Floor Statements

Mr. Speaker, I rise in opposition to the motion to instruct, not because I disagree with the intent of the gentleman from Mississippi nor the other speakers on the other side, but rather, let's not screw up a good deal.

We have worked very hard on a bipartisan basis to bring forth a major piece of legislation dealing with an area of the country that needs to be addressed, and that is port security. The name of the bill is the Safe Ports Bill. The Senate retained our number, retained the name; the guts of our bill is in this conference report that I believe we will complete before the end of today. And if we instruct conferees in this regard, frankly, we complicate the effort to reach a final conclusion.

I am concerned about the area of rail and mass transit security. As a matter of fact, I held a hearing in our subcommittee today at the request of the ranking member, Ms. Sanchez, and the ranking member of the full committee, Mr. Thompson. I thought it was a good bipartisan examination of a number of issues that are out there.

Some have suggested that the very fact that we had that hearing may have prompted some action on the part of DHS to put further attention to these areas. I was very proud of the fact that on a bipartisan basis we approached that issue, and we will continue to approach that issue, and I hope that we will continue in a bipartisan spirit to complete this action.

As the gentleman from New York, the chairman of the full committee, has said, we are close to the goal line right now. It has been a lot of hard work by a lot of people on a bipartisan basis, starting with our staffs about a year ago. We reached across the aisle, and when we reached across the aisle we were met with open hands by the other side. We have worked together to complete a comprehensive response to the threat that exists or the vulnerability that exists at our ports.

It is natural that, when you are attacked by air, that you initially respond to the area of attack. But we are 5 years after 9/11. We are 5 years past the time when we can say that we don't know or didn't know or don't know now of the vulnerabilities that exist with respect to our ports.

This is a major piece of legislation. This will be, when completed, a major achievement; and all I would say to my friends on the other side is, please join us ultimately in supporting this overall bill, as you have to this point.

We will ask for a defeat of this motion to instruct not because of the spirit in which it is offered but because of the complications that it will create and the difficulties that will ensue. If you want to have a viable response to the concerns that have been raised about port security, vote against this motion to instruct so that we can get to the business of completing our action during our conference later today, so we can bring to the floor of this House within the next 24 hours a completed bill, a bill that started in the House of Representatives, a bill that remains in the contours of what will be presented to the conference today, the guts of the bill that passed this House 421-2.

When you have something that passes the House 421-2 you ought to learn to accept ``yes'' for an answer. This is a great piece of work that is going to be presented. It doesn't answer all the questions, but moves us in the proper direction. It puts into law or will put into law many of the things that were first started with this administration but which are not in law, which are not mandatory, which are not permanent, and it extends those. And ideas from both sides of the aisle were put into this bill and will come out of this conference when we complete action.

So while I rise in opposition to the gentleman's motion to instruct, I do so in the spirit of cooperation that, once we get past this and once we get to the conference and once we come back with our completed conference report, we can all join together with another near unanimous vote for a safe ports piece of legislation.

Mr. Speaker, I thank the gentleman for yielding, and I note the gentleman from Florida's fondness for quoting Benjamin Franklin. It is interesting the debate we are engaged in today is not a new debate, because there has always been debate about the tension that has been developed or actually written into the Constitution among the three branches of government dealing with difficult issues like this.

And while the gentleman from Florida commended us to a conversation by the esteemed Founding Father Benjamin Franklin, I would give him another one. In 1776, Benjamin Franklin and the other four members of the Committee on Secret Correspondence explained their unanimous decision not to tell their colleagues in the Continental Congress about a sensitive U.S.-French covert operation by writing: ``We find, by fatal experience, that Congress consists of too many Members to keep secrets.''

There was a tension that they understood at that time, and there is a tension that naturally resides in this because of the unique character of the

President as Commander in Chief and his ability to ferret out foreign intelligence. So the question is how do we try and deal with that tension?

I would suggest to my colleagues that the fact that we have not had an attack since 2001 on U.S. soil is something for which we can all be thankful, but safer does not mean there is any room for complacency. As the events in Bali, Madrid, and London on 7-7 indicate, we are still at war with an enemy that is fully devoted to one thing: the murder of innocent people, specifically Americans, men, women, and children.

And in this effort to protect our citizens, the daunting task before us is to thwart the efforts of an enemy who operates underground by stealth and deception and at the same time not rip up our Constitution. This is made all the more difficult, in that, unlike traditional criminal cases, our success will be measured by the ability to prevent a future terrorist attack. This requires an ongoing assessment of how best to equip law enforcement and the intelligence community with the tools to respond to an enemy who is constantly morphing.

In meeting this challenge, intelligence is the necessary bridge to successful homeland security protection. The Foreign Intelligence Surveillance Act is, therefore, an essential and critical tool in our efforts to protect the American people. But one aspect of this challenge requires us to try and ensure that any gaps between the state of law and technology are closed to prevent their exploitation by a lethal enemy. In this regard, this bill before us, H.R. 5825, seeks a technology-neutral approach, which places greater emphasis on the nature of those surveilled and their location.

For example, an international call by a non-U.S. citizen to a terrorist organization would be treated the same under the law regardless of whether the non-U.S. person uses wire or radio technology. When FISA was enacted, domestic communications were transmitted via wire, while international communications were transmitted via radio. In recent years, international communications are increasingly transmitted through undersea cables, which are considered wire. This bill recognizes that international communications should be treated the same regardless of the specific technology at issue.

