[Congressional Record Volume 152, Number 124 (Thursday, September 28, 2006)]
[House]
[Pages H7853-H7876]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ELECTRONIC SURVEILLANCE MODERNIZATION ACT
Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 1052, I
call up the bill (H.R. 5825) to update the Foreign Intelligence
Surveillance Act of 1978, and ask for its immediate consideration.
The Clerk read the title of the bill.
The SPEAKER pro tempore. Pursuant to House Resolution 1052, in lieu
of the amendments recommended by the Committee on the Judiciary and the
Permanent Select Committee on Intelligence printed in the bill, the
amendment in the nature of a substituted printed in House Report 109-
696 is adopted, and the bill, as amended, is considered read.
The text of the bill, as amended, is as follows:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Electronic Surveillance
Modernization Act''.
SEC. 2. FISA DEFINITIONS.
(a) Agent of a Foreign Power.--Subsection (b)(1) of section
101 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801) is amended--
(1) in subparagraph (B), by striking ``; or'' and inserting
``;''; and
(2) by adding at the end the following:
``(D) is reasonably expected to possess, control, transmit,
or receive foreign intelligence information while such person
is in the United States, provided that the official making
the certification required by section 104(a)(7) deems such
foreign intelligence information to be significant; or''.
(b) Electronic Surveillance.--Subsection (f) of such
section is amended to read as follows:
``(f) `Electronic surveillance' means--
``(1) the installation or use of an electronic, mechanical,
or other surveillance device for acquiring information by
intentionally directing surveillance at a particular known
person who is reasonably believed to be in the United States
under circumstances in which that person has a reasonable
expectation of privacy and a warrant would be required for
law enforcement purposes; or
``(2) the intentional acquisition of the contents of any
communication under circumstances in which a person has a
reasonable expectation of privacy and a warrant would be
required for law enforcement purposes, if both the sender and
all intended recipients are reasonably believed to be located
within the United States.''.
(c) Minimization Procedures.--Subsection (h) of such
section is amended--
(1) in paragraph (2), by striking ``importance;'' and
inserting ``importance; and'';
(2) in paragraph (3), by striking ``; and'' and inserting
``.''; and
(3) by striking paragraph (4).
(d) Wire Communication and Surveillance Device.--Subsection
(l) of such section is amended to read as follows:
``(l) `Surveillance device' is a device that allows
surveillance by the Federal Government, but excludes any
device that extracts or analyzes information from data that
has already been acquired by the Federal Government by lawful
means.''.
(e) Contents.--Subsection (n) of such section is amended to
read as follows:
``(n) `Contents', when used with respect to a
communication, includes any information concerning the
substance, purport, or meaning of that communication.''.
SEC. 3. AUTHORIZATION FOR ELECTRONIC SURVEILLANCE AND OTHER
ACQUISITIONS FOR FOREIGN INTELLIGENCE PURPOSES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is further amended by
striking section 102 and inserting the following:
``AUTHORIZATION FOR ELECTRONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE
PURPOSES
``Sec. 102. (a) In General.--Notwithstanding any other
law, the President, acting through the Attorney General, may
authorize electronic surveillance without a court order under
this title to acquire foreign intelligence information for
periods of up to one year if the Attorney General certifies
in writing under oath that--
``(1) the electronic surveillance is directed at--
``(A) the acquisition of the contents of communications of
foreign powers, as defined in paragraph (1), (2), or (3) of
section 101(a), or an agent of a foreign power, as defined in
subparagraph (A) or (B) of section 101(b)(1); or
``(B) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in paragraph (1), (2), or (3) of section
101(a); and
``(2) the proposed minimization procedures with respect to
such surveillance meet the definition of minimization
procedures under section 101(h);
if the Attorney General reports such minimization procedures
and any changes thereto to the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate at least 30 days
prior to the effective date of such minimization procedures,
unless the Attorney General determines immediate action is
required and notifies the committees immediately of such
minimization procedures and the reason for their becoming
effective immediately.
``(b) Minimization Procedures.--An electronic surveillance
authorized by this subsection may be conducted only in
accordance with the Attorney General's certification and the
minimization procedures. The Attorney General shall assess
compliance with such procedures and shall report such
assessments to the Permanent Select Committee on Intelligence
of the House of Representatives and the Select Committee on
Intelligence of the Senate under the provisions of section
108(a).
``(c) Submission of Certification.--The Attorney General
shall immediately transmit under seal to the court
established under section 103(a) a copy of his certification.
Such certification shall be maintained under security
measures established by the Chief Justice with the
concurrence of the Attorney General, in consultation with the
Director of National Intelligence, and shall remain sealed
unless--
``(1) an application for a court order with respect to the
surveillance is made under section 104; or
``(2) the certification is necessary to determine the
legality of the surveillance under section 106(f).
``AUTHORIZATION FOR ACQUISITION OF FOREIGN INTELLIGENCE INFORMATION
``Sec. 102A. (a) In General.--Notwithstanding any other
law, the President, acting through the Attorney General may,
for periods of up to one year, authorize the acquisition of
foreign intelligence information concerning a person
reasonably believed to be outside the United States if the
Attorney General certifies in writing under oath that--
``(1) the acquisition does not constitute electronic
surveillance;
``(2) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of a
wire or electronic communications service provider,
custodian, or other person (including any officer, employee,
agent, or other specified person of such service provider,
custodian, or other person) who has access to wire or
electronic communications, either as they are transmitted or
while they are stored, or equipment that is being or may be
used to transmit or store such communications;
``(3) a significant purpose of the acquisition is to obtain
foreign intelligence information; and
``(4) the proposed minimization procedures with respect to
such acquisition activity meet the definition of minimization
procedures under section 101(h).
``(b) Specific Place Not Required.--A certification under
subsection (a) is not required to identify the specific
facilities, places, premises, or property at which the
acquisition of foreign intelligence information will be
directed.
``(c) Submission of Certification.--The Attorney General
shall immediately transmit under seal to the court
established under section 103(a) a copy of a certification
made under subsection (a). Such certification shall be
maintained under security measures established by the Chief
Justice of the United States and the Attorney General, in
consultation with the Director of National Intelligence, and
shall remain sealed unless the certification is necessary to
determine the legality of the acquisition under section 102B.
``(d) Minimization Procedures.--An acquisition under this
section may be conducted only in accordance with the
certification of the Attorney General and the minimization
procedures adopted by the Attorney General. The Attorney
General shall assess compliance with such procedures and
shall report such assessments to the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate under
section 108(a).
``DIRECTIVES RELATING TO ELECTRONIC SURVEILLANCE AND OTHER ACQUISITIONS
OF FOREIGN INTELLIGENCE INFORMATION
``Sec. 102B. (a) Directive.--With respect to an
authorization of electronic surveillance under section 102 or
an authorization of an acquisition under section 102A, the
Attorney General may direct a person to--
``(1) immediately provide the Government with all
information, facilities, and assistance necessary to
accomplish the acquisition of foreign intelligence
information in such a manner as will protect the secrecy of
the electronic surveillance or acquisition and produce a
minimum of interference with the services that such person is
providing to the target; and
``(2) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the electronic surveillance or
acquisition or the aid furnished that such person wishes to
maintain.
``(b) Compensation.--The Government shall compensate, at
the prevailing rate, a person for providing information,
facilities, or assistance pursuant to subsection (a).
