[Congressional Record: June 20, 2008 (House)]
[Page H5743-H5774]
FISA AMENDMENTS ACT OF 2008
Mr. CONYERS. Madam Speaker, pursuant to House Resolution 1285, I call
up the bill (H.R. 6304) to amend the Foreign Intelligence Surveillance
Act of 1978 to establish a procedure for authorizing certain
acquisitions of foreign intelligence, and for other purposes, and ask
for its immediate consideration in the House.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 6304
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
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 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. Weapons of mass destruction.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 202. Technical amendments.
TITLE III--REVIEW OF PREVIOUS ACTIONS
Sec. 301. Review of previous actions.
TITLE IV--OTHER PROVISIONS
Sec. 401. Severability.
Sec. 402. Effective date.
Sec. 403. Repeals.
Sec. 404. 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 at the end the following:
``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',
`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 under 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 under 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);
[[Page H5744]]
``(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, upon the issuance of an order in accordance with
subsection (i)(3) or a determination under subsection (c)(2),
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 if the
purpose of such acquisition is 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.--
``(1) In general.--An acquisition authorized under
subsection (a) shall be conducted only in accordance with--
``(A) the targeting and minimization procedures adopted in
accordance with subsections (d) and (e); and
``(B) upon submission of a certification in accordance with
subsection (g), such certification.
``(2) Determination.--A determination under this paragraph
and for purposes of subsection (a) is a determination by the
Attorney General and the Director of National Intelligence
that exigent circumstances exist because, without immediate
implementation of an authorization under subsection (a),
intelligence important to the national security of the United
States may be lost or not timely acquired and time does not
permit the issuance of an order pursuant to subsection (i)(3)
prior to the implementation of such authorization.
``(3) Timing of determination.--The Attorney General and
the Director of National Intelligence may make the
determination under paragraph (2)--
``(A) before the submission of a certification in
accordance with subsection (g); or
``(B) by amending a certification pursuant to subsection
(i)(1)(C) at any time during which judicial review under
subsection (i) of such certification is pending.
``(4) Construction.--Nothing in title I shall be construed
to require an application for a court order under such title
for an acquisition that is targeted in accordance with this
section at a person reasonably believed to be located outside
the United States.
``(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--
``(A) ensure that any acquisition authorized under
subsection (a) is limited to targeting persons reasonably
believed to be located outside the United States; and
``(B) prevent 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 adopted in
accordance with 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 that meet the definition
of minimization procedures under section 101(h) or 301(4), as
appropriate, for acquisitions authorized under subsection
(a).
``(2) Judicial review.--The minimization procedures adopted
in accordance with 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 for a court order is filed as
required by this Act.
``(2) Submission of guidelines.--The Attorney General shall
provide the guidelines adopted in accordance with paragraph
(1) to--
``(A) the congressional intelligence committees;
``(B) the Committees on the Judiciary of the Senate and the
House of Representatives; and
``(C) the Foreign Intelligence Surveillance Court.
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the implementation of an authorization under subsection (a),
the Attorney General and the Director of National
Intelligence shall provide to the Foreign Intelligence
Surveillance Court a written certification and any supporting
affidavit, under oath and under seal, in accordance with this
subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence make a determination under
subsection (c)(2) and time does not permit the submission of
a certification under this subsection prior to the
implementation of an authorization under subsection (a), the
Attorney General and the Director of National Intelligence
shall submit to the Court a certification for such
authorization as soon as practicable but in no event later
than 7 days after such determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are procedures in place that have been
approved, have been submitted for approval, or will be
submitted with the certification for approval by the Foreign
Intelligence Surveillance Court that are reasonably designed
to--
``(I) ensure that an acquisition authorized under
subsection (a) is limited to targeting persons reasonably
believed to be located outside the United States; and
``(II) prevent 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;
``(ii) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h) or 301(4), as appropriate; and
``(II) have been approved, have been submitted for
approval, or will be submitted with the certification for
approval by the Foreign Intelligence Surveillance Court;
``(iii) guidelines have been adopted in accordance with
subsection (f) to ensure compliance with the limitations in
subsection (b) and to ensure that an application for a court
order is filed as required by this Act;
``(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 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) include the procedures adopted in accordance with
subsections (d) and (e);
``(C) 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 advice
and consent of the Senate; or
``(ii) the head of an element of the intelligence
community;
``(D) include--
``(i) an effective date for the authorization that is at
least 30 days after the submission of the written
certification to the court; or
``(ii) if the acquisition has begun or the effective date
is less than 30 days after the submission of the written
certification to the court, the date the acquisition began or
the effective date for the acquisition; and
``(E) if the Attorney General and the Director of National
Intelligence make a determination under subsection (c)(2),
include a statement that such determination has been made.
``(3) Change in effective date.--The Attorney General and
the Director of National Intelligence may advance or delay
the effective date referred to in paragraph (2)(D) by
submitting an amended certification in accordance with
subsection (i)(1)(C) to the Foreign Intelligence Surveillance
Court for review pursuant to subsection (i).
``(4) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which an
acquisition authorized under subsection (a) will be directed
or conducted.
``(5) Maintenance of certification.--The Attorney General
or a designee of the Attorney General shall maintain a copy
of a certification made under this subsection.
``(6) Review.--A certification submitted in accordance with
this subsection shall be subject to judicial review pursuant
to subsection (i).
``(h) Directives and Judicial Review of Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the
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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 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
in accordance with a directive issued pursuant to paragraph
(1).
``(3) Release from liability.--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 file a petition to modify or set aside such
directive with the Foreign Intelligence Surveillance Court,
which shall have jurisdiction to review such 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 under section
103(e)(1) not later than 24 hours after the filing of such
petition.
``(C) Standards for review.--A judge considering a petition
filed under subparagraph (A) 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 such petition does not consist of
claims, defenses, or other legal contentions that are
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 such
petition and affirm the directive or any part of the
directive that is the subject of such petition and order the
recipient to comply with the directive or any part of it.
Upon making a determination under this subparagraph or
promptly thereafter, the judge shall provide a written
statement for the record of the reasons for such
determination.
``(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 such petition not later than
30 days after being assigned such petition. If the judge does
not set 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 record 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 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 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 under section
103(e)(1) not later than 24 hours after the filing of such
petition.
``(C) Procedures for review.--A judge considering a
petition filed under subparagraph (A) shall, not later than
30 days after being assigned such petition, 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. 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 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 petition and shall provide a written statement
for the record of the reasons for a decision under this
subparagraph.
``(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 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) 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 a certification submitted in
accordance with subsection (g) and the targeting and
minimization procedures adopted in accordance with
subsections (d) and (e), and amendments to such certification
or such procedures.
``(B) Time period for review.--The Court shall review a
certification submitted in accordance with subsection (g) and
the targeting and minimization procedures adopted in
accordance with subsections (d) and (e) and shall complete
such review and issue an order under paragraph (3) not later
than 30 days after the date on which such certification and
such procedures are submitted.
``(C) Amendments.--The Attorney General and the Director of
National Intelligence may amend a certification submitted in
accordance with subsection (g) or the targeting and
minimization procedures adopted in accordance with
subsections (d) and (e) as necessary at any time, including
if the Court is conducting or has completed review of such
certification or such procedures, and shall submit the
amended certification or amended procedures to the Court not
later than 7 days after amending such certification or such
procedures. The Court shall review any amendment under this
subparagraph under the procedures set forth in this
subsection. The Attorney General and the Director of National
Intelligence may authorize the use of an amended
certification or amended procedures pending the Court's
review of such amended certification or amended procedures.
``(2) Review.--The Court shall review the following:
``(A) Certification.--A certification submitted in
accordance with subsection (g) to determine whether the
certification contains all the required elements.
``(B) Targeting procedures.--The targeting procedures
adopted in accordance with subsection (d) to assess whether
the procedures are reasonably designed to--
``(i) ensure that an acquisition authorized under
subsection (a) is limited to targeting persons reasonably
believed to be located outside the United States; and
``(ii) prevent 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
adopted in accordance with subsection (e) to assess whether
such procedures meet the definition of minimization
procedures under section 101(h) or section 301(4), as
appropriate.
``(3) Orders.--
``(A) Approval.--If the Court finds that a certification
submitted in accordance with subsection (g) contains all the
required elements and that the targeting and minimization
procedures adopted in accordance with 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, or continued use in the case of an
acquisition authorized pursuant to a determination under
subsection (c)(2), of the procedures for the acquisition.
``(B) Correction of deficiencies.--If the Court finds that
a certification submitted in accordance with subsection (g)
does not contain all the required elements, or that the
procedures adopted in accordance with 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 on which the
Court issues the order; or
``(ii) cease, or not begin, the implementation of the
authorization for which such certification was submitted.
``(C) Requirement for written statement.--In support of an
order under this subsection, the Court shall provide,
simultaneously with the order, for the record a written
statement of the reasons for the order.
``(4) Appeal.--
``(A) Appeal to the court of review.--The Government may
file a petition with the Foreign Intelligence Surveillance
Court of Review for review of an order under this subsection.
The Court of Review shall have jurisdiction to consider such
petition. For any decision under this subparagraph affirming,
[[Page H5746]]
reversing, or modifying an order of the Foreign Intelligence
Surveillance Court, the Court of Review shall provide for the
record a written statement of the reasons for the decision.
``(B) Continuation of acquisition pending rehearing or
appeal.--Any acquisition affected by an order under paragraph
(3)(B) may continue--
``(i) during the pendency of any rehearing of the order by
the Court en banc; and
``(ii) if the Government files a petition for review of 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 a petition for review of an order
under paragraph (3)(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 review.
``(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) Reauthorization of authorizations in effect.--If the
Attorney General and the Director of National Intelligence
seek to reauthorize or replace an authorization issued under
subsection (a), the Attorney General and the Director of
National Intelligence shall, to the extent practicable,
submit to the Court the certification prepared in accordance
with subsection (g) and the procedures adopted in accordance
with subsections (d) and (e) at least 30 days prior to the
expiration of such authorization.
``(B) Reauthorization of orders, authorizations, and
directives.--If the Attorney General and the Director of
National Intelligence seek to reauthorize or replace an
authorization issued under subsection (a) by filing a
certification pursuant to subparagraph (A), that
authorization, and any directives issued thereunder and any
order related thereto, shall remain in effect,
notwithstanding the expiration provided for in subsection
(a), until the Court issues an order with respect to such
certification under paragraph (3) at which time the
provisions of that paragraph and paragraph (4) shall apply
with respect to such certification.
``(j) Judicial Proceedings.--
``(1) Expedited judicial 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 as
necessary for good cause in a manner consistent with national
security.
``(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, appeals, orders, and statements
of reasons for a 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 Attorney General and the
Director of National Intelligence shall retain a directive or
an order issued under this section for a period of not less
than 10 years from the date on which such directive or such
order is issued.
``(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 targeting and
minimization procedures adopted in accordance with
subsections (d) and (e) and the guidelines adopted in
accordance with subsection (f) and shall submit each
assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution--
``(i) the congressional intelligence committees; and
``(ii) the Committees on the Judiciary of the House of
Representatives and the Senate.
``(2) Agency assessment.--The Inspector General of the
Department of Justice and the Inspector General of each
element of the intelligence community authorized to acquire
foreign intelligence information under subsection (a), with
respect to the department or element of such Inspector
General--
``(A) are authorized to review compliance with the
targeting and minimization procedures adopted in accordance
with subsections (d) and (e) and the guidelines adopted in
accordance with subsection (f);
``(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 communications of such targets
were reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution--
``(I) the congressional intelligence committees; and
``(II) the Committees on the Judiciary of the House of
Representatives and the Senate.
``(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 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 communications of such targets 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,
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 and, as appropriate, 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) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution--
``(I) the congressional intelligence committees; and
``(II) the Committees on the Judiciary of the House of
Representatives and the Senate.
``SEC. 703. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES
TARGETING 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 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 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 effective period of an order issued
pursuant to subsection (c), an acquisition targeting such
United States person under this section shall cease unless
the targeted United States person is again reasonably
believed to be located outside the United States while an
order issued pursuant to subsection (c) is in effect. Nothing
in this section shall be construed to limit the authority of
the 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) 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
[[Page H5747]]
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
meet the definition of minimization procedures under section
101(h) or 301(4), as appropriate;
``(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 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 meet the
definition of minimization procedures under section 101(h) or
301(4), as appropriate; and
``(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 the
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 under section 101(h) or 301(4), as
appropriate, the judge shall enter an order so stating and
provide a written statement for the record of the reasons for
the 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 pursuant to 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 the
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) a summary of 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) Directives.--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) if applicable, 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) if applicable, 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) if applicable, 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
[[Page H5748]]
approving an acquisition 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.--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 subsection (c) or
(d), respectively.
``(f) Appeal.--
``(1) Appeal to the foreign intelligence surveillance court
of review.--The Government may file a petition 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 petition 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.
``(g) Construction.--Except as provided in this section,
nothing in this Act shall be construed to require an
application for a court order for an acquisition that is
targeted in accordance with this section at a United States
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 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
with respect to such targeted United States person or the
Attorney General has authorized an emergency acquisition
pursuant to subsection (c) or (d), respectively, or any other
provision of this Act.
``(3) Limitations.--
``(A) Moving or misidentified targets.--If a United States
person targeted under this subsection is reasonably believed
to be located in the United States during the effective
period of an order issued pursuant to subsection (c), an
acquisition targeting such United States person under this
section shall cease unless the targeted United States person
is again reasonably believed to be located outside the United
States during the effective period of such order.
``(B) Applicability.--If an acquisition for foreign
intelligence purposes 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.
``(C) Construction.--Nothing in this paragraph shall be
construed to limit the authority of the 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) 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
meet the definition of minimization procedures under section
101(h) or 301(4), as appropriate;
``(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, with respect to
their dissemination provisions, meet the definition of
minimization procedures under section 101(h) or 301(4), as
appropriate; and
``(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 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 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 subparagraph 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 301(4), as
appropriate, 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).
``(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
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 referred to in paragraph (1)(C) by
reviewing the circumstances under which information
concerning United States persons was disseminated, provided
that the
[[Page H5749]]
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 can, 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 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 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), an emergency
acquisition 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 to
the Court pursuant to paragraph (1) is denied, or in any
other case where the acquisition 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 a petition 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 petition 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 704 is
proposed to be conducted both inside and outside the United
States, a judge having jurisdiction under section 703(a)(1)
or 704(a)(1) may issue simultaneously, upon the request of
the Government in a joint application complying with the
requirements of sections 703(b) and 704(b), orders under
sections 703(c) and 704(c), as appropriate.
``(b) Concurrent Authorization.--If an order authorizing
electronic surveillance or physical search has been obtained
under section 105 or 304, the Attorney General may authorize,
for the effective period of that order, without an order
under section 703 or 704, the targeting of that United States
person for the purpose of acquiring foreign intelligence
information while such person is reasonably believed to be
located outside the United States.
``SEC. 706. USE OF INFORMATION ACQUIRED UNDER TITLE VII.
``(a) Information Acquired Under Section 702.--Information
acquired from an acquisition conducted under section 702
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 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.
``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, consistent
with the Rules of the House of Representatives, the Standing
Rules of the Senate, and Senate Resolution 400 of the 94th
Congress or any successor Senate resolution, concerning the
implementation of this title.
``(b) Content.--Each report under subsection (a) shall
include--
``(1) with respect to section 702--
``(A) any certifications submitted in accordance with
section 702(g) during the reporting period;
``(B) with respect to each determination under section
702(c)(2), the reasons for exercising the authority under
such section;
``(C) any directives issued under section 702(h) during the
reporting period;
``(D) a description of the judicial review during the
reporting period of such certifications and targeting and
minimization procedures adopted in accordance with
subsections (d) and (e) of section 702 and utilized with
respect to an acquisition under such section, including a
copy of an 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 section 702(a);
``(G) a description of any incidents of noncompliance--
``(i) with a directive issued by the Attorney General and
the Director of National Intelligence under section 702(h),
including incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under section 702(h); and
``(ii) by an element of the intelligence community with
procedures and guidelines adopted in accordance with
subsections (d), (e), and (f) of section 702; 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; and
``(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 section 704(b);
``(B) the total number of such orders--
``(i) granted;
``(ii) modified; and
``(iii) 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
applications.
``SEC. 708. SAVINGS PROVISION.
``Nothing in this title shall be construed to limit the
authority of the 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 targeting
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;''.
[[Page H5750]]
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 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 each 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 under section 103(a).
``(2) Foreign intelligence surveillance court of review.--
The term `Foreign Intelligence Surveillance Court of Review'
means the court established under 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.
(a) In General.--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 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).''.
[[Page H5751]]
(b) Conforming Amendment.--Section 108(a)(2)(C) of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1808(a)(2)(C)) is amended by striking ``105(f)'' and
inserting ``105(e)'';
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--
(1) in subsection (a)--
(A) by striking paragraph (1);
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(C) in paragraph (2)(B), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; 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) 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.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''.
(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 702(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:
``(i) Nothing in this Act shall be construed to reduce or
contravene the inherent authority of the court established
under 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. 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;
(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
[[Page H5752]]
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 designed, intended, or has the capability to cause a mass
casualty incident;
``(2) any weapon that is designed, intended, or has the
capability 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 to cause death, illness, or serious bodily injury
to a significant number of persons; or
``(4) any weapon that is designed, intended, or has the
capability to release 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 Amendments.--The Foreign
Intelligence Surveillance Act of 1978 is further amended--
(1) in paragraph (2) of section 105(d) (50 U.S.C. 1805(d)),
as redesignated by section 105(a)(5) of this Act, by striking
``section 101(a) (5) or (6)'' and inserting ``paragraph (5),
(6), or (7) of section 101(a)'';
(2) in section 301(1) (50 U.S.C. 1821(1)), by inserting
``weapon of mass destruction,'' after ``person,''; and
(3) in section 304(d)(2) (50 U.S.C. 1824(d)(2)), by
striking ``section 101(a) (5) or (6)'' and inserting
``paragraph (5), (6), or (7) of section 101(a)''.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. 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 at the end 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) Civil action.--The term `civil action' includes a
covered civil action.
``(3) 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.
``(4) Contents.--The term `contents' has the meaning given
that term in section 101(n).
``(5) 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.
``(6) 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).
``(7) 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)).
``(8) 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 702(h).
