LISTEN Act

Mr. Chairman, I move to strike the last word.

I yield to the gentlewoman from Texas for her question.

I yield to the gentleman from California.

Mr. Chairman, reclaiming my time, in response to the gentlewoman's question, as Mr. Murtha suggested, we look for every way that we can to enhance the quality of life for the members of our military, to get as many pay increases and as many benefits as we can, because we recognize how important that these heroes are, these warriors are, to the security of our Nation.

I thank the gentlewoman for bringing up this issue, but I would say Mr. Murtha and I have looked for every opportunity we can to make things better for those who serve in our military.

Mr. Chairman, I would like to say to the gentleman that, as he knows, this is something we had intended to do in the committee, and it is important that we do it at this point; so we accept this amendment.

Mr. Chairman, I reserve a point of order on the gentlewoman's amendment.

Mr. Chairman, I make the point of order, reluctantly, I might say, against the amendment because it provides an appropriation for an unauthorized program and therefore violates clause 2 of rule XXI.

Clause 2 of rule XXI states in pertinent part: ``An appropriation may not be in order as an amendment for an expenditure not previously authorized by law.''

Mr. Chairman, the amendment proposes to appropriate funds for an earmark that is not authorized. The

amendment therefore violates clause 2 of rule XXI.

I ask for the ruling of the Chair.

Mr. Chairman, I ask unanimous consent that the remainder of the bill through page 73, line 5 be considered as read, printed in the Record, and open to amendment at any point.

Mr. Chairman, I move to strike the last word.

Mr. Chairman, the original language I thought was extremely important at the time that it was adopted by the House. It was adopted as an amendment by Mr. Obey in 1997. But I believe that probably it has outlived its necessity.

I would say to the gentlewoman that we will agree to this amendment. However, I would like to advise her and the House that as we move to the conference on this bill, we are going to be extremely involved in determining that the protection of our technology will be very, very positive. This aircraft, this weapons system, has a lot of great technology that we have to protect. So we have to work out the proper language, and we will do that as we go through the conference.

We are willing to accept the amendment with that understanding.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I want to assure the gentleman that protecting this technology is extremely important to this chairman. This is a super aircraft. It is just an unbelievable weapons system. Mr. Murtha and I have both seen it fly, we have talked with the pilots who fly it, we have seen the systems that they use, and this gives us technology superiority in the air. Anyone that goes into

any kind of a battle will tell you that they want to make sure that those aircraft overhead belong to us and not to the other guys.

So we are going to be extremely careful before we allow this to happen, that the technology will be protected and that it will be available, the aircraft, the sales would only be available to those who are unquestionable supporters, and allies, of the United States.

Mr. Chairman, if the gentleman will yield, the gentleman makes a very good point, and it has not fallen on deaf ears.

Mr. Chairman, I move to strike the last word.

Mr. Chairman, all of us think that things that we say in this House are extremely important and to all of the Members in the House. But on occasion there are things that are said in this House that are heard by a lot of people not only in the House, not only in our districts, but in other parts of the world.

I understand Mr. King's amendment, and I understand how serious he considers this to be; but what I am worried about is this: if we strike this prohibition from this bill that was well thought out, what we are saying to the Iraqi people and what I am satisfied the propaganda machine of al Qaeda in Iraq are going to do is use this and say:

see there, we told you so. The Americans plan to occupy us for the rest of our lives.

We don't have any plan to do that, and we don't want the Iraqi people to think that we are going to do that, and we don't want the American people to think that we are going to be constantly occupying Iraq. I understand Mr. King's interest, and most of the time I agree with him, but in this case I can't agree with him because I just think it sends the wrong message not only to the people of Iraq, not only to the people of America, but to the people of other Muslim nations who might say, hey, are we next? Are we going to be occupied? Are we going to have American troops in our streets? We don't want that to happen. We don't want that message delivered across the oceans. I think that we have to defeat this amendment.

Mr. Chairman, I move to strike the last word.

Mr. Chairman, the subcommittee is well aware of the issue that the Castle amendment addresses. In fact, the subcommittee had scheduled a hearing to look into not only this issue, but a number of other acquisition issues where we believe that there can be some performance changes. Unfortunately, because of a heavy voting day on the floor, we had to postpone that hearing, which will be held sometime in July now.

In view of that, I want to say that I agree with what Mr. Castle is offering, and I am certainly prepared to accept his amendment. I think it is a good amendment.

