Providing for consideration of the bill (H.R. 5825) to update the Foreign Intelligence Surveillance Act of 1978.

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 1052 and ask for its immediate consideration.

Mr. Speaker, for the purpose of debate only, I yield the customary 30 minutes to the gentleman from Florida (Mr. Hastings), pending which I yield myself such time as I may consume. During consideration of this resolution, all time yielded is for the purpose of debate only.

(Mr. PUTNAM asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I am pleased to bring to this floor House Resolution 1052. The resolution is a rule that provides for consideration of H.R. 5825, the Electronic Surveillance Modernization Act. H.R. 5825 relates to the manner in which the Federal Government collects oral, wire, and electronic communications for foreign intelligence purposes.

In order to safeguard fourth amendment protections, Congress has created procedures to allow limited law enforcement access to private communications and communication records. Specifically, Congress enacted title III of the Omnibus Crime Control and Safe Streets Act of 1968 that outlines what is and what is not permissible with regard to wiretapping and electronic eavesdropping.

Title III of the Crime Control Act authorizes the use of electronic surveillance for specific crimes. While Congress did not cover national security cases in the Crime Control Act, it did include a disclaimer that the wiretap laws did not affect the President's constitutional duty to protect our national security.

In 1972, the U.S. Supreme Court specifically invited Congress to establish similar standards for domestic intelligence that were established for criminal investigations.

Congress enacted the Foreign Intelligence Surveillance Act of 1978, FISA, to prescribe procedures for foreign intelligence that is collected domestically. FISA authorized the Federal Government to collect intelligence within the United States on foreign powers and agents of foreign powers. It established a special court to review and authorize or deny wiretapping and other forms of electronic eavesdropping for purposes of foreign intelligence gathering in domestic surveillance cases. FISA was enacted by Congress to secure the integrity of the fourth amendment, while protecting the national security interests of the United States by providing a mechanism for the domestic collection of foreign intelligence information.

Mr. Speaker, the purpose of the Electronic Surveillance Modernization Act is to modernize the Foreign Intelligence Surveillance Act to strengthen oversight of the executive branch concerning electronic surveillance and intelligence and to provide clear electronic surveillance authority to the national intelligence agencies in the event of a terrorist attack, armed attack, or imminent threat against this Nation.

FISA was originally constructed in 1978, more than 25 years ago. Changes in technology have caused an unintentional shift in the focus and reach of FISA. The complexity, variety, and means of communications technology has since mushroomed exponentially, while the world has become more interconnected. Think of the revolution in communications technology that has occurred in the past 25 years. The cellular technology, wireless technology, the development and explosion of Internet access, all communications tools, all technologies that allow those who would plot terrorist acts against our people to use and access in a readily available form.

We now have terrorists in remote camps who can easily communicate globally with cells around the world and within this country through the use of wireless technology and satellites. Think of the images from Afghanistan of broadcasts through wireless laptop devices using satellite technology from a cave.

The structure of our surveillance laws has remained confined to the technology of a generation-old copper wire telephone, while the terrorists are utilizing every technology and communication device at their disposal.

The House Permanent Select Committee on Intelligence received testimony that the current provisions of FISA are ``dangerously obsolete.'' H.R. 5825 modernizes the law in a number of critical respects. It updates FISA to make it technology neutral and neutral as to the means of communication. Provisions now apply to a land line phone as well as cellular and wireless modes of communication.

This legislation streamlines the surveillance approval process to keep the focus on gaining knowledge of those who would do harm to the United States while protecting the civil liberties of average Americans. It gives our intelligence personnel the necessary tools to help detect and prevent acts of terrorism and to respond to terrorist attacks.

As reported, the bill also ensures that adequate authority exists to conduct necessary electronic surveillance when a threat of imminent attack exists. The Electronic Surveillance Modernization Act also enhances congressional and judicial oversight of U.S. Government electronic surveillance activities to ensure that activities conducted under both FISA and the authorities in this bill will be utilized by the President only, only, with the knowledge and coordination of the other branches of government.

More broadly than just FISA, the bill also addresses the fundamental separation of powers concerns expressed by Members through amendments to the National Security Act by providing express authority for the chairman of the congressional Intelligence Committees to broaden their reporting on sensitive issues to additional members of the committee at his or her discretion on a bipartisan basis in necessary circumstances.

H.R. 5825 enhances the overall authorities of our Nation to act as a whole to protect itself in times of war and heightened threat of attack, both terrorist and otherwise.

I am pleased with the efforts of the House Permanent Select Committee on Intelligence and the House Judiciary Committee. This bill is an excellent example of how Congress and the executive branch can work together to ensure our national security. I thank Chairman Hoekstra and Chairman Sensenbrenner and all the members of the committees for their work. I urge Members to support the rule and the underlying bill.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman from West Virginia (Mrs. Capito).

Mr. Speaker, I yield 3 minutes to the gentleman from Georgia (Mr. Gingrey), my colleague on the Rules Committee, to talk about the issue at hand, the Electronic Surveillance Modernization Act.

Mr. Speaker, I am pleased to yield 3 minutes to the gentlewoman from New Mexico (Mrs. Wilson), the sponsor of the underlying legislation.

Mr. Speaker, I am pleased to yield 4 minutes to one of the architects of this legislation, the gentleman from California (Mr. Daniel E. Lungren).

Mr. Speaker, I continue to reserve the balance of my time.

Mr. Speaker, I just rise to point out to the Members that we are here to modernize the FISA bill of 1978, and I ask Members to think about all of the changes in sophistication and accessibility of communication devices today.

Think about your own e-mail, your own BlackBerry, your own cell phone, your own laptop, your own desktop, just the handful of things that are directly involved in this line of work, in any routine business in America. All of those things offer multiple avenues per device to communicate around the world in an instantaneous manner at almost no cost.