``(9) 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.--Notwithstanding any
other provision of law, a civil action may not 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 district court of the United States
in which such action is pending that--
``(1) any assistance by that person was provided pursuant
to an order of the court established under section 103(a)
directing such assistance;
``(2) 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;
``(3) any assistance by that person was provided pursuant
to 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 702(h) directing such assistance;
``(4) in the case of a covered civil action, the assistance
alleged to have been provided by the electronic communication
service provider was--
``(A) 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
``(B) the subject of a written request or directive, or a
series of written requests or directives, 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
``(5) the person did not provide the alleged assistance.
``(b) Judicial Review.--
``(1) Review of certifications.--A certification under
subsection (a) shall be given effect unless the court finds
that such certification is not supported by substantial
evidence provided to the court pursuant to this section.
``(2) Supplemental materials.--In its review of a
certification under subsection (a), the court may examine the
court order, certification, written request, or directive
described in subsection (a) and any relevant court order,
certification, written request, or directive submitted
pursuant to subsection (d).
``(c) 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) or the supplemental materials provided
pursuant to subsection (b) or (d) would harm the national
security of the United States, the court shall--
``(1) review such certification and the supplemental
materials in camera and ex parte; and
``(2) limit any public disclosure concerning such
certification and the supplemental materials, including any
public order following such in camera and ex parte review, to
a statement as to whether the case is dismissed and a
description of the legal standards that govern the order,
without disclosing the paragraph of subsection (a) that is
the basis for the certification.
``(d) Role of the Parties.--Any plaintiff or defendant in a
civil action may submit any relevant court order,
certification, written request, or directive to the district
court referred to in subsection (a) for review and shall be
permitted to participate in the briefing or argument of any
legal issue in a judicial proceeding conducted pursuant to
this section, but only to the extent that such participation
does not require the disclosure of classified information to
such party. To the extent that classified information is
relevant to the proceeding or would be revealed in the
determination of an issue, the court shall review such
information in camera and ex parte, and shall issue any part
of the court's written order that would reveal classified
information in camera and ex parte and maintain such part
under seal.
``(e) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General (or Acting Attorney General) or the Deputy
Attorney General.
[[Page H5753]]
``(f) Appeal.--The courts of appeals shall have
jurisdiction of appeals from interlocutory orders of the
district courts of the United States granting or denying a
motion to dismiss or for summary judgment under this section.
``(g) 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.
``(h) Relationship to Other Laws.--Nothing in this section
shall be construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
``(i) Applicability.--This section shall apply to a civil
action pending on or filed after the date of the enactment of
the FISA Amendments Act of 2008.
``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
``(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
commenced after the date of the enactment of the FISA
Amendments Act of 2008.
``SEC. 804. REPORTING.
``(a) Semiannual Report.--Not less frequently than once
every 6 months, the Attorney General shall, in a manner
consistent with national security, the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution, fully inform 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 subsection (a) shall
include--
``(1) any certifications made under section 802;
``(2) a description of the judicial review of the
certifications made under section 802; and
``(3) any actions taken to enforce the provisions of
section 803.''.
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.), 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.
``Sec. 804. Reporting.''.
TITLE III--REVIEW OF PREVIOUS ACTIONS
SEC. 301. 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 under 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, the Department of
Defense, 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) access to legal reviews of the Program and access to
information about 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) Integration of other reviews.--The Counsel of the
Office of Professional Responsibility of the Department of
Justice shall provide the report of any investigation
conducted by such Office on matters relating to the Program,
including any investigation of the process through which
legal reviews of the Program were conducted and the substance
of such reviews, to the Inspector General of the Department
of Justice, who shall integrate the factual findings and
conclusions of such investigation into its review.
(C) 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, the
Department of Defense, 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, the Department of
Defense, and any other Inspector General required to conduct
a review under subsection (b)(1), shall submit to the
appropriate committees of Congress, in a manner consistent
with national security, 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 with respect to
the reviews.
(3) Form.--A report 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.
(3) Transfer of personnel.--The Attorney General, the
Secretary of Defense, the Director of National Intelligence,
the Director of the National Security Agency, or the head of
any other element of the intelligence community may transfer
personnel to the relevant Office of the Inspector General
required to conduct a review under subsection (b)(1) and
submit a report under subsection (c) and, in addition to any
other personnel authorized by law, are authorized to fill any
vacancy caused by such a transfer. Personnel transferred
under this paragraph shall perform such duties relating to
such review as the relevant Inspector General shall direct.
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
[[Page H5754]]
held invalid, the validity of the remainder of the Act, of
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 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 et seq.) 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, 2012, 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, 2012--
(A) the table of contents in the first section of such Act
(50 U.S.C. 1801 et seq.) 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.--Except as provided in paragraph (7),
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, any
amendment made by this Act, or 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 the Foreign Intelligence
Surveillance Act of 1978, as added by sections 2 and 3,
respectively, of the Protect America Act of 2007, shall
continue to apply with respect to an order, authorization, or
directive referred to in paragraph (1) until the later of--
(i) the expiration of such order, authorization, or
directive; or
(ii) the date on which final judgment is entered for any
petition or other litigation relating to 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), except for purposes of subsection
(j) of such section.
(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) of the Foreign Intelligence
Surveillance Act (50 U.S.C. 1803(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 later of--
(A) the expiration of all orders, authorizations, or
directives referred to in paragraph (1); or
(B) the date on which final judgment is entered for any
petition or other litigation relating to such order,
authorization, or directive.
(6) Reporting requirements.--
(A) Continued applicability.--Notwithstanding any other
provision of this Act, any amendment made by 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) Replacement of orders, authorizations, and
directives.--
(A) In general.--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), with an
authorization under section 702 of the Foreign Intelligence
Surveillance Act of 1978 (as added by section 101(a) of this
Act), the Attorney General and the Director of National
Intelligence shall, to the extent practicable, submit to the
Foreign Intelligence Surveillance Court (as such term is
defined in section 701(b)(2) of such Act (as so added)) a
certification prepared in accordance with subsection (g) of
such section 702 and the procedures adopted in accordance
with subsections (d) and (e) of such section 702 at least 30
days before the expiration of such authorization.
(B) Continuation of existing orders.--If the Attorney
General and the Director of National Intelligence seek to
replace an authorization 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. 522), by filing a certification in accordance
with subparagraph (A), that authorization, and any directives
issued thereunder and any order related thereto, shall remain
in effect, notwithstanding the expiration provided for in
subsection (a) of such section 105B, until the Foreign
Intelligence Surveillance Court (as such term is defined in
section 701(b)(2) of the Foreign Intelligence Surveillance
Act of 1978 (as so added)) issues an order with respect to
that certification under section 702(i)(3) of such Act (as so
added) at which time the provisions of that section and of
section 702(i)(4) of such Act (as so added) shall apply.
(8) Effective date.--Paragraphs (1) through (7) 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, 2012.--Notwithstanding
any other provision of this Act, any amendment made by this
Act, or 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, any amendment made by this Act, or 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 later of--
(A) the expiration of such order, authorization, or
directive; or
(B) the date on which final judgment is entered for any
petition or other litigation relating to 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
403(a)(1)(B)(ii), 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);
[[Page H5755]]
(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 authorization expires; or
(B) the date that is 90 days after the date of the
enactment of this Act.
The SPEAKER pro tempore. Pursuant to House Resolution 1285, debate
shall not exceed 1 hour, with 30 minutes equally divided and controlled
by the chairman and ranking minority member of the Committee on the
Judiciary, and 30 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), the gentleman from Texas
(Mr. Smith), the gentleman from Texas (Mr. Reyes), and the gentleman
from Michigan (Mr. Hoekstra) each will control 15 minutes.
The Chair recognizes the gentleman from Michigan (Mr. Conyers).
General Leave
Mr. CONYERS. Madam Speaker, I ask unanimous consent that all Members
have 5 legislative days to revise and extend their remarks and include
extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Michigan?
There was no objection.
Mr. CONYERS. Madam Speaker, I yield myself such time as I may
consume.
Members of the House, several months ago on October 16, 2007, to be
exact, the House passed the Foreign Intelligence Surveillance Act
legislation, known as the RESTORE Act. In the view of this Member, the
RESTORE Act was a reasonable and balanced one giving the administration
the power it needs to combat terrorism while protecting our precious
rights and liberties.
The legislation before us today, which I concede includes significant
improvements over the Senate legislation, goes beyond what I think was
a reasonable bottom line in the form of the RESTORE Act.
Title I of the bill continues the House approach by providing
mechanisms to ensure that FISA's longstanding exclusivity is crystal
clear. It states only a new statute directly addressing the executive
branch's foreign intelligence surveillance authority can modify FISA.
Secondly, it provides sunshine by requiring that the government
requests to private parties for surveillance assistance must actually
cite the statutory authority under which they're issued.
Now in earlier versions of FISA reform, the administration claimed
that prior court approval of procedures for overseas surveillance would
hurt national security. This matter is now laid to rest with the
consensus that upfront court review is indeed appropriate. The
requirement for individual warrants and probable cause determinations
for Americans overseas is an improvement over even the original FISA
legislation. There is a provision in the legislation that permits the
Attorney General and Director of National Intelligence to begin
surveillance prior to seeking court approval for the necessary
procedures in exigent circumstances. This is intended to be used
rarely, if at all, and was included upon assurances from the
administration that agrees that it shall not be used routinely.
The measure before us further requires extensive oversight by
Congress and the independent Inspectors General to prevent abuse. It
mandates guidelines for targeting minimization and to prevent reverse
targeting and tasks the Inspector General to monitor compliance with
those protections.
Now title II of the legislation concerning telecom liability raises
the most serious concerns in my view. In the past, I have said I would
be open to developing a set of procedures that allow both plaintiffs
and defendants to make their case. Unfortunately, this bill goes well
beyond that and changes the substantive standard for legal liability by
the telecom community, by the telecom companies and does so on a
retroactive basis, retroactive immunity. And so I appreciate that the
final bill does not send the matter to a new secret court and does
grant the court a meaningful role in the determination. Unfortunately,
these improvements do not redeem the overall provision.
Title III of the bill will also ask the Inspector General to conduct
independent investigations into the President's warrantless wiretapping
program. This inquiry will help uncover the truth for the American
people, hopefully, about the President's activities. And then there is
a part in here about an emergency provision any U.S. citizen can be
wiretapped. And I strenuously object to that.
Six years ago, the Administration unilaterally chose to engage in
warrantless surveillance of American citizens without court review. We
are now restoring the balance through enhanced Congressional oversight,
Inspector General investigations, and procedures to ensure that FISA
remains the exclusive means for authorizing electronic surveillance.
This bill continues the House approach by providing mechanisms to
ensure that FISA's longstanding exclusivity is crystal clear. First, it
states that only a new statute directly addressing the executive
branch's foreign intelligence surveillance authority can modify FISA.
Secondly, it provides sunshine by requiring requests for assistance to
cite the statutory authority under which they are issued. A conforming
amendment to Title 18 Section 2511(2)(a) is meant to underscore the
need to specify the specific statutory language being relied on, and
must be read in conjunction with the entirety of Sec. 102 of the
legislation. It should not be read to imply that assistance may be
sought for electronic surveillance, as defined in the statute, which is
not specifically authorized by statute.
In earlier versions of FISA reform, the Administration claimed that
prior court approval of procedures for overseas surveillance would hurt
national security. This matter is now laid to rest, with a consensus
that up-front court review is in fact appropriate. The requirement for
individual warrants and probable cause determinations for Americans
overseas is an improvement over even the original FISA legislation.
There is a provision in the legislation that permits the Attorney
General and Director of National Intelligence to begin a surveillance
prior to seeking court approval for the necessary procedures in
``exigent circumstances.'' This is intended to be used rarely, if at
all. In the normal course of events the DNI will have ample time to
submit such procedures to the FISA court for its approval before
initiating a particular surveillance.
The Congress provided this authority at the request of the DNI to
meet unforeseen and extraordinary circumstances, and the Administration
agrees that it may not be used routinely. The Administration
understands that the Congress expects its use to be very rare if it is
used at all.
[[Page H5756]]
The oversight committees will be informed of any use of the exigent
circumstances provision and are committed to effective oversight to
insure that it is not used to avoid the requirement to secure court
approval of the procedures in advance in all but the most extreme
circumstances. The exception must not swallow the rule.
The bill requires extensive oversight by Congress and the independent
Inspectors General to prevent abuse. It mandates guidelines for
targeting, minimization, and to prevent reverse targeting, and tasks
the Inspectors General to monitor compliance with those protections.
``Reverse targeting'' is specifically prohibited in Section
702(b)(2). The Intelligence Community agrees that this language
prohibits the targeting of one or more persons overseas for the purpose
of acquiring the communications of a specific is person reasonably
believed to be in the United States. Thus, Section 702(f) requires the
government to adopt guidelines to insure that this abuse does not occur
and the FISA court must review and approve these guidelines and assure
that they are consistent with the Fourth Amendment. The oversight
committees of the Congress intend to conduct rigorous oversight to
insure that these provisions are faithfully observed. In this
connection the Committee attaches particular importance to the required
annual review and the reporting in that review of the number of
disseminated reports which contain a reference to the identity of a US
person.
There is currently ongoing multi-District litigation in which a
federal District Court is conducting a review of the telecom carriers'
activities and the lawfulness of the President's warrantless
wiretapping program. This bill does not strip jurisdiction on that
Court and provide blanket immunity, as many wanted.
Instead, in cases where the program was actually designed to detect
or prevent a terrorist attack, the Court will assess an Attorney
General certification that can assert--among other reasons for
dismissal--that the carriers got certain requests and directives from
the Administration. The Court will look to see if the Attorney
General's certification is backed up with substantial evidence. That
means not only the underlying directives and requests, but supplemental
materials as well. And in cases where the Government claims that the
company did not provide the alleged assistance, a bald assertion is not
``substantial evidence''--the Government will have to back up its
claims to the Court's satisfaction.
That Title II of this bill provides procedures for assessing lawsuits
relating to warrantless surveillance since 9/11 does not imply that
such surveillance was lawful or that the Congress as a whole believes
that the service providers acted lawfully in providing assistance. Nor
can the provision remove the power of the courts hearing the cases to
determine if this provision is constitutional.
No company or private citizen asked by the executive branch to
provide assistance in securing the private information of Americans
without authority of law should read this language as implying that
Congress will act in the future to provide such a grounds for
dismissing a lawsuit. On the contrary, companies should be on notice
that the Congress is very reluctantly providing this defense as a one-
time action in an extremely unusual circumstance. It expects private
citizens and companies to provide assistance only when specifically
authorized by law.
For over 30 years we have mandated that telecommunications carriers
not be a merely unquestioning partner to surveillance activities. This
bill provides many ways for the companies to question or challenge
directives or requests for assistance, and we expect these to be used
any time there is something unusual or novel being requested.
Today's compromise will give the District Court direction and
procedures for handling the pending lawsuits. However, it is important
to note that the question of whether FISA's existing security
procedures at 50 U.S.C. 1806(f) preempt the state secrets privilege is
still being litigated in the courts in a case against the Government.
Nothing in this bill is intended to affect that litigation, or any
litigation against the Government or Government employees.
Today's vote is not the end of the matter. The bill provides for a 4-
year sunset, but this doesn't mean we cannot or should not revisit
these issues in the next congressional session. We will conduct
vigorous oversight, and will be monitoring the program through the
reports and audits. We will be keeping a close eye on the development
and implementation of reverse targeting, minimization, and targeting
procedures, in order to not only make sure that they are followed, but
to inform us as we consider what improvements need to be made to this
legislation.
On that note, I will reserve the balance of my time.
Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, after nearly a year of delays and months of
negotiations, the House today will finally vote on compromise
legislation that gives our intelligence community the tools that it
needs to protect America. I join my colleague, Mr. Hoekstra, ranking
member of the Intelligence Committee, and Chairman Reyes, as an
original cosponsor of this compromise bill.
America's enemies take on many forms, terrorist groups, foreign
governments and spies who all pose serious threat to America and its
allies. Last August, Congress passed the Protect America Act which
provided a temporary solution to the problem. The PAA expired in
February. As a result, our intelligence community could not gather two-
thirds of the foreign intelligence they needed to protect American
lives.
From day one, we insisted that any legislation passed by Congress
must not interfere with our fundamental ability to collect foreign
intelligence. This legislation accomplishes that goal. H.R. 6304 does
not extend constitutional protections to foreign terrorists and other
foreign targets overseas. The bill does allow the intelligence
community to target a foreign person overseas without a court order if
critical intelligence would be lost or not collected in a timely
manner.
We insisted that any legislation passed by Congress include strong
liability protections for telecommunications carriers that assisted the
government following the terrorist attacks of September 11, 2001, as
well as protections for their assistance in the future. H.R. 6304
provides these important protections.
We insisted that Congress enact long-term FISA legislation. The bill
we have before us today will not sunset until the end of 2012. This
compromise legislation also provides strong civil liberties protections
for Americans both within the United States and abroad. And it mandates
congressional oversight and detailed reports to the House and Senate
Judiciary and Intelligence committees and requires a review by the
Inspectors General of the Department of Justice and the intelligence
agencies. This compromise is long overdue. It is supported by both the
Department of Justice and the intelligence community.
Madam Speaker, I urge my colleagues to support this bill.
Madam Speaker, I submit the following letter for the Record:
June 19, 2008.
Hon. Nancy Pelosi,
Speaker, House of Representatives,
Washington, DC.
Dear-Madam Speaker: This letter presents the views of the
Administration on the Foreign Intelligence Surveillance Act
of 1978 (``FISA'') Amendments Act of 2008 (H.R. 6304). The
bill would modernize FISA to reflect changes in
communications technology since the Act was first passed 30
years ago. The amendments would provide the Intelligence
Community with the tools it needs to collect the foreign
intelligence necessary to secure our Nation while protecting
the civil liberties of Americans. The bill would also provide
the necessary legal protections for those companies sued
because they are believed to have helped the Government
prevent terrorist attacks in the aftermath of September 11.
Because this bill accomplishes these two goals essential to
any effort to modernize FISA, we strongly support passage of
this bill and will recommend that the President sign it.
Last August, Congress took an important step toward
modernizing FlSA by enacting the Protect America Act of 2007.
That Act allowed us temporarily to close intelligence gaps by
enabling our intelligence professionals to collect, without
having to first obtain a court order, foreign intelligence
information from targets overseas. The Act has enabled us to
gather significant intelligence critical to protecting our
Nation. It has also been implemented in a responsible way,
subject to extensive executive, congressional, and judicial
oversight in order to protect the country in a manner
consistent with safeguarding Americans' civil liberties.
