for telecommunication companies.
However, the bill still falls short of ensuring the protection of the
fourth amendment rights of U.S. citizens.
Blanket warrants, institutionalized by the Protect America Act, will
continue with the enactment of the FISA Amendments Act. There is a
legitimate concern that surveillance of persons abroad can potentially
infringe on the fourth amendment rights of U.S. citizens.
These blanket wiretaps make it impossible to know whose calls are
being intercepted by the National Security Agency, which increase the
likelihood that the civil liberties of innocent U.S. citizens will be
violated.
Specifically, in Section 101(702)(i) appears to include a review
process of ``Certifications and Procedures'' but these procedures are
of a broad nature, make no connection to specific individuals, provide
for no showing of wrongdoing and contain no explanation of how
collection procedures will actually work. Consequently, the bill fails
to uphold standard fourth amendment judicial involvement.
Section 101 (702)(g)(3) states that ``a certification made under this
subsection is not required to identify the specific facilities, places,
premises, or property at which the acquisition authorized under
subsection (a) will be directed or conducted.''
Our county's fourth amendment provides that targets of search and
seizure should be stated with particularity. The particularity
requirement limits the scope of the search by assuring U.S. citizens
whose property is subject to a search is, according to the
Congressional Research Service, ``being searched of the lawful
authority of the executing officer and of the limits of his power to
search. It follows, therefore, that the warrant itself must describe
with particularity the items to be seized, or that such itemization
must appear in documents incorporated by reference in the warrant and
actually shown to the person whose property is to be searched.''
Under current law, reviews conducted by the FISA court do not receive
names of targets or organizations which already places some limitation
on particularity. But this bill appears to allow the Government to go
even further by applying for very broad, year-long authority to issue
directives to companies to comply with Government searches as they see
fit. This broad authority is reminiscent of the current
administration's secret spying program.
Furthermore, Section 101(702)(g)(2)(v) states that a requirement of
certification for the targeting of certain persons outside of the
United States is that ``a significant purpose of the acquisition is to
obtain foreign intelligence information.'' FISA warrants already have a
lower threshold of ``probable cause'' than criminal ``probable cause''
because the targets are assumed to be terrorist. The language in this
section of the bill eliminates the need to find any wrongdoing
whatsoever. Because, in the words of the Congressional Research
Service, ``[t]he concept of ``probable cause'' is central to the
meaning of the warrant clause'' of the fourth amendment, there are
grave concerns about the erosion of our civil liberties.
In sum total, allowing the administration to run a surveillance
program of such a broad and undefined nature qualifies as
``unreasonable'' under the fourth amendment. Although the purpose of
the bill is to target foreigners abroad, by picking up calls coming
into and out of the U.S., the program is not targeted at individual
terrorists and individualized court orders are not required. The bill
ensures that all targeted international communications are not covered
by the fourth amendment even if a U.S. citizen is involved. The rights
guaranteed by the fourth amendment dictate that the Government must
have cause to spy on U.S. citizens. But the language in this bill
ensures that the Government can spy on U.S. citizens who participate in
international communications if there is no cause. If we permit our
constitutional rights to be watered down out of fear, we have given up
our democracy. Congress must stand firm and defend the Constitution.
Mr. BUTTERFIELD. Mr. Speaker, I rise today to speak on the FISA
Amendments Act. The most controversial element of this legislation is
the absence of retroactive immunity for telecommunications companies.
As we continue this debate, I urge my colleagues to consider the unique
circumstances telecommunications companies faced after the events of 9/
11. I believe that their cooperation with the government was undertaken
in good faith and with an objectively reasonable belief that such
assistance was lawful. I applaud this legislation, but urge careful
consideration of the issue of retroactive immunity.
Mr. UDALL of Colorado. Mr. Speaker, I support this measure for two
reasons.
First, I will support it because, as I have consistently said, 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.
That is why, last August, I voted for a bill (H.R. 3356) to provide
such an update--a bill that was supported by a majority of the House,
but did not pass because it was considered under a procedure that
required a two-thirds vote for passage, which did not occur because of
the opposition of the Bush Administration, which was supported by all
but 3 of our Republican colleagues. That is also why I voted for
another bill to update FISA--H.R. 3773, the ``Responsible Electronic
Surveillance That is Overseen, Reviewed, and Effective'' (or RESTORE)
Act--which the House passed on November 15th of last year.