``(c) Failure to Comply.--In the case of a failure to
comply with a directive issued pursuant to subsection (a),
the Attorney General may petition the court established under
section 103(a) to compel compliance with the directive. The
court shall issue an
[[Page H7854]]
order requiring the person or entity to comply with the
directive if it finds that the directive was issued in
accordance with section 102(a) or 102A(a) and is otherwise
lawful. Failure to obey an order of the court may be punished
by the court as contempt of court. Any process under this
section may be served in any judicial district in which the
person or entity may be found.
``(d) Review of Petitions.--(1) In General.--(A)
Challenge.--A person receiving a directive issued pursuant to
subsection (a) may challenge the legality of that directive
by filing a petition with the pool established under section
103(e)(1).
``(B) Assignment of Judge.--The presiding judge designated
pursuant to section 103(b) shall assign a petition filed
under subparagraph (A) to one of the judges serving in the
pool established by section 103(e)(1). Not later than 24
hours after the assignment of such petition, the assigned
judge shall conduct an initial review of the directive. If
the assigned judge determines that the petition is frivolous,
the assigned judge shall deny the petition and affirm the
directive or any part of the directive that is the subject of
the petition. If the assigned judge determines the petition
is not frivolous, the assigned judge shall, within 72 hours,
consider the petition in accordance with the procedures
established under section 103(e)(2) and provide a written
statement for the record of the reasons for any determination
under this subsection.
``(2) Standard of Review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that such directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall affirm such directive, and order the recipient to
comply with such directive.
``(3) Directives Not Modified.--Any directive not
explicitly modified or set aside under this subsection shall
remain in full effect.
``(e) Appeals.--The Government or a person receiving a
directive reviewed pursuant to subsection (d) may file a
petition with the court of review established under section
103(b) for review of the decision issued pursuant to
subsection (d) not later than 7 days after the issuance of
such decision. Such court of review shall have jurisdiction
to consider such petitions and shall provide for the record a
written statement of the reasons for its decision. On
petition by the Government or any person receiving such
directive for a writ of certiorari, the record shall be
transmitted under seal to the Supreme Court, which shall have
jurisdiction to review such decision.
``(f) Proceedings.--Judicial proceedings under this section
shall be concluded as expeditiously as possible. The record
of proceedings, including petitions filed, orders granted,
and statements of reasons for decision, shall be maintained
under security measures established by the Chief Justice of
the United States, in consultation with the Attorney General
and the Director of National Intelligence.
``(g) Sealed Petitions.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(h) Liability.--No cause of action shall lie in any court
against any person for providing any information, facilities,
or assistance in accordance with a directive under this
section.
``(i) Use of Information.--Information acquired pursuant to
a directive by the Attorney General under this section
concerning any United States person may be used and disclosed
by Federal officers and employees without the consent of the
United States person only in accordance with the minimization
procedures required by section 102(a) or 102A(a). No
otherwise privileged communication obtained in accordance
with, or in violation of, the provisions of this section
shall lose its privileged character. No information from an
electronic surveillance under section 102 or an acquisition
pursuant to section 102A may be used or disclosed by Federal
officers or employees except for lawful purposes.
``(j) Use in Law Enforcement.--No information acquired
pursuant to this section shall be disclosed for law
enforcement purposes unless such disclosure is accompanied by
a statement that such information, or any information derived
from such information, may only be used in a criminal
proceeding with the advance authorization of the Attorney
General.
``(k) Disclosure in Trial.--If the Government intends to
enter into evidence or otherwise use or disclose in any
trial, hearing, or other proceeding in or before any court,
department, officer, agency, regulatory body, or other
authority of the United States, against an aggrieved person,
any information obtained or derived from an electronic
surveillance conducted under section 102 or an acquisition
authorized pursuant to section 102A, the Government shall,
prior to the trial, hearing, or other proceeding or at a
reasonable time prior to an effort to disclose or use that
information or submit it in evidence, notify the aggrieved
person and the court or other authority in which the
information is to be disclosed or used that the Government
intends to disclose or use such information.
``(l) Disclosure in State Trials.--If a State or political
subdivision of a State intends to enter into evidence or
otherwise use or disclose in any trial, hearing, or other
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of a State or a
political subdivision of a State, against an aggrieved
person, any information obtained or derived from an
electronic surveillance authorized pursuant to section 102 or
an acquisition authorized pursuant to section 102A, the State
or political subdivision of such State shall notify the
aggrieved person, the court, or other authority in which the
information is to be disclosed or used and the Attorney
General that the State or political subdivision intends to
disclose or use such information.
``(m) Motion to Exclude Evidence.--(1) In General.--Any
person against whom evidence obtained or derived from an
electronic surveillance authorized pursuant to section 102 or
an acquisition authorized pursuant to section 102A is to be,
or has been, used or disclosed in any trial, hearing, or
other proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the United
States, a State, or a political subdivision thereof, may move
to suppress the evidence obtained or derived from such
electronic surveillance or such acquisition on the grounds
that--
``(A) the information was unlawfully acquired; or
``(B) the electronic surveillance or acquisition was not
properly made in conformity with an authorization under
section 102(a) or 102A(a).
``(2) Timing.--A person moving to suppress evidence under
paragraph (1) shall make the motion to suppress the evidence
before the trial, hearing, or other proceeding unless there
was no opportunity to make such a motion or the person was
not aware of the grounds of the motion.
``(n) Review of Motions.--If a court or other authority is
notified pursuant to subsection (k) or (l), a motion is made
pursuant to subsection (m), or a motion or request is made by
an aggrieved person pursuant to any other statute or rule of
the United States or any State before any court or other
authority of the United States or any State--
``(1) to discover or obtain an Attorney General directive
or other materials relating to an electronic surveillance
authorized pursuant to section 102 or an acquisition
authorized pursuant to section 102A, or
``(2) to discover, obtain, or suppress evidence or
information obtained or derived from an electronic
surveillance authorized pursuant to section 102 or an
acquisition authorized pursuant to section 102A,
the United States district court or, where the motion is made
before another authority, the United States district court in
the same district as the authority, shall, notwithstanding
any other law, if the Attorney General files an affidavit
under oath that disclosure or an adversary hearing would harm
the national security of the United States, review in camera
and ex parte the application, order, and such other materials
relating to such electronic surveillance or such acquisition
as may be necessary to determine whether such electronic
surveillance or such acquisition authorized under this
section was lawfully authorized and conducted. In making this
determination, the court may disclose to the aggrieved
person, under appropriate security procedures and protective
orders, portions of the directive or other materials relating
to the acquisition only where such disclosure is necessary to
make an accurate determination of the legality of the
acquisition.
``(o) Determinations.--If, pursuant to subsection (n), a
United States district court determines that the acquisition
authorized under this section was not lawfully authorized or
conducted, it shall, in accordance with the requirements of
law, suppress the evidence which was unlawfully obtained or
derived or otherwise grant the motion of the aggrieved
person. If the court determines that such acquisition was
lawfully authorized and conducted, it shall deny the motion
of the aggrieved person except to the extent that due process
requires discovery or disclosure.