Mr. Chairman, thank you very much for yielding, and I would say to the gentleman, as you and I have discussed this many times, the importance of this capability cannot be overstressed. It is extremely important.

The gentleman has reminded me, and I remember very well, in Kosovo and Bosnia we had to bring the EA-6Bs from all over the world to concentrate on their mission there. So the additional capability, I think, is well-intended. I will be glad to work with the gentleman as we go to conference.

As you are well aware, our 302(b) allocation was $4 billion less than the President's request, and so we had to do some cutting. Unfortunately, there are a lot of things that we would have liked to have done that we just could not do. The money was not there, but the gentleman makes a very important point that this capability is extremely important, I think more so than most people realize, but as an officer who flew in those aircraft, you know an awful lot about this.

So I am with you. I want to do the best we can to enhance our capability. Thank you for bringing this issue to the Congress.

Mr. Chairman, I reserve a point of order on the gentleman's amendment.

Mr. Chairman, I rise in opposition to the amendment.

Mr. Chairman, this amendment would bar all funds in this act for development, deployment, or operations

for the Defense Travel System. This would put us back to millions of individual transactions that would be almost totally unaccountable and which would have no proper oversight.

I admire the gentleman's goal in trying to come up with a system that is better than DTS, but I don't think he has done that. He has just done away with the DTS. We are attempting to get some integrated financial management at the Pentagon, and DTS is just one of the many programs that is trying to accomplish this integration. The program has some problems, but I don't think we ought to kill the effort and go back to ground zero and start all over again.

The prohibition on spending any money to develop, deploy or operate would bar the Department from even operating the current system and would also bar the Department from continuing any improvements to DTS. This would ultimately leave the Department's 3.5 million active duty military, reserve, and civilian employees without any travel system. DTS is currently the only system that can meet the full spectrum of cost, capability, security, and savings requirements, as well as the protection of personal information so important to the Defense Department and its global travelers.

Interrupting development of this important program would cause an enormous disruption, adversely affecting and, in some cases, seriously jeopardizing Defense Department mission requirements. I believe this amendment is well intended, but I believe that barring all funding would be a serious mistake, so I oppose the amendment.

Mr. Chairman, I move to strike the last word.

As usual, Mr. Markey is very persuasive, as he has been in the past. It is important that the United States Congress make it very clear to anyone who would listen that we do not intend to use torture and that we do not use torture or inhumane treatment.

As the gentleman suggested, the House agreed with the McCain amendment, and it was included in last year's legislation.

We believe that the Markey amendment basically restates existing law, and because of that we have no objection.

Mr. Chairman, I rise in opposition to the amendment. As Mr. Murtha has suggested, there is a lot that can't be said about this amendment and about this program. But what I would like to say is, let's don't tie our hands behind our back when we are fighting a vicious, cruel enemy.

Intelligence is extremely important in the war against terrorism. First of all, you don't have, in this particular war, you don't have an army against an army. You don't have a country against a country. You have terrorists attacking innocent people here in the United States on September 11, and leading up to September 11, and anywhere else in the world that they decide that they are going to attack.

One of the best defenses against these attacks is the ability to know where they might be or when they might strike or what the target might be. Don't deny the people on the front lines of this intelligence war and information war and the hot war, don't deny them every tool that they can possibly have.

As Mr. Murtha said, for those that have been briefed on this program on a regular basis, I am not aware of anyone who is concerned that the rights of Americans to their privacy have been violated. I certainly do not believe that the rights of Americans have been violated in this program. And so I think it is crucial to oppose this amendment; this is far beyond politics. It goes a lot deeper. This goes to the safety and the security of American people wherever they might be. And it is unfortunate that we can't reveal everything that is done, how it is done, where it is done, when it is done; but believe me, it is effective and the privacy of the American people have been protected.

Yes, of course I would yield.

Well, let me reclaim my time and suggest that if you want to rewrite FISA, you don't do it on the floor on an appropriations bill. You introduce a bill, or you go to the proper committee of proper jurisdiction. This is not something you do on the floor. This is serious. It is not something you do on the floor without any real hearings or consideration. If you want to change FISA, let the authorizing committee change it. They are the ones that have the jurisdiction.

I will.

I am not.

I will continue to yield in just a minute. On the legal aspects of this, I am going to Mr. Lungren. I think he is prepared, and he will probably get his own time, because I am limited to 2 minutes.

But in the minute I have left, I will yield to Mr. LaHood.

Mr. Chairman, I have yielded to the gentleman from Illinois.