Since passage of the Act, the Administration has worked
closely with Congress to address the need for long-term FISA
modernization. This joint effort has involved compromises on
both sides, but we believe that it has resulted in a strong
bill that will place the Nation's foreign intelligence effort
in this area on a firm, long-term foundation. Below, we have
set forth our views on certain important provisions of H.R.
6304.
i. title i--foreign intelligence surveillance
Title I of H.R. 6304 contains key authorities that would
ensure that our intelligence agencies have the tools they
need to collect vital foreign intelligence information and
would provide significant safeguards for the civil liberties
of Americans.
[[Page H5757]]
Court Approval. With respect to authorizations for foreign
intelligence surveillance directed at foreign targets outside
the United States, the bill provides that the Foreign
Intelligence Surveillance Court (FISC) would review
certifications made by the Attorney General and the Director
of NationaI Intelligence relating to these acquisitions, the
reasonableness of the procedures used by the Intelligence
Community to ensure the targets are overseas, and the
minimization procedures used to protect the privacy of
Americans. The scope of the FISC's review is carefully and
rightly crafted to focus on aspects of the acquisition that
may affect the privacy rights of Americans so as not to
confer quasi-constitutional rights on foreign terrorists and
other foreign intelligence targets outside the United States.
We have been clear that any satisfactory bill could not
require individual court orders to target non-United States
persons outside the United States, nor could a bill establish
a court-approval mechanism that would cause the Intelligence
Community to lose valuable foreign intelligence while
awaiting such approval. H.R. 6304 would do neither and would
retain for the Intelligence Community the speed and agility
that it needs to protect the Nation. The bill would establish
a schedule for court approval of certifications and
procedures relating to renewals of existing acquisition
authority. A critical feature of the H.R. 6304 would allow
existing acquisitions, which were the subject of court review
under the Protect America Act or will be the subject of such
review under the H.R. 6304, to continue pending court review.
With respect to new acquisitions, absent exigent
circumstances, Court review of new procedures and
certifications would take place before the Government begins
the acquisition. The exigent circumstances exception is
critical to allowing the Intelligence Community to respond
swiftly to changing circumstances when the Attorney General
and the Director of National Intelligence determine that
intelligence may be lost or not timely acquired. Such exigent
circumstances could arise in certain situations where an
unexpected gap has opened in our intelligence collection
efforts. Taken together, these provisions would enable the
Intelligence Community to keep closed the intelligence gaps
that existed before the passage of the Protect America Act
and ensure that it will have the opportunity to collect
critical foreign intelligence information in the future.
Exclusive means. H.R. 6304 contains an exclusive means
provision that goes beyond the exclusive means provision that
was passed as part of FISA. As we have previously stated, we
believe that the provision will complicate the ability of
Congress to pass, in an emergency situation, a law to
authorize immediate collection of communications in the
aftermath of an attack or in response to a grave threat to
the national security. Unlike other versions of this
provision, however, the one in this bill would not restrict
the authority of the Government to conduct necessary
surveillance for intelligence and law enforcement purposes in
a way that would harm national security.
Oversight and Protections for the Civil Liberties of
Americans. H.R. 6304 contains numerous provisions that
protect the civil liberties of Americans and allow for
extensive executive, congressional, and judicial oversight of
the use of the authorities. The bill would require the
Attorney General and the Director of National Intelligence to
conduct semiannual assessments of compliance with targeting
procedures and minimization procedures and to submit those
assessments to the FISC and to Congress. The FISC and
Congress would also receive annual reviews relating to those
acquisitions prepared by the heads of agencies that use the
authorities contained in the bill. Congress would receive
reviews from the Inspectors General of these agencies and of
the Department of Justice regarding compliance with the
provisions of the bill. In addition, the bill would require
the Attorney General to submit to Congress a report at
least semiannually concerning the implementation of the
authorities provided by the bill and would expand the
categories of FISA-related court documents that the
Government must provide to the congressional intelligence
and judiciary committees.
Title I also includes provisions that would protect the
civil liberties of Americans. For instance, the bill would
require for the first time that a court order be obtained to
conduct foreign intelligence surveillance outside the United
States of an American abroad. Historically, Executive Branch
procedures guided the conduct of surveillance of a U.S.
person overseas, such as when a U.S. person acts as an agent
of a foreign power, e.g., spying on behalf of a foreign
government. Given the complexity of extending judicial review
to activities outside the United States, these provisions
were carefully crafted with Congress to ensure that such
review can be accomplished while preserving the necessary
flexibility for intelligence operations. Other provisions of
the bill address concerns that some voiced about the Protect
America Act, such as clarifying that the Government cannot
``reverse target'' without a court order and requiring that
the Attorney General establish guidelines to prevent this
from occurring. We believe that, taken together, these
provisions will allow for ample oversight of the use of these
new authorities and ensure that the privacy and civil
liberties of Americans are well protected.
ii. title ii--protections for electronic communications service
providers
Title II of the bill contains, among other provisions,
vital protections for electronic communications service
providers who assist the Intelligence Community's efforts to
protect the Nation from terrorism and other foreign
intelligence threats. Title II would provide liability
protection related to future assistance while ensuring the
protection of sources and methods. Importantly, the bill
would also provide the necessary legal protection for those
companies who are sued only because they are believed to have
helped the Government with communications intelligence
activities in the aftermath of September 11, 2001.
The framework contained in the bill for obtaining
retroactive liability protection is narrowly tailored. An
action must be dismissed if the Attorney General certifies to
the district court in which the action is pending that
either: (i) the electronic communications service provider
did not provide the assistance; or (ii) the assistance was
provided in the wake of the September 11 attack and was the
subject of a written request or series of requests from a
senior Government official indicating that the activity was
authorized by the President and determined to be lawful. The
district court would be required to review this certification
before dismissing the action, and the provision allows for
the participation of the parties to the lawsuit in a manner
consistent with the protection of classified information. The
liability protection provision does not extend to the
Government or to Government officials and it does not
immunize any criminal conduct.
Providing this liability protection is critical to the
Nation's security. As the Senate Select Committee on
Intelligence recognized, ``the intelligence community cannot
obtain the intelligence it needs without assistance from
these companies.'' That committee also recognized that
companies in the future may be less willing to assist the
Government if they face the threat of private lawsuits each
time they are believed to have provided assistance. Finally,
allowing litigation over these matters risks the disclosure
of highly classified information regarding intelligence
sources and methods. As we have stated on many occasions, it
is critical that any long-term FISA modernization legislation
contain an effective liability protection provision. H.R.
6304 contains just such a provision and for this reason, as
well as those expressed with respect to Title I above, we
strongly support its passage.
III. Title III--Review of Previous Actions
Title III would require the Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, and of certain elements of the Intelligence
Community to review certain communications surveillance
activities, including the Terrorist Surveillance Program
described by the President. Although improvements have been
made over prior versions of this provision, we believe, as we
have written before, that it is unnecessary in light of the
Inspector General reviews previously completed, those already
underway, and the congressional intelligence and judiciary
committee oversight already conducted. Nevertheless, we do
not believe that, as currently drafted, the provision would
create unacceptable operational concerns. The bill contains
important provisions to make clear that such reviews should
not duplicate reviews already conducted by Inspectors
General.
IV. Title IV--Other Provisions
Title IV contains important provisions that will ensure
that the transition between the current authorities and the
authorities provided in this bill will not have a detrimental
effect on intelligence operations.
Title IV also states that the authorities in the bill
sunset at the end of 2012. We have long favored permanent
modernization of FISA. The Intelligence Community operates
more effectively when the rules governing our intelligence
professionals' ability to track our enemies are firmly
established. Stability of law also allows the Intelligence
Community to invest resources appropriately. Congress has
extensively debated and considered the need to modernize FISA
since 2006, a process that has involved numerous hearings,
briefings, and floor debates. The process has been valuable
and necessary, but it has also involved the discussion in
open settings of extraordinary information dealing with
sensitive intelligence operations. Every time we repeat this
process it risks exposing our intelligence sources and
methods to our adversaries. Although we would prefer that
H.R. 6304 contain no sunset, a sunset in 2012 is
significantly longer than others that were proposed and it is
long enough to avoid impairing the effectiveness of
intelligence operations.
Thank you for the opportunity to present our views on this
crucial bill. We reiterate our sincere appreciation to the
Congress for working with us on H.R. 6304, a long-term FISA
modernization bill that will strengthen the Nation's
intelligence capabilities while respecting and protecting the
constitutional rights of Americans. We strongly support its
prompt passage.
Sincerely,
Michael B. Mukasey,
Attorney General.
J.M. McConnell,
Director of National Intelligence.
I reserve the balance of my time.
[[Page H5758]]
Mr. REYES. Madam Speaker, I yield myself such time as I may consume.
(Mr. REYES asked and was given permission to revise and extend his
remarks.)
Mr. REYES. Madam Speaker, I rise today as a sponsor of H.R. 6304, the
FISA Amendments Act of 2008. This bill represents the culmination of
more than a year's work by the members and staff of the House
Intelligence Committee, together with our colleagues on the Judiciary
Committee, to bring to the floor a bill that modernizes our
surveillance authorities while protecting the constitutional rights of
Americans.
I want to thank Chairman Conyers for his efforts to strengthen this
bill. As always, I greatly appreciate my good friend's commitment to
protecting our country and the principles that we hold so dear. I also
want to thank the respective ranking members and all that worked so
hard to bring this bill to the floor today.
This bill, Madam Speaker, enjoys wide support inside the Democratic
Caucus. It has been endorsed by our Democratic whip, by our Democratic
Caucus chair, by the Blue Dog Coalition, the New Democratic Caucus and
by a number of our colleagues. For that, I want to thank in particular
our majority leader, Mr. Hoyer, for leading the effort towards a
bipartisan compromise. This bill is a far better deal than the Protect
America Act. And it is far better than the Senate bill that passed
earlier this year.
Madam Speaker, intelligence is the first line of defense in our
Nation's effort to prevent terrorism and to stop the proliferation of
weapons of mass destruction. This legislation strengthens the ability
of our intelligence agencies to conduct lawful surveillance of foreign
targets. But this legislation also serves another very important and
vital function. It strengthens the constitutional rights of Americans,
protects them from unlawful surveillance and it stops this President,
or any President, for that matter, from invoking executive power to
conduct warrantless surveillance of Americans.
{time} 1100
This bill does more than just retain the original FISA requirements
for an individual warrant based upon probable cause for surveillance
targeting Americans here in the United States. For the first time ever,
this bill requires in statute warrants for Americans anywhere in the
world. It also requires the government to establish clear guidelines to
ensure that no American is the target of any surveillance without a
warrant. It clarifies that FISA and Title 18, the Criminal Code, are
the exclusive means by which the government may conduct domestic
surveillance.
It will prohibit any unlawful, warrantless wiretapping, the kind we
saw under this administration. It provides accountability by requiring
the inspectors general of various agencies to compile a comprehensive
report on the President's surveillance program and that review must be
given to Congress. It requires prior court approval of the procedures
used to conduct surveillance of foreign targets, except in an
emergency, similar to the current FISA law.
This legislation, Madam Speaker, also addresses the issue of lawsuits
against telecommunications companies that comply with directives from
our government. This bill does not grant immunity to any government
official who might have violated the law, and this bill does not grant
automatic immunity to telecom companies, as the Senate bill would have.
Under this legislation, a Federal District Court will review the
evidence submitted by the Attorney General and then the court will
decide whether to grant civil liability and protection to a company
that provided post-9/11 assistance to the government. This bill does
not grant immunity. Congress isn't deciding the question of immunity;
the District Court will.
Finally, Madam Speaker, this bill will sunset in 4\1/2\ years,
ensuring that the next administration will be in a position to assess
and review the effectiveness of this legislation.
This legislation represents a bipartisan compromise, and, as such,
both sides got less than they wanted. But it is a product of a good
faith effort by both Republicans and Democrats to give our intelligence
agencies the tools necessary to keep America safe, while protecting our
Constitution and our civil liberties.
I strongly urge my colleagues to vote for this very important piece
of legislation.
In addition, Chairman Reyes submitted the following views for the
Record:
Exigent Circumstances
Prior court review is an absolutely integral part of this
bill, but we have also crafted an ``exigent circumstances''
circumstances provision that allows the Administration to
commence surveillance immediately in an emergency. This
provision should be invoked rarely, if at all. In the normal
course of events, the Attorney General and the Director of
National Intelligence will have ample time to submit
applications for surveillance to the FISA Court for its
approval before initiating a particular surveillance.
When used, this exception should be for purposes of a true
emergency, involving unforeseen or extraordinary
circumstances. I consider this to be limited to situations
where the intelligence sought would serve a critical function
in protecting national security and where the failure to act
immediately would result in the loss of what might be the
only opportunity to collect the information in question.
The Intelligence Committee intends to engage in regular and
vigorous oversight of these new authorities and, in
particular, the use of the ``exigent circumstances''
exception to ensure that the important protections in this
bill are not circumvented.
``Reverse Targeting''
The FISA Amendments Act of 2008 regularly uses the term
``targeting.'' We intend this term to mean more than simply
the process of selecting a telephone number or an e-mail
address to surveil. Rather, it is meant to describe the
process of purposely acquiring communications of or
information about a specific individual.
It is in this context that Section 702(b)(2) prohibits what
is generally referred to as ``reverse targeting.'' In our
discussions with the intelligence agencies, they have agreed
that this language prohibits the targeting of one or more
persons overseas where the purpose is to acquire the
communications of or information about a U.S. person or any
specific person reasonably believed to be inside the United
States. Accordingly, Section 702(f) requires that the
government adopt guidelines to ensure that this does not
occur.
Inadvertent Collection of U.S.-Person Information
Because of the nature of the new surveillance authorities
granted under this bill, we were particularly concerned about
the potential for a significant increase in the inadvertent
collection of U.S.-person communications and information. For
that reason, we have adopted several oversight provisions
that require the Intelligence Community to report to Congress
on the number of targets later determined to have been
located inside the United States, the number of disseminated
intelligence reports that contain U.S.-person information,
and the number of disseminated intelligence reports that
contain information identifying specific U.S. persons. The
Intelligence Committee plans to conduct vigorous oversight
of the reports.
Exclusivity
The exclusivity provision of this bill is extremely
important. This language is designed to prevent any future
efforts to conduct surveillance that is not authorized by
statute. The bill not only establishes that FISA and Title 18
are the exclusive means of conducting surveillance, it
requires that any future authorization for surveillance must
be explicitly established in statute. The language should in
no way be read to imply that there is an inherent power to
conduct surveillance beyond what is expressly authorized by
statute.
In particular, the language in Section 102(c)(l)(ii) should
be read to require citation to specific statutory authority
in all certifications for assistance in conducting electronic
surveillance issued pursuant to 18 U.S.C.
Sec. 2511(2)(a)(ii)(B).
Sunset
This bill is set to expire on December 31, 2012. During the
next four years, Congress will continue to assess the
surveillance activities of the U.S. Government and assess
whether additional changes need to enacted before the sunset
date to correct any deficiencies or problems that arise.
Civil Liability Provisions
The provisions in title II of this bill establish a
meaningful court review to determine whether
telecommunications companies should be protected from civil
liability for assistance provided to the government. It is
important to state that these provisions are not intended to
imply in any way that the President's conduct in connection
with the President's warrantless surveillance program was
lawful or to excuse the conduct of any government official
that might have violated the law.
Further, no telecommunications company should interpret
these provisions to imply that Congress will act in the
future to seek the dismissal of any other lawsuits charging
improper conduct in connection with surveillance activities.
Rather, Congress considers the tragic events of 9/11 to be a
unique set of circumstances that require special
consideration. As a general matter, we expect companies and
private citizens to respect the rule of law and to require
the same of its government.
With respect to the applicable legal standard, we intend
``substantial evidence'' to apply not only to a finding that
assistance was provided in response to a request that
[[Page H5759]]
meets the standard of this bill. That standard should also
apply where the court is asked to determine that the alleged
assistance was not provided. A simple declaration from the
Government or the defendant that the alleged assistance did
not occur should be deemed insufficient where there is
sufficient evidence to the contrary.
Similarly, when the Government alleges that a surveillance
program was ``designed'' (as opposed to ``intended'') to
detect and prevent terrorism, the court should examine the
evidence to assess the scope of the program and determine,
where appropriate, that indiscriminate surveillance that
acquires the communications of millions of Americans is not
truly ``designed'' to detect or prevent terrorism.
Finally, these provisions should also not be interpreted to
remove the power of the courts to review the
constitutionality of the process this bill establishes.
Mr. REYES. Madam Speaker, I reserve the balance of my time.
Mr. HOEKSTRA. Madam Speaker, I yield 3 minutes to the gentleman from
Missouri (Mr. Blunt), the distinguished minority whip, who played such
a critical role in ensuring that this bill made it to the floor today.
Mr. BLUNT. Madam Speaker, I thank Mr. Hoekstra for yielding me this
initial time that would have the otherwise gone to you.
I thank you, Mr. Hoekstra, Mr. Reyes and Mr. Smith, for bringing this
important piece of legislation to the floor and for working so hard to
see that it came to the floor. I would also like to say that I again
appreciated the opportunity to work with my good friend Mr. Hoyer, as
he spent so many hours and so much time on this. From his staff, Mariah
Sixkiller; from my staff, Brian Diffel; Mr. Boehner's staff, Jen
Stewart worked hard on this; Chris Donesa from Mr. Hoekstra's staff was
indispensable in his work, as was Caroline Lynch from Mr. Smith's
staff. And I got to know frankly and work with Jeremy Bash from Mr.
Reyes' staff and Lou DeBaca from Mr. Conyers' staff, and appreciated
the real positive contributions they bring to this process every day.
I would also like to suggest that two staffers of my colleague from
Missouri, Mr. Bond, Louis Tucker, and Jack Livingston, spent lots of
time and lots of productive work on this.
Madam Speaker, this represents a compromise, as Mr. Reyes just said,
as Mr. Smith just said, that was forged with lots of hard work by lots
of people. It accomplishes the goals of the intelligence community.
There is no individualized court order for targeting foreign terrorists
in foreign countries. There are protections here for communications
providers that may have assisted the government. But, as Mr. Reyes just
said, those protections will be determined by a court, not by this
legislation.
We modernized the law to adapt to changes in technology since the
1978 FISA statute. The bill would accomplish all this while adding new
protections and strengthening the individual liberties and privacy
protections of Americans.
We also worked closely with the majority to reinforce the FISA
Court's role in procedural certifications and reviews of administration
policies, and we created some new obligations for the Attorney General
to establish guidelines.