Second, I will support it because I think it is distinctly better
than the version the Senate passed--as an amendment to the House-passed
RESTORE Act--on February 12th.
It does include some good features of the Senate version, including
provisions that for the first time will provide statutory requirement
that surveillance of the communications of Americans overseas will be
done pursuant to appropriate orders of the courts.
But it differs from the Senate version in some important ways,
particularly in the way it addresses the current lawsuits brought
against several telecommunications companies by parties who claim that
the companies acted wrongly by assisting with a surveillance program
involving the massive interception of purely domestic communications.
Those lawsuits have been consolidated and are pending in one court,
but evidently have made little progress because of the Administration's
argument, still awaiting court resolution, that the suits are barred
because they involve state secrets. My understanding is that the
defendant companies have argued that government's invocation of the
state-secrets privilege has had the result of preventing them from
defending themselves, although at least one company has stated in
regulatory filings that the cases against it are without merit.
President Bush has insisted that Congress throw these cases out of
court by giving the companies retroactive immunity for whatever they
might have done in connection with the surveillance program, even
though the Administration and the companies themselves insist that
those actions were lawful and that the plaintiffs' complaints against
the companies have no merit.
Regrettably, last month the Senate decided to comply with the
President's demand on this point, and their version of this legislation
would provide that retroactive immunity.
I do not think that was the right decision. I agree with the Rocky
Mountain News, which in a February 15th editorial said ``Letting this
litigation proceed would not, as Bush [has] said . . . punish companies
that want to `help America.' Businesses that want to help America need
to be mindful of the Constitution--and so should the government.''
That is why I think the approach taken in the measure before us is
better. Unlike the Senate version, it would not short-circuit the court
by preventing the cases from proceeding. Instead, it would allow the
defendant companies to defend themselves by freeing them from the
``state secret'' barrier erected by the Bush Administration.
Under the measure before us, the defendants will be able to
demonstrate to the court the evidence they say supports their arguments
in a way that assures the continued security of that evidence and that
avoids the public disclosure the Administration says would be adverse
to the national interest. This is a process that has worked well in
criminal cases, and while I am certainly not an expert on the matter, I
think it can work when applied to these civil cases.
Mr. Speaker, I think it is a matter of basic fairness to allow the
companies now being sued, and those that may be sued in the future, to
fully defend themselves and to try to show the court why, as the
defendants in the current cases claim, they are already immune under
existing law.
That is what this measure does--and, in fact, it does more.
Unlike the Senate version, it will protect the companies from
lawsuits for compliance with valid authorizations under the temporary
surveillance law (the ``Protect America Act'') passed last August for
the period between the expiration of that law (but not the underlying
authorizations) and the enactment of more lasting FISA reform
legislation.
I strongly approve of that aspect of the legislation because while I
did not support its original enactment, I do regret the fact that the
temporary law was allowed to lapse.
I thought it should have remained in effect while we in Congress work
to replace it with a longer-lasting statute. That was why earlier this
year, I twice voted to extend it--first, by passage of a 15-day
extension (H.R. 5104) and then by voting for a bill (H.R. 5349) that
would have provided a further 21-day extension.
Regrettably, that second extension did not occur. Its failure was
because of the opposition of President Bush and the resulting fact
[[Page H1759]]
that all our Republican colleagues here in the House, who voted against
the extension and thus allowed the ``Protect America Act'' to lapse--a
fact that has been conveniently ignored by many of those who have
sponsored television commercials or otherwise complained about that
lapse.
In any event, today we have the opportunity to make progress toward
the goal of updating the FISA law in a way that will enable our
intelligence agencies to obtain information needed to protect the
American people while safeguarding our rights under the Constitution.
That is what this measure does, and that is why I will vote for it.
For the information of our colleague, I am attaching the February
15th editorial of the Rocky Mountain News that I mentioned earlier.
