[Congressional Record Volume 152, Number 124 (Thursday, September 28, 2006)]
[House]
[Pages H7775-H7784]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   PROVIDING FOR CONSIDERATION OF H.R. 5825, ELECTRONIC SURVEILLANCE 
                           MODERNIZATION ACT

  Mr. PUTNAM. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 1052 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 1052

         Resolved, That upon the adoption of this resolution it 
     shall be in order without intervention of any point of order 
     to consider in the House the bill (H.R. 5825) to update the 
     Foreign Intelligence Surveillance Act of 1978. In lieu of the 
     amendments recommended by the Committee on the Judiciary and 
     the Permanent Select Committee on Intelligence now printed in 
     the bill, the amendment in the nature of a substitute printed 
     in the report of the Committee on Rules accompanying this 
     resolution shall be considered as adopted. The bill, as 
     amended, shall be considered as read. The previous question 
     shall be considered as ordered on the bill, as amended, to 
     final passage without intervening motion except: (1) 90 
     minutes of debate, with 60 minutes equally divided and 
     controlled by the chairman and ranking minority member of the 
     Committee on the Judiciary and 30 minutes equally divided and 
     controlled by the chairman and ranking minority member of the 
     Permanent Select Committee on Intelligence; and (2) one 
     motion to recommit with or without instructions.
         Sec. 2. During consideration of H.R. 5825 pursuant to 
     this resolution, notwithstanding the operation of the 
     previous question, the Chair may postpone further 
     consideration of the bill to a time designated by the 
     Speaker.


[[Page H7776]]


  The SPEAKER pro tempore. The gentleman from Florida (Mr. Putnam) is 
recognized for 1 hour.
  Mr. PUTNAM. Mr. Speaker, for the purpose of debate only, I yield the 
customary 30 minutes to the gentleman from Florida (Mr. Hastings), 
pending which I yield myself such time as I may consume. During 
consideration of this resolution, all time yielded is for the purpose 
of debate only.
  (Mr. PUTNAM asked and was given permission to revise and extend his 
remarks.)
  Mr. PUTNAM. Mr. Speaker, I am pleased to bring to this floor House 
Resolution 1052. The resolution is a rule that provides for 
consideration of H.R. 5825, the Electronic Surveillance Modernization 
Act. H.R. 5825 relates to the manner in which the Federal Government 
collects oral, wire, and electronic communications for foreign 
intelligence purposes.
  In order to safeguard fourth amendment protections, Congress has 
created procedures to allow limited law enforcement access to private 
communications and communication records. Specifically, Congress 
enacted title III of the Omnibus Crime Control and Safe Streets Act of 
1968 that outlines what is and what is not permissible with regard to 
wiretapping and electronic eavesdropping.
  Title III of the Crime Control Act authorizes the use of electronic 
surveillance for specific crimes. While Congress did not cover national 
security cases in the Crime Control Act, it did include a disclaimer 
that the wiretap laws did not affect the President's constitutional 
duty to protect our national security.
  In 1972, the U.S. Supreme Court specifically invited Congress to 
establish similar standards for domestic intelligence that were 
established for criminal investigations.
  Congress enacted the Foreign Intelligence Surveillance Act of 1978, 
FISA, to prescribe procedures for foreign intelligence that is 
collected domestically. FISA authorized the Federal Government to 
collect intelligence within the United States on foreign powers and 
agents of foreign powers. It established a special court to review and 
authorize or deny wiretapping and other forms of electronic 
eavesdropping for purposes of foreign intelligence gathering in 
domestic surveillance cases. FISA was enacted by Congress to secure the 
integrity of the fourth amendment, while protecting the national 
security interests of the United States by providing a mechanism for 
the domestic collection of foreign intelligence information.
  Mr. Speaker, the purpose of the Electronic Surveillance Modernization 
Act is to modernize the Foreign Intelligence Surveillance Act to 
strengthen oversight of the executive branch concerning electronic 
surveillance and intelligence and to provide clear electronic 
surveillance authority to the national intelligence agencies in the 
event of a terrorist attack, armed attack, or imminent threat against 
this Nation.
  FISA was originally constructed in 1978, more than 25 years ago. 
Changes in technology have caused an unintentional shift in the focus 
and reach of FISA. The complexity, variety, and means of communications 
technology has since mushroomed exponentially, while the world has 
become more interconnected. Think of the revolution in communications 
technology that has occurred in the past 25 years. The cellular 
technology, wireless technology, the development and explosion of 
Internet access, all communications tools, all technologies that allow 
those who would plot terrorist acts against our people to use and 
access in a readily available form.
  We now have terrorists in remote camps who can easily communicate 
globally with cells around the world and within this country through 
the use of wireless technology and satellites. Think of the images from 
Afghanistan of broadcasts through wireless laptop devices using 
satellite technology from a cave.
  The structure of our surveillance laws has remained confined to the 
technology of a generation-old copper wire telephone, while the 
terrorists are utilizing every technology and communication device at 
their disposal.
  The House Permanent Select Committee on Intelligence received 
testimony that the current provisions of FISA are ``dangerously 
obsolete.'' H.R. 5825 modernizes the law in a number of critical 
respects. It updates FISA to make it technology neutral and neutral as 
to the means of communication. Provisions now apply to a land line 
phone as well as cellular and wireless modes of communication.
  This legislation streamlines the surveillance approval process to 
keep the focus on gaining knowledge of those who would do harm to the 
United States while protecting the civil liberties of average 
Americans. It gives our intelligence personnel the necessary tools to 
help detect and prevent acts of terrorism and to respond to terrorist 
attacks.
  As reported, the bill also ensures that adequate authority exists to 
conduct necessary electronic surveillance when a threat of imminent 
attack exists. The Electronic Surveillance Modernization Act also 
enhances congressional and judicial oversight of U.S. Government 
electronic surveillance activities to ensure that activities conducted 
under both FISA and the authorities in this bill will be utilized by 
the President only, only, with the knowledge and coordination of the 
other branches of government.
  More broadly than just FISA, the bill also addresses the fundamental 
separation of powers concerns expressed by Members through amendments 
to the National Security Act by providing express authority for the 
chairman of the congressional Intelligence Committees to broaden their 
reporting on sensitive issues to additional members of the committee at 
his or her discretion on a bipartisan basis in necessary circumstances.
  H.R. 5825 enhances the overall authorities of our Nation to act as a 
whole to protect itself in times of war and heightened threat of 
attack, both terrorist and otherwise.

                              {time}  1745

  I am pleased with the efforts of the House Permanent Select Committee 
on Intelligence and the House Judiciary Committee. This bill is an 
excellent example of how Congress and the executive branch can work 
together to ensure our national security. I thank Chairman Hoekstra and 
Chairman Sensenbrenner and all the members of the committees for their 
work. I urge Members to support the rule and the underlying bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I thank the gentleman, my 
friend from Florida, for the time; and I yield myself such time as I 
may consume.
  Mr. Speaker, I rise in strong option to this closed rule and the 
underlying legislation. First, let me say that I really am pleased that 
Congress belatedly sees a need to address the President's 
unconscionable, declared by court, unconstitutional domestic spying 
program.
  Unfortunately, we are considering a bill today that was primarily 
drafted by the White House. I do not relish the notion of criticizing 
this bill; but because what it does to the Constitution, however, and I 
am sworn to uphold, as are all of the Members of this body, to uphold 
and defend that Constitution, I am not going to sit idly by and watch 
people trample on it.
  Now, I have lived and seen how unchecked power in the hands of 
bureaucrats can be used to squelch legitimate first amendment 
exercises. We have seen monitoring of students, preachers and 
housewives.
  I have seen what happens when government protectors think they answer 
to no one. And, frankly, it is not pretty. I just implore you all to 
think back to the 1970s,and Americans were shocked to learn about 
President Nixon's unchecked spying for political advantage.
  Americans were similarly dismayed over the legendary J. Edgar 
Hoover's listening in not only on Dr. King, but many other targets. 
Those illegal surveillance scandals were, in part, what led to the 
creation of the select committees of intelligence.
  It is our job, Congress's job, to ensure that we effectively oversee 
the activities of the NSA, the FBI, and the CIA. To the point. This 
White House bill really does scare me. We would be giving not just 
President Bush's administration, but every subsequent administration a 
blank check.