Madam Speaker, like yesterday's vote, this bill is an example of what
we can do when we work together. I thank all those who worked so hard
to get it to the floor today. I urge my colleagues to vote for it.
Mr. CONYERS. Madam Speaker, is it true that I have 10 minutes
remaining?
The SPEAKER pro tempore. The gentleman from Michigan has 10\1/2\
minutes remaining.
Mr. CONYERS. I am going to recognize Mr. Nadler, Ms. Lofgren, Mr.
Scott, Ms. Jackson-Lee, Mr. Holt, Ms. Lee, Mr. Capuano, Mr. Kucinich
and Mr. Inslee. A couple of them will get 1\1/2\ minutes.
The first one to be recognized is the chairman of the Crime
Subcommittee, the gentleman from Virginia (Mr. Scott), for 1\1/2\
minutes.
Mr. SCOTT of Virginia. Madam Speaker, I oppose H.R. 6304. It allows
widespread acquisition of private conversations without meaningful
court review. The bill actually permits the government to perform mass
untargeted surveillance of any and all conversations believed to be
coming into and out of the United States without any individualized
finding and without a requirement that wrongdoing is believed to be
involved at all.
It arguably is not limited just to terrorism. It could be any foreign
intelligence, which would include diplomacy and anything else. It is
vague on what can be done with the information after it is acquired and
who has access to it, and the only court review is a check on whether
or not the government certifies that the process has been followed. The
court does not review who, what and where the tapping will take place.
Furthermore, the collection of all of this data can be done under
emergency provisions before the court acts, but the collection can
continue to be done even if the court later rejects the application if
the administration appeals.
The bill also provides retroactive immunity to communications
companies who may have violated people's rights, and whether or not
those rights have been violated should be reviewed by the courts, not
decided here in Congress.
Madam Speaker, we can protect Americans' national security and
protect civil rights by providing government access to personal
conversations with meaningful court review. This bill fails to do that,
and therefore should be defeated.
Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman
from Virginia (Mr. Forbes), a member of the Judiciary Committee and the
Armed Services Committee.
Mr. FORBES. Madam Speaker, today when the sun comes up on America,
there are all too many people who spend all too much time criticizing
and apologizing for this Nation, trying to verbally tear it down. But
what frightens us most is those people who spend way too much energy
and way too much time trying to do harm to innocent Americans as they
go about their day-to-day lives, carrying their children to piano
recitals, to Little League practice, just going to work. It just makes
common sense that we would want to know what they were trying to do,
because if we know, we have at least a chance to stop it.
This is a bipartisan bill that we should have had a year ago. We
certainly should have had 4 months ago. Thank goodness we have it
today. The only unfortunate thing is those who will benefit the most
will never know it, because they never became victims because we were
able to stop those terrorist acts before they took place.
Mr. REYES. Madam Speaker, I yield 1 minute to the distinguished
gentleman from Missouri (Mr. Skelton), the chairman of the Armed
Services Committee.
Mr. SKELTON. Madam Speaker, today I rise in strong support of this
bill, the FISA Amendments Act of 2008. The bipartisan compromise before
us strikes the right balance between providing our intelligence
community with the tools they need to fight and find terrorists and
protecting our constitutional rights on the other hand.
Let me thank my colleagues Sylvester Reyes and John Conyers, our
Intelligence and Judiciary Committee chairmen, for their hard work. I
am pleased that we have resolved this critical national security issue
through bipartisan negotiations between the administration and the
Congress. I want to particularly commend Steny Hoyer, our majority
leader, and our Speaker, Nancy Pelosi, for their leadership in reaching
this landmark legislation.
The bill before us is a great improvement over the Senate bill in
that it provides for more rigorous review of electronic surveillance
activities. It gives the courts a meaningful role in determining if
telecommunication firms are entitled to civil liability protection.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. REYES. I grant the gentleman an additional 30 seconds.
Mr. SKELTON. From my perspective as chairman of the Armed Services
Committee, the bill strongly supports the intelligence needs of those
who wear the uniform. Every day, American men and women deployed in
harm's way depend on electronic surveillance capabilities to achieve
their missions. Because of this bill and the work that has been done in
this Congress, especially the Intelligence Committee and the Judiciary
Committee, I thank them, and at the end of the day the young men and
young women will be the beneficiaries of this strong legislation.
[[Page H5760]]
Madam Speaker, I rise today in strong support of H.R. 6304, the FISA
Amendments Act of 2008.
The bipartisan compromise before us today strikes the right balance
between providing our intelligence community with the tools they need
to find and fight terrorists, and protecting our constitutional rights.
I want to thank my colleagues, Silvestre Reyes and John Conyers, our
Intelligence and Judiciary Committee Chairmen, for their hard work in
bringing a strong bill to the floor today.
I am pleased that we have resolved this critical national security
issue through bipartisan negotiations between the Administration and
the Congress and I want to particularly commend Speaker Nancy Pelosi
and Steny Hoyer for their leadership in reaching this landmark
legislation.
The bill before us today is a great improvement over the Senate bill
in that it provides for more rigorous review of electronic surveillance
activities, and gives the courts a meaningful role in determining if
telecommunications firms are entitled to civil liability protection.
From my perspective, as the Chairman of the Armed Services Committee,
this bill strongly supports the intelligence needs of our soldiers,
sailors, airmen and marines. Every day, American men and women deployed
in harm's way depend on the electronic surveillance capabilities to
achieve their missions. This legislation ensures continued delivery of
this intelligence to our warfighters.
Again, I want to congratulate Chairman Reyes and Chairman Conyers or
bringing this strong bill to the floor, and I urge my colleagues to
join me in supporting this vital national security measure.
Mr. HOEKSTRA. Madam Speaker, I yield 2 minutes to the distinguished
member of the Intelligence Committee from Texas (Mr. Thornberry).
Mr. THORNBERRY. Madam Speaker, the compromise bill before us today is
not the bill that I would have written. As a matter of fact, the
compromise Senate bill we have been trying to get a vote on since
February is not the bill I would have written either. But I do believe
that the bill before us, imperfect as it is, does do what is needed to
protect the country, and therefore I support it.
A number of people deserve credit, including Mr. Hoekstra, Mr. Blunt
and Mrs. Wilson on our side. But I also want to commend the majority
leader, Mr. Hoyer, for the time and energy he put into this issue and
for his perseverance in pushing it to a resolution. I know a number of
Members on his side don't want to do anything. They prefer operating
under an outdated law that makes it impossible to move with the speed
and agility we need to have to protect the country in an age of
terrorism. There may be some on this side who would prefer to have a
political issue for the fall campaign.
But I believe that every day we grow more vulnerable, and that we
must act now to give our national security professionals, including our
troops in the field, the tools and the information they need to do
their job.
Madam Speaker, the House has taken some significant steps this week
toward ending the disturbing practice of playing politics with national
security. When this House is allowed to vote, we can come together and
accomplish things for the country. If we can just extend that now into
energy and other issues and just allow a vote on the proposals that are
before us, we can do good for the country in other areas as well.
Mr. CONYERS. Madam Speaker, I yield 1\1/2\ minutes to the gentlewoman
from California (Ms. Zoe Lofgren), the Chair of the Immigration
Subcommittee.
Ms. ZOE LOFGREN of California. Madam Speaker, I rise in opposition to
this bill. I appreciate that some improvements have made been made to
title I of the bill, but even these improvements are undercut by the
scheme in title II that means there will be no accountability and
perhaps no adherence to the provisions of title I.
I cannot support the legislation's deeply flawed provisions relating
to the issue of immunity for telecommunications companies. These
provisions turn the judiciary into the administration's rubber stamp.
The review provided in this bill is an empty formality that will lead
to a preordained conclusion, dismissing all cases with no examination
on their merits.
Under this bill, the courts are not allowed to ask whether the
conduct of the corporations who assisted was in fact legal. They may
only note that the administration says that it was legal. In other
words, the decision on the ultimate question of legality, a decision
the Constitution dedicates to the judiciary, will instead be made by
the executive branch with the judiciary acting as a rubber stamp. It
turns the process of judicial review into a joke and denigrates this
supposedly independent and coequal branch of government.
{time} 1115
It's all the more aggravating because immunity already exists in the
law under 18 U.S.C., section 2511. It provides that telecommunications
companies are immune from suit if the company has been provided with a
court order or a certification by the Attorney General, in writing,
that the order has been obtained or is unnecessary.
I cannot support this.
(Effective: November 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 or received the
information in connection with a criminal investigation, and
(iv) with intent to 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
[[Page H5761]]
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 officers, 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 an
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 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
[[Page H5762]]
civil fine of not less than $500 for each violation of such
an injunction.
Mr. SMITH of Texas. Madam Speaker, I will yield 2 minutes to the
gentleman from Indiana (Mr. Pence) who is a member of the Judiciary
Committee and the Foreign Affairs Committee as well.
(Mr. PENCE asked and was given permission to revise and extend his
remarks.)
Mr. PENCE. Madam Speaker, I rise in support of the FISA Amendments
Act of 2008.
America is at war. We have to do all we can to protect our Nation
from those who seek to harm this country, our communities and our
families.
After nearly a year of delays, we finally have before us a bill that
will institute a long-term fix to our Nation's foreign intelligence
surveillance laws and provide the intelligence community with the tools
it needs to protect this country.
I rise in particular appreciation of Republican Whip Roy Blunt,
Ranking Member Smith and Mr. Hoekstra. These Republicans stood firm and
have succeeded in negotiating a strong 4-year extension to our
surveillance laws.
While this bill is tough on terrorists, it includes strong
protections for civil liberties and Americans that have also been put
in place by extensive measures of oversight and review in the
Department of Justice, and it protects those patriotic
telecommunications companies who assisted the Federal Government in the
wake of 9/11.
While I endorse these reforms and safeguards, let me say, Madam
Speaker, Congress and future administrations must be vigilant to ensure
that the exigent circumstances exceptions are practiced in a way that
preserves Presidential discretion when conducting real-time foreign
intelligence. Speaking less as a Congressman and more as a father, and
as an American who was here on September 11, I am grateful to my
colleagues in both parties for bringing this important compromise to
the floor and making sure that our intelligence community, those who
work tirelessly every day to protect us, have the tools they need to
prevent the horrors of that day from ever being visited on our soil
again.
Mr. REYES. Madam Speaker, I yield 2 minutes to the distinguished
gentlewoman from California, Ms. Jane Harman, who is the former ranking
member of the Intelligence Committee.
(Ms. HARMAN asked and was given permission to revise and extend her
remarks.)
Ms. HARMAN. Madam Speaker, my phones are ringing off the hook, and my
e-mail accounts are full. By the hundreds and hundreds, my constituents
are saying, ``don't cave in,'' ``don't toss due process out the
window,'' ``no compromise on our civil liberties'' and ``all
surveillance of Americans should require a warrant.'' One of the most
powerful, ``The U.S. Constitution has been `marked up.' Don't shred
it.''
I agree, now and always. The hard part is deciding whether the FISA
compromise before us meets my constituents' requirements and my own.
After reading every word of it, and after many, many hours working to
develop and revise portions of it, I conclude that the compromise
replaces bad law, the Protect America Act, with law that actually
improves many of the provisions of the underlying FISA law which has
served our country well for three decades.
Let me highlight three issues.
First, this bill makes clear that no president can ignore it ever
again. FISA is the exclusive means by which our government can conduct
surveillance. In short, no more warrantless surveillance.
Second, it expands the circumstances for which individual warrants
are required, by including Americans outside the U.S., and it protects
Americans from so-called reverse targeting.
Third, it requires Federal court review to determine whether
communications firms, which assisted in post-9/11 activities, get civil
liability protection. If the evidence is inadequate, courts can deny
immunity, and immunity does not cover government officials who may have
violated the law.
I have lived with FISA up close and personal for many years. I am
angry about the way the Bush administration abused it and disrespected
Congress. My constituents are right to demand that Congress show
courage and stand up for the Constitution. Security and liberty are
reinforcing values, not a zero-sum gain. This bill, though imperfect,
protects both.
Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman
from Ohio (Mr. Boehner) who is the distinguished Republican leader of
the House.
Mr. BOEHNER. Let me thank my colleague from Texas for yielding.
Let me just take a moment to congratulate both Mr. Smith, ranking
member on the Judiciary Committee, and Mr. Hoekstra, the ranking member
on the Intelligence Committee, and all of their staff, who have worked
closely with our Democrat colleagues, both in the House and Senate, to
craft a bill that will help protect the American people.
Madam Speaker, America cannot afford to have a pre-9/11 mentality
when it comes to national security. I think that's why this bill is so
critical and why Members and staff have been working so hard to craft
it. I recognize the serious threat that we face, and it keeps our
Nation on offense when it comes to protecting the American people.
Our intelligence officials must have the ability to monitor
terrorists suspected of plotting to kill Americans. This measure
ensures that the tools that they need will be there to help keep
America safe. They have retroactive liability protections for firms
that have aided the government and have worked with our government at
our request to help detect and prevent attacks. We should protect those
companies.
I think it also protects the civil liberties of all Americans. This
is an important piece of legislation. It has taken an awful lot of time
to get there.
But just like yesterday, when Members on both sides of the aisle work
together, we can come to an agreement. We can come to a compromise
that's in the best interest of our country.
Two days in a row we have had two great examples of how we can craft
very good bills by working in a bipartisan manner. I want to
congratulate all the Members on both sides of the aisle and their
staffs who have worked so hard to bring this bill to the floor.
Mr. CONYERS. Madam Speaker, I would like now to yield to the chairman
of the subcommittee on the Constitution and the Judiciary, the
gentleman from New York, Jerry Nadler, 1\1/2\ minutes.
Mr. NADLER. Madam Speaker, in order to uphold the principle of the
rule of law and the supremacy of the Constitution, we must reject this
bill. This bill limits the courts hearing lawsuits alleging illegal
wiretapping, to considering only whether the telecom companies received
a ``written request or directive indicating that the activity was
authorized by the President and determined to be lawful,'' not whether
that request was actually lawful or that telecom companies knew that it
was unlawful.
The bill is a fig leaf granting blanket immunity to the telecom
companies for possibly illegal acts without allowing the courts to
consider the facts or the law. It denies people whose rights are
violated their fair day in court, and it denies the American people the
right to have the actions of this administration subjected to fair and
independent scrutiny.
Even the court's limited review will remain secret. The lawsuits will
be dismissed, but the basis for that dismissal that the defendants were
innocent of misconduct or that they were guilty, but that Congress
commands their immunity, must remain secret.
The constitutionality of the immunity granted by this bill is very
questionable. As Judge Walker put it in the AT&T case, ``AT&T's alleged
actions here violate the constitutional rights clearly established in
the Keith decision. Moreover, because the very action in question has
previously been held unlawful, AT&T cannot seriously contend that a
reasonable entity in its position could have believed that the alleged
domestic dragnet was legal.''
I would hope that the courts will find that because the
constitutional rights of Americans have been violated, Congress'
attempt to prevent court review is unconstitutional. I regret we may
today abandon the Constitution's protections and insulate lawless
behavior from legal scrutiny.
I urge a ``no'' vote on this legislation.
[[Page H5763]]
Mr. HOEKSTRA. Madam Speaker, at this time I would like to yield 3
minutes to a member of the committee, Mrs. Wilson from New Mexico.
(Mrs. WILSON of New Mexico asked and was given permission to revise
and extend her remarks.)
Mrs. WILSON of New Mexico. Madam Speaker, in December of 2005, I was
walking to work and was at 1st and C Street when the front page of the
New York Times revealed the existence of a program that had not been
previously briefed to the entire Intelligence Committee and to the
subcommittee that I, at that time, chaired that oversaw the activities
of the National Security Agency. That launched a period of extensive
oversight and draft legislation in 2006.
In January of 2007, because legislation didn't pass, the
administration made an attempt to put this entire program under a FISA
law that was not designed and was not updated. I described that at the
time as trying to put a twin-size sheet on a king-size bed. It didn't
work.
By late summer of 2007, we had lost close to two-thirds of our
intelligence collection on terrorism. We were unable to respond fast
enough when we had problems, particularly in war zones.
Just before Memorial Day in 2007, we had three soldiers who were
kidnapped in Iraq. We needed an Army of lawyers in Washington D.C. to
listen to the communications of the people that we thought had
kidnapped them.
That delay is not good enough and led to the insistence that we pass
the Protect America Act, which this Congress did, over the objections
of the Democratic leadership, in August of 2007. The Protect America
Act closed an important intelligence gap, but it expired in February of
this year, and the gap is at risk of ever widening.
The bill that we pass today will protect the civil liberties of
Americans and continue to require individualized warrants for anyone in
the United States or American citizens anywhere in the world. It will
also allow our intelligence agencies to very rapidly follow up on tips
and listen to foreigners in foreign countries who are trying to kill
Americans.
We have restored FISA to its original intent and modernized it for
21st century communications and technology. This is an important step
for our intelligence community and will put it on a sound footing for
the next several decades.
Intelligence, good intelligence, is the first line of defense against
terrorism, and today this body will take the next step in making sure
we have the tools to be able to listen to our enemies and prevent other
terrorist attacks.
I would urge my colleagues to support the legislation.
Mr. CONYERS. Madam Speaker, I would like to yield now to a senior
member of Judiciary, Sheila Jackson-Lee of Texas, 1 minute.
Ms. JACKSON-LEE of Texas. I thank the distinguished chairman.
Madam Speaker, I rise to say that we did have legislation that would
protect the Constitution and provide the security for our troops and
those in the intelligence community, and that was the RESTORE Act.
Today I rise in enormous opposition to H.R. 6304 because, frankly,
Madam Speaker, it's very difficult to put lipstick on a pig.
What we have here is the opportunity for the government to conduct
mass, untargeted surveillance of all communications coming into and out
of the United States without any individual review and without any
finding of wrongdoing.
What Americans don't know is that this government can now surveil you
for 7 days without any approval. Then if the court denies the
application, while the application is being appealed from the denial,
you can be surveilled for 60 days.
This is not constitutional protection. As it relates to the idea of
those who are now in court on warrantless searches, now the courts have
no authority over that, and your cases will be dismissed.
I ask my colleagues to oppose this because ``significant purpose''
has been taken out of this legislation.
Madam Speaker, I rise today in opposition to H.R. 6304, the ``FISA
Amendments Act of 2008''. This body has worked diligently with our
colleagues in the Senate to ensure that the civil liberties of American
citizens are appropriately addressed. Sadly, this compromise bill falls
short of that aim. I will support no bill that fails to protect
American civil liberties, both at home and abroad.
