[Congressional Record Volume 158, Number 122 (Wednesday, September 12, 2012)]
[House]
[Pages H5890-H5900]
FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012
Mr. SMITH of Texas. Mr. Speaker, pursuant to House Resolution 773, I
call up the bill (H.R. 5949) to extend the FISA Amendments Act of 2008
for five years, and ask for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore (Mr. Yoder). Pursuant to House Resolution
773, the amendment in the nature of a substitute recommended by the
Committee on the Judiciary printed in the bill is adopted, and the
bill, as amended, is considered read.
The text of the bill, as amended, is as follows:
H.R. 5949
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``FISA Amendments Act
Reauthorization Act of 2012''.
SEC. 2. FIVE-YEAR EXTENSION OF FISA AMENDMENTS ACT OF 2008.
(a) Extension.--Section 403(b) of the FISA Amendments Act
of 2008 (Public Law 110-261; 122 Stat. 2474) is amended--
(1) in paragraph (1), by striking ``December 31, 2012'' and
inserting ``December 31, 2017''; and
(2) in paragraph (2) in the material preceding subparagraph
(A), by striking ``December 31, 2012'' and inserting
``December 31, 2017''.
(b) Conforming Amendment.--The heading of section 404(b)(1)
of the FISA Amendments Act of 2008 (Public Law 110-261; 122
Stat. 2476) is amended by striking ``december 31, 2012'' and
inserting ``december 31, 2017''.
The SPEAKER pro tempore. The bill shall be debatable for 1 hour, with
40 minutes equally divided and controlled by the chair and ranking
minority member of the Committee on the Judiciary and 20 minutes
equally divided and controlled by the chair and ranking minority member
of the Permanent Select Committee on Intelligence.
The gentleman from Texas (Mr. Smith) and the gentleman from Michigan
(Mr. Conyers) each will control 20 minutes. The gentleman from Michigan
(Mr. Rogers) and the gentleman from Maryland (Mr. Ruppersberger) each
will control 10 minutes.
The Chair recognizes the gentleman from Texas.
General Leave
Mr. SMITH of Texas. Mr. Speaker, I ask unanimous consent that all
Members have 5 legislative days to revise and extend their remarks and
include extraneous materials on H.R. 5949, as amended, and currently
under consideration.
[[Page H5891]]
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
There was no objection.
Mr. SMITH of Texas. I yield myself such time as I may consume.
Mr. Speaker, America and its allies continue to face national
security threats from foreign nations, spies, and terrorist
organizations. Our national security agencies must be able to conduct
surveillance of foreign terrorists and others so we can stop them
before they disable our defenses, carry out a plot against our country,
or kill innocent Americans.
In 1978, Congress enacted the Foreign Intelligence Surveillance Act
to provide procedures for the domestic collection of foreign
intelligence. To protect Americans' civil liberties, FISA created
Foreign Intelligence Surveillance Courts comprised of sitting Federal
court judges.
{time} 1520
If the government needs to collect domestic information for national
security purposes, it must first request permission from a FISA judge.
This is limited to domestic information. FISA was never intended to
apply to the collection of information from non-U.S. persons in foreign
countries.
But advances in technology over the last 40 years have changed how
overseas communications are transmitted. In 2006, then-Director of
National Intelligence, Admiral Mike McConnell, stated that the
intelligence community was not collecting approximately two-thirds of
the foreign intelligence information that it collected prior to legal
interpretations that required the government to obtain individualized
FISA court orders for overseas surveillance. To solve the problem, in
2008, Congress passed the FISA Amendments Act to reaffirm our
longstanding intent that a court order is not required when a non-U.S.
person outside the U.S. is targeted. The act continues the authority to
collect intelligence from foreign targets located outside the United
States.
The FISA Amendments Act both strengthens our national security and
expands civil liberties protections for all Americans. The act requires
an individualized court order for the government to target an American
anywhere in the world. Under the FISA Amendments Act, the government
cannot conduct any surveillance overseas without authorization. The
government cannot target individuals unless there is a reasonable
belief they are not in the United States, which the government must try
to ascertain.
The government cannot intentionally acquire communications when the
sender and recipient are both in the United States without an
individualized court order from a FISA judge. The government cannot
reverse-target individuals overseas in order to monitor those in the
United States. This means that the government cannot target a U.S.
person simply by monitoring a non-U.S. person that the U.S. person is
talking to. And for the first time in history, the government must
obtain an individualized court order from the FISA court to target
Americans outside the United States.
Foreign surveillance under the FISA Amendments Act is subject to
extensive oversight by the administration and Congress. Every 60 days,
Justice Department national security officials and the Director of
National Intelligence conduct onsite reviews of surveillance conducted
pursuant to the FISA Amendments Act. In addition, the Attorney General
and the Director of National Intelligence conduct detailed assessments
of compliance with court-approved targeting and minimization procedures
and provide these amendments to Congress twice a year.
The administration also is required to submit to the Judiciary and
Intelligence Committees a copy of any FISA court order opinion or
decision. It must also submit the accompanying pleadings, briefs, and
other memoranda of law from national security officials within the
intelligence community that relate to a significant construction or
interpretation of any provision of FISA.
This law will expire at the end of this year unless Congress
reauthorizes it. President Obama has identified reauthorization of the
FISA Amendments Act as the top legislative priority of the intelligence
community and requests Congress to extend the law for 5 years. H.R.
5949 is a bipartisan piece of legislation to do just that, extend the
FISA Amendments Act to December 31, 2017.
Foreign terrorists continue to search for new ways to attack America.
Foreign nations continue to spy on America, to plot cyberattacks, and
attempt to steal sensitive information from our military and private
sector industries. They are committed to the destruction of our
country, and their methods of communication are constantly evolving.
We have a solemn responsibility to ensure that the intelligence
community can gather the information it needs to protect our country
and protect our citizens. This bipartisan bill ensures that our country
will be able to identify and prevent threats to our national security
without sacrificing the civil liberties of American citizens.
I urge my colleagues to join me in support of this bill, and I
reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, on our side, I would begin our discussion
by yielding 3 minutes to the distinguished senior member of Judiciary,
ranking member of Immigration, the gentlewoman from California (Ms.
Lofgren).
Ms. ZOE LOFGREN of California. Mr. Speaker, I urge this body to
reject this bill.
The surveillance bill raises several serious constitutional and civil
liberties issues that Congress needs to address and has not addressed
in this bill, and I'd like to discuss just one of those.
Congress should prohibit the Federal Government from intentionally
searching for information on a U.S. person in a data pool amassed
lawfully under section 702 of FISA--should such a data ever be
amassed--unless the searching official has a warrant.
Now, the FISA Amendments Act of 2008 does not make clear that the
government must obtain a warrant prior to searching for information
acquired incidentally on a U.S. person in a large pool of data that the
government has already lawfully obtained under section 702, should such
a data pool ever be amassed. Instead, the information about the U.S.
person in such a situation is subject to minimization procedures
adopted by the Attorney General, and that must be approved by the FISA
court, but that does not explicitly include a warrant requirement,
which I think the Constitution requires.
The prohibition on reverse-targeting--where the government
deliberately targets a non-U.S. person for the purpose of acquiring
information about the U.S. person at the other end of the line--is not
a substitute for the warrant requirement to search a database for U.S.
persons, should such a database ever be amassed under section 702.
Minimization procedures are not a substitute for a warrant in such a
case.
Now, I think that the government needs to comply with the Fourth
Amendment to the Constitution all the time. I think that the privacy of
Americans should not be subject to the lower standard of minimization
procedures. That's not in the Constitution. And I think, also, that
when we think that we should trade the protections that our Founding
Fathers devised for us in the United States Constitution in the effort
to buy safety, we're mistaken. We can be safe while still complying
with the Constitution of the United States.
I'm mindful that we began this Congress reading most of the United
States Constitution on the floor of this House. It's ironic, indeed,
that we should be ending this Congress with a bill that does violation
to that very body.
I thank the gentleman for yielding.
Mr. SMITH of Texas. Mr. Speaker, I yield 5 minutes to the gentleman
from California (Mr. Daniel E. Lungren), who is the chairman of the
Administration Committee here in the House, a senior member of the
Judiciary Committee, and a former attorney general of California.
Mr. DANIEL E. LUNGREN of California. I thank the gentleman for
yielding.
Mr. Speaker, I rise in support of the extension of the FISA
Amendments Act of 2008.
I would just have to say this is critical to the protection of the
American people. With the events over the last couple of days, we need
not be reminded of this solemn responsibility 1 day after the 11th
anniversary of 9/11.
If you will recall, one of the main points made by the 9/11
Commission in
[[Page H5892]]
their after-action report was that we, as a Nation, had not done
enough--that is, the Government of the United States had not done
enough--to connect the dots to warn us sufficiently to protect against
the attack which caused the death of over 3,000 on our homeland. In
order to connect the dots--that is, the items of information, the
intelligence--you have to have the dots, you have to have the
intelligence. That's precisely what the extension of these amendments
will allow us to do.