At the same time, this bill enables us to focus on protecting the reasonable privacy expectation of U.S. persons. Those with legitimate concerns over the scope of electronic surveillance should join us in supporting this legislation and supporting this rule to allow consideration of the legislation. In fact, the bill provides greater clarity in circumscribing the permissible limits of such surveillance.

Remember what the 9/11 Commission said: ``The choice between security and liberty is a false choice. As nothing is more likely to endanger America's liberties than the success of a terrorist attack at home.'' Support this rule and support this bill.

Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, I am not sure what bill I just heard referred to. As I read this bill, as one of those who helped to write this bill, we have time limits in this bill. We have notices in this bill. We have requirements in this bill. This bill attempts to do what we should want to do, that is, base it on the expectation of privacy of the individual involved.

This bill attempts to try and bring up to date the FISA law, a law that was established at a time when technology was far different than it is today. This is an attempt to try and bridge that gap that was created as a result of technology changing.

We set into motion by the law when FISA was first established and in accordance with those technologies which were then available. This is an attempt to allow us to still secure that kind of information that was always allowed under the FISA law, always anticipated to be under the FISA law, but which might be brought into question by the change in technology which has taken place.

It also attempts to try and deal with that tension I mentioned before that exists as a result of the constitutional powers that the President has, that we have, and that the judicial branch has and in an area of law where for many years, since the beginning of this Republic, the Supreme Court has found that the President has not exclusive, but preeminent, power or preeminent authority.

And there is a reason for this. It is the reason Benjamin Franklin talked about in the quote I gave earlier this evening. It is the reason for the kind of functions that take place in a war-time scenario. It is a recognition that you can have one Commander in Chief and that one Commander in Chief has, as part of his responsibility, the requirement to be able to obtain intelligence about the enemy, intelligence about the foreign power.

So the question is, How do you construct a law which allows the President to exercise that responsibility and at the same time allows us to exercise our responsibility? There seems to be this idea where we say that there is an inherent power in the President, but then we don't recognize it at all. Or if he acts, and acts pursuant to that constitutional provision, what he has done is unconstitutional and illegal. And we therefore say, when we try to construct a law which we hope will cover most of the areas of activity by the President, where it will engender a greater spirit of cooperation, we say that what he did or if he asserts that authority, somehow that is unlawful or unconstitutional.

We have prerogatives in the House of Representatives. There are areas of cooperation. There are areas where we have preeminent power, such as the House of Representatives is given the responsibility and the authority to begin any law which would take money from the pockets of our constituents. The President of the United States cannot do that under the Constitution, yet he does work with us in that regard, in many different ways even before he gets the final bill.

What we have done here is to try to set up a structure which calls for the kind of activity that will be reported to us on a regular basis, with time requirements that don't exist in current law today. It circumscribes some of the activities that otherwise are questionable right now, and it sets up a framework for cooperation, it seems to me.

So I hear a lot of, and I have used this word before, but hyperbole here on the floor. We have men and women of good will on both sides of the aisle that have differences of opinion on this. But to condemn this as somehow an effort for us to give away our power; that somehow this allows the President to continue to act in an illegal way or to cover up previous illegal activity betrays a lack of understanding of the Constitution, of the structure of this House, and of activity of prior administrations, both Democrat and Republican.

I would ask us all to support this well-crafted bill.

Mr. Speaker, I rise in support of the rule. Listening to the debate, it is very interesting. The gentlewoman from New York's description of our treatment of captured alleged terrorists was astonishing. As a matter of fact, after listening to her litany of complaints, President Chavez's comments at the United Nations appear mild.

We have not violated the rights of individuals. This bill creates a fair and orderly process to detain and prosecute al Qaeda members and others captured during the war on terror. We extend more rights to these individuals than our POWs would ever expect under the Geneva Accords.

And the suggestion raised by another Member on the other side, that somehow we are violating hundreds of years of precedent, is absolutely wrong. We are not talking about the great writ that is found in the Constitution, the great writ of habeas corpus. We are talking about a statutory writ, which the Supreme Court has said time and time again Congress has the right to create, Congress has the right to constrict, Congress has the right to eliminate.

We do not just leave these people devoid of an opportunity for appeal. Rather, we set up a mechanism where an appeal can go to a single court, the District Court of Appeals for the District of Columbia, so that we can avoid the violations of justice that take place by the abuse of habeas corpus by some already involved.

Besides, we already made this decision in this Congress a year ago. What this does is say to the Supreme Court, we meant what we said when we passed the law a year ago which said this should apply to people already in Guantanamo.

That was our intent. Unfortunately, the Supreme Court believed it not to be found in the language. This makes it clear that what we said a year ago we say again, only we say to the Supreme Court, ``This time we really mean it. Please follow it.''

It is not a violation of any rights. It extends more rights to these people than they are allowed under any other regime of law in the world, and any nonsense spoken on this floor to suggest otherwise ought to be rejected in whole and in part. We ought to support this rule and support this bill.

Mr. Speaker, I thank the gentleman for yielding.

Mr. Speaker, there has been some discussion by some on the other side to suggest that somehow this bill that we bring before us is unconstitutional, that it grants powers to the President that are somehow unconstitutional.