Tracking that type of communication device, when it is being used by people who would fly airliners into the World Trade Center; when it is being used by people who would fly an airliner full of innocent women and children and students on field trips, and bands who have spent all year having car washes to be able to go on that trip into the center of our defense might, the symbol of our Armed Services, into the Pentagon; the kind of people who would plot to blow up 10 more airliners as recently as 5 weeks ago.

Now, it seems odd to me that that is a difficult choice, that we would want not to give all the tools possible to our law enforcement and intelligence officials. The plot that was broken up in London several weeks ago reflected two things to me: one, that we are still in grave danger; that the enemy is still, to this day, 5 years after 9/11, getting up every morning, going to bed late every night thinking of ways to destroy not just the United States, not just our allies, but those who share our values, Western Civilization in general: Madrid, Spain; London, England; the Danish, because of their free speech; and the United States are just some of the most blatant examples. We are still very much in danger. That is the first lesson of the disruption of that plot.

The second lesson of the disruption of that plot is that legislation that has passed in this country and in the U.K. in the 5 years since 9/ 11 worked, tearing down walls that separate discussions between intelligence gatherers and law enforcement. That legislation worked. Tracking financial transactions to be

able to follow money from Hamburg to Pakistan, back to London to the ticket agent where people are about to board an airplane that they intend to blow up worked. Tracking communications among terrorists works.

If a laptop is discovered in a cave in Afghanistan, and you look on their contacts list; if a cell phone is picked up in a desk drawer in a hotel in Islamabad and you look at who their frequently called numbers are, don't you think that says a lot about that person and who they are talking to? Certainly if you look at your own it says an awful lot about you, who your friends are, who your stockbroker is, what your wife's cell phone number is. Look at your own device. And we use that same common sense, that same investigative approach to the terrorists.

So when we look at the laptop or when we look at the cell phone in Islamabad or London or Hamburg or New York and there are numbers on there from a known al Qaeda operative to someone in the United States, we ought to be on that number as quickly as possible.

Anything else is an assault on common sense. We must move as quickly, as efficiently as possible, using every technology at our disposal to prevent terrorist attacks, to disrupt terrorist attacks, and to bring to justice the people who are planning them.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I reserve my time.

Mr. Speaker, I continue to reserve.

Mr. Speaker, it is my desire to bring this focus back to the issue at hand and bring something of a commonsense approach to this.

We are trying to modernize the FISA Act, the Foreign Intelligence Surveillance Act of 1978. Since 1978, there has been a technology revolution in communications: the Internet, cell phones, laptops, desktops for under $500, immediate, rapid, global, affordable communications on demand, satellite phones, GPS for $99. The bottom line is the terrorists can communicate, conspire, organize, recruit and train on a global basis from any spider hole, cave or clubhouse anywhere in the world.

We have to modernize the legislation that allows our intelligence agencies and our law enforcement officials to track down those bad guys, not after they have blown up the World Trade Center or after they have flown a plane into the Pentagon, but before they do those things. In other words, a September 12th mentality, as opposed to a September 10th mentality, the idea that we have to recommit ourselves to the notion that we are very much at war and that we are very much in grave danger by these radicals who have at their disposal all the tools that modern technology can provide and we are arming our law enforcement officials with 25-year-old authority.

To change that, to bring us out of the copper wire telephone world into the wireless, cellular satellite world, we have to pass this legislation. By passing this legislation, we can be assured that we are giving them everything that they need to disrupt terror attacks on our soil.

It seems to me to be a no-brainer that we should give them the tools to listen to anyone who is in regular communication with a member of al Qaeda, to anyone who is in regular communication with someone whose laptop is seized in a cave in Afghanistan after a firefight with allied forces, whose records are found in the desk drawer of a hotel in Hamburg that has been traced to be money laundering through Pakistan, through the European Union, through London, to set up cells in the United States, to buy airplane tickets, to send people to flight school.

Those are the tools that we have to give our law enforcement officials and intelligence agencies, just like the tools that we gave them when we tore down the walls that separated them and prevented them from communicating, just like the tools we gave them to track the movement of money that the terrorists were handling and these nation states who fund the terrorists were handling. Those are the tools that we give to reflect the nature of this global war on terror and to reflect the realities of modern communication technologies.

It is vitally important that we pass this bill. To pass the bill, we have to pass this rule.

The material previously referred to by Mr. Hastings of Florida is as follows:

Previous Question for H. Res.--H.R. 5825--Electronic Surveillance

Modernization Act

At the end of the resolution add the following new

Sections:

Sec. . Notwithstanding any other provisions in this

resolution and without intervention of any point of order it

shall be in order immediately upon adoption of this

resolution for the House to consider the bill listed in Sec.

:

Sec. . The bills referred to in Sec. . are as follows:

1) a bill to implement the recommendations of the 9/11

Commission.

The Vote on the Previous Question: What It Really Means

This vote, the vote on whether to order the previous

question on a special rule, is not merely a procedural vote.

A vote against ordering the previous question is a vote

against the Republican majority agenda and a vote to allow

the opposition, at least for the moment, to offer an

alternative plan. It is a vote about what the House should be

debating.

Mr. Clarence Cannon's Precedents of the House of

Representatives, (VI, 308-311) describes the vote on the

previous question on the rule as ``a motion to direct or

control the consideration of the subject before the House

being made by the Member in charge.'' To defeat the previous

question is to give the opposition a chance to decide the

subject before the House. Cannon cites the Speaker's ruling

of January 13, 1920, to the effect that ``the refusal of the

House to sustain the demand for the previous question passes

the control of the resolution to the opposition'' in order to

offer an amendment. On March 15, 1909, a member of the

majority party offered a rule resolution. The House defeated

the previous question and a member of the opposition rose to

a parliamentary inquiry, asking who was entitled to

recognition. Speaker Joseph G. Cannon (R-Illinois) said:

``The previous question having been refused, the gentleman

from New York, Mr. Fitzgerald, who had asked the gentleman to

yield to him for an amendment, is entitled to the first

recognition.''