Mr. Chairman, I would suggest that the other Members get their own time.

Reserving the right to object, and I will not object, but we are talking in circles. We are not even talking about some of the main issues that are before us. The sponsor of the amendment just admitted that we are talking about an authorization. This is an appropriations bill. This should be done at an authorization committee where you all are.

Just a minute. It is under my reservation.

Let us bring this to a close. We can repeat our arguments so many times. I withdraw my reservation.

Mr. Chairman, I move to strike the requisite number of words.

Mr. Chairman, I congratulate the authors of this amendment. The debate here and potentially the outcome confirm a very important point: We do not suffer in this country from a problem of the Presidential usurpation of power. We suffer from congressional dereliction of duty. It is not a case of the President overreaching. It is a case of us ducking and dodging and letting him do all the tough issues.

This amendment is a very simple one. Now, Members have said on the other side, I heard the gentleman from Kansas say, why don't you bring in a bill? Two reasons: First of all, if we brought in a bill, it would never see the light of day. How can a majority party which has specialized in strangling legislation at its birth complain when we don't think that is a good way to debate important issues?

But there is another reason. This is one that can sustain a veto. The Supreme Court has made it very clear: It will not referee disputes between the executive and legislative branches. The only way you can put some restraint on a President who is acting without restraint is by an amendment that says there are limits on what he can do with the money.

Now, we have heard selected quotations from John Jay. Poor old John Jay hasn't been mentioned in years. I am glad his spirit has been invoked. But nobody much cares about John Jay most of the time.

We have had some Supreme Court cases cited. Youngstown Sheet and Tube against Sawyer, which restricted the President in a time of war, was not mentioned.

Let's be very clear: History does not dictate the answer. This calls on every Member of this House to say what kind of Constitution do you want? Do you want one in which the President can have unchecked executive power, not just in time of war, but any time?

We are in what the President now says is a war against terrorism that is unlikely to have an end. So we are not talking about temporary wartime powers. We are talking about what kind of Constitution do you want?

We have a President who has asserted his right to do whatever he thinks necessary to protect the country, including, remember, arresting American citizens and having them incarcerated indefinitely with no chance to present a case. The Supreme Court said, whoa, that goes a little too far. But this is what the President has asserted with regard to FISA.

One gentleman said, well, remember what Griffin Bell said. I will be honest with you, I have found that as a general principle, ignoring Griffin Bell is a good idea. I have always done that in important cases. But what Griffin Bell said or didn't say doesn't tell us.

And this is the question, not what John Jay said or this one said, because you can quote each other to death. What kind of Constitution do you want? Do you want one where the President of the United States without any check can do what he thinks best? Because, by the way, the courts won't be involved here, because they can avoid a court decision by never prosecuting based on this evidence.

So the only potential check here is if we say no. Yes, you can wiretap, as long as you can get a warrant. And getting warrants under FISA is not hard. But we do not like the principle of an unchecked Presidential power.

I will yield to my friend from California if he will begin by answering this question: Conservatives tell me they like to be textual with regard to the Constitution. Would he cite for me, I thought maybe the Constitution got changed while I wasn't looking, so I went and read article II, it took about a minute and a half, it is a pretty small article. I am glad to see the President can get paid. It is right there in the Constitution.

But would he cite for me the text of the Constitution, article II, which empowers the President to do this, even if Congress tells him not to?

I will just add this. With regard to Youngstown Sheet and Tube, as I recall the analysis, it was there are three situations. I will ask for additional time, because I would like to have a colloquy. The President acting alone, the President acting with Congress, and the President acting in contradiction to what Congress has said.

The analysis has always been acting with Congress, the President is at the peak of his powers. Acting alone, it is unclear. Acting in contravention to what Congress has said, he is at his weakest. Here, since we have FISA, this is in contravention to what Congress has told him to do.

So I would now yield to the gentleman. Would he begin just by citing the parts of the Constitution that are relevant, and then, obviously, he is free to say what he wishes.

Please read it. I would ask the gentleman literally to please read it, because I think it doesn't say what he says it says. Please read it.

I would ask, would a page bring me the Constitution while we are talking?

I yield to the gentleman from California.

I take back my time. So the gentleman then agrees with this point. There is nothing inappropriate about this amendment. So while he believes the President is within his power to do this, does the gentleman agree that if this amendment is adopted by a majority, the President would be bound by it?