Let me just read from the concurring opinion of Justice Breyer in the Hamdan case when he basically said that their decision rested upon a single ground, that Congress had not issued the executive a blank check, that the President had to go back to us to get authority for this. Then they go ahead and say nothing prevents the President from returning to Congress to seek the authority he believes necessary.

The President believes this authority is necessary. We have worked with him in both the House and the Senate, two different committees on the House side, to try and give him the authority he believes necessary, in the words of Justice Breyer.

We need to be clear on some things concerning the language of section 7 of this bill. This action is necessary because, in Rasul, the United States Supreme Court interpreted the Federal habeas corpus statutory scheme as allowing those detained in Guantanamo Federal petitions for relief in the Federal courts. The decision was, to say at the least, a major departure from historical precedent. However, this is important. Since the decision was based solely on an interpretation of a statute, 28 U.S.C. 2241, it was easily correctable by congressional action.

That is exactly what we did with the Senate with the enactment last year of the Detainee Treatment Act. This statute replaced statutory habeas review with a process of administrative review in which it ultimately would be subject to review by the United States Circuit Court of Appeals for the District of Columbia Circuit.

So we are not changing the scheme, the statutory scheme of habeas corpus. This Congress already did it a year ago. What we are dealing with is the Hamdan case, another case of statutory interpretation in which the court failed to apply the Detainee Treatment Act to cases which were then pending as of the date of the enactment. Thus, we are here once again to clarify what we have already determined to be the law. In short, section 7 of our bill informs the court that this time we really mean it.

For us to do anything other than to affirm the Detainee Treatment Act would indeed be a dramatic departure from what has been deeply rooted in our Nation's legal tradition. Contrary to what has been said on the other side, the United States Supreme Court recognized the 1950 case of Johnson v. Eisenstrager that there is, and this is the Supreme Court speaking, ``no instance where a court in this or any other country where the writ is known issued it on behalf of an alien enemy.''

So we are not changing the law, we are not being inconsistent with the court, we are not being unconstitutional. What we are doing is precisely in the mainstream of what the Court has said.

Furthermore, this raises an additional question which must be clarified. The debate today relates to the interpretation of a statute and has absolutely nothing to do with what is referred to as the other writ. The other side keeps talking about this has been in our existence for hundreds of years. They speak of it as being part of the Constitution. Folks, that is the great writ, capital G, capital W. This is the statutory writ. Two different things. Two different things. We have to understand that. In both the Rasul and Hamdan, the question relating to the Detainee Treatment Act was one of statutory interpretation. The Supreme Court did not refer to the great writ; they referred to the statutes. The statutory habeas framework found in title 28 is a creature of Congress. In fact, in Ex Parte McCardle, the United States Supreme Court upheld congressional limitations on the scope of judicial review concerning the habeas statute.

What Congress creates, it can also limit. Even professor Erwin Chemerinsky, with whom I seldom agree, points out in his treatise on Federal Jurisdiction that, following the Civil War, congressional statutes rather than the constitutional provision are the source of rights relating to habeas corpus.

At the same time, as has been pointed out but needs to be pointed out again, this bill goes to great lengths to ensure detainees will receive full and fair consideration of their claims. The bill allows the respected article 3 court, the U.S. Court of Appeals for the D.C. Circuit, to review two key government decisions: one, a combatant status review tribunal's determination that a detainee is an enemy combatant; and, two, any final decisions by the military commissions authorized by this bill. This is ample protection when compared with the requirement of a review of status by a competent tribunal under article 5 of the Geneva Conventions.

In fact, this legislation before us would expand the eligibility of judicial review over that provided in current law. It would expand it, not contract it, not remain the same. It would actually expand it. I urge my colleagues to vote for this bill.

Mr. Speaker, just in reference to comments that were made several times by people on the other side of the aisle that this would cover a cab driver or bus driver, I would hope that they would look at the language of the bill. It says whoever knowingly transports a minor across State line with the intent that the minor obtain an abortion, and thereby in fact abridges the right of a parent. So that is not just someone who gives them transportation, someone who intentionally brings them across a State line with the intent that they obtain an abortion.

Mr. Speaker, since merely identical legislation passed the House in April 2005 by a vote of 270-157, there have been several developments that make it clearer of the need to pass this bill. First, a Pew Research Center poll found that large majorities in all religious groups and about two-thirds of nonchurchgoers believe girls under 18 should receive parental consent before an abortion.

According to the Pew Research Center poll, as has been the case for more than a decade, most of the public favors requiring women under age 18 to obtain the consent of at least one parent before being allowed to get an abortion. Nearly three-quarters of Americans support such a requirement, while just 22 are opposed.

The point I make on this is that this bill is not out of the mainstream. This bill is right in the mainstream. This bill is to allow the enforcement of State laws that are constitutional with respect to parental notification. To evade parental notification laws by means of taking a young girl across a State line is what this bill is aimed at. Nothing more, nothing less than that. It is appropriate. It is consistent with the vast majority of people in the United States. It is consistent with the 33 States in the Union that have enacted such legislation.

What it does is it requires intent on the part of the actor, that is, they must intentionally act to evade the law in order to assist in procuring an abortion for a young person in a State where notification is required. Nothing more, nothing less.

Mr. Speaker, I thank the chairman for yielding.

