Providing for consideration of the bill (H.R. 569) to amend the Federal Water Pollution Control Act to authorize appropriations for sewer overflow control grants.

Mr. Speaker, I imagine that Admiral McConnell is watching and listening, and so allow me this morning to thank all of the patriots that are stationed around the world that are the front lines of the national security and defense and intelligence community of this Nation. To the American people, let me say on your behalf, we thank them, for they are working every day, and they are working diligently, and they are being successful.

This rule today supporting the underlying bill should be passed, because Admiral McConnell is aware that every single tool that he has asked for, foreign-to-foreign and otherwise in terms of surveillance, is in this bill.

Interestingly enough, if you will talk to members of the law enforcement community and those who are dealing with terrorists, they will tell you that they are intercepting terrorists. They are finding terrorists every single day. I personally spoke to law enforcement who noted in one region of the country that they have intercepted three terrorists. So what we are doing today is providing the codified document to secure your civil liberties, to suggest that if the focus of your surveillance is actually an American, they have to have a court intervention, a quick court intervention.

As it relates to our telecom companies, is anyone suggesting that they are not patriots? Is anyone suggesting that they will not comply with a request by the national security community?

They will, because in this bill it indicates to them that if they get a letter that suggests that we need their help, that they are not breaking the law, that all of the laws have been in compliance certified by the AG, they get absolute immunity.

So going forward, there will be no question. If that happened in the past, they have absolute immunity. There will be no gaping hole, and the idea of avoiding retroactive immunity is a question to America. It is protecting your civil liberties. Yes, we have been secure, or we have avoided a tragedy since 9/11. It is because we have given them the tools, and now we give them better tools.

It is important to pass this legislation, because it advances the security of America. But what it says to the world is that we are not terrorized by the terrorists. We believe in security, but we believe in the civil liberties of all Americans.

The Constitution still stands.

Mr. Speaker, I rise today in support of the H. Res. 1041, Providing for Consideration of the Senate Amendment to H.R. 3773, the Foreign Intelligence Surveillance Act (FISA) Amendments Act. This Rule will allow us to examine the Senate Amendment and to consider the many concerns associated with this act.

We have worked as a body to resolve our issues with FISA and with those of our Senate colleagues without eviscerating the fundamental rights embodied in the Bill of Rights. Leadership has worked tirelessly to not simply reconcile the Senate language with the RESTORE Act (H.R. 3773), which we passed in the House on November 15, 2007, but leadership has also worked tirelessly to go beyond the RESTORE Act. This current FISA Reform legislation has been borne out of this tireless struggle. Let me detail some of the ways that the FISA Reform Act balances security and liberty: adopting provisions from the Senate bill that will for the first time provide statutory protections for U.S. persons overseas, that ensures surveillance of their communications are conducted through the courts; and providing a mechanism for telecommunications carriers to prove their case that they did not engage in any wrongdoing and to guarantee due process with a fair hearing in court.

Like the RESTORE Act, the FISA reform legislation provides for collection against terrorist organizations such as Al Qaeda, while providing prior court approval of acquisition and an on-going process of review and oversight in order to protect Americans' privacy.

The FISA Reform Act creates a bipartisan commission on Warrantless Electronic Surveillance Activities with strong investigatory powers in order to preserve the rule of law in pending and future lawsuits. This revised version of the bill reiterates FISA's exclusive control for conducting foreign intelligence surveillance, unless a specific statutory authorization for surveillance is enacted. This is an area where the House version has differed from the Senate.

Perhaps the most important distinction between the House version of the bill and the Senate's version is that the Court must approve surveillance procedures prior to the start of surveillance. Under the Senate bill, the Director of National Intelligence and the Attorney

General authorize surveillance and submit procedures to the FISA Court 5 days after surveillance begins. Under the Senate bill, the FISA Court has no firm deadline for approving the procedures. The Senate bill does not go far enough in protecting the individual rights of Americans.

The FISA Reform Act requires submission to Congress and the FISA Court of ``reverse targeting'' guidelines that are to be promulgated by the NSA. Specifically, these guidelines will determine whether the ``significant purpose'' of the surveillance is to acquire communications of a specific U.S. person. In this regard, the House bill gives more teeth to the provisions in the Senate bill, which only has general prohibitions against reverse targeting and does not require the promulgation of agency guidelines addressing reverse targeting.

Both the FISA Reform Act and the Senate bill, provide for prospective liability protection for telecommunications companies that assist with lawful surveillance activities. However, the FISA Reform Act goes further by ensuring that telecommunication companies complying with the Protect America Act (PAA) have liability protection for lawful surveillance that occurred after the expiration of the PAA.

Another major difference between the bills is that the FISA Reform Act does not provide for any retroactive immunity. Instead, the FISA Reform Act provides for a process to allow district courts to review classified evidence in camera and ex parte (in front of the judge without the presence of the plaintiff). This allows the telecommunications companies to have their day in court and to assert defenses that already exist under FISA and other statutes. This process simply creates a pathway for companies to assert such defenses.

This process, which allows the Court to review information and the companies to prove their case, prevents the Executive Branch from blocking the companies from asserting their defenses under the doctrine of ``state secrets'' privilege. The FISA Reform Act permits the telecommunication companies an opportunity to defend themselves but does not create any new defenses or immunity and it does not excuse any conduct that may have been unlawful. Under the House bill, telecommunication companies can prove their innocence in court without the protection of the States immunity privilege. If these companies cannot prove that their actions were proper then they will be held accountable.

The Senate bill grants full immunity to any telecommunication company where the Attorney General certified that assistance was requested as part of the President's warrantless surveillance program. This blanket immunity goes to far, and do not support full immunity.

I believe the FISA Reform Act is better because it provides the telecommunications companies with due process and an opportunity to prove their guilt or innocence. I cannot support a case for blanket immunity and the FISA Reform Act does not allow it.

Lastly, the FISA Reform Act provides a forward looking provision that establishes a bipartisan National Commission, appointed by Congress. The Commission will investigate and report to Congress and the public about the Administration's warrantless surveillance activities.

Homeland security is not a Democratic or a Republican issue, it is not a House or Senate issue; it is an issue for all Americans--all of us need to be secure in our homes, secure in our thoughts, and secure in our communications.

I find it disturbing that our Republican colleagues will not join us to ensure that Americans are safe here and abroad. Disturbing that they do not recognize that we must protect the civil liberties of this Nation just as we protect American lives.

Mr. Speaker, in August of last year, I strongly opposed S. 1927, the so-called ``Protect America Act'' (PAA), when it came to a vote 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. In reality, it would have circumvented 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.

Under the House bill, 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.

Moreover, Mr. Speaker, it is important to point out that the loudest demands for blanket immunity did not come 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.

My amendment, which was added during the markup last year, 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'' is a concept well known to members of the Judiciary Committee but not so well understood by those less steeped in the minutiae of electronic surveillance; it 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, as well as progressives and civil liberties organizations, have with the FISA is that the temptation of national security agencies to engage in reverse targeting is often difficult to resist in the absence of strong safeguards to prevent it.

My amendment, accepted in the House Judiciary mark up, reduced any 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 achieved 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 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 provided 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.

Mr. Speaker, nothing in the Act or the amendments to the Act should require 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, what should be required, is 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.