[From the Rocky Mountain News--Friday, Feb. 15, 2008]
No Immunity--Senate Veers Off Track in Its Surveillance Bill
The Bush administration is in a tizzy because Congress will
take its Presidents Day recess and allow the temporary
``terrorist surveillance'' act passed six months ago to
expire at midnight Saturday.
Earlier this week, President Bush actually suggested that
al-Qaida operatives are watching the calendar, poised to plot
new attacks freely with Congress absent--and U.S.
intelligence officials will be largely powerless to stop
them.
Don't insult the American public, Mr. President. You'll
still have the ability to wiretap suspected terrorists--and
the warrantless surveillance powers in the bill are valid
until August.
Bush is riled because the House is leaving town without
adopting immunity provisions in the Senate surveillance bill.
The Senate version granted immunity from lawsuits--unwisely,
in our view--to telecommunications firms that cooperated with
the warrantless wiretaps on overseas calls.
If immunity is in the final legislation--and Bush has said
he'd veto any bill that doesn't include it--it would kill the
40-plus lawsuits that have been filed against telecoms in
federal court. The litigation challenges the legality of the
program and the actions of telecoms that cooperated with the
government.
If the lawsuits don't move forward, we may never learn if
some telecoms compromised the privacy of innocent Americans.
A grant of immunity could also set a dangerous precedent for
other businesses when federal agents or local cops who don't
have a court order demand private or confidential information
about their customers.
(Colorado Sens. Wayne Allard and Ken Salazar both voted to
pass the Senate legislation and to oppose an amendment that
would have stripped the immunity provisions from the bill.)
Look, we think the government should have greater leeway--
and constitutionally, does have greater leeway--to monitor
international communications with al-Qaida than it does to
intercept domestic phone calls or e-mails.
But we've largely had to take the administration's word
that the wiretap program didn't go beyond the narrow confines
under which it would be legal. Moreover, any program that
lets the government snoop without a judge's approval deserves
outside scrutiny to prevent abuses.
In this instance, the lawsuits may reveal whether the
wiretaps were targeted or were more like fishing expeditions.
We may also learn how effectively the telecoms separated
international communications from domestic calls or e-mails.
The government initially tried (and failed) to quash these
cases, claiming the program was so top secret that even
admitting that private telecoms participated would compromise
national security. Federal courts wouldn't buy that line. So
AT&T and other telecoms started claiming they were victims--
Washington had persuaded them that the program was legal and
they had little choice but to assist in the fight against al-
Qaida.
Those claims may be true, but they seem to run counter to
the experience of Joe Nacchio, the former Qwest CEO who was
convicted on insider trading charges last year. Two years ago
it was revealed that Nacchio refused to comply with appeals
from the government to participate in the warrantless wiretap
program; he balked at turning over information about his
customers obtained under what Qwest considered suspect legal
circumstances.
Court documents released in October revealed that Nacchio
first met with national security officials in February 2001--
six months before the 9/11 attacks. ``Nacchio's account,''
The Washington Post reported, ``suggests that the Bush
administration was seeking to enlist telecommunications firms
in programs without court oversight before the terrorist
attacks on New York and the Pentagon.''
Letting this litigation proceed would not, as Bush said
Wednesday, punish companies that want to ``help America.''
Businesses that want to help America need to be mindful of
the Constitution--and so should the government.
Mr. ETHERIDGE. Mr. Speaker, I rise in support of H.R. 3773, the FISA
Amendments Act of 2008. This bill will help protect our Nation's
security from terrorist threats while also protecting the civil rights
and freedoms of our citizens.
On November 15, 2007, I voted in favor of the Responsible Electronic
Surveillance That is Overseen, Reviewed, and Effective (RESTORE) Act
that passed the United States House of Representatives by a vote of 227
to 189. The FISA Amendments Act includes and enhances the provisions
from the RESTORE Act that form a strong framework for how our
intelligence agencies operate. This bill requires the FISA court to
approve targeting and minimization procedures to ensure that Americans
are not targeted and their communications are not disseminated. These
procedures would have to be approved prior to any surveillance, with
the exception of emergency cases that would allow the government to
begin surveillance immediately, provided that they obtain approval from
the FISA court within 30 days. Under the FISA Amendments Act, this
requirement would extend to American citizens at home and as well as
those traveling abroad. To further enhance accountability, this
legislation would create a Congressional commission that would conduct
hearings and investigation into the President's recent warrantless
wiretapping program. This bill grants new authorities for conducting
surveillance and collecting intelligence against terrorist
organizations, while preserving the requirement that the government
obtain a FISA court order, based on probable cause, when targeting
Americans.