But initially, it's important to understand from the outset of this
debate what this legislation would do as well as what it does not do.
{time} 1530
We are seeking to address the essential need for us to be able to
monitor communications by terrorists and other foreign adversaries
located outside the United States. We're not debating the PATRIOT Act
here. We're not talking about national security letters. We're not
talking about those things that are directed at Americans.
The annual certification procedures provided under the FISA
Amendments Act do not allow the targeting of Americans outside the
United States. Thus, if an American is targeted anywhere in the world,
or if a person is targeted within the United States, an individualized
court order is required.
In cases involving a foreign terrorist outside the United States, the
Foreign Intelligence Surveillance Court approves annual certifications
submitted by the Attorney General and the Director of National
Intelligence. This is a court made up of article III judges, judges
with lifetime appointments, with the independence that was accorded
them under the Constitution.
And I would remind my colleagues that the appellate review, the
appellate division of the Foreign Intelligence Surveillance Court, is
also comprised of article III judges.
It is important to note we're not providing for warrantless
surveillance here. In fact, the FISA Amendments Act has enhanced the
statutory protections afforded to U.S. persons under the law. Because
it was the first time, under these amendments that we wish to extend,
we required an individual FISA court order to conduct overseas
intelligence collections on U.S. citizens and permanent residents. Even
if they're overseas, we now require that. It was not required by
statute before that.
Before that, the Attorney General approved such collections against
U.S. persons outside the U.S., pursuant to an executive order of the
President. We all know that executive orders of the President can be
changed by a President while in office, or a succeeding President.
I would submit that if you are concerned about civil liberties, and I
assume everybody in this debate is, returning to the good old days
prior to the enactment of the FISA Amendments Act is not a step forward
for civil liberties.
It should also be understood that we're not seeking to extend the
underlying Foreign Intelligence Surveillance Act in its entirety. Today
we're attempting to achieve the rather modest purpose of the 2008
amendments. Again, court approval of annual certification by the DNI,
the Director of National Intelligence, and the Attorney General,
identifying categories of foreign intelligence agents outside the
United States is required. An individualized court order is required in
other cases.
The legislative history of FISA is instructive. The House Permanent
Select Committee on Intelligence report that accompanied FISA in the
initial act in 1978 clearly expressed Congress' intent to exclude
overseas intelligence activities from the reach of FISA. These were the
words of that report:
The committee has explored the feasibility of broadening
this legislation to apply overseas, but has concluded that
certain problems and unique characteristics involved in
overseas surveillance preclude the simple extension of this
bill to overseas surveillance.
In other words, overseas surveillance was never the focus of the 1978
act. Rather, it focused on domestic surveillance of persons located
within the United States to ensure that there were protections in that
regard.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. SMITH of Texas. I will yield the gentleman an additional minute.
Mr. DANIEL E. LUNGREN of California. The FISA Amendments Act under
consideration here today requires an individualized court order in
cases where an American is the target, no matter where they may be
located.
Here's the reason why this is important. It is the change in
communications, the nature of communications that required us to do the
amendments. If we fail to pass this, we will, as former DNI Director
McConnell stated, we will lose two-thirds of those dots, those bits of
information, the intelligence that we need to connect to protect us. We
will put in very much manner the country at risk.
If you look at a simple risk analysis, you have to do threat, you
have to do vulnerability, you have to do consequence. We can figure out
what the vulnerability is by our inspection of our own resources and
infrastructure. We can figure out what the consequences are.
What we have to have, in order to figure out the threat, is a means
of collecting intelligence. We have to pass this law, a bipartisan law.
I recall being here and having the former Speaker of the House spend,
I think, 7 minutes arguing on behalf of this, and the gentleman who is
Number two on the Democratic side as well.
It has never been partisan. Hopefully, we can have bipartisan support
expressed in the vote for these amendments.
Mr. CONYERS. Mr. Speaker, I yield myself 15 seconds to let my
distinguished colleague and friend from California know that we're in
complete agreement with most of what he said, except that all we want
to do is limit this to a 3-year measure instead of 5 years. Now,
there's a compromise you can't turn away from.
At this point I yield 3 minutes to the distinguished senior member
from the Judiciary Committee, Jerry Nadler.
Mr. NADLER. I thank the gentleman.
Mr. Speaker, I rise in opposition to the FISA Amendments Act of 2012.
If we had had an opportunity to evaluate this law based on experience
with it, and to consider some amendments and alternatives, this
opposition would not be necessary. But the Republican majority has,
once again, told the Members of this House and the American people that
it's ``my way or the highway.''
While it is certainly appropriate for our government to gather
foreign intelligence, and while some degree of secrecy is obviously
necessary, it is also vital in a free society that we limit government,
protect the constitutional rights of Americans here and abroad, and
limit warrantless spying to genuine foreign intelligence.
Unfortunately, we have seen repeatedly how even the very minimal
restraints Congress put on FISA have been violated. We should address
those abuses. Congress has an obligation to exert more control over spy
agencies than simply to give them a blank check for another 5 years.
The gentleman from Michigan (Mr. Conyers) had an amendment that would
have shortened the sunset by 2 years, but we won't even have a chance
to consider it, perhaps because some of our Republican colleagues might
also want to support such an amendment. As a result, we will not
revisit the law until after the end of the next presidential term.
And if we had cut shorter this extension, we could do what we should
have done but haven't: hold hearings, look into how the law is
operating, and decide what amendments and protections are necessary to
make sure it operates right so that we can collect the intelligence
without violating the constitutional rights of Americans.
I had an amendment that would have required the Attorney General to
make publicly available a summary of each decision of the FISA court
and the FISA court of review that includes a significant construction
of section 702, which allows warrantless surveillance, with appropriate
security redactions and editing.
Many American citizens and others who have nothing to do with foreign
intelligence gathering are caught up in this surveillance, and
government has an obligation to protect their rights. The FISA court is
supposed to do that, and we need to ensure that the law and the courts
are working.
Disclosure of classified information is not needed to know whether
the court performs meaningful oversight of
[[Page H5893]]
the executive branch, applies minimization standards correctly, and
whether or not we ought to amend the law.
The gentleman from Wisconsin (Mr. Sensenbrenner) said, ``rather than
playing the numbers game, either with the actual targets or the people
who are incidentally surveilled, perhaps decisions of the FISA court,
particularly the review of the FISA court, appropriately redacted,
would be able to give us the answer to that question. I have always
been one that favored disclosure.''
The gentleman from Wisconsin is right. If the FISA court is just a
rubberstamp of the executive branch, we and the public should know
that. And if the court really does provide meaningful oversight and
meaningful limitations on the executive branch, we and the public
should know that too.
But we won't get to discover that or to debate that. Failure to do so
is a dereliction of our constitutional duty to protect the
constitutional rights of American citizens and the betrayal of our
liberties.
I urge my colleagues to reject this legislation and demand that we
properly consider this very important issue by a somewhat shorter
extension and by proper hearings and examination of the limitations and
the workings of this law.
Mr. SMITH of Texas. Mr. Speaker, I yield 1 minute to the gentleman
from California (Mr. McClintock).
{time} 1540
Mr. McCLINTOCK. I want to thank the chairman for yielding to a
contrary point of view.
Mr. Speaker, FISA allows the government to target foreign nationals
and to intercept their communications, even those with American
citizens, without a warrant, as required by the Fourth Amendment.
Now, we're told don't worry. The law requires that any irrelevant
information collected in this manner be disregarded. Well, here is the
problem. The enforcement of this provision is, itself, shrouded in
secrecy, making the potential for abuse substantial and any remedy
unlikely. Secret courts and warrantless surveillance are not compatible
with a free society or the English common law or the American
Constitution.
We are told FISA is necessary to stop terrorist plots and that this
protection trumps privacy or due process concerns. Well, Ben Franklin
answered that argument years ago when he warned us that those who can
give up essential liberty to obtain a little temporary safety deserve
neither liberty nor safety. In fact, America's security is far better
assured as a thriving free society in a world that respects her
strengths and fears her just vengeance.
Mr. CONYERS. Mr. Speaker, I yield myself 20 seconds to commend the
statement by the gentleman from California in this regard. Also, on the
subject of transparency, two Senators--one from Oregon, the other from
Colorado--asked the Director of National Intelligence how many
Americans are affected by this law.
The answer: We don't know.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. CONYERS. I yield myself 10 more seconds.
Now, we don't know if he meant that he didn't want to tell us that he
knew or that he honestly didn't know. Either response or explanation is
inadequate.
Mr. Speaker, I am pleased to yield 3 minutes to the distinguished
gentlelady from Houston, Texas, Ms. Sheila Jackson Lee.
Ms. JACKSON LEE of Texas. Thank you, Mr. Chairman.
Mr. Speaker, I am delighted to join the chairman of the full
committee and the ranking member of the full committee in this vigorous
debate on the Constitution. I am also delighted that the ranking member
has indicated, by his reference to the previous speaker, that this is a
bipartisan challenge and question about the reauthorization. This does
not have a partisan place. It does have a place in the Constitution.