I am unable to support this bill that will overhaul how the
Government monitors foreign terrorist suspects. I will not support any
legislation that grants legal immunity to telecommunications companies
that provide information to Federal investigators without a warrant.
Madam Speaker, this administration has the law to protect the
American people. When Americans are involved, the Bill of Rights, the
fourth amendment, and our civil liberties must be adhered to. This
legislation does not go far enough to ensure that American rights are
protected.
The original legislation offered by the House Majority gave the
Administration everything that it needed, but today, after months of
negotiation, if we endorse H.R. 6304, which grants sweeping wiretapping
authority to the Government with little court oversight and ensures the
dismissal of all pending cases against the telecommunications
companies, we are eviscerating the Constitution.
Let me explain my objections to H.R. 6304. It permits the Government
to conduct mass, untargeted surveillance of all communications coming
into and out of the United States, without any individualized review,
and without any finding of wrongdoing.
H.R. 6304 permits minimal court oversight. The Foreign Intelligence
Surveillance Court (FISA Court) only reviews general procedures for
targeting and minimizing the use of information that is collected.
Under these circumstances, the court may not know what will be tapped
and where it will occur.
Furthermore, the bill contains a general ban on reverse targeting,
but not the strong language I worked so diligently to include in the
FISA legislation that had passed previously in the House. In my view,
the RESTORE Act is far superior to this piece of legislation. I wish to
take a few moments to discuss the improvement that I offered to the
RESTORE Act in the full Judiciary Committee markup, and which was sent
over to the Senate for consideration last year.
My amendment made an essential 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 the practice where the Government targets
foreigners without a warrant while its actual purpose is to collect
information on certain U.S. persons. My language included clear
statutory directives regarding whom the government should return to the
FISA court and obtain an individualized order if it would like to
continue listening to an Americans' communications.
One of the major concerns that libertarians and classical
conservatives, as well as progressives and civil liberties
organizations, have with this legislation, as they did with its
successor, the Protect America Act, is that the temptation of national
security agencies to engage in reverse targeting may be difficult to
resist in the absence of certain safeguards in the law to prevent it.
My amendment attempted to produce such safeguards. My amendment
reduced 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 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.''
It is far from clear how the operative language ``reasonably designed
to ensure that any acquisition authorized . . . is limited to targeting
persons reasonably believed to be located outside the United States;
and prevent 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.''
Yes. It is true that H.R. 6304, the compromise legislation, attempts
to ensure that American civil liberties are protected, but the
operative language in the legislation does not provide a paradigm for
consistency. This is so because it does not provide an objective
criterion. H.R. 6304 does not go as far as the legislation that the
House sent over to the Senate a few months ago. H.R. 6304 does not
retain the objective standards contained in my amendment.
The language used in my amendment, ``significant purpose,'' is a term
of art that long has been a staple of FISA jurisprudence and thus is
well known and readily applied by 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.
[[Page H5764]]
A FISA order should be required in those instances where there is a
particular, known person in the United States at the other end of the
foreign target's call 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 protection has been
stripped from H.R. 6304. I fought hard to keep this language in the
bill because it is important to me; and it should be very important to
members of this body and to all Americans. It is important that we
require what should be required in all cases--warrant any time there is
specific, targeted surveillance of a United States citizen.
Madam Speaker, I have more objections to H.R. 6304 which I will
quickly note. H.R. 6304 contains an ``exigent'' circumstances loophole
that thwarts the judicial review requirement. The bill permits the
Government to start a spying program and wait to go to court for up to
seven (7) days every time ``intelligence important to the national
security of the U.S. may be lost or not timely acquired.'' The problem
with H.R. 6034 is that court applications take time and will delay the
collection of information. Therefore, it is possible that there will
not be resort to prior judicial review.
Under H.R. 6304, the Government is permitted to continue surveillance
programs even if the application is denied by the court. The Government
has the authority to wiretap through the entire appeals process, and
then keep and use whatever it gathers in the meantime.
I am also troubled by H.R. 6304's dismissal of all cases pending
against telecommunication companies that facilitated the warrantless
wiretapping program over the last 7 years. The test in the bill is not
whether the Government certifications were actually legal--only whether
they were issued. Because it is public knowledge that they were, all
the cases seeking to find out what these companies and the Government
did without communications will be dismissed. Under this bill, we will
start as a tabula rasa. Telecommunications companies will be prevented
from having their day in court and we, the American people, will never
have a chance to know what the companies did and what information is
collected. I am deeply troubled by this, and frankly, you should be,
too.
Madam 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.
Madam Speaker, let me be clear in my opposition. 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.
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.
Madam 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 outlined in this bill, H.R. 6304,
attempts to curtail the Bill of Rights and the civil liberties of the
American people. I continue to insist upon individual warrants, based
upon 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, Madam Speaker, I must restate my firm conviction that
when it comes to the track record of this President's warrantless
surveillance programs, there is still 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.
Madam Speaker, I encourage my colleagues to join me in opposition to
H.R. 6304, as it grants sweeping wiretapping authority to the
Government with little court oversight and ensures the dismissal of all
pending cases against the telecommunications companies. In my view,
this is wrong and unacceptable.
Mr. SMITH of Texas. Madam Speaker, I yield 1 minute to the gentleman
from Arizona (Mr. Franks) who is a member of the Judiciary Committee
and a ranking member of the Constitution Subcommittee.
{time} 1130
Mr. FRANKS of Arizona. I thank the gentleman for yielding me this
time.
Madam Speaker, the coincidence of jihadist terrorism and nuclear
proliferation in our world today I believe represents the greatest
security threat to the human family. Osama bin Laden said ``our
religious duty is to gain nuclear weapons.'' If that quest should
succeed, whether it is 100 yards from this Capitol or in one of our
major cities, it will change our concept of freedom in a way that
almost none of us can comprehend. And our best hope of preventing that
is to have effective intelligence capability.
I believe that the majority has risked the security of this country
by delaying a vote on this important bill for so long; but I am
gratified today that at least we are taking the next step in making
sure that we can see our children and grandchildren walk in the
sunlight of freedom.
As we go forward, we should all keep in mind the words of our
Founding Fathers and the words especially of Thomas Jefferson when he
said, ``The price of freedom is eternal vigilance.''
Mr. REYES. Madam Speaker, may I inquire as to how much time remains
on all sides.
The SPEAKER pro tempore. The gentleman from Michigan (Mr. Conyers)
has 5 minutes remaining; the gentleman from Texas (Mr. Reyes) has 6\1/
2\ minutes remaining; the gentleman from Texas (Mr. Smith) has 8
minutes remaining; and the gentleman from Michigan (Mr. Hoekstra) has
7\1/2\ minutes remaining.
Mr. REYES. Madam Speaker, I now would like to yield 2 minutes to the
distinguished gentleman from Maryland (Mr. Ruppersberger) who serves as
the chairman of our Subcommittee on Technical and Tactical Intelligence
on our Intelligence Committee.
Mr. RUPPERSBERGER. Madam Speaker, I am proud to rise in support of
H.R. 6304. I would like to thank Chairman Reyes, Chairman Conyers,
Majority Leader Hoyer, Minority Leader Blunt, and Ranking Member
Hoekstra for coming together with a bill that we need on behalf of our
country.
My district includes the National Security Agency, and many of NSA's
employees are my constituents. As a
[[Page H5765]]
member of the House Committee on Intelligence and the chairman of the
Subcommittee on Technical and Tactical Intelligence, which oversees
NSA, I know that the men and women who work for our Nation's
intelligence agencies work hard every day to keep our Nation safe.
The intelligence agencies must do their work within the laws of this
country, and they need those laws to be clear. The NSA employees in my
district need a clear law with a bright line between legal and illegal
surveillance activities, and this bill provides that.
Our Constitution requires checks and balances for the three branches
of government. This bill provides that the FISA Court must review
surveillance requests to protect the constitutional rights of our
citizens.
I urge my colleagues to support this bill because it gives our
intelligence community the tools they need to keep our Nation safe
while protecting the constitutional rights of Americans.
Mr. HOEKSTRA. I would like to yield 3 minutes to another
distinguished gentleman from Michigan (Mr. Rogers).
Mr. ROGERS of Michigan. Madam Speaker, I want to compliment Mr.
Reyes. When this happened 124 days ago when it expired, I realized what
a challenge you had. They were asking you to win the Kentucky Derby by
entering a donkey in the race. And trying to get all of the folks
together to get us to the place where we are today was not short feat.
Mr. Hoekstra and Mr. Reyes, I want to thank you both because what
this bill does today is reaffirm what we have been saying for the last
several years, that the due process of the Constitution, the fourth
amendment, is alive and well and protected in this bill. And any
rhetoric to the contrary is simply not true. It is fear mongering.
For any U.S. citizen who believes that their phones are going to be
unceremoniously and injudiciously tapped or listened to is simply
wrong, and this bill reaffirms the importance of that fourth amendment
and due process for every American citizen every day.
But it also says some very important things. We are going to protect
the Good Samaritan law that we have known and developed over the last
200-plus years that if you in good faith help your neighbor or help
your country, in good faith you will be protected from damages sought
by anyone else. If you stand up and protect the liberties and justice
of your country and the lives of your neighbors, you will be protected
in this law.
And finally, our foreign intelligence service allies have been
nervous for 124 days, begging, pleading, cajoling, asking please, step
up to the plate and reengage in one of the most important intelligence
elements that we have, that the United States shares with our foreign
allies to stop suicide bombers, to stop terrorist elements from
developing plans and plots to kill their citizens as well as our own.
This bill reaffirms all that we said last year and the year before.
It reaffirms what we said in the Protect America Act in August of 2007
that it is absolutely important that we step up to the plate and listen
to foreign terrorists in foreign lands plotting to kill citizens of our
allies and here at home.
I want to congratulate all those who came together today, and urge
those with the rhetoric to please stand for your country today, stand
for the soldiers in the field who deserve our protection and the
protection of the intelligence services, and for every mother and every
father, every child in America who looks for a better day tomorrow
knowing that we once again have both our eyes and our ears on the
problem with terrorism and radical jihadists.
Mr. CONYERS. Madam Speaker, I am pleased to yield to the gentleman
from New Jersey (Mr. Holt), a distinguished member of the Intelligence
Committee, 1 minute.
Mr. HOLT. Madam Speaker, I thank the chairman of the Judiciary
Committee for yielding me time to speak about this.
Unfortunately, the negotiators who brought this bill to the floor
bought into the flawed assumptions of the Bush administration that
because we live in a dangerous world, we must now redefine the fourth
amendment and thus the fundamental relationship between the government
and its people.
If this bill becomes law, it will perhaps be the only lasting legacy
of the Bush-Cheney administration's overhaul of national security
policy, a congressionally blessed distortion of congressional checks
and balances. It permits massive warrantless surveillance in the
absence of any standard for defining how communications of innocent
Americans will be protected; a fishing expedition approach to
intelligence collection that we know will not make Americans more safe.
Its court review provisions are weak and narrowly defined. I know
some of those who negotiated this bill say that some court review is
better than no court review. That is only true if the judge's hands
aren't tied in the review process. They are in this bill.
There is a fundamental American principle that those who search,
seize, intercept and detain should not be the ones who decide who are
the bad guys.
Mr. SMITH of Texas. Madam Speaker, I yield 2 minutes to the gentleman
from California (Mr. Issa) who is a member of the Judiciary Committee
and the Permanent Select Committee on Intelligence as well.
(Mr. ISSA asked and was given permission to revise and extend his
remarks.)
Mr. ISSA. Madam Speaker, I rise in strong support of this hammered-
out compromise bill.
You know, Madam Speaker, elections matter. The current balance in the
House and the Senate played an important part in the administration,
House Republicans, House Democrats, Senate Democrats, and Senate
Republicans coming together and figuring out what was needed, what was
constitutional, in a very much bipartisan fashion.
Unfortunately, there are those who want to have it both ways, those
who will talk about how this is balanced, it meets the needs of the
administration, as the administration is assuring us, and it meets all
of the constitutional requirements. But there are those who want to
also play to the other side. While making sure that we are protected by
a good piece of legislation, there are those who will come on the floor
and denounce this and then vote against it.
Madam Speaker, I ask the American people to look long and hard at how
people vote on this. This is in fact worked out to assure the American
people, and properly so, that we will protect all of their
constitutional rights while doing everything we can to ensure their
safety.
This is good legislation worked out over a long period of time, and a
lot of thoughtful work went into it on both sides. But I ask the
American people to hold accountable those who would want to know that
the American people are protected, and then vote against it in order to
play to special interests.
Madam Speaker, that is the bad part of what will happen today. The
good part is that America will be safer and the Constitution will be
secure because of what we are doing here today. I thank you and urge
support.
Mr. CONYERS. Madam Speaker, I am pleased now to yield to the
gentlewoman from California (Ms. Lee), cochair of the Progressive
Caucus and a leader in the Congressional Black Caucus, 1 minute.
Ms. LEE. Madam Speaker, let me thank the gentleman for yielding and
for his leadership.
I rise in strong opposition to this very terrible bill. It does not
strike the proper balance between protecting national security and
preserving our cherished civil liberties.
Now I know how important those protections are from my personal
experience with unwarranted domestic surveillance and wiretapping
during the J. Edgar Hoover period. The government's infamous COINTELPRO
program ruined the lives of many innocent persons. Others, including
myself, had their privacy invaded even though they posed absolutely no
threat to national security. We all remember how Dr. King and his
family were the victims of the most shameful government-sponsored
wiretapping. We must never go down this road again. Yet here we are
again.
This bill undermines the ability of Federal courts to review the
legality of domestic surveillance programs, it provides de facto
retroactive immunity to telecom companies and does not sunset
[[Page H5766]]
until December 31, 2012. How can we do that? Four years is way too
long.
A good bill will protect Americans against terrorism and not erode
the fourth amendment. This bill scares me to death, and I urge a ``no''
vote.
Mr. SMITH of Texas. Madam Speaker, I yield 3 minutes to the gentleman
from California (Mr. Daniel E. Lungren), a senior member of the
Judiciary Committee and the Homeland Security Committee.
Mr. DANIEL E. LUNGREN of California. Madam Speaker, I thank the
gentleman for the time.
Madam Speaker, as some say on radio, ``Now let's hear the rest of the
story.'' After the arguments just made on this floor, this is actually
a great day. We and the American people have been waiting for this
since 12:01 a.m. on February 6 when the Protect America Act expired.
During the intervening time we have actually been unnecessarily
vulnerable to those who would do us harm in this era of worldwide
terrorism.
In fact, Madam Speaker, I would say that this is the single most
important bill we will vote on this year, not that I say supporting our
troops is not important, but the intelligence that we gather as the
result of the authority granted by this bill may actually create
conditions under which we do not have to send troops anywhere in the
world and may be more protective of our rights than any other single
thing.
Having come before this body on five different occasions since that
initial expiration of the Protect America Act, I am greatly relieved
that we can finally send the intelligence community and the American
people a bill which will enable the intelligence community to continue
to protect those American people.
Although the compromise agreement embodied in the proposal before us
is not necessarily the one I would have written, it does, in my
estimation, meet our responsibilities for protecting the American
people. In other words, Madam Speaker, it is not the Mona Lisa but it
is not a bad paint job.
First and foremost, the proposal before us ensures that we will
continue to have the ability to monitor the conversations of al Qaeda
overseas. And although there are requirements that the Attorney General
and the Director of National Intelligence adopt procedures which will
be submitted to the FISA Court, the bill retains sufficient flexibility
for our overseas intelligence mission.
In other words, the intelligence community leadership has assured us
that this bill will allow them the operational authority to do what
needs to be done within the parameters of the Constitution. Both the
safety of the American people as well as their civil liberties are
protected in this proposal.
This proposal embodies compromise language which responds to the
legitimate concerns of telecommunication providers who themselves
responded to the call of their government in the wake of 9/11. The
language of the bill not only satisfies the interest of justice, but
communicates loudly to all Americans that if they are ever confronted
with such requests, lawful requests, their government will not hang
them out to dry afterwards.
Specifically, a Good Samaritan safe harbor will exist with respect to
any civil action where there is substantial evidence to support the
certification provided by the Attorney General. The quantum of evidence
required is merely a showing of more than a scintilla but less than a
preponderance of evidence.
And although these provisions in the proposal will contribute to
securing the safety of our citizens, this is not to suggest that I
support every provision in the compromise.
The SPEAKER pro tempore. The gentleman's time has expired.
Mr. SMITH of Texas. I yield the gentleman 1 additional minute.
Mr. DANIEL E. LUNGREN of California. For example, the so-called
``exclusive means'' language in the bill is seen by some as an
assertion of maximal congressional authority. Let me just remind my
colleagues that the FISA Court of review has said all of the other
courts to have decided the issue held the President did have inherent
authority to conduct warrantless searches to obtain foreign
intelligence information. The court stated that ``we take for granted
that the President does have that authority.''
So regardless of whether we have a President McCain or a President
Obama, this language will likely be interpreted in the context of facts
in individual cases in light of the constitutional jurisprudence which
has arisen with regard to the collection of foreign intelligence.
In other words, it does not either trample upon the constitutional
prerogatives of the Congress nor those constitutional prerogatives of
the President of the United States. This is a good compromise. It
protects the American people. We have been waiting for it. It ought to
be voted on with dispatch.
Mr. REYES. Madam Speaker, I yield 2 minutes to the distinguished
gentleman from Rhode Island (Mr. Langevin), a valued member of our
Intelligence Committee.
(Mr. LANGEVIN asked and was given permission to revise and extend his
remarks.)
{time} 1145
Mr. LANGEVIN. Madam Speaker, I rise in support of the FISA Amendments
Act of 2008. Though not a perfect piece of legislation, it is clearly
far better than what we have today, and addresses a number of the many
concerns that were raised about the administration's conduct of
surveillance in this country.
As a member of the Intelligence Committee, I know that we must give
our Intelligence Community the proper tools to protect us, while
upholding the civil liberties of Americans. Today's compromise
illustrates what this House can do when it deliberates with care, holds
steady against fear mongering and acts in the best interests of the
country and its citizens.
This bill is strong on civil liberties, and includes protections
against infringement of our constitutional right to privacy.
First, the bill clarifies that FISA is the exclusive means by which
the executive branch may conduct electronic surveillance on U.S. soil.
No President will have the power to do an end-run around the legal
requirements of FISA. This provision will prevent the types of abuses
we've witnessed under this administration.
