[Congressional Record: January 17, 2008 (House)]
[Page H339-H344]
FOREIGN INTELLIGENCE SURVEILLANCE ACT
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 18, 2007, the gentleman from California (Mr. Daniel E. Lungren)
is recognized for 60 minutes as the designee of the minority leader.
Mr. DANIEL E. LUNGREN of California. Madam Speaker, this afternoon we
find ourselves in what only can be described as ominous circumstances.
In 2 weeks, our Nation will no longer be able to conduct critical
surveillance
[[Page H340]]
of foreign terrorists located outside the United States. We face this
situation because, in order to close what the Director of National
Intelligence described as critical intelligence gaps, he had to agree
with the Congress the necessary reforms embodied in the Protect America
Act would expire in 180 days.
Although this body did adopt follow-on legislation, the majority
party's so-called RESTORE Act in November of last year, this
legislation imposed additional burdens on the intelligence community
which, in my judgment, undermined the essential nature of the
compromise reached with Admiral McConnell.
Furthermore, it punted on the critical question of whether
retroactive protection would be extended to those communication
providers who responded to the call for help from their government in
the wake of 9/11. If press reports are accurate, similar ideological
currents in the other body threaten to dominate the outcome of this
critical issue and potentially the eventual resolution of the larger
FISA issue itself, that is, the Foreign Intelligence Surveillance Act
issue itself.
There is no issue of greater importance to those of us who serve in
this body than the protection of the American people from another
catastrophic attack like that we received on 9/11. In fact, this
responsibility goes to the very heart of the purpose for which
government exists. The very preamble to our Nation's Constitution
spells out this obligation to provide for the common defense.
It was for this very reason that on August 5 last year we passed the
Protect America Act, which responded to the minimum requirements
presented to this body by the Director of National Intelligence,
Admiral McConnell.
At the same time, Admiral McConnell described this legislation as
necessary in order to ``close critical intelligence gaps.'' He defined
the concept of a gap to mean ``foreign intelligence information that we
should have been collecting.''
Admiral McConnell testified before the House Judiciary Committee that
prior to the enactment of the Protect America Act this past August we
were not collecting somewhere between one-half and two-thirds of the
foreign intelligence information which would have been collected were
it not for the recent legal interpretations of FISA which required the
government to obtain FISA warrants for overseas surveillance.
This is very serious business, because if you look at our challenge
from those who would kill us in the name of some sort of distorted view
of Islam, we basically have to assess that risk by way of threat, by
way of vulnerability and by way of consequence.
With respect to consequence and vulnerability, we have within our
property of information, within our store of information, the ability
to make those judgments. In other words, when we look at vulnerability
for a particular site, a potential target, we have the information
about that target because it is either American owned, privately or
governmentally, and we can analyze that and determine what
vulnerabilities exist.
Similarly, with respect to the question of consequence, we have that
information available as well, because we can make calculations as to a
type of attack which might take place, the damage it would do and,
therefore, the consequences that would flow from that.
But there is one area of the analysis of risk that is not totally
within our information base, and that is the area of the threat. What
is the threat? The threat is that which is in the mind of those who
would do us harm. It is within the planning of those who would do us
harm, and it is within the orders of those who would carry out those
attacks on us to do us harm.
That is where intelligence comes into play. Intelligence means
gathering information that otherwise is within the authority of those
who would do us harm. That means essentially listening in wherever we
can on the conversations or communications they may have.
{time} 1530
That is the essence of intelligence. That's why it is so important.
It is that part of the three-part analysis of risk which is not totally
within our information base and therefore that which we have to go out
and extract. That's why it's so important.
I am sure that most Americans would agree with Admiral McConnell, a
distinguished public servant who headed the National Security Agency in
the Clinton administration for 4 years and now serves as our Director
of National Intelligence, that the changes contained in the Protect
America Act were necessary. Regardless of how one interprets the most
recent National Intelligence Estimate concerning Iran, any attempt to
attack Admiral McConnell as a tool of the Bush administration would
appear to be lacking in any credibility whatsoever.
