I would like to thank the gentleman from Texas and the gentlewoman from New Mexico for their strong leadership and advocacy on this critical national security issue. I think the colloquy engaged in really does represent the essence of the…
I would like to thank the gentleman from Texas and the gentlewoman from New Mexico for their strong leadership and advocacy on this critical national security issue. I think the colloquy engaged in really does represent the essence of the issue.
Former Director Bobby Inman was just quoted saying that it seems that there is greater concern around this Congress by a minority, frankly, to grant constitutional protections to foreign terrorists, really at the expense of protecting Americans.
I think we all know that is wrong. I think the colloquy you both just engaged in, and I heard the frustration expressed in your voice, I think that is also the frustration we are hearing from the American people. The American people do believe that Washington is broken, and I have said this many times. They are angry because Congress is not getting things done on their behalf, and this issue is just proof positive of this terrible failure.
It has been pointed out that we have a bipartisan agreement in the Senate, 68 votes. We have more than a majority in this House to pass this critical legislation, the Protect America Act. It will pass, if only the Speaker will allow this legislation to come up for a vote. They simply want us to put the national interests ahead of the special interests.
As you pointed out, the most litigious among us in this society are driving this issue and preventing the protection of the American people. I think it is just wrong, and we all know it is wrong. The bipartisan solution on FISA has been reached. There really are no more excuses. It is time for this leadership of the House to take ``yes'' for an answer. It is time to get the job done.
It has been 45 days, 45 days, since the Protect America Act has expired. Senator Rockefeller, the Chair of the Intelligence Committee in the Senate, the Democrat from West Virginia, has made a plea, and I am going to quote him. He said, ``What people have to understand around here is that the quality of the intelligence we are going to be receiving is going to be degraded. It is going to be degraded. It is already going to be degraded as telecommunication companies lose interest.'' That was Senator Rockefeller, not me.
The gentleman from Texas pointed out earlier too the letter that was sent to the chairman of the House Intelligence Committee, Silvestre Reyes, from the Director of National Intelligence, Mr. McConnell, and Attorney General Mukasey, essentially saying something very, very similar. I will read a quote from them in that letter of February 27, 2008. I will be happy to submit that letter for the Record here this evening.
But I am going to quote what they said about the degradation of our intelligence capabilities, pretty much agreeing with what Senator Rockefeller said, a Democrat. What they said is, ``That is exactly what has happened since the Protect America Act expired 6 days ago without enactment of the bipartisan Senate bill. We have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act.'' That was 6 days after the act. It is 45 days today.
They go on to say, ``Because of this uncertainty, some partners have reduced cooperation. In particular they have delayed or refused compliance with our requests to initiate new surveillances of terrorists and other foreign intelligence targets under existing directives issued pursuant to the Protect America Act.''
Mr. Speaker, I include the letter for the Record.
February 22, 2008.
Hon. Silvestre Reyes,
Chairman, House Permanent Select Committee on Intelligence,
House of Representatives, Washington, DC.
Deaer Chairman Reyes, the President asked us to respond to
your letter of February 14, 2008, concerning the urgent need
to modernize the Foreign Intelligence Surveillance Act of
1978 (FISA). Your assertion that there is no harm in allowing
the temporary authorities provided by the Protect America Act
to expire without enacting the Senate's FISA reform bill is
inaccurate and based on a number of misunderstandings
concerning our intelligence capabilities. We address those
misunderstandings below. We hope that you find this letter
helpful and that you will reconsider your opposition to the
bill passed last week by a strong bipartisan majority in the
Senate and, when Congress returns from its recess, support
immediately bringing the Senate bill to the floor, where it
enjoys the support of a majority of your fellow members. It
is critical to our national security that Congress acts as
soon as possible to pass the Senate bill.
Intelligence collection
Our experience since Congress allowed the Protect America
Act to expire without passing the bipartisan Senate bill
demonstrates why the Nation is now more vulnerable to
terrorist attack and other foreign threats. In our letter to
Senator Reid on February 5, 2008, we explained that: ``the
expiration of the authorities in the Protect America Act
would plunge critical intelligence programs into a state of
uncertainty which could cause us to delay the gathering of,
or simply miss, critical foreign intelligence information.''
That is exactly what has happened since the Protect America
Act expired six days ago without enactment of the bipartisan
Senate bill. We have lost intelligence information this past
week as a direct result of the uncertainty created by
Congress' failure to act. Because of this uncertainty, some
partners have reduced cooperation. In particular, they have
delayed or refused compliance with our requests to initiate
new surveillances of terrorist and other foreign intelligence
targets under existing directives issued pursuant to the
Protect America Act. Although most partners intend to
cooperate for the time being, they have expressed deep
misgivings about doing so in light of the uncertainty and
have indicated that they may well cease to cooperate if the
uncertainty persists. We are working to mitigate these
problems and are hopeful that our efforts will be successful.