The acquisition of communications will happen over time and the Government will have the time to get an order while continuing its surveillance. It is the national security interest to require the Government 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.

We are living in a time of economic crisis and acts of unfettered terrorism. Former President Franklin Delano Roosevelt said that ``our national determination to keep free of foreign wars and foreign entanglements cannot prevent us from feeling deep concern when ideals and principles that we have cherished are challenged.''

Like former President Roosevelt, we must secure our Nation from foreign entanglements but at the same time we must continue to champion the fundamental freedoms of all Americans regardless of whether the surveillance occurs in the United States or abroad.

It is very important to me; and it should be very important to Members of this body that we require what should be required in all cases--a warrant any time there is surveillance of a United States citizen.

In short, the Senate amendment to the House amendment makes a good bill even better. For this reason alone, civil libertarians should enthusiastically embrace the amended H.R. 3773.

The Bush administration would like the American people to believe that Democrats do not want to protect America. My Republican colleagues echo this false claim in both the chambers of Congress by questioning our patriotism. But I remind them that tyrannical behavior often questions the motivations of those seeking to protect civil liberties.

Let us not fall prey to false proclamations of an administration that takes our Bill of Rights and lays it to the side when they feel like it. Security must go hand-in-hand with liberty. Oppression of some for the alleged security of others is not the example this great Nation should set.

As I wrote in the Politico, ``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 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.

Mr. Speaker, FISA has served the Nation well for nearly 30 years, placing electronic surveillance inside the United States for foreign intelligence and counter-intelligence purposes on a sound legal footing, and I am far from persuaded that it needs to be jettisoned.

I continue to insist upon individual warrants, based on probable cause, when surveillance is directed at people in the United States. The Attorney General must still be required to submit procedures for international surveillance to the Foreign Intelligence Surveillance Court for approval, but the FISA Court should not be allowed to issue a basket warrant without making individual determinations about foreign surveillance.

In all candor, Mr. Speaker, I must restate my firm conviction that when it comes to the track record of this President's warrantless surveillance programs, there is still not enough on the public record about the nature and effectiveness of those programs, or the trustworthiness of this administration, to indicate that they require a blank check from Congress.

The Bush administration did not comply with its legal obligation under the National Security Act of 1947 to keep the Intelligence Committees ``fully and currently informed'' of U.S. intelligence activities. Congress cannot continue to rely upon incomplete information from the Bush administration or upon erroneous revelations leaked through the media. Instead Congress must conduct a full and complete inquiry into electronic surveillance in the United States and related domestic activities of the NSA, both those that occur within the United States and abroad.

The inquiry must not be limited to the legal questions. It must include the operational details of each program of intelligence surveillance within the United States, including:

(1) Who the NSA is targeting;

(2) How it identifies its targets;

(3) The information the program collects and disseminates; and most important;

(4) Whether the program advances national security interests without unduly compromising the privacy rights of the American people.

Given the unprecedented amount of information Americans now transmit electronically and the post-9/11 loosening of regulations governing information sharing, the risk of intercepting and disseminating the communications of ordinary Americans is vastly increased, requiring more precise--not looser--standards, closer oversight, new mechanisms for minimization, and limits on retention of inadvertently intercepted communications.

Mr. Speaker, I encourage my colleagues to Join me In a vote of support for H. Res. 1041, the Rule providing for FISA Amendments Act. I yield back the balance of my time.

Having heard all of the answers to all of the questions that have been raised by the opposition, knowing that full justice, civil liberties and the protection is in this bill, I rise in support of the underlying bill.

Mr. Speaker, I rise today in support of the Senate Amendment to H.R. 3773, the Foreign Intelligence Surveillance Act (FISA). This body has worked diligently with our colleagues in the Senate to ensure that the civil liberties of American citizens are appropriately addressed.

We have worked to not simply reconcile the Senate language with the RESTORE Act (H.R. 3773) which we passed in the House on November 15, 2007, but to go beyond the RESTORE Act as part of FISA Reform legislation by: Adopting provisions from the Senate bill that will for the first time provide statutory protections for U.S. persons overseas, that ensures surveillance of their communications are conducted through the courts; and Providing a mechanism for telecommunications carriers to prove their case that they did not engage in any wrongdoing and to guarantee due process with a fair hearing in court.

Like the RESTORE Act, the FISA reform legislation provides for collection against terrorist organizations such as Al Qaeda, while providing prior court approval of acquisition and an on-going process of review and oversight in order to protect Americans' privacy.

The revised House bill creates a bipartisan commission on Warrantless Electronic Surveillance Activities with strong investigatory powers in order to preserve the rule of law in pending and future lawsuits. This revised version of the bill continues to reiterate FISA's exclusive control for conducting foreign intelligence surveillance, and requires explicit statutory authorization for any means outside of FISA. This is an area where the House version has differed from the Senate.

Homeland security is not a Democratic or a Republican issue, it is not a House or Senate issue; it is an issue for all Americans--all of us need to be secure in our homes, secure in our thoughts, and secure in our communications.

I find it disturbing that our Republican colleagues will not join us to ensure that Americans are safe here and abroad. Disturbing that they do not recognize that we must protect the civil liberties of this nation just as we protect American lives.

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. 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. 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.

Under the House bill, 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.

Moreover, Mr. Speaker, it is important to point out that the loudest demands for blanket immunity did not come 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 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.

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.

My amendment, which was 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.

Mr. Speaker, nothing in the Act or the amendments to the Act should require 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, what should be required, is 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. 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.

It is very important to me, and it should be very important to Members of this body that we require what should be required in all cases--a warrant anytime there is surveillance of a United States citizen.

In short, the Senate amendment to the House version makes a good bill even better. For this reason alone, civil libertarians should enthusiastically embrace H.R. 3773.

Nearly two 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.

As I wrote in the Politico, ``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.

Mr. Speaker, FISA has served the Nation well for nearly 30 years, placing electronic surveillance inside the United States for foreign intelligence and counterintelligence purposes on a sound legal footing, and I am far from persuaded that it needs to be jettisoned.

However, I know that FISA as it is run currently attempts to circumvent the Bill of Rights and the civil liberties of the American people. I continue to insist upon individual warrants, based on probable cause, when surveillance is directed at people in the United States. The Attorney General must still be required to submit procedures for international surveillance to the Foreign Intelligence Surveillance Court for approval, but the FISA Court should not be allowed to issue a ``basket warrant'' without making individual determinations about foreign surveillance.

In all candor, Mr. Speaker, I must restate my firm conviction that when it comes to the track record of this President's warrantless surveillance programs, there is still not enough on the public record about the nature and effectiveness of those programs, or the trustworthiness of this administration, to indicate that they require a blank check from Congress.

The Bush administration did not comply with its legal obligation under the National Security Act of 1947 to keep the Intelligence Committees ``fully and currently informed'' of U.S. intelligence activities. Congress cannot continue to rely on incomplete information from the Bush administration or revelations in the media. It must conduct a full and complete inquiry into electronic surveillance in the United States and related domestic activities of the NSA, both those that occur within FISA and those that occur outside FISA.

The inquiry must not be limited to the legal questions. It must include the operational details of each program of intelligence surveillance within the United States, including: (1) who the NSA is targeting; (2) how it identifies its targets; (3) the information the program collects and disseminates; and most important, (4) whether the program advances national security interests without unduly compromising the privacy rights of the American people.