[[Page H7777]]

  This bill does so much to chip away at the civil liberties and 
privacy protections built into the Foreign Intelligence Surveillance 
Act, you will hear it referred to often as FISA, that it could, if 
passed, have very disastrous effects.
  It redefines the definition of surveillance in an irresponsible way. 
The effect is that the NSA, the FBI, would be able to listen to any 
call or read any e-mail that comes into or goes out of the United 
States. So if a soldier overseas calls her husband, NSA can listen in. 
If a little girl in my home town of Mirimar, Florida, sends an e-mail 
to her grandmother in Israel, NSA can read it.
  If a student at Florida Atlantic University is studying in France and 
calls her father at home in Ft. Lauderdale, NSA can listen in. Now, 
that soldier putting her life on the line in Iraq is not a terrorist. 
The little girl in Mirimar and her grandmother I think we can all 
assume are not plotting to overthrow anything.
  The student at Florida Atlantic and her father I am just guessing 
have likely not sworn their lives to overthrowing the United States 
Government.
  At the risk of being trite, the White House-drafted bill has more 
holes than Swiss cheese. Maybe we ought to just call it the Swiss 
cheese bill. It throws out some pretty broad terms and never defines 
them.
  What is an armed attack? What is an imminent threat or imminent 
attack? They are not defined in this bill. Yet, the President has broad 
authority under this bill to do whatever he pleases under these 
conditions. Footnote right there. Let's make this very clear, not just 
this administration but succeeding administrations would have this 
power.
  Arguably under this bill, every single day since September 11, 2001, 
we have been under the imminent threat of a terrorist attack. And if 
the mover of this bill and the White House get their way, every call 
and every e-mail, even domestic ones, would be subject to warrantless 
surveillance.
  Allowing this President or any President to conduct warrantless 
electronic surveillance under these vaguely described circumstances is, 
simply put, dangerous. You never know how the next President might use 
or abuse her power when she gets it.
  You know, Mr. Speaker, I am fond of quoting Ben Franklin, and so I am 
going to do it again today. The legendary Ben Franklin said: ``Those 
who would give up essential liberty to purchase a little temporary 
safety deserve neither liberty nor safety.''
  This is what we might do today again. This piece of legislation may 
be one of the most important bills that the House will consider this 
year or any year, and not one Member of the House, not one, will be 
able to offer an amendment. That bothers me generally, Mr. Speaker. 
Today it bothers me specifically.
  There was an amendment rejected at the Rules Committee offered by our 
colleagues, Mr. Schiff and Mr. Flake, that was similar to an amendment 
that I offered at the Select Committee on Intelligence of the House of 
Representatives. My amendment simply would have made the Foreign 
Intelligence Surveillance Act more transparent to the people who depend 
on it most. It was legislation more or less drafted at their request to 
clear perceived ambiguity in the current law.
  My language would have made it clear, even to the people in President 
Bush's administration, what constituted domestic spying and what was 
foreign-based. Yesterday, the distinguished chairman of the Rules 
Committee, my friend, David Dreier, when he did not permit amendments 
on this floor said: ``Well, Democrats did not have a substitute.''
  Well, today, we have one. And what is your excuse now, Mr. Chairman? 
Not to worry, it is a rhetorical question. The answer I well know is to 
squelch democracy here in the United States House of Representatives.
  You beat with rulemaking that which you know you cannot beat with 
reason. And what message does that send to those that would follow our 
lead, those we are trying to teach our Democracy Assistants Commission? 
I know what you say: do as we say, not as we do. For today, in the 
people's House, democracy is being eviscerated by those who recommend 
it to others.
  I have said it before: the way the majority runs the House is 
shameful. It is hypocritical. It is un-American, and it is 
undemocratic, and it happens every single day that we have a closed 
rule, and in other circumstances as well.
  Could it be any clearer that America needs a new direction? Stopping, 
thwarting the will of those of us in the House of Representatives who 
have a different point of view, or at least should have an opportunity 
to have discussed a different point of view and have the will of the 
body make the decision as to whether or not that point of view or the 
one offered by the majority ought prevail, should be what we should be 
about in democracy.
  Obviously, Mr. Speaker, I urge my colleagues to oppose this closed 
rule and the White House legislation which brings it to the floor.
  Mr. Speaker, I reserve the balance of my time.
  Mr. PUTNAM. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman 
from West Virginia (Mrs. Capito).
  Mrs. CAPITO. Mr. Speaker, I would like to thank my colleague from the 
Rules Committee, and I would also like to thank the sponsor of this 
legislation, Mrs. Wilson, for her doggedness and her determination to 
do this right.
  Mr. Speaker, I rise today in support of the rule and the underlying 
legislation, the Electronic Surveillance Modernization Act. We are at 
war against a sophisticated, worldwide terrorist adversary that uses 
all of the advantages modern day technology has to offer.
  We know that these terrorists are continuing to plot attacks against 
the United States, our allies, and our interests around the world. In 
August, the coordination of the United States, British, and Pakistani 
intelligence helped British authorities apprehend terrorists plotting 
to blow up aircraft bound for the United States.
  Against this backdrop, it is absolutely critical that our government 
have the ability to monitor electronic communications by terrorist 
organizations. We are talking about allowing the government to 
intercept communications of cold-blooded killers who seek to do our 
Nation harm, not grandchildren e-mailing their grandmother.
  The FISA process should be used whenever possible, but we cannot 
hinder the ability of this President or future Presidents to monitor 
communications that could stop a terrorist attack. It is appropriate to 
allow the President to authorize electronic surveillance when there is 
an imminent threat of an attack against our country, when we have 
identified the responsible organization, and when we have reasonable 
belief that the person being targeted is communicating with a terrorist 
group.
  We must do everything possible to prevent future terrorist attacks. 
Our enemies will not delay their plans to harm our citizens while we go 
to court to obtain a warrant. We have to be right 100 percent of the 
time.
  The bill strengthens congressional oversight of the Terrorist 
Surveillance Program and requires FISA warrants in most cases, the 
exceptions being after an armed attack, after a terrorist attack, or 
when the threat is imminent.
  The bill is reasonable. It protects the rights of our citizens; but, 
most importantly, it will preserve a critical authority that we must 
have to protect our homeland. We are at war and this is critical to our 
winning that war. I urge my colleagues to pass this rule and the 
underlying bill.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 4\1/4\ minutes to the 
gentleman from Massachusetts (Mr. McGovern).
  Mr. McGOVERN. Mr. Speaker, I want to thank my friend from Florida for 
yielding me the time.
  Mr. Speaker, yesterday we dealt with the issues of torture and 
military tribunals under a closed rule. No amendments allowed. Today we 
deal with the issue of domestic spying, also under a closed rule.
  Never mind that there are profound constitutional issues at stake. 
This Republican leadership has decided it is more important to debate 
suspension bills than matters that could likely undermine the most 
sacred rights of our people.
  This bill authorizes more warrantless surveillance of American 
citizens than Congress has ever authorized in American history. And if 
this rule passes, it will be debated on the House floor for an hour and 
a half.