I would say it is somewhat interesting that when he appeared before
our committee, one of the questions asked of him was whether he had it
in himself to speak truth to power. There should be no doubt in
anyone's mind that Admiral McConnell is a man of honor who, in fact,
calls them as he sees them. And, in fact, that's precisely what he has
done. According to Admiral McConnell, the Protect America Act has
provided us with the tools to close gaps in our foreign intelligence
collection. In other words, the law that we passed in August, which
necessarily accompanied with it a 180-day sunset as the price of
passing it, so, therefore, it is in the law now, that law, as it works,
has, in the judgment of Admiral McConnell, provided us with the tools
``to close those gaps in our foreign intelligence collection.'' This
act clarified that the definition of ``electronic surveillance'' under
FISA would not be interpreted to include intelligence directed at
persons reasonably believed to be located outside of the United States.
Thus, under the Protect America Act, it is not required for our
intelligence community to obtain a FISA warrant when the subject of the
surveillance is a foreign intelligence target located outside the
United States.
Now, critics of the Protect America Act have suggested that the FISA
warrant process should be excused only under circumstances where the
communication is a foreign-to-foreign communication. The corollary of
this argument is that if a foreign terrorist were to contact someone in
the U.S., the intelligence community should be required to first obtain
a warrant before listening to the conversation.
Now, let's put aside the fact that were Aiman al Zawahiri to place a
telephone call to a sleeper cell, let's say in San Francisco, perhaps
that might be the most worrisome of circumstances, and we want to be
assured that we would collect that information.
But focusing purely on the practical legal considerations raised by
the opponents of the Protect America Act, this formulation is simply
unworkable. Why? The problem is that we do not target both ends of the
conversation or communication, because we can't. Rather, we target only
one end of the communication or conversation, the foreign person
located outside the U.S. When a foreign terrorist in Islamabad places a
call, the known factor beforehand that we have is that he or she is the
one making the call. In the normal course of things, to whom the call
is being made is unknown prior to the time that the call is made.
Before the call is placed, it is simply not technically possible to
note whether the call will go to another foreign destination, say
Frankfurt, OR to someone somewhere in the U.S.
The attempt to legislate warrant requirements on foreign individuals
outside the U.S. based on whether they place a call to another foreign
destination or to a U.S. destination would create an impossible
nightmare for our foreign intelligence operations. Admiral McConnell
made this very point in questioning during the Judiciary Committee
hearing. The admiral responded that ``when you're conducting
surveillance in the context of electronic surveillance, you can only
target one end of the conversation. So you have no control over who
that number might call or who they might receive a call from. The
Protect America Act addressed the problem, while at the same time
maintaining the longstanding prohibition against targeting U.S. persons
in the U.S.''
The Protect America Act was a targeted response to a specific
challenge. However, if we're presented with a problem, which has once
again brought
[[Page H341]]
us to the House floor this afternoon, by its terms, as I mentioned
before, the Protect America Act is scheduled to expire on February 1,
about 2 weeks from today, but with a lot fewer legislative days
available.
It's interesting, the 5-day work week has gone by the boards; we
canceled any consideration of votes tomorrow; we are able to get out of
here in the afternoon in good time. That's good for Members who had to
leave because of the weather. But what is the reason we're here? The
reason we're here is to do the people's business. And is there anything
more important than protecting the American people from attack? What
can be more important than working out an answer to the FISA problem?
Why is it a problem? Because on February 1 the currently law expires,
we go back to the old law, which Admiral McConnell testified under oath
did not allow him to gather between 50 percent and two-thirds of the
information we otherwise would gather from those who are suspected
terrorists or terrorist affiliates around the world.
Unless you think the Islamic radicals who are plotting to kill us are
for some reason going to have a dramatic change of heart before the
first week of February and, therefore, we don't need the law, this
doesn't make a whole lot of sense. If that is the intention here, then
maybe this body should, in the spirit of wishful idealism, pass
legislation renouncing wars as an instrumental policy and hope the
whole world will follow it. Unfortunately, Osama bin Laden and al Qaeda
are not likely to be assuaged any more than Hitler was in the decade
following the signing of the Kellog-Briand Pact outlawing war. No,
these people made it very explicit they want to come here, or go
anywhere, and kill us; and there is no indication that's going to
change within the next 2 weeks.
I don't want to be or appear unfair to the leadership of this body,
for they do recognize in their RESTORE Act, which would repeal the core
provisions requested by Admiral McConnell, that the need to defend our
Nation will require a commitment beyond 180 days. Their new proposal
has a sunset date which is approximately 2 years from now. Now, when I
first saw this, my immediate reaction was, again, one of bewilderment.
