Mr. Speaker, let me thank the gentleman from Florida for his astute assessment and analysis in his earlier remarks today, particularly sharing with us his experience on the Intelligence Committee, and I thank him for mentioning the fact…
Mr. Speaker, let me thank the gentleman from Florida for his astute assessment and analysis in his earlier remarks today, particularly sharing with us his experience on the Intelligence Committee, and I thank him for mentioning the fact that I serve as the ranking member on the Crime, Terrorism, Homeland Security, and Investigations Subcommittee.
In that capacity, that committee certainly encounters not only our Nation's law enforcement but many of the issues dealing with terrorism, including the work on homeland security.
With that in mind, I want to simply say to my colleagues and, certainly, to my good friend, who served and dedicated his life to the FBI for 14 years, none of us over the past couple of
months will take a backseat to championing the FBI, thanking the FBI, recognizing the FBI for the very valiant work that it does.
Being on the Judiciary Committee for the number of years that I have served, I have worked with almost every FBI Director, and agents, particularly the SACs in my particular jurisdiction, and have been engaged in discussions on the resources and needs of that organization. Mr. Speaker, again, we thank them for their service.
I would offer to say that the position I take today is to protect the FBI and to protect the American people.
Mr. Speaker, I include in the Record, interestingly enough, an article written by Sheila Jackson Lee, ``Protecting America, protecting Americans,'' dated October 16, 2007.
[From the POLITICO, Oct. 16, 2007]
Protecting America, Protecting Americans
(By Rep. Sheila Jackson Lee)
Nearly two centuries ago, Alexis de Tocqueville observed
that the reason democracies invariably prevail in any martial
conflict is because democracy is the governmental form that
best rewards and encourages those traits that are
indispensable to martial success: initiative, innovation,
resourcefulness and courage.
The United States would do well to heed de Tocqueville and
recognize that the best way to win the war on terror is to
remain true to our democratic traditions. If it retains its
democratic character, no nation and no loose confederation of
international villains will defeat the United States in the
pursuit of its vital interests.
A major challenge facing the Congress today is to ensure
that in waging its war on terror, the administration does not
succeed in winning passage of legislation that will weaken
the nation's commitment to its democratic traditions.
This is why the upcoming debate over congressional approval
authorizing the administration to conduct terrorist
surveillance on U.S. soil is a matter of utmost importance. I
offer some thoughts on the principles that should inform that
debate.
In the waning hours before the August recess, the House
acceded to the Bush administration's request and approved the
woefully misnamed ``Protect America Act,'' which gives the
federal government enlarged powers to conduct electronic
surveillance of American citizens under the guise of
conducting surveillance of foreign terrorists.
Fortunately, the authority conferred by the PAA expires
next February.
It is therefore incumbent on the Congress to act
expeditiously to amend the PAA so that it achieves the only
legitimate goals of a terrorist surveillance program, which
is to ensure that Americans are secure in their persons,
papers and effects, but terrorists throughout the world are
made insecure.
The best way to achieve these twin goals is to follow the
rule of law. And the exclusive law to follow with respect to
authorizing foreign surveillance gathering on U.S. soil is
the Foreign Intelligence Surveillance Act.
Enacted by Congress in 1978, the exclusivity of FISA was
undisputed. Any legislation authorizing terrorist
surveillance programs which the administration seeks to
conduct must explicitly affirm that FISA is the sole basis of
lawful authority for conducting foreign surveillance
gathering on U.S. soil.
That FISA remains the exclusive source of authority does
not mean that the law cannot be adapted to modern
circumstances or revised to accommodate new technologies. One
widely acknowledged reform is to amend FISA to make clear
that foreign-to-foreign communications are not subject to
FISA, even though modern technology enables that
communication to be routed through the United States.
Additionally, the Foreign Intelligence Surveillance Court
is indispensable and must play a meaningful role in ensuring
compliance with the law.
Legislation must ensure that the FISC is empowered to act
as an Article III court should act, which means the court
should operate neither as a rubber stamp nor a bottleneck.
The function of the court is to validate the lawful exercise
of executive power on the one hand, and to act as the
guardian of individual rights and liberties on the other.
Congress should reject any proposal that grants amnesty to
any telecommunications company or other entity or individual
that helps federal intelligence agencies spy illegally on
innocent Americans.
Amnesty will have the unintended consequence of encouraging
telecommunications companies to comply with, rather than
contest, illegal requests to spy on Americans.