``(p) Binding Orders.--Orders granting motions or requests
under subsection (m), decisions under this section that an
electronic surveillance or an acquisition was not lawfully
authorized or conducted, and orders of the United States
district court requiring review or granting disclosure of
directives, orders, or other materials relating to such
acquisition shall be final orders and binding upon all courts
of the United States and the several States except a United
States court of appeals and the Supreme Court.
``(q) Coordination.--(1) In General.--Federal officers who
acquire foreign intelligence information may consult with
Federal law enforcement officers or law enforcement personnel
of a State or political subdivision of a State, including the
chief executive officer of that State or political
subdivision who has the authority to appoint or direct the
chief law enforcement officer of that State or political
subdivision, to coordinate efforts to investigate or protect
against--
``(A) actual or potential attack or other grave hostile
acts of a foreign power or an agent of a foreign power;
``(B) sabotage, international terrorism, or the development
or proliferation of weapons of mass destruction by a foreign
power or an agent of a foreign power; or
``(C) clandestine intelligence activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power.
[[Page H7855]]
``(2) Certification Required.--Coordination authorized
under paragraph (1) shall not preclude the certification
required by section 102(a) or 102A(a).
``(r) Retention of Directives and Orders.--A directive made
or an order granted under this section shall be retained for
a period of not less than 10 years from the date on which
such directive or such order is made.''.
(b) Table of Contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by inserting after the
item relating to section 102 the following:
``102A. Authorization for acquisition of foreign intelligence
information.
``102B. Directives relating to electronic surveillance and other
acquisitions of foreign intelligence information.''.
SEC. 4. JURISDICTION OF FISA COURT.
Section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803) is amended by adding at the end the
following new subsection:
``(g) Applications for a court order under this title are
authorized if the President has, by written authorization,
empowered the Attorney General to approve applications to the
court having jurisdiction under this section, and a judge to
whom an application is made may, notwithstanding any other
law, grant an order, in conformity with section 105,
approving electronic surveillance of a foreign power or an
agent of a foreign power for the purpose of obtaining foreign
intelligence information.''.
SEC. 5. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) in paragraph (6), by striking ``detailed description''
and inserting ``summary description'';
(B) in paragraph (7)--
(i) in the matter preceding subparagraph (A), by striking
``or officials designated'' and all that follows through
``consent of the Senate'' and inserting ``designated by the
President to authorize electronic surveillance for foreign
intelligence purposes'';
(ii) in subparagraph (C), by striking ``techniques;'' and
inserting ``techniques; and'';
(iii) by striking subparagraph (D); and
(iv) by redesignating subparagraph (E) as subparagraph (D);
(C) in paragraph (8), by striking ``a statement of the
means'' and inserting ``a summary statement of the means'';
(D) in paragraph (9)--
(i) by striking ``a statement'' and inserting ``a summary
statement''; and
(ii) by striking ``application;'' and inserting
``application; and'';
(E) in paragraph (10), by striking ``thereafter; and'' and
inserting ``thereafter.''; and
(F) by striking paragraph (11).
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3), by striking ``or the Director of National
Intelligence'' and inserting ``the Director of National
Intelligence, or the Director of the Central Intelligence
Agency''.
SEC. 6. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (c)(1)--
(A) in subparagraph (D), by striking ``surveillance;'' and
inserting ``surveillance; and'';
(B) in subparagraph (E), by striking ``approved; and'' and
inserting ``approved.''; and
(C) by striking subparagraph (F);
(3) by striking subsection (d);
(4) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(5) in subsection (d), as redesignated by paragraph (4), by
amending paragraph (2) to read as follows:
``(2) Extensions of an order issued under this title may be
granted on the same basis as an original order upon an
application for an extension and new findings made in the
same manner as required for an original order and may be for
a period not to exceed one year.'';
(6) in subsection (e), as redesignated by paragraph (4), to
read as follows:
``(e) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(1) determines that an emergency situation exists with
respect to the employment of electronic surveillance to
obtain foreign intelligence information before an order
authorizing such surveillance can with due diligence be
obtained;
``(2) determines that the factual basis for issuance of an
order under this title to approve such electronic
surveillance exists;
``(3) informs a judge having jurisdiction under section 103
at the time of such authorization that the decision has been
made to employ emergency electronic surveillance; and
``(4) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not more than 168 hours after the Attorney
General authorizes such surveillance.
If the Attorney General authorizes such emergency employment
of electronic surveillance, the Attorney General shall
require that the minimization procedures required by this
title for the issuance of a judicial order be followed. In
the absence of a judicial order approving such electronic
surveillance, the surveillance shall terminate when the
information sought is obtained, when the application for the
order is denied, or after the expiration of 168 hours from
the time of authorization by the Attorney General, whichever
is earliest. In the event that such application for approval
is denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person. A denial of the application made under
this subsection may be reviewed as provided in section
103.'';
(7) in subsection (h), as redesignated by paragraph (4)--
(A) by striking ``a wire or'' and inserting ``an''; and
(B) by striking ``physical search'' and inserting
``physical search or in response to a certification by the
Attorney General or a designee of the Attorney General
seeking information, facilities, or technical assistance from
such person under section 102B''; and
(8) by adding at the end the following new subsection:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, the judge shall also authorize the
installation and use of pen registers and trap and trace
devices to acquire dialing, routing, addressing, and
signaling information related to such communications and such
dialing, routing, addressing, and signaling information shall
not be subject to minimization procedures.''.
SEC. 7. USE OF INFORMATION.
Section 106(i) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1806(i)) is amended--
(1) by striking ``radio communication'' and inserting
``communication''; and
(2) by striking ``contents indicates'' and inserting
``contents contain significant foreign intelligence
information or indicate''.
SEC. 8. CONGRESSIONAL OVERSIGHT.
(a) Electronic Surveillance Under FISA.--Section 108 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1808) is amended--
(1) in subsection (a)(2)--
(A) in subparagraph (B), by striking ``and'' at the end;
(B) in subparagraph (C), by striking the period and
inserting ``; and''; and
(C) by adding at the end the following new subparagraph:
``(D) the authority under which the electronic surveillance
is conducted.''; and
(2) by striking subsection (b) and inserting the following:
``(b) On a semiannual basis, the Attorney General
additionally shall fully inform the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate on
electronic surveillance conducted without a court order.''.
(b) Intelligence Activities.--The National Security Act of
1947 (50 U.S.C. 401 et seq.) is amended--
(1) in section 501 (50 U.S.C. 413)--
(A) by redesignating subsection (f) as subsection (g); and
(B) by inserting after subsection (e) the following new
subsection:
``(f) The Chair of each of the congressional intelligence
committees, in consultation with the ranking member of the
committee for which the person is Chair, may inform--
``(1) on a bipartisan basis, all members or any individual
members of such committee, and
``(2) any essential staff of such committee,
of a report submitted under subsection (a)(1) or subsection
(b) as such Chair considers necessary.'';
(2) in section 502 (50 U.S.C. 414), by adding at the end
the following new subsection:
``(d) Informing of Committee Members.--The Chair of each of
the congressional intelligence committees, in consultation
with the ranking member of the committee for which the person
is Chair, may inform--
``(1) on a bipartisan basis, all members or any individual
members of such committee, and
``(2) any essential staff of such committee,
of a report submitted under subsection (a) as such Chair
considers necessary.''; and
(3) in section 503 (50 U.S.C. 415), by adding at the end
the following new subsection:
``(g) The Chair of each of the congressional intelligence
committees, in consultation
[[Page H7856]]
with the ranking member of the committee for which the person
is Chair, may inform--
``(1) on a bipartisan basis, all members or any individual
members of such committee, and
``(2) any essential staff of such committee,
of a report submitted under subsection (b), (c), or (d) as
such Chair considers necessary.''.