Given the unprecedented amount of information Americans now transmit electronically and the post-9/11 loosening of regulations governing information sharing, the risk of intercepting and disseminating the communications of ordinary Americans is vastly increased, requiring more precise--not looser--standards, closer oversight, new mechanisms for minimization, and limits on retention of inadvertently intercepted communications.

Mr. Speaker, I encourage my colleagues to join me in a vote of support for the FISA Amendments Act, H.R. 3773, as it seeks to balance our Nation's securities and our civil liberties.

Mr. Speaker, I rise to urge support of the rule so we can adopt H.R. 3773.

There's been a lot of very misleading and confusing rhetoric about the issue of immunity. The truth is the phone companies have immunity already under current law. It's 18 U.S. Code, section 2511. And let me just read part of it: ``Notwithstanding any other law, providers of communications services are authorized to provide information in two cases: if there's a court order, or if they receive a certification in writing by a person specified in the title or the Attorney General of the United States that says either no warrant or court order is required, all the statutory requirements have been met and the assistance is required.''

The statute says no cause of action shall lie in any court against any provider of wire or electronic communications if they have received this certification.

I submit the entire text of section 2511 for the Record.

[From Westlaw, 18 U.S.C.A. Sec. 2511, Effective: Nov. 25, 2002]

United States Code Annotated Currentness

Title 18. Crimes and Criminal Procedure (Refs & Annos)

Part I. Crimes (Refs & Annos)

Chapter 119. Wire and Electronic Communications Interception

and Interception of Oral Communications (Refs & Annos)

Sec. 2511. Interception and disclosure of wire, oral, or

electronic communications prohibited

(1) Except as otherwise specifically provided in this

chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or

procures any other person to intercept or endeavor to

intercept, any wire, oral, or electronic communication;

(b) intentionally uses, endeavors to use, or procures any

other person to use or endeavor to use any electronic,

mechanical, or other device to intercept any oral

communication when--

(i) such device is affixed to, or otherwise transmits a

signal through, a wire, cable, or other like connection used

in wire communication; or

(ii) such device transmits communications by radio, or

interferes with the transmission of such communication; or

(iii) such person knows, or has reason to know, that such

device or any component thereof has been sent through the

mail or transported in interstate or foreign commerce; or

(iv) such use or endeavor to use (A) takes place on the

premises of any business or other commercial establishment

the operations of which affect interstate or foreign

commerce; or (B) obtains or is for the purpose of obtaining

information relating to the operations of any business or

other commercial establishment the operations of which affect

interstate or foreign commerce; or

(v) such person acts in the District of Columbia, the

Commonwealth of Puerto Rico, or any territory or possession

of the United States;

(c) intentionally discloses, or endeavors to disclose, to

any other person the contents of any wire, oral, or

electronic communication, knowing or having reason to know

that the information was obtained through the interception of

a wire, oral, or electronic communication in violation of

this subsection;

(d) intentionally uses, or endeavors to use, the contents

of any wire, oral, or electronic communication, knowing or

having reason to know that the information was obtained

through the interception of a wire, oral, or electronic

communication in violation of this subsection; or

(e) (i) intentionally discloses, or endeavors to disclose,

to any other person the contents of any wire, oral, or

electronic communication, intercepted by means authorized by

sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516,

and 2518 of this chapter, (ii) knowing or having reason to

know that the information was obtained through the

interception of such a communication in connection with a

criminal investigation, (iii) having obtained

or received the information in connection with a criminal

investigation, and (iv) with intent to or improperly

obstruct, impede, or interfere with a duly authorized

criminal investigation,

shall be punished as provided in subsection (4) or shall be

subject to suit as provided in subsection (5).

(2)(a)(i) It shall not be unlawful under this chapter for

an operator of a switchboard, or an officer, employee, or

agent of a provider of wire or electronic communication

service, whose facilities are used in the transmission of a

wire or electronic communication, to intercept, disclose, or

use that communication in the normal course of his employment

while engaged in any activity which is a necessary incident

to the rendition of his service or to the protection of the

rights or property of the provider of that service, except

that a provider of wire communication service to the public

shall not utilize service observing or random monitoring

except for mechanical or service quality control checks.

(ii) Notwithstanding any other law, providers of wire or

electronic communication service, their officers, employees,

and agents, landlords, custodians, or other persons, are

authorized to provide information, facilities, or technical

assistance to persons authorized by law to intercept wire,

oral, or electronic communications or to conduct electronic

surveillance, as defined in section 101 of the Foreign

Intelligence Surveillance Act of 1978, if such provider, its

officers, employees, or agents, landlord, custodian, or other

specified person, has been provided with--

(A) a court order directing such assistance signed by the

authorizing judge, or

(B) a certification in writing by a person specified in

section 2518(7) of this title or the Attorney General of the

United States that no warrant or court order is required by

law, that all statutory requirements have been met, and that

the specified assistance is required.

setting forth the period of time during which the provision

of the information, facilities, or technical assistance is

authorized and specifying the information, facilities, or

technical assistance required. No provider of wire or

electronic communication service, officer, employee, or agent

thereof, or landlord, custodian, or other specified person

shall disclose the existence of any interception or

surveillance or the device used to accomplish the

interception or surveillance with respect to which the person

has been furnished a court order or certification under this

chapter, except as may otherwise be required by legal process

and then only after prior notification to the Attorney

General or to the principal prosecuting attorney of a State

or any political subdivision of a State, as may be

appropriate. Any such disclosure, shall render such person

liable for the civil damages provided for in section 2520. No

cause of action shall lie in any court against any provider

of wire or electronic communication service, its officer,

employees, or agents, landlord, custodian, or other specified

person for providing information, facilities, or assistance

in accordance with the terms of a court order, statutory

authorization, or certification under this chapter.

(b) It shall not be unlawful under this chapter for an

officer, employee, or agent of the Federal Communications

Commission, in the normal course of his employment and in

discharge of the monitoring responsibilities exercised by the

Commission in the enforcement of chapter 5 of title 47 of the

United States Code, to intercept a wire or electronic

communication, or oral communication transmitted by radio, or

to disclose or use the information thereby obtained.

(c) It shall not be unlawful under this chapter for a

person acting under color of law to intercept a wire, oral,

or electronic communication, where such person is a party to

the communication or one of the parties to the communication

has given prior consent to such interception.

(d) It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a wire,

oral, or electronic communication where such person is a

party to the communication or where one of the parties to the

communication has given prior consent to such interception

unless such communication is intercepted for the purpose of

committing any criminal or tortious act in violation of the

Constitution or laws of the United States or of any State.

(e) Notwithstanding any other provision of this title or

section 705 or 706 of the Communications Act of 1934, it

shall not be unlawful for an officer, employee, or agent of

the United States in the normal course of his official duty

to conduct electronic surveillance, as defined in section 101

of the Foreign Intelligence Surveillance Act of 1978, as

authorized by that Act.