As I do this, might I take just a moment, Mr. Chairman and Mr.
Ranking Member, just to acknowledge the loss of our Americans who fell
in Libya--Ambassador Stevens and those who were securing him. It is a
recognition that we live in a difficult world; but one of the
distinctive aspects of America is that we live in a free country, that
we are willing to accept the distinctions and differences of all people
and that we respect the privacy and the Fourth Amendment.
So I might refresh my fellow colleagues as to what FISA does from the
very beginning. It is electronic surveillance, physical searches, the
installation and use of pen registers and trap-and-trace devices, and
demands for the production of physical items. Although FISA is designed
for intelligence gathering and not for the collection of criminal
evidence, the law applies to activity to which a Fourth Amendment
warrant requirement would apply if they were conducted in a criminal
investigation. Members need to understand there are questions of the
Fourth Amendment right here. So what those of us who have a concern on
this reauthorization are asking for has simple premise:
We want to join with Congressman Conyers and his simple amendment
that allows for greater congressional oversight and the protection of
the Fourth Amendment as it relates to Americans by shortening the
reauthorization to 2015 from 2017. It intrudes the Congress properly in
oversight. In addition, there should be more transparency in the
surveillance program, such as requiring the creation of unclassified
versions of the intelligence assessments of the surveillance program,
requiring the creation of unclassified summaries.
I introduced a simple amendment. We all have respect for the
Inspector General's office. That is one independent force of our
agencies that most Members of Congress will not challenge. My amendment
would require a report by the Inspector General of the Department of
Justice and the Inspector General of the intelligence community on the
implementation of the surveillance program under the FISA Amendments
Act of 2008.
Now, let me try to find out what the horrifically liberal groups are
that are concerned about this. What about the American Library
Association? the Association of Research Libraries? the very well-
respected Brennan Center for Justice? the Center for Democracy &
Technology? the OpenTheGovernment
.org?
What we are simply saying today--and we hope our colleagues will
listen on both sides of the aisle--is that, yes, we can reauthorize
this legislation but that, no, we cannot abdicate the questions of
congressional oversight. Today, we had a hearing on the abuse of power.
The only issue in abuse of power is whether or not we respect the three
branches of government. That is the argument we are making today. Do
you respect the three branches of government--the people's House, who
represent the people, who by themselves cannot defend themselves
against this extensive reauthorization?
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. CONYERS. I yield the gentlelady 30 more seconds.
Ms. JACKSON LEE of Texas. In the course of this particular
legislation, we had to contend with such things as warrantless
wiretapping. Again, as I indicated, the need for the intruding of the
Congress is a respect of the liberties which we want to protect.
So I would ask my colleagues to yield to transparency, to yield to a
shorter extension. Make this bill stand on its own two feet juxtaposed
to the Constitution. While we mourn those who have fallen, we respect
that this is a free country. Today, we are not acting on that freedom
by giving up the congressional oversight that is necessary. I ask my
colleagues to reject the present form of this bill. I beg the Senate to
look more readily at a shorter extension and more transparency.
I rise in opposition to the FISA Amendments Act of 2008. I believe
that although we had a chance to discuss this reauthorization in the
Judiciary Committee, the full import of this bill is too broad and more
debate and consideration is necessary. The fact is not lost on me that
this is the 11th year following the attacks of 9-11.
I open my statement with a quote from one of my heroines, and a
trailblazer on so many levels, Barbara Jordan, who said: ``What the
people want is very simple--they want an America as good as its
promise.''
Over the past year, Senate and House Democrats have worked with their
Republican counterparts, the Administration, the intelligence
community, and privacy advocates to
[[Page H5894]]
develop proposals for amendments to FISA that would give the
intelligence community the flexibility it needs to safeguard our
nation, while also providing strong protections for civil liberties. A
proper balancing is America--as good as its promise.
And in-keeping with the notion of balance, I offered an amendment
during the Judiciary Committee Markup of this legislation which simply
asked for a report on the implementation of the amendments made by the
FISA Amendments Act of 2008. My amendment simply requested that the
report include an assessment of the impact of Section 702 of the FISA
on the privacy of persons inside the United States. Even with court-
approved targeting and minimization procedures in place, the government
can and does intercept the communications of U.S. citizens.
It does so without a particularized warrant or a showing of probable
cause. This approach to electronic surveillance raises concerns under
the Fourth Amendment, which prohibits unreasonable searches,
warrantless eavesdropping, and the use of ``general warrants.''
The Fourth Amendment to the U.S. Constitution provides a right ``of
the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.'' Many of the government
activities discussed in this report have the potential to constitute a
search as that term is defined in Fourth Amendment jurisprudence.
Namely, government action constitutes a search when it intrudes upon
a person's ``reasonable expectation of privacy,'' which requires both
that an ``individual manifested a subjective expectation of privacy in
the searched object'' and that ``society is willing to recognize that
expectation as reasonable.''
The Fourth Amendment and its protections go back to our founding--the
ability of the American Patriots to resist unwarranted searches and
seizures by the British is inculcated in the American psyche.
Thus, the Fourth Amendment ultimately limits the government's ability
to conduct a range of activities, such as physical searches of homes or
offices and listening to phone conversations. As a general rule, the
Fourth Amendment requires the government to demonstrate ``probable
cause'' and obtain a warrant (unless a recognized warrant exception
applies) before conducting a search.
This rule applies most clearly in criminal investigations. For
example, an officer conducting a criminal investigation typically may
not search a person's belongings without first obtaining a warrant that
describes the property for which sufficient evidence justifies a
search.
The extent to which the Fourth Amendment warrant requirement applies
to the government's collection of information for intelligence
gathering and other purposes unrelated to criminal investigations is
unclear. Although the surveillance of wire or oral communications for
criminal law enforcement purposes was held to be subject to the warrant
requirement of the Fourth Amendment in 1967, neither the Supreme Court
nor Congress sought to regulate the use of such surveillance for
national security purposes at that time.
Several years later, the Supreme Court invalidated warrantless
electronic surveillance of domestic organizations for national security
purposes, but indicated that its conclusion might differ if the
electronic surveillance targeted foreign powers or their agents. A
lower court has since upheld the statutory scheme governing the
gathering of foreign intelligence information against a Fourth
Amendment challenge, despite an assumption that orders issued pursuant
to the statute might not constitute ``warrants'' for Fourth Amendment
purposes.
The Supreme Court has not yet directly addressed the issue. However,
even if the warrant requirement was found not to apply to searches for
foreign intelligence or national security purposes, such searches would
presumably be subject to the general Fourth Amendment
``reasonableness'' test.
In the context of national security, the contours of the Fourth
Amendment are necessarily narrowed but not abandoned altogether. The
march toward a Big Brother State begins when the people's rights to
privacy and to be free from surveillance are surrendered in toto. All
we have to do is look at the recent Jones decision which concerned a
purely domestic case in which law enforcement took advantage of high-
tech tools to follow a suspected drug dealer. A conservative Roberts
Court voted 9-0 to invalidate this search.
It is rare for liberal Democrats and conservative Republicans to
agree on much of anything these days, but I am sure that many of my
colleagues on the other side would find untargeted procedures under
FISA unlawful and thereby unconstitutional. Homeland security is not a
Democratic or a Republican issue, it is not a House or Senate issue; it
is an issue for all Americans--all of us need to be secure in our
homes, secure in our thoughts, and secure in our communications.
It is widely known that the Obama Administration would like a clean,
five year reauthorization of the FISA Amendments Act, consistent with
the approach taken by the Senate Select Committee on Intelligence this
spring. I would also note that there were two voices of dissent in the
Senate committee's proceedings, Senators Wyden and Udall who have been
champions of national security, privacy, and civil liberties--which are
not mutually exclusive.
The FISA Amendments Act of 2008 was designed to provide critically
important authority for the U.S. Intelligence Community to acquire
foreign intelligence information by targeting foreign persons
reasonably believed to be outside of the United States. However, our
experts now tell us that there are serious issues with targeting
procedures, disclosure of basic information and there is a lack of
strong rules on how the information gathered can be used.
``Reverse targeting,'' a concept well known to members of this
Committee but not so well understood by those less steeped in the
arcana of electronic surveillance, is the practice where the government
targets foreigners without a warrant while its actual purpose is to
collect information on certain U.S. persons.
One of the major concerns that libertarians and classical
conservatives, as well as progressives and civil liberties
organizations, had with the ill-conceived and now expired Protect
America Act of 2007, was that the understandable temptation of national
security agencies to engage in reverse targeting is difficult to resist
in the absence of strong safeguards to prevent such unauthorized and
blanket snooping.
Although Section 1881 of the FISA Amendments Act statutorily forbids
such reverse targeting, it is a lingering concern of many civil
libertarians which I share.
No doubt there are instances where it may be necessary to target
persons within and outside the United States in order to address
threats but Congress has made it clear that these exigencies must be
subject to review at some point and time.
On the issue of targeting procedures, they were designed to ensure
that only people reasonably believed to be outside of the U.S. would be
targeted. However, in reality quite the contrary has taken place. There
has been bulk collection of information without any targets whatsoever.