Because the vote today may look bad for the Republican

majority they will say ``the vote on the previous question is

simply a vote on whether to proceed to an immediate vote on

adopting the resolution * * * [and] has no substantive

legislative or policy implications whatsoever.'' But that is

not what they have always said. Listen to the Republican

Leadership Manual on the Legislative Process in the United

States House of Representatives, (6th edition, page 135).

Here's how the Republicans describe the previous question

vote in their own manual: Although it is generally not

possible to amend the rule because the majority Member

controlling the time will not yield for the purpose of

offering an amendment, the same result may be achieved by

voting down the previous question on the rule . . . When the

motion for the previous question is defeated, control of the

time passes to the Member who led the opposition to ordering

the previous question. That Member, because he then controls

the time, may offer an amendment to the rule, or yield for

the purpose of amendment.''

Deschler's Procedure in the U.S. House of Representatives,

the subchapter titled

``Amending Special Rules'' states: ``a refusal to order the

previous question on such a rule [a special rule reported

from the Committee on Rules] opens the resolution to

amendment and further debate.'' (Chapter 21, section 21.2)

Section 21.3 continues: Upon rejection of the motion for the

previous question on a resolution reported from the Committee

on Rules, control shifts to the Member leading the opposition

to the previous question, who may offer a proper amendment or

motion and who controls the time for debate thereon.''

Clearly, the vote on the previous question on a rule does

have substantive policy implications. It is one of the only

available tools for those who oppose the Republican

majority's agenda to offer an alternative plan.

Mr. Speaker, I yield back the balance of my time, and I move the previous question on the resolution.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, ladies and gentlemen of the House, let me state from the outset that we support our government intercepting each and every conversation involving al Qaeda and its supporters. But I cannot support legislation that not only fails to bring the warrantless surveillance program under the law, but dramatically expands the administration's authority to conduct warrantless surveillance on innocent Americans.

This is the Bush bill. It is amazing to me that we would even be taking up a law that fails to regulate the present domestic spying program. Nearly 9 months after we first learned from the New York Times that there was a warrantless surveillance program going on, and we did not know it until then, there has been no attempt to conduct an independent inquiry into its legality.

Not only has the Congress failed to conduct any sort of investigation, but the administration summarily rejected all requests for a special counsel or Inspector General review, and when the Office of Professional Responsibility finally opened an investigation, the President of the United States himself squashed it by denying the investigators security clearances.

Now, since 1978, there have been 12 amendments to this bill, 51 different changes. So let us not start off acting as though there have never been changes here before.

What we are doing, instead of restricting the administration and the National Security Agency, this bill grants the administration more and new authority to conduct warrantless surveillance of American citizens. Not only does the bill permit warrantless surveillance of the international communications of any American who is not a target, but it grants the administration new authority to conduct warrantless surveillance on domestic calls in many new circumstances.

We do not like this measure before us because, instead of bringing the President's warrantless surveillance program under the law, what has been done, without much finesse, is to dramatically expand his authority and permit even broader and more intrusive warrantless surveillance of the program and the phone calls and the e-mails of innocent Americans.

It raises severe constitutional questions, the fourth amendment and the equal protection of agencies and subjects everything in this area to ill-considered and unfair process.

But it is not just the law professors and the civil liberty unions that are supporting it. We have here a statement from former national security officials, and I will insert the statement of former national security officials in the Record at this time.

Statement of Former National Security Officials

The President has spoken repeatedly and emotionally in

recent days about the need for intelligence professionals to

have clarity in the law. He has emphasized that it is not

fair to ask these men and women to operate in an uncertain

legal environment and that, in fact, legal uncertainty

hampers operational effectiveness and thereby jeopardizes our

national security. Yet legal uncertainty is exactly what will

result if Congress heeds the President's call to enact

legislation that replaces the obligation to use the

procedures of the Foreign Intelligence Surveillance Act with

broad language about relying upon the President's

constitutional authority.

Before FISA was enacted, courts addressed the issue of

warrantless surveillance for domestic security purposes but

did not clearly resolve the scope of the President's

authority regarding foreign intelligence surveillance. FISA

was enacted in order to clarify this murky legal area by

setting forth a clear process for electronic surveillance of

foreign powers and agents of foreign powers. The Executive

Branch welcomed the clarity and this law has been viewed as

an essential national security tool for 28 years.

This legislation would return a complex subject to the

murky waters from which FISA emerged by making going to the

FISA court or applying FISA in any way optional rather than

mandatory. It leaves it to the President to decide when he

has the authority to conduct warrantless surveillance of

Americans or foreigners. Whether he has made the right

determination will not be known unless and until it is

challenged in court.

If advances in technology or other exigencies not

contemplated in FISA present the President with a national

security emergency, he should have a window in which to act

while promptly seeking appropriate amendments to FISA--and

this could be provided for in the statute. But this

extraordinary emergency authority should not be permitted

effectively to repeal FISA.

FISA was a political compromise between the Legislative and

Executive branches of government; unforeseen exigencies

should require those branches of government to continue to

coordinate, not condone unilateralism by either branch.

Indeed, the world has become so much more complex, both

technologically and socially, than it was in 1978, that

making FISA optional rather than mandatory would

significantly destabilize the balance struck then between law

and policy.