So that if he can find, I thank the gentleman and I appreciate that. I take back my time. The gentleman knows the rules. The gentleman knows the rules. He may not know the Constitution, but he knows the rules. I take back my time just to say, so we understand----

Let us have the common ground. The question here, and I think I will accept this, we are not debating constitutionality here; we are debating what public policy ought to be. The gentleman from California agrees it is appropriate for us to consider it and agrees that, if it passes, the President is bound by it.

Now, I would yield to the gentleman. Are there other places the President can then find this money? Is that what the gentleman is saying? If the President were to be bound by this, would the gentleman suggest the President could then do this anyway in some other fashion? I would yield to him.

We are beyond that. Look, I do not think the Constitution, I will be honest with you, I think people decide and then they pick the----

I just want to say, stop hiding behind varying degrees of constitutional interpretation. By hiding behind them, I mean this: I don't think that people sat and said, oh, geez this is what John Jay told me and this is what I am bound by. I think we are talking here about what we think public policy ought to be. Should the President or should not the President have to get a warrant through FISA? That is the text of this amendment. Let us debate the public policy.

I yield first to the gentleman from Washington.

Let me just say this. Here is the constitutional text that my friend from California invoked, and pretty accurately. Good memory the gentleman has. Article II, section 1: The executive power shall be vested in a President of the United States of America, period.

Now, he says that gives him the power. This is circular. Why does the President have the power? Because he has the executive power. But we are precisely here defining for ourselves, as Americans today, what the executive power is and has meant to be. All this says is that he has the executive power. Does the executive power mean he can lock somebody up without a trial as he has said it does? Does the executive power mean he can ignore an act of Congress and wiretap when he wants to? That is the question. Saying that the executive power is vested in him simply is a way of putting the question. The question is, What is the executive power?

I yield to the gentleman from California.

I will answer the gentleman's question: because the President and his supporters do not want to concede that there is any limit on his power even if he could get this done through FISA, and that is the----

I ask for an additional minute.

I thank the gentleman.

In my remaining minute, I understand, I will say that my good friend from Pennsylvania I think is probably not distressed that we are talking about something that is not the heart of the bill. But the fact is, I will close by this, we are talking about it here because this is the only enforceable way to put restraints on the President. And I will tell you why I think it is important. Chaplain Yee at Guantanamo, Burton Mayfield in Oregon, Wen Ho Lee under the Clinton administration, there are, sadly, cases of entirely innocent individuals who were prosecuted and gone after.

I don't think the President is ill intended here. And I think the law enforcement people are the good guys; I just don't think they are the perfect guys. So I want to give them power, but I want to subject that to some check beforehand and some process afterwards. And that is what we are

saying here. We are fully in favor of empowering law enforcement, but we do not want them to be exclusive in the exercise of that power. And asking that they go before a judge to justify it when they are going to be wiretapping an American seems to us to be reasonable and to do no harm to America.

And to repeat my answer to the gentleman from California: the opponents of this amendment are the proponents of the view that the President's power should be entirely unchecked, and that is dangerous.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, the Supreme Court has made it very clear it will not referee fundamental constitutional debates over power between the executive and legislative branches. Only if you got a case would this get to the Court, and they will dodge and duck and never allow there to be a case. This is the only constitutional way to confront it.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I would like to commend Chairman Young and Ranking Member Murtha for forging a strong bill to fund our Defense Department and DOD entities, and I applaud them for their hard work and dedication. As we consider this important bill today, I appreciate the opportunity to address a crucial issue.

At the outset, I want to thank my colleague Mr. Inslee for all of his leadership on this issue, which has been tremendous. We have been working side by side on this amendment today. I would also like to thank Mr. Flake that I have introduced legislation along with for his tremendous leadership. This amendment is, in fact, based on legislation that I have offered with Mr. Flake. I also want to thank Mr. Van Hollen for all of his leadership.

The bill that I introduced with Representative Flake several months ago was a bipartisan bill of five Democratic Members and five Republican Members, and addresses the NSA surveillance program that almost every Member of this body learned about in the morning newspaper.

This amendment recognizes two important principles: First, that the government must have all of the tools necessary and all of the authority required to pursue al Qaeda and other terrorists who would seek to harm our country. And second, this amendment recognizes that we are a Nation of laws.

While the President possesses the inherent authority to engage in electronic surveillance of the enemy outside the country, Congress possesses the authority to regulate such surveillance within the United States, and, in fact, Congress has spoken in this area through Title III and through the Foreign Intelligence Surveillance Act.

