Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act of 2007

Mr. Speaker, I rise today to express my disappointment regarding the House of Representatives' approval of S. 1927, legislation greatly expanding the Bush Administration's eavesdropping authority beyond even what Administration officials requested. I urge the House Judiciary Committee to promptly consider and report improved legislation that will provide the necessary surveillance authority our intelligence services need to protect our nation, while protecting our citizens' most basic expectation of privacy and fundamental civil liberties that are guaranteed by our constitution. Specifically, the Fourth Amendment to the U.S. Constitution states plainly: ``The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.''

I have been a longstanding supporter of efforts to provide our intelligence and law enforcement agencies with all the necessary tools they need to monitor potential agents with terrorist intentions against the United States. Following the awful terrorist attacks of September 11, 2001, on our country, I joined 356 of my House colleagues to vote for the USA PATRIOT Act of 2001 (P.L. 107-56). The legislation gave federal officials greater authority to track and intercept communications, both for law enforcement and foreign intelligence

gathering purposes. Among other additional provisions, the law also created new crimes, new penalties, and new procedural efficiencies for use against domestic and international terrorists.

The law contained, however, provisions that allowed for enhanced surveillance procedures that many citizens were concerned restricted civil liberties. I subsequently supported several amendments to various appropriations measures that would have improved civil liberties protections, namely: (1) Rep. Bernie Sanders' amendment to fiscal year 2006 Science, State, Justice and Commerce Appropriations Act which would have exempted libraries and bookstores from section 215 of the PATRIOT Act while increasing congressional oversight; and (2) Rep. Butch Otter's amendment to a fiscal year 2004 appropriations measure that would have prevented the use off section 213 of the PATRIOT Act that extended so-called ``sneak and peek'' authority to local police that previously was made available only to foreign intelligence investigators. Previously, police had to ``knock and announce'' their intention of searching before executing any warrant. Even though the Sanders amendment passed the House by a vote of 238-187, and the Otter amendment passed by a vote of 309-118, they both were unfortunately pulled from their respective appropriations measures before they were signed into law by the President.

Several sections of the PATRIOT Act were set to expire on December 31, 2005, unless they were extended. These ``sunset provisions'' included wiretapping privileges, sharing wiretap and foreign intelligence information, FISA authority and jurisdiction, voicemail warrants, and various other powers. On July 21, 2005, the House approved H.R. 3199 by a vote of 257-171. This legislation would have made permanent 14 of the 16 provisions that were set to expire in 2005. The remaining two provisions, involving the government's ability to use roving wiretaps and the government's access to business and library records, were assigned 10-year sunsets, at which point they will either be renewed or will expire. While the majority of the sections remained unchanged, during consideration of this legislation, the House adopted a few measures that would help protect government abuses of civil liberties. Among these were amendments that would require the Director of the FBI to personally review any and all requests for library or bookstore records under Section 215 of the PATRIOT Act, as well as an amendment that would allow the recipient of a national security letter (NSL) to consult with an attorney and challenge the issuance of the letter in court. I voted for both of these amendments. I voted against H.R. 3199, however, because I didn't believe it was a good idea to make permanent policy for the United States concerning our fundamental rights and freedoms during extraordinary times of war. We must never allow terrorists to alter the freedoms that define our country and make us the greatest nation in the world.

On July 29, 2005, the Senate approved legislation that would also make permanent 14 of the 16 provisions set to expire in 2005; however, it would have placed 4-year sunsets on the two remaining provisions and would have placed additional checks on government power that would help ensure the preservation of our valuable civil liberties. These two pieces of legislation were sent to a House-Senate conference committee to resolve their differences; In December 2005, a new agreement was reached in conference proposing 4-year expiration dates for the two provisions involving the government's ability to use roving wiretaps and the government's access to business and library records, as well as a 4-year sunset to a provision in the 2004 intelligence overhaul law (P.L. 108-458) that allows law enforcement to seek warrants against ``lone wolf'' terrorists not connected to foreign powers. On December 14, 2005, the House agreed to the conference report by a vote of 251- 174. I voted for the final version of the legislation because I was satisfied with the shorter expirations on some of the more contentious provisions and I was concerned about the possible effect on our national security if these provisions of the PATRIOT Act were allowed to expire.

After being approved in the House, however, several members of the Senate remained concerned about the government's ability to acquire records and obtain administrative search warrants. Several Senators later announced an agreement they had reached with the White House, to make three changes to the previously agreed-to conference report relating to the government seizure of records. Specifically, these changes: (1) Allow recipients of a business records request to challenge a gag order, although to overturn it they would have to wait one year and prove the government acted in ``bad faith''; (2) remove a requirement that recipients of national security letters, which do not require court approval, disclose the name of any attorney they consult or intend to consult; and (3) clarify language in the 2001 law to ensure that libraries operating in traditional roles and not as Internet service providers would not be subject to national security letters. The House later agreed to these amendments by a vote of 280- 138, which I supported. On March 9, 2006, President Bush signed the final version of H.R. 3199 (P.L. 109-177) and the S. 2271 amendments (P.L. 109-178) into law.

In order to effectively fight the war on terror we need intelligence, but this intelligence should be gathered in a legal manner and consistent with our constitution. Traditionally, the NSA's intelligence-gathering role has been limited to intercepting international communications as part of the government's foreign spying activities. Under the 1978 Foreign Intelligence Surveillance Act (FISA, P.L. 95-511), the federal government is required to obtain a warrant to conduct domestic wiretaps, but the NSA program disclosed by President Bush and his administration appears to have operated outside the FISA law.