Nevertheless, the broader uncertainty caused by the Act's
expiration will persist unless and until the bipartisan
Senate bill is passed. This uncertainty may well continue to
cause us to miss information that we otherwise would be
collecting.
Thus, although it is correct that we can continue to
conduct certain activities authorized by the Protect America
Act for a period of one year from the time they were first
authorized, the Act's expiration has and may well continue to
adversely affect such activities. Any adverse effects will
result in a weakening of critical tools necessary to
protect the Nation. As we explained in our letter to
Senator Reid, expiration would create uncertainty
concerning:
The ability to modify certifications and procedures issued
under the Protect America Act to reflect operational needs
and the implementation of procedures to ensure that agencies
are fully integrated protecting the Nation;
The continuing validity of liability protection for those
who assist us according to the procedures under the Protect
America Act;
The continuing validity of the judicial mechanism for
compelling the assistance of private parties needed to
protect our national security;
The ability to cover intelligence gaps created by new
communication paths or technologies.
Our experience in the past few days since the expiration of
the Act demonstrates that these concerns are neither
speculative nor theoretical: allowing the Act to expire
without passing the bipartisan Senate bill has had real and
negative consequences for our national security. Indeed, this
has led directly to a degraded intelligence capability.
It is imperative that our intelligence agencies retain the
tools they need to collect vital intelligence information. As
we have explained before, the core authorities provided by
the Protect America Act have helped us to obtain exactly the
type of information we need to keep America safe, and it is
essential that Congress reauthorize the Act's core
authorities while also extending liability protection to
those companies who assisted our Nation following the attacks
of September 11, 2001. Using the authorities provided in the
Protect America Act, we have obtained information about
efforts of an individual to become a suicide operative,
efforts by terrorists to obtain guns and ammunition, and
terrorists transferring money. Other information obtained
using the authorities provided by the Protect America Act has
led to the disruption of planned terrorist attacks. The
bipartisan Senate bill would preserve these core authorities
and improve on the Protect America Act in certain critical
ways, including by providing liability protection to
companies that assisted in defending the country after
September 11.
In your letter, you assert that the Intelligence
Community's ability to protect the Nation has not been
weakened, because the Intelligence Community continues to
have the ability to conduct surveillance abroad in accordance
with Executive Order 12333. We respectfully disagree.
Surveillance conducted under Executive Order 12333 in a
manner that does not implicate FISA or the Protect America
Act is not always as effective, efficient, or safe for our
intelligence professionals as acquisitions conducted under
the Protect America Act. And, in any event, surveillance
under the Protect America Act served as an essential adjunct
to our other intelligence tools. This is particularly true in
light of the changes since 1978 in the manner in which
communications are transmitted. As a result of these
changes, the Government often has been required to obtain
a FISA Court order prior to surveillance of foreign
terrorists and other national security threats located
outside the Untied States. This hampered our intelligence
collection targeting these individuals overseas in a way
that Congress never intended, and it is what led to the
dangerous intelligence gaps last summer. Congress
addressed this issue temporarily by passing the Protect
America Act but long-term FISA reform is critical to the
national security.
We have provided Congress with examples in which
difficulties with collections under the Executive Order
resulted in the Intelligence Community missing crucial
information. For instance, one of the September 11th
hijackers communicated with a known overseas terrorist
facility while he was living in the Untied States. Because
that collection was conducted under Executive Order 12333,
the Intelligence Community could not identify the domestic
end of the communication prior to September 11, 2001, when it
could have stopped that attack. The failure to collect such
communications was one of the central criticisms of the
Congressional Joint Inquiry that looked into intelligence
failures associated with the attacks of September 11. The
bipartisan bill passed by the Senate would address such flaws
in our capabilities that existed before the enactment of the
Protect America Act and that are now resurfacing. We have
provided Congress with additional and detailed examples of
how the Protect America Act temporarily fixed this problem
and have demonstrated the operational need to provide a long-
term legislative foundation for these authorities by passing
the bipartisan Senate bill.
In your letter, you also posit that our intelligence
capabilities have not been weakened, because the Government
can employ the outdated provisions of FISA as they existed
before the Protect America Act. We respectfully disagree. It
was that very framework that created dangerous intelligence
gaps in the past and that led Congress to pass the Protect
America Act last summer.