While the FISA Amendments Act does not include retroactive immunity
for telecommunications companies, it does ensure the ability of these
companies to fully defend themselves if they are sued in a court of
law. This bill provides these telecommunications companies a way to
present their defenses in secure proceedings and gives them access to
any documents relating to their case that the government could
otherwise withhold as ``state secrets.''
We owe our intelligence agencies clear rules and guidelines in order
to perform their duties to the fullest, just as we owe it to every
American to protect their rights and freedoms. I support the passage of
H.R. 3773, The FISA Amendments Act of 2008, and I urge my colleagues to
join me.
Mr. SMITH of Texas. Mr. Speaker, I submit the following for the
Record.
FISA Fix For Lawyers
National Security: Wiretap law is supposed to protect the
U.S. by discovering and foiling terrorist operations.
Congressional Democrats seem to think its purpose is to line
the pockets of their trial lawyer supporters.
House Democrats want to enact a terrorist surveillance law
that puts lawyers' fees before the safety of Americans. It's
a bill so skewed that its passage on a vote scheduled for
Thursday was questionable even to Democrats in the majority.
At issue is the help given by telecom companies such as
AT&T and Verizon in monitoring the telephone and Internet
communications of suspected terrorists with contacts within
the U.S.
Those heroic firms have saved hundreds, if not thousands,
of innocent lives with their cooperation in helping to obtain
information that allowed law enforcement to prevent post-9/ll
attacks.
Congressional Democrats steadfastly refuse to protect those
firms from lawsuits backed by the American Civil Liberties
Union. Their message to those patriotic companies seems to
be:
You helped President Bush succeed at something we wanted to
destroy him over, so now that we control Congress we're going
to give you your well-deserved comeuppance.
The ACLU issued a statement expressing delight over the
House Democrats' new bill and was also pleased that the
Democrats would let the authorization to track terrorists
expire in only two years--as if there is any realistic chance
that the global war on terror could be behind us by then.
A permanent Foreign Intelligence Surveillance Act could
always be revisited or repealed by Congress, yet Speaker
Nancy Pelosi's Democrats insist on a FISA sunset provision.
The group said it is ``also heartened by the role retained
by the FISA court in overseeing the program,'' an allusion to
the fact that under the Democrats' bill, any and all domestic
surveillance for anti-terrorism purposes would have to first
get the approval of the special FISA courts--a state of
affairs that the president has emphatically stated places the
nation at risk.
Moreover, it is a state of affairs under which the country
is vulnerable today, because the Democratic Congress let FISA
expire nearly a month ago.
The Senate's FISA revision provides retroactive protection
from lawsuits to the telecom firms. If nothing is done, they
could conceivably be liable for hundreds of millions of
dollars--which would be some thanks for helping to protect
Americans from al-Qaida.
House Democrats instead would give only ``prospective
liability protection for telecom companies that assist with
lawful surveillance'', according to a statement from House
Majority Leader Steny Hoyer.
One of the bill's proposed procedures apparently would be
for the firms to tell the judge state secrets as part of
their defense
[[Page H1760]]
while the ACLU lawyers and other plaintiff attorneys are out
of the room.
But the ACLU's strategy in trying to destroy our
government's ability to monitor terrorist communications has
been to take their cases to federal courts in different
regions--in effect, judge shopping.
Because the House Democrats' FISA bill would, as the ACLU
puts it, keep ``the courthouse door open,'' chances are that
they would be able to find judges only too happy to make the
telecom firms pay multimillion-dollar awards. The only just
solution is for Congress to grant those firms full
retroactive immunity.