Mr. Speaker, like many, I was affected by 9/11. As a matter of fact, that is the reason I decided to return to public service and sought an opportunity to serve in this body after a 16-year absence. I have spent a considerable amount of time with my colleagues on both sides of the aisle attempting to fulfill my obligation in that regard. And I am reminded, basically because of my service as attorney general of California, that oftentimes we not only need to mark something that has happened in the past but we need to also talk about the things that we have effectively done to respond to whatever challenges occurred out of that event, because if we do not, we fail to help lead the people, that is, we fail to tell our constituents that those sacrifices that they have made, the programs that they have enacted through us, have had merit. Because if you do not do that, after a while those you seek to represent have no sense that we are actually doing something effective.

So it seems to me very much appropriate, not shameful, that the chairman of my committee would construct this resolution that not only cites the tragedy of 9/11 but talks about the efforts we have made in this Congress, with the executive branch, to respond to the challenges that came out of that tragedy.

Earlier this year the House overwhelmingly passed the SAFE Port Act on a bipartisan basis, 421-2. This act addresses port security defenses within and beyond U.S. ports. As a matter of fact, as we are now speaking, the United States Senate is dealing with that.

We have taken steps to prevent our own facilities from being used against us as weapons of mass destruction and to protect our critical infrastructure. A few months ago our committee passed legislation to guard against terrorist attacks on our chemical facilities on a bipartisan basis.

Finally, we have taken steps, as importantly, to respond to the suggestion by the 9/11 Commission to do something about securing our country by preventing terrorists and their weapons from being smuggled across the borders. So that is the reason why, in fact, we have this included in this resolution.

So, Mr. Speaker, rather than taking exception to this resolution, I would hope that we would join together on a bipartisan basis to say certainly the journey has not ended, but we have done a lot. And anyone who stands here and says that we are not safer today than we were on 9/ 11 either is tragically uninformed or is intentionally misinforming the American people.

Yes, we have more to do. But we should look back on those things that we have joined together to do successfully.

Mr. Speaker, I am now pleased to yield 3 minutes to the distinguished gentleman from New Jersey (Mr. Frelinghuysen), member of the Appropriations Committee and vice chairman of the Subcommittee on Defense Appropriations.

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

Mr. Speaker, I yield for the purpose of making a unanimous consent request to the distinguished gentleman from Florida, the former chairman of the Appropriations Committee, Mr. Young.

(Mr. YOUNG of Florida asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I am now pleased to yield 2\1/2\ minutes to the distinguished gentleman from Florida (Mr. Bilirakis), a member of the Energy and Commerce Committee and vice chairman of the Veterans' Affairs Committee.

I now yield 2 minutes to the distinguished gentleman from Nebraska (Mr. Fortenberry), a member of the Agriculture, International Relations, and Small Business Committees.

Mr. Speaker, I yield myself 5 minutes.

Mr. Speaker, 5 years ago there were a lot of questions as to who attacked us and why we were attacked. Answers came to that in fairly short order, but the question of why still remained and what those who attacked us had in order for us in the future.

In the book, ``Nuclear Terrorism,'' there is a citation to Osama bin Laden's official press spokesman

Suleiman Abu Gheith making a chilling announcement on the now defunct al Qaeda-associated Web site, and these are his words.

``We have the right,'' he said, ``to kill 4 million Americans, 2 million of them children.'' Let me repeat that. The spokesman for Osama bin Laden said on their Web site, ``We have the right to kill 4 million Americans, 2 million of them children, and to exile twice as many and wound and cripple hundreds of thousands.''

He went on the Web site to explain what justified it, and these are his words. ``America with the collaboration of the Jews is the leader of corruption and the breakdown of values, whether moral, ideological, political, or economic corruption. It disseminates abomination and licentiousness among the people via the cheap media and the vile curricula. America is the reason for all oppression, injustice, licentiousness, or suppression that is the Muslim's lot. It stands behind all the disasters that were caused and are still being caused to the Muslims; it is immersed in the blood of Muslims and cannot hide this.''

Why do I mention this? I mention it because the threat is clear. They have officially said that they would not feel that they have succeeded until they have taken 1,400 assaults similar to those of 9/11, because that is what would be required, 1,400 times the loss of life that we had on 9/11.

They do not refer to any cleavage between Democrats and Republicans. They do not say they do this because of what this administration did or that administration did or because of what the Democrats did in the Congress or the Republicans. They did that because they reject everything we stand for.

That is why we bring this resolution to the floor. This resolution is brought to the floor in recognition of the threat against us, the challenges it presents and what we have done working together, Republicans and Democrats, men and women who are Americans first to try and respond to that threat for ourselves, our children and our grandchildren.

We need to remind the American people of the affirmative steps that we have taken: the PATRIOT Act, which changed the way we dealt with the threat of terrorism; other programs that we have supported and the administration has carried out.

So this is not a fight over partisanship. This is not a suggestion of one-upsmanship. This is a recognition of the threat that faces us as Americans, and we are committed and united as Americans to respond to that.

That is what this resolution stands for. That is what it says. That is why we bring it to the floor, to ask all Members to support it so that we can show that there is unity in this body, not division, so that we can show that we understand the challenges that we face and that we are up to the challenges that face us as a Nation.

We can do no less than our parents' generation did in responding to the totalitarianism of their time as we respond to the totalitarianism of our time.

Mr. Speaker, this is not an effort to divide. It is an effort to unify. It is an effort to show the American people that we are together in this fight and we shall continue this fight

Mr. Speaker, I yield 4 minutes to the gentleman from Virginia (Mr. Tom Davis).