SEC. 9. INTERNATIONAL MOVEMENT OF TARGETS.
(a) Electronic Surveillance.--Section 105(d) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1805(d)), as
redesignated by section 6(4), is amended by adding at the end
the following new paragraph:
``(4) An order issued under this section shall remain in
force during the authorized period of surveillance
notwithstanding the absence of the target from the United
States, unless the Government files a motion to extinguish
the order and the court grants the motion.''.
(b) Physical Search.--Section 304(d) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1824(d)) is
amended by adding at the end the following new paragraph:
``(4) An order issued under this section shall remain in
force during the authorized period of surveillance
notwithstanding the absence of the target from the United
States, unless the Government files a motion to extinguish
the order and the court grants the motion.''.
SEC. 10. COMPLIANCE WITH COURT ORDERS AND ANTITERRORISM
PROGRAMS.
(a) In General.--Notwithstanding any other provision of
law, and in addition to the immunities, privileges, and
defenses provided by any other provision of law, no action,
claim, or proceeding shall lie or be maintained in any court,
and no penalty, sanction, or other form of remedy or relief
shall be imposed by any court or any other body, against any
person for an activity arising from or relating to the
provision to an element of the intelligence community of any
information (including records or other information
pertaining to a customer), facilities, or assistance during
the period of time beginning on September 11, 2001, and
ending on the date that is 60 days after the date of the
enactment of this Act, in connection with any alleged
communications intelligence program that the Attorney General
or a designee of the Attorney General certifies, in a manner
consistent with the protection of State secrets, is, was, or
would be intended to protect the United States from a
terrorist attack. This section shall apply to all actions,
claims, or proceedings pending on or after the effective date
of this Act.
(b) Jurisdiction.--Any action, claim, or proceeding
described in subsection (a) that is brought in a State court
shall be deemed to arise under the Constitution and laws of
the United States and shall be removable pursuant to section
1441 of title 28, United States Code.
(c) Definitions.--In this section:
(1) Intelligence community.--The term ``intelligence
community'' has the meaning given the term in section 3(4) of
the National Security Act of 1947 (50 U.S.C. 401a(4)).
(2) Person.--The term ``person'' has the meaning given the
term in section 2510(6) of title 18, United States Code.
SEC. 11. REPORT ON MINIMIZATION PROCEDURES.
(a) Report.--Not later than two years after the date of the
enactment of this Act, and annually thereafter until December
31, 2009, the Director of the National Security Agency, in
consultation with the Director of National Intelligence and
the Attorney General, shall submit to the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate a report
on the effectiveness and use of minimization procedures
applied to information concerning United States persons
acquired during the course of a communications activity
conducted by the National Security Agency.
(b) Requirements.--A report submitted under subsection (a)
shall include--
(1) a description of the implementation, during the course
of communications intelligence activities conducted by the
National Security Agency, of procedures established to
minimize the acquisition, retention, and dissemination of
nonpublicly available information concerning United States
persons;
(2) the number of significant violations, if any, of such
minimization procedures during the 18 months following the
effective date of this Act; and
(3) summary descriptions of such violations.
(c) Retention of Information.--Information concerning
United States persons shall not be retained solely for the
purpose of complying with the reporting requirements of this
section.
SEC. 12. AUTHORIZATION AFTER AN ARMED ATTACK.
(a) Electronic Surveillance.--Section 111 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1811) is
amended by striking ``for a period not to exceed'' and all
that follows and inserting the following: ``for a period not
to exceed 90 days following an armed attack against the
territory of the United States if the President submits to
the Permanent Select Committee on Intelligence of the House
of Representatives and the Select Committee on Intelligence
of the Senate notification of the authorization under this
section.''.
(b) Physical Search.--Section 309 of such Act (50 U.S.C.
1829) is amended by striking ``for a period not to exceed''
and all that follows and inserting the following: ``for a
period not to exceed 90 days following an armed attack
against the territory of the United States if the President
submits to the Permanent Select Committee on Intelligence of
the House of Representatives and the Select Committee on
Intelligence of the Senate notification of the authorization
under this section.''.
SEC. 13. AUTHORIZATION OF ELECTRONIC SURVEILLANCE AFTER A
TERRORIST ATTACK.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is further amended--
(1) by adding at the end of title I the following new
section:
``AUTHORIZATION FOLLOWING A TERRORIST ATTACK UPON THE UNITED STATES
``Sec. 112. (a) In General.--Notwithstanding any other
provision of law, but subject to the provisions of this
section, the President, acting through the Attorney General,
may authorize electronic surveillance without an order under
this title to acquire foreign intelligence information for a
period not to exceed 90 days following a terrorist attack
against the United States if the President submits a
notification to the congressional intelligence committees and
a judge having jurisdiction under section 103 that--
``(1) the United States has been the subject of a terrorist
attack; and
``(2) identifies the terrorist organizations or affiliates
of terrorist organizations believed to be responsible for the
terrorist attack.
``(b) Subsequent Certifications.--At the end of the 90-day
period described in subsection (a), and every 90 days
thereafter, the President may submit a subsequent
certification to the congressional intelligence committees
and a judge having jurisdiction under section 103 that the
circumstances of the terrorist attack for which the President
submitted a certification under subsection (a) require the
President to continue the authorization of electronic
surveillance under this section for an additional 90 days.
The President shall be authorized to conduct electronic
surveillance under this section for an additional 90 days
after each such subsequent certification.
``(c) Electronic Surveillance of Individuals.--The
President, or an official designated by the President to
authorize electronic surveillance, may only conduct
electronic surveillance of a person under this section if the
President or such official determines that--
``(1) there is a reasonable belief that such person is
communicating with a terrorist organization or an affiliate
of a terrorist organization that is reasonably believed to be
responsible for the terrorist attack; and
``(2) the information obtained from the electronic
surveillance may be foreign intelligence information.
``(d) Minimization Procedures.--The President may not
authorize electronic surveillance under this section until
the Attorney General approves minimization procedures for
electronic surveillance conducted under this section.
``(e) United States Persons.--Notwithstanding subsection
(a) or (b), the President may not authorize electronic
surveillance of a United States person under this section
without an order under this title for a period of more than
60 days unless the President, acting through the Attorney
General, submits a certification to the congressional
intelligence committees that--
``(1) the continued electronic surveillance of the United
States person is vital to the national security of the United
States;
``(2) describes the circumstances that have prevented the
Attorney General from obtaining an order under this title for
continued surveillance;
``(3) describes the reasons for believing the United States
person is affiliated with or in communication with a
terrorist organization or affiliate of a terrorist
organization that is reasonably believed to be responsible
for the terrorist attack; and
``(4) describes the foreign intelligence information
derived from the electronic surveillance conducted under this
section.
``(f) Use of Information.--Information obtained pursuant to
electronic surveillance under this subsection may be used to
obtain an order authorizing subsequent electronic
surveillance under this title.