As we have explained in letters, briefings and hearings,
FISA's requirements, unlike those of the Protect America Act
and the bipartisan Senate bill, impair our ability to collect
information on foreign intelligence targets located overseas.
Most importantly, FISA was designed to govern foreign
intelligence surveillance of persons in the United States and
therefore requires a showing of ``probable cause'' before
such surveillance can begin. This standard makes sense in the
context of targeting persons in the United States for
surveillance, where the Fourth Amendment itself often
requires probable cause and where the civil liberties of
Americans are most implicated. But it makes no sense to
require a showing of probable cause for surveillance of
overseas foreign targets who are not entitled to the Fourth
Amendment protections guaranteed by our Constitution. Put
simply, imposing this requirement in the context of
surveillance of foreign targets located overseas results in
the loss of potentially vital intelligence by, for example,
delaying intelligence collection and thereby losing some
intelligence forever. In addition, the requirement to make
such a showing requires us to divert our linguists and
analysts covering al-Qa'ida and other foreign threats from
their core role--protecting the Nation--to the task of
providing detailed facts for FISA Court applications related
to surveillance of such foreign targets. Our intelligence
professionals need to be able to obtain foreign intelligence
from foreign targets with speed and agility. If we revert to
a legal framework in which the Intelligence Community
needs to make probable cause showings for foreign
terrorists and other national security threats located
overseas, we are certain to experience more intelligence
gaps and miss collecting information.
You imply that the emergency authorization process under
FISA is an adequate substitute for the legislative
authorities that have lapsed. This assertion reflects a basic
misunderstanding about FISA's emergency authorization
provisions. Specifically, you assert that the National
Security Agency (NSA) or the Federal Bureau of Investigation
(FBI) ``may begin surveillance immediately'' in an emergency
situation. FISA requires far more, and it would be illegal to
proceed as you suggest. Before surveillance begins the
Attorney General must determine that there is probable cause
that the target of the surveillance is a foreign power or an
agent of a foreign power and that FISA's other requirements
are met. As explained above, the process of compiling the
facts necessary for such a determination and preparing
applications for emergency authorizations takes time and
results in delays. Again, it makes no sense to impose this
requirement in the context of foreign intelligence
surveillance of targets located overseas. Because of the
hurdles under FISA's emergency authorization provisions and
the requirement to go to the FISA Court within 72 hours, our
resource constraints limit our use of emergency
authorizations to certain high-priority circumstances and
cannot simply be employed for every foreign intelligence
target.
It is also inaccurate to state that because Congress has
amended FISA several times, there is no need to modernize
FISA. This statement runs counter to the very basis for
Congress's passage last August of the Protect America Act. It
was not until the passage of this Act that Congress amended
those provisions of FISA that had become outdated due to the
communications revolution we have experienced sine 1978. As
we explained, those outdated provisions resulted in dangerous
intelligence gaps by causing constitutional protections to be
extended to foreign terrorists overseas. It is critical that
Congress enact long-term FISA modernization to ensure that
the Intelligence Community can collect effectively the
foreign intelligence information it needs to protect the
Nation. The bill passed by the Senate would achieve this
goal, while safeguarding the privacy interests of Americans.
Liability protection
Your assertion that the failure to provide liability
protection for those private-sector firms that helped defend
the Nation after the September 11 attacks does not affect our
intelligence collection capability is inaccurate
and contrary to the experience of intelligence professionals
and to the conclusions the Senate Select Committee on
Intelligence reached after careful study of the matter. It
also ignores that providing liability protection to those
companies sued for answering their country's call for
assistance in the aftermath of September 11 is simply the
right thing to do. Through briefings and documents, we have
provided the members of your committee with access to thei
nformation that shows that immunity is the fair and just
result.
Private party assistance is necessary and critical to
ensuring that the Intelligence Community can collect the
information needed to protect our country from attack. In its
report on S. 2248, the Intelligence Committee stated that
``the intelligence community cannot obtain the intelligence
it needs without assistance'' from electronic communication
service providers. The Committee also concluded that
``without retroactive immunity, the private sector might be
unwilling to cooperate with lawful Government requests in the
future without unnecessary court involvement and protracted
litigation. The possible recution in intelligence that might
result from this delay is simply unacceptable for the safety
of our Nation.'' Senior intelligence officials also have
testified regarding the importance of providing liability
protection to such companies for this very reason.
Even prior to the expiration of the Protest America Act, we
expereinced significant difficulties in working with the
private sector because of the continued failure to provide
liability protection for such companies. These difficultures
have only grown since expiration of the Act without passage
of the bipartisan Senate bill, which would provide fair and
just liability protection. Exposing the private sector to the
continued risk of billion-dollar class action suites for
assisting in efforts to defend the country understandably
makes the private sector much more reluctant to cooperate.