[[Page H7778]]

  The Founding Fathers must be spinning in their graves. Today, the 
Republican leadership found time on the floor to rename post offices 
and to congratulate Little League teams, but it cannot find the time to 
thoughtfully debate this far-reaching bill. This Congress has become a 
place where trivial issues get debated passionately and important ones 
not at all.
  After hours of testimony in the Rules Committee this afternoon 
listening to both Republicans and Democrats, offering thoughtful 
amendments and substitutes, the Republican majority on the Rules 
Committee said ``no'' to every single one of them.

                              {time}  1800

  During the Rules Committee meeting, I asked the Republican authors of 
this bill whether or not they would be open to considering thoughtful 
amendments and substitutes. They said it was up to the Rules Committee, 
that they did not really have an opinion.
  No opinion, Mr. Speaker? No opinion on whether Members who believe 
there should be judicial oversight on domestic spying should have the 
right to offer an amendment? No opinion on whether or not a bipartisan 
substitute should be made in order? No opinion? Give me a break.
  Mr. Speaker, yesterday on the House floor, as the distinguished 
gentleman from Florida pointed out, the Chairman of the Rules Committee 
defended his decision to not allow Democrats to offer thoughtful 
amendments to the torture bill. He said that we should have offered a 
substitute instead.
  So, today, Democrats and Republicans attempted to offer a full 
bipartisan substitute to this domestic spying bill, but the Rules 
Committee refused to make that in order, too. How do you defend that, 
Mr. Speaker? How do you look Members of your own party in the eye and 
say your ideas do not matter?
  If the Republican leadership does not agree with the bipartisan 
substitute, then they should defeat it on the House floor after a full 
and open debate. Instead, they cower behind procedural tricks, 
parliamentary sleight of hand and closed rules. No wonder the American 
people are disgusted with Congress.
  Let me speak for a moment to my friends on the other side of the 
aisle. No matter what our policy differences, I would like to think 
that we all think democracy is a good thing. I would like to think that 
we all want good legislation to come out of this House. I am sad to say 
that I am having a hard time thinking that anymore.
  If my Republican friends want this trend of closed rules, of no 
amendments, of no democracy in the House to continue, then by all means 
vote for this rule. Just go along to get along.
  But if you believe, as I do, that the monopoly on good ideas is not 
held by a few members of the leadership in a closed room, then vote 
``no.'' Have the guts to vote ``no.''
  Thoughtful Republican amendments are routinely shut out by the Rules 
Committee, including here on this bill. The only way to bring this 
trend to an end is to start defeating closed rules and to demand more 
openness in this House of Representatives. If you continue to reward 
bad behavior, then bad behavior is what you will continue to get.
  Let us put a stop to this nonsense. Let us stop diminishing this 
House of Representatives. I urge my colleagues to vote ``no'' on this 
rule.
  Mr. HASTINGS of Florida. Mr. Speaker, will the gentleman yield?
  Mr. McGOVERN. I yield to the gentleman from Florida.
  Mr. HASTINGS of Florida. Mr. Speaker, when we were in the Rules 
Committee in those hours of debate, how fast after that discussion when 
these people presented themselves did the rule come to the floor? In 
short, was there any deliberation?
  Mr. McGOVERN. Less than a second. The deal was done early on in the 
day. I mean, the Members who came up and testified and presented their 
thoughtful amendments wasted their time because the leadership had 
decided to close this thing down earlier in the day, and that is 
unforgivable. This issue is too important.
  Mr. PUTNAM. Mr. Speaker, I yield 3 minutes to the gentleman from 
Georgia (Mr. Gingrey), my colleague on the Rules Committee, to talk 
about the issue at hand, the Electronic Surveillance Modernization Act.
  Mr. GINGREY. Mr. Speaker, I thank my colleague on the Rules 
Committee, Mr. Putnam, for yielding.
  I rise today fully in support of this rule and the underlying 
legislation for H.R. 5825, the Electronic Surveillance Modernization 
Act of 2006, because I believe protecting innocent Americans from 
terrorist plots is one of our government's most critical duties.
  This bill updates the FISA, Foreign Intelligence Surveillance Act of 
1978, to authorize the expanded use of electronic surveillance on 
suspected terrorists, with mandated congressional oversight. Its 
immediate passage is absolutely essential to prevent future terrorist 
attacks against this Nation.
  Mr. Speaker, much has changed since FISA was enacted in 1978. The war 
on terror has replaced the Cold War as our preeminent national security 
issue. There have been monumental advances in technology, and our 
terrorist adversaries are capitalizing on these changes in technology 
as they aggressively plot our destruction. If we are to be prepared for 
the foremost threat to our Nation's safety today, the 1978 bill must be 
amended for the realities of today and tomorrow.
  Mr. Speaker, this bill would authorize the NSA Terrorist Surveillance 
Program to monitor the international, let me repeat, international 
communication of suspected terrorists inside the United States, while 
respecting our citizens' privacy.
  Simply put, this bill streamlines the process by which a FISA warrant 
can be obtained. It gives NSA more time to conduct emergency 
surveillance on suspected terrorists without a warrant, and it allows 
the President to authorize warrantless electronic surveillance for up 
to 90 days of suspected terrorists when it is believed an attack on 
America is imminent.
  While this bill helps us stop terrorists before they inflict 
destruction, it also protects the rights of law-abiding United States 
citizens by requiring our President to inform Congress and the FISA 
court of these emergency surveillances.
  Mr. Speaker, authorizing the electronic surveillance of terrorists is 
a matter of common sense. By listening to the phone conversations of al 
Qaeda members and of organizations working in support of al Qaeda, we 
stand to learn much more about their terrorist activities, including 
likely targets of attack.
  Mr. Speaker, I was tremendously disappointed that 160 of my 
Democratic colleagues voted yesterday against the Military Commissions 
Act, and I am still struggling to understand why. But I am hopeful that 
they will not vote today to limit our ability to monitor the 
terrorists' phone calls so that we can disrupt these devastating plots.
  In any regard, my Republican colleagues and I remain committed to the 
safety of this Nation. To ensure that we give our government the tools 
it needs to fight and win the war on terror, I urge support for this 
rule on both sides of the aisle and the underlying legislation.
  Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 2 
minutes to the distinguished gentlewoman from Texas (Ms. Jackson-Lee), 
my good friend.
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Speaker, it is very sad to say that 
what we are doing today is simply a march toward the November election. 
There is a certain calculated plan as to what Republicans need to be 
able to do to win the House, and obviously it has to do with the 
security of America.
  There is no divide among Democrats and Republicans about our resolve 
to secure this Nation. Not a one of us in this Congress if asked or if 
needed to defend this Nation in the immediacy of time would refuse that 
request.
  The reason why there is such a sharp divide is because this is not a 
serious attempt to secure America. It is, frankly, a serious attempt to 
eliminate for the American people rights that are a part of their 
birthright.
  This is a closed rule, and I oppose it because security and civil 
liberties of those who are citizens of the United States can be 
intertwined, and you can secure the Nation with rights protected, 
therefore there should have been open rule.