The only permissible path to legalization of conduct in
this area is full compliance with the requirements of the
Foreign Intelligence Surveillance Act.
Finally, authorization to conduct foreign surveillance
gathering on U.S. soil must never be made permanent. The
threats to America's security and the liberties of its people
will change over time and require constant vigilance by the
people's representatives in Congress.
In short, it makes much more sense to enact legislation
that protects Americans, rather than one that protects
America, as the administration's proposal claims to do. At
bottom, America is its people connected to each other, and to
past and future generations, as in Abraham Lincoln's
unforgettable phrase, by ``the mystic chords of memory
stretching from every heart and hearthstone.''
America, in other words, is Americans coming together in a
community of shared values, ideals and principles. It is
those shared values that hold us together. It is our
commitment to those values that the terrorists wish to break
because that is the only way they can win.
Thus, the way forward to victory in the war on terror is
for this country to redouble its commitment to the values
that every American will risk his or her life to defend. It
is only by preserving our attachment to these cherished
values that America will remain forever the home of the free,
the land of the brave and the country we love.
Mr. Speaker, that article suggests that we have the responsibility to protect America and Americans. I would make the point to my good friend, who mentioned that men and women or families sending their young people over to battlegrounds, they are absolutely right, and those young people who are going over to battlegrounds are going over on the basis of freedom. Their parents sacrificed, these loved ones sacrificed their young people because they believe so much in the freedom of this Nation.
Well, I will tell you that section 702 and the underlying bill, there is no freedom in this particular bill, and that is why we need to address the question in a thoughtful manner. I don't mind if we extend this to have a longer debate so that we can work through some of our concerns.
Let me be clear that S. 139 fails to address the core concern of Members of Congress and the American public. The government's use of section 702 information against United States citizens in investigations that have nothing to do with national security, that is the crux of our advocacy for both the Amash amendment, joined by myself and Zoe Lofgren and Ted Poe and many others--it is not to undermine the security of this Nation. It is to give substance to those families who sacrifice and send their young men and women to faraway places.
The warrant requirement contained in the bill is riddled with loopholes and applies only to fully predicated official FBI investigations, not to the hundreds of thousands of searches that the FBI runs every day to run down a lead or check out a tip.
S. 139 exacerbates existing problems with section 702 by codifying the so-called bulk collection, a type of surveillance that was shut down after it twice failed to meet the Fourth Amendment scrutiny.
S. 139 is universally opposed by technology companies, privacy and civil liberties groups across the political spectrum.
Let me read briefly what the Amash amendment really says. It is not something that would stop security, surveillance, and work in its tracks. What it does is, ``Except as provided in subparagraph C or D, no officer, agent, or employee of the United States may conduct a query of information acquired under subsection A in an effort to find communications of or about a particular person if there is reason to believe such person is a United States person,'' protecting the First Amendment freedom of speech and all of that, but matched with the important amendment of the Fourth Amendment, which, of course, is unreasonable search and seizures.
An application by the Attorney General to a judge of the Foreign Intelligence Surveillance Court that describes the determination of the Attorney General is probable cause to believe that such communications provide evidence of a crime, such person is a foreign power or an agent of a foreign power. This is a minimal standard.
Mr. Speaker, this is a minimal standard of which every American should expect and is owed. It is a minimal standard upon which we stand the Constitution.
We are missing what our role is here. It is not to rush through a FISA bill that has been delayed by my Republican friends. More importantly, it is to
do right by the American people. We are not doing right by the American people.
I remember fighting against reverse targeting, a major issue in our work on the Freedom Act and the PATRIOT Act. Now, today--in 2017, going into 2018--in 2018, it is important to remember that 9/11 was to not turn terror on Americans; it was to protect us from terrorism and to withstand that with the upholding of the Constitution.
Mr. Speaker, I ask my colleagues to oppose the underlying bill.
Mr. Speaker, as a senior member of the Judiciary Committee, I rise in opposition to the rule for S. 139, the ``FISA Amendments Reauthorization Act of 2017,'' and the underlying bill.
S. 139 reauthorizes Section 702 of the Foreign Intelligence Surveillance Act, which is scheduled to expire on January 19, 2018.
Although Section 702 is a critical national security tool set to expire on January 19, 2018, events of the recent past strongly suggest that Section 702 should not be reauthorized without necessary and significant reforms that are not included in the legislation before us.