Without their cooperation, our efforts to protect the country
cannot succeed.
Pending legislation
Finally, as you note, the House passed a bill in November
to amend FiSA, but we immediately made clear that the bill is
unworkable and unaceptable. Over three months ago, the
Administration issued a Statement of Administration Policy
(SAP) that stated that the House bill ``falls far short of
providing the Intelligence Community with the tools it needs
to collect effecively the foreign intelligence information
vital for the security of the Nation'' and that ``the
Director of National Intelligence and the President's other
senior advises would recommend that the President veto the
bill.'' We adhere to that view today.
The House bill has several grave deficiencies. First,
although numerous senior intelligence officials have
testified regarding the improtance of affording liability
protection for companies that assisted the Government in the
aftermath of September 11, the House bill does not address
the critical issue of liability protection. Second, the House
bill contains certains provisions and serious technical flaws
that would fatally undermine our ability to collect
effectively the intelligence needed to protect the Nation. In
contrast, the Senate bill deals with the issue of liability
protection in a way that is fair and that protects the
national security. In addition, the Senate bill is carefully
drafted and has been amended toa void technical flaws similar
to the ones in the House bill. We note that the privacy
protections for Americans in the Senate bill exceed the
protections contained in both the Protect America Act and the
House bill.
The Department of Justice and the Intelligence Community
are taking the steps we can to try to keep the country safe
during this current period of uncertainty. These measures are
remedial at best, however, and do not provide the tools our
intelligence professionals need to protect the Nation or the
certainty needed by our intelligence professionals and our
private partners. The Senate passed a strong and balanced
bill by an overwhelming and bipartisan margin. That bill
would modernize FISA, ensure the future cooperation of the
private sector, and guard the civil liberties we value. We
hope that you will support giving your fellow members the
chance to vote on this bill.
Sincerely,
Michael B. Mukasey,
Attorney General.
J.M. McConnell,
Director of National Intelligence.
I think that really says it all. Everybody agrees, both Republican and Democrat alike agree that the intelligence product is being degraded. This really isn't a partisan issue. It should not even be an ideological issue. This is simply an issue of common sense, doing what is right for the American people, putting their interests ahead of the special interests.
With that, I would be happy to yield back to the gentleman from Texas, because I know there are others who would like to participate in this colloquy.
What I would respond is that the telecommunication companies at the request of their government were asked to cooperate and help us pursue terrorists. Obviously they have much of the infrastructure that we need to pursue these terrorists.
I would have to put this whole issue under the category of ``no good deed goes unpunished,'' where people who are acting in good faith to help their government are now being sued for their efforts, again to protect the most litigious elements of our society.
Because of that, because of the failure to provide a retroactive immunity as contained in the Protect America Act, when we do not provide that retroactive immunity, we know that these telecommunications can no longer be good partners. Even though they want to be helpful, they can't be. They have to protect themselves from lawsuits. They have a fiduciary responsibility to their shareholders to protect themselves and their organizations. I think that is really what is driving us.
I would yield back to you, because you have been a distinguished member of the bar, you are a former U.S. Attorney, so you understand these issues probably better than just about anybody in this building.
If the gentleman would yield briefly on that point, in fact my own Attorney General of the Commonwealth of Pennsylvania, Tom Corbett, came down to Washington to meet me and expressly asked me to support the Protect America Act. He too, like you, was a U.S. Attorney, and he was emphatic in his support for this legislation, and seemed a bit incredulous that Congress would not provide these necessary tools to our law enforcement and intelligence officials.
I want to thank both of you for your eloquence on this critical issue. And with all these references to 9/11, I really believe it is important that we take seriously what this Congress did after 9/ 11. It created a commission, the 9/11 Commission, to make recommendations about how we can improve upon our Nation's homeland security and our national security. They made many recommendations; we are familiar with many. And, indeed, when the 110th Congress was first organized a little over 1 year ago, we were told by the new leadership under Speaker Pelosi that fulfilling those 9/11 Commission recommendations was a top priority. As it should be. And it is time that we equate those words with action. As you and I have both said, failure to do that is a dereliction of duty.
I believe that we have it within our means now to do what that 9/11 Commission wanted us to do, and I believe passing the Protect America Act is entirely consistent and compatible with what those folks who wrote the 9/11 Commission want us to do. And I believe that, again, failure to pass the Protect America Act really contravenes and contradicts what the 9/11 Commission stands for.