Mr. Speaker, we yield the balance of our time to the gentleman from Ohio (Mr. Boehner), the distinguished majority leader.

Mr. Speaker, I yield to the gentleman from Connecticut (Mr. Shays) for the purpose of a unanimous consent request.

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

Mr. Speaker, I would like to yield 1 minute to the gentlewoman from Connecticut (Mrs. Johnson).

Mr. Speaker, I have heard it said that the President's veto is a political game. There are no political games being played here, except yesterday when the authors of this bill that is before us argued that people should vote against H.R. 5526, the Alternative Pluripotent Stem Cell Therapies Enhancement Act. Why would they do that? A bill that would allow a neutral, that is neutral with respect to ethics, opportunity to develop pluripotent stem cell therapies. And yet we are told here that we are allowing ideology to get in the way of science.

What was yesterday's request by those who authored this bill? You know, we have to consider ethics. Science cannot tell us what to do. It tells us what we can do, but it does not tell us what it is ethically appropriate to do.

This country leads the world in medical research, but it also leads the world in ethical action. We should not be losers in either side. Support the President's veto.

Mr. Speaker, the argument on the floor that somehow this is a church issue misses this point entirely. We are talking about the legal implications, and whether or not the Government of the United States can recognize a preferential status for marriage between one man and one woman.

Now, is this unprecedented? No, it is not. Read your American history. The State of Utah was not allowed to become a State until they recognized marriage as being only between one man and one woman. That had to do with whether you could have multiple partners.

This is a different aspect of that question, but essentially the legal basis is the same. And that is what we are talking about here. Those who wish to change this, as these activist judges do, carry the burden of arguing why we should change an institution which has stood the test of time for thousands of years.

There are reasons for this in terms of it being the most stable unit of society upon which our society has found itself in need. That is what we are talking about. It is not discrimination. It is allowing the existence of a definition of the most fundamental unit of society. That is it simply. We are not intruding in the province of churches.

Mr. Speaker, where to begin? We have heard the argument that somehow we shouldn't bring constitutional amendments to the floor; we shouldn't amend the Constitution.

It is a very interesting argument when you realize there are two ways to amend the Constitution, one is the formal process that is contained in the Constitution itself, which we are embarking upon today, and the other one is by activist judges.

People don't like to hear that. They seem to say judges have the right to amend the Constitution, to give new meaning to the words of the Constitution, to actually give the opposite meaning to the words of the Constitution and we have to accept that forever, because if we do anything opposed to that, we are somehow changing the Constitution, even though we are following the exact requirements of the Constitution itself.

The second thing that is said is wait a second, no court has declared marriage to be unconstitutional in the traditional sense, so we should wait until that happens. In other words, if we take an anticipatory action, somehow we are unconstitutional.

How have we changed the terms of the debate when we are talking about a traditional definition of marriage that has stood the test of time for thousands of years, has been understood by every single one of our Founding Fathers at the time of the formation of this country, that somehow we are the ones that are upsetting the apple cart; when, in fact, it is those who wish to change this traditional definition in a radical way?

They say, well, the Federal Government should not be involved in it. And yet we pointed out historically the Federal Government has been involved in defining marriage, refusing to allow at least the State of Utah to become a State until they accepted that definition of marriage.

What we are talking about is changing the fundamental vision of marriage that is in our civil structure, a preferential treatment that is allowed under our laws for marriage, understood traditionally. And they say, well, we passed DOMA so you don't have to worry. Yet, many who are saying that argued on the floor of the House that DOMA was unconstitutional. Professor Lawrence Tribe has said it is unconstitutional. Many of the organizations who are against this particular amendment have argued in court that it is unconstitutional and believe it is only inevitable until they overturn it by way of their particular lawsuits brought against it.

So the question here is really, do you believe there is reason to maintain the traditional definition of marriage, allowing it to be the essential unit of our society, not that there aren't other units of society, but the essential unit of our society that has withstood the test of time? That is the simple question before us.

We never asked for this debate. This debate began with, yes, activist judges who said, wait a second, times have changed and, therefore, the traditional notion of marriage is out the window.

Why? Who said so? Because of what?

This is not a question of discrimination as some have argued on the other side, unless they are saying we are discriminating against bigamy and polygamy, because the United States has spoken, as I said before, in saying the traditional definition of marriage is enshrined in our institutions and in our law.

Mr. Speaker, what I would like to ask is this: Does the gentleman see any problem with society allowing preferential status in some ways to the traditional marriage between a man and a woman? Because that, to me, is what it really comes down to.

Mr. Speaker, if I could just respond to the question of federalism.

There is a mistake on this floor when people are talking about this being a violation of federalism. Federalism, properly understood, is a check on the power of the Federal Government by the State government and vice versa.

The reason why the federalism issue does not apply here is because marriage and the family is likewise an institution, although a private one, which provides a countervailing source of power vis-a-vis the government, and there are lot of arguments on the floor. It is too bad we do not have a lot more time to talk about it.

The simple question, though, is are we going to fundamentally change the definition of marriage, understood in this country since its founding, and allow a preferential status for marriage properly understood? That is what we are really talking about. It is not discrimination. It is the question of whether you allow the traditional form of marriage to be given preferential status.