Such a truncated time-frame would require a great deal of optimism
concerning the conduct of the war against Islamic radicalism by the
Bush administration. On reflection, this did not seem to be a likely
explanation. For even President Bush has repeatedly stressed that we
are engaged in a prolonged battle with those who would seek to kill us.
So an alternative explanation of the short sunset might be that the
nature of the threat is such that the next occupant of the White House,
whoever that might be, will have it in their power to bring an end to
terrorism's war on us within 10 months of their inauguration. This, to
put it mildly, is quite a leap of faith. However, it appears that FISA
has become a faith-based initiative in the 110th Congress. For if there
is any truth to recent press accounts, it appears that one of the
proposed solutions to the current stalemate over FISA in the other body
would be to extend the terms of the Protect America Act for an
additional 12 to 18 months. The superficial logic of such an extension
would enable the next administration to change the direction of foreign
intelligence gathering. Despite the fact that the vernacular of
``change'' has come to dominate the race for the White House, I would
suggest it has little or no relevance to the challenge posed by
terrorists and their network.
One thing is abundantly clear, Madam Speaker, that terrorists are not
going to change their objective. Our policy as a Nation must begin with
the recognition of reality. However inconvenient or discomforting it
may be, we must recognize that meeting the challenge posed by those who
seek to kill us is going to be a long-term challenge. It will,
therefore, require a long-term investment in our security. We can't
just be thinking about 6 months or 12 months or 18 months or 2 years.
The gravity of the challenge that we face requires a commitment which
is commensurate with the serious nature of the threat.
There is absolutely no excuse for this failure to pursue a permanent
reauthorization for intelligence measures which are critical to the
safety of the American people. We must send a clear message to the
terrorists that we understand the nature of their struggle. There must
be no doubt in their minds that we will never forget what they've done,
or that we are committed to the long haul.
There is no excuse for this body not providing Admiral McConnell with
the tools he has asked for and doing so on a permanent basis. We know
this policy of fits and starts isn't going to satisfy the leftist
blogosphere anyway. And more importantly, it undermines the necessary
confidence of those in the intelligence community that there will be a
long-term continuity in the law.
Unfortunately, the majority party's RESTORE Act, which passed this
Chamber last November, did not reflect what Admiral McConnell and the
Intelligence Committee told us it needs as a minimum. The idea that a
court order should be required before surveillance can take place
against a foreigner overseas is precisely the thing that Admiral
McConnell warned against and which he said had made it impossible for
him to collect that necessary intelligence.
While my friends on the other side of the aisle are fond of the
rejoinder that they only require a basket warrant under their version
of the law, that does little or nothing to respond to the admiral's
concern. For even if it is a basket, the intelligence community is
going to have to identify every piece of fruit in that basket. In the
real world of intelligence, this is simply unworkable.
And what is worse, the language found in section 282 of the majority
party's RESTORE Act creates even additional problems. The language that
was passed in this body includes a section entitled ``Treatment of
Inadvertent Interceptions.'' Now, this deals with a situation where the
intelligence community believes in good faith that they are dealing
with a foreign-to-foreign communication, but inadvertently they capture
a communication that deals with a foreign-to-domestic call. And the
language in the majority party's act says that you cannot use that
information for any purpose; cannot be disclosed, cannot be
disseminated; cannot be used for any purpose or retained for longer
than 7 days unless a court order is obtained or unless the Attorney
General determines that the information contained within indicates a
threat of death or serious bodily harm to any person.
Now, this means simply that if we have a conversation or
communication involving Osama bin Laden on one hand and someone in the
United States, we didn't know he was going to call the United States
beforehand, but we now have captured that communication and there is no
indication that what is said or contained in that communication
concerning a threat of death or serious bodily harm to any person, but
in that conversation something indicates where Osama bin Laden happens
to be at that time or where he is going to be in a very short period of
time, we couldn't use that information for any purpose unless we went
through a process of finding the Attorney General, having the Attorney
General determine that the information contained within indicates a
threat of death or serious bodily harm to any person.
And, actually, the Attorney General would have to break the law to
make that finding because all the information indicates is where Osama
bin Laden is. He is not at that time making any threat against anybody.
Now, simply put, that's nonsense. That's not the way we handle legal
wiretaps in the United States involving someone who is, let's say, a
Mafia member. If you have a wiretap on someone who's a Mafia member and
he calls someone who is not also a target and that communication
indicates where the Mafia member is or he's about to be and you want to
capture him, you can use that information; you can use that information
for any purpose.