As individuals with extensive experience in national

security and intelligence, we strongly urge that the

requirements of FISA remain just that--requirements, not

options. Congress should continue to work to get the facts

and if, once they are provided, these facts demonstrate the

need for changes in the law, amend it only as needed to meet

genuine national security imperatives. Legal clarity is just

as essential in this context as any other in which

intelligence or law enforcement officers are asked to

operate. FISA provides that clarity and should not be

abandoned or amended in ways that render it irrelevant.

Ken Bass

Formerly Counsel for Intelligence Policy, Department of

Justice

Eugene Bowman

Formerly Deputy General Counsel, Federal Bureau of

Investigation

Mary DeRosa

Formerly Special Assistant to the President

Formerly Legal Advisor, National Security Counsel

Juliette Kayyem

Formerly Member, National Commission on Terrorism (The

Bremer Commission)

Formerly Legal Advisor to the Attorney General, Department

of Justice

Elizabeth Larson

Formerly Senior Staff, House Pennanent Select Committee on

Intelligence

Formerly Senior Executive, Central Intelligence Agency

Elizabeth Rindskopf Parker

Formerly General Counsel, National Security Agency

Formerly General Counsel, Central Intelligence Agency

F. Whitten Peters

Formerly Secretary of the Air Force

Formerly Principal Deputy General Counsel, Department of

Defense

Stephen Saltzburg

Formerly Deputy Assistant Attorney General, Criminal

Division, Department of Justice

William S. Sessions

Formerly Director, Federal Bureau of Investigation

Formerly Chief United States District Judge for the Western

District of Texas

Michael A. Smith

Formerly Assistant General Counsel, National Security

Agency

Brit Snider

Formerly General Counsel, Senate Select Committee on

Intelligence

Formerly Inspector General, Central Intelligence Agency

Suzanne E. Spaulding

Formerly General Counsel, Senate Select Committee on

Intelligence

Formerly Assistant General Counsel, Central Intelligence

Agency

Michael A. Vatis

Formerly Director, National Infrastructure Protection

Center, Federal Bureau of Investigation

Formerly Associate Deputy Attorney General, Department of

Justice

I lift up the names of two people in particular: William Sessions, the former Director of the Federal Bureau of Investigation, formerly Chief Judge of the Western District of Texas; and William H. Webster, formerly Director of the Federal Bureau of Investigation and former Director of the Central Intelligence Agency.

There is a wide agreement that this legislation is not what we should be doing. It should be rejected because we are giving the administration unilateral authority to review the call records and e- mails of millions of Americans and permits the administration to use surveillance devices without cause, thereby reinstituting the discredited ``total information awareness'' program that kept records on hundreds of millions of Americans.

Hidden in the fine print are provisions which grant the administration authority to maintain permanent records on innocent American citizens, granting the administration new authority to demand personal records without court review, and terminating any and all legal challenges to unlawful wiretapping.

So we are joined in our position by the Computer and Communications Industry Association, including Microsoft, Verizon, Google and Intuit; law school deans, 63 of them; 13 former national security officials; the Center for Democracy and Technology; and the Center for National Security Studies.

We must fight terrorism, but we must fight it in the right way, consistent with our Constitution and in a manner that serves as a model for the rest of the world. This bill fails that test.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from New York (Mr. Nadler), ranking subcommittee member.

Mr. Speaker, I am pleased to yield 2 minutes to the gentleman from Virginia (Mr. Scott), a member of the Judiciary Committee.

Mr. Speaker, I yield 2\1/2\ minutes to a distinguished member of the committee, Mr. Schiff.

Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the distinguished gentleman from Maryland (Mr. Van Hollen).

Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman from Texas, Ms. Sheila Jackson-Lee, a distinguished member of the Committee on the Judiciary.

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the gentlewoman from California (Ms. Waters), a member of the Judiciary Committee.

Mr. Speaker, I am pleased now to yield 2 minutes to the distinguished minority whip, the gentleman from Maryland (Mr. Hoyer).

Mr. Speaker, I yield myself 30 seconds, because it has been stated that we might have been able to prevent the September 11 attack. But a distinguished member of the 9/11 Commission specifically criticized General Hayden for suggesting that the NSA warrantless wiretapping program could have prevented the September 11 attack by stating that it is patently false and an indication that he is willing to politicize intelligence and use false information to help the President.

The Administration's claims that the NSA programs could

have prevented the September 11 attacks do not appear to

comport with the facts. With respect to Nawaf Alhazmi and

Khalid Almihdhar, the September 11th Commission found that

the Government had already compiled significant information

on these individuals prior to the attacks, writing, ``[o]n

May 15, [2001], [a CIA official] reexamined many of the old

cables from early 2000, including the information that

Mihdhar had a U.S. visa, and that Hazmi had come to Los

Angeles on January 15, 2000. The CIA official who reviewed

the cables took no action regarding them.'' Under FISA, the

Administration could have used the information to seek

permission to monitor the suspects' phone calls and e-mails

without risking any disclosure of the classified information.

It is also not at all clear that warrantless surveillance

would have been useful in averting the 9/11 attacks, since

the Administration was unable to locate where the two

suspects were living in the United States and, according to

the FBI ``had missed numerous opportunities to track them

down in the 20 months before the attacks.'' Senator Bob

Kerrey, who was a member of the 9/11 Commission, specifically

criticized General Hayden for suggesting that the NSA

warrantless wiretapping program could have prevented the

September 11 attack stating: ``[t]hat's patently false and an

indication that he's willing to politicize intelligence and

use false information to help the President.''

I turn now to the gentleman from Virginia (Mr. Moran) who has studied this matter and I yield him 2 minutes.

Mr. Speaker, I yield to the gentleman from New York (Mr. Hinchey) 2 minutes.

Mr. Speaker, I now yield the balance of our time to the distinguished gentleman from New Jersey (Mr. Andrews).

(Mr. ANDREWS asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield myself 6 minutes.