[[Page H7779]]

  I would have offered an amendment that would have improved the bill 
immeasurably by striking the golden mean between providing the 
President the emergency tools needed to respond to an act of war 
against our country, while at the same time protecting all Americans 
from the dangerous secret exercise of unchecked and unreviewable power 
to surveil and search any person deemed by the President to pose a 
threat to the country. This would have provided the President the 
authority to conduct surveillance and searches without a warrant for 15 
days following either a declaration of war or an authorization for the 
use of military force.
  In addition, it is very clear that the FISA provisions now allow for 
the President to act without judicial authority. Authority can be given 
after the fact, and the evidence that is given to the court can be and 
is secret.
  It is worthwhile saying that this, again, is not a question of can we 
resolve this and give this bill. It is a rush to judgment to ensure 
that this would be a good political sound bite for Republicans who are 
running for re-election. This is a bad way to secure America, and I ask 
my colleagues to oppose this rule because the American people frankly, 
are not prepared to give up their civil liberties when we can do both--
civil liberties and a secure Nation.
  I rise in opposition to this closed rule providing for consideration 
of H.R. 5825, the Electronic Surveillance Modernization Act. I oppose 
the rule because it forecloses members from offering constructive 
amendments that would improve a bill that otherwise will represent an 
unwarranted and dangerous delegation of authority to the executive 
branch. Specifically, the bill does not impose limits on the 
President's powers; it remains silent on the NSA's warrantless 
surveillance and expands the government's powers under the Foreign 
Intelligence Surveillance Act to collect information on Americans 
without judicial review.
  This sad state of affairs could have been avoided if the Rules 
Committee had fashioned an open rule, allowing consideration of 
amendments of the type I and my colleagues offered during the Judiciary 
Committee markup.
  For example, I offered an amendment that would have provided the 
President authority to conduct surveillance and searches without a 
warrant for 15 days following either: (1) a declaration of war; or (2) 
``an authorization for the use of military force'' (AUMF) within the 
meaning of Section 2(c)(2) of the War Powers Act.
  This amendment improves the bill immeasurably by striking the golden 
mean between providing the President the emergency tools needed to 
respond to an act of war against our country, while at the same time 
protecting all Americans from the danger of secret exercise of 
unchecked and unreviewable power to surveil and search any person 
deemed by the President to pose a threat to the country.
  Mr. Speaker, it is worth remembering that while armies fight battles, 
it is a nation that goes to war. And the Constitution is neither silent 
nor coy as to where the power to take a nation to war rests: it is 
vested in the Congress of the United States, not the President.
  The power to conduct secret, warrantless surveillance and searches in 
response to an act of war or a terrorist attack fundamentally is a war 
power. That is why the acquisition and exercise of that power properly 
must flow from a congressional declaration of war or authorization to 
use military force in response to an act of war.
  I believe we should have an open rule to permit such an amendment 
because it keeps faith with the Founding Fathers and honors the 
Constitution that every member of Congress, and each of our brave 
troops who risk their lives to keep us free, take an oath to uphold.
  Mr. Speaker, H.R. 5825 goes dangerously far afield by authorizing the 
President to conduct warrantless surveillance and searches for 90 days 
after ``an armed attack against the territory of the United States,'' 
or a ``terrorist attack against the United States.'' Moreover, this new 
surveillance power would extend to U.S. soil, regardless of any nexus 
to the actual event that triggered the exercise of emergency 
surveillance authority.
  Mr. Speaker, the phrases ``armed attack against the territory of the 
United States'' and ``terrorist attack against the United States'' are 
so broad that they can be triggered by nearly any act of violence 
directed against the interests of the United States, including:
  The recent bombing of the U.S. embassy in Syria. If H.R. 5825 were in 
effect today, we could have a warrant-free environment in the United 
States right now.
  An attack on U.S. armed forces abroad, including any attack on 
soldiers in Iraq or Afghanistan, which according to press reports, is a 
daily occurrence.
  Mr. Speaker, we do not need to surrender the liberties of the 
American people in order to protect the security of the American 
people. As the Framers understood so well when they devised our 
magnificent Constitution, we can have both liberty and security. All we 
need is wisdom and good counsel, what the Greeks called ``euboule''. 
That is what is lacking in this rule and with respect to H.R. 5825, the 
Electronic Surveillance Modernization Act.
  Another amendment that could have been offered if we had an open rule 
is an amendment that reiterates that FISA is the exclusive procedure 
and authority for wiretapping Americans to gather foreign intelligence.
  In the absence of the reaffirmation of this critically important 
principle, H.R. 5825 would have the unacceptable consequence of 
rewarding the President's refusal to follow FISA by exempting him from 
following these procedures. The effect of this would be to allow any 
president to make up his own ``rules'' for wiretapping Americans and 
secretly implementing those rules unless and until a court finds such 
rules unconstitutional. This would make tangible President Nixon's 1977 
claim to David Frost that ``when the president does it that means that 
it is not illegal.'' By flirting with the misguided and dangerous idea 
of inherent presidential power to wiretap, H.R. 5825 would resurrect 
the very provision in the criminal code that President Nixon relied 
upon in his warrantless wiretaps of countless Americans based on their 
political views.
  The legislative history of FISA provides an important rebuttal to the 
Administration's claims regarding inherent authority to ignore federal 
law: ``[E]ven if the president has the inherent authority in the 
absence of legislation to authorize warrantless electronic surveillance 
for foreign intelligence purposes, Congress has the power to regulate 
the conduct of such surveillance by legislating a reasonable procedure, 
which then becomes the exclusive means by which such surveillance may 
be conducted.'' H.R. Rep. No. 95-1283, pt. 1, at 24 (1978).
  By eliminating the exclusivity of these procedures, Congress would be 
acquiescing in the destruction of one of the pillars of FISA that has 
helped to protect the civil liberties of hundreds of millions of 
Americans from unilateral spying by the executive branch. To paraphrase 
the Supreme Court, our Fourth Amendment freedoms cannot properly be 
guaranteed if electronic surveillance may be conducted solely within 
the discretion of the president. See United States v. United States 
District Court, 407 U.S. 297 (1972).
  Without such language, H.R. 5825 would undo the Congress' manifest 
intent in passing FISA, which ``was designed . . . to curb the practice 
by which the Executive Branch may conduct warrantless electronic 
surveillance on its own unilateral determination that national security 
justifies it.'' (See S. Rep. No. 95-604(1), at 7, 1978 U.S.C.C.A.N. 
3904, 3908). By eliminating the requirement that the president follow 
FISA and get a court order to search based on evidence an American is 
conspiring with a foreign agent, H.R. 5825 would places our rights at 
the secret will of the president--any president.
  Mr. Speaker, it is more than a truism that real security for the 
American people comes not from deferring to the President but from 
preserving the separation of powers and adhering to the rule of law.
  I therefore cannot support this closed rule and urge my colleagues to 
vote against the rule. We have time to come up with a better product 
and we should. The American people deserve no less.
  Mr. PUTNAM. Mr. Speaker, I am pleased to yield 3 minutes to the 
gentlewoman from New Mexico (Mrs. Wilson), the sponsor of the 
underlying legislation.
  Mrs. WILSON of New Mexico. Mr. Speaker, I would like to start out 
first by correcting a few misstatements and giving a few facts.
  The first is that somehow anything less than a warrant on an 
international phone call erodes civil liberties that we have enjoyed 
219 years and does some violation to the Constitution.
  The truth is that limitations on gathering foreign intelligence in 
the United States is relatively recent. It was the FISA law passed in 
1978 that really set out the first limitations on the gathering of 
foreign intelligence within the United States.
  In World War II, all international communications were subject to 
listening. In World War I, the government not only listened to 
international calls but opened the mail. Shortly after the invention of 
the telegraph during the Civil War we were intercepting communications.
  The constitutional test is reasonableness, and this bill is 
reasonable. I thank my colleague from Florida for