When Congress passed these statutes, it intended that they provide the sole authority for surveillance on American soil. Our amendment simply reinforces existing law that the government must obtain a court order when U.S. persons are targeted or surveillance occurs in the United States of America.

Recently when the Attorney General testified in the Judiciary Committee, I asked about the limiting principle of the NSA program; was it restricted only to international calls; what if the administration decided tomorrow it had the inherent authority to tap purely domestic calls between two Americans, did it feel it could do so without court order; and the Attorney General said that he would not rule it out. He would not rule out having the pure authority without going to court to tap the calls between two Americans on American soil.

So what is the limiting principle if this program can change from day to day without the input of Congress? The only limiting principle is the good faith of the executive, which, when the executive shows it is infallible, might be a sufficient limiting principle, but the executive is no more infallible than we are here in Congress, and so we have a role to play.

In enacting FISA, Congress specifically sought to balance our national security interests with legitimate civil liberty concerns. In so doing, Congress expressly permitted surveillance without court order for 15 days after the declaration of a war.

Additionally, Congress provided the authority to engage in electronic surveillance for up to 72 hours without court order.

Furthermore, after the September 11 attacks, the administration came to Congress and asked us to modify FISA to respond to the new challenges in the war on terror, and Congress responded by making those changes.

Electronic surveillance of al Qaeda operatives and others seeking to harm our country must continue; it simply can and should comply with the law.

We stand ready to work with the administration if further statutory revisions to FISA or other authorities are required to meet the new challenges in the war on terrorism. Until then, we must restore the rule of law. I urge the House to do so today.

I know my colleagues Mr. Sherman, Mr. Inslee, and Mr. Van Hollen will want to strike the last word to speak on this as well.

Will the gentleman yield?

I thank the gentleman for yielding. The amendment says that there is a prohibition on using funds to fund this program unless it meets the requirements of FISA. Any part of the program that does meet the requirements of FISA, meet the existing law passed by the Congress, could continue to be funded. Those parts that don't meet the requirements of FISA, the administration will have to go back.

Mr. Chairman, I appreciate your thoughts and I appreciate your yielding. And we are up against a vicious enemy, and we ought to have every power of intelligence and every tool in the tool box and I completely agree with that. I think we can do that within the laws that the Congress has passed. And the gravamen of my concern is something that took place in the Senate, when one of our GOP colleagues asked the administration, during the debate over the PATRIOT reauthorization, which I supported, do we need to change FISA. We were making modest changes to FISA, and the Republican Senator said, Do we need to do something larger? And the administration response was no, that FISA is operating just fine as it is.

Now, if there are changes that need to be made, there is a 72-hour after-the-fact authorization. If that window is too short, it can be lengthened. If there are other problems, they be changed. And all that can be changed without disclosing to the public the nature of the program itself.

I haven't been briefed on it. I am not one of the lucky few, or maybe I am lucky. But it concerns me when the administration says we don't need to change existing law, when I think we can retain all of these tools, but the Congress can play its role in making sure that these programs are authorized by law, that they are not being conducted extralegally.

Will the gentleman yield so I can respond to the question?

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I thank the gentleman for yielding.

Very quickly, the only thing the amendment provides is that surveillance on American soil cannot be funded if it is not in compliance with FISA. So if you are in compliance, if this program complies with FISA, it could go on.

Just to address the chairman's point, and this is on the same point you are making, too, which is we should not be debating this on the House floor, that you should introduce the bill, and it should be heard in committee. Mr. Chairman, we have introduced the bill. I along with Mr. Flake, Mr. Inglis, Mr. Leach, and others have introduced the bill. We have not been able to get a hearing in committee, and so the only opportunity for us to raise this issue is on the House floor

That is absolutely right. The only thing that the amendment does is it says that when you are surveilling people on our home soil here in the United States of America, it has to be authorized by FISA. If it is not authorized by FISA, if it is outside of FISA, you cannot use the funds in this bill.

The gentleman from Illinois says, ``Trust us. There are some of us that know the program, trust us. We can't disclose information about the program here on the House floor.'' I am not asking anyone to disclose information about the program on the House floor. The only question raised by this amendment is are we funding programs that are in contravention of existing law, FISA.

I think you are exactly right about my colleague from California's argument, which is basically the President has the inherent authority to do anything he wants when he wants, surveil who he wants when he wants, how he wants, for whatever reason he wants.

In fact, this is why I made the point. When the Attorney General testified in committee, he said he believed, as evidently my colleague from California does, the President has the inherent authority to tap calls between two Americans on American soil, that he wouldn't rule that out.