Second, this act requires a warrant from the FISA court to conduct
surveillance of Americans abroad. Americans will no longer leave their
constitutional protections at home when working, studying or traveling
abroad.
Third, it requires prior approval by the FISA court of procedures the
government will use when carrying out foreign electronic surveillance.
This will ensure that the government's efforts are not aimed at
targeting Americans, the so-called reverse targeting that we're all
concerned about; and that if an American's communications is
inadvertently intercepted, it is dealt with in a manner that guarantees
legal protections.
It also requires and allows for, now, an IG investigation of this
warrantless surveillance program that took place prior to Congress
being made aware of this legislation.
The SPEAKER pro tempore. The gentleman's time has expired.
Mr. REYES. I grant the gentleman another 15 seconds.
Mr. LANGEVIN. Madam Speaker, as I've said before, this legislation
will only work if everyone involved follows the rules and remains
within the confines of the law. Congress must continue to conduct
robust oversight to make sure that the law is implemented as intended
to maintain the critical and fragile balance of protecting our Nation
and protecting civil liberties.
Mr. HOEKSTRA. At this time I would like to yield 1 minute to the
gentleman from California (Mr. Issa).
(Mr. ISSA asked and was given permission to revise and extend his
remarks.)
Mr. ISSA. Madam Speaker, in just 1 minute it's impossible to assure
the American people of everything this bill will do. But I would like
too, if you will, react to something that was said on the other side
that just simply isn't true.
Yes, during J. Edgar Hoover's day, there was warrantless
surveillance, even on political enemies of the people who were
President at the time. Those days are behind us.
This act, long since we've taken care of domestic wiretap, but this
goes one step further. It insures Americans and
[[Page H5767]]
particularly, I think, Arab Americans like myself who might go back and
forth between here or have relatives in the Middle East, that their
conversations will not be the subject of warrantless wiretaps, that, in
fact, they can be very confident that America is going to observe the
Constitution for them, both when they are here and if they are visiting
abroad.
So it's not easy to undo some of the statements that talk about the
past, but the truth is, this will protect what has already been
established for Americans here.
Mr. CONYERS. Madam Speaker, I am pleased to yield to the gentleman
that has more measures in the Judiciary Committee than anybody else in
Congress, Dennis Kucinich, the distinguished gentleman from Ohio, 1
minute.
Mr. KUCINICH. Under this bill, large corporations and big government
can work together to violate the United States Constitution, use
massive databases to spy, to wiretap, to invade the privacy of the
American people. There's no requirement for the government to seek a
warrant for any intercepted communication that includes a U.S. citizen,
as long as the program in general is directed towards foreign targets.
This Congress must not allow the names of innocent U.S. citizens to
be placed on secret intelligence lists. Under this bill, violations of
Fourth Amendment rights and blanket wiretaps will be permissible for
the next 4 years. Massive and untargeted collection of communications
will continue and with the enactment of this bill.
Furthermore, it allows the type of surveillance to be applied to all
communications entering and exiting the United States. These blanket
wiretaps make it impossible to know whose calls are being intercepted
by the National Security Agency.
Let's stand up for the fourth amendment. Let's remember, when this
country was founded Benjamin Franklin said, those who would give up
their essential liberties to achieve a measure of security deserve
neither. Vote against it.
Mr. SMITH of Texas. Madam Speaker, I yield myself the balance of my
time.
Madam Speaker, H.R. 6304 may well be one of the most important pieces
of legislation we pass this Congress.
For 4 months America has been more vulnerable to attacks by our
enemies, because of the refusal by some to bring a commonsense bill to
the floor to help the Intelligence Community protect Americans.
Many of us would have preferred the bill passed by the Senate.
Although this bill may not be ideal, it does represent a compromise
between House and Senate Republicans and Democrats. This compromise
preserves our ability to conduct a strong, effective foreign
intelligence program.
I urge my colleagues to support this legislation.
Madam Speaker, I yield back the balance of my time.
Mr. REYES. Madam Speaker, it is now my pleasure to yield 1 minute to
our esteemed Speaker of the House, Ms. Pelosi.
Ms. PELOSI. Madam Speaker, I thank the gentleman for yielding. I
thank him for his great leadership as the chairman of the Intelligence
Committee. I commend him.
I commend Mr. Conyers, the distinguished chairman of the Judiciary
Committee, for although he is not supporting the legislation before us
today, he certainly had a tremendous impact to improve it. Thank you
for your relentless championing of civil liberties in our country, Mr.
Conyers.
I want to pay special tribute to our majority leader, Mr. Hoyer, for
making this compromise possible today. It's a very difficult task, many
competing views as to how we should go forward. Mr. Hoyer handled it
all with great intellect and great respect for all of those views.
Thank you, Mr. Hoyer.
Also want to acknowledge Mr. Smith and Mr. Hoekstra and minority
whip, Mr. Blunt, for their leadership in giving us this opportunity
today.
We've heard it over and over again. Our colleagues say this bill is
not perfect, this isn't the bill I would write. I prefer this bill, I
prefer that bill.
Well, I prefer the House bill that passed and was sent to the Senate.
It isn't an option for us. I do not, I totally reject the Senate bill
which is an option, and that is the comparison that we have to make,
the contrast that we have to make today.
But in doing so, I think we all understand the important
responsibility that we have in this Congress, focused on this debate
today. I always take the debate back to our responsibility when we take
the oath of office. We take an oath of office to protect and defend the
Constitution from all enemies, foreign and domestic. In that preamble
to our Constitution, we must provide for the common defense. Essential
to honoring that commitment to protect the American people is to have
the intelligence, operational intelligence that will help us do that.
When I first went on the Intelligence Committee, our focus was on
force protection. Our troops in the field depend on timely and reliable
intelligence to make the decisions necessary to keep them safe and to
do their job. Force protection, force protection, force protection. It
is still a primary responsibility of our intelligence.
In addition to that, we have the fight on the war against terrorism,
the fight against terrorism, wherever it may exist. Good intelligence
is necessary for us to know the plans of the terrorists and to defeat
those plans.
So we can't go without a bill. That's just simply not an option. But
to have a bill, we must have a bill that does not violate the
Constitution of the United States, and this bill does not.
Some in the press have said that under this legislation, this bill
would allow warrantless surveillance of Americans. That is not true.
This bill does not allow warrantless surveillance of Americans. I just
think we have to stipulate to some set of facts.
We may have our opinions about the bill, but there have been so many
versions of the story of different bills that have come up, the PAA
last year, which I thought was totally unacceptable. The Senate bill,
also unacceptable. Our House bill, which I mentioned before, which I
thought was the appropriate way to go, and now this compromise.
As I was talking with Mr. Hoyer in the course of his negotiations,
there were certain things that I thought had to be in the bill to make
it acceptable, certain threshold issues that had to be there, and they
are.
In terms of the original FISA bill, it's interesting to note that
this bill is an improvement on that in three important ways.
First, we all recognize the changes in technology necessitate a
change in the legislation, and this legislation today modernizes our
intelligence-gathering system by recognizing and responding to
technological developments that have occurred since the original FISA
Act in 1978. In doing so, we can make the country safer in a more
advanced technological way.
Second, and this is very, very important, and there's some
misunderstanding about this. This bill provides that Americans overseas
receive the same FISA protection, including an individualized warrant
based on probable cause, as Americans living within the country. This
is a very important improvement on the original FISA Act.
Third, this bill strengthens congressional oversight. And this is
very important, the transparency. Transparency and intelligence don't
always go together, but accountability is central to intelligence. This
strengthens congressional oversight by requiring that the executive
branch provide more extensive information about the conduct of
surveillance to both the Intelligence Committee and the Judiciary
Committee. This is new, this is better. The more we know, the better, I
think, the law will be enforced.
If this bill does not pass, we will most certainly be left with the
Senate bill. I think that's clear. And this bill is an improvement over
the Senate bill in the following ways, just to name a few.
First of all, it reaffirms that FISA is the exclusive means of
collecting foreign intelligence, and makes absolutely clear that the
enactment of an authorization for the use of force does not give the
President, whoever he may be, any inherent authority to alter the
requirements of FISA. Very important.
This is important because President Bush believed, and this was what
we were told, that he, as President of the United States, had inherent
authority under the Constitution to do almost anything he wanted.
[[Page H5768]]
And what this bill reaffirms is that the FISA law is the authority
for collecting foreign intelligence. There is no inherent authority of
the President to do whatever he wants. This is a democracy. It is not a
monarchy.
Secondly, it is an improvement of the Senate bill. And by the way, no
offense to President Bush. I wouldn't want any President, Democrat or
Republican, a Democratic President or a Republican President to have
that authority.
Secondly, the bill provides that, except in rare circumstances there
will be pre-surveillance review by the FISA Court.
{time} 1200
And when I say rare circumstance, I mean very, very rare.
Unlike the Senate bill, this legislation retains FISA's broad
definition of electronic surveillance and thus guarantees that basic
protections of FISA apply to all the new forms of collection authorized
by the bill. There had been an attempt, and that's why the Senate bill
is inferior in this respect, to just narrow it to certain kinds of
collection, and this says it applies to all collection, electronic
surveillance.
Fourth, it contains specific protections against reverse targeting.
This reverse targeting is very, very important to the civil liberties
of the American people, and I am satisfied by the specific provisions
against reverse targeting. It provides a full and independent review of
the President's surveillance program by the Inspector General of the
relevant agencies.
Of course, there are aspects of this compromise bill that I do not
like. I don't believe that Congress should be in the business of
interfering with ongoing lawsuits and attempting to grant immunity to
telecommunication companies that allegedly violated the law. Those
companies have not lived up to a standard expected by the American
people. I don't think today is any cause for celebration for them. They
come out of this with a taint.
I do not believe that the pending lawsuits would have achieved what
we would have liked them to do which is what the Inspector General's
review would, which is to learn the truth about the President's
terrorist surveillance program and give us the information we need to
make sure that never happens again.
In addition, this legislation makes sure that in the future, the
telephone companies must fully comply with Federal statutes.
Again, it would have been my preference to vote for the RESTORE Act
that the House sent over to the Senate. I do not consider it an option
to live with the Senate bill. This is the opportunity that we have to
protect the American people through the gathering of intelligence which
is essential, as I said earlier, to force protection, to protect our
men and women in uniform and help them make the decisions they need to
do their jobs and keep them safe and to fight terrorists by learning
their plans in advance and squelching them.
I want to thank those who have worked so hard to bring this bill to
the floor. Again, it's not a happy occasion, but it's the work that we
have to do. I think we have to remember getting back to the
Constitution. The House, article 1, legislates. We pass the laws. The
judiciary interprets the law. The executive branch enforces the law.
And what is very important about whatever we pass, especially in
relating to subjects relating to our security and our liberty, it's
important that the President of the United States enforce this law
honoring the Constitution of the United States recognizing the
responsibility that we all have to protect the American people and
protect the Constitution of the United States at the same time.
So again, a difficult decision for all of us. I respect every opinion
that was expressed on this floor today. The knowledge, the sincerity,
the passion and the intellect of those who support and oppose this have
been very, very valuable in making the bill better, if not good enough
for some, but certainly preferable to the alternative that we have
which is the Senate bill which must be rejected.
I'm not asking anybody to vote for this bill. I just wanted you to
know why I was.
Thank you, Madam Speaker.
Mr. HOEKSTRA. Madam Speaker, I would like to yield myself the balance
of my time.
In the immediate aftermath of 9/11, the President, the leaders of
Congress, faced a very difficult situation: to learn more and to better
understand the threat that America now faced. They recognized that we
needed to move from a mentality of being law enforcement to a mentality
of prevention, that we needed to confront, contain, and ultimately
defeat radical jihadists if America was going to stay safe.
The President, the leaders of Congress, many of whom spoke today,
huddled together and talked about the various strategies that they
could implement to get a better understanding of this organization
called al Qaeda, its leaders, its intentions, and its capabilities.
Overarching in their discussions were making sure that the
Constitution and the rule of law would guide their behaviors. As they
considered various alternatives and discussed these, they implemented a
terrorist surveillance program using the capabilities that in many
cases are unique to America that could give us insights into al Qaeda,
its leadership, and its intentions.
It's not the President's program. This program was put together by
the President in consultation, sure, with members of his cabinet, but
also, very importantly, with consultation on a bipartisan basis with
the leaders of Congress.
These leaders in Congress were consistently briefed about how the
program would work, the kinds of information that was being obtained,
and how it was being used to keep America safe, all the while placing a
responsibility on yes, the President, but also the leaders of Congress
to make sure that the intel community was doing the things it was being
asked and was being asked to do things that would be legal.
The intel community has performed very well. They have gotten us
information that has enabled us to keep America safe. The intel
community, this administration, and Congress asked other parts of our
economy to participate, private sector companies. They stood up and
they did the job to keep America safe. Congress did the necessary job
of doing oversight, and in 2004, we reformed the intelligence
community.
So since 9/11, many things have been done properly. The end result,
as we've gone through this process, is that we have kept America safe.
I congratulate the Speaker, I congratulate the majority leader, I
congratulate my colleagues on the other side of the aisle, Mr. Smith,
for working in a bipartisan basis to recognize what needed to be done
in allowing this bill to come to the floor and continue to move forward
in a slightly different way than how we've been moving forward over the
last 6 years. But the most important thing is in a bipartisan basis, we
have come together on a national security issue to give our
intelligence community the tools that they need to keep America safe.
Mr. CONYERS. Madam Speaker, I would like now to recognize the
distinguished gentleman from Washington, Jay Inslee, for 1 minute.
Mr. INSLEE. Have we forgotten what our ancestors have done in the
cause of liberty? Don't we realize there are some lines we can never
cross? Don't we realize we should never legitimize illegal violations
of America's privacy rights, which this bill does?
This bill says if the telecommunication companies violated America's
privacy willfully, knowingly, knowing it was illegal, we are giving
them immunity. Where is the excuse for that? Where is the excuse for
turning a Nation of laws into a Nation that will be led by a President
who knows how to manipulate our fears?
We have got to know the law is our ultimate guardian of liberty, and
those on this side have accused us of having a pre-9/11 mentality. Let
me remind them that July 4, 1776, was pre-9/11. And heaven help us the
day that those values are shucked aside at the service of fear.
Reject this bill.
Mr. CONYERS. Madam Speaker, I will take this time to use the
remaining time that is allotted me.
The SPEAKER pro tempore. The gentleman is recognized for 1 minute.
Mr. CONYERS. I would like to point out that the grant of retroactive
immunity to the telecoms is inconsistent
[[Page H5769]]
with our basic principles because we are breaking with a very proud
tradition of intervening for the first time in a pending court decision
in an effort to reach a preordained legal outcome. This is a bad
precedent.
And may I point out, too, that we are in a period in which the
executive branch has been deemed by many constitutional authorities to
be very near the description of an imperial Presidency. We've gone too
far.
I hope that we will get a strong vote against this because the
struggle for restoring our precious rights and liberties must continue.
I return all time that may be remaining on our side.
Mr. REYES. Madam Speaker, how much time remains?
The SPEAKER pro tempore. The gentleman from Texas has 2\1/4\ minutes.
Mr. REYES. Madam Speaker, it is my privilege to yield 1 minute to our
distinguished majority leader, Mr. Hoyer, who in this case deserves MVP
status for having the wisdom of Solomon and the patience of Job.
Mr. HOYER. I thank my friend, the chairman of the Intelligence
Committee. I thank the Speaker. I thank the Speaker not only for giving
me the responsibility for trying to work with some extraordinarily
talented people but also for having the courage to lead and the courage
to express her convictions.
And I want, at the outset, to share her view that every Member who
has spoken on this floor has spoken out of a sense of conviction and
out of a sense of responsibility to the Constitution of the United
States and to the protection of our great Nation and our great people.
Mr. Reyes, Mr. Conyers, Mr. Hoekstra, Mr. Smith have all worked to
come together, realizing that there were significant differences. Those
four have been assisted by some extraordinary people, and at the
outset, I want to mention them.
First of all, I want to mention my own staff without whom I think we
would not be at this day. She sits on the floor. She worked for my
colleague and dear friend Senator Paul Sarbanes for a number of years.
One of the benefits of Senator Sarbanes retiring was that she came to
my staff. Mariah Sixkiller has expended too much time, perhaps, but
with great talent and great ability to reach this day. Thank you,
Mariah Sixkiller.
I want to thank Chairman Conyers because Chairman Conyers, as you've
heard on the floor, has been conflicted but he has been focused on the
necessity to respond to issues that are real and also to help us move
forward so that we did not, in the minds of many of us, have a bill
pass that we thought was unacceptable, a bill passed by the Senate with
68 of 100 votes. We would not be here, in my opinion, without Chairman
Conyers' leadership, not because he supports this alternative, but
because he saw the ability to work together.
I want to thank his staff, Lou DeBaca, Perry Apelbaum. And Lou
DeBaca, in particular, who sat for hours and hours and hours in a room
trying to reach agreement as we made compromises. Mr. Reyes' staff,
Mike Delaney, the staff director. Jeremy Bash. Jeremy Bash did
extraordinary work. Jeremy Bash was hired by the former Chair of the
Intelligence Committee, Jane Harman.
Jane Harman is probably as knowledgeable as almost anybody on this
floor, other than perhaps the Speaker who served on the Intelligence
Committee longer than anybody in this House. Jane Harman's leadership,
concern, focus on constitutional rights, focus on the security of our
country, was outstanding. She played a significant role in trying to
get us to this day.
{time} 1215
Eric Greenwald of Mr. Reyes' staff also played a significant role.
Without Mike Sheehy and Joe Onek of the Speaker's staff, we would not
be here today. We would not have reached the good compromises that we
reached. Joe Onek and Mike Sheehy, if they were writing this bill,
would have written a different bill, much closer to what we passed on
our side of the aisle and sent to the Senate, which they rejected. Mike
Sheehy has served the House and the Speaker for a very long time in the
intelligence field.
I want to thank Senator Rockefeller. We would not be here today on
this floor if it were not for Senator Rockefeller. Senator Rockefeller
very early on had discussions with me about what could they do to try
to move towards the bill that we passed. He made some suggestions.
Those suggestions are in this bill today. He facilitated our actions.
Andy Johnson, Mike Davidson, Alissa Starzak of his staff were very,
very helpful.
Senator Bond, Senator Bond and I did not see necessarily eye-to-eye
on these issues as we began, but at the end, we came to an agreement.
Louis Tucker and Jack Livinston of his staff were very helpful.