[[Page H7780]]

bringing forward this rule today, but I think it is important to 
understand why we are here.
  We are trying to modernize the Electronic Surveillance Acts of this 
country so that we allow our intelligence agencies to collect the 
intelligence to keep us safe, while also putting in place rules of the 
road to protect American civil liberties. The provisions that we have 
put in the Act are completely reasonable and pretty commonsense because 
we are in a different situation.
  Intelligence is the first line of defense in this war on terror, and 
all of us 5 or 6 weeks ago now woke up to the news that in the U.K. 
they had arrested 16 people who intended to walk onto American Airlines 
airplanes at Heathrow Airport and blow them up over the Atlantic Ocean.
  Our intelligence agencies have to be faster than the terrorists who 
are trying to kill us. This bill will give them the authority and the 
rules and the tools they need to intercept international communications 
between a known terrorist and someone in the United States of America, 
at the same time requiring notification to different branches of 
government, putting time limitations in place so that we protect the 
civil liberties of Americans.
  We need to update our laws so that we protect the civil liberties of 
Americans and we keep Americans safe. The test is reasonableness, and I 
believe that the underlying bill passes the test.
  Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 5\1/
2\ minutes to the distinguished gentleman from California (Mr. Schiff), 
my friend, who offered an amendment that I offered in the Select 
Committee on Intelligence.
  Mr. SCHIFF. Mr. Speaker, I thank the gentleman for yielding.
  This afternoon, we had a lengthy debate in the Rules Committee on the 
base bill offered by my colleague from New Mexico and a substitute 
amendment that was offered by Mr. Flake of Arizona and by myself. It 
was a lengthy debate. I think it was a good debate. It would have been 
a better debate, however, if the conclusion had not been predetermined, 
if, in fact, it was a real debate in the sense that the outcome had not 
been decided before we entered the room.
  The gentleman asked how long did it take for the committee to decide 
not to allow the bipartisan alternative, and I can tell the gentleman, 
by the time it took me to walk from the Rules Committee across the 
street to my office, the committee had decided it would not allow a 
bipartisan alternative. But I suppose that was my own fault for walking 
too fast. Perhaps if I had walked slower across the street, I might 
have gotten to my office before the committee ruled.
  So I am going to tell you today about the bill we will not have the 
opportunity to vote on, not in an up-or-down fashion, and I think I 
will tell you a little bit about why we will not have the opportunity 
to vote on this bipartisan bill.
  The ``why'' I think is relatively straightforward. Because the 
majority does not have the confidence that it has the votes to allow 
the substitute to come before this House. Because the substitute, which 
was the product of about 6 months of work between Mr. Flake and myself 
and in its other forum, legislative forum, has the support of seven 
Republicans and seven Democrats, as bipartisan as you can make it in 
this House, very well might command the majority of this House. That 
runs afoul of the rule of the Speaker that unless it enjoys a majority 
of the majority you do not get a vote in this House of Representatives. 
So we will not have a vote on the bipartisan alternative.
  But let me tell you and the rest of the country what we are being 
denied the chance to vote on in the substitute. The Schiff-Flake 
substitute would do the following:
  It would extend the warrantless electronic surveillance authority 
from the current 72 hours after the fact to 7 days, because the Justice 
Department and the NSA said that they needed more time after a wiretap 
is initiated to go to court and get an authorization. It is important 
for people to recognize that under current law you do not need to get a 
warrant before you go up on a wiretap. Under FISA, you have 72 hours. 
The government said that is not enough, we want 7 days; and in our 
substitute, we give them 7 days.
  We enhance the surveillance authority after an attack. The Justice 
Department and the NSA say, well, under current law, we have 15 days to 
do warrantless surveillance after the declaration of war. Well, we do 
not even declare war, and so our substitute provides that when we 
authorize the use of force and we make it explicit that we will permit 
warrantless surveillance for 15 days. That authorization to use force 
grants that surveillance authority after an attack.

                              {time}  1815

  We also address the main issue that was raised by the NSA in the 
public hearings, the main problem the NSA advocated needed to be 
addressed, and that is that when one foreigner is talking with another 
foreigner on foreign soil, but because of the changes in 
telecommunications since the passage of FISA more than a quarter 
century ago, and that communication touches down somewhere in the 
United States or is intercepted in the United States, FISA shouldn't be 
involved. You should not have to go to court when you want to intercept 
a communication between one foreigner and another foreigner on foreign 
soil. And so we fixed that problem.
  Our substitute permits continued surveillance when targets travel 
internationally. That was another request made by Justice and NSA. We 
streamline the FISA application process and remove redundant 
requirements in the application process. We increase the speed and the 
agility of the FISA process. We authorize additional resources to hire 
more personnel to make the applications.
  But we also do something very important, which the base bill doesn't 
do, and that is we reiterate the fact that when you are going to 
surveil an American on American soil, and that is after all the heart 
of this matter, when you are going to surveil an American on American 
soil, the court should be involved, if not before you go and surveil, 
then within 7 days, that FISA sets up the exclusive authority for that.
  Now, my colleague from New Mexico says the constitutional standard is 
reasonable in this, and that is right. Americans under the fourth 
amendment have the right to be secure from unreasonable searches and 
seizures. We have the right to be protected in our reasonable 
expectation of privacy. So I ask you, What is your reasonable 
expectation of privacy, Americans? Is it that if you are not engaged in 
terrorism, if you are not in contact with terrorists, if you are not 
engaged in harmful activity that you should be secure in knowing that 
your phone conversations will not be tapped without someone going to 
court to prove the facts?
  But Members of this body will not have a chance to vote on this 
bipartisan substitute because the majority doesn't have the confidence 
they can defeat it. And for that reason, I urge a ``no'' vote on this 
rule.
  Mr. PUTNAM. Mr. Speaker, I am pleased to yield 4 minutes to one of 
the architects of this legislation, the gentleman from California (Mr. 
Daniel E. Lungren).
  Mr. DANIEL E. LUNGREN of California. 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

[[Page H7781]]