(f) Nothing contained in this chapter or chapter 121 or

206 of this title, or section 705 of the Communications Act

of 1934, shall be deemed to affect the acquisition by the

United States Government of foreign intelligence information

from international or foreign communications, or foreign

intelligence activities conducted in accordance with

otherwise applicable Federal law involving a foreign

electronic communications system, utilizing a means other

than electronic surveillance as defined in section 101 of the

Foreign Intelligence Surveillance Act of 1978, and procedures

in this chapter or chapter 121 and the Foreign Intelligence

Surveillance Act of 1978 shall be the exclusive means by

which electronic surveillance, as defined in section 101 of

such Act, and the interception of domestic wire, oral, and

electronic communications may be conducted.

(g) It shall not be unlawful under this chapter or chapter

121 of this title for any person--

(i) to intercept or access an electronic communication

made through an electronic communication system that is

configured so that such electronic communication is readily

accessible to the general public;

(ii) to intercept any radio communication which is

transmitted--

(I) by any station for the use of the general public, or

that relates to ships, aircraft, vehicles, or persons in

distress;

(II) by any governmental, law enforcement, civil defense,

private land mobile, or public safety communications system,

including police and fire, readily accessible to the general

public;

(III) by a station operating on an authorized frequency

within the bands allocated to the amateur, citizens band, or

general mobile radio services; or

(IV) by any marine or aeronautical communications system;

(iii) to engage in any conduct which--

(I) is prohibited by section 633 of the Communications Act

of 1934; or

(II) is excepted from the application of section 705(a) of

the Communications Act of 1934 by section 705(b) of that Act;

(iv) to intercept any wire or electronic communication the

transmission of which is causing harmful interference to any

lawfully operating station or consumer electronic equipment,

to the extent necessary to identify the source of such

interference; or

(v) for other users of the same frequency to intercept any

radio communication made through a system that utilizes

frequencies monitored by individuals engaged in the provision

or the use of such system, if such communication is not

scrambled or encrypted.

(h) It shall not be unlawful under this chapter--

(i) to use a pen register or a trap and trace device (as

those terms are defined for the purposes of chapter 206

(relating to pen registers and trap and trace devices) of

this title); or

(ii) for a provider of electronic communication service to

record the fact that a wire or electronic communication was

initiated or completed in order to protect such provider,

another provider furnishing service toward the completion of

the wire or electronic communication, or a user of that

service, from fraudulent, unlawful or abusive use of such

service.

(i) It shall not be unlawful under this chapter for a

person acting under color of law to intercept the wire or

electronic communications of a computer trespasser

transmitted to, through, or from the protected computer, if--

(I) the owner or operator of the protected computer

authorizes the interception of the computer trespasser's

communications on the protected computer;

(II) the person acting under color of law is lawfully

engaged in an investigation;

(III) the person acting under color of law has reasonable

grounds to believe that the contents of the computer

trespasser's communications will be relevant to the

investigation; and

(IV) such interception does not acquire communications

other than those transmitted to or from the computer

trespasser.

(3)(a) Except as provided in paragraph (b) of this

subsection, a person or entity providing an electronic

communication service to the public shall not intentionally

divulge the contents of any communication (other than one to

such person or entity, or an agent thereof) while in

transmission on that service to any person or entity other

than an addressee or intended recipient of such communication

or an agent of such addressee or intended recipient.

(b) A person or entity providing electronic communication

service to the public may divulge the contents of any such

communication--

(i) as otherwise authorized in section 2511(2)(a) or 2517

of this title;

(ii) with the lawful consent of the originator or any

addressee or intended recipient of such communication;

(iii) to a person employed or authorized, or whose

facilities are used, to forward such communication to its

destination; or

(iv) which were inadvertently obtained by the service

provider and which appear to pertain to the commission of a

crime, if such divulgence is made to a law enforcement

agency.

(4)( a) Except as provided in paragraph (b) of this

subsection or in subsection (5), whoever violates subsection

(1) of this section shall be fined under this title or

imprisoned not more than five years, or both.

(b) Conduct otherwise an offense under this subsection that

consists of or relates to the interception of a satellite

transmission that is not encrypted or scrambled and that is

transmitted--

(i) to a broadcasting station for purposes of

retransmission to the general public; or

(ii) as an audio subcarrier intended for redistribution to

facilities open to the public, but not including data

transmissions or telephone calls,

is not an offense under this subsection unless the conduct is

for the purposes of direct or indirect commercial advantage

or private financial gain.

[(c) Redesignated (b)]

(5)(a)(i) If the communication is--

(A) a private satellite video communication that is not

scrambled or encrypted and

the conduct in violation of this chapter is the private

viewing of that communication and is not for a tortious or

illegal purpose or for purposes of direct or indirect

commercial advantage or private commercial gain; or

(B) a radio communication that is transmitted on

frequencies allocated under subpart D of part 74 of the rules

of the Federal Communications Commission that is not

scrambled or encrypted and the conduct in violation of this

chapter is not for a tortious or illegal purpose or for

purposes of direct or indirect commercial advantage or

private commercial gain,

then the person who engages in such conduct shall be subject

to suit by the Federal Government in a court of competent

jurisdiction.

(ii) In an action under this subsection--

(A) if the violation of this chapter is a first offense for

the person under paragraph (a) of subsection (4) and such

person has not been found liable in a civil action under

section 2520 of this title, the Federal Government shall be

entitled to appropriate injunctive relief; and

(B) if the violation of this chapter is a second or

subsequent offense under paragraph (a) of subsection (4) or

such person has been found liable in any prior civil action

under section 2520, the person shall be subject to a

mandatory $500 civil fine.

(b) The court may use any means within its authority to

enforce an injunction issued under paragraph (ii)(A), and

shall impose a civil fine of not less than $500 for each

violation of such an injunction.

credit(s)

(Added Pub. L. 90-351, Title III, Sec. 802, June 19, 1968,

82 Stat. 213, and amended Pub. L. 91-358, Title II,

Sec. 211(a), July 29, 1970, 84 Stat. 654; Pub. L. 95-511,

Title II, Sec. 201(a) to (c), Oct. 25, 1978, 92 Stat. 1796,

1797; Pub. L. 98-549, Sec. 6(b)(2), Oct. 30, 1984, 98 Stat.

2804; Pub. L. 99-508, Title I, Sec. 101(b), (c)(l), (5), (6),

(d), (t), 102, Oct. 21, 1986, 100 Stat. 1849 to 1853; Pub. L.

103-322, Title XXXII, Sec. 320901, Title XXXIII,

Sec. 330016(1)(f)(G), Sept. 13, 1994, 108 Stat. 2123, 2147;

Pub. L. 103-414, Title II, Sec. 202(b), 204, 205, Oct. 25,

1994, 108 Stat. 4290, 4291; Pub. L. 104-294, Title VI,

Sec. 604(b)(42), Oct. 11, 1996, 110 Stat. 3509; Pub. L. 107-

56, Title II, Sec. Sec. 204, 217(2), Oct. 26, 2001, 115 Stat.

281, 291; Pub. L. 107-296, Title II, Sec. 225(h)(2), Nov. 25,

2002, 116 Stat. 2158.)

Current through P.L. 110-195 (excluding P.L. 110-181)

approved 3-12-08

Simply put, the phone companies have immunity. The only issue is, do they get their day in court to tell a judge that they have immunity? This bill allows for that.

I think the phone companies, like any other party, have a right to assert their defenses and be heard by a judge and have their case be heard. This bill provides for that.