``(g) Reports.--Not later than 14 days after the date on
which the President submits a certification under subsection
(a), and every 30 days thereafter until the President ceases
to authorize electronic surveillance under subsection (a) or
(b), the President shall submit to the congressional
intelligence committees a report on the electronic
surveillance conducted under this section, including--
``(1) a description of each target of electronic
surveillance under this section; and
``(2) the basis for believing that each target is in
communication with a terrorist organization or an affiliate
of a terrorist organization.
``(h) Congressional Intelligence Committees Defined.--In
this section, the term `congressional intelligence
committees' means the Permanent Select Committee on
Intelligence of the House of Representatives and the Select
Committee on Intelligence of the Senate.''; and
(2) in the table of contents in the first section, by
inserting after the item relating to section 111 the
following new item:
[[Page H7857]]
``Sec. 112. Authorization following a terrorist attack upon the United
States.''.
SEC. 14. AUTHORIZATION OF ELECTRONIC SURVEILLANCE DUE TO
IMMINENT THREAT.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is further amended--
(1) by adding at the end of title I the following new
section:
``AUTHORIZATION DUE TO IMMINENT THREAT
``Sec. 113. (a) In General.--Notwithstanding any other
provision of law, but subject to the provisions of this
section, the President, acting through the Attorney General,
may authorize electronic surveillance without an order under
this title to acquire foreign intelligence information for a
period not to exceed 90 days if the President submits to the
congressional leadership, the congressional intelligence
committees, and the Foreign Intelligence Surveillance Court a
written notification that the President has determined that
there exists an imminent threat of attack likely to cause
death, serious injury, or substantial economic damage to the
United States. Such notification--
``(1) shall be submitted as soon as practicable, but in no
case later than 5 days after the date on which the President
authorizes electronic surveillance under this section;
``(2) shall specify the entity responsible for the threat
and any affiliates of the entity;
``(3) shall state the reason to believe that the threat of
imminent attack exists;
``(4) shall state the reason the President needs broader
authority to conduct electronic surveillance in the United
States as a result of the threat of imminent attack;
``(5) shall include a description of the foreign
intelligence information that will be collected and the means
that will be used to collect such foreign intelligence
information; and
``(6) may be submitted in classified form.
``(b) Subsequent Certifications.--At the end of the 90-day
period described in subsection (a), and every 90 days
thereafter, the President may submit a subsequent written
notification to the congressional leadership, the
congressional intelligence committees, the other relevant
committees, and the Foreign Intelligence Surveillance Court
that the circumstances of the threat for which the President
submitted a written notification under subsection (a) require
the President to continue the authorization of electronic
surveillance under this section for an additional 90 days.
The President shall be authorized to conduct electronic
surveillance under this section for an additional 90 days
after each such subsequent written notification.
``(c) Electronic Surveillance of Individuals.--The
President, or an official designated by the President to
authorize electronic surveillance, may only conduct
electronic surveillance of a person under this section if the
President or such official determines that--
``(1) there is a reasonable belief that such person is
communicating with an entity or an affiliate of an entity
that is reasonably believed to be responsible for imminent
threat of attack; and
``(2) the information obtained from the electronic
surveillance may be foreign intelligence information.
``(d) Minimization Procedures.--The President may not
authorize electronic surveillance under this section until
the Attorney General approves minimization procedures for
electronic surveillance conducted under this section.
``(e) United States Persons.--Notwithstanding subsections
(a) and (b), the President may not authorize electronic
surveillance of a United States person under this section
without an order under this title for a period of more than
60 days unless the President, acting through the Attorney
General, submits a certification to the congressional
intelligence committees that--
``(1) the continued electronic surveillance of the United
States person is vital to the national security of the United
States;
``(2) describes the circumstances that have prevented the
Attorney General from obtaining an order under this title for
continued surveillance;
``(3) describes the reasons for believing the United States
person is affiliated with or in communication with an entity
or an affiliate of an entity that is reasonably believed to
be responsible for imminent threat of attack; and
``(4) describes the foreign intelligence information
derived from the electronic surveillance conducted under this
section.
``(f) Use of Information.--Information obtained pursuant to
electronic surveillance under this subsection may be used to
obtain an order authorizing subsequent electronic
surveillance under this title.
``(g) Definitions.--In this section:
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means the Permanent
Select Committee on Intelligence of the House of
Representatives and the Select Committee on Intelligence of
the Senate.
``(2) Congressional leadership.--The term `congressional
leadership' means the Speaker and minority leader of the
House of Representatives and the majority leader and minority
leader of the Senate.
``(3) Foreign intelligence surveillance court.--The term
`Foreign Intelligence Surveillance Court' means the court
established under section 103(a).
``(4) Other relevant committees.--The term `other relevant
committees' means the Committees on Appropriations, the
Committees on Armed Services, and the Committees on the
Judiciary of the House of Representatives and the Senate.'';
and
(2) in the table of contents in the first section, by
inserting after the item relating to section 112, as added by
section 13(2), the following new item:
``Sec. 113. Authorization due to imminent threat.''.
SEC. 15. TECHNICAL AND CONFORMING AMENDMENTS.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is further amended--
(1) in section 105(a)(4), as redesignated by section
6(1)(B)--
(A) by striking ``104(a)(7)(E)'' and inserting
``104(a)(7)(D)''; and
(B) by striking ``104(d)'' and inserting ``104(c)'';
(2) in section 106(j), in the matter preceding paragraph
(1), by striking ``105(e)'' and inserting ``105(d)''; and
(3) in section 108(a)(2)(C), by striking ``105(f)'' and
inserting ``105(e)''.
The SPEAKER pro tempore. Debate shall not exceed 90 minutes, 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 member of
the Permanent Select Committee on Intelligence.
The gentleman from Wisconsin (Mr. Sensenbrenner) and the gentleman
from Michigan (Mr. Conyers) each will control 30 minutes, and the
gentleman from Michigan (Mr. Hoekstra) and the gentlewoman from
California (Ms. Harman) each will control 15 minutes.
The Chair recognizes the gentleman from Wisconsin.
General Leave
Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days within which to revise and extend
their remarks and include extraneous material on H.R. 5825, currently
under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, I rise in strong support of H.R. 5825, the Electronic
Surveillance Modernization Act. In 1978, Congress enacted the Foreign
Intelligence Surveillance Act, or FISA for short, in order to provide a
mechanism for the domestic collection of foreign intelligence
information.
The goal of FISA was to secure the integrity of the fourth amendment
while protecting the national security interests of the United States.
When FISA was enacted, domestic communications and international
communications were fundamentally different from one another.
Specifically, domestic communications were transmitted via wire, while
international communications were transmitted via radio.
In modern times international communications are increasingly
transmitted through undersea cables which are considered wire. H.R.
5825 provides a technology-neutral definition of electronic
surveillance to ensure that international communications are treated
the same under the law regardless of the technology used to transmit
them.
The bill also simplifies the process for getting a FISA court order
and returns the focus of FISA to protecting those with a fourth
amendment expectation of privacy.
On December 16 of last year, based on the leak of classified
information, the New York Times published a story regarding a terrorism
surveillance program operated by the National Security Agency. The
President subsequently acknowledged that he had authorized this program
after 9/11 to intercept the international communications of those with
known links to al Qaeda and related terrorist organizations.