In the 109th Congress, Rep. Heather Wilson introduced H.R. 5825, the Electronic Surveillance Modernization Act. This legislation would have given the President expanded authority to authorize electronic surveillance of communications by suspected terrorists without first obtaining approval from the FISA court. Specifically, it allowed the President to authorize warrantless electronic surveillance for up to 90 days in three circumstances--an armed attack against the United States, a terrorist attack against the United States, or if there is an ``imminent threat'' that is likely to cause death or widespread harm. The measure also would have extended the amount of time intelligence agencies can conduct warrantless electronic surveillance in ``emergency situations'' to seven days, from the current three-day limit.

The FISA law then contained certain exceptions for intelligence operations on U.S. soil--it permitted the president to authorize the Justice Department to conduct electronic surveillance or physical searches without approval by the FISA court to gather foreign intelligence for up to 15 days after Congress enacted a declaration of war. In addition, it allowed the federal government to conduct electronic surveillance without the court's approval in ``emergency situations,'' provided that the government seeks approval from the FISA court within three days of initiating emergency surveillance.

The Electronic Surveillance Modernization Act, however, represented a significant departure from the protections put in place under FISA in 1978. Nowhere in the Foreign Intelligence Surveillance Act does it state that the president can bypass the process of seeking a court order to spy on American citizens through an executive order. I was concerned that this legislation was a political attempt to retroactively justify the President breaking the law. I fully believe that if the President followed the law and approached the FISA court and Congress for approval of such programs, that Congress and the FISA court would gladly give the President the powers he needs to combat terrorism. For these reasons, I voted against H.R. 5825 when it was brought to the House floor for a vote on September 28, 2006. This legislation was approved in the House by a vote of 232-191, but did not receive a vote in the Senate, effectively killing the legislation in the last Congress.

Attorney General Alberto Gonzales announced on January 17, 2007, that the FISA court authorized and issued orders on January 10, 2007, granting wiretaps that the Administration requested. Subsequently, the Justice Department has shared those classified documents with the House and Senate Intelligence Committees, as well as the Chairmen and Ranking Members of the House and Senate Judiciary Committees.

The U.S. Department of Justice's Office of the Inspector General released a 126-page audit report on March 9, 2007, entitled ``A Review of the Federal Bureau of Investigation's Use of National Security Letters.'' In this report, it was revealed that FBI agents were using national security letters to obtain personal information such as phone, internet, and financial records of individuals without court orders. The audit also found that 22 percent of these letters were not recorded and of those that were recorded, some were issued without proper authority. Senators Arlen Specter and Patrick Leahy have voiced concern over the findings of this report. I am deeply troubled by this report and strongly believe vital intelligence should be gathered in a manner that is fully consistent with our laws and constitution.

The congressional leadership spent many months in 2007 negotiating a reauthorization of the FISA law with the Bush Administration and Admiral Michael McConnell, Director of National Intelligence (DNI). Both Democrats and Republicans agree that we need to update the FISA law to incorporate new technologies, such as cell phones and e-mail, which did not exist when the original FISA law was written. Prior to the August District Work Period, the Bush Administration pressed the

congressional leadership to pass a short-term FISA update. During negotiations, Director McConnell told the congressional leadership that he supported several technical changes that: (1) allowed foreign targets to be added a ``basket warrant'' after the warrant was approved; (2) expanded the draft bill to apply to ``all foreign intelligence'' from only intelligence ``relating to terrorism''; and (3) eliminated the requirement that the FISA court adjudicate how recurring communications into the United States from foreign targets would be handled. Following these improvements to the draft bill, the DNI told congressional leadership that with these changes, he could support the bill because it would ``significantly enhance America's security.'' I voted for the final version of this legislation, H.R. 3356, the Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act of 2007. Even though a majority (218- 207) voted in favor of H.R. 3356, the bill did not pass as it was considered under suspension of the rules (2/3 vote to approve required).

The Senate passed a much different version of FISA legislation, S. 1927, the Protect America Act sponsored by Senators Mitch McConnell and Kit Bond. This legislation greatly exceeds what the Bush Administration requested in legislation, providing a virtual blank check for intelligence agencies to eavesdrop, including on the conversations of U.S. citizens, with essentially no oversight by the FISA court or Congress. The legislation allows the U.S. Attorney General to decide when to eavesdrop on any e-mail message or phone call without a warrant, so long as one of the people communicating is ``reasonably believed'' to be outside the country. That is a vague term that the Administration is allowed to interpret however they want, greatly expanding its surveillance powers, while the legislation does not provide the courts with any real power to supervise this surveillance. Proponents of S. 1927 point out that the legislation has a six month sunset and will expire in February 2009. This sunset is artificial, as the orders in effect in February 2009 could last for up to a year, essentially for the remainder of the Bush Administration with no oversight. For these reasons, I voted against S. 1927 when the House considered the measure on August 4, 2007. The House approved the legislation by a vote of 227-183, and the President signed it into law on August 5, 2007 (P.L. 110-55).

Speaker Nancy Pelosi wrote a letter to Judiciary Chairman John Conyers and Select Intelligence Chairman Silvestre Reyes on August 4, 2007, urging that the House of Representatives should consider comprehensive FISA reauthorization legislation. I agree with her statement that: ``Many provisions of this legislation are unacceptable, and although the bill has a six-month sunset clause, I do not believe the American people will want to wait that long before corrective action is taken.''