Now, why wouldn't the Bush administration be supportive?

I think the administration is more concerned about their liability than the phone companies.

Mr. Speaker, by direction of the Committee on Rules, I call up House Resolution 1041 and ask for its immediate consideration.

Mr. Speaker, for purposes of debate only, I yield the customary 30 minutes to the gentleman from Washington (Mr. Hastings). All time yielded during consideration of the rule is for purpose of debate only.

General Leave

Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days within which to revise and extend their remarks and insert extraneous material into the Record.

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

Mr. Speaker, House Resolution 1041 provides for consideration of the Senate amendment to H.R. 3773, the FISA Amendments Act of 2008. The rule makes in order a motion offered by the chairman of the Judiciary Committee to concur in the Senate amendment with the amendment printed in the Rules Committee report on this resolution.

Mr. Speaker, we have come a long way on the crucial issues of intelligence-gathering. I commend Chairmen Conyers and Reyes for their diligence in providing much-needed attention in evaluation of FISA, while ensuring that we provide our Nation's intelligence community with the necessary tools and resources to prevent a future terrorist attack on our Nation.

Over the last few weeks, my office phone lines have been burning up with calls from constituents regarding FISA and the need for Congress to take action. Unfortunately, the calls were prompted by a far- reaching misinformation campaign aimed to scare the public into believing that the House majority is in some way prohibiting our Nation's intelligence community from monitoring the terrorists. Nothing could be further from the truth. Not only are these claims false, they are unconscionable.

I don't believe any Member of this institution, Republican or Democrat, wants to shackle our Nation's intelligence community from preventing another terrorist attack. Frankly, I am getting alarmed by the claims by some of my colleagues. For the last couple of weeks, we have heard only one message from the other side of the aisle: take up the Senate bill because it has the support of the President. I have no interest in being a rubber stamp for this administration, nor of any elected body, even the Senate. That is not why I was sent to Congress. I certainly mean no disrespect to the Senate, but my constituents sent me to Congress to use my judgment and conscience to help govern.

The chairman of the Judiciary Committee said it best earlier in the week during our Rules Committee hearing when he said we are not an appendage of the Senate. I couldn't agree with Mr. Conyers more. It is our responsibility to the American people to exercise our legislative duty. Furthermore, with an issue like FISA and intelligence-gathering, I am confident that the American people would expect the House to exercise that duty to the fullest extent possible.

We are a bicameral form of government. The changes we are proposing to the Senate bill today represent a powerful step forward in the legislative process. The administration has made it overwhelmingly clear that they need to use electronic surveillance to track and identify terrorist targets. And despite the misinformation campaign and the rhetoric, the proposal we will vote on today makes it easier for our Nation's intelligence community to wiretap suspected terrorists by explicitly not requiring a court order to wiretap targets believed to be outside the United States. In addition, the proposal provides for surveillance of terrorists and other targets overseas who may be communicating with Americans.

And we are all well aware of the issue of immunity for telecom companies. It seems like that is all we have talked about here for the past several months. As a former prosecutor, I can say from experience and without hesitation, you never provide immunity to anyone unless you are sure whom you are giving the immunity to and why you are giving the immunity out.

One point that has not received enough emphasis over the last few weeks is that the telecom companies have immunity under current law. However, the problem is that anytime a telecommunication company goes to court, this administration steps in and says this is classified material and the question is deemed state secret, and therefore you are not allowed to talk about it. In that way, the telecom companies are not allowed to even defend themselves, but rather have to sit there and answer for any charges civilly made against them.

I, for one, couldn't agree more that if the intelligence community goes to a telecom company with adequate authorization and says, We need communication records for person X because he or she is believed to be a terrorist, the telecom company deserves to be afforded that protection. Unfortunately, we have absolutely no idea what the administration requested and what the telecom companies have provided.

Our proposal provides a commonsense, balanced approach to address the immunity issue. We want to provide the telecom companies with a legal way to present their defense in a secure proceeding and in a secure way in district court without the administration asserting state secret privileges to block those defenses.

And, again, don't be fooled by the misinformation campaign. We are not talking about broadcasting the content of those defenses over the public airwaves, rather just the opposite will be done in camera and in secret. This would involve ex parte proceedings in camera. That is one- on-one telecom company and a Federal district court judge behind closed doors. That way, the determination of whether or not the classified material is, in fact, a state secret is made by a neutral third party and not just this administration.

Finally, our proposal establishes a bipartisan national commission with subpoena power to investigate and report to the American people on the administration's warrantless surveillance activities and to recommend procedures and protections for the future in much the same way that the 9/11 Commission did.

Mr. Speaker, we must bring the misinformation campaign and partisan wrangling to an end. There is no question that there are groups and individuals out there who seek to do us harm. There is no question that my colleagues and I want to give the people who protect us from the danger every tool they need to keep fighting terrorism. The proposal we will vote on today will, in fact, provide our Nation's intelligence community with the resources to prevent future acts of terrorism while protecting the freedoms of the citizens under the Constitution. Everyone in this body wants the same thing, and that is to protect American citizens. This bill does exactly that.

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

Mr. Speaker, it just seems to me that this debate is becoming more and more political rather than focusing on what we're here to do, and that is to ensure that the people of this country have absolutely the best FISA bill that they can, a bill that not only protects us but ensures that the Constitution is protected as well. That's what this FISA bill does. It takes the best of all the things that we have been trying to achieve over the past several months and incorporates it into a bill, including unshackling the telecom companies so that if they have done what has been asked of them and what is permitted to do under the law, that they are allowed immunity. We certainly don't want to prosecute people who have been trying to help our country and keep our country safe. Nonetheless, this puts into effect the important factors of ensuring that those things are done.

With that, Mr. Speaker, I would like to yield 2\1/2\ minutes to the gentleman from Pennsylvania (Mr. Sestak).

Mr. Speaker, I would like to yield 2 minutes to the gentleman from New Jersey, a member of the Intelligence Committee, Mr. Holt.

I thank the gentleman from California. I just want to assure him that I think I speak for the entire Democratic Caucus when I say that we share his concern for the safety of this country.

However, when he speaks about things that just blatantly aren't true, for some reason, and I don't know if it's an attempt to frighten the American people, it's troubling. This bill, this FISA bill, allows the government to wiretap any foreign national, whether they are overseas or they are here. This is just blatantly untrue. What he says about the fact is that we cannot wiretap, we can't monitor a person that comes to this country who is a foreigner. It's just blatantly untrue. This FISA bill allows that to happen.

It's somewhat disheartening when people mention facts that just aren't true, and I certainly hope it's not for political reasons; but let's stick to the facts, because the facts are clearly that this bill allows that to happen.

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

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

Mr. Speaker, I yield 4\1/2\ minutes to the gentleman from New York, a member of the Judiciary Committee, Mr. Nadler.

Mr. Speaker, I yield 3 minutes to the gentleman from Texas, the distinguished chairman of the Intelligence Committee, Mr. Reyes.

Mr. Speaker, I would again just like to point out that what this bill does is unshackle the telecommunications companies because what we do want to do in this particular case is ensure that they are able to defend themselves if they have cooperated with the government and followed the law, and that is exactly what this bill does.

Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman from Kansas (Mrs. Boyda).