Mr. Speaker, there shouldn't be a controversy about the fact that there are threats to our national security today and that they continue to be more diverse and more complex than ever before.

The Intelligence Committee has worked throughout this Congress to identify and better understand these threats and what steps are necessary to provide the best possible capabilities to our intelligence community, the men and women of our intelligence community, to keep America safe.

The committee recently issued a detailed report on the threats posed by al Qaeda, a hostile regime in Iran. I encourage all members to review them. But you don't need to read the reports to understand the scope, the urgency, and the viciousness of the threats that we face today. The threats are relentless. They are omnipresent.

In the last 2 months alone, a treasonous American appeared in a video prepared by al Qaeda terrorists who have sworn to destroy America and said, ``Either repent of your misguided ways and enter into the light of truth, or keep your poison to yourself and suffer the consequences in this world and the next.''

Jihadists called for the Pope to be ``hunted down and killed,'' merely for reading from a medieval text.

A 66-year-old Italian nun was ruthlessly shot four times in the back and killed while trying to train nurses in Somalia.

Our British allies discovered a horrific and brutal plot, close to fruition, to blow up multiple passenger airliners flying between the United States and the United Kingdom. That likely would have been a more devastating terrorist attack than 9/11. The British Home Secretary has said that they are following at least 20 additional plots.

Press reports have indicated the possibility that the Stalinist regime in North Korea is accelerating its plans to test nuclear weapons, and the rogue president of Iran has reiterated his rights to nuclear technology.

If anyone in the House believes that these threats are not real or they are not serious, I would welcome any information and discussion to the contrary.

But even if a small portion of these threats have the possibility of coming to fruition, it should not be a serious matter of debate that our country needs to rapidly and effectively bring every intelligence tool to bear to find our enemies, detect and understand their intentions, and thwart their hostile and terrorist acts against our country and our people.

The opponents of this bill say it is ``not necessary.'' I suppose the bill is ``not necessary'' if you do not believe that the threats we face are very real, and very serious. But I believe in the face of such intense and relentless threats this House would be derelict in its duty not to pass this bill that gives us the necessary intelligence tools to defend ourselves.

This bill is intended to modernize one of our primary weapons against terrorists and hostile foreign powers, the Foreign Intelligence Surveillance Act. FISA was passed in 1978. There are some who say it has been updated since, the law has become dangerously obsolete and hopeless as a tool against terrorism. We cannot fight a 21st-century intelligence war against sophisticated terrorist and state enemies with laws designed around the 1970s, around the former Soviet Union and around the bureaucracy associated with the former Soviet Union.

This bill will update the law to allow more flexible and agile intelligence collection against modern communication technologies and streamline the process. We must focus our resources on finding and detecting terrorists, not on having to fill out repetitive, inch-think paperwork to justify what should be an obviously appropriate need to listen to two foreign terrorists communicating in a foreign country.

The outdated law doesn't serve our intelligence interests. It doesn't serve our civil liberties interests. It serves only lawyers and bureaucracy.

This bill will focus the resources of the FISA process where they belong: on effective intelligence collection and protecting civil liberties where Americans have a reasonable expectation of privacy.

There is no ambiguity. This law continues to protect the average American going about their daily business, but does provide for needed surveillance against specifically identified terrorist organizations and spies. This bill would also provide clear authority for our Nation to act in times of armed attack, terrorist attack, or imminent threat.

It will also substantially increase congressional oversight not only of FISA but of all intelligence activities to address important concerns about the separation of powers that have been expressed in this Congress.

I appreciate the strong, close support on this matter by Chairman Sensenbrenner and the Committee on the Judiciary. I would also like to recognize the hard work and the leadership of the distinguished Chair of the Intelligence Subcommittee on Technical and Tactical Intelligence, Heather Wilson, who took on the assignment to address the difficult and complicated issues in this bill. This has not been an easy task. She has worked diligently to address a number of complex, substantive issues and a range of interests within the House.

Mr. Speaker, I believe that this bill is not only necessary but vital to protect our Nation and the American people. The Nation demands that the Congress pass laws to protect our national security. This is what this bill does. I urge all Members to support it.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I would like to at this time yield 4 minutes to the gentlewoman from New Mexico, Heather Wilson, the chairman of the subcommittee, the author of this House legislation.

Mr. Speaker, I yield 3 minutes to my colleague, Mr. Dent.

Mr. Speaker, I would like to yield 2 minutes to one of the newer members of the committee, Mr. Issa from California.

Mr. Speaker, I yield 3 minutes to a gentleman from the committee, Mr. Tiahrt.

Mr. Speaker, I yield 2 minutes to the gentlewoman from Connecticut (Mrs. Johnson).

Mr. Speaker, I yield myself the balance of the time.

Mr. Speaker, we are a Nation at war. All we need to do is take a look at what the leaders of radical Islam are saying. Bin Laden has said that if by the grace of God he would be able to have access to nuclear weapons, he would use them.

All you need to do is take a look at what radical Islam is doing. Just five short weeks ago, they once again had a plan to attack America in a horrific way, multiple planes crashing into the Atlantic Ocean at the same time.

This is a global war. The attack that had its home in the U.K. is directed out of Pakistan. It is targeted at America. There are operatives throughout the Middle East, north Africa, Europe, the Netherlands, Canada, Australia. It is a global and dangerous enemy. It is a decentralized, entrepreneurial organization that is very, very dangerous.

We are on the offense. We are taking the fight to the radical Islamists wherever they may be.

This bill is about making sure that the men and women in our intelligence community have the tools to fight this kind of an enemy. It is time to update FISA. It is time to give the men and women in the intelligence community the tools for them to fulfill the job that we have asked them to do, which is to protect America, to keep us safe.