Well, I am not satisfied by an argument that says, trust us. We are from the government.

I thank the gentleman for yielding. I just want to get to one question that has I think not been answered to the opposition to this amendment. And that is, the suggestion is by those who know the program better than I do that parts of it don't meet the requirements of FISA. And my question is, Why can't this program be authorized by law? Why can't we change the law to authorize it?

Mr. Chairman, I thank the gentleman for yielding. I will be very quick. Two final points in response to what the chairman and the ranking member of the Intelligence Committee had to say.

First, there is legislation on this subject, bipartisan legislation, that was introduced on March 16. We have had no oversight hearing on it, no markup on it, nothing, zero, zilcho, nada, which is why we are on the appropriations bill, the only vehicle in which we could raise this issue.

Second, both Members have said that this amendment would somehow jeopardize an existing NSA program. What that means is that far from my colleague from California's point, that the program does not comply with FISA. Otherwise, how could it be jeopardized? So there is an admission by the chair of the committee that the existing program does not meet the requirements of FISA.

What still has gone unanswered is why can we not make changes to FISA and the existing law? If this is such a vital program, why does it have to be done outside of the law?

Mr. Chairman, I rise for the purpose of entering into a colloquy with the gentleman from Florida (Mr. Young) and Mr. Murtha from Pennsylvania.

As indicated, I have an amendment that I was prepared to offer that asks for the same increase, 2.7 percent, that the Federal employees were getting for military personnel, which is now at 2.2 percent for the military.

One of the few issues on which all Members of Congress agree is that our military personnel are cherished defenders of our Nation, that we value them highly, that we are proud of them. Every day they stand between the status quo and an ideal for a better future and put their lives on the line to realize this goal.

The current pay increase for military personnel in this appropriations bill is 2.2 percent. This is a total of $84.9 billion for military personnel accounts, which is $1.9 billion greater than in fiscal year 2006, but it is $1.2 billion less than necessary, I believe, to help us get to 2.7 percent.

We just passed the Transportation-Treasury-HUD appropriation bill, which provided a 2.7 percent pay increase for civilian Federal workers, as well as targeted pay increases for a variety of enlisted personnel and officer grades. We need to make the strong statement that we value our Armed Forces just as much as we do our civilian public servants. My amendment simply increases military personnel pay by 2.7 percent over fiscal year 2006.

Every day we are reminded of the sacrifice our children and our neighbors are making. Over 2,500 soldiers have died in Iraq, and over 19,000 have been injured. Several years ago military personnel were paid 13 percent less than comparable civilian pay. This gap, however, has narrowed within the past few years to 6.5 percent in fiscal year 2005. And it is my goal to ensure that we will continue to narrow even more in the coming years.

According to the fiscal year 2006 pay charts, after 4 months of service, newly enlisted individuals earn less than $2,000 per month even if they have completed ROTC courses or 2-year or 4-year college programs. Mr. Chairman, I know we can do better.

I want to thank both Mr. Murtha and Mr. Young of Florida for being steadfast warriors on the battlefield of benefits for our military and for increasing the benefits to their families and to them. I would hope with the increases in experience and education and commission that we are seeing in our young military that we will close the civilian gap so that our young military, our reservists, National Guard, and others will not suffer this, if you will, incompatibility with their needs.

Finally, a May 2004 survey of reservists from the Department of Defense found that 51 percent reported an earning loss, including 44 percent who reported a drop of 10 percent or more, and 21 percent reported an income loss of 20 percent or more. Although this may be due to differences in taxes and other factors, we need to make sure that those in Active Duty are not punished for serving. I hope, as we move through this process, the voices that will be heard will be Members like the chairman and ranking member of this subcommittee, that we must do more for our young men and women on the frontlines, our reservists, and our National Guard.

I ask the gentlemen here today with me do they share my concerns to increase the salaries? And as well, I would hope that they would work with all of us to find a way to properly compensate and reward our brave men and women in uniform wherever they might be.

Mr. Chairman, I thank the gentleman for yielding.

This is an amendment that I would have offered, and I am delighted to not have to be able to offer it. And I thank the gentleman from Pennsylvania and thank the gentleman from Florida. And in noting all of their work, we have worked together, and I am very appreciative and hopeful that we will be able to work together on this increase in salaries and compensation for our brave men and women.

Mr. Chairman, I offer an amendment.

In the best of all worlds, Mr. Chairman, I would hope that the point of order could be waived; but at the same time as I discuss this amendment, I will acknowledge the leadership of the ranking member and the chairman of this subcommittee.