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

Mr. Speaker, I am prepared to close. We have no further speakers on our side.

Mr. Speaker, as I said earlier, we must bring the misinformation campaign and partisan wrangling to an end.

There is no question that there are groups and individuals out there who would seek to do America harm. There is no question that my colleagues and I want to give the people who protect us from the danger every tool they need to fight terrorism.

The proposal we will vote on today will, in fact, provide our Nation's Intelligence Community with the resources to prevent future acts of terrorism, while protecting the freedoms of our citizens under the Constitution.

I strongly urge a ``yes'' vote on the previous question and on the rule.

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

Amendment to H. Res. 1041 Offered by Mr. Hastings of Washington

Strike section 2 and insert in lieu thereof the following:

``Sec. 2. Upon rejection of the motion to concur specified

in section 1, a motion that the House concur in the Senate

amendmemt to H.R. 3773 is hereby adopted.''.

(The information contained herein was provided by

Democratic Minority on multiple occasions throughout the

l09th Congress.)

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 Democratic 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 Democratic

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 definition of

the previous question used in the Floor Procedures Manual

published by the Rules Committee in the 109th Congress, (page

56). Here's how the Rules Committee described the rule using

information from Congressional Quarterly's ``American

Congressional Dictionary'': ``If the previous question is

defeated, control of debate shifts to the leading opposition

member (usually the minority Floor Manager) who then manages

an hour of debate and may offer a germane amendment to the

pending business.''

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 Democratic

majority's agenda and allows those with alternative views the

opportunity 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, the last few weeks, the last few minutes we have heard assertions from our colleagues on the other side of the aisle that are false and designed to mislead and frighten the American people. They claim that we allowed the Protect America Act to expire, that we are dark for 27 days.

Ken Wainstein, the Assistant Attorney General of the United States, and the Bush administration admitted that because of the provisions of the group warrants in the Protect America Act that had gone on for a year, didn't change anything. It is still in effect, number one.

Number two, we forget, this House passed a FISA updating modernization bill in November, on November 14. We called it the RESTORE Act. We waited for the Senate to pass a bill so we could go to conference and compromise on it. When did they pass a bill? Not in November, not in December, not in January. Because of Republican foot- dragging, they didn't pass the bill until February, mid-February, three months after we passed the bill here, and two days before we went home for a week for the Presidents Day recess.

The President came out and said it's up to the House to pass the Senate bill, no questions asked. But there are a lot of questions about the Senate bill. Maybe our bill isn't perfect, but their bill is far from perfect, and our bill is closer to perfect than theirs.

So then we said, well, if you don't want, because catastrophe will happen, according to the President and the Republicans if we go home without passing the Senate bill, we will extend the Protect America Act for 3 weeks until we can come back and deal with this. Who voted it down? The Republicans. They said, no, don't extend it. The President said he would veto an extension.

So let's not hear any remarks on this floor from that side about how we are dark because the act expired. It expired because they made it expire. They voted against a 21-day extension that we could have renewed if necessary until we got this all figured out. So let's not hear any less-than-honest assertions about we are dark and we are unprotected and it is the Democrats' fault.

Mr. Speaker, we have a very good bill here. It gives the intelligence community every single tool they need and

every tool they say they need. How does it differ from the Senate bill? In two ways. One, it provides for some closer judicial supervision, because while we are giving the intelligence community the tools they need to wiretap on American citizens, on people who are not American citizens, we have to make sure that our constitutional rights and liberties are protected so that this country, which we have all defended, and we all want to defend, remains worthy of being defended by defending our own liberties.

Remember why we enacted protections in the first place, because the administration at the time wiretapped Martin Luther King. We don't want that to happen again by a future administration. And so we must protect our civil liberties.

We are told that telecom companies, if we don't provide retroactive immunity, they won't cooperate in the future, we won't get their help. Number one, that is an aspersion on their patriotism. Number two, they can be compelled to do so under court order. And number three, they have always had immunity. They have it now. All they have to do to have immunity is to have a request from the administration that says: A, we need your help; B, you are not violating the law if you do what we ask; and C, you don't need a court order. If they get that request, whether those assertions are true or not, as long as the administration says we need your help, what we are asking you to do won't violate the law, and you don't need a court order, they are absolutely immune. And they have always had this immunity.

So why do they need retroactive immunity, they say because the administration won't permit them to go to court and say we were asked for help, we gave that help. We have this request and we got the legal assurances because the administration won't let that go to court because it says it will violate State secrets.

So what does our bill do? It says you can go to court under secret procedures to protect the security of the State secrets, but you can assert your defense in court and get the case thrown out if you at least got the assurance by the administration in advance, which is all the law required. If you didn't get that, then you have no respect for the privacy rights of Americans and you don't deserve immunity. Even if we gave retroactive immunity for the future to the telecom company that helped us next week, they still have the same requirements for immunity. And if they wanted to go to court to assert them if someone sued them, they would still have to go to court and say the same thing. So you are dealing with a one-time fix.

Retroactive immunity takes it out of the courts and says Congress shall say to American citizens you're wrong, you can't protect your constitutional rights in court, you're right. That is a duty for the courts, not for Congress. That is the basis of the protections of all of our rights. The Senate bill goes the wrong way. We protect the telecom companies and protect our liberties. It is the right way to go. I urge adoption of this rule.

Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, I rise in support of this carefully crafted legislation which gives our intelligence agencies all the tools they say they need to protect our country while protecting our fundamental civil liberties.

In the last few weeks, we have heard countless assertions from our colleagues on the other side that are false and misleading. They claim that we allowed the Protect America Act to expire, when it was the Republicans who blocked attempts to extend that bill temporarily, and they continue to claim that retroactive immunity for the telecom companies is necessary for the security of the country.

The telecom companies aided the administration's surveillance program. Some people, American citizens, believe their constitutional rights were violated and brought a lawsuit against the government and telecom companies.

There are two narratives here. One is that these companies patriotically aided the administration to protect Americans from terrorists. The other is that they conspired with a lawless administration to violate the constitutional rights of Americans. Which of these narratives is right is for a court to decide. It is not the role of Congress to decide legal cases between private parties. That is why we have courts.

We had told the telecom companies they would not be subject to lawsuits for doing their duty. But whether they were doing their duty or abusing the rights of Americans is precisely the issue.

In any event, the existing law already provides absolute immunity if their help was requested and if they were given a statement by the Attorney General or various other government officials stating that the requested help did not require a warrant or court order and would not break the law. They have immunity. Whether those statements are true or not, they can rely absolutely on the government's assertions.

So why do they think they need retroactive immunity? Because of the administration's sweeping assertion of the State secrets doctrine, will has prevented the companies from claiming their immunity.

This bill allows the telecom companies in secret in court to present the evidence for their immunity and to get their immunity, if they obeyed the law. And I remind that obeying the law means simply obtaining a statement from the government that the company's help is needed and that the requested help does not require a court order or violated the law. A company that assisted in spying on its customers without getting that simple assurance from the government does not deserve immunity. And even if we voted retroactive immunity, they would still have to prove that immunity for what they do next week in the same way, and they would have the same problem.

So, by solving the State secrets problem, we give the companies the immunity they need, if they need it, and if they obeyed the law. This still gives our intelligence agencies what they need. I urge its adoption.