So as the Ranking Member of the Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, I oppose the rule and underlying bill for several compelling reasons:
1. S. 139 fails to address the core concern of Members of Congress and the American public--the government's use of Section 702 information against United States citizens in investigations that have nothing to do with national security.
2. The warrant ``requirement'' contained in the bill is riddled with loopholes and applies only to fully predicated, official FBI investigations, not to the hundreds of thousands searches the FBI runs every day to run down a lead or check out a tip.
3. S. 139 exacerbates existing problems with Section 702 by codifying so-called ``about collection,'' a type of surveillance that was shut down after it twice failed to meet Fourth Amendment scrutiny.
4. S. 139 is universally opposed by technology companies, privacy, and civil liberties groups across the political spectrum, from the ACLU to FreedomWorks.
Mr. Speaker, the bill before us comes from the Intelligence Committee, where it was passed on a strict party-line vote.
This stands in stark contrast to H.R. 3989, the USA Liberty Act, I the bipartisan bill reported by the Judiciary Committee after multiple hearings, an open markup process, and a bipartisan vote of approval.
The USA Liberty Act enjoys much broader support, contains meaningful reforms to the Foreign Intelligence Surveillance Act, and is far superior to the bill before us.
FISA was enacted in 1978 to provide the Executive Branch with a statutory framework for gathering ``foreign intelligence information'' from U.S. persons.
FISA authorizes special court orders for four purposes:
1. electronic surveillance;
2. physical searches;
3. the installation and use of pen registers and trap and trace devices; and
4. demands for the production of physical items.
Although FISA is designed for intelligence gathering, and not for the collection of criminal evidence, the law applies to activities to which a Fourth Amendment warrant requirement would apply if they were conducted as part of a criminal investigation.
Most commonly, authorization for a wiretap or physical search under FISA is obtained by application to the Foreign Intelligence Surveillance Court (``FISC'' or the ``FISA court'').
Section 702 is part of the FISA Amendments Act (FAA), a successor to the Bush Administration's unlawful warrantless wiretapping program that ended in January 2007.
The FAA adds a new Title VII to FISA that grants the government the authority to monitor electronic communications of non-U.S. persons abroad.
Section 702 authorizes the Attorney General and the Director of National Intelligence ``to acquire foreign intelligence information'' from ``persons reasonably believed to be located outside the United States.''
Although the FAA prohibits the intentional targeting of persons in the United States, the FAA had been in place for only a few months when the New York Times reported that the NSA had ``overcollected'' domestic communications, a practice described as significant and systematic, even if unintentional.
Subsequently, the Director of the Office of National Intelligence stated that ``it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the FAA.''
Section 702 provides that the government ``may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States.''
Mr. Speaker, Section 702 of the Foreign Intelligence Surveillance Act was enacted to protect the liberty and security of Americans, not to diminish their constitutional rights.
That is why Section 702 should not be reauthorized with reforms to prevent the government from using information against its political opponents or members of religious, ethnic, or other groups.
One way to do that is without interfering with the national security objectives of 702 surveillance is simply to require the FBI to obtain a warrant before reading communications by Americans, when it finds those communications by targeting that American and searching its 702 databases.
Enforcing the warrant requirement would prevent the misuse of Section 702 to conduct ``backdoor searches'' where government agencies, including individual FBI agents, may search the communications collected under section 702 for communications by an individual American, read those communications and disseminate them within the government, all without any external oversight, much less a judicial warrant, simply by claiming a ``foreign intelligence'' purpose.
Mr. Speaker, all Americans want to find a common-ground where common- sense rules and regulations relating to fighting terrorism at home and abroad can exist while still protecting the cherished privacy and civil liberties which Americans hold close to our collective hearts.
Mr. Speaker, I noted in an op-ed published way back in October 2007, that as Alexis DeTocqueville, the most astute student of American democracy, observed nearly two centuries ago, the reason democracies invariably prevail in any military conflict is because democracy is the governmental form that best rewards and encourages those traits that are indispensable to success: initiative, innovation, courage, and a love of justice.
The best way to keep America safe and strong is to remain true to the valued embedded in the Constitution and the Bill of Rights.
The bill before us does not strike the proper balance between our cherished liberties and smart security.
We can do better; we should reject this rule and the underlying bill and bring to the floor for debate and vote H.R. 3989, the USA Liberty Act.