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. HASTINGS of Florida. My good friend, the distinguished gentleman 
from California, has cited again Franklin and those three other 
persons. But I would remind him that they did not yield all of their 
power to the President. They did consider that separation of power.
  And Mrs. Wilson stated a minute ago that this bill puts in place 
rules of the road. The problem is that the rules are optional and the 
President gets to ignore them essentially whenever.
  Mr. Speaker, I am very pleased at this time to yield 1 minute to my 
good friend, the distinguished gentleman from Ohio (Mr. Kucinich).
  Mr. KUCINICH. I thank the gentleman.
  It is good to cite Ben Franklin. Maybe we should also be citing 
Phineas T. Barnum, because there is a section in this bill, section 10, 
entitled ``Compliance with Court Orders and Antiterrorist Programs.'' 
That actually amounts to a get-out-of-jail-free card for someone who 
may have leaked classified information.
  Now, Gerald Ford gave Richard Nixon a pardon. I am wondering to whom 
this bill is giving a pardon. Does it give immunity or impunity for 
certain crimes and misdemeanors? This bill may actually be about 
someone's legal problems.
  We need to look at this. We need to find out if someone leaked 
classified information and this bill is going to give them a get-out-
of-jail-free card. Read the bill. Take a look at section 10. I want the 
sponsor to tell me that no one is going to get out of jail free who may 
have leaked classified information, and no one is going to escape 
prosecution for certain crimes and misdemeanors once this bill passes.
  I want them to tell that to the Congress. Tell us you are not 
slipping in a clause here where you are trying to get somebody out of 
jail. Tell me that. Tell us that.
  Mr. PUTNAM. Mr. Speaker, I continue to reserve the balance of my 
time.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 1 minute to my good 
friend, the distinguished gentlewoman from California (Ms. Lee).
  Ms. LEE. I want to thank the gentleman for yielding and for his 
leadership.
  Mr. Speaker, I rise in total opposition to the rule for H.R. 5825, 
the Electronic Surveillance Act, and the underlying bill.
  The FISA law the President chose to ignore, and that this bill seeks 
to bypass, is a law that powerfully symbolizes both the risk of the 
abuse of executive power and the strength of our system of checks and 
balances.
  Now, the FISA law was enacted to protect against very real abuses in 
the name of fighting communism, if you remember. Not terrorism then, it 
was communism. Our executive branch, through the likes of J. Edgar 
Hoover and COINTELPRO perpetrated massive abuses and surveillance of 
innocent Americans. These abuses included the surveillance, among many 
others, of Dr. Martin Luther King, Jr. and his wife Coretta as part of 
what the Church Commission described as ``an intensive campaign by the 
Federal Bureau of Investigation to neutralize him as an effective civil 
rights leader.''
  The only thing that redeems our Nation's great shame at these abuses 
was that the system of checks and balances created by our Constitution 
worked. Congress passed a law that allowed us to protect our Nation and 
our Constitution and our citizens.
  Mr. PUTNAM. Mr. Speaker, I just rise to point out to the Members that 
we are here to modernize the FISA bill of 1978, and I ask Members to 
think about all of the changes in sophistication and accessibility of 
communication devices today.
  Think about your own e-mail, your own BlackBerry, your own cell 
phone, your own laptop, your own desktop, just the handful of things 
that are directly involved in this line of work, in any routine 
business in America. All of those things offer multiple avenues per 
device to communicate around the world in an instantaneous manner at 
almost no cost.
  Tracking that type of communication device, when it is being used by 
people who would fly airliners into the World Trade Center; when it is 
being used by people who would fly an airliner full of innocent women 
and children and students on field trips, and bands who have spent all 
year having car washes to be able to go on that trip into the center of 
our defense might, the symbol of our Armed Services, into the Pentagon; 
the kind of people who would plot to blow up 10 more airliners as 
recently as 5 weeks ago.
  Now, it seems odd to me that that is a difficult choice, that we 
would want not to give all the tools possible to our law enforcement 
and intelligence officials. The plot that was broken up in London 
several weeks ago reflected two things to me: one, that we are still in 
grave danger; that the enemy is still, to this day, 5 years after 9/11, 
getting up every morning, going to bed late every night thinking of 
ways to destroy not just the United States, not just our allies, but 
those who share our values, Western Civilization in general: Madrid, 
Spain; London, England; the Danish, because of their free speech; and 
the United States are just some of the most blatant examples. We are 
still very much in danger. That is the first lesson of the disruption 
of that plot.
  The second lesson of the disruption of that plot is that legislation 
that has passed in this country and in the U.K. in the 5 years since 9/
11 worked, tearing down walls that separate discussions between 
intelligence gatherers and law enforcement. That legislation worked. 
Tracking financial transactions to be

[[Page H7782]]

able to follow money from Hamburg to Pakistan, back to London to the 
ticket agent where people are about to board an airplane that they 
intend to blow up worked. Tracking communications among terrorists 
works.
  If a laptop is discovered in a cave in Afghanistan, and you look on 
their contacts list; if a cell phone is picked up in a desk drawer in a 
hotel in Islamabad and you look at who their frequently called numbers 
are, don't you think that says a lot about that person and who they are 
talking to? Certainly if you look at your own it says an awful lot 
about you, who your friends are, who your stockbroker is, what your 
wife's cell phone number is. Look at your own device. And we use that 
same common sense, that same investigative approach to the terrorists.
  So when we look at the laptop or when we look at the cell phone in 
Islamabad or London or Hamburg or New York and there are numbers on 
there from a known al Qaeda operative to someone in the United States, 
we ought to be on that number as quickly as possible.