As a co-equal branch of government, it is necessary that Congress fully understand how the Bush Administration executes intelligence activities in order to exercise proper oversight. I look forward to working with my colleagues in Congress to ensure that law enforcement agencies have strong, flexible tools to intercept the communications of terrorists, and at the same time protect our citizens' civil liberties from unwarranted government probing.

Madam Speaker, while I will not oppose this bill, even though it has not gone through regular order in the committee process, I continue to have serious reservations about further putting off the critical issue of FISA modernization. I also have significant concern with the failure of the majority to ensure a long-term and effective solution to the critical problem of ensuring that our intelligence community has the tools that it needs to detect and protect potential terrorists.

Last August, Congress acted on an overwhelming bipartisan basis after months of prodding to pass the Protect America Act and close significant intelligence gaps against foreign terrorists in foreign countries. The failure to clarify the authorities of our intelligence professionals on a long-term basis had clearly jeopardized America's ability to detect and prevent potential terrorist attacks and to effectively collect intelligence on foreign adversaries.

The Protect America Act expires on Friday, February 1. This temporary extension will now push that date to February 15. While elements of surveillance under the Protect America Act could have temporarily continued without an extension, the failure to act permanently on the lapsing authorities still ultimately threatens the capabilities of the intelligence community to react with speed and agility to new threats and changing circumstances.

We cannot continue to make excuses. We cannot continue to avoid our responsibility to deal with this vital issue. National security should not be on a week-to-week lease. I think both the President and Members on our side of the aisle have made clear that our patience with further delays to this vital legislation will be extremely limited.

Democrats have failed to do their job on this critical national security issue, even after Speaker Pelosi boasted last August that they would act as soon as possible. Their partisanship on this issue clearly has failed. A bipartisan Senate solution, acceptable to the President, has been available for weeks, but has been held up by liberal activists over the issue of retroactive liability for third parties who may have helped the government to detect potential terrorists.

Madam Speaker, columnist Stuart Taylor recently pointed out that holding the private sector hostage to ideological extremism is a ``risky game.'' It is a risky game for our national security and may chill cooperation in future emergencies. He wrote: ``Most Americans would want the telecoms to say yes without hesitation. But the telecoms would have reason to say no, or delay for a few dangerous days to consult their lawyers, if liberals get their way in a battle currently raging in Congress.''

[From the National Journal, Jan, 19, 2008]

Holding Telecoms Hostage: A Risky Game

(By Stuart Taylor, Jr.)

Suppose that the next big terrorist attack on our country

comes two weeks after a new Democratic president has taken

office. Simultaneous suicide bombings devastate 20 schools

and shopping malls around the country, killing 1,500 people.

The intelligence agencies believe that at least 20 more

trained jihadists, including American citizens, are in the

United States planning follow-up attacks.

The president is told that the best hope of stopping a

second wave of attacks is to immediately wiretap as many

calls and e-mails as possible from and to every private

citizen who has been to Pakistan or Afghanistan since 1999.

These hundreds of domestic wiretaps, with neither warrants

nor probable cause to suspect any individual of terrorist

ties might well violate the Foreign Intelligence Surveillance

Act.

The president nonetheless asks the major telephone

companies to place the taps for 30 days while the

administration seeks congressional approval. He or she also

assures the telecoms in writing that the new attorney general

has advised that the Constitution empowers the president to

temporarily override FISA during such an emergency--a

controversial theory never tested in court.

Most Americans would want the telecoms to say yes without

hesitation. But the telecoms would have reason to say no--or

delay for a few dangerous days to consult their lawyers--if

liberals and libertarians get their way in a battle currently

raging in Congress.

The issue is whether to immunize these same telecoms

retroactively, as President Bush and a bipartisan majority of

the Senate Select Committee on Intelligence (including

Chairman Jay Rockefeller IV) urge, from liability for having

said yes to Bush's warrantless surveillance program during

the unprecedented national crisis precipitated by the 9/11

attacks.

The telecoms face more than 40 class actions seeking

hundreds of billions of dollars in damages for their roles in

the Bush program, which they agreed to after being assured

that the attorney general had deemed the program lawful.

Allowing this litigation to continue would, as a group of

highly respected former Justice Department officials wrote in

a joint letter to the Senate Judiciary Committee, ``produce

perverse incentives that risk damage to our national

security,'' because ``both telecommunications carriers and

other corporations in the future will think twice before

assisting any agency of the intelligence community seeking

information.''

This particular group includes Jack Goldsmith, James Comey,

Patrick Philbin, and John Ashcroft. They (especially the

first three) won bipartisan applause for leading a rebellion

in 2004 against overreaching claims of power by Bush, who

chose to secretly override FISA not just for a few weeks but

for years.

``Given our experiences,'' the former officials wrote, ``we

can certainly understand that reasonable people may question

and wish to probe the legal bases for such intelligence

activities.'' But the proper forum is the congressional

oversight process, they asserted, not ``a public lawsuit

against private companies that were asked to assist their

nation.''

Such leading Democrats as former Sen. Bob Kerrey, former

Rep. (and 9/11 commission Co-Chair) Lee Hamilton, and former

Attorney General Benjamin Civiletti have also called for

immunizing the telecoms.

On the other hand, People for the American Way, like other

liberal groups, argues that immunity would ``protect telecoms

that knowingly violated law.'' But the telecoms did not

violate the law--even if Bush did--according to an October

26, 2007, Senate Intelligence Committee report urging

adoption of the immunity proposal as part of an important

bill updating FISA.