Notwithstanding the administration's position that this program is
fully consistent with U.S. law and the Constitution, the President has
requested that Congress provide additional and specific authorization
to ensure that U.S. laws governing electronic surveillance are updated
to reflect modern modes of communication.
Mr. Speaker, terrorist organizations are global in scope, and rely on
electronic communications to plan and execute their murderous designs.
We
[[Page H7858]]
can all agree that electronic communications must not be impervious to
detection by U.S. law enforcement intelligence officers whose vigilance
has helped avert another terrorist attack on our soil in the 5 years
since the 9/11 attacks.
As General Hayden testified on July 26, 2006, the National Security
Agency intercepts communications and does so for only one purpose: ``To
protect the lives, liberties and well beings of the citizens of the
United States from those who would do us harm.''
General Hayden also noted that ``the revolution in telecommunications
technology has extended the actual impact of the FISA regime far beyond
what Congress could ever have anticipated in 1978, and I do not think
that anyone can make a claim that the FISA statute was optimized to
deal with 9/11 or to deal with the lethal enemy who likely already had
combatants inside the United States.''
Mr. Speaker, H.R. 5825 updates FISA to reflect modern technology and
the changing nature of the terrorist threat. This legislation combines
the Judiciary Committee's provisions that streamline the FISA process
with the Intelligence Committee provisions that provided the President
much needed statutory flexibility to conduct surveillance of foreign
communications.
This legislation responds to the urgent need to provide our Nation's
law enforcement intelligence communities with 21st-century tools to
meet and defeat a 21st-century threat.
It is crucial to improving our national efforts to detect and disrupt
acts of terrorism before they occur on American soil. This bill is the
product of extensive discussion and thoughtful deliberation. It will
make America safer while safeguarding American civil liberties.
Mr. Speaker, I urge support of this vital legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, ladies and gentlemen of the House, let me state from the
outset that we support our government intercepting each and every
conversation involving al Qaeda and its supporters. But I cannot
support legislation that not only fails to bring the warrantless
surveillance program under the law, but dramatically expands the
administration's authority to conduct warrantless surveillance on
innocent Americans.
This is the Bush bill. It is amazing to me that we would even be
taking up a law that fails to regulate the present domestic spying
program. Nearly 9 months after we first learned from the New York Times
that there was a warrantless surveillance program going on, and we did
not know it until then, there has been no attempt to conduct an
independent inquiry into its legality.
{time} 1945
Not only has the Congress failed to conduct any sort of
investigation, but the administration summarily rejected all requests
for a special counsel or Inspector General review, and when the Office
of Professional Responsibility finally opened an investigation, the
President of the United States himself squashed it by denying the
investigators security clearances.
Now, since 1978, there have been 12 amendments to this bill, 51
different changes. So let us not start off acting as though there have
never been changes here before.
What we are doing, instead of restricting the administration and the
National Security Agency, this bill grants the administration more and
new authority to conduct warrantless surveillance of American citizens.
Not only does the bill permit warrantless surveillance of the
international communications of any American who is not a target, but
it grants the administration new authority to conduct warrantless
surveillance on domestic calls in many new circumstances.
We do not like this measure before us because, instead of bringing
the President's warrantless surveillance program under the law, what
has been done, without much finesse, is to dramatically expand his
authority and permit even broader and more intrusive warrantless
surveillance of the program and the phone calls and the e-mails of
innocent Americans.
It raises severe constitutional questions, the fourth amendment and
the equal protection of agencies and subjects everything in this area
to ill-considered and unfair process.
But it is not just the law professors and the civil liberty unions
that are supporting it. We have here a statement from former national
security officials, and I will insert the statement of former national
security officials in the Record at this time.
Statement of Former National Security Officials
The President has spoken repeatedly and emotionally in
recent days about the need for intelligence professionals to
have clarity in the law. He has emphasized that it is not
fair to ask these men and women to operate in an uncertain
legal environment and that, in fact, legal uncertainty
hampers operational effectiveness and thereby jeopardizes our
national security. Yet legal uncertainty is exactly what will
result if Congress heeds the President's call to enact
legislation that replaces the obligation to use the
procedures of the Foreign Intelligence Surveillance Act with
broad language about relying upon the President's
constitutional authority.
Before FISA was enacted, courts addressed the issue of
warrantless surveillance for domestic security purposes but
did not clearly resolve the scope of the President's
authority regarding foreign intelligence surveillance. FISA
was enacted in order to clarify this murky legal area by
setting forth a clear process for electronic surveillance of
foreign powers and agents of foreign powers. The Executive
Branch welcomed the clarity and this law has been viewed as
an essential national security tool for 28 years.
This legislation would return a complex subject to the
murky waters from which FISA emerged by making going to the
FISA court or applying FISA in any way optional rather than
mandatory. It leaves it to the President to decide when he
has the authority to conduct warrantless surveillance of
Americans or foreigners. Whether he has made the right
determination will not be known unless and until it is
challenged in court.
If advances in technology or other exigencies not
contemplated in FISA present the President with a national
security emergency, he should have a window in which to act
while promptly seeking appropriate amendments to FISA--and
this could be provided for in the statute. But this
extraordinary emergency authority should not be permitted
effectively to repeal FISA.
FISA was a political compromise between the Legislative and
Executive branches of government; unforeseen exigencies
should require those branches of government to continue to
coordinate, not condone unilateralism by either branch.
Indeed, the world has become so much more complex, both
technologically and socially, than it was in 1978, that
making FISA optional rather than mandatory would
significantly destabilize the balance struck then between law
and policy.
As individuals with extensive experience in national
security and intelligence, we strongly urge that the
requirements of FISA remain just that--requirements, not
options. Congress should continue to work to get the facts
and if, once they are provided, these facts demonstrate the
need for changes in the law, amend it only as needed to meet
genuine national security imperatives. Legal clarity is just
as essential in this context as any other in which
intelligence or law enforcement officers are asked to
operate. FISA provides that clarity and should not be
abandoned or amended in ways that render it irrelevant.
Ken Bass
Formerly Counsel for Intelligence Policy, Department of
Justice
Eugene Bowman
Formerly Deputy General Counsel, Federal Bureau of
Investigation
Mary DeRosa
Formerly Special Assistant to the President
Formerly Legal Advisor, National Security Counsel
Juliette Kayyem
Formerly Member, National Commission on Terrorism (The
Bremer Commission)
Formerly Legal Advisor to the Attorney General, Department
of Justice
Elizabeth Larson
Formerly Senior Staff, House Pennanent Select Committee on
Intelligence
Formerly Senior Executive, Central Intelligence Agency
Elizabeth Rindskopf Parker
Formerly General Counsel, National Security Agency
Formerly General Counsel, Central Intelligence Agency
F. Whitten Peters
Formerly Secretary of the Air Force
Formerly Principal Deputy General Counsel, Department of
Defense
Stephen Saltzburg
Formerly Deputy Assistant Attorney General, Criminal
Division, Department of Justice
William S. Sessions
Formerly Director, Federal Bureau of Investigation
Formerly Chief United States District Judge for the Western
District of Texas
Michael A. Smith
Formerly Assistant General Counsel, National Security
Agency
[[Page H7859]]
Brit Snider
Formerly General Counsel, Senate Select Committee on
Intelligence
Formerly Inspector General, Central Intelligence Agency
Suzanne E. Spaulding
Formerly General Counsel, Senate Select Committee on
Intelligence
Formerly Assistant General Counsel, Central Intelligence
Agency
Michael A. Vatis
Formerly Director, National Infrastructure Protection
Center, Federal Bureau of Investigation
Formerly Associate Deputy Attorney General, Department of
Justice
I lift up the names of two people in particular: William Sessions,
the former Director of the Federal Bureau of Investigation, formerly
Chief Judge of the Western District of Texas; and William H. Webster,
formerly Director of the Federal Bureau of Investigation and former
Director of the Central Intelligence Agency.