Vote for this bill. Vote for a modernization.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I rise in opposition to the motion to recommit.

Mr. Speaker, I yield to the gentlewoman from New Mexico (Mrs. Wilson), the chairwoman of the Tactical and Technical Subcommittee.

Mr. Speaker, I thank the gentlewoman for her comments.

The arguments this evening on the other side have been along the lines of FISA does work. The President acted alone and in secret. FISA is the only tool that is necessary.

But we know that that is not true. It does not work. The President did not act in secret, and FISA's insufficient.

It is September 11, 2001, shortly after the attacks. The President calls in his National Security Advisor, calls in folks from the intelligence community, and says, how do we get a better handle on who is attacking us? What other tools do we need to put in place to make sure that we can fight and win this war on terrorism?

They developed their ideas. They identified the strategies and the new tactics that they need to fight this war against terrorism effectively.

October 25, 2001, the President convenes and meets with congressional leaders and outlines this program to them and with them, or the executive branch does, and the group in there recognizes that against this enemy FISA does not work and that collaboratively, working with the executive branch and Congress, we need to implement new tools to keep America safe.

The terrorist surveillance program that has been used for the last 4 years is not only the President's terrorist surveillance program, it is the terrorist surveillance program of the President, Minority Leader Pelosi, Ranking Member Harman, former Majority Leader Daschle, all who had the opportunity regularly to review this program, to see how it worked, why it needed to be done in the way that it was being done, and the benefits that

America was receiving from the program and the impact it was having in keeping America safe and enabling us to move forward.

It is because these individuals, working with the President, recognize that FISA was insufficient that they agreed to move forward with the terrorist surveillance program for almost 4 years, until this very valuable tool was leaked by the New York Times. We are a country that is less safe because of that. It is why we are now having this debate, because now al Qaeda and radical Islamists know more about our tools and fighting them than what they did before.

It is time to update this law, to pass this bill to make sure that we can continue providing our intelligence community with tools they need.

Build on the work of the President, of Minority Leader Pelosi, Ranking Member Harman, Majority Leader Daschle, all who agreed that FISA did not work and that the President and the executive branch needed the authorities and the capabilities that are now outlined in its many ways and are brought under more congressional oversight under the Wilson bill, and allow for more congressional oversight in a defined way through the Wilson bill.

This is the way we need to go, the direction we need to take because we are a Nation at war, under threat, and this is the appropriate updating of an old law that the White House but also congressional leaders in a bipartisan way agreed did not work.

Vote against the motion to recommit. Vote for final passage.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I thank the gentleman, my friend from Florida, for the time; and I yield myself such time as I may consume.

Mr. Speaker, I rise in strong option to this closed rule and the underlying legislation. First, let me say that I really am pleased that Congress belatedly sees a need to address the President's unconscionable, declared by court, unconstitutional domestic spying program.

Unfortunately, we are considering a bill today that was primarily drafted by the White House. I do not relish the notion of criticizing this bill; but because what it does to the Constitution, however, and I am sworn to uphold, as are all of the Members of this body, to uphold and defend that Constitution, I am not going to sit idly by and watch people trample on it.

Now, I have lived and seen how unchecked power in the hands of bureaucrats can be used to squelch legitimate first amendment exercises. We have seen monitoring of students, preachers and housewives.

I have seen what happens when government protectors think they answer to no one. And, frankly, it is not pretty. I just implore you all to think back to the 1970s,and Americans were shocked to learn about President Nixon's unchecked spying for political advantage.

Americans were similarly dismayed over the legendary J. Edgar Hoover's listening in not only on Dr. King, but many other targets. Those illegal surveillance scandals were, in part, what led to the creation of the select committees of intelligence.

It is our job, Congress's job, to ensure that we effectively oversee the activities of the NSA, the FBI, and the CIA. To the point. This White House bill really does scare me. We would be giving not just President Bush's administration, but every subsequent administration a blank check.

This bill does so much to chip away at the civil liberties and privacy protections built into the Foreign Intelligence Surveillance Act, you will hear it referred to often as FISA, that it could, if passed, have very disastrous effects.

It redefines the definition of surveillance in an irresponsible way. The effect is that the NSA, the FBI, would be able to listen to any call or read any e-mail that comes into or goes out of the United States. So if a soldier overseas calls her husband, NSA can listen in. If a little girl in my home town of Mirimar, Florida, sends an e-mail to her grandmother in Israel, NSA can read it.

If a student at Florida Atlantic University is studying in France and calls her father at home in Ft. Lauderdale, NSA can listen in. Now, that soldier putting her life on the line in Iraq is not a terrorist. The little girl in Mirimar and her grandmother I think we can all assume are not plotting to overthrow anything.

The student at Florida Atlantic and her father I am just guessing have likely not sworn their lives to overthrowing the United States Government.

At the risk of being trite, the White House-drafted bill has more holes than Swiss cheese. Maybe we ought to just call it the Swiss cheese bill. It throws out some pretty broad terms and never defines them.

What is an armed attack? What is an imminent threat or imminent attack? They are not defined in this bill. Yet, the President has broad authority under this bill to do whatever he pleases under these conditions. Footnote right there. Let's make this very clear, not just this administration but succeeding administrations would have this power.

Arguably under this bill, every single day since September 11, 2001, we have been under the imminent threat of a terrorist attack. And if the mover of this bill and the White House get their way, every call and every e-mail, even domestic ones, would be subject to warrantless surveillance.

Allowing this President or any President to conduct warrantless electronic surveillance under these vaguely described circumstances is, simply put, dangerous. You never know how the next President might use or abuse her power when she gets it.

You know, Mr. Speaker, I am fond of quoting Ben Franklin, and so I am going to do it again today. The legendary Ben Franklin said: ``Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.''