Chairman Hoekstra, or former Chairman Hoekstra, now Ranking Member
Hoekstra, I want to thank Chairman Hoekstra, but particularly, I want
to thank Chris Donessa who was very helpful, gave us great assistance
and advice.
Lamar Smith and Caroline Lynch of his staff, thank you very much for
your efforts as you sat in that room, as we all sat around, every one
of the committees sat around the table, as we came to the final
agreement.
Then I want to thank, of course, Jen Stewart and the minority leader,
without whom we could not have gotten to this day.
Lastly, I want to thank my friend. There's an article going to be
written. It's going to speculate whether or not he and I hurt one
another by saying the other is his friend. I don't think that's the
case. I said that Roy Blunt and I often disagree on substantive issues,
but what we agree on very strongly is that this House needs to sit down
and talk to one another and try to reach resolution on difficult
issues, not hard-to-reach compromise on easy issues. It's on the
difficult issues.
Roy Blunt is a man of this House, who cares about this House, who
cares about this country. And he cares about drafting legislation that
can be agreed upon by a broad section of this House and the American
people. He has an extraordinary staff of Brian Diffell, who I want to
thank for his efforts, but in particular, I want to thank Roy Blunt for
his friendship, for his integrity, and for his willingness to take
risks to reach compromise. Thank you, Roy.
Madam Speaker, today we conclude one step in a long, continuing
process. Just under a year ago, the House came under great pressure
from the administration and the Senate to pass the Protect America Act,
a bill I could not support and spoke out against for its lack of civil
liberties protections.
Since then, there have been other attempts to modernize the Foreign
Intelligence Surveillance Act: first, the RESTORE Act passed by the
House last November with my strong support, with Mr. Conyers' strong
support, Mr. Reyes' strong support, and the support of this House; that
was followed by the Senate bill which passed, as I said earlier, with
68 votes in February; and most recently, the FISA Amendments Act,
passed by the House last March. I supported that bill as well. I think
it was a better bill. It would be my alternative. It was our
alternative on this side of the aisle, but it was not the consensus
alternative, and we needed to reach consensus to move forward.
I was proud to support the two House bills, which I believe struck
the right balance between giving our intelligence community the tools
to go after those who seek to harm and protecting the constitutional
rights of American citizens.
Today, I stand in support of a different kind of bill, a compromise.
To be clear, this is not the bill that I would have written or that
perhaps anybody individually on this floor would have written. However,
in our legislative process, no one gets everything he or she wants.
Different parties, often with deeply competing interests, come together
here to produce a consensus product, where each side gives and takes. I
don't believe we've given on the ultimate principles on either side.
Over the past few months, I've been involved in almost daily
discussions with the stakeholders on this important issue, Members in
both Chambers, in both parties, as well as outside organizations and
experts. I want to thank all of the outside organizations, whether they
agree with our product or do not. Their contribution has been an
important one. I particularly want to thank those who take very
unpopular
[[Page H5770]]
positions to protect the rights of perhaps just one of us among the 300
million, who in the land of the free and the home of the brave deserve
to have that one individual right protected, and I appreciate their
efforts to ensure that that country remains that kind of country.
Together, we have worked to develop a bill that strikes a sound
balance. This measure provides the intelligence community with the
strong authority to surveil foreign terrorists who seek to harm this
country and our people. As the Speaker said, that is our
responsibility, and we intend to meet it.
It provides for enhanced civil liberties protections for Americans
and insists on meaningful judicial scrutiny.
It includes critical new oversight and accountability requirements
that both address the President's warrantless surveillance program and
ensures that any surveillance going forward comports with the fourth
amendment and will be closely monitored by the Congress.
Of vital importance, my colleagues, this legislation makes clear that
FISA is the exclusive means by which the government may conduct
surveillance, the Foreign Intelligence Surveillance Act. Contrary to
the administration's previous actions, in which it did not comply with
the FISA statute, this statute makes it very clear, this and this alone
is the process through which we will intercept communications, an issue
of great importance to the Speaker, as she has said.
Notably, this bill does not address or excuse any actions by the
government or government officials related to the President's
warrantless surveillance program, nor does it include any statement by
the Congress or conclusion on the legality of that program.
Indeed, it mandates for the first time ever a robust accounting by
the Inspectors General of the warrantless surveillance program, which
Congress will receive and act on.
Madam Speaker, in closing, let me say again, this bill is a
compromise, but in my opinion, it is a compromise worth supporting. And
the conclusions drawn by editorials in the New York Times, Wall Street
Journal and Washington Post over the last 2 days reflect this
compromise.
Today, for example, the Washington Post recognized that this is a
reasonable effort to strike a compromise, stating: ``Striking the
balance between liberties and security is never easy, and the new FISA
bill is not perfect. But it is a vast improvement over the original law
and over the earlier, rushed attempts to revise that law.''
As I said at the beginning, this bill is one step in a long,
continuing process of updating this critical legislation, ensuring that
our national security and our civil liberties are both protected.
This legislation sunsets at the end of 2012, and it's imperative that
we scrutinize its implementation in the future and make any necessary
changes. I believe we have the best bill before us that we could
possibly get in the current environment. It is a significant
improvement over the Senate-passed bill and, I suggest, existing law.
I look forward to working with my colleagues in the years ahead to
ensure that both our national security and our civil liberties are
protected. That is our responsibility. That is our pledge to our
constituents. I urge passage of this legislation.
Mr. REYES. Madam Speaker, I yield myself the balance of the time.
I just wanted to thank everyone again, as Mr. Hoyer indicated. I
believe every Member in this body cares about our national security,
and I also believe that this is a good bill, a good compromise and is
worthy of supporting.
Mr. VAN HOLLEN. Madam Speaker, on March 14th I voted in favor of H.R.
3773 which modernized the Foreign Intelligence Surveillance Act. This
bill successfully updated the law to accommodate the current day
communications technology while at the same time providing the much-
needed protection of the court in sanctioning the surveillance of
Americans. Moreover, the bill was also remarkable for what it did not
contain; it did not provide retroactive immunity for telephone
companies who are defendants in pending lawsuits. These suits have been
brought to uncover the full extent of the Administration's program to
conduct unauthorized surveillance on Americans.
I am deeply troubled that the Senate does not have the votes to pass
the House bill. The Senate instead passed its own bill, S. 2248, which
was unacceptable to me from the outset because it reduced the role of
the FISA Court to merely review the procedures for targeting
surveillance subjects and minimizing the information collected.
Moreover, the Senate bill established retroactive immunity for the
phone companies that have been used to carry out the Administration's
illicit surveillance program.
To be sure, the Senate bill is completely unacceptable. Majority
Leader Hoyer worked tirelessly to improve upon the Senate bill to forge
an acceptable compromise. The bill before us today, however, does not
go far enough to include sufficient safeguards of court involvement in
the surveillance of Americans. Moreover, it continues to provide
retroactive immunity for those companies that carried out the
Administration's unauthorized surveillance. Finally, it fails to hold
the Administration accountable for its past illicit surveillance
activities and its disregard of the Fourth Amendment protections of
Americans. As a result, I must vote against this bill.
____
Ms. SPEIER. Madam Speaker, when are we going to stop pulling the wool
over the eyes of the American people? The proposed FISA law protects no
one other than the administration and those within it who may use this
new-found power to snoop and spy in areas where they have no business
looking. We are giving broad new powers to political appointees who
have repeatedly disregarded the Constitution and ignored the most basic
rights of Americans to live their lives without Big Brother peeking his
nose into their private matters.
This FISA bill gives the federal government sweeping powers to gather
wide swaths of information from foreign sources while providing little
or no justification for the national security value of that
information.
The FISA Court set up to police the process isn't a court at all.
Under this bill, the government can gather as much intelligence as it
chooses for seven days prior to going to the court. Then, if the court
says ``No'' to the request, the government can continue to gather
intelligence for 60 days while they appeal.
Any first year law student knows that is not how courts work. If this
were a real court, the government would be required to abide by the
decision of the court and seek the warrant prior to conducting
surveillance.
It is fundamentally untrue to say that Americans will not be placed
under surveillance after this bill becomes law. The truth is, any
American will subject their phone and e-mail conversations to the broad
government surveillance web simply by calling a son or daughter
studying abroad, sending an e-mail to a foreign relative, even calling
an American company whose customer service center is located overseas.
Once again, our government puts a feel-good name on something that
doesn't live up to its billing. Calling the FISA rubber stamp panel a
court is akin to the President's ``Clear Skies Initiative'' which
relaxed pollution regulations or ``No Child Left Behind'' which instead
of helping schools, punishes them if they have children who are,
indeed, lagging behind.
This bill sets out to reassure Americans that, because there are
warrants and a ``court'', due process is taking place. But like the
pseudo-court, FISA warrants aren't warrants at all.
A warrant is permission by the court to look for a specific thing
from a specific person or group for a specific reason. The FISA warrant
is given after the fact and can be as broad as gathering all electronic
communication coming into or out of a foreign country.
Madam Speaker, America isn't simply `guided'' by our Constitution, it
isn't a set of ``suggestions'' but rather, the law of the land. It is
the existence of this great document and our unswerving loyalty to it
that makes America the greatest nation in the history of our planet. We
can't be sacrificing basic constitutional principles like the fourth
amendment simply because it's an election year and we want to make it
look like we're fighting terrorism.
I join my colleagues in our unified fight to defeat the global
terrorist movement. But we don't do that by sacrificing our hard-earned
Constitutional rights and forgiving telephone companies who knowingly
violate those rights.
The bottom line is, this FISA bill permits the collection of
Americans' emails and phone calls if they are communicating with
someone outside of the U.S. This is especially true when it comes to
emails, because the World Wide Web has no area codes, so it is
impossible to tell where email communications originate from. The
Government is under no obligation to seek a warrant in order to monitor
an email account unless it knows the account belongs to an American.
And once your email account is swept up in the system, it can be
monitored. Regardless of the relevance of your personal information,
once it is gathered by the government, it is never destroyed. One only
has to recall the recent incident in the State Department where
candidates' passport information was breached to know that this
information isn't
[[Page H5771]]
handled by robots, but people. And people can do any number of things
with personal informations.
Out of respect to the United States Constitution and the basic rights
of Americans to live free of intrusive eavesdropping by their
government, I strongly oppose HR 6034, the FISA Reauthorization Act.
Ms. ESHOO. Madam Speaker; first I want to commend the Chairman and
the Majority leader for the work they've done to bring this legislation
to the floor of the House. It has been a challenge for all of us on the
Intelligence Committee and in the Congress.
This legislation is a vast improvement over the previous law, and
indeed over the Protect America Act passed by the House last August
which I opposed.
The bill very importantly establishes a process for electronic
surveillance that includes prior approval by the independent courts,
and in some respects, this legislation goes even further than the
existing FISA statute or the House-passed RESTORE Act in protecting the
civil liberties of U.S. persons. Under this bill the Administration
would have to seek a court order before conducting surveillance on U.S.
persons abroad. Until now and under the Protect America Act, the
executive branch could conduct electronic surveillance of U.S. persons
without prior judicial approval. This legislation also allows the
lawsuits against the telecommunications companies to go forward in a
limited fashion, which would not have occurred at all under current
law.
Having said this I must oppose this bill.
Under the original structure of FISA, telecommunications carriers
served an important gate-keeping function. They were not permitted to
provide access to private communications in the United States unless
the government made a lawful request to conduct surveillance, pursuant
to a FISA order. For decades, the government has sought and obtained
thousands of FISA warrants prior to beginning surveillance, or in
urgent cases shortly thereafter. We all remember the shocking news when
the President had to acknowledge that his Administration created an
illegal, warrantless electronic surveillance program outside of the
FISA legal framework.
This legislation would essentially grant retroactive immunity to
telecommunications carriers who relied on statements made by this
Administration that the program was lawful. However, as we've seen in
numerous instances, this Administration pushed new and aggressive
interpretations of the law, including in this area. We all recall
vividly the days following \9/11\, and the urgency that prevailed, but
suspending our laws and allowing the Attorney General to unilaterally
issue a ``get out of jail free card'' is not appropriate under any
circumstances. There should be at least some minimal inquiry into
whether the telecommunications carriers reliance on the statements made
by this Administration was reasonable. If so, the they would be able to
assert their existing statutory immunity defenses.
Throughout our Nation's history, the judiciary has been the most
important check on an overzealous executive, and it is often through
the judicial process that we uncover and remedy some of the most
egregious executive misconduct. This legislation undermines and
effectively nullifies the courts' ability to hold the Administration
accountable for its actions, which likely violated the Constitution.
Our Nation was founded on the principle of separation of powers. The
executive branch should be subject to independent oversight by the
judicial branch. This legislation does not go far enough to allow the
judicial branch to conduct an independent, reasoned inquiry into this
critical issue. Therefore, I must oppose this legislation.
Mr. UDALL of Colorado. Madam Speaker, I will support this bill.
I will do so 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. It was supported by all but
three 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 Overseer, Reviewed,
and Effective'' (or RESTORE) Act--which the House passed on November
15th of last year. Like those bills I supported earlier, this bill will
replace the Protect America Act, enacted in August 2007--which I
opposed.
The bill makes it very clear that to conduct surveillance targeting a
person in the United States, the government first must obtain an
individual warrant from the FISA Court, based upon probable cause.
And, importantly, it explicitly states that FISA and Title III of the
U.S. criminal code are the exclusive means by which the government may
conduct surveillance on American soil, and adds that any future statute
must expressly authorize surveillance if the government is going to
rely on it to conduct domestic surveillance.
It also includes new legal protections for Americans abroad,
requiring an individual probable cause determination by the FISA Court
when the government seeks to conduct surveillance of U.S. persons
located outside the United States.
It requires prior review and approval by the FISA Court of the
targeting and minimization procedures used to conduct surveillance of
any foreign targets (unless in an emergency, in which case the
government may authorize the surveillance and then apply to the FISA
Court for approval within 7 days), and requires that this surveillance
be conducted in accordance with the Fourth Amendment. And it requires
the government to establish guidelines to ensure that Americans are not
targeted by this surveillance (``reverse targeting guidelines''), and
requires the government to provide those reverse targeting guidelines
to Congress and the FISA Court.
The legislation also includes important provisions to increase
transparency and accountability. For example, it requires there be a
comprehensive review of the President's warrantless surveillance
program by the Inspectors General of the Justice Department, the
Directorate of National Intelligence, the National Security Agency, and
the Defense Department--and it provides for them to report the results
to the Intelligence and Judiciary Committees.
This report will review ``all of the facts necessary to describe the
establishment, implementation, product, and use of the Program,'' as
well as ``communications with, and participation of, individuals and
entities in the private sector related to the Program.''
I do not find equally satisfactory another aspect of the bill that
involves accountability--the treatment of pending lawsuits against
various telecommunication companies that acted to implement President
Bush's clandestine surveillance program.
Like the bills I supported earlier, this measure would provide civil
liability protection for private sector companies that provide lawful
assistance to the government in the future. But it differs
significantly in the way it addresses those pending lawsuits, which
deal with the previous actions of the defendant companies.
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, the Senate decided to comply with the president's demand
on this point, and its version of this legislation would provide that
retroactive immunity. I do not think that was the right decision
because 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.''
I supported removing that ``state secret'' barrier and allowing the
companies to defend themselves by demonstrating 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.
In that respect, this bill is similar to the legislation I supported
earlier this year. But it is not identical, and I do not think it is
quite as sound.
Under this bill, a district court hearing such a case will decide
whether the Attorney General's certification attesting that the
liability protection standard has been met and is supported by
substantial evidence. In making that determination, the court will have
the opportunity to examine the highly classified letters to the
providers that indicated the President had authorized the activity and
that it had been determined to be lawful.
[[Page H5772]]
That is not as strong a requirement for accountability as I would
prefer. However, in such cases both plaintiffs and defendants will have
the opportunity to file public briefs on legal issues and the court
should include in any public order a description of the legal standards
that govern the order.
And, importantly, this immunity provision does not apply to any
actions against the Government for any alleged injuries caused by
government officials.
Madam Speaker, as Benjamin Franklin has warned us, people who value
security over liberty will get neither--and the Bush Administration has
finally agreed to end its disregard for liberty and agree to effective
judicial oversight and involvement in intelligence surveillance.
That agreement that is embodied in this bill, and the choice before
us now is whether to reject it or to support the compromise measure now
before us.
After careful review, I have concluded that the bill adequately meets
the test of protecting civil liberties while giving our country tools
needed to effectively combat terrorism.
So, while--like any compromise--the bill is not ideal, I have decided
the correct decision--the one that will fulfill my responsibility to
protect both our national security and the civil liberties that make
our nation worth defending--is to vote for it.
Mr. ETHERIDGE. Madam Speaker, I rise in support of H.R. 6304, FISA
Amendments Act. This bipartisan bill takes steps to increase our
Nation's security while also protecting Americans' civil liberties.
H.R. 6304, FISA Amendments Act, provides the critical tools that our
intelligence community needs to ensure the safety of our Nation. With
many surveillance warrants set to expire in the coming weeks, the
intelligence community needs a strong and dependable set of guidelines
to follow while conducting surveillance. H.R. 6304 allows the
Government to authorize surveillance in the case of an emergency
situation, provided that they return to the FISA court within 7 days to
apply for a warrant.
This bill also includes a number of provisions that significantly
strengthen the protection of our civil rights. H.R. 6304 clarifies that
FISA is the exclusive means for conducting surveillance in the United
States, prohibiting any President from using executive power to conduct
a warrantless wiretapping program. This bill also requires the
Government to obtain an individual warrant from the FISA Court before
conducting surveillance on a United States citizen. This warrant must
be based on probable cause, and the provision now includes American
citizens abroad as well. H.R. 6304 requires prior review and approval
of the intelligence community's targeting and minimization procedures
that ensure that any inadvertently intercepted communications by
American citizens are destroyed. Finally, the FISA Amendments Act adds
a strong layer of oversight to this process by directing the Inspectors
General from Justice, State, Defense, the DNI, and NSA to review
surveillance procedures and submit their findings to Congress.
H.R. 6304 rejects blanket immunity for telecommunications companies
that may have participated in the administration's warrantless
wiretapping program. Under this bill, lawsuits against these companies
would be determined by Federal district courts. These
telecommunications companies will have to prove that the Administration
provided written assurance that their activities were legal. There is
no immunity for any government official who may have violated the law
included in this legislation.
This bill is much stronger than the Senate version, and will protect
both our security and the civil liberties that we enjoy. I support the
passage of H.R. 6304, FISA Amendments Act, and I urge my colleagues to
vote in favor of this bipartisan measure as well.