Those that argue against this amendment do not want that to be the case anymore. They are the ones that are overturning history and overturning the way things have been done for several hundred years in this country and thousands of years in this culture.

Mr. Speaker, today I am introducing the Folsom South Canal Cost Deferral bill, to prevent California water customers from having to shoulder the costs of unused capacity in the Folsom South Canal, a Bureau of Reclamation, Bureau, water conveyance.

The Folsom South Canal was authorized by Congress in 1965 to include five water conveyance segments or ``reaches.'' The canal was intended to deliver water from the Auburn Dam and related facilities to municipal and industrial water and irrigation users in the Sacramento area and on south to irrigated agriculture in the planned East Side Division.

The first two reaches--a total of 26 miles of the canal were built to the Sacramento-San Joaquin County line. They were designed and constructed to accommodate enough water to meet anticipated demand in Sacramento and in the East Side Division. However, the East Side Division was never authorized and, thus, has not been developed. As a result, the remaining three reaches have been reclassified by the Bureau as ``Construction in Abeyance.''

Because the canal project, as originally designed, was not fully developed, Central Valley Project, CVP, water customers that today take delivery of water from the completed reaches are now shouldering the entire capital cost of the canal, plus interest. This does not seem fair, since they had no control over the design or construction of the project and bear no responsibility for the fact that the East Side Division did not materialize.

My bill authorizes the Secretary of the Interior to defer that portion of the capital costs and interest that corresponds to the unused capacity of the canal. This will prevent current municipal and industrial and irrigation water customers from having to pay costs associated with an oversized canal. In the next few years, the question of the Auburn Dam may be revisited and other water users may seek allocations of CVP water. My bill does not permanently settle the issue of the excess capital costs--it merely defers those costs until other decisions about the future of the CVP are made. The bill also authorizes the Secretary, during the deferral period, to periodically review and adjust, as appropriate, the amount of the unused capacity of the canal and the amount of reimbursable capital and interest of the canal.

Mr. Chairman, 25 years ago I stood on this floor in support of this

bill. I worked with both the chairman of the Judiciary Committee and the ranking member at that time not only on this bill, but on the Martin Luther King holiday and on the fair housing legislation. I am very proud of that activity.

I rise in support of the bill that is on the floor. But I will rise in support of several of the amendments as well. I want to make several comments on this. One is, as a Catholic, I believe in the immaculate conception, but there is only one that I am aware of and that is not this bill.

The suggestion that we cannot look at this bill and look at any carefully tailored amendments I think is an erroneous one. I had a simple amendment that I offered before the Rules Committee. I had no objection; in fact, it was considered to be the least objectionable, if objectionable at all, but I was told if we adopted my amendment it would upset a carefully crafted delicate balance.

My amendment was simply to allow three counties in California and one township in New Hampshire to bail out, as we used to call the provision, because they had gotten in because of a curious historical moment. That is, in 1972, at the height of the build-up of the Vietnam war we had large numbers of people at military installations; we had three counties in California that had military installations. Those people who were there were counted for purposes of the census, many of them didn't vote there because they voted in their home states or their home districts, and those counties have been caught in this preclearance ever since. It just seems a matter of fairness to allow them out, and yet there was no opportunity to provide that.

And the reason I bring that up is this: If you look at the Supreme Court decisions, the Federal Court decisions on this, they have said this law is constitutional only so long as it is congruent, that is, related to the State-sponsored discrimination for which there is historical record. And that it is proportionate to the damage done, both of those things, and my fear is that if we don't craft legislation that recognizes that, we don't give evidence of the fact that we crafted it, the Supreme Court could say that perhaps we haven't done the job, and then this extraordinary remedy in section 5 is no longer valid.

Why is it extraordinary? Because it is an extraordinary imposition on a jurisdiction to say that they have to have any decision they make precleared by those at the Justice Department. But the Court has said, as long as you have those two things, congruency and proportionality, they will allow it. That is why I have some question about extending it for a full 25 years.

Back in 1982, I think there was ample reason for us to extend it for 25 years. You would still have a sense of a temporary nature. But to do it now, I think does call into question whether we are following what the courts have told us.

So all I would say is, I hope Members, while supporting the underlying legislation, will look at each amendment and see whether it helps undergird the constitutionality of this worthy bill that has done great things. But let's make sure we continue to carefully tailor it to the circumstances before us.

Mr. Chairman, I thank the gentleman for yielding me time.

Mr. Chairman, I rise in support of this amendment in order to enhance and support the constitutional framework upon which this law before us is predicated. The reason I say that is that, you know, 25 years ago, as I mentioned, I was working with the distinguished ranking member of the full committee on extending this law for 25 years.

At that time, there seemed to be evidence supporting that. But I have been gone for 16 years in this House. I come back and find there are very few Members here who were here when I was here before. As a matter of fact, sometimes I talk to Members and I feel like I am sort of the museum piece being pulled out for people to observe.

The only point I make is 25 years is a long time. And if you look at the testimony before the Senate Judiciary Committee by Professor Hasen from Loyola Law School in Los Angeles, he points out that this kind of amendment may very well be the kind of amendment that saves this law under consideration by a future Supreme Court with respect to its constitutionally.

Why? Because he said, beginning in 1965, Congress imposed the strong preclearance remedy on those jurisdictions with what the Supreme Court called a pervasive, flagrant, and unremitting history of discrimination in voting on the basis of race.