Mr. Speaker, I rise in strong support of H.R. 3733, the FISA Amendments Act. This carefully crafted legislation gives our intelligence agencies all the tools they say they need to protect our country, while protecting our fundamental civil liberties.

Mr. Speaker, let us be clear about what this legislation does not do. It does not require individual warrants for the targeting of foreign terrorists located outside the United States. For three decades, that has been the law, and it will still be the law under this bill. There is no dispute about this.

The bill starts with the recognition that the intelligence community needs to surveil all members of a terrorist group--once that group is identified. Any suggestion that it requires individualized warrants to intercept communications of terrorists overseas is wrong.

The bill maintains the traditional requirement of a warrant when our intelligence agencies seek to conduct surveillance on Americans. And because some foreign surveillance may record conversations with Americans, the bill requires that, when the Government proposes to undertake surveillance of a foreign group or entity, it must first apply to the FISA court, except that, in an emergency, the surveillance can begin immediately, and the court can consider the surveillance procedures later.

In both this bill and the Senate bill, the government must inform the court of the procedures it will use to ensure that it is targeting only foreigners overseas and how it will ``minimize'' domestic information it might inadvertently pick up. The only real difference is that the Senate bill lets them listen first, then go to the court within 5 days. This bill requires that they go to the FISA Court first. But in an emergency, we give them 7 days to listen before they go to the court. So will someone please tell me how this minor difference between the bills somehow gives rights to terrorist?

There is one thing that this bill does not do, and this great body must not do--provide blanket, retroactive immunity to the telecommunication companies that assisted in the President's warrantless wiretapping program. Such a move would fly in the face of our notions of justice.

Mr. Speaker, in the last few weeks, we have heard countless assertions from our colleagues on the other side that are false and

misleading. They claim that we allowed the Protect America Act to expire--when it was the Republicans who blocked attempts to extend that legislation temporarily. And they continue to claim that retroactive immunity for the telecom companies is necessary for the security of the country. But they have failed to provide any evidence for that claim.

The telecom companies aided the Administration's surveillance program. Some people--American citizens--believe their constitutional rights were violated, and brought suit against the government and the telecom companies. There are two narratives here. One is that the telecom companies patriotically aided the Administration in protecting Americans from terrorists. The other is that the telecom companies conspired with a lawless Administration to violate the Constitutional rights of Americans. Which of these narratives is correct is for a court to decide.

It is not the role of Congress to decide legal cases between private parties. That is why we have courts. If the claims are not meritorious, the courts will throw them out. But if the claims do have merit, we have no right to dismiss them without even reviewing the evidence.

We are told that the telecom companies should not be subject to lawsuits for doing their duty. But whether they were doing their duty, or abusing the rights of Americans, is precisely the issue. And that is a legal issue for the courts to decide.

In any event, the existing law, in a wise balance of national security and constitutional rights that this bill does not change, already provides absolute immunity to the telecom companies if their help was requested, and if they were given a statement by the Attorney General, or by various other government officials, stating that the requested help did not require a warrant or court order and would not break the law. They have immunity whether those statements were true or not. They can rely absolutely on the government's assertions.

So why do they think they need retroactive immunity? Because of the Administration's sweeping assertion of the ``state secrets'' doctrine, which has prevented the companies from claiming their immunity.

Title II of this bill will allow the telecoms to show the courts, in a secure setting, if they were obeying the law or if they weren't. It will allow the telecom companies to assert their immunity in court, and to present the relevant documents and evidence to the court in a secret session that protects any ``state secrets.'' The courts can then judge whether the telecom company obeyed the law--in which case it has complete immunity--or whether it did not. And, I remind you, that ``obeying the law'' means simply obtaining a statement from the government that the company's help is needed, and that the requested help does not require a court order or violate the law. A company that assisted in spying on its customers without getting that simple assurance does not deserve immunity.

Mr. Speaker, this bill gives our intelligence agencies what they say they need. But it also demands that their extraordinary powers be used properly, and that they follow our laws and our Constitution. This bill will help limit this Administration's disregard for the rule of law. It is a carefully crafted measure, and deserves the support of every member in this body.

Mr. Speaker, I rise to urge that we defeat the previous question so we can adopt the Protect America Act.

People in this country think that Washington, D.C., is broken, and they are absolutely right. It is. And this issue is proof positive of why Washington, D.C., is broken. Yes, we do have an agreement. It is a bipartisan agreement, 68 votes in the Senate. There is a majority here, but the majority leadership won't allow us to consider this very important and necessary legislation.

Senator Rockefeller, the Democratic chairman of the Intelligence Committee in the Senate, has said our intelligence capacities are being degraded because we have failed to pass the Protect America Act.

You know, it is time that we put the national interest ahead of the special interests. Why are we protecting the most litigious among us in our society at the expense of our troops serving overseas? We know the issues. It is retroactive immunity. The telecommunications companies were attempting to help us in good faith, and no good deed goes unpunished. That is what it happening here. It is time to get the job done.

I'm going to refer to an article I read in the Wall Street Journal back in January, 2006, by Debra Burlingame, the sister of the pilot who crashed into the Pentagon. The title is, ``Al Qaeda, not the FBI, is the greater threat to America.'' I think we should heed her advice and recall, because of that wall that existed before 9/11 between the intelligence agency and our domestic law enforcement, it prevented us from being more effective.

Today, we are placing barriers between our government and those who want to help us in the telecommunications sector, but they are going to be forced to comply with this. They will not be able to do so voluntarily. We know what the issue is. The Fraternal Order of Police, many State attorneys general, the VFW, all agree we should pass the bipartisan. We have it within our means to do it. I don't understand why not. It is important for the majority leadership to explain to this House why they won't let this bipartisan agreement be adopted.

The American people are watching. They want us to get the job done. They have had enough.

Mr. Speaker, I include the Burlingame article for the Record.

[From the Wall Street Journal, Jan. 30, 2006]

Our Right to Security

al qaeda, not the fbi, is the greater threat to america

(By Debra Burlingame)

One of the most excruciating images of the September 11

attacks is the sight of a man who was trapped in one of the

World Trade Center towers. Stripped of his suit jacket and

tie and hanging on to what appears to be his office curtains,

he is seen trying to lower himself outside a window to the

floor immediately below. Frantically kicking his legs in an

effort to find a purchase, he loses his grip, and falls.

That horrific scene and thousands more were the images that

awakened a sleeping nation on that long, brutal morning.

Instead of overwhelming fear or paralyzing self-doubt, the

attacks were met with defiance, unity and a sense of moral

purpose. Following the heroic example of ordinary citizens

who put their fellow human beings and the public good ahead

of themselves, the country's leaders cast aside politics and

personal ambition and enacted the USA Patriot Act just 45

days later.

A mere four-and-a-half years after victims were forced to

choose between being burned alive and jumping from 90

stories, it is frankly shocking that there is anyone in

Washington who would politicize the Patriot Act. It is an

insult to those who died to tell the American people that the

organization posing the greatest threat to their liberty is

not al Qaeda but the FBI. Hearing any member of Congress

actually crow about ``killing'' or ``playing chicken'' with

this critical legislation is as disturbing today as it would

have been when Ground Zero was still smoldering. Today we

know in far greater detail what not having it cost us.