The committee, after forcing the administration to show

investigators the relevant presidential and Justice

Department documents, found that the record showed that the

telecoms ``acted on a good-faith belief that the president's

program, and their assistance, was lawful.'' Courts have for

centuries seen such a good-faith belief as grounds for

immunizing from lawsuits private parties that heed government

officials' requests for help in protecting public safety,

especially in emergencies.

And, in fact, hardly anyone in Congress thinks that the

telecoms should (or will) be forced to pay huge damages to

the plaintiffs, who after all have suffered no real harm. So

why are some senators, including Patrick Leahy, the Senate

Judiciary Committee's senior Democrat, fighting the immunity

proposal?

The real reasons are election-year pressure from liberal

groups and the hope that the lawsuits will force public

disclosure of information embarrassing to the Bush

Administration. Leahy said in a press release that he opposed

giving retroactive immunity to the telecoms because that

would reduce their incentives to protect privacy and ``would

eliminate the courts as a check on the illegality of the

warrantless wiretapping of Americans that the administration

secretly engaged in for almost six years.''

Leahy may well be right that some aspects of the highly

classified wiretapping program were illegal. Indeed,

Goldsmith, who took over the Justice Department's Office of

Legal Counsel in late 2003 and later touched off the above-

mentioned rebellion, has publicly called the still-secret OLC

surveillance memos that he inherited a ``legal mess.''

In my own view, Bush's decision to secretly override FISA

for a time immediately after 9/11 was probably a lawful

exercise of his war powers. But his legal rationale became

weaker and weaker when he continued to override the law for

months and years without seeking congressional approval.

It is one thing to say that the president has inherent

power to disregard an outdated law during an emergency in

which immediate action might save many lives. It is something

else to say that the president can secretly continue to

disregard that law for several years without ever seeking to

amend it. (See my 1/28/06 column.)

But doubts about the legality of Bush's actions are no

justification for holding hostage telecoms that relied on the

administration's assurances of legality and were in no

position to second-guess its assertions that the surveillance

program was essential to national security.

Not, that is, unless we want to risk that the telecoms,

credit card companies, banks, airlines, hospitals, and other

private companies--whose cooperation is essential to finding

terrorists before they strike--will balk or delay when the

next president seeks their help in an emergency.

And to keep things in perspective, let's remember that even

if Bush did violate the law, the terrorist groups targeted by

his surveillance program have taken thousands of American

lives; that the program itself has apparently caused no

serious harm to anyone (except terrorists); and that no

evidence exists that Bush or anyone else has ever made

any improper use of any intercepted communications.

Opponents of immunity say that the telecoms have nothing to

fear in court if they can show that they acted lawfully. And

it does seem most unlikely that the telecoms would ultimately

lose; the lawsuits face huge obstacles, including the state

secrets privilege and doubts about the plaintiffs' standing

to sue, as well as the strong evidence that the telecoms

acted lawfully.

But even a remote risk of massive liability for doing the

right thing in the past might deter some from doing the right

thing in the future. And in the vast, interminable,

unpredictable, often perverse meat grinder that high-stakes

litigation has become in this country, victory in court would

come only after many years of expensive legal battles,

uncertainty, downward pressure on stock prices, and publicity

damaging to the telecoms' international business interests.

This prospect might drive them to accept a nuisance

settlement that would yield millions of dollars for the

plaintiffs' lawyers and very little for anyone else. Indeed,

that's what many plaintiffs' lawyers are hoping for.

Some senators and others have proposed ways to relieve the

telecoms of monetary liability while keeping the litigation

alive to force a healthy public airing of information about

what Bush and his aides did. One such proposal would have the

government cover any damage awards; another would place a

very low cap on any damages; a third would ask the FISA court

to decide whether the telecoms broke the law. Such expedients

would be better than no protection at all. But they would not

give the telecoms the finality and the relief from litigation

costs that they want and deserve.

In any event, it seems unlikely that any kind of litigation

against the telecoms will yield much new information about

what Bush and his aides did. The main reason is that any such

evidence is probably inextricably intertwined with

operational details of the surveillance, which are highly

(and properly) classified. And lawsuits against the

government, which would be unaffected by immunizing the

telecoms, would be a more logical vehicle for exposing

whatever can properly be exposed.

But the bottom line is that a remote chance of exposing any

Bush misconduct is simply not a good enough reason to run

even a small risk of losing potentially lifesaving

intelligence. And it's simply unfair to hold hostage private

companies that thought they were helping to save lives and

did nothing wrong.

Partisan political points and the nonexistent rights of radical jihadists shouldn't be more important than giving the most effective tools to the intelligence community to detect and prevent attacks. As soon as the Senate passes this comprehensive bipartisan bill, the House should consider it immediately in order to send a responsible bill to the President as quickly as possible.

There is bipartisan agreement that Congress must act immediately to ensure a long-term effective solution that empowers intelligence community professionals to act with speed and agility against foreign targets, provides retroactive liability protection for third parties who may have assisted the government after 9/11, and ensures that court orders will continue to be required for any surveillance targeting Americans.

We should stop the bipartisan obstructionism and move forward with permanent legislation to fully ensure the protection of the American people and their civil rights.