Ensure transparency by conducting as much public oversight as possible,
including releasing basic information about the program, such as the
type of information collected and how many Americans and people in the
U.S. it has affected.
It is also critical that Foreign Intelligence Surveillance Court
opinions and administration interpretations of its authority to collect
and use information under the FISA Amendment Act (FAA) become part of
the public record and congressional debate.
On the issue of disclosure, there has been a lack of transparency on
what type of information is being gathered, who is being picked up and
what rights of Americans have been violated.
We must strike a balance between what constitutes ``classified''
information, and other compelling facts, disclosure of which do not
threaten national security.
On the issue of rules, there has been a lack of rules that clearly
define how the information is being used. The key is to amend the FISA
Amendment Act to ensure that information collected under those programs
can be used only in the narrowest of circumstances. The FAA's
minimization procedures should be amended to ensure that this foreign
intelligence warrantless surveillance program doesn't allow information
to be repurposed for other government uses.
I understand that there must be a way for the intelligence community
to gather vast amounts of information in a manner that makes sense.
However, after carefully reviewing these proposals but suffice to say,
I am still disturbed about certain aspects of the FISA Amendments of
2008. This Act was not designed for an overreach of power. It was
designed to for the intelligence community to conduct meaningful
information overseas.
Nearly two centuries ago, Alexis DeTocqueville, 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.
Thus, the way forward to victory in the War on Terror is for this
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. It is not easy for me or any
Member of this House to go against the President's wishes on a matter
of national security but I am convinced that more debate is necessary,
and more consideration of what the FISA Amendments mean to national
security and civil liberties.
[[Page H5895]]
We are in the throes of a national election for which the candidates
have labored for over two years and the American people have seen, for
better or worse, what they are about. Why so long: because that is
Democracy. And civil liberties, Mr. Speaker, are the essence of the
stew of our American Democracy.
I hope that Congress can maintain our oversight function to ensure
that law enforcement is well aware of their limitations of surveillance
balanced by a strong commitment to protecting this great nation from
future harm, and limiting the reauthorization to 2015.
Mr. SMITH of Texas. Mr. Speaker, I yield 4 minutes to the gentleman
from South Carolina (Mr. Gowdy), who is a particularly active member of
the Judiciary Committee.
Mr. GOWDY. Mr. Chairman, I want to thank you for your leadership on
this and a host of other issues on the Judiciary Committee.
Mr. Speaker, this week has provided tragic reminders that the world
is a dangerous place. We are targets even from people we have helped in
the past--with lethal consequences because we represent freedom,
liberty and tolerance even among those with whom we disagree.
Each of us is asked when we go back home to our districts, Can
Congress agree on anything? Is there anything that rises above politics
anymore? Many of us would like to answer yes. We'd like to tell the
people we work for that, yes, on issues of national security and
protecting this country, yes, we can come together. We are capable of
putting down talking points and red herrings and straw arguments and of
picking up something called responsibility.
To say that this reauthorization has bipartisan support is an
understatement. This bill passed unanimously in the House Intelligence
Committee. For those in shock back home, Mr. Speaker, I'm going to
repeat that: this bill passed unanimously. All Democrats, all
Republicans on the House Intelligence Committee with access to the most
information, not a single ``no'' vote.
President Bush supported this. Mr. Obama supports this. National
security experts support this. Law enforcement officials support it.
Our colleagues who served in the FBI and those who are Federal
prosecutors and in the military support it. The Democrat-led House
passed this bill in 2008 with former Speaker Pelosi giving a glowing
speech extolling the virtues of the underlying bill and excoriating her
colleagues about the necessity of passing.
All of this happened, Mr. Speaker, because intelligence is the
lifeblood of our ability to defend ourselves. It happened because this
bill has nothing to do with Americans on American soil. It passed
because this provides protections for Americans who are traveling
abroad. It passed because there is ample oversight. It passed because
it has the needed checks and balances between the legislative branch
and the executive branch and the judicial branch.
So why the opposition? How can you explain supporting something when
Ms. Pelosi had the gavel, but you can't support it when Mr. Boehner has
the gavel?
What I want to do, Mr. Speaker, just for today is: let's put down the
red herrings, and let's put down the straw arguments and the
misrepresentations. This bill doesn't implicate the Bill of Rights
anymore than it implicates any other part of our Constitution--unless
you think that foreign nationals who are on foreign land fall within
the protections of the United States Constitution, and that is an
absurd argument.
{time} 1550
Foreign nationals in foreign lands, do they have the right to vote?
Do they assert states' rights under the 10th Amendment? Can they claim
cruel and unusual punishment? Go to Iran. If you're an Iranian, you go
to Iran and assert your Fifth Amendment right to Miranda or your Sixth
Amendment right to counsel and see what happens. Yet we're to believe
that the Fourth Amendment applies to the entire world? It's absurd.
Mr. Speaker, I'm almost out of time, but I do want to say from the
bottom of my heart--what's left of it after having been a prosecutor
for 16 years--I want to say this.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. SMITH of Texas. Mr. Speaker, I yield an additional 1 minute to
the gentleman.
Mr. GOWDY. I believe you were with us, Mr. Speaker. I believe all of
our colleagues were with us on the steps of the Capitol. We came
together to remember 9/11 and what we lost and what we still grieve for
as a Nation, Mr. Speaker, what we found as a Nation in the aftermath of
9/11. Republicans stood with Democrats on this, the steps of the
people's House, and conservatives stood with progressives and
moderates, and libertarians beside us. We were just Americans. That was
enough on Tuesday. We were united. We were just Americans.
Even for just one fleeting moment, in our desire to honor, protect,
and defend, if we can come together, Mr. Speaker, to remember 9/11,
surely we can come together to prevent another one.
I ask my colleagues to support this bill.
Mr. CONYERS. Mr. Speaker, no one respects the gentleman from South
Carolina more than I do, but I should advise him that it is incorrect
to say that members of the Intelligence Committee didn't support my
amendment to shorten the sunset period. I have the names of two of them
in front of me right now. I also would advise him that the authority
unquestionably affects United States persons, citizens on American
soil, that their communications are regularly intercepted, and that
would, I think, allow him to join in with some of the rationale for the
resistance to this measure as it appears right now.
It's in that spirit that I point out to him that, with the lack of
transparency and no oversight, the length of the measure is too long,
and that this is being brought up under a closed rule was part of our
objections. I think they're in good faith.
Mr. Speaker, I now yield 2 minutes to a distinguished member of the
Judiciary Committee, the gentleman from Georgia (Mr. Johnson).
Mr. JOHNSON of Georgia. Thank you, Mr. Ranking Member.
Mr. Speaker, I rise in opposition to H.R. 5949, which, without
benefit of one oversight hearing by the full Judiciary Committee during
the 112th Congress, wants to, for 5 long years, reauthorize expiring
provisions of the Foreign Intelligence Surveillance Act without
important modifications that are necessary to safeguard the civil
liberties and the privacy rights of American citizens.
Although H.R. 5949 is designed to defend the United States against
international terrorism and other threats, it has been reported that
FISA has resulted in the illegal surveillance of untold numbers of
American citizens through data accumulation, also known as
overcollection of voice and data communications. Overcollection occurs
when the voice and data of American citizens is collected incidentally
to the collection of communications of foreigners.
What happens to the data and voice communications of Americans that
is incidentally collected without a warrant? What happens to it? What
happens to the private voice and data of Americans when it's minimized?
These are critical questions, and they deserve critical answers. But as
I've said, we've not had one oversight hearing in the full Judiciary
Committee on this issue. We've just simply had a markup of this
reauthorization bill.
These, and other questions, deserve answers. The Fourth Amendment
would ordinarily protect the communications of American citizens. It
prohibits unreasonable and warrantless searches and seizures of the
communications of American citizens, including warrantless
eavesdropping and snooping. But under H.R. 5949, no warrant or showing
of probable cause exists where information is overcollected.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. CONYERS. I yield an additional 30 seconds to the gentleman from
Georgia.
Mr. JOHNSON of Georgia. In 2009, The New York Times described the
practice of overcollection as significant and systemic.
Any counterterrorism measure must have a solid constitutional footing
and respect the privacy and the civil liberties of American citizens.
For that reason, I urge my colleagues to vote against this 5-year
reauthorization.
[[Page H5896]]
Mr. SMITH of Texas. Mr. Speaker, we're prepared to close on this
side, so I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I'm pleased to yield 3 minutes to my good
friend from Ohio, Dennis Kucinich.
Mr. KUCINICH. Thank you very much, Mr. Conyers.
To my friends on the other side of the aisle who have expressed
passion about passing this, you're good Americans, and I respect your
position. I respectfully disagree.
We have to defend our country from attacks on the outside. I voted,
along with other Members of this Congress, right after 9/11, for the
United States to defend itself. But it's equally important that we not
lose our freedoms and our constitutional protections while we're
engaged in that defense. We take an oath not only to defend the
Constitution, but we have to keep in mind that that oath and that
Constitution is really part of America's first line of defense.