As Vice President Dick Cheney recently told the Heritage
Foundation, ``those who assist the government in tracking
terrorists should not be punished with lawsuits . . . it's
not even proper to confirm whether any given company provided
assistance.'' He added: ``In some situations, there is no
alternative to seeking assistance from the private sector.''
The Center for Responsive Politics reports that trial
lawyers contributed some $85 million to Democratic candidates
in the 2006 election cycle. Obviously, Democrats believe
letting those legal parasites feed off patriotic companies
who have saved countless American lives is what is expected
of them in return.
Mr. STARK. Madam Speaker, I rise today to support the House's changes
to the Foreign Intelligence Surveillance Act, FISA, Amendments Act.
After 8 long years of watching Republicans kowtow to the President's
tyrannical policies, I am only too happy to stand by a bill that will
hold his administration accountable to some of their past actions and
prevent future administrations from abusing our civil liberties.
Our government was designed to be of the people, by the people, and
for the people. But under President Bush, it has been a government of
the executive branch, by the executive branch, and for the executive
branch. The Administration's so-called ``security measures''--tapping
phones, obtaining personal records, and spying without warrants--have
undermined basic freedoms and diminished trust in government.
It will take a great deal of time to clean up the mess left by this
administration. We can take an important step forward today by giving
telecommunications companies their day in court and establishing strict
restrictions to prevent the government from spying whenever and on
whomever it pleases. By voting for this bill, we make it clear that we
won't let the President make a quick escape from Washington without
bringing his transgressions to light. Rather than hide behind the
threat of terrorism to justify illegal activities, as past Congresses
have done, we will defend the constitutional rights of our
constituents.
The Bush administration has tried its hardest to convince us that our
country's most basic tenets are unattainable. It believes that in order
to protect life, we must sacrifice liberty and the pursuit of
happiness. That line of thought is wrong, President Bush is wrong, and
I encourage my colleagues to support this bill and show that they are
above the executive branch's scare tactics.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to House Resolution 1041, the previous question is ordered.
The question is on the motion offered by the gentleman from Michigan
(Mr. Conyers).
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. SMITH of Texas. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The vote was taken by electronic device, and there were--yeas 213,
nays 197, answered ``present'' 1, not voting 20, as follows:
[Roll No. 145]
YEAS--213
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Cardoza
Carnahan
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Costa
Costello
Courtney
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Engel
Eshoo
Etheridge
Farr
Fattah
Foster
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth Sandlin
Higgins
Hill
Hinojosa
Hirono
Hodes
Holt
Honda
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Langevin
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McGovern
McIntyre
McNerney
McNulty
Meek (FL)
Meeks (NY)
Melancon
Michaud
Miller (NC)
Miller, George
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Pelosi
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Reyes
Richardson
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Tsongas
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Wexler
Wilson (OH)
Wu
Wynn
Yarmuth
NAYS--197
Aderholt
Akin
Alexander
Bachmann
Bachus
Barrett (SC)
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono Mack
Boozman
Boren
Brady (TX)
Broun (GA)
Brown (SC)
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Capuano
Carney
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Cooper
Crenshaw
Cubin
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Fallin
Feeney
Ferguson
Filner
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Hall (TX)
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hinchey
Hobson
Hoekstra
Holden
Hulshof
Inglis (SC)
Issa
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kucinich
Kuhl (NY)
Lamborn
Lampson
Latham
LaTourette
Latta
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McDermott
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Myrick
Neugebauer
Paul
Pearce
Pence
Petri
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Saxton
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuler
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Wamp
Welch (VT)
Weldon (FL)
Westmoreland
Whitfield (KY)
Wilson (NM)
Wilson (SC)
Wittman (VA)
Wolf
Young (FL)
ANSWERED ``PRESENT''--1
Davis, Lincoln
NOT VOTING--20
Boustany
Brown-Waite, Ginny
Cramer
Everett
Green, Gene
Hooley
Hunter
LaHood
Musgrave
Nunes
Oberstar
Peterson (PA)
Pickering
Rangel
Rush
Tancredo
Walsh (NY)
Weller
Woolsey
Young (AK)
{time} 1408
Messrs. KINGSTON, EHLERS, and McDERMOTT changed their vote from
``yea'' to ``nay.''
So the motion was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________