Mr. Speaker, I rise in strong support of H.R. 3773, the ``Responsible Electronic Surveillance That Is Overseen, Reviewed, and Effective Act of 2007.'' I support this legislation, the RESTORE Act, because it corrects the damage done by the misnamed Protect America Act and restores this Nation's commitment to the rule of law, the dignity of the individual, and the separation of powers. This legislation is worthy of an aye vote from all Members because it restores allegiance to the Constitution and gives our intelligence agencies all the tools they need to conduct the foreign surveillance necessary to keep our country safe.

Mr. Speaker, in August of this year, I strongly opposed S. 1927, the so-called ``Protect America Act'' (PAA) when it came to a vote on the House floor. And I was a very reluctant supporter of H.R. 3356, the House alternative that attracted a majority of votes, but not a two- thirds super-majority, on the House floor. Had the Bush Administration and the Republican-dominated 109th Congress acted more responsibly in the two preceding years, we would not have been in the position of debating legislation that had such a profoundly negative impact on the national security and on American values and civil liberties in the crush of exigent circumstances. As that regrettable episode clearly showed, it is true as the saying goes that haste makes waste.

The PAA was stampeded through the Congress in the midnight hour of the last day before the long August recess on the dubious claim that it was necessary to fill a gap in the Nation's intelligence gathering capabilities identified by Director of National Intelligence Mike McConnell. But in reality it would have eviscerated the Fourth Amendment to the Constitution and represented an unwarranted transfer of power from the courts to the Executive Branch and a Justice Department led at that time by an Attorney General whose reputation for candor and integrity was, to put it charitably, subject to considerable doubt.

The legislation before us, the RESTORE Act, H.R. 3773 is superior to the PAA by orders of magnitude. This is due in no small measure, Mr. Speaker, to the willingness of the leadership to reach out to and work with all members of the House. The result shows. The RESTORE Act does not weaken our Nation's commitment to its democratic traditions. Rather, it represents a sound policy proposal for achieving the only legitimate goals of a terrorist surveillance program, which is to ensure that American citizens and persons in America are secure in their persons, papers, and effects, but terrorists throughout the world are made insecure. Let me direct the attention of all members to several of the more important aspects of this salutary legislation.

First, H.R. 3773 explicitly affirms that that the exclusive law to follow with respect to authorizing foreign surveillance gathering on U.S. soil is the Foreign Intelligence Surveillance Act (FISA). As initially enacted by Congress in 1978, the exclusivity of FISA was undisputed and unambiguous. I hasten to add, however, that while FISA remains the exclusive source of law, H.R. 3773 recognizes that the law as enacted in 1978 can and should be adapted to modern circumstances and to accommodate new technologies. And it does so by making clear that foreign to foreign communications are not subject to the FISA, even though modern technology enables that communication to be routed through the United States.

Second, under H.R. 3773, the Foreign Intelligence Surveillance Court (FISC) is indispensable and is accorded a meaningful role in ensuring compliance with the law. The bill ensures that the FISC is empowered to act as an Article III court should act, which means the court shall operate neither as a rubber- stamp nor a bottleneck. Rather, the function of the court is to validate the lawful exercise of executive power on the one hand, and to act as the guardian of individual rights and liberties on the other.

Third, the bill does not grant amnesty to any telecommunications company or to any other entity or individual that helped Federal intelligence agencies spy illegally on innocent Americans. I strongly support this provision because granting such blanket amnesty for past misconduct will have the unintended consequence of encouraging telecommunications companies to comply with, rather than contest, illegal requests to spy on Americans. The only permissible path to legalization of conduct in this area is full compliance with the requirements of the Foreign Intelligence Surveillance Act.

Moreover, Mr. Speaker, it is important to point out that the loudest demands for blanket immunity comes not from the telecommunications companies but from the Administration, which raises the interesting question of whether the Administration's real motivation is to shield from public disclosure the ways and means by which government officials may have ``persuaded'' telecommunications companies to assist in its warrantless surveillance programs. I call my colleagues' attention to an article published in the Washington Post last Sunday, in which it is reported that Joseph Nacchio, the former CEO of Qwest, alleges that his company was denied NSA contracts after he declined in a February 27, 2001 meeting at Fort Meade with National Security Agency (NSA) representatives to give the NSA customer calling records.

Mr. Speaker, the authorization to conduct foreign surveillance on U.S. soil provided by H.R. 3773 is temporary and will expire in 2 years if not renewed by the Congress. This is perhaps the single most important limitation on the authority conferred on the Executive Branch by this legislation. The good and sufficient reason for imposing this limitation is because the threats to America's security and the liberties of its people will change over time and thus require constant vigilance by the people's representatives in Congress.

To give a detailed illustration of just how superior the RESTORE Act is to the ill-considered and hastily enacted Protect America Act, I wish to take a few moments to discuss an important improvement in the bill that was adopted in the full Judiciary Committee markup.

The Jackson-Lee Amendment added during the markup made a constructive contribution to the RESTORE Act by laying down a clear, objective criterion for the Administration to follow and the FISA court to enforce in preventing reverse targeting.

``Reverse targeting,'' a concept well known to members of this Committee but not so well understood by those less steeped in the arcana of electronic surveillance, is the practice where the government targets foreigners without a warrant while its actual purpose is to collect information on certain U.S. persons.

One of the major concerns that libertarians and classical conservatives, as well as progressives and civil liberties organizations, have with the PAA is that the understandable temptation of national security agencies to engage in reverse targeting may be difficult to resist in the absence of strong safeguards in the PAA to prevent it.

My amendment reduces even further any such temptation to resort to reverse targeting by requiring the administration to obtain a regular, individualized FISA warrant whenever the ``real'' target of the surveillance is a person in the United States.