But we don't allow that here in this bill, which means that Osama bin
Laden or another terrorist has greater protection under this law as
passed by this House, the majority party's bill, than an American
citizen who is accused of a crime in the United States. That makes no
sense.
Now, to be fair, the majority responds to this criticism by saying
that
[[Page H342]]
language is found in section 22 of the bill which provides this: it
would not ``prohibit the intelligence community from conducting lawful
surveillance necessary to protect Osama bin Laden or any other
terrorist or terrorist organization from attacking the United States.''
That's their catch-all; it takes care of the problem. But it does not.
Why? The problem with this logic is that the qualification that the
surveillance must be ``lawful'' is obviously affected by what is found
elsewhere in the law, including the language found in section 282 that
I just discussed. Thus, by its own terms, any assertion we will be able
to listen to the conversation of Osama bin Laden, as I just suggested,
must be read in light of the bill and, therefore, would not allow us to
act in a timely fashion.
Not only did the majority party's legislation, which passed this body
in November, fail to address the needs of the intelligence community,
it also added insult to injury by throwing under the bus those
telecommunications providers who responded to the call of their
government after 9/11. And if the press reports are true, the issue of
liability protection for these companies is one of the major sticking
points of FISA in the other body.
Now, let me suggest that the failure of Congress to address this
liability issue will have telling consequences, not only for those
companies who came to the aid of their country at a time of great
peril, but for our Nation as well.
Failure to act on this critical issue would send this message to the
American people: if you are stupid enough to respond to our government
when our fellow citizens are threatened by a cataclysmic attack, the
very government which sought your help will not be there for you when
the ideologues come after you with lawsuits. You might say that this is
the majority's position on the matter, the reverse Good Samaritan act.
{time} 1545
Do you know what the Good Samaritan law is? It's a law where we grant
immunity upon a doctor who comes upon an automobile accident, immunity
from prosecution. Why? Because we think it is better to have him or her
attempt to help someone that they come upon at the time of an accident
and not have to be worried about a lawsuit later on. Now, does this
sometimes allow a doctor to screw up, a malpractice, and not be sued?
Yes, it does. But we made the judgment that on balance it is better to
have people coming to the aid of their countrymen, coming to the aid of
someone who is in need, and here we have said don't dare come to the
aid of your country because afterward you might be sued.
When I was a young person learning how to type, we used to type
something that said, ``Now is the time for all good men to come to the
aid of their countrymen.'' That was the way you learned to type. We'd
have to change that now: ``Now is the time for all good people not to
come to the aid of their countrymen unless they have got a lawyer and
enough money to defend themselves against subsequent lawsuits.'' This
would be a terrible precedent for future generations with respect to
future conflicts, which, if history is any guide, are certain to occur.
The failure to step up to the plate on this issue can only serve to
erode our national ethos and a willingness to respond to future crises.
It is time, Madam Speaker, to transcend ideology and to do the right
thing. And this has nothing to do with what you think of President
Bush. It has nothing to do with what you think about the war in Iraq or
the larger war on terrorism. It's not a Republican or a Democratic
issue. We're going to have a change of administrations in about a year
from now, and whoever that President might be, we must not do anything
which would detract from his or her ability to marshal all the
resources and support necessary to defeat the enemies of our Nation.
The new administration is going to need to call on the help of all
Americans, including companies like those whose only offense was to
respond to the appeal of the Nation in the aftermath of the tragedy of
9/11 by seeking to help prevent its occurrence.
This ideologically driven abandonment of those who relied on the word
of their government following the worst attack on our Nation since
Pearl Harbor hardly qualifies as a profile in courage. If there is any
culpability to be found from the safe vantage point of 20/20 hindsight,
it's not with the communication provider. Rather, if any fault is to be
found, it is with the government itself, and the proper recourse lies
within the political process. That's why we have elections. On this
issue, it is my belief that the American public will overwhelmingly
understand the unfairness of walking away from those who responded when
the memory of over 3,000 dead Americans was the only known fact at the
time. Perhaps it is this reality which makes the lawsuit option more
appealing than the normal remedy of the democratic process.