We also talked about this issue of liability and who is getting protected. One thing I guess I find particularly appalling is that, because of this approach to homeland security and national security to intelligence, many of our intelligence officials and officers have been forced to buy personal liability insurance to protect themselves from lawsuits from us, from Congress, from others who may choose to sue them. The phone companies are getting sued. Why not sue the intelligence officials? So what is happening is they are worried about being sued, and that is why they have had to find this type of insurance.
Mr. McCaul made a very interesting observation. He read an interesting quote a few minutes ago by that FBI agent, and I would like to put that quote into some context. In fact, at the time of the PATRIOT Act reauthorization a little over 2 years ago, there was an article written in the Wall Street Journal by a woman named Debra Burlingame. Who is Debra Burlingame? I guess she is best known because of her brother, Chic Burlingame, who was the pilot of one of the planes that crashed that day on 9/11, 2001 into the Pentagon. She had written this in the Wall Street Journal on January 30, 2006: Critics contend that the PATRIOT Act was rushed into law in a moment of panic. And there is relevant to our PAA here. 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 torturous set of rules promulgated by the Justice Department lawyers in 1995 and imagined into law by the Foreign Intelligence Surveillance Act Court, or the FISA Court, conceived as an added protection for civil liberties provisions already built into the statute that 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- Midhar and Nawaf al Hashmi 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.
In other words, the FBI criminal division and the FBI intelligence division couldn't communicate because of what was going on pre-9/11.
``Furthermore,'' she writes, ``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.'' And we all remember him.
``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.''
That is what Debra Burlingame wrote.
Further on in that article where Mr. McCaul began, and this is the woman whose brother was the pilot who crashed into the Pentagon on 9/ 11, she concludes by saying: ``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 August 29, 2001, e-mail to FBI headquarters,'' and I am going to restate what you just stated a few moments ago. The quote was from this FBI agent: ``Whatever has happened to this--someday someone will die--and wall or not--the public will not understand why we were not more effective in throwing every resource we had at certain problems. Let's hope that 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.''
Not my words, and how can anybody not be moved by this? How can anybody somehow think that our own FBI is a greater threat to the American people than is al Qaeda or Osama bin Laden?
Mr. McCaul, you are an attorney. You understand this issue well. We want to protect everyone's civil liberties, and at the same time we have legitimate security threats we must deal with.
Again, a powerful quote, the degradation and degrading of our intelligence capacities, stated by a Republican Attorney General and a Republican Director of National Intelligence, but also stated by the Democratic chairman of the Senate Intelligence Committee, that the intelligence product will be degraded as a result of our failure to enact the Protect America Act.
I can't help but note, the gentleman from Texas having served in law enforcement, many of the arguments I just heard you talking about in your colloquy with Mrs. Wilson were also some of the arguments that I heard at the time of the PATRIOT Act reauthorization.
Remember it was being said that somehow our library records were going to be looked into. Several of the 9/11 terrorists made their airplane reservations on public library computers, and they confirmed those reservations on public library computers.
I am not aware that anybody has ever sought a library record under the law. But I also remember, too, after meeting with some folks from the Attorney General's Office, and this is not a classified issue, I remember them telling me that a terrorist, when interrogated, they asked: Why were you constantly on the New York Public Library computers? His response was they clean their hard drives at the end of the day. Interesting point.
Another issue we heard at the time of the PATRIOT Act had to do with roving wiretaps, a tool I believe you, as a prosecutor, used over the years, and that we use in drug cases against organized criminals. We use that type of method. When we talk about using it for counterterrorism purposes, it seems as if we were creating some new structure. Do you want to address that.
Quickly, the bottom line is we should be listening to this foreign-to-foreign communication of people who are not American citizens who are suspected terrorists because you want to prevent what happened on 9/11 of 2001. For some of us, it was quite personal.
You mentioned what happened in 1993. My cousin spent the whole day on the top of that building, the South Tower, spent the entire day on the roof after what exploded in the basement, the garage of that building.
You know, he was there, also, on September 11, 2001. I remember that, too. He was on the 91st floor of the north tower when the plane entered the 93rd floor. Everybody above him was killed.
And for many of us it's personal. But if we have information, actionable intelligence, I would certainly hope that our counter terrorism officials, that our intelligence officials would do everything in their power to prevent such terrible events like 9/11 from ever occurring.
And again, I just want to state one more time that enacting the Protect America Act will help improve our intelligence capabilities, will protect Americans, and it's time that we get the job done. We have a bipartisan consensus to do it. Let's do it. The time for games is over. It's time to get the job done.
I yield back to my friend.