The amendment achieves this objective by requiring the administration to obtain a regular FISA warrant whenever a ``significant purpose of an acquisition is to acquire the communications of a specific person reasonably believed to be located in the United States.'' The current language in the bill provides that a warrant be obtained only when the Government ``seeks to conduct electronic surveillance'' of a person reasonably believed to be located in the United States.

It was far from clear how the operative language ``seeks to'' is to be interpreted. In contrast, the language used in my amendment, ``significant purpose,'' is a term of art that has long been a staple of FISA jurisprudence and thus is well known and readily applied by the agencies, legal practitioners, and the FISA Court. Thus, the Jackson- Lee Amendment provides a clearer, more objective, criterion for the administration to follow and the FISA court to enforce to prevent the practice of reverse targeting without a warrant, which all of us can agree should not be permitted.

Let us be clear, Mr. Speaker, that nothing in the bill or in my amendment requires the Government to obtain a FISA order for every overseas target on the off chance that they might pick up a call into or from the United States. Rather, the bill requires, as our amendment makes clear, a FISA order only where there is a particular, known person in the United States at the other end of the foreign target's calls in whom the Government has a significant interest such that a significant purpose of the surveillance has become to acquire that person's communications.

This will usually happen over time, and the Government will have the time to get an order while continuing its surveillance. And it is the national security interest to require it to obtain an order at that point, so that it can lawfully acquire all of the target person's communications rather than continuing to listen to only some of them.

The Jackson-Lee amendment gives the Government precisely what Director of National Intelligence McConnell asked for when he testified before the Senate Judiciary Committee: ``It is very important to me; it is very important to members of this Committee. We

should be required--we should be required in all cases to have a warrant anytime there is surveillance of a US [sic] person located in the United States.''

In short, the Jackson-Lee amendment makes a good bill even better. For this reason alone, civil libertarians should enthusiastically embrace the RESTORE Act.

Nearly 2 centuries ago, Alexis de Tocqueville, who remains the most astute student of American democracy, observed that the reason democracies invariably prevail in any martial conflict is because democracy is the governmental form that best rewards and encourages those traits that are indispensable to martial success: initiative, innovation, resourcefulness, and courage.

Mr. Speaker, the best way to win the war on terror is to remain true to our democratic traditions. If it retains its democratic character, no nation and no loose confederation of international villains will defeat the United States in the pursuit of its vital interests.

Thus, the way forward to victory in the war on terror is for the United States country to redouble its commitment to the Bill of Rights and the democratic values, which every American will risk his or her life to defend. It is only by preserving our attachment to these cherished values that America will remain forever the home of the free, the land of the brave, and the country we love.

Madam Speaker, I move to suspend the rules and pass the bill (H.R. 3356) to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain electronic surveillance.

Madam Speaker, I ask unanimous consent that all Members have 5 legislative days to revise and extend their remarks and include extraneous material on the bill under consideration.

Madam Speaker, I yield 10 minutes to the distinguished gentleman from Texas, Silvestre Reyes, chairman of the Committee on Intelligence, and ask unanimous consent that he be allowed to control that time.

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

There probably is no Member in this body who has a greater concern about civil rights and civil liberties than this Member. It is a cause I have worked on for all of my years in this body, and it is one that goes to the very heart of the protections provided under the Constitution and our Bill of Rights.

I am equally sensitive to the need to protect our Nation from terrorism and terrorists. I have chaired recently three classified briefings on this matter in the last week and have spent the last period of time seeking to forge common ground on this issue.

That is why we are here today, to ensure that our government has the tools it needs to respond to the threat of terrorism, while at the same time respecting our citizens' right to privacy.

That is why the bill before us permits the Attorney General to apply to the FISA court to obtain a basket of warrants for the surveillance aimed outside of the United States. That is why we provide an emergency exception. That is why we specify that foreign-to-foreign communications do not require a court order. These are all changes to current law that will help our Nation respond to the threat of terrorism.

At the same time, however, the legislation is respectful of our civil liberties. That is why we sunset the bill in 4 months, to see if this stop gap approach is working, how it is working, and allow us to gather further information. That is why we require that the court approve international surveillance procedures. That is why we insist on periodic audits. None of these safeguards exist under the current law, and all will serve to protect our precious rights and liberties.

The bill before us today responds to each and every concern raised by the distinguished Director of National Intelligence in our negotiations. In particular, yesterday he asked us to make three changes: expanding the bill to cover foreign intelligence; allowing the administration to approve guidelines for recurring communications; and allowing additional foreign targets to be added to the warrant by the court. I was concerned that some of these changes may have gone too far, but in the spirit of accommodation we made all three changes. Sometimes people simply don't want to accept ``yes'' for an answer.

I urge every Member in this body to support this important and balanced measure.

Madam Speaker, I include for the Record today's New York Times editorial entitled ``Stampeding Congress, Again.''

[From the New York Times]

Stampeding Congress, Again

Since the 9/11 terrorist attacks, the Bush administration

has repeatedly demonstrated that it does not feel bound by

the law or the Constitution when it comes to the war on

terror. It cannot even be trusted to properly use the

enhanced powers it was legally granted after the attacks.

Yet, once again, President Bush has been trying to stampede

Congress into a completely unnecessary expansion of his power

to spy on Americans. And, hard as it is to believe,

Congressional Republicans seem bent on collaborating, while

Democrats (who can still be cowed by the White House's with-

us-or-against-us baiting) aren't doing enough to stop it.