It is indeed ironic that at a time when such respect has been
accorded to the Greatest Generation, and appropriately so, in my
estimation, we would through our inaction eschew the ethos of service
to our country after it has been attacked. It is particularly odd in
the light of the fact that there was grave concern that we would be hit
again. In fact, you will all recall that this fear was so prominent
that a Member of the other body temporarily closed his office. This was
the environment produced by 9/11, and we should not reward those who
rose to the defense of their country with ingratitude and the prospect
of lawsuits. For in the end, if we are to prevail against the
terrorists, a tireless, relentless commitment much like that of the
generation before will be required. I would hope we would send a
message to all who were asked to take a stand to protect our citizens
that we will likewise be with you.
There is a serious misconception about what is a allowed under the
Protect America Act, which is about to expire. In her statement in
support of the majority party's RESTORE Act, which made those changes
in the compromise reached by Admiral McConnell I spoke of before, the
Speaker observed this: that ``all of us want our President to have the
best possible intelligence, our President and our policymakers, so they
can do the best possible job to protect the American people. But no
President, Democrat or Republican, should have the authority, to have
inherent authority, to collect on Americans without doing so under the
law.''
Let me point out there is absolutely nothing in the Protect America
Act which would allow the President to target Americans or U.S. persons
outside of the law. The Protect America Act did nothing to change this
aspect of law which has existed since 1978. The problem addressed by
the soon-to-expire Protect America Act related to changes in technology
which led to gaps in our ability to listen in on conversations by
foreign terrorists outside the U.S. This stifling of the capability of
our Nation's intelligence community was unrelated to any other
considerations envisioned by the Foreign Intelligence Surveillance Act
in 1978.
In short, the definition of ``electronic surveillance'' constructed
almost 28 years ago has not kept pace with changes in technology. When
FISA was enacted, almost all international communications were wireless
and almost all local calls were on a wire. Over time the evolution of
our telecommunications technology has reversed this state of affairs,
has turned it upside down. Today most intelligence communications are
transmitted by wire. Even though most international communications were
not considered to be subject to the FISA Act in 1978, now they are
subject to the FISA warrant requirement simply because they are
transmitted by wire. That clearly was not the intention of the law.
Thus, changes in technology have brought communications within the
scope of FISA which Congress did not cover in 1978. Now, this is simply
no way to operate in the age of weapons of mass destruction where
terrorists are seeking to obtain them. Our intelligence policy must be
made by policymakers, not by technological default.
Madam Speaker, the adoption of the Protect America Act last August
was designed to address this very issue and to assure that, if Osama
bin Laden were to place a call into the United States, there would be
no obstacle placed in the way of our ability to uncover any murderous
scheme aimed at innocent Americans. Admiral McConnell told us what he
needs to prevent Osama bin Laden from succeeding.
[[Page H343]]
However, the majority party in this body has made a dramatic U-turn
with the so-called RESTORE Act. Their bill responds to Admiral
McConnell with the rebuff that ``we know better and that we will
substitute our own judgment for that of the Director of National
Intelligence.''
Now, please don't misunderstand me. As a Member of this body, I am
the first to defend our right to exercise our oversight
responsibilities as a coequal branch of government. Those in this body
certainly have the prerogative to pursue a different course concerning
our national security policy. However, based upon Admiral McConnell's
expertise and service in the last two administrations, one Democrat and
one Republican, I would suggest that those who seek substantive changes
in what he has told us to be necessary should face a heavy burden of
proof.
This burden of overcoming the expressed needs of our intelligence
community should be considered all the more difficult in light of the
fact that the impact of the Protect America Act on the privacy rights
of Americans is itself de minimis. There are two things I would hope we
would keep in mind:
First, if the intelligence community targets someone inside the
United States, they must first obtain a court order from the FISA Court
under the law that we passed in August, continuing what has been the
case before. Secondly, if the intelligence community surveils a
communication where both ends of the communication are in the United
States, the intelligence community must obtain a FISA Court order.
Furthermore, if Osama bin Laden calls a U.S. person within the United
States, the end of the conversation conducted by the U.S. person would
have to be minimized, and that's a term of art, minimized under the
existing procedures of the 1978 act. Let me once again emphasize the
minimization process which is applied in cases where information has
been inadvertently obtained from a U.S. person is not only in the
original FISA statute but is something that we have been familiar with
on the criminal side for decades as well. It is not something we
dreamed up for the FISA Act. It is not something we put into the
Protect America Act. It is something that has been within the fabric of
the U.S. criminal justice system for at least five decades.