Think of what it's like to make a phone call, any one of us right
now. We make a phone call--even from this Capitol--to call a friend
overseas, start talking about matters relating to what's happening in
America, what's happening in the world. The way this law is written,
without changes, those phone calls could be intercepted. They cannot
only be intercepted, but they can be downloaded, transcribed, and
stored for future use by the government. I have a problem with that.
It's a great concern. What happens is that everyone then becomes
suspect when Big Brother is listening.
I don't think that government should have the right to listen in to
people's phone calls unless there's a warrant. You have to have
probable cause. That's what the Fourth Amendment is about. This bill
doesn't have those protections. It extends government's authority to
conduct surveillance of persons reasonably believed to be outside the
United States for 5 years, and there is a blanket extension, which is
an abdication of Congress' constitutional obligation to protect and
defend the Constitution and to protect the civil liberties of all
Americans.
Given the information we know about our government's past abuse of
surveillance authorities, if we pass this bill without any changes to
ensure adequate congressional oversight and transparency, we're losing
an opportunity.
Since the amended FISA Act passed in 2008, the government has
released very little information on how it uses the powers granted
under this act. As the Electronic Frontier Foundation recently pointed
out, nobody in the government is willing to answer questions about how
many Americans' phone calls or emails have been or are being collected
and read without a warrant under the authority of the FISA Amendments
Act. So Big Brother is not accountable. Even more disturbing is that
it's well known that the government has violated the FISA Amendments
Act, despite the broad surveillance authorities it provides the
government.
A freedom of information request by the ACLU revealed that violations
of the FISA Amendments Act and the Constitution continue to occur on a
regular basis, until at least March 2010.
{time} 1600
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. CONYERS. I yield the gentleman an additional 30 seconds.
Mr. KUCINICH. According to the ACLU, the law is written so broadly
that a phone call by a U.S. citizen to a U.S. citizen overseas
discussing general foreign affairs could be listened in on. Section 702
of this act allows the government to intercept the communication of any
U.S. citizen absent probable cause, in subversion of their Fourth
Amendment rights. So Big Brother is listening.
There's no doubt that Congress is abdicating its responsibility when
it passes a blanket extension of this bill without knowing how many
Americans have been affected by FISA or the government's interpretation
of the law. Without vital civil liberties safeguards and a minimum of
transparency, an extension should be rejected.
Big Brother is not accountable. Let's vote against Big Brother. Let's
vote to protect the Fourth Amendment.
The Constitution Project
report on the fisa amendments act of 2008
Accordingly, we, the undersigned members of The
Constitution Project's Liberty and Security Committee,
recommend:
I. Increased Judicial Review of Surveillance
Authorizations: The FAA should be amended to require more
robust judicial review by the FISC to authorize programmatic
surveillance and ensure that it is appropriately focused on
foreign intelligence. Specifically:
(a.) Congress should restore the requirement that foreign
intelligence be the primary purpose of the programmatic
surveillance.
(b.) When seeking approval for programmatic surveillance,
the government should be required to (1) explain the foreign
intelligence purpose of the proposed surveillance, (2) define
the scope of planned interceptions, and (3) provide a risk
assessment and an estimate of reasonably anticipated
interceptions of the communications of U.S. persons and
individuals located within the United States. The
surveillance should only be permitted after the FISC has
thoroughly evaluated these submissions to ensure that
surveillance is appropriately designed to acquire foreign
intelligence information from legitimate targets without
interfering with the privacy rights of U.S. persons and
individuals located within the United States.
(c.) Additionally, the government should be required to
develop and submit to the FISC procedures for determining
when an acquisition may be expected to collect communications
to or from the United States. Then, in cases where the
planned surveillance may reasonably be expected to intercept
communications to or from a person reasonably believed to be
in the United States, the government should be required to
obtain a FISA warrant under pre-FAA standards.
2. Inclusion of Warrant Requirements and Other Safeguards
for Post-Collection Use of Information: The FAA should be
amended to require that the government obtain a warrant from
the FISC before searching collected communications for
information on a specific U.S. person, decrypting the
identity of a specific U.S. person party to a conversation,
or reviewing communications reasonably believed to be to or
from the United States. As required under the pre-FAA version
of FISA, the warrant should be based upon a showing of
probable cause to believe that the target is an agent of a
foreign power or has committed a crime, and that evidence of
the crime will be found and must name its target(s) with
particularity. Moreover, Congress should ensure that
collected information is being properly used for foreign
intelligence purposes, including at the very least a
requirement that authorities obtain a warrant before using
data for law enforcement purposes. Finally, Congress should
amend the FAA to require more stringent procedures for
minimization, including periodic, ongoing FISC review of the
implementation and efficacy of such procedures.
3. Increased Reporting and Oversight: More information
about the intelligence community's use of the FAA should be
provided to Congress and the public. Before reauthorizing the
FAA, Congress should demand and review detailed information
regarding the operation of the FAA surveillance program to
date, including the extent and scope of interceptions of the
communications of U.S. persons and individuals located within
the United States. Further, the Inspector General of the
Intelligence Community should be required to audit these
surveillance programs and issue annual reports to Congress
regarding how government surveillance has been conducted. In
particular, these reports should include: statistics
regarding how many U.S. persons' communications have been
intercepted by the government; aggregate statistics on the
number of intercepted communications in total, and the number
of intercepted communications to or from the United States or
involving any U.S. person; an analysis of the performance of
the government's targeting and minimization procedures; and
an explanation of how collected information has been used,
including the number of times the information has been used
for law enforcement rather than foreign intelligence
purposes. These reports should also be provided in an
unclassified form released to the public. Additionally, as
much as practicable, more information on the FAA should be
released to the public, including important decisions by the
FISC and Foreign Intelligence Surveillance Court of Review,
redacted as necessary.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the bill before us today extends the expiration date of
the FISA Amendments Act of 2008 from December 31, 2012 to December 31,
2017. I oppose this unwarranted long term extension because neither
Congress nor the public yet have an adequate understanding of the
impact this law has had on the privacy of American citizens.
The heart of the FISA Amendments Act is section 702, which authorizes
the government to intercept the communications of people who are
reasonably believed to be foreign persons outside of the U.S. On its
face, the statute includes protections for American citizens who may be
on the other end of these communications.
But section 702 does not require the government to obtain a warrant--
and without more information about how the executive
[[Page H5897]]
branch uses this authority, we cannot confirm that the privacy of U.S.
citizens is adequately protected.
These concerns are more than theoretical. In 2009, the New York Times
reported that the NSA had engaged in the ``overcollection'' of American
communications in situations not permitted by law. The government
assures us that this problem was an accident and has been corrected--
but the report does not inspire confidence in the safeguards we have
put in place.
More recently, in a July 26, 2011, letter to Senators Ron Wyden (D-
OR) and Mark Udall (D-CO), the Office of the Director of National
Intelligence stated that it is ``not reasonably possible'' to determine
how many U.S. persons have had their communications intercepted under
this law. Even if it is difficult to state an exact figure, it is hard
to believe that the Director of National Intelligence cannot even
guess. The Inspector General of the Intelligence Community didn't fare
any better, and simply deferred to the non-answer provided earlier by
the ODNI.
The public deserves better--and it is our responsibility to demand
more information in the public record if the government will not
provide it.
My colleagues prepared a series of amendments that would have
addressed many of these basic oversight needs--without any risk to
national security or the integrity of the underlying programs--but
under this closed rule, we are not permitted to even debate these
moderate changes to the bill on the floor. What is so dangerous about
increased oversight that we cannot even debate an amendment?
If we require the government to provide us with unclassified reports,
public summaries of key FISA court opinions, and an honest accounting
of the number of Americans who have been affected by these programs, we
will have gone a long way towards the responsible exercise of our
oversight role.
And even if we cannot support these modest changes, we ought to amend
this bill to provide for a shorter sunset. Meaningful oversight means
revisiting these authorities before the winter of 2017. We cannot allow
an entire presidential administration to pass before we discuss these
authorities again--in the 115th Congress.
My amendment would have had the added benefit of linking this sunset
to the three expiring provisions created by the USA PATRIOT Act. It
would be to our benefit to consider the most controversial aspects of
FISA all at once, instead of piecemeal over the course of the next
decade. But under this closed process on the floor today, the House has
been denied the opportunity to even consider this moderate change to
the bill.
In conclusion, the government can and must do a better job of
responding to our questions about privacy and other civil liberties. It
can do so without risk to national security.
I have no doubt that these expiring authorities are important to the
executive branch, but we should not let this opportunity pass without
demanding reasonable, meaningful, and public oversight of a highly
controversial law.
I urge my colleagues to vote ``no'' on H.R. 5949.
I yield the balance of my time to the gentleman from Oregon (Mr.
Blumenauer).
Mr. BLUMENAUER. I thank Ranking Member Conyers for his courtesy.
For over a decade, I have deeply been concerned about the potential
overreach of wiretapping legislation and efforts at the NSA. I have
voted repeatedly in the past against unreasonable expansion of any
administration's ability to intrude in the lives of unknowing and
innocent Americans, and I will do so again today.