Mr. LANGEVIN. Madam Speaker, I rise in support of the FISA Amendments
Act of 2008. As a member of the Intelligence Committee, I know we must
give our intelligence community the proper tools to protect us while
upholding the civil liberties of Americans. Today's compromise
illustrates what this House can do when it deliberates with care, holds
steady against fear-mongering, and acts in the best interest of the
country and its citizens.
This bill is strong on civil liberties, and includes protections
against infringement of our Constitutional right to privacy.
First, the bill clarifies that FISA is the exclusive means by which
the executive branch may conduct electronic surveillance on U.S. soil.
No President will have the power to do an end-run around the legal
requirements of FISA. This provision will prevent the types of abuses
we have witnessed under this administration.
Second, this Act requires a warrant from the FISA court to conduct
surveillance of Americans abroad. Americans will no longer leave their
constitutional protections at home when working, studying, or traveling
abroad.
Third, it requires prior approval by the FISA court of procedures the
Government will use when carrying out foreign electronic surveillance.
This will ensure that the Government's efforts are not aimed at
targeting Americans, and that, if an American's communication is
inadvertently intercepted, it is dealt with in a manner that guarantees
legal protections.
One issue that has been repeatedly addressed is whether
telecommunications companies should be granted immunity against pending
lawsuits for their involvement in the earlier surveillance program. For
a long period of time, the Bush Administration stonewalled and did not
provide Congress the documents we demanded to ascertain the role that
the telecommunications companies played. Since then, I have reviewed a
large number of classified documents on this matter, and I am deeply
concerned about the manner in which the Bush administration conducted
its surveillance program. Therefore, I am pleased that this legislation
preserves a role for the U.S. court system, which will review the
documents produced by the White House and other relevant documents to
decide independently whether the telecommunications companies acted in
good faith when cooperating with the Government. Only after that review
would the courts decide whether the telecommunications companies
deserve any form of liability protection. Furthermore, the legislation
authorizes a joint investigation by the Inspectors General from the
U.S. Department of Justice, National Security Agency, Department of
Defense, and Office of the Director of National Intelligence to review
the past actions of the U.S. Government and report to Congress on their
findings so that we may take appropriate action.
Many today have said that the legislation before us is not a perfect
bill, and I agree. Nevertheless, it is significantly better than the
bill passed by the Senate and an immense improvement over the Bush
administration's program, neither of which took sufficient steps to
protect Americans' civil liberties. I know that the Democratic
leadership negotiated a good compromise, and I will support it.
However, as I have said before, this legislation will only work if
everyone involved follows the rules and remains within the confines of
the law. Congress must continue to conduct robust oversight to make
sure the law is implemented as intended to maintain the critical and
fragile balance of protecting our Nation and protecting civil
liberties.
Mr. LEVIN. Madam Speaker, I rise in opposition to the bill. I
appreciate the hard work that Mr. Hoyer and others have done on this
legislation. The bill before the House is a vast improvement over the
administration's Protect America Act, which I strongly opposed last
August. The legislation is also a significant improvement over the
seriously flawed FISA legislation approved by the Senate earlier this
year. In many respects, the bill before the House strikes a reasonable
balance between giving the Government the tools it needs to protect
U.S. national security and protecting Americans' constitutional rights.
In particular, I am pleased that the bill reaffirms that the Foreign
Intelligence Surveillance Act is the exclusive legal means by which the
Government may conduct surveillance. This stands in stark contrast to
the Bush administration's warrantless surveillance program. I also
support the provisions of this bill that protect Americans traveling
abroad. They need no longer leave their constitutional protections at
home.
At the end of the day, I oppose this bill because of the provisions
that would confer retroactive immunity on the telecommunications
companies that participated in the Bush administration's warrantless
surveillance program. We are a nation of laws, and it sets a dangerous
precedent for Congress to approve a law that dismisses ongoing court
cases simply on the basis that the companies can show that the
administration told them that its warrantless surveillance program was
legal. A program is not legal just because the administration claims
that it is. The retroactive immunity provisions in this bill shield the
administration from accountability for its actions. The goal here is
not to harm the telecommunications carriers, but rather to get to the
truth of what happened. A much better alternative would be to grant
indemnification to the companies and go forward with the trials.
Irrespective of the outcome of today's vote, we need a full
accounting of the administration's surveillance program, and the bill
before the House provides for an Inspectors General audit describing
all Federal programs involving warrantless surveillance conducted since
September 11, 2001. The audit is to be completed within 1 year.
Congress must get to the bottom of what happened and prevent it from
happening again. It is essential that Congress follow up on the audit's
findings with robust oversight.
Mr. DINGELL. Madam Speaker, while l cannot support the legislation
before us today, I commend Majority Leader Hoyer for the work he has
done to negotiate a bill that is substantially better than the version
that passed in the Senate. This legislation, which will be the
exclusive mechanism for the Government to conduct surveillance within
the United States,
[[Page H5773]]
contains provisions that will provide greater protections against
unwarranted and unconstitutional searches of American citizens.
Despite the many improvements Mr. Hoyer was able to obtain, I
unfortunately still cannot support this legislation because it contains
a provision that will grant immunity to the telecommunications
companies that assisted the President with his illegal and unauthorized
warrantless wiretapping program. I have consistently said that it is
not appropriate for Congress to grant these companies immunity for
their actions without having an understanding of what it is that they
did. This is not only because it will hold the telecommunications
companies accountable for their actions, but because it is the only way
of finding out just how extensive the President's illegal wiretapping
program really was. In other words, this provision will enable the Bush
administration to continue suppressing facts and information about the
Government's own misbehavior and wrongdoing.
The immunity provision contained in this bill purporting to allow for
judicial review to determine whether immunity is appropriate is a sham.
As drafted, courts will have no real discretion and will be forced to
grant immunity so long as the Government claims its actions were legal.
However, the court is under no obligation to investigate whether the
Government's claims are true. Anyone following the headlines recently,
who has read about the recent Supreme Court decision overturning the
administration's argument that it has the authority to detain people
indefinitely in Guantanamo Bay, or about the hearings held by Senator
Carl Levin and the Senate Armed Services Committee uncovering evidence
that top civilian leadership at the Department of Defense authored
memos arguing it was legal for the military to torture detainees,
should be extremely wary of trusting President Bush to decide whether
or not it is legal to spy on Americans.
Mr. HALL of New York. I have consistently supported modernizing the
existing FISA law to give our Government the tools it needs to identify
and defeat terrorists in today's high-tech world, while at the same
time preserving the freedoms and rights that define America. I have
voted three times to pass legislation that would strengthen and
modernize FISA and reaffirm the rule of law. Despite some improvements
over previous attempts to update FISA, the bill considered by the House
today regrettably falls short of achieving that critical balance. The
rule of law lies at the core of America's founding principles, and the
language in this bill was too weak to ensue that any breach of our laws
that may have occurred under the warrantless wiretapping program will
be fully addressed. It is not appropriate to deny Americans the right
to pursue these matters in court, or to short-circuit the judicial
review that lies at the heart of our system of checks and balances,
which is the bedrock of our Constitution. Accordingly, I voted against
this bill.
Mr. BLUMENAUER. Madam Speaker, I appreciate the hard work put in by
my colleagues on both sides of the aisle and in both chambers. For the
past year we've participated in substantial and sometimes heated debate
on the issue of surveillance and foreign intelligence. I appreciate the
good faith efforts of our leadership, particularly Mr. Hoyer, as we try
to craft legislation that keeps both our liberties and our persons
safe.
For the past seven years I have been highly critical of Republican
wiretapping legislation. I voted against past efforts to expand this
administration's ability to intrude in the lives of unknowing and
innocent Americans. I supported the expiration of the disgraceful
Protect America Act. And I remain confident that the dedicated members
of the intelligence community do not need to violate the rights of
Americans in order to protect them.
I have heard some say that the enemies of America take on many forms.
To them I say: Let us be sure one of those forms is not our own
government.
Ultimately this is a compromise that falls short. Any gains in
security that may be achieved are temporary and are more than
outweighed by the longer-term loss of civil liberties and oversight.
Although this bill is comparatively better than the Senate's version, I
am troubled by the lack of robust government oversight, the absence of
meaningful court review, and the risk to American liberties.
Of particular concern is the granting of de facto retroactive
immunity to the telecommunications companies that cooperated with the
administration. A `doctor's note' from the Attorney General cannot be
allowed to circumvent the entire judicial process.
I am equally concerned with the timeline of this bill, and strongly
oppose authorizing this legislation for four years. This will extend
the Bush legacy throughout the next administration and the next two
sessions of Congress. Frankly I see no reason to rush into a compromise
that comes up this short. The American people would be better served if
we continued to debate this issue and took up a bill after we have seen
the last of this administration. Americans demand and deserve
protection of their basic civil rights and this can be accomplished
while providing the means necessary for our intelligence community to
do its job.
Mr. NADLER. Madam Speaker, Members of the House must decide today
whether to uphold the rule of low and the supremacy of the Constitution
or whether to protect and reward the lawless behavior of the
administration and of the telecommunications companies that
participated in its clearly illegal program of spying on innocent
Americans.
This bill limits the courts hearing lawsuits alleging illegal
wiretapping to consider only whether the telecom companies received a
``written request or directive . . . indicating that the activity was [
] authorized by the President; and [ ] determined to be lawful''--not
whether the request was actually lawful or whether the telecom
companies knew that it was unlawful.
The bill is a fig-leaf, granting blanket immunity to the telecom
companies for illegal acts without allowing the courts to consider the
facts or the law. It denies people whose rights were violated their
fair day in court, and it denies the American people their right to
have the actions of the administration subjected to fair and
independent scrutiny.
Even the courts' limited review will remain secret. The lawsuits will
be dismissed, but the basis for the dismissal--that the defendants were
innocent of misconduct, or that they were guilty but Congress commands
their immunity--must remain secret.
And the constitutionality of the immunity granted by this bill is
very questionable. As Judge Walker put it in the AT&T case:
AT&T's alleged actions here violate the constitutional
rights clearly established in [the] Keith decision. Moreover,
because `the very action in question has previously been held
unlawful,' AT&T cannot seriously contend that a reasonable
entity in its position could have believed that the alleged
domestic dragnet was legal.
I would hope that the courts will find that, because the
Constitutional rights of Americans have been violated, Congress'
attempt to prevent court review is unconstitutional.
The bill also reiterates than FISA and specified other statutes are
the exclusive legal authority for electronic surveillance. The Act has
always said that. This bill adds some new mechanisms to ensure that any
future legislation may not be read to override this exclusivity by
implication, but only by explicitly saying that that is its purpose.
No one and no court should draw the false conclusion that we are
thereby implying that the exclusivity provision was, or could have
been, overridden either by the President's claim of inherent authority
under Article II of the Constitution, or by the Authorization for the
Use of Military Force of 2001. This bill does not say or imply that. If
there is any doubt of this point, the blanket immunity provisions of
this bill reflect Congress' understanding that this domestic spying was
not legal. If it were, there would not be any necessity for these
provisions.
This bill abandons the Constitution's protections and insulates
lawless behavior from legal scrutiny.
I urge a ``no'' vote.
Mr. BOSWELL. Madam Speaker, I rise in support of H.R. 6304.
This is the kind of work I came to Congress hoping for--bipartisan
legislation that protects our security and our liberty. It's a solid
compromise that does what it needs to do for the country.
One of my specific concerns in FISA reform over the last year has
been finding a way to protect reasonable private companies, who
assisted government out of patriotism.
This bill does that. It doesn't give anyone a free pass, but it
allows companies to come before the courts and make their case in order
to be protected from lawsuits.
That's a good result, and I thank Chairman Reyes for his work in
reaching this reasonable bipartisan compromise.
I urge my colleagues to vote ``yes.''
Ms. GINNY BROWN-WAITE of Florida. Madam Speaker, I rise today in
support of H.R. 6304, a bill to reauthorize the Foreign Intelligence
Surveillance Act and to protect America from foreign threats.
For the past several months, I have heard from hundreds of
constituents on the issue of FISA.
Each one of them expressed their alarm and disbelief that the House
Majority would repeatedly refuse to call a vote on bipartisan
legislation to extend FISA and address our grave vulnerability to
terrorist attacks.
Today I am pleased that the Majority leadership has finally reached
across the aisle to put together a compromise bill, and fulfill one of
its fundamental tasks--to ensure the security of this great Nation.
This compromise is also a reminder of what I have always believed,
that no one side can do it alone; both parties must work together to
ensure our safety.
In such uncertain times, when it is essential that our government
utilize every available tool
[[Page H5774]]
to protect American citizens, having the ability to collect
intelligence responsibly is essential.
While there is no excuse for the delay in bringing this critical bill
to the floor, we must now move forward together to pass H.R. 6304 and
restore our Nation's intelligence capabilities.
Mr. REYES. Madam Speaker, I yield back the remainder of our time.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to House Resolution 1285, the bill is considered read and
the previous question is ordered.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. CONYERS. Madam 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 293,
nays 129, not voting 13, as follows:
[Roll No. 437]
YEAS--293
Ackerman
Aderholt
Akin
Alexander
Altmire
Arcuri
Baca
Bachmann
Bachus
Baird
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bean
Berkley
Berman
Berry
Biggert
Bilbray
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono Mack
Boozman
Boren
Boswell
Boucher
Boustany
Boyd (FL)
Boyda (KS)
Brady (TX)
Broun (GA)
Brown (SC)
Brown, Corrine
Buchanan
Burgess
Burton (IN)
Butterfield
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cantor
Capito
Cardoza
Carney
Carter
Castle
Castor
Cazayoux
Chabot
Chandler
Childers
Cleaver
Clyburn
Coble
Cole (OK)
Conaway
Cooper
Costa
Cramer
Crenshaw
Crowley
Cubin
Cuellar
Culberson
Davis (AL)
Davis (KY)
Davis, David
Davis, Lincoln
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Dicks
Donnelly
Doolittle
Drake
Dreier
Duncan
Edwards (TX)
Ehlers
Ellsworth
Emanuel
Emerson
Engel
English (PA)
Etheridge
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Giffords
Gillibrand
Gingrey
Goode
Goodlatte
Gordon
Granger
Graves
Green, Al
Green, Gene
Gutierrez
Hall (TX)
Harman
Hastings (FL)
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Herseth Sandlin
Higgins
Hinojosa
Hobson
Hoekstra
Holden
Hoyer
Hulshof
Hunter
Inglis (SC)
Issa
Johnson, Sam
Jordan
Kanjorski
Keller
Kildee
Kind
King (IA)
King (NY)
Kingston
Kirk
Klein (FL)
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Lampson
Langevin
Latham
LaTourette
Latta
Lewis (CA)
Lewis (KY)
Linder
Lipinski
LoBiondo
Lowey
Lucas
Lungren, Daniel E.
Mack
Mahoney (FL)
Manzullo
Marchant
Marshall
Matheson
McCarthy (CA)
McCarthy (NY)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McIntyre
McKeon
McMorris Rodgers
McNerney
Meeks (NY)
Melancon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Mitchell
Moore (KS)
Moran (KS)
Murphy, Patrick
Murphy, Tim
Murtha
Musgrave
Myrick
Neugebauer
Nunes
Ortiz
Pearce
Pelosi
Pence
Perlmutter
Peterson (MN)
Petri
Pickering
Pitts
Platts
Poe
Pomeroy
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Rahall
Ramstad
Regula
Rehberg
Reichert
Renzi
Reyes
Richardson
Rodriguez
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Ross
Royce
Ruppersberger
Ryan (WI)
Salazar
Sali
Saxton
Scalise
Schiff
Schmidt
Scott (GA)
Sensenbrenner
Sessions
Sestak
Shadegg
Shays
Sherman
Shimkus
Shuler
Shuster
Simpson
Sires
Skelton
Smith (NE)
Smith (NJ)
Smith (TX)
Smith (WA)
Snyder
Souder
Space
Spratt
Stearns
Stupak
Sullivan
Tancredo
Tanner
Tauscher
Taylor
Terry
Thompson (MS)
Thornberry
Tiberi
Turner
Udall (CO)
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Westmoreland
Whitfield (KY)
Wilson (NM)
Wilson (OH)
Wilson (SC)
Wittman (VA)
Wolf
Yarmuth
Young (AK)
Young (FL)
NAYS--129
Abercrombie
Allen
Andrews
Baldwin
Becerra
Blumenauer
Brady (PA)
Braley (IA)
Capps
Capuano
Carnahan
Carson
Clarke
Clay
Cohen
Conyers
Costello
Courtney
Cummings
Davis (CA)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dingell
Doggett
Doyle
Edwards (MD)
Ellison
Eshoo
Farr
Fattah
Filner
Foster
Frank (MA)
Gonzalez
Grijalva
Hall (NY)
Hare
Hill
Hinchey
Hirono
Hodes
Holt
Honda
Hooley
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson (IL)
Johnson, E. B.
Jones (OH)
Kagen
Kaptur
Kennedy
Kilpatrick
Kucinich
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Loebsack
Lofgren, Zoe
Lynch
Maloney (NY)
Markey
Matsui
McCollum (MN)
McDermott
McGovern
McNulty
Meek (FL)
Michaud
Miller (NC)
Miller, George
Mollohan
Moore (WI)
Moran (VA)
Murphy (CT)
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Pallone
Pascrell
Pastor
Payne
Price (NC)
Rangel
Rothman
Roybal-Allard
Ryan (OH)
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schwartz
Scott (VA)
Serrano
Shea-Porter
Slaughter
Solis
Speier
Sutton
Thompson (CA)
Tierney
Towns
Tsongas
Udall (NM)
Van Hollen
Velazquez
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Woolsey
Wu
NOT VOTING--13
Brown-Waite, Ginny
Cannon
Gilchrest
Gohmert
Jones (NC)
Paul
Peterson (PA)
Reynolds
Rush
Stark
Tiahrt
Visclosky
Weller
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). There are 2 minutes
remaining in this vote.
{time} 1248
Mr. FRANK of Massachusetts, Mr. JEFFERSON, Mrs. CAPPS and Ms. KAPTUR
changed their vote from ``yea'' to ``nay.''
Mr. BERMAN changed his vote from ``nay'' to ``yea.''
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Stated against:
Mr. VISCLOSKY. Madam Speaker, had I been present for rollcall 437,
H.R. 6304, on passage of a measure to amend the Foreign Intelligence
Surveillance Act of 1978 to establish a procedure for authorizing
certain acquisitions of foreign intelligence, and for other purposes, I
would have voted ``nay.''
____________________