The Protect America Act does nothing to alter the definition of
``electronic surveillance'' under the 1978 act which determines when a
FISA warrant is required. So under the scenario where a U.S. person
located in the U.S. is involved, nothing would change. The minimization
requirements under the law remain intact and are intact today.
Finally, the Speaker's comment about the ``inherent authority of the
President'' would not and could not be affected by either the Protect
America Act or the leadership's attempt to alter the compromise with
Admiral McConnell under the RESTORE Act. Such rhetoric has no relevance
to this debate. The majority's law, the majority's bill, the RESTORE
Act, which passed this body on November 15, represents not so much a
rejection of the claims of executive authority as it does the rejection
of the actions taken by this House as recently as August 2007. The
language of the majority party's bill places burdens on the
intelligence community which have nothing to do with the protection of
civil liberties of Americans.
As a matter of law, the FISA appeals court set the record straight in
its decision of In Re Seals by stating that all courts, to have
addressed the issue of the President's inherent authority, have ``held
that the President did have inherent authority to conduct warrantless
searches to obtain foreign intelligence information.'' Not some courts,
not a court, not just the FISA appeal courts, but all Federal courts
have so found. Nothing does or could alter the President's inherent
authority under the Constitution. So it's not pertinent to this debate.
And finally, the Speaker made the assertion that the majority party's
bill protects Americans by providing the Director of National
Intelligence with the flexibility he has requested to conduct
electronic surveillance of persons outside the United States.
Now, this is the most puzzling of all. Why would Admiral McConnell be
happy with legislation which has the effect of replacing what he sought
as recently as August of this last year? If the claim were true, it
would in essence place Admiral McConnell in the position of opposing
himself. However, it's not necessary to engage in speculation because
the admiral has been the most vocal defender of the agreement reached
by Congress in August. In fact, this is what he said to the Judiciary
Committee of the other body:
``The Protect America Act, passed by the Congress and signed into law
by the President on August 5, 2007, has already made the Nation safer
by allowing the intelligence community to close existing gaps in our
foreign intelligence collection.'' He goes on: ``After the Protect
America Act was signed, we took immediate action to close critical
foreign intelligence gaps related to the terrorist threat, particularly
the preeminent threats to our national security.''
It sure sounds like an endorsement to me. As a matter of fact, it
suggests that if we get rid of the provisions of the Protect America
Act, as suggested by the majority, that we would be opening up the
foreign intelligence gaps that we had previously closed. Why anyone
would think the admiral would support legislation which would do this
is a puzzle, to say the least.
Now, why is all this so important? The manner in which we approach
FISA is of such critical importance because of its direct connection
with the larger question of homeland security. I think we ought to do
whatever is necessary and is constitutional and lawful to prevent
another attack against our homeland, but we should not put ourselves in
the position of having to get it right every time. Perfection is not
possible in this world. Overseas intelligence collection is absolutely
a critical component to developing a successful homeland security
strategy.
The relationship between foreign intelligence and the protection of
our homeland is very real. Here's how Admiral McConnell explained it to
our committee:
``In the debate over the summer and since, I have heard individuals
from both inside and outside the government assert that threats to our
Nation do not justify this authority,'' that is, the authority he asked
for. ``Indeed, I have been accused of exaggerating the threats that
face our Nation. Allow me to attempt to dispel this notion. The threats
that we face are real and they are indeed serious. In July of this
year, we released a National Intelligence Estimate, commonly referred
to as an NIE, on the terrorist threat to the homeland . . . ''
In short, these assessments conclude the following: The United States
will face a persistent and evolving terrorist threat over the next 3
years. And let me just parenthetically mention the reason why it's
limited to 3 years is that is the limit of the NIE's reach.
The main threat comes from Islamic terrorist groups and cells,
especially al Qaeda. Al Qaeda continues to coordinate with regional
terrorist groups such as al Qaeda in Iraq, across North Africa, and
other regions. Al Qaeda is likely to continue to focus on prominent
political, economic, and infrastructure targets with a goal of
producing mass casualties, visually dramatic destruction, significant
economic aftershock, and fear among the United States population.
{time} 1600
These terrorists are weapons-proficient, they are innovative, and
they are persistent. Al Qaeda will continue to seek to acquire
chemical, biological, radiological, and nuclear material for attack,
and they will use them, given the opportunity.