I remain confident that the dedicated members of the intelligence
community do not need to erode the rights of Americans in order to
protect them. Any apparent gains in security that may be achieved are
modest and more than outweighed by longer-term potential loss of civil
liberties and oversight, the sense of security that each American
deserves. I'm troubled by the implications for our Fourth Amendment
rights, the absence of meaningful court review, and the risk to
American liberties that stem from the FISA Amendments Act.
Frankly I see no reason to rush into voting on a bill so deficient.
The American people would be better served if we continued the debate
and the examination, had thorough answers from NSA, and took up
reauthorization based on a more complete review and process.
In fact, I think as we stand here today on the floor, not even the
NSA knows the extent to which the FISA Amendment Act may potentially
have been abused. The right approach would be refining this bill and
more broadly taking a closer look at what over the last decade has
become an intelligence community that is, frankly, some feel, growing
out of control.
It's been over 11 years since 9/11. We ought to be able to get this
right. We shouldn't be rushed into doing something that has significant
long-term implications for every American.
You know, take a deep breath and take a step back. There are over 4.2
million Americans who hold a security clearance. That's more than the
entire State of Oregon's population, and let's throw in the city of
Seattle for good measure. Almost half of them hold Top Secret security
clearances, more than people who reside in Maine or Idaho. When you've
got those millions of people, you have an entity that is cumbersome,
potential for abuse, and, frankly, potential to be infiltrated or have
mistakes.
Think about it: 9/11 occurred in part not because we didn't have
information. Remember the memo on Bush's desk warning of a potential
attack from bin Laden?
What we are doing at the same time we are eroding American rights?
We're piling on more and more and more information, and it's going to
be extraordinarily difficult to sort through. We risk putting Americans
in trouble.
The SPEAKER pro tempore (Mr. Reed). The time of the gentleman has
expired.
Mr. SMITH of Texas. Mr. Speaker, I yield myself the balance of my
time.
Mr. Speaker, the vote we cast on the FISA Amendments Act tonight will
be one of the most important votes we cast in Congress, and it is
appropriate we do so during the week of 9/11.
The FISA Amendments Act will continue to allow us to conduct
surveillance of terrorists, spies and others who would do us harm. A
FISA court order is required if the target is a U.S. citizen, but not
if the individual is outside of the United States and not a U.S.
citizen.
The FISA Amendments Act was first passed in 2008 overwhelmingly, and
it expires at the end of December. This bill extends the law for 5
years. The FISA Amendments Act is a top priority of the intelligence
community. It was supported by the Bush administration in 2008 and is
strongly endorsed by the Obama administration now. This is a bipartisan
bill that enables us to vote to both neutralize threats to our national
security and protect the civil liberties of American citizens.
I urge my colleagues to support this bill, and I yield back the
balance of my time.
Mr. ROGERS of Michigan. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, I rise today in support of H.R. 5949, which would
reauthorize the FISA, the Foreign Intelligence Surveillance Act
Amendments Act of 2008, or FAA, as we refer to it, for 5 years.
The FAA is currently set to expire at the end of the year. If that
happens, the government will lose a critical tool for protecting
Americans against foreign threats, including terrorists, and, as a
result, will lose significant intelligence on these foreign targets. I
want to emphasize, Mr. Speaker, foreign targets.
We were all reminded yesterday, while looking back on the horrible
events of 9/11, of the threat that we face from those seeking to do us
harm. Let me reassure you that even though we have been able to disrupt
numerous plots over the years, our enemies want to do just as much harm
today as they did then, and they just want to do it as badly as they
did even 11 years ago.
The original FAA that is being reauthorized was sponsored by
Representative Reyes in 2008, my Democrat predecessor, as chairman of
the Intelligence Committee. It also reflected the work of then leader,
Mr. Hoyer, to help develop the final product under the previous
majority. I have been pleased to work in a collegial, bipartisan manner
with my ranking member, Mr. Ruppersberger, on this clean
reauthorization bill as well. In fact, the Intelligence Committee
reported this bill out unanimously, which doesn't happen all that much
around this place.
The administration has also indicated to us that reauthorizing the
FAA is its highest national security legislation priority, and on
Tuesday issued a statement strongly supporting this bill. I hope we can
all recognize this is
[[Page H5898]]
an issue that is being driven by our national security needs and not by
politics.
A few key points on the FAA. First, if we let this authority expire,
we will lose a critical intelligence collection tool against foreigners
on foreign soil.
{time} 1610
If that happens, we lose information on the plans and identities of
terrorists, information about the functioning of terrorist groups like
al Qaeda and others, information on the intentions and capabilities of
weapons proliferators, information on potential cyberthreats to the
United States and other critical intelligence about foreign adversaries
that threaten the United States of America.
Second, it is important to remember that this authority is focused on
allowing the government to conduct intelligence collection targeting
foreigners located outside of the United States--I'm going to say that
again, Mr. Speaker, targeting foreigners located outside of the United
States--and not on Americans located in the United States or anywhere
else in the world.
Third, the FAA is subject to a robust oversight structure, including
Congress, and I can assure you that the Intelligence Committee takes
this responsibility extremely seriously. We have had numerous hearings,
Member briefings, and staff briefings since the passage of FAA in 2008.
Before the government can collect any intelligence under the FISA
Amendments Act, a Federal judge must approve the government's
surveillance process, including the targeting and minimization
procedures required under the law.
One final point, in addition to the primary authority in FAA to
target foreigners located abroad, it actually enhanced the civil
liberties protections for Americans by requiring a court order to
target an American for collection outside of the United States. Before
2008, the government only needed the Attorney General for approval. If
this law expires, so do these enhanced civil liberties protections.
Mr. Speaker, contrary to what some may say, FAA is not about domestic
surveillance and it does not authorize a sweeping dragnet of collecting
on American communications. This is about foreigners on foreign soil.
It is about giving our intelligence professionals the tools they need
to quickly and effectively intercept the communications of those
outside the United States who seek to do us harm.
Let's not forget the nature of the threat that, almost 11 years ago
to the day, took so many lives in such a horrific way. And the examples
that we see just yesterday of the ongoing target of U.S. civilians, if
they're in the United States or they're in places like Libya, continues
to be a threat to the personal safety of those we ask to stand in
harm's way and protect and promote the values of the United States.
This is a critical piece of legislation supported by both parties and
the President of the United States. Mr. Speaker, I would urge all of
our colleagues here to stand united in the defense of the United States
and support H.R. 5949.
I reserve the balance of my time.
Mr. RUPPERSBERGER. Mr. Speaker, I yield myself such time as I may
consume.
I rise today in favor of the FISA Amendments Act, which is due to
expire at the end of this year.
When Chairman Rogers and I took over the leadership of the House
Permanent Select Committee on Intelligence, we made a commitment to
work together to ensure the intelligence community has the authorities
it needs to effectively protect our country while also protecting the
privacy of Americans. I believe we must reauthorize this critical piece
of legislation to keep America and her citizens safe. The FISA
Amendments Act allows the government to gain important intelligence
about terrorists, cyberthreats, weapons of mass destruction, and
nuclear weapons that threaten Americans and U.S. interests.
There is a misconception out there that this act permits the
surveillance of Americans without a court order. The bill prohibits the
targeting of American citizens without a court order, no matter where
they're located in the world.
The FISA Amendments Act gives the U.S. Government the authority to
collect intelligence information about foreigners located outside of
the United States. The FISA Amendments Act is subject to aggressive
oversight by Congress and the executive branch.
There was an issue in the hearing before the Judiciary Committee
about the issue of oversight. In this Congress alone, the House
Intelligence Committee has held multiple hearings, briefings, and more
than a dozen meetings concerning FISA. In addition, every 60 days the
Department of Justice and the Director of National Intelligence conduct
detailed onsite reviews to ensure compliance with the provisions of the
act.
This is a bipartisan bill that passed out of the House Intelligence
Committee by a unanimous vote of 17-0. I understand some Democrats
would like a 3-year extension of the FISA Amendments Act, some
Republicans requested a 9-year extension. The administration asked for
a 5-year extension to take Presidential-year politics out of the
process while providing consistency to the intelligence community. I
support the President's request for a 5-year extension.
Without reauthorization, this critical tool would be lost, putting
our Nation at severe risk. We would not be able to obtain the foreign
intelligence necessary to prevent terrorist plots and financial
support. I believe the act is critical to protecting our Nation while
protecting our Americans' constitutional rights and privacy. I urge my
colleagues to support this measure.
I reserve the balance of my time.
Mr. ROGERS of Michigan. I yield 2 minutes to a friend of mine, the
gentleman from California (Mr. Thompson).
Mr. THOMPSON of California. I thank the chairman for yielding time to
me.
Mr. Speaker, I'm one of those Democrats that the ranking member
talked about that would prefer a 3-year extension of this measure, but
I'm going to vote for H.R. 5949, the FISA Amendments Act
Reauthorization Act of 2012, also known as the FAA. I support this
legislation because it protects our security, preserves our freedom,
and has proven to respect our civil liberties in the process.