                              {time}  1830

  Anything else is an assault on common sense. We must move as quickly, 
as efficiently as possible, using every technology at our disposal to 
prevent terrorist attacks, to disrupt terrorist attacks, and to bring 
to justice the people who are planning them.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself such time as I 
may consume.
  Mr. Speaker, I have some suggestions about implementing every tool at 
our disposal. The 9/11 Commission would be one.
  I would urge the gentleman not to lecture us regarding our 
commitment. We offered a measure to improve this measure. Everyone 
wants to catch the same people you are talking about catching. There is 
no problem in that regard.
  Mr. Speaker, I am pleased to yield 3 minutes to the gentleman from 
Maryland (Mr. Ruppersberger), my colleague on the Intelligence 
Committee.
  Mr. RUPPERSBERGER. Just in response to the comments made by my friend 
from Florida, also, I agree with most of what you are saying. We need 
to protect our country. We need to be able to have the tools to go on 
the computer or to go on the cell phone or whatever we need. But we are 
a country of laws, and our forefathers created an excellent, excellent 
country and a Constitution, and that Constitution created checks and 
balances. That is about what we are talking about here today.
  Now, I have an amendment that was before the Rules Committee today 
that was rejected. One of the administration's biggest arguments is 
that they need more time and flexibility to track down terrorists 
without going to a FISA judge. My amendment that was just rejected by 
the Rules Committee does that.
  My amendment extends the duration of emergency authorizations from 7 
to 14 days. That means the people who work at NSA have 14 days before 
they have to go to a FISA judge, but they do have to go to a FISA 
judge. So if it is the opinion of the administration that there is an 
emergency situation to protect our country, they can go on that phone 
to find that terrorist, but they would be able to have 14 days before 
they go to a FISA judge. But the issue is they have to go to a FISA 
judge, and that is the check and balance we do have in this country.
  If we get information on an important target, we can conduct 
warrantless surveillance for 14 days before going to a FISA judge. That 
is giving the tools that we need. That amendment was rejected.
  The purpose of my amendment was to make sure that in an emergency 
there was absolutely no chance that the men and women of the NSA would 
have to turn off their equipment just because they didn't have enough 
time to get a warrant.
  As the Member who represents NSA, which is in my district, who sits 
on the Intelligence Committee and is one of the handful of Members 
briefed into the President's program, I would have hoped that my 
amendment would have been in order. My amendment was an attempt to do 
the right thing for the country and NSA.
  We should remember that what makes our country great is our system of 
checks and balances. My amendment would have done that.
  We should not have a closed rule on this bill. We should be willing 
to take whatever amendments are necessary to make the underlying bill 
the best one we can for the security of our country.
  I urge my colleagues to vote ``no'' on the rule.
  Mr. PUTNAM. Mr. Speaker, I reserve my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 1\1/
2\ minutes to my very good friend, the gentleman from Massachusetts 
(Mr. Markey).
  Mr. MARKEY. Mr. Speaker, I thank the gentleman from Florida. I thank 
him for his great leadership.
  Let us be clear. There is no question that our government must make 
every effort to uncover, disrupt and prevent terrorist attacks. The 9/
11 strikes demonstrated the devastation that can result if we fail to 
detect terrorist plots.
  The question is not whether our intelligence agencies should be 
allowed to conduct electronic surveillance of suspected terrorists. The 
answer is, of course, yes. The question before us is whether a court 
should review such surveillance so innocent American citizens are not 
spied upon as the government conducts surveillance operations.
  The bill we are considering today fails to provide the vital civil 
liberty safeguards for American citizens that are the cornerstone of 
our democracy.
  This bill is badly flawed. It expands the President's authority to 
secretly wiretap U.S. citizens without going for a warrant to a court. 
Under current law, warrantless wiretapping is permitted in certain 
emergency situations. This bill more than doubles the amount of time 
that the President can conduct surveillance of U.S. citizens without a 
warrant.
  This bill also increases the likelihood that innocent Americans will 
be caught up in government-run surveillance operations. That is because 
the bill reduces the amount of specific information the government must 
provide when seeking approval from the FISA court.
  Mr. Speaker, the President wants to go on a fishing expedition, but 
he doesn't want to have to get a fishing license from a court that 
guarantees that he has not exceeded the Constitution of the United 
States.
  Mr. Speaker, the bill before us today attempts to authorize an 
illegal Bush Administration program that a Federal judge has determined 
``blatantly disregards'' the Bill of Rights.
  The Bush Administration's secret domestic surveillance program 
uncovered last year not only ignored constitutional protections against 
unreasonable searches and seizures, but also failed to abide by laws 
enacted before and after the September 11th attacks that give 
government authorities the tools needed to tap terrorist communications 
and track down terrorists while protecting the civil liberties of 
American citizens.
  Let us be clear: there is no question that our government must make 
every effort to uncover, disrupt and prevent terrorist attacks--the 9/
11 strikes demonstrated the devastation that can result if we fail to 
detect terrorist plots.
  The question is not whether our intelligence agencies should be 
allowed to conduct electronic surveillance of suspected terrorists. The 
answer is, ``of course. Yes.'' The question before us is whether a 
court should review such surveillance so that innocent American 
citizens are not spied upon as the government conducts secret 
surveillance operations. The bill we are considering today fails to 
provide the vital civil liberties safeguards for American citizens that 
are the cornerstone of our democracy.
  This bill is badly flawed.
  It expands the President's authority to secretly wiretap U.S. 
citizens without a warrant from the FISA court. Under current law, the 
government can conduct warrantless surveillance for up to a year of any 
``agent of a foreign power''--such as a foreign official or spy in the 
United States. But current law places a restriction on this authority--
no communications of U.S. citizens or residents must be likely to be 
intercepted in the process. The bill before us today removes this 
important protection. That means that the phone calls and e-mail 
communications of any U.S. citizen could be intercepted while the 
government conducts warrantless surveillance of foreign agents.
  Under current law, warrantless wiretapping is permitted in certain 
emergency situations. This bill more than doubles the amount of time 
that the Bush Administration can conduct surveillance of U.S. citizens 
without a warrant--

[[Page H7783]]

from the current three days to up to seven days.
  This bill also increases the likelihood that innocent Americans will 
be caught up in government-run surveillance operations. That's because 
the bill reduces the amount of specific information the government must 
provide when seeking approval from the FISA court, such as details on 
the type of information the government is looking for and the 
procedures in place to prevent information from U.S. citizens from 
being collected in the surveillance operation.
  Congress should be holding the Bush Administration accountable for 
illegally eavesdropping on thousands of U.S. citizens. Instead, the 
House is considering a bill that would expand the power of the Bush 
Administration to conduct such spying.
  The Constitution says ``We the People'', but we have a President who 
seems to have forgotten this--he thinks it's ``Me the People.'' From 
secret wiretapping programs to signing statements that cast aside the 
intent of Congress, this President has shredded constitutional 
protections and ignored the checks and balances that are essential to 
our democracy.
  I urge my colleagues to defeat this bill, which has been rushed to 
the House Floor without sufficient evaluation. This bill will not make 
us safer. It will make everyday Americans more vulnerable to secret 
government eavesdropping conducted outside of the special court process 
that was designed to track terrorists without trampling on civil 
liberties.
  Mr. PUTNAM. Mr. Speaker, I continue to reserve.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself the balance of 
my time to close.
  Mr. Speaker, I urge Members to vote ``no'' on the previous question. 
If the previous question is defeated, I will amend the rule to provide 
that the House will immediately consider legislation that implements 
the recommendations of the 9/11 Commission, bipartisan commission, that 
this Congress has ignored up to this time.
  Mr. Speaker, I ask unanimous consent to insert the text of the 
amendment and extraneous materials immediately prior to the vote on the 
previous question.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Florida?
  There was no objection.
  Mr. HASTINGS of Florida. Mr. Speaker, we have spent the past few days 
debating constitutionally suspect bills that are designed, in my 
opinion, to advance the Republican midterm election political agenda 
rather than make real progress in the serious war on terror.
  The 9/11 Commission gave Congress failing grades for good reason; we 
have failed to do all we can to protect our citizens. Why don't we take 
a few hours to debate the proposals that this bipartisan panel of 
experts has advised would actually make our borders more secure and 
help us stop the next terrorist attack? A debate like this may not fit 
into the majority's midterm election strategy, but it might actually 
lead to some good policy.
  Again, I urge a no vote on the previous question, so we can have a 
debate and vote on the recommendations of the bipartisan 9/11 
Commission. Please vote ``no'' on this closed rule.
  Mr. Speaker, I yield back the balance of my time.
  Mr. PUTNAM. Mr. Speaker, it is my desire to bring this focus back to 
the issue at hand and bring something of a commonsense approach to 
this.
  We are trying to modernize the FISA Act, the Foreign Intelligence 
Surveillance Act of 1978. Since 1978, there has been a technology 
revolution in communications: the Internet, cell phones, laptops, 
desktops for under $500, immediate, rapid, global, affordable 
communications on demand, satellite phones, GPS for $99. The bottom 
line is the terrorists can communicate, conspire, organize, recruit and 
train on a global basis from any spider hole, cave or clubhouse 
anywhere in the world.
  We have to modernize the legislation that allows our intelligence 
agencies and our law enforcement officials to track down those bad 
guys, not after they have blown up the World Trade Center or after they 
have flown a plane into the Pentagon, but before they do those things. 
In other words, a September 12th mentality, as opposed to a September 
10th mentality, the idea that we have to recommit ourselves to the 
notion that we are very much at war and that we are very much in grave 
danger by these radicals who have at their disposal all the tools that 
modern technology can provide and we are arming our law enforcement 
officials with 25-year-old authority.
  To change that, to bring us out of the copper wire telephone world 
into the wireless, cellular satellite world, we have to pass this 
legislation. By passing this legislation, we can be assured that we are 
giving them everything that they need to disrupt terror attacks on our 
soil.
  It seems to me to be a no-brainer that we should give them the tools 
to listen to anyone who is in regular communication with a member of al 
Qaeda, to anyone who is in regular communication with someone whose 
laptop is seized in a cave in Afghanistan after a firefight with allied 
forces, whose records are found in the desk drawer of a hotel in 
Hamburg that has been traced to be money laundering through Pakistan, 
through the European Union, through London, to set up cells in the 
United States, to buy airplane tickets, to send people to flight 
school.
  Those are the tools that we have to give our law enforcement 
officials and intelligence agencies, just like the tools that we gave 
them when we tore down the walls that separated them and prevented them 
from communicating, just like the tools we gave them to track the 
movement of money that the terrorists were handling and these nation 
states who fund the terrorists were handling. Those are the tools that 
we give to reflect the nature of this global war on terror and to 
reflect the realities of modern communication technologies.
  It is vitally important that we pass this bill. To pass the bill, we 
have to pass this rule.
  The material previously referred to by Mr. Hastings of Florida is as 
follows:

   Previous Question for H. Res.--H.R. 5825--Electronic Surveillance 
                           Modernization Act

       At the end of the resolution add the following new 
     Sections:

       Sec.   . Notwithstanding any other provisions in this 
     resolution and without intervention of any point of order it 
     shall be in order immediately upon adoption of this 
     resolution for the House to consider the bill listed in Sec.   
     :
       Sec.   . The bills referred to in Sec.   . are as follows:
       1) a bill to implement the recommendations of the 9/11 
     Commission.