In South Carolina v. Katzenbach, the court upheld section 5 of the act as a permissible exercise of congressional power. But what has changed since 1965, as Professor Hasen says, both the law and the facts. And he suggests that we may be creating an infirm law by extending it for 25 years because the Court has said you have to have a connection with the historic discrimination, and it has to be proportionate to that.

And it has to pass those two tests. And the very argument that we extend it for 25 years, I think, argues against the defense of this in court. And rather than saying that the gentleman from Texas's amendment is an amendment that weakens this law, I believe it strengthens it. I suggest again, we have three counties in California that are under preclearance coverage only because in 1972 they had military installations, and so the people there were counted in the census, even though they voted in their home States.

One of those counties has 49.6 percent participation. Those counties have not been able to get out from under it. Now we are going to say, for another 25 years, because of the presence of military in your sparsely populated counties during the height of the Vietnam War, you are not going to be able to get out.

I find that difficult to justify if you are appearing before the Supreme Court saying that we have carefully tailored this bill. So I would just ask my colleagues, look at this amendment. It is not a gutting amendment. It is an intelligent amendment that really goes to supporting the constitutional framework of this bill.

I thank the gentleman for yielding.

Let us be clear what this would do. The Nadler amendment would prohibit the FBI from using these NSLs to obtain any financial records or health records from health insurance companies even if those records are indisputably relevant to an international terrorism or espionage investigation.

Indeed, the FBI would be prohibited from using the NSL to obtain financial records of a known terrorist from a health insurance company, no matter how much evidence the FBI possessed of the target's involvement with terrorism. It would not just prevent the FBI from obtaining medical records.

Currently, the FBI can obtain health insurance records through the use of administrative subpoenas without the approval of a judge to investigate not terrorism but health care fraud offenses. So if the FBI is allowed to use administrative subpoenas to obtain these records to investigate health care fraud by dirty doctors, then it should be allowed to use these NSLs, which are similar to administrative subpoenas, to obtain these same records in international terrorism investigations which may involve dirty bombs.

This is basically the same amendment Mr. Nadler offered to last year's appropriation bill that was defeated on

this floor. The only thing that has changed since that time is not the language of his amendment but in fact the enactment of the reauthorization of the USA PATRIOT Act which contains several new protections to prevent abuse of this authority.

However, even without the new protections, there is no evidence of the abuse of these letters. Nonetheless, in March of this year, the President signed the bill; and it adds these protections which were not present last year when we debated this same amendment:

Clarification that recipients may disclose that they have received an NSL to an attorney or others necessary to comply with the NSL.

Secondly, explicit language that a recipient may challenge an NSL in court.

Third, explicit language that a recipient of an NSL may challenge the prohibition on publicly disclosing that he or she has received an NSL.

Next, for the first time, language requiring public reporting on the use of NSL authorities.

Next, requirement for additional classified reporting to Congress on the use of NSL authorities so we can exercise oversight in a more effective way.

And, finally, requirement that the Inspector General conduct two audits of the Justice Department's use of NSLs.

Last year, we debated this same amendment, same issue, similar appropriation bill. The only difference is we have added protections since that time by the reenactment of the PATRIOT Act and the signature of the President.

So if you voted against it last year, if you thought we should defeat it last year, you have more than sufficient reason to defeat it this year.

I thank the gentleman for yielding. Let us be clear what we are talking about here. We are not talking about, generally speaking, about the question of the privacy of medical records. We are asking whether NSLs are an appropriate means with which to obtain information from health insurance companies as they are utilized or a similar process, that is administrative subpoenas that are not obtained by a court, are utilized to look at health care fraud.

One of the things that we got out of the 9/11 Commission was the fact that we had failed to not only connect dots but failed to adapt our criminal justice investigative procedures in the face of this new threat, which is terrorism. Some people would say, well, why would health records be relevant to such a case?

Well, in the instance of anthrax, for instance, it would be relevant if someone had sought medical attention that would, in fact, basically inoculate them if they came into contact with anthrax. It would be of some assistance if a group of people involved, that we had suspicion were involved with a terrorist group, were inoculated for smallpox. I mean, these are those sorts of things that help us connect the dots.

Yes.

If the gentleman will recall, the Judiciary Committee has been very aggressive in oversight of Justice Department actions with respect to the PATRIOT Act. Several of the changes made in the law that I referred to before give us a greater handle on that because it requires more reporting to the Congress on what has been done with respect to NSLs in this regard.

So as I said, the biggest difference between our consideration of the gentleman's amendment last year and this year is there are more protections built in to the use of NSLs by the Justice Department than there were before. I thank the gentleman for yielding.

Will the gentleman yield?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I don't have the exact words.

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

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

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

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

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

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

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

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

Can we talk about----

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

Mr. Chairman, will the gentleman yield?

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

Mr. Speaker, I yield myself 15 seconds just to say I do not dispute the figure given by the gentleman from Pennsylvania. I dispute his logic.

I question the cause-and-effect relationship. Our presence has not created terrorists. Terrorists were around much before that. In the instance he cited with previous Presidents, yes, they did react, but obviously the totality of their reaction did not stop terrorism. We have a different plan, a different approach. That is what this President is following.

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

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

Mr. Speaker, I am pleased to yield 2 minutes to the gentleman from Pennsylvania (Mr. Dent), a member of the Homeland Security Committee and the Government Reform Committee.