In 2008, many of us were rightly concerned about this program being
created and used as a back door for collecting information on law-
abiding Americans. I voted against the FAA in 2008, in part because of
these civil liberty concerns. However, as a member of the House
Intelligence Committee, I believe the abuses that we feared have just
not materialized.
But let me be clear, and this and future administrations are being
given fair warning. My colleagues and I on the House Intelligence
Committee will continue to receive reports on FISA information
collection. These reports must continue to be detailed and specific. If
there are any abuses or problems stemming from the application of this
program, I'm certain that this Congress will move swiftly to correct
them. So far, the application of the FAA has gained our trust, but we
will continue to verify how the FAA is being used. Trust, but verify.
Mr. Speaker, the FAA provides the tools we need to collect vital
counterterrorism information in foreign intelligence. I will vote in
favor of H.R. 5949, the FISA Amendments Act.
Mr. ROGERS of Michigan. I reserve the balance of my time.
Mr. RUPPERSBERGER. Mr. Speaker, I yield 1 minute to the gentlelady
from Illinois (Ms. Schakowsky).
Ms. SCHAKOWSKY. Mr. Speaker, I rise today in opposition to this FISA
legislation. I do want to thank my ranking member for yielding to me,
despite our difference of opinion.
As a member of the Intelligence Committee, I take the threat of
terrorism very seriously, but I believe we are fully capable of
protecting our security and safeguarding our precious civil liberties.
This law authorizes the government to collect mass electronic
communications coming into and going out of the United States so long
as no U.S. person in the United States is intentionally targeted. Yet
in April 2009, The New York Times reported that the National Security
Agency ``intercepted private email messages and phone calls of
Americans on a scale that went beyond the broad legal limits
established by Congress.''
[[Page H5899]]
Shouldn't our government be required to disclose more about the
extent and nature of the surveillance? Is this an authority that should
be extended until 2017? Should we at least be able to consider an
amendment to reexamine this law in 2013? But no amendments are allowed
today.
I urge a ``no'' vote.
{time} 1620
Mr. ROGERS of Michigan. Mr. Speaker, I yield myself such time as I
might consume.
It's just important to remember that the due process protections of
the United States are alive and well here. This is one of those
programs that has an inordinate amount of oversight to make sure that
we are not targeting Americans. Not only does the committee
participate, but the Department of Justice has a separate review. There
are strong internal reviews.
In the odd case where an American is intercepted, there are very
strict procedures on how to destroy that information and correct that
problem, and it has not happened, hardly frequently at all is the good
news, which is why I think there is such bipartisan and strong support
of our effort again to collect on foreigners who are outside of the
United States, incredibly important.
I continue to reserve the balance of my time.
Mr. RUPPERSBERGER. Mr. Speaker, I yield 1\1/2\ minutes to the
gentleman from California (Mr. Schiff).
Mr. SCHIFF. I thank the gentleman for yielding, and I rise in support
of the FISA Amendments Act Reauthorization Act.
This bill reauthorizes intelligence gathering capabilities that are
essential to our national security while also protecting the civil
liberties of Americans.
The recent events in Libya, Egypt, and elsewhere should serve to
remind us all that there remain forces around the world that are
determined to kill Americans, injure our interests, and jeopardize our
freedoms.
The FAA allows us to obtain critical information about terrorist
organizations, nuclear proliferation, and a host of other dangers.
These authorities have produced intelligence that's vital to defending
the Nation against international terrorism and other threats, which is
why Attorney General Holder and DNI Clapper have called reauthorizing
the FAA their top legislative priority.
This bill does not authorize spying on Americans. To the contrary,
the 2008 FISA Amendments Act ensured that no American, whether within
the United States or overseas, would come under surveillance without a
court order and a finding of probable cause.
The authorities provided are narrowly tailored to the purpose of
protecting the United States from those who would harm us, and I urge
an ``aye'' vote.
Mr. ROGERS of Michigan. Mr. Speaker, I have no further speakers. I am
going to continue to reserve and allow the gentleman from Maryland to
close.
Mr. RUPPERSBERGER. Mr. Speaker, how much time is remaining?
The SPEAKER pro tempore. The gentleman from Maryland has 5 minutes
remaining, and the gentleman from Michigan has 2 minutes remaining.
Mr. RUPPERSBERGER. I yield myself such time as I may consume.
Mr. Speaker, there's been talk about the FISA Amendments Act as a
backdoor collection on Americans and does not sufficiently protect
civil liberties. This is not the case. We are all Americans. We are
Members of Congress. We care about our country. We care about our
Constitution, and we care about our privacy and our civil liberties.
Now, the FISA Amendments Act of 2008 actually expands the protections
of Americans' civil liberties and privacy interests. Before the FISA
Amendments Act in 2008, which became law then, the government needed
only the Attorney General's authorization to target an American.
Because of the FISA Amendments Act, if the government allows for
surveillance of an American, that American must be overseas and the
government must have a FISA court order if they do target an American
anywhere in the world. The civil liberties of Americans are better
protected than before this act became law in 2008.
Also, as far as oversight, and there have been allegations of not
proper oversight. I understand the argument, and I don't disagree with
the argument about sunsets. Sunsets are good because they hold us
accountable. We can see if there are any abuses, and we can deal with
them when we have sunsets.
However, the Department of Justice and the Director of National
Intelligence file semi-annual reports with Congress as it relates to
the FISA Act. These reports include information about compliance,
targeting, and minimization on collections involving the parties that
we're focused on.
The Intelligence Committee staff has conducted dozens of meetings
about the authorities under the FISA amendments. These meetings have
addressed compliance, procedures, authorities, and specific collection.
On the Intelligence Committee, we review, investigate, and debate the
FISA Amendments Act. We maintain an ongoing dialogue with the
intelligence community to ensure the law is being implemented in how it
was intended.
We, as Americans, need to know more about the threats that are out
there. Our threats for cyberattacks are occurring as we speak right
now. It's very dangerous. These attacks can affect our national
security, our grid systems, our banking systems, our air traffic
control systems. This bill, this amendment, is part of our protection
in dealing with those major issues.
I advise my colleague that I am ready to close, Mr. Speaker.
Mr. ROGERS of Michigan. I reserve with the right to close.
Mr. RUPPERSBERGER. Mr. Speaker, I yield, again, myself such time as I
might consume.
The FISA Amendments Act is the result of decades of work to modify a
law so we can adapt with changing technology and evolving national
security threats. The bill demonstrates what Democrats and Republicans
can do when we work together in a bipartisan way. It is uniquely
important to put partisanship aside when America's national security is
at stake.
We all have the same goal of keeping America safe from terrorist
threats, whether on land or sea, in the air or with cyberspace. We also
believe strongly, and this is very important, in the Constitution and
the protections granted by our Founding Fathers.
The FISA Amendments Act is an important tool that has successfully
prevented terrorist attacks on American soil. I know it is critical to
our intelligence community.
I commend everyone who participated in this effort, especially the
bipartisan leadership of Chairman Rogers and the other members of the
Intelligence Committee on both sides of the aisle. I support this
straight reauthorization which President Obama, our Commander in Chief,
has said is ``vital to protect our Nation.''
I will vote for the FISA Amendments Act Reauthorization Act of 2012,
and I urge my colleagues to do the same.
I yield back the balance of my time.
Mr. ROGERS of Michigan. Mr. Speaker, I want to thank my ranking
member, Mr. Ruppersberger, for the fine bipartisan effort on this
important national security issue.
I think the people at home can rest assured that we have taken every
precaution to protect our civil liberties, which we all cherish in this
Nation, and still have the ability to collect on foreigners overseas
seeking to harm this great country, and I want to thank you for your
work and commend the President for his letter of support of our
bipartisan effort on this important national security issue.
With that, Mr. Speaker, I yield back the balance of my time.
Mr. DINGELL. Mr. Speaker, I rise in opposition to H.R. 5949, the FISA
Amendments Reauthorization Act, FAA. Matters of national security are
of the utmost importance and we should ensure that the government has
the necessary tools to keep America safe. Yet, we must always balance
this with protecting the civil liberties of American citizens.
Unfortunately, this legislation before us today fails this important
test.
I voted against this legislation when it was first passed in 2008 and
I continue to have many of the same reservations and objections to the
policies set forth by the FAA. I continue to be concerned that the
Fourth Amendment rights of American citizens are not adequately
protected by this legislation, which is of the utmost importance.
Specifically, FAA makes an
[[Page H5900]]
end-run around the Foreign Intelligence Surveillance Court, FISC, by
allowing the government to conduct surveillance without a FISC warrant.
Such a broad exercise of power undermines our system of checks and
balances and has grave implications for the protection of our
constitutional rights. We should be enhancing the role of the FISC to
ensure that the rights of American citizens are protected while the
government collects intelligence to help defend our nation.
Additionally, the five-year extension provided by this legislation
will ensure that regardless of which candidate wins the presidency on
November 6, their administration will have these powers for the length
of their term. A shorter extension would allow Congress to conduct the
proper oversight over the use of these authorities and to better
examine whether such authorities are still necessary to ensure the
protection of our citizens.