Living near a veterans hospital, having the pleasure of having represented the veterans hospital in Houston, Texas, and living in the State of Texas and recognizing the facilities that we have dealing with the rehabilitation of injured persons including injured soldiers, I would say that this is one of the more important funding areas that this bill has an ability to address. Why? Because we realize that some 19,000 of the U.S. military and the number is growing have been injured.

As we know, both Mr. Young and Mr. Murtha have steadily provided insight as they visited the troops in many of our military hospitals, including Bethesda and Walter Reed; and as I have had the opportunity to visit those hospitals, as well as the veterans hospital in Houston, the Michael DeBakey Hospital, which I had the pleasure of naming in honor of Dr. Michael DeBakey, one of the world's renowned heart surgeons, but also a veteran of World War II.

This idea of funding more prosthetics research is recognizing the cherished defenders of our Nation. It is giving them a second chance at life. This amendment would add additional funding of $4 million in that area. We know that every day they stand between the status quo and an ideal for a better future.

Might I just say that we have seen some of the more heinous injuries coming from the IEDs in Afghanistan and Iraq. U.S. troops injured in Iraq have required limb amputations at twice the rate of past wars. Bulletproof Kevlar vests protect soldiers' bodies, but not their limbs.

I am exhilarated that the rate of death is the lowest of any war we have fought in our history, and I am sure that my colleagues join me in that. Yet we must continue the responsibility of rehabilitation.

The good news is that prosthetic research by the military has generated their finest quality of prosthetic limbs, and we have seen and I have seen young men and women experience the joy of being able to walk again or to use their arms again. They, of course, must now readjust to life at home, they must relearn how to move, how to eat, how to walk, how to go grocery shopping, how to cook and how to adapt to the rest of their lives.

The importance of prosthetic research is increasing in light of the ongoing hostilities in Iraq and the growing sophistication of the improvised explosive devices used against our troops.

I recently visited Walter Reed Hospital, we met a number of wounded soldiers, many of whom were badly scarred physically, and needed to have the knowledge that the prosthetic devices would be available for them.

So this amendment is simple. It attempts to place special emphasis on work that is ongoing and the importance of continuing both the research and the funding regarding prosthetic research. This will help the encreased utilization of prosthetics for our soldiers. Someone out there is listening, I hope, in order to know that we are concerned about the many issues that impacts these soldiers' lives; and one of those issues is to have the opportunity to walk again.

Point of Order

I would. I would like to yield to the distinguished ranking member to ask about his belief and concern about the importance of prosthetic research funding and continue to have the opportunity to work with him and Mr. Young on this issue.

Mr. Chairman, I will take the time to discuss the point of order and not discuss it, simply to say this amendment's intention was to further highlight both the work already done by the ranking member and the subcommittee Chair, but also to express the need in my particular locality in Houston, Texas, where a number of these veterans are coming back needing prosthetics.

Let me thank the ranking member and the chairman for the work already done and ask at this time, as the moneys will be continue to be emphasized and the need already known, I will look forward to working with both of them as these funds continue to increase to help the need that is existing for those needing prosthetics coming back from the front line.

Mr. Chairman, I ask unanimous consent to withdraw the amendment.

Will the gentleman yield?

I can't quote Mr. Negroponte, but I can quote Benjamin Franklin who, in 1776, explained the unanimous decision of the Committee on Secret Correspondence for not telling their colleagues in the Continental Congress about a covert operation. And he said we find by fatal experience that Congress--

Mr. Chairman, I move to strike the requisite number of words.

Mr. Chairman, I rise in opposition to this amendment.

There has been a lot of talk about following the law. People seem to ignore what Griffin Bell said at the time the Carter administration brought this bill before the Congress to be passed into law. At that time he very carefully said that enactment of FISA did not exclude the authority the President has under the Constitution.

We have heard on this floor about illegal acts. I would remind my colleagues that the supreme law of the land is the Constitution, and the President has inherent authority under Article II of the Constitution in this area. We may not like it, but the fact of the matter is that is one of the reasons you have elections for a President, to have the authority and the power that he has under the Constitution. The vesting clause of Article II of the Constitution which gives the President executive authority, coupled with his authority as Commander in Chief of the Armed Forces, forms the basis for the surveillance of al Qaeda members and those who are affiliated with al Qaeda.