The fight is over the 1978 Foreign Intelligence

Surveillance Act, which requires the government to obtain a

warrant before eavesdropping on electronic communications

that involve someone in the United States. The test is

whether there is probably cause

to believe that the person being communicated with is an

agent of a foreign power or a terrorist.

Mr. Bush decided after 9/11 that he was no longer going to

obey that law. He authorized the National Security Agency to

intercept international telephone calls and e-mail messages

of Americans and other residents of this country without a

court order. He told the public nothing and Congress next to

nothing about what he was doing, until The Times disclosed

the spying in December 2005.

Ever since, the White House has tried to pressure Congress

into legalizing Mr. Bush's rogue operation. Most recently, it

seized on a secret court ruling that spotlighted a technical

way in which the 1978 law has not kept pace with the Internet

era.

The government may freely monitor communications when both

parties are outside the United States, but must get a warrant

aimed at a specific person for communications that originate

or end in his country. The Los Angeles Times reported

yesterday that the court that issues such warrants recently

ruled that the law also requires that the government seek

such an individualized warrant for purely foreign

communications that, nevertheless, move through American data

networks.

Instead of asking Congress to address this anachronism, as

it should, the White House sought to use it to destroy the

1978 spying law. It proposed giving the attorney general

carte blanche to order eavesdropping on any international

telephone calls or e-mail messages if he decided on his own

that there was a ``reasonable belief'' that the target of the

surveillance was outside the United States. The attorney

general's decision would not be subject to court approval or

any supervision.

The White House, of course, insisted that Congress must do

this right away, before the August recess that begins on

Monday--the same false urgency it used to manipulate Congress

into passing the Patriot Act without reading it and approving

the appalling Military Commissions Act of 2006.

Senator Jay Rockefeller, the chairman of the Senate

Intelligence Committee, offered a sensible alternative law,

as did his fellow Democrat, Senator Russ Feingold. In either

case, the attorney general would be able to get a broad

warrant to intercept foreign communications routed through

American networks for a limited period. Then, he would have

to justify the spying in court. This fix would have an

expiration date so Congress could then dispassionately

consider what permanent changes might be needed to FISA.

Congress was debating this issue yesterday, and the final

outcome was unclear. But there are very clear lines that must

not be crossed.

First, all electronic surveillance of communication that

originates or ends in the United States must be subject to

approval and review by the FISA court under the 1978 law.

(That court, by the way, has rejected only one warrant in the

last two years.)

Second, any measure Congress approves now must have a firm

expiration date. Closed-door-meetings under the pressure of a

looming vacation are no place for such serious business.

The administration and its Republican supporters in

Congress argue that American intelligence is blinded by FISA

and have seized on neatly timed warnings of heightened

terrorist activity to scare everyone. It is vital for

Americans, especially law-makers, to resist that argument. It

is pure propaganda.

This is not, and has never been, a debate over whether the

United States should conduct effective surveillance of

terrorists and their supporters. It is over whether we are a

nation ruled by law, or the whims of men in power. Mr. Bush

faced that choice and made the wrong one. Congress must not

follow him off the cliff.

I reserve the balance of my time.

I am now pleased to recognize the chairman of the Constitution Subcommittee, the gentleman from New York, Jerry Nadler, for 1 minute.

Madam Speaker, I am happy to yield to the Chair of the Immigration subcommittee in the House of Representatives Judiciary Committee, Zoe Lofgren of California, 1 minute.

Madam Speaker, I am pleased to now yield 1 minute to the distinguished member of the Judiciary, Mr. Adam Schiff.

Madam Speaker, I yield myself 30 seconds.

I want to relieve the tensions of my friend from Michigan. Foreign to foreign does not require a warrant. I don't know how many times I am going to have to say that. Foreign to foreign does not require a warrant.

The second thing that will make you much happier than you are now: Basket warrants authorized by the court make it easier to get warrants, not harder, Mr. Rogers.

Madam Speaker, I am happy to yield 1 minute to Jane Harman from California, the former ranking member on the Intelligence Committee for many years.

Madam Speaker, I am pleased now to recognize the chairman of the Crime Subcommittee on Judiciary, the distinguished gentleman from Virginia, Bobby Scott, for 1 minute.

Madam Speaker, I am pleased now to yield 30 seconds to the gentlewoman from California (Ms. Pelosi), the honorable Speaker of the House.

Madam Speaker, it is my pleasure to yield the remaining time that I have to the gentlewoman from Texas (Ms. Jackson-Lee).

I thank the gentleman for yielding.

As has been stated on this floor, this is an extraordinary and important development and even more important issue.

I want to comment first on the involvement of Mr. Reyes, Mr. Conyers, myself, the Speaker, and others. I have met on at least three occasions with my friend, Mr. Blunt. Every time we made a draft, I took it to him and discussed it with him. This was not something that I thought ought to be done on a partisan basis.

I talked to the Director of National Intelligence on at least five different occasions individually and then in a conference call with Senator Rockefeller and Senator Levin, Mr. Reyes, Mr. Reid, the Speaker and myself. We talked over a number of hours. The conversation did not last hours. From time to time, we hung up and the DNI went to contact people.

Mr. Speaker, we have spent a substantial amount of time trying to reach what our Founding Fathers wanted us to reach, and that was a balance of power, a balance of making sure that our country was secure and making sure that our individuals were secure. That's what our Founding Fathers were all about. They didn't want King George knocking on the door and coming in just because he wanted to come in. They thought that King George needed to be restrained. So

they set up a separation of powers, they set up a judiciary and they set up a Constitution, and 10 amendments thereafter.