Regardless of who is in the White House, it is the duty of this body
to ensure that the power of the executive branch is not unfettered and
that proper oversight is conducted. It is in this spirit that I cast my
vote against this legislation today.
Mr. PAUL. Mr. Speaker, I rise in strong opposition to the
reauthorization of the 2008 FISA Amendments Act, as it violates the
Fourth Amendment of our Constitution. Supporters of this
reauthorization claim that the United States will be more vulnerable if
the government is not allowed to monitor citizens without a warrant. I
would argue that we are more vulnerable if we do allow the government
to monitor Americans without a warrant. Nothing makes us more
vulnerable than allowing the Constitution to be violated.
Passage of this reauthorization will allow the government to listen
in to our phone calls, read our personal correspondence, and monitor
our activities without obtaining a warrant. Permission for surveillance
obtained by a secret FISA court can cover broad categories of targets
rather than specific individuals, as the Fourth Amendment requires.
Americans who communicate with someone who is suspected of being
affiliated with a target group can be monitored without a warrant. The
only restriction is that Americans on U.S. soil are not to be the
primary targets of the surveillance. That is hardly reassuring. U.S.
intelligence agencies are not to target Americans on U.S. soil, but as
we all know telephone conversations usually take place between two
people. If on the other end of the international conversation is an
American, his conversation is monitored, recorded, transcribed, and
kept for future use.
According to press reports earlier this summer, the Director of
National Intelligence admitted to the Senate that ``on at least one
occasion'' U.S. intelligence collection agencies violated the
Constitutional prohibitions on unlawful search and seizure. Without
possibility for oversight of the process and with the absence of
transparency, we will never know just how many Americans have been
wiretapped without warrants.
Creating a big brother surveillance state here is no solution to
threats that may exist from abroad. I urge my colleagues to reject
these FISA amendments and return to the Constitution.
The SPEAKER pro tempore. All time for debate on the bill has expired.
Pursuant to House Resolution 773, the previous question is ordered on
the bill, as amended.
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. RUPPERSBERGER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question will be postponed.
____________________
[Congressional Record Volume 158, Number 122 (Wednesday, September 12, 2012)]
[House]
[Pages H5900-H5901]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012
The SPEAKER pro tempore. The unfinished business is the vote on the
passage of the bill (H.R. 5949) to extend the FISA Amendments Act of
2008 for five years, on which the yeas and nays were ordered.
The Clerk read the title of the bill.
The SPEAKER pro tempore. The question is on the passage of the bill.
The vote was taken by electronic device, and there were--yeas 301,
nays 118, not voting 10, as follows:
[Roll No. 569]
YEAS--301
Ackerman
Adams
Aderholt
Alexander
Altmire
Amodei
Austria
Baca
Bachmann
Bachus
Barber
Barletta
Barrow
Bartlett
Barton (TX)
Bass (NH)
Benishek
Berg
Berkley
Berman
Biggert
Bilbray
Bilirakis
Bishop (GA)
Bishop (NY)
Bishop (UT)
Black
Blackburn
Bonner
Bono Mack
Boren
Boswell
Boustany
Brady (TX)
Brooks
Buchanan
Bucshon
Buerkle
Burgess
Burton (IN)
Calvert
Camp
Campbell
Canseco
Cantor
Capito
Carnahan
Carter
Cassidy
Castor (FL)
Chabot
Chaffetz
Chandler
Cicilline
Clyburn
Coble
Coffman (CO)
Cole
Conaway
Connolly (VA)
Cooper
Costa
Cravaack
Crawford
Crenshaw
Critz
Cuellar
Culberson
Denham
Dent
DesJarlais
Deutch
Diaz-Balart
Dicks
Dold
Donnelly (IN)
Dreier
Duffy
Duncan (SC)
Ellmers
Emerson
Farenthold
Fattah
Fincher
Fitzpatrick
Flake
Fleischmann
Fleming
Flores
Forbes
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garamendi
Gardner
Garrett
Gerlach
Gibbs
Gingrey (GA)
Gohmert
Gonzalez
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (MO)
Green, Al
Green, Gene
Griffin (AR)
Griffith (VA)
Grimm
Guinta
Guthrie
Gutierrez
Hall
Hanabusa
Hanna
Harper
Harris
Hartzler
Hastings (WA)
Hayworth
Heck
Heinrich
Hensarling
Herrera Beutler
Higgins
Himes
Hinojosa
Hochul
Holden
Hoyer
Huelskamp
Huizenga (MI)
Hultgren
Hunter
Hurt
Issa
Jenkins
Johnson (OH)
Johnson, Sam
Jordan
Kaptur
Kelly
King (IA)
King (NY)
Kingston
Kinzinger (IL)
Kissell
Kline
Labrador
Lamborn
Lance
Landry
Langevin
Lankford
Latham
LaTourette
Latta
Levin
Lewis (CA)
Lipinski
LoBiondo
Loebsack
Long
Lowey
Lucas
Luetkemeyer
Lujan
Lummis
Lungren, Daniel E.
Lynch
Mack
Manzullo
Marchant
Marino
Matheson
McCarthy (CA)
McCarthy (NY)
McCaul
McHenry
McIntyre
McKeon
McKinley
McMorris Rodgers
McNerney
Meehan
Mica
Miller (FL)
Miller (MI)
Miller (NC)
Miller, Gary
Mulvaney
Murphy (PA)
Myrick
Neugebauer
Noem
Nugent
Nunes
Nunnelee
Olson
Palazzo
Paulsen
Pearce
Pelosi
Pence
Perlmutter
Peters
Peterson
Petri
Pitts
Platts
Poe (TX)
Pompeo
Posey
Price (GA)
Quayle
Quigley
Rahall
Reed
Rehberg
Reichert
Renacci
Reyes
Ribble
Richmond
Rigell
Rivera
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Rokita
Rooney
Ros-Lehtinen
Roskam
Ross (AR)
Ross (FL)
Rothman (NJ)
Royce
Runyan
Ruppersberger
Ryan (OH)
Scalise
Schiff
Schilling
Schmidt
Schock
Schwartz
Schweikert
Scott (SC)
Scott, Austin
Scott, David
Sensenbrenner
Sessions
Sewell
Sherman
Shimkus
Shuler
Shuster
Simpson
Sires
Smith (NE)
Smith (NJ)
Smith (TX)
Smith (WA)
Southerland
Stearns
Stivers
Stutzman
Sullivan
Terry
Thompson (CA)
Thompson (PA)
Thornberry
Tiberi
Tipton
Turner (NY)
Turner (OH)
Upton
Walberg
Walden
Walsh (IL)
Webster
West
Westmoreland
Whitfield
Wilson (SC)
Wittman
Wolf
Womack
Woodall
Yarmuth
Yoder
Young (FL)
Young (IN)
NAYS--118
Amash
Andrews
Baldwin
Bass (CA)
Becerra
Blumenauer
Bonamici
Brady (PA)
Braley (IA)
Capps
Capuano
Carney
Carson (IN)
Chu
Clarke (MI)
[[Page H5901]]
Clarke (NY)
Clay
Cleaver
Cohen
Conyers
Costello
Courtney
Crowley
Cummings
Davis (CA)
Davis (IL)
DeFazio
DeGette
DeLauro
Dingell
Doggett
Doyle
Duncan (TN)
Edwards
Ellison
Engel
Eshoo
Farr
Filner
Frank (MA)
Fudge
Gibson
Grijalva
Hahn
Hastings (FL)
Hinchey
Holt
Honda
Israel
Jackson Lee (TX)
Johnson (GA)
Johnson (IL)
Johnson, E. B.
Jones
Keating
Kildee
Kind
Kucinich
Larsen (WA)
Larson (CT)
Lee (CA)
Lewis (GA)
Lofgren, Zoe
Maloney
Markey
Matsui
McClintock
McCollum
McDermott
McGovern
Meeks
Michaud
Miller, George
Moore
Moran
Murphy (CT)
Nadler
Napolitano
Neal
Olver
Owens
Pallone
Pascrell
Pastor (AZ)
Paul
Pingree (ME)
Polis
Price (NC)
Rangel
Richardson
Roybal-Allard
Rush
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schrader
Scott (VA)
Serrano
Slaughter
Speier
Stark
Sutton
Thompson (MS)
Tierney
Tonko
Tsongas
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watt
Waxman
Welch
Wilson (FL)
Woolsey
NOT VOTING--10
Akin
Broun (GA)
Brown (FL)
Butterfield
Herger
Hirono
Jackson (IL)
Ryan (WI)
Towns
Young (AK)
{time} 1712
Mrs. MALONEY, Messrs. WATT, HONDA, DINGELL, RANGEL, KILDEE and WAXMAN
changed their vote from ``yea'' to ``nay.''
Messrs. CRAWFORD, CLYBURN, YARMUTH, CONNOLLY of Virginia, Ms. KAPTUR,
Messrs. BARTLETT and CICILLINE changed their 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.
____________________