The President's actions are certainly consistent with the Founding Fathers, as expressed in John Jay's observation in Federalist Paper No. 64: ``The President . . . will be able to manage the business of intelligence in such manner as prudence may suggest.'' An examination of historical records makes clear that the Founding Fathers intended the President to have primary, if not exclusive, control over the business of intelligence. We may not like it, but that is what the Constitution establishes. We may have a FISA law, but that does not restrict the President if, in fact, he has inherent authority under the Constitution.

The argument that the President has somehow violated the law misunderstands that the Constitution is the supreme law of the land. Congress has no more authority to intrude on the executive authority of the President than the President does on the enumerated authority of the Congress. As James Wilson argued during the ratification debate in his own home State of Pennsylvania: ``The President of the United States can shield himself and refuse to carry into effect an act of Congress that violates the Constitution.'' In the same context, John Jay points out in Federalist 64 that ``it surely does not follow that because they have given the power of making laws to the Legislature, that therefore they should likewise give them power to do every other act of sovereignty by which the citizens are to be bound and affected.'' The United States Supreme Court summed it up well in Ex parte Miligan: ``Neither can the President in war more than in peace intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President. Both are servants of the people, whose will is expressed in the fundamental law.''

It is interesting to note for those who have talked about historical record that the First Congress, which created the Department of Treasury and the Departments of War and Foreign Affairs, gave Congress access to the records and papers of the Treasury Department, but not to the Departments of Foreign Affairs and War. It is clear that the power of the President vis-a-vis Congress was broader with respect to foreign affairs than it was in the domestic realm of governance. We may not like it, but that is what the Constitution says.

According to Madison, the ultimate check on Presidential power possessed by the Congress rests with the ``first principle in free government.''

According to John Marshall in Marbury v. Madison, the limits on such Presidential authority must be found elsewhere in the Constitution itself.

Look, we ought to look at what Justice White observed in his concurring opinion in the Katz decision. These are the words of Justice White: ``Wiretapping to protect the security of the Nation has been authorized by successive Presidents.'' In other words, it did not start with this administration. He said, ``The present administration would apparently save national security cases from restrictions against wiretapping.'' Again, Justice White's words: ``We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.''

As explained publicly by the President, he followed the prescription of Justice White. He has personally had hands-on over this. He has had his Attorney General with hands-on authority over this. But then in addition, he did notify the Congress. He notified the leadership of the House and the Senate. He notified the leadership of the House and the Senate committees of jurisdiction. No, he did not notify all of us, but he comported with the law and the interpretation of the Constitution suggested by Justice White.

I would suggest if one looks up the definition of the word ``moderate'' in Webster's Dictionary, you would find the picture of Justice White. He started the middle ground on all of this.

So I would suggest, as we look at this, we understand that we may have a debate about how the President has done it, but to suggest that what he has done is unlawful or illegal does not recognize either the Constitution or the comments of the Founding Fathers in support of the Constitution.

I thank the gentleman for yielding. I was speaking of the vesting clause in the U.S. Constitution that gives the President with the executive powers----

I don't have the exact words.

It is the vesting clause of the Constitution, vesting in the President

the executive authority, coupled with his authority as Commander in Chief.

Now, let me just say to the gentleman, so we can make it clear, I have never argued that the President has this authority in all things, as some have suggested, to kill people, to do this, to do that. I have cited authority which suggested in the area of gathering foreign intelligence, which is about what we are talking.

Secondly, I would just say that the gentleman is right that we do have the power of the purse.

I don't argue at all that this is an inappropriate amendment to be considered, because this is the proper exercise of our authority to the power of the purse. What I have suggested is the arguments that the President is acting illegally or unlawfully are not appropriate, because he is acting under the Constitution, in my judgment.

He would be bound by it with respect to the expenditure of funds in this particular bill. I don't think there is any question about that.

This doesn't cover all expenditures of the President under all circumstances. This is limited to the funds that are contained in this bill, as you know, because it is an appropriation bill.

But could I mention one thing, because there has been some question about this. The FISA court of review issued an opinion in 2002 which stated: all the other courts that have decided the issue held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.

Can we talk about----

MR. FRANK of Massachusetts. I am taking back my time. Let us debate the merits. Let us not hide behind----

Mr. Chairman, will the gentleman yield?

Mr. Chairman, that begs the question as to whether or not you can, in fact, effectively do that with the 72-hour limitation. There are those running the program that suggest that that is not possible, not because necessarily the limitation on going to court, but all of the work that needs to go forward before you get to the court to get the approval. That is what we ought to be talking about.