Mr. Speaker, our highest duty, as Members of this body, is to defend our Nation, protect our people and uphold the Constitution of the United States, as we've talked about. And one has to be thoughtful in doing that because, at times, it would appear that those three duties may be in conflict with one another. It is our job to harmonize those to accomplish all three objectives. That is, we have a duty to keep this Nation safe from those who seek to harm us.

And let there be no doubt, there are terrorists who seek to harm us. They have harmed us. They are people that we need to stop. They are people that we need to identify. They are people whom we need to act against. And, yes, a duty to ensure that our government abides by the principles upon which it was founded.

In 1978, as has been said, this Congress enacted the Foreign Intelligence Surveillance Act in an effort to balance these critical interests. It is with these principles in mind that we bring this bill to the floor to immediately fill the intelligence gap described to Congress by the Director of National Intelligence.

Among other things, this legislation clarifies that no court order is required, as has been said over and over and over again, to intercept and conduct surveillance on foreign-to-foreign communications that pass through the United States. That's a new technological reality, because that switch is here and so we needed to accommodate that.

The Director of National Intelligence discussed that with us. We made a change in the legislation that was proposed to accommodate that, and he was positive with respect to that change. I do not say he supported that change; I say he was positive.

It reiterates that individual warrants based on probable cause are required when surveillance is directed at people within the United States, not incidental contacts but directed at people in the United States.

It provides for an initial 15-day emergency authority so that international surveillance may begin immediately, so that we can empower the DNI to act now, and it allows for up to two 15-day extensions while the court considers the approval of surveillance procedures.

No one should be surprised that this majority is concerned about the actions of the administration after the last 4 years. The courts have been concerned. And the courts have acted because they did not believe that the administration was acting consistently with the duty to uphold and protect the laws and Constitution of this country.

That ought to be a serious concern. Frankly, it ought to be a very serious concern for those who label themselves conservatives, who have historically been the most outspoken in their fear of Government exercise of power and their concern for the constraint on the use of that power.

Our legislation also compels the cooperation of communications carriers during emergency periods, while it extends liability protection to those who assist in this intelligence-gathering effort. This was a very important provision. We understood that. It is controversial. But we thought it was important.

The legislation also requires the Inspector General of the Department of Justice to conduct an audit every 60 days of communications involving Americans that are intercepted under ``basket warrants,'' because we know those basket warrants are going to be just that, broad- reaching, because we wanted to give the DNI the authority to reach broadly and not be slowed down bureaucratically by individual requests. But we also thought that we needed to protect those individuals with an aftercheck, if you will, by the Inspector General. We think that is fair. We think conservatives ought to be for that. We think liberals ought to be for that. We think the American people are for that.

Finally, the legislation provides that these provisions sunset in 120 days, because it is imperative that we consider issues of this magnitude in a thoughtful manner.

We have been working hard. I said how often I have talked to the DNI, how often I have been in meetings, and how recently I was in meetings with the DNI. It is imperative that we consider these issues consistent with the magnitude that they present, not only for the safety of our people, but for the integrity of our Constitution and laws.

Now, some will say this bill doesn't go far enough. That may be so. And we ought to thoughtfully consider that in the months ahead as the committee, the ranking member, Republicans and Democrats, consider the permanent laws that may be put in place.

Many of them support the administration's proposal, which would permanently authorize warrantless surveillance and searches of American's telephone calls, e-mails, homes, offices and personal records for at least 3 months and for however long an appeal to the Court of Review in the Supreme Court takes, as long as the search is, and I quote, ``concerning a person abroad.''

In fact, the administration's proposal practically eliminates the role of the FISA court. That, of course, is the administration's intent. We understand that. The administration, in fact, undertook the TSP program, the Terrorist Surveillance Program, outside the ambit of the check and balance that we contemplated when we adopted the legislation.

Madam Speaker, we have spent hours with the Director of National Intelligence and worked hard to give him the tools that were requested. The DNI asked that we expand the language in the bill from ``relating to terrorism'' to the much broader ``relating to all foreign intelligence.'' I support that change. I want to make sure that the DNI has a broad reach and view. So that is in this bill.

The DNI asked that we eliminate the requirement that the FISA court adjudicate how recurring communications into the United States from foreign targets would be handled, and we agreed to that change.

Madam Speaker, in closing, let me tell the Members that yesterday in that conference call I asked the Director of National Intelligence, Admiral McConnell, this question: Does this legislation improve or not the situation you find yourself in? I quote you his answer to me just about 24 hours ago. This legislation, which has been so harshly analyzed, I quote the Director of National Intelligence: ``It significantly enhances America's security.''

That is a quote. It is a direct quote. I do not imply that he said he supported it. And we have a very harsh statement from him that we just got a few hours ago. I will tell you, it doesn't sound like the Admiral McConnell with whom I have talked over the past few weeks.

Madam Speaker, the administration truly seeks a temporary fix to the FISA statute. This legislation provides one.

Madam Speaker, I urge my colleagues on both sides of the aisle to vote for this important legislation. There are some on my side who believe it goes too far. There are some on your side that believe it goes not far enough. But it is, I suggest to you, a compromise that we can make that, as in the words of the Director of National Intelligence, significantly enhances our national security.

Madam Speaker, I urge the support of this legislation.