        The Vote on the Previous Question: What It Really Means

       This vote, the vote on whether to order the previous 
     question on a special rule, is not merely a procedural vote. 
     A vote against ordering the previous question is a vote 
     against the Republican majority agenda and a vote to allow 
     the opposition, at least for the moment, to offer an 
     alternative plan. It is a vote about what the House should be 
     debating.
       Mr. Clarence Cannon's Precedents of the House of 
     Representatives, (VI, 308-311) describes the vote on the 
     previous question on the rule as ``a motion to direct or 
     control the consideration of the subject before the House 
     being made by the Member in charge.'' To defeat the previous 
     question is to give the opposition a chance to decide the 
     subject before the House. Cannon cites the Speaker's ruling 
     of January 13, 1920, to the effect that ``the refusal of the 
     House to sustain the demand for the previous question passes 
     the control of the resolution to the opposition'' in order to 
     offer an amendment. On March 15, 1909, a member of the 
     majority party offered a rule resolution. The House defeated 
     the previous question and a member of the opposition rose to 
     a parliamentary inquiry, asking who was entitled to 
     recognition. Speaker Joseph G. Cannon (R-Illinois) said: 
     ``The previous question having been refused, the gentleman 
     from New York, Mr. Fitzgerald, who had asked the gentleman to 
     yield to him for an amendment, is entitled to the first 
     recognition.''
       Because the vote today may look bad for the Republican 
     majority they will say ``the vote on the previous question is 
     simply a vote on whether to proceed to an immediate vote on 
     adopting the resolution * * * [and] has no substantive 
     legislative or policy implications whatsoever.'' But that is 
     not what they have always said. Listen to the Republican 
     Leadership Manual on the Legislative Process in the United 
     States House of Representatives, (6th edition, page 135). 
     Here's how the Republicans describe the previous question 
     vote in their own manual: Although it is generally not 
     possible to amend the rule because the majority Member 
     controlling the time will not yield for the purpose of 
     offering an amendment, the same result may be achieved by 
     voting down the previous question on the rule . . . When the 
     motion for the previous question is defeated, control of the 
     time passes to the Member who led the opposition to ordering 
     the previous question. That Member, because he then controls 
     the time, may offer an amendment to the rule, or yield for 
     the purpose of amendment.''
       Deschler's Procedure in the U.S. House of Representatives, 
     the subchapter titled

[[Page H7784]]

     ``Amending Special Rules'' states: ``a refusal to order the 
     previous question on such a rule [a special rule reported 
     from the Committee on Rules] opens the resolution to 
     amendment and further debate.'' (Chapter 21, section 21.2) 
     Section 21.3 continues: Upon rejection of the motion for the 
     previous question on a resolution reported from the Committee 
     on Rules, control shifts to the Member leading the opposition 
     to the previous question, who may offer a proper amendment or 
     motion and who controls the time for debate thereon.''
       Clearly, the vote on the previous question on a rule does 
     have substantive policy implications. It is one of the only 
     available tools for those who oppose the Republican 
     majority's agenda to offer an alternative plan.

  Mr. PUTNAM. Mr. Speaker, I yield back the balance of my time, and I 
move the previous question on the resolution.
  The SPEAKER pro tempore. The question is on ordering the previous 
question.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Ms. HASTINGS of Florida. Mr. Speaker, on that I demand the yeas and 
nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule 
XX, this 15-minute vote on ordering the previous question on H. Res. 
1052 will be followed by 5-minute votes on adoption of H. Res. 1052, if 
ordered, and the motion to instruct conferees on H.R. 4954.
  The vote was taken by electronic device, and there were--yeas 225, 
nays 197, not voting 10, as follows:

                             [Roll No. 498]

                               YEAS--225

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boustany
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burton (IN)
     Buyer
     Calvert
     Camp (MI)
     Campbell (CA)
     Cannon
     Cantor
     Capito
     Carter
     Chocola
     Coble
     Cole (OK)
     Conaway
     Crenshaw
     Cubin
     Culberson
     Davis (KY)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     Dent
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Drake
     Dreier
     Duncan
     Ehlers
     Emerson
     English (PA)
     Everett
     Feeney
     Ferguson
     Fitzpatrick (PA)
     Flake
     Foley
     Forbes
     Fortenberry
     Fossella
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gilchrest
     Gillmor
     Gingrey
     Gohmert
     Goode
     Goodlatte
     Granger
     Graves
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hostettler
     Hulshof
     Hunter
     Hyde
     Inglis (SC)
     Issa
     Istook
     Jenkins
     Jindal
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     Kuhl (NY)
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     McCaul (TX)
     McCotter
     McCrery
     McHenry
     McHugh
     McKeon
     McMorris Rodgers
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Neugebauer
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Poe
     Pombo
     Porter
     Price (GA)
     Pryce (OH)
     Putnam
     Radanovich
     Ramstad
     Regula
     Rehberg
     Reichert
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schmidt
     Schwarz (MI)
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (NJ)
     Smith (TX)
     Sodrel
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Turner
     Upton
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Westmoreland
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NAYS--197

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Barrow
     Bean
     Becerra
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boren
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Carnahan
     Carson
     Case
     Chandler
     Clay
     Cleaver
     Clyburn
     Conyers
     Cooper
     Costa
     Costello
     Cramer
     Crowley
     Cuellar
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis (TN)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Dicks
     Dingell
     Doggett
     Doyle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Gonzalez
     Gordon
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Herseth
     Higgins
     Hinchey
     Hinojosa
     Holden
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick (MI)
     Kind
     Kucinich
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lipinski
     Lofgren, Zoe
     Lowey
     Lynch
     Maloney
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy
     McCollum (MN)
     McDermott
     McGovern
     McIntyre
     McKinney
     McNulty
     Meek (FL)
     Meeks (NY)
     Melancon
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore (KS)
     Moore (WI)
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Salazar
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Schwartz (PA)
     Scott (GA)
     Scott (VA)
     Serrano
     Shays
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Tanner
     Tauscher
     Taylor (MS)
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                             NOT VOTING--10

     Cardoza
     Castle
     Chabot
     Evans
     Green (WI)
     Lewis (GA)
     Meehan
     Ney
     Strickland
     Stupak

                              {time}  1905

  Messrs. GEORGE MILLER of California, WEINER, and LARSON of 
Connecticut changed their vote from ``yea'' to ``nay.''
  Mr. GIBBONS changed his vote from ``nay'' to ``yea.''
  So the previous question was ordered.
  The result of the vote was announced as above recorded.

                          ____________________