Now this is the threat we face today, and one that our intelligence
community is challenged to counter. This is the real issue. This is the
800-pound gorilla in the room, if you will, and it remains the central
question for us. How do we best protect the American people from
another cataclysmic attack? As the National Intelligence Estimate makes
clear, those who seek to kill us continue in their resolve to once
again inflict mass casualties upon our Nation. The threat is still
here. Although we have been successful in thwarting another attack
since 9/11, there are no guarantees in this business.
Independent sources such as Brian Jenkins of the Rand Corporation
have stressed that our intelligence capability is a key element in our
effort to
[[Page H344]]
protect our homeland. He says this: in the terror attacks since 9/11,
we have seen combinations of local conspiracies inspired by, assisted
by, guided by al Qaeda's central leadership. It is essential that while
protecting the basic rights of American citizens, we find ways to
facilitate the collection and exchange of intelligence across national
and bureaucratic borders.
Again, the development of a comprehensive homeland security strategy
cannot be conceived in isolation from the need for surveillance of
terrorists overseas. The Director of National Intelligence has told us
what he needs and, unfortunately, that is not encompassed by the
RESTORE Act, which passed this body in November. The expiration of the
Protect America Act on February 1 will leave us without the minimum
acceptable threshold of protection negotiated with Admiral McConnell
last August.
The gravity of the potentially cataclysmic consequences of a failure
to get it right presents a threat not only to our national security but
the protection of our rights as Americans. Anyone concerned, and I hope
that is everybody, about the protection of civil liberties should be
most alarmed about the potential consequences of a successful terrorist
attack on the United States with weapons of mass destruction. This is
the real threat to civil liberties acknowledged by the U.S. Supreme
Court in the Keith case when they noted that were the government, that
is the U.S. Government, to fail ``to preserve the security of its
people, society itself would become so disordered that all rights and
liberties would be endangered.''
In like manner, Brian Jenkins notes that several national commissions
convened both before and after 9/11 reached the same conclusion. All
agreed ``that the United States has to prepare for catastrophe.'' They
also warn that ``national panic in the face of such threats could
imperil civil liberties.''
Finally, Mr. Speaker, the 9/11 Commission itself issued the following
observation concerning the relationship between national security and
civil liberties: ``The choice between security and liberty is a false
choice, as nothing is more likely to endanger America's liberty than
the success of a terrorist attack at home.''
Mr. Speaker, there's nothing more important for us to confront than
the expiration of the existing FISA law on February 1 of this year. I
would beg us, as a collective body, both the House and the Senate, to
come together to work out an answer to this problem, and respond to the
request by Admiral McConnell for us to continue to give him those tools
necessary to gather that information so that we cannot only know what
the terrorists want to do, but to allow us to take timely action to
prevent them from succeeding.
A COLD WAR ERA STATUTE IN A WORLD OF WMDs
The changes made by the Protect America Act responded to the needs of
our intelligence community. That act meets our national security needs
without in any way departing from the framework of the original FISA
statute. At the time of the adoption of the 1978 act, our Nation was in
the midst of a cold war with the Soviet Union. FISA was designed to
accommodate the need to intercept overseas communications without prior
court approval. The failure to capture such communications--including
those coming into the United States--was recognized as potentially
damaging to our national security.
Now, 29 years later, our adversary operates undeterred by balance of
power calculation, and its surreptitious means of operation are
conceived with the express purpose of avoiding detection in order to
succeed in killing innocent civilians. Can anyone seriously suggest
that there is not an equally compelling need to uncover the plans of
these murderers, regardless of the intended destination of the call? I
don't think so, and believe that it would be a serious error to move
away from a rationale that remains as valid today, if not more so than
it did in 1978.
Pakistan as an Example for the Need for Intel
In this regard, is there anyone who has been following events in
Pakistan who does not have an appreciation for the need for the
greatest flexibility in our foreign intelligence collection. Although I
am sure that we all hope for an outcome in Pakistan which entails
stability and democratic elections, our national security policy cannot
be based upon hope. This is a nation with nuclear weapons and a segment
of the population which subscribes to radical Islamic ideologies. We
need the best foreign intelligence possible to ensure that if the
unthinkable was ever to happen that we are in the best possible
position to detect any potential transfer of nuclear materials or a WMD
that could end up in the hands of terrorists positioned in the United
States. Good foreign intelligence is essential to the protection of the
American people.
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