This is what we might do today again. This piece of legislation may be one of the most important bills that the House will consider this year or any year, and not one Member of the House, not one, will be able to offer an amendment. That bothers me generally, Mr. Speaker. Today it bothers me specifically.

There was an amendment rejected at the Rules Committee offered by our colleagues, Mr. Schiff and Mr. Flake, that was similar to an amendment that I offered at the Select Committee on Intelligence of the House of Representatives. My amendment simply would have made the Foreign Intelligence Surveillance Act more transparent to the people who depend on it most. It was legislation more or less drafted at their request to clear perceived ambiguity in the current law.

My language would have made it clear, even to the people in President Bush's administration, what constituted domestic spying and what was foreign-based. Yesterday, the distinguished chairman of the Rules Committee, my friend, David Dreier, when he did not permit amendments on this floor said: ``Well, Democrats did not have a substitute.''

Well, today, we have one. And what is your excuse now, Mr. Chairman? Not to worry, it is a rhetorical question. The answer I well know is to squelch democracy here in the United States House of Representatives.

You beat with rulemaking that which you know you cannot beat with reason. And what message does that send to those that would follow our lead, those we are trying to teach our Democracy Assistants Commission? I know what you say: do as we say, not as we do. For today, in the people's House, democracy is being eviscerated by those who recommend it to others.

I have said it before: the way the majority runs the House is shameful. It is hypocritical. It is un-American, and it is undemocratic, and it happens every single day that we have a closed rule, and in other circumstances as well.

Could it be any clearer that America needs a new direction? Stopping, thwarting the will of those of us in the House of Representatives who have a different point of view, or at least should have an opportunity to have discussed a different point of view and have the will of the body make the decision as to whether or not that point of view or the one offered by the majority ought prevail, should be what we should be about in democracy.

Obviously, Mr. Speaker, I urge my colleagues to oppose this closed rule and the White House legislation which brings it to the floor.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 4\1/4\ minutes to the gentleman from Massachusetts (Mr. McGovern).

Mr. Speaker, will the gentleman yield?

Mr. Speaker, when we were in the Rules Committee in those hours of debate, how fast after that discussion when these people presented themselves did the rule come to the floor? In short, was there any deliberation?

Mr. Speaker, I am very pleased to yield 2 minutes to the distinguished gentlewoman from Texas (Ms. Jackson-Lee), my good friend.

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Speaker, I am very pleased to yield 5\1/ 2\ minutes to the distinguished gentleman from California (Mr. Schiff), my friend, who offered an amendment that I offered in the Select Committee on Intelligence.

My good friend, the distinguished gentleman from California, has cited again Franklin and those three other persons. But I would remind him that they did not yield all of their power to the President. They did consider that separation of power.

And Mrs. Wilson stated a minute ago that this bill puts in place rules of the road. The problem is that the rules are optional and the President gets to ignore them essentially whenever.

Mr. Speaker, I am very pleased at this time to yield 1 minute to my good friend, the distinguished gentleman from Ohio (Mr. Kucinich).

Mr. Speaker, I yield 1 minute to my good friend, the distinguished gentlewoman from California (Ms. Lee).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I have some suggestions about implementing every tool at our disposal. The 9/11 Commission would be one.

I would urge the gentleman not to lecture us regarding our commitment. We offered a measure to improve this measure. Everyone wants to catch the same people you are talking about catching. There is no problem in that regard.

Mr. Speaker, I am pleased to yield 3 minutes to the gentleman from Maryland (Mr. Ruppersberger), my colleague on the Intelligence Committee.

Mr. Speaker, I am very pleased to yield 1\1/ 2\ minutes to my very good friend, the gentleman from Massachusetts (Mr. Markey).

Mr. Speaker, I yield myself the balance of my time to close.

Mr. Speaker, I urge Members to vote ``no'' on the previous question. If the previous question is defeated, I will amend the rule to provide that the House will immediately consider legislation that implements the recommendations of the 9/11 Commission, bipartisan commission, that this Congress has ignored up to this time.

Mr. Speaker, I ask unanimous consent to insert the text of the amendment and extraneous materials immediately prior to the vote on the previous question.

Mr. Speaker, we have spent the past few days debating constitutionally suspect bills that are designed, in my opinion, to advance the Republican midterm election political agenda rather than make real progress in the serious war on terror.

The 9/11 Commission gave Congress failing grades for good reason; we have failed to do all we can to protect our citizens. Why don't we take a few hours to debate the proposals that this bipartisan panel of experts has advised would actually make our borders more secure and help us stop the next terrorist attack? A debate like this may not fit into the majority's midterm election strategy, but it might actually lead to some good policy.

Again, I urge a no vote on the previous question, so we can have a debate and vote on the recommendations of the bipartisan 9/11 Commission. Please vote ``no'' on this closed rule.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, it is very sad to say that what we are doing today is simply a march toward the November election. There is a certain calculated plan as to what Republicans need to be able to do to win the House, and obviously it has to do with the security of America.

There is no divide among Democrats and Republicans about our resolve to secure this Nation. Not a one of us in this Congress if asked or if needed to defend this Nation in the immediacy of time would refuse that request.

The reason why there is such a sharp divide is because this is not a serious attempt to secure America. It is, frankly, a serious attempt to eliminate for the American people rights that are a part of their birthright.

This is a closed rule, and I oppose it because security and civil liberties of those who are citizens of the United States can be intertwined, and you can secure the Nation with rights protected, therefore there should have been open rule.

I would have offered an amendment that would have improved the bill immeasurably by striking the golden mean between providing the President the emergency tools needed to respond to an act of war against our country, while at the same time protecting all Americans from the dangerous secret exercise of unchecked and unreviewable power to surveil and search any person deemed by the President to pose a threat to the country. This would have provided the President the authority to conduct surveillance and searches without a warrant for 15 days following either a declaration of war or an authorization for the use of military force.