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

Mr. Speaker, I am pleased now to yield time to the distinguished gentlewoman from Ohio (Mrs. Schmidt), who sits on the Government Reform Committee, 2 minutes.

Mr. Speaker, it is my privilege to yield a real 3 minutes to the distinguished gentleman from Virginia (Mr. Tom Davis), the chairman of the Government Reform Committee.

(Mr. TOM DAVIS of Virginia asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield to the gentleman from New York (Mr. Sweeney) for a unanimous consent request.

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

I yield to the gentleman from Ohio (Mr. Gillmor) for a unanimous consent.

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

Mr. Speaker, I yield to the gentleman from California (Mr. Radanovich) for a unanimous consent request.

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

Mr. Speaker, I yield to the gentleman from Georgia (Mr. Kingston) for a unanimous consent request.

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

Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Hensarling), who sits on the Budget Committee and the Financial Services Committee.

Mr. Speaker, it is my pleasure to yield 1\1/4\ minutes to the gentleman from North Carolina (Mr. McHenry).

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

Mr. Speaker, I yield to the gentleman from Georgia (Mr. Gingrey) for a unanimous consent request.

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

Mr. Speaker, I yield myself 1\1/ 2\ minutes.

Mr. Speaker, I have the greatest respect for the gentleman from Pennsylvania. When I returned to this House after an absence of 16 years, he was one of the first people to greet me. I have enormous respect for the work we did together with others here 25 years ago in fighting common battles.

I have a general disagreement with him on this approach. I don't question your patriotism. I certainly am attempting not to be sanctimonious about this. But I think there are some real questions that we must pose. One of them would be this: I have heard it said from your side of the aisle that we are attempting to force democracy on this country, and it will never work.

Look at the three elections they had, the increasing participation. And, frankly, contrast that with what occurred just this last Tuesday in the Commonwealth of Virginia, where, for a primary to determine who the Democratic nominee is going to be for the Senate, 3 percent of the people showed up, 3 percent of the registered voters.

I would suggest if we were on this floor talking about Iraq where only 3 percent supported, people would say democracy is a failure. I am not willing to give up on the Commonwealth of Virginia. I hope we are not willing to give up on Iraq.

Secondly, the question about Vietnam. And I have the greatest respect for the gentleman; he served there with distinction, just as my father served in World War II with distinction. But I would suggest there are a number of differences between Vietnam and this experience. And one of the chief ones is this: when we left Vietnam they did not follow us. If we leave Iraq, the terrorists would follow us.

Some would suggest that it is a shame that we are fighting them there. I say it is wonderful that we are fighting them there rather than here.

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

Mr. Speaker, I yield for the purpose of making a unanimous consent request to the gentleman from Georgia (Mr. Price).

(Mr. PRICE of Georgia asked and was given permission to revise and extend his remarks.)

Mr. Speaker, we have just two more speakers, the whip and then our majority leader.

Mr. Speaker, I yield 5\1/2\ minutes to the distinguished majority whip, Mr. Blunt.

Mr. Speaker, at this time it is my pleasure to yield the balance of my time to the distinguished majority leader (Mr. Boehner).

Mr. Speaker, I thank the gentleman for yielding, and I rise in support of this resolution.

Over a quarter of a century ago when I served in my first term during my first period of service in Congress, I remember making a very difficult phone call. That phone call was to the parents of a young man in uniform who had died in our failed attempt in the desert to attempt to rescue our hostages in Iran.

I recall the feeling of helplessness we had at that moment, not understanding what we were doing, not having a strategy as to how we respond to what was, very simply put, a terrorist attack.

I recall being awakened one morning to learn that we had suffered the loss of our marines in Beirut. I recall the attack on the USS Cole. And then, of course, I recall with all of us the terrible tragedy of 9/11.

Say what you will about the President's policies and say what you will about the imperfections involved, the fact of the matter is since 9/11 this President, this administration, has embarked on a strategy that says we will not wait to be attacked. We will not wait to respond exactly where they attacked us. We will change the rules of the game, and we will decide where and when we will attack.

We understand that this is a global war on terror. Those who suggest that the war in Iraq is not essential to our defense in the war on terror should only listen to the words of Mr. Zarqawi and the correspondence that he had last October where he suggested one of the very first objectives of al Qaeda was to make sure we were defeated in Iraq.

We should understand that we have done great things in response to this, on a bipartisan basis. We have given the President the tools to use, the PATRIOT Act, intelligence gathering that he did not have the capacity for before. And let me just mention a number of plots that have been deterred.

The West coast airliner plot in mid-2002. The U.S. disrupted a plot to attack targets on the West coast of United States using hijacked airplanes.

The East Coast airliner plot in mid-2003,

The Jose Padilla plot to blow up apartment buildings in the United States in May of 2002.

The 2004 U.K. urban targets plot where the U.S. and partners disrupted a plot that involved urban targets in the United Kingdom.

The 2003 Karachi plot.

The Heathrow Airport plot in 2003.

The 2004 U.K. plot.

The 2002 Arabian Gulf shipping plot.

The 2002 Straits of Hormuz plot,

The 2003 tourist site plot where the U.S. and a partner nation disrupted a plot to attack a tourist site outside the United States.

We are making progress precisely because we are playing away games, not home games. Let's not forget that as we debate this important resolution.