Critics contend that the Patriot Act was rushed into law in

a moment of panic. The truth is, the policies and guidelines

it corrected had a long, troubled history and everybody who

had to deal with them knew it. The ``wall'' was a tortuous

set of rules promulgated by Justice Department lawyers in

1995 and imagined into law by the Foreign Intelligence

Surveillance Act (FISA) court.

Conceived as an added protection for civil liberties

provisions already built into the statute, it was the wall

and its real-world ramifications that hardened the failure-

to-share culture between agencies, allowing early information

about 9/11 hijackers Khalid al-Mihdhar and Nawaf al-Hazmi to

fall through the cracks. More perversely, even after the

significance of these terrorists and their presence in the

country was known by the FBI's intelligence division, the

wall prevented it from talking to its own criminal division

in order to hunt them down.

Furthermore, it was the impenetrable FISA guidelines and

fear of provoking the FISA court's wrath if they were

transgressed that discouraged risk-averse FBI supervisors

from applying for a FISA search warrant in the Zacarias

Moussaoui case. The search, finally conducted on the

afternoon of 9/11, produced names and phone numbers of people

in the thick of the 9/11 plot, so many fertile clues that

investigators believe that at least one airplane, if not

all four, could have been saved.

In 2002, FISA's appellate level Court of Review examined

the entire statutory scheme for issuing warrants in national

security investigations and declared the ``wall'' a

nonsensical piece of legal overkill, based neither on express

statutory language nor reasonable interpretation of the FISA

statute. The lower court's attempt to micromanage the

execution of national security warrants was deemed an

assertion of authority which neither Congress or the

Constitution granted it. In other words, those lawyers and

judges who created, implemented and so assiduously enforced

the FISA guidelines were wrong and the American people paid

dearly for it.

Despite this history, some members of Congress contend that

this process-heavy court is agile enough to rule on quickly

needed National Security Agency (NSA) electronic surveillance

warrants. This is a dubious claim. Getting a FISA warrant

requires a multistep review involving several lawyers at

different offices within the Department of Justice. It can

take days, weeks, even months if there is a legal dispute

between the principals. ``Emergency'' 72-hour intercepts

require sign-offs by NSA lawyers and pre-approval by the

attorney general before surveillance can be initiated.

Clearly, this is not conducive to what Gen. Michael Hayden,

principal deputy director of national intelligence, calls

``hot pursuit'' of al Qaeda conversations.

The Senate will soon convene hearings on renewal of the

Patriot Act and the NSA terrorist surveillance program. A

minority of senators want to gamble with American lives and

``fix'' national security laws, which they can't show are

broken. They seek to eliminate or weaken anti-terrorism

measures which take into account that the Cold War and its

slow-moving, analog world of landlines and stationary targets

is gone. The threat we face today is a completely new

paradigm of global terrorist networks operating in a high-

velocity digital age using the Web and fiber-optic

technology. After four-and-a-half years without another

terrorist attack, these senators think we're safe enough to

cave in to the same civil liberties lobby that supported that

deadly FISA wall in the first place. What if they, like those

lawyers and judges, are simply wrong?

Meanwhile, the media, mouthing phrases like ``Article II

authority,'' ``separation of powers'' and ``right to

privacy,'' are presenting the issues as if politics have

nothing to do with what is driving the subject matter and its

coverage. They want us to forget four years of relentless

``connect-the-dots'' reporting about the missed chances that

``could have prevented 9/11.'' They have discounted the

relevance of references to the two 9/11 hijackers who lived

in San Diego. But not too long ago, the media itself reported

that phone records revealed that five or six of the hijackers

made extensive calls overseas.

NBC News aired an ``exclusive'' story in 2004 that

dramatically recounted how al-Hazmi and al-Mihdhar, the San

Diego terrorists who would later hijack American Airlines

flight 77 and fly it into the Pentagon, received more than a

dozen calls from an al Qaeda ``switchboard'' inside Yemen

where al-Mihdhar's brother-in-law lived. The house received

calls from Osama Bin Laden and relayed them to operatives

around the world. Senior correspondent Lisa Myers told the

shocking story of how, ``The NSA had the actual phone number

in the United States that the switchboard was calling, but

didn't deploy that equipment, fearing it would be accused of

domestic spying.'' Back then, the NBC script didn't describe

it as ``spying on Americans.'' Instead, it was called one of

the ``missed opportunities that could have saved 3,000

lives.''

Another example of opportunistic coverage concerns the

Patriot Act's ``library provision.'' News reports have given

plenty of ink and airtime to the ACLU's unsupported claims

that the government has abused this important records

provision. But how many Americans know that several of the

hijackers repeatedly accessed computers at public

libraries in New Jersey and Florida, using personal Internet

accounts to carry out the conspiracy? Al-Mihdhar and al-Hazmi

logged on four times at a college library in New Jersey

where they purchased airline tickets for AA 77 and later

confirmed their reservations on Aug. 30. In light of this,

it is ridiculous to suggest that the Justice Department

has the time, resources or interest in ``investigating the

reading habits of law abiding citizens.''

We now have the ability to put remote control cameras on

the surface of Mars. Why should we allow enemies to

annihilate us simply because we lack the clarity or resolve

to strike a reasonable balance between a healthy skepticism

of government power and the need to take proactive measures

to protect ourselves from such threats? The mantra of civil-

liberties hard-liners is to ``question authority''--even when

it is coming to our rescue--then blame that same authority

when, hamstrung by civil liberties laws, it fails to save us.

The old laws that would prevent FBI agents from stopping the

next al-Mihdhar and al-Hazmi were built on the bedrock of a

35-year history of dark, defeating mistrust. More Americans

should not die because the peace-at-any-cost fringe and

antigovernment paranoids still fighting the ghost of Nixon

hate George Bush more than they fear al Qaeda. Ask the

American people what they want. They will say that they want

the commander in chief to use all reasonable means to catch

the people who are trying to rain terror on our cities. Those

who cite the soaring principle of individual liberty do not

appear to appreciate that our enemies are not seeking to

destroy individuals, but whole populations.

Three weeks before 9/11, an FBI agent with the bin Laden

case squad in New York learned that al-Mihdhar and al-Hazmi

were in this country. He pleaded with the national security

gatekeepers in Washington to launch a nationwide manhunt and

was summarily told to stand down. When the FISA Court of

Review tore down the wall in 2002, it included in its ruling

the agent's Aug. 29, 2001, email to FBI headquarters:

``Whatever has happened to this--someday someone will die--

and wall or not--the public will not understand why we were

not more effective and throwing every resource we had at

certain problems. Let's hope the National Security Law Unit

will stand behind their decisions then, especially since the

biggest threat to us now, [bin Laden], is getting the most

`protection.' ''

The public has listened to years of stinging revelations

detailing how the government tied its own--hands in stopping

the devastating attacks of September 11. It is an

irresponsible violation of the public trust for members of

Congress to weaken the Patriot Act or jeopardize the NSA

terrorist surveillance program because of the same illusory

theories that cost us so dearly before, or worse, for rank

partisan advantage. If they do, and our country sustains yet

another catastrophic attack that these antiterrorism tools

could have prevented, the phrase ``connect the dots'' will

resonate again--but this time it will refer to the trail of

innocent American blood which leads directly to the Senate

floor.