In addition, it is very clear that the FISA provisions now allow for the President to act without judicial authority. Authority can be given after the fact, and the evidence that is given to the court can be and is secret.

It is worthwhile saying that this, again, is not a question of can we resolve this and give this bill. It is a rush to judgment to ensure that this would be a good political sound bite for Republicans who are running for re-election. This is a bad way to secure America, and I ask my colleagues to oppose this rule because the American people frankly, are not prepared to give up their civil liberties when we can do both-- civil liberties and a secure Nation.

I rise in opposition to this closed rule providing for consideration of H.R. 5825, the Electronic Surveillance Modernization Act. I oppose the rule because it forecloses members from offering constructive amendments that would improve a bill that otherwise will represent an unwarranted and dangerous delegation of authority to the executive branch. Specifically, the bill does not impose limits on the President's powers; it remains silent on the NSA's warrantless surveillance and expands the government's powers under the Foreign Intelligence Surveillance Act to collect information on Americans without judicial review.

This sad state of affairs could have been avoided if the Rules Committee had fashioned an open rule, allowing consideration of amendments of the type I and my colleagues offered during the Judiciary Committee markup.

For example, I offered an amendment that would have provided the President authority to conduct surveillance and searches without a warrant for 15 days following either: (1) a declaration of war; or (2) ``an authorization for the use of military force'' (AUMF) within the meaning of Section 2(c)(2) of the War Powers Act.

This amendment improves the bill immeasurably by striking the golden mean between providing the President the emergency tools needed to respond to an act of war against our country, while at the same time protecting all Americans from the danger of secret exercise of unchecked and unreviewable power to surveil and search any person deemed by the President to pose a threat to the country.

Mr. Speaker, it is worth remembering that while armies fight battles, it is a nation that goes to war. And the Constitution is neither silent nor coy as to where the power to take a nation to war rests: it is vested in the Congress of the United States, not the President.

The power to conduct secret, warrantless surveillance and searches in response to an act of war or a terrorist attack fundamentally is a war power. That is why the acquisition and exercise of that power properly must flow from a congressional declaration of war or authorization to use military force in response to an act of war.

I believe we should have an open rule to permit such an amendment because it keeps faith with the Founding Fathers and honors the Constitution that every member of Congress, and each of our brave troops who risk their lives to keep us free, take an oath to uphold.

Mr. Speaker, H.R. 5825 goes dangerously far afield by authorizing the President to conduct warrantless surveillance and searches for 90 days after ``an armed attack against the territory of the United States,'' or a ``terrorist attack against the United States.'' Moreover, this new surveillance power would extend to U.S. soil, regardless of any nexus to the actual event that triggered the exercise of emergency surveillance authority.

Mr. Speaker, the phrases ``armed attack against the territory of the United States'' and ``terrorist attack against the United States'' are so broad that they can be triggered by nearly any act of violence directed against the interests of the United States, including:

The recent bombing of the U.S. embassy in Syria. If H.R. 5825 were in effect today, we could have a warrant-free environment in the United States right now.

An attack on U.S. armed forces abroad, including any attack on soldiers in Iraq or Afghanistan, which according to press reports, is a daily occurrence.

Mr. Speaker, we do not need to surrender the liberties of the American people in order to protect the security of the American people. As the Framers understood so well when they devised our magnificent Constitution, we can have both liberty and security. All we need is wisdom and good counsel, what the Greeks called ``euboule''. That is what is lacking in this rule and with respect to H.R. 5825, the Electronic Surveillance Modernization Act.

Another amendment that could have been offered if we had an open rule is an amendment that reiterates that FISA is the exclusive procedure and authority for wiretapping Americans to gather foreign intelligence.

In the absence of the reaffirmation of this critically important principle, H.R. 5825 would have the unacceptable consequence of rewarding the President's refusal to follow FISA by exempting him from following these procedures. The effect of this would be to allow any president to make up his own ``rules'' for wiretapping Americans and secretly implementing those rules unless and until a court finds such rules unconstitutional. This would make tangible President Nixon's 1977 claim to David Frost that ``when the president does it that means that it is not illegal.'' By flirting with the misguided and dangerous idea of inherent presidential power to wiretap, H.R. 5825 would resurrect the very provision in the criminal code that President Nixon relied upon in his warrantless wiretaps of countless Americans based on their political views.

The legislative history of FISA provides an important rebuttal to the Administration's claims regarding inherent authority to ignore federal law: ``[E]ven if the president has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted.'' H.R. Rep. No. 95-1283, pt. 1, at 24 (1978).

By eliminating the exclusivity of these procedures, Congress would be acquiescing in the destruction of one of the pillars of FISA that has helped to protect the civil liberties of hundreds of millions of Americans from unilateral spying by the executive branch. To paraphrase the Supreme Court, our Fourth Amendment freedoms cannot properly be guaranteed if electronic surveillance may be conducted solely within the discretion of the president. See United States v. United States District Court, 407 U.S. 297 (1972).

Without such language, H.R. 5825 would undo the Congress' manifest intent in passing FISA, which ``was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.'' (See S. Rep. No. 95-604(1), at 7, 1978 U.S.C.C.A.N. 3904, 3908). By eliminating the requirement that the president follow FISA and get a court order to search based on evidence an American is conspiring with a foreign agent, H.R. 5825 would places our rights at the secret will of the president--any president.

Mr. Speaker, it is more than a truism that real security for the American people comes not from deferring to the President but from preserving the separation of powers and adhering to the rule of law.

I therefore cannot support this closed rule and urge my colleagues to vote against the rule. We have time to come up with a better product and we should. The American people deserve no less.