There is a wide agreement that this legislation is not what we should
be doing. It should be rejected because we are giving the
administration unilateral authority to review the call records and e-
mails of millions of Americans and permits the administration to use
surveillance devices without cause, thereby reinstituting the
discredited ``total information awareness'' program that kept records
on hundreds of millions of Americans.
Hidden in the fine print are provisions which grant the
administration authority to maintain permanent records on innocent
American citizens, granting the administration new authority to demand
personal records without court review, and terminating any and all
legal challenges to unlawful wiretapping.
So we are joined in our position by the Computer and Communications
Industry Association, including Microsoft, Verizon, Google and Intuit;
law school deans, 63 of them; 13 former national security officials;
the Center for Democracy and Technology; and the Center for National
Security Studies.
We must fight terrorism, but we must fight it in the right way,
consistent with our Constitution and in a manner that serves as a model
for the rest of the world. This bill fails that test.
Mr. Speaker, I reserve the balance of my time.
Mr. SENSENBRENNER. Mr. Speaker, my speakers are on their way to the
floor, and I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman
from New York (Mr. Nadler), ranking subcommittee member.
Mr. NADLER. Mr. Speaker, I rise in opposition to this dangerous and
unnecessary legislation. Dangerous because it threatens the fundamental
rights all Americans hold dear, and unnecessary because the sponsors
appear to believe that freedom is the enemy.
The right to engage in surveillance of communications is not at issue
today. What is at issue is the right to spy on Americans in the United
States without a warrant from a court.
Nowhere under current law is there any requirement that the
government stop listening to terrorists until they get can a court
order. Existing law gives the government 72 hours after it has begun
surveillance to get a warrant from the secret FISA court.
Our colleagues, the gentleman from California (Mr. Schiff) and the
gentleman from Arizona (Mr. Flake), have proposed to extend that time
so the government has more time to make its case; and they have
proposed to update the FISA law so as to make it unnecessary to get a
warrant to tap a conversation between two persons outside the United
States, even if the conversation is routed through the United States.
That proposal solves all the legitimate concerns with FISA.
It is so reasonable a proposal that this Republican rubber-stamp
Congress refused to let us even get a vote on it. It is not surprising
that the process of taking away liberty should trample on democracy as
well.
What the President wants, and the Republican Congress is prepared to
give, is unrestrained authority to spy on anyone, without having to
answer to anyone. Once again, the President wants to be above the law,
and this House appears ready to oblige him.
The power to use every tool we have to gain as much intelligence on
the terrorists as we can is a vitally important power, and we support
that power as long as it is constrained by law.
It is also a dangerous and easily abused power. We have plenty of
experience with the abuse of that power. Remember J. Edgar Hoover
wiretapping Martin Luther King, for example. That is why we have a
Constitution. That is why we have courts. That is why we have checks
and balances. That is why we have legal controls on the executive
branch, not to protect the bad guys but to protect the rest of us from
abuses of power.
Unchecked power, no matter what the purpose is dangerous. It is also
unnecessary. History will judge this Congress harshly when this
inevitably bad bill is approved.
Do not be stampeded into signing away our freedom. Let us insist that
this be done right, by rejecting this very wrong and dangerous bill and
considering the very reasonable alternative given to us by the
bipartisan gentlemen, Mr. Schiff and Mr. Flake.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentlewoman
from New Mexico (Mrs. Wilson), the author of the bill.
Mrs. WILSON of New Mexico. Mr. Speaker, I think it is important for
people to understand tonight why we are doing this.
I believe very strongly that intelligence is the first line of
defense in the war on terrorism. That means we have to have
intelligence agencies and capabilities that are agile, that are
responsive to changes in technology, and that also protect the civil
liberties of Americans.
It is hard to understand and hard to explain, frankly, the FISA law
to people who do not deal day in and out with these things, but I have
got to tell you this is how I have tried to explain it.
I live in New Mexico very near Route 66. Route 66 is the mother road
that went from Chicago to LA through every little town along the way.
But then modernization came along, and we replaced Route 66 with
Interstate 40. We no longer have the stoplights and the intersections.
We created on ramps and off ramps and concrete barriers to protect the
citizens where traffic was moving very, very quickly. That is kind of
like what we are trying to do here with the Foreign Intelligence
Surveillance Act.
Now, it bothers me a little bit that for 4 years Democrat leaders in
this House, including the minority leader and the ranking member of the
Intelligence Committee, were briefed on the President's terrorist
surveillance program multiple times, and now, when I come to the floor
of the House with a bill that proposes putting signs and rules of the
road in place to protect American civil liberties, you object to the
controls and protections. If there were concerns about the fourth
amendment, those concerns should have been raised 4 years ago.
The fourth amendment requires that people in America be free from
unreasonable search and seizure. We have set in place rules of the road
in the wake of a terrorist attack, when there is an armed attack on the
United States or when an attack is imminent on the United States, rules
of the road that are reasonable, that are constitutional, that protect
civil liberties and that also keep us safe in the event of terrorist
attack.
Mr. CONYERS. Mr. Speaker, I am pleased to yield 2 minutes to the
gentleman from Virginia (Mr. Scott), a member of the Judiciary
Committee.
Mr. SCOTT of Virginia. Mr. Speaker, I rise in opposition to the
legislation.
First, we are legislating in the dark. We do not even know what the
President is doing now because he will not tell us, but we do know that
he says he will not continue doing what he is doing unless we
retroactively authorize it and immunize everyone who participated in
the illegal activity from any criminal and civil liability.
But for the New York Times disclosure that the administration had
authorized secret surveillance of domestic conversations, we would not
even know about it now. When exposed, the President claimed he was
operating under inherent powers, but court decisions have found that
the President cannot simply declare administration actions
constitutional and lawful, whether or not they are.
Yet rather than finding out what is going on, we are moving forward
with this legislation not only to authorize
[[Page H7860]]
something in the future but to retroactively legalize whatever has been
going on in the past.
Yesterday, under the military tribunal bill, we authorized what had
previously been considered torture and retroactively immunized
everybody involved in it. Today, we do the same type of retroactive
approval and immunization to what may be illegal domestic surveillance.
The President already has broad latitude to conduct domestic
surveillance, including surveillance of American citizens under the
Foreign Intelligence Surveillance Act, totally in secret, so long as it
is overseen by the FISA court.
So this is not a question of whether or not dangerous terrorists
should be wiretapped. Of course they should, and they can be under
present law, but in a democratic society with checks and balances, we
should insist that some checks and balances occur, either before the
wiretap or after the wiretap in the case of an emergency.
This bill does not enhance security, but it does allow surveillance
without the traditional checks and balances that have served our Nation
well. This bill, therefore, should be defeated.
Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman
from California (Mr. Daniel E. Lungren).
Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the
gentleman for yielding.
Mr. Speaker, I am not sure what bill I just heard referred to. As I
read this bill, as one of those who helped to write this bill, we have
time limits in this bill. We have notices in this bill. We have
requirements in this bill. This bill attempts to do what we should want
to do, that is, base it on the expectation of privacy of the individual
involved.
This bill attempts to try and bring up to date the FISA law, a law
that was established at a time when technology was far different than
it is today. This is an attempt to try and bridge that gap that was
created as a result of technology changing.
We set into motion by the law when FISA was first established and in
accordance with those technologies which were then available. This is
an attempt to allow us to still secure that kind of information that
was always allowed under the FISA law, always anticipated to be under
the FISA law, but which might be brought into question by the change in
technology which has taken place.
{time} 2000
It also attempts to try and deal with that tension I mentioned before
that exists as a result of the constitutional powers that the President
has, that we have, and that the judicial branch has and in an area of
law where for many years, since the beginning of this Republic, the
Supreme Court has found that the President has not exclusive, but
preeminent, power or preeminent authority.
And there is a reason for this. It is the reason Benjamin Franklin
talked about in the quote I gave earlier this evening. It is the reason
for the kind of functions that take place in a war-time scenario. It is
a recognition that you can have one Commander in Chief and that one
Commander in Chief has, as part of his responsibility, the requirement
to be able to obtain intelligence about the enemy, intelligence about
the foreign power.
So the question is, How do you construct a law which allows the
President to exercise that responsibility and at the same time allows
us to exercise our responsibility? There seems to be this idea where we
say that there is an inherent power in the President, but then we don't
recognize it at all. Or if he acts, and acts pursuant to that
constitutional provision, what he has done is unconstitutional and
illegal. And we therefore say, when we try to construct a law which we
hope will cover most of the areas of activity by the President, where
it will engender a greater spirit of cooperation, we say that what he
did or if he asserts that authority, somehow that is unlawful or
unconstitutional.
We have prerogatives in the House of Representatives. There are areas
of cooperation. There are areas where we have preeminent power, such as
the House of Representatives is given the responsibility and the
authority to begin any law which would take money from the pockets of
our constituents. The President of the United States cannot do that
under the Constitution, yet he does work with us in that regard, in
many different ways even before he gets the final bill.
What we have done here is to try to set up a structure which calls
for the kind of activity that will be reported to us on a regular
basis, with time requirements that don't exist in current law today. It
circumscribes some of the activities that otherwise are questionable
right now, and it sets up a framework for cooperation, it seems to me.
So I hear a lot of, and I have used this word before, but hyperbole
here on the floor. We have men and women of good will on both sides of
the aisle that have differences of opinion on this. But to condemn this
as somehow an effort for us to give away our power; that somehow this
allows the President to continue to act in an illegal way or to cover
up previous illegal activity betrays a lack of understanding of the
Constitution, of the structure of this House, and of activity of prior
administrations, both Democrat and Republican.
I would ask us all to support this well-crafted bill.
Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to a distinguished
member of the committee, Mr. Schiff.
Mr. SCHIFF. I thank the gentleman for yielding.
My colleague from California is right, we do have reasonable
differences of opinion on this legislation. Regrettably, we won't get a
chance to vote on them. The bipartisan substitute that I offered with
Mr. Flake will not be permitted to come up for a vote tonight.
Let us look at where we are. It is 5 years since 9/11. And in those 5
years, the Justice Department, the NSA have not come to Congress to ask
for the changes that are being proposed by this bill. Indeed, but for
the fortuity of the disclosure of the secret program by the New York
Times, we wouldn't be here at all. That says something about the
efficacy of the current law and the current FISA court.
Now, I happen to think the FISA laws can be improved. We have amended
them, though, in 25 different ways over the last several years, so it
is not as if this 28-year-old act has been untouched. The question
here, the rub here is not what we do with foreigners who are talking to
other foreigners on foreign soil, as my colleagues in the majority
would like us to believe. The rub here is what do we do about Americans
on American soil.
Do we want to entrust to the government and say you can surveil an
American here at home without any court supervision? We are going to
take entire programs off the books. We are going to embody a philosophy
that says to the government, we trust you. We don't need a check and
balance. My colleague says that the transportation analogy would be
rules of the road. Well, the more accurate analogy would be if we had a
speed limit sign and people were racing past it and violating the speed
limit, the base bill would say, tear down the sign or do away with the
court that would enforce the law by stripping the court of the
jurisdiction to review the program.
That is not what we are here to do. We are here to say to the
American people that those that wish us harm we will go after with
every tool. But you, who are law-abiding citizens of this country, have
a reasonable expectation of privacy in your homes and we will respect
that. When we intrude your home and your phone and your e-mail, you
will have the confidence of knowing that a court is overseeing what the
government does.
Because the Framers' philosophy was check and balance. It served us
well for 200 years. It will continue to serve us well.
Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman
from Arizona (Mr. Flake).
Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding, and I
appreciate the gentleman from California and the opportunity to work
with him on the substitute.
Mr. Speaker, I rise today in opposition to H.R. 5825. In 1978,
Congress passed a seminal piece of legislation called FISA. This act
recognized that while the President has inherent authority to protect
American citizens, Congress has clear authority to regulate that
surveillance.
[[Page H7861]]
There have been many technological changes over the past 28 years,
and FISA has been amended many times to adapt to those changes. But,
now, we here in Congress are confronted with the knowledge that the
executive branch has chosen to conduct surveillance outside of the
strictures of FISA. We must now choose whether to allow warrantless
surveillance to continue or whether we should bring the terrorist
surveillance program and any other programs that might be in operation
under FISA's authority. If we do not, we will essentially have two
categories of surveillance programs: one on the books and one that is
off the books.
Now, perhaps the existence of FISA has made us all complacent. We
have not been confronted for the past three decades with reports of
executive branch abuse. But prior to FISA's passage, such abuses were
legion. The Church Commission of the mid-1970s identified instances of
abuse of the executive branch surveillance power that were so egregious
that they thought it necessary to bring in FISA.
Do we want to return to the pre-FISA era? I would submit that we
should not. Yet the bill we will vote on tonight will ensure that
surveillance will continue to be gathered outside of FISA, effectively
returning us to that era.
As I have said before, the acid test for Republicans should be as
follows: Would I more jealously guard the congressional prerogative to
regulate the President's inherent authority to conduct warrantless
surveillance if the current occupant of the White House did not share
my party affiliation? If the answer is yes, then it is our obligation
to vote against the underlying bill and to vote instead for the motion
to recommit.
Mr. CONYERS. Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the
distinguished gentleman from Maryland (Mr. Van Hollen).
Mr. VAN HOLLEN. I thank my colleague, Mr. Speaker.
Let us be clear about one thing. As we have all said, we understand
that electronic surveillance is a vital tool in the war on terror. We
all want to know when Osama bin Laden is calling: when he is calling,
who he is calling, and what he is saying. Existing law, FISA, gives the
President the authority to do that. And if the President wants greater
flexibility in using that authority, he should come to the Congress and
tell us exactly what additional authority he needs.
As has been said, this Congress has already amended FISA, the
electronic surveillance law, more than 25 times since 9/11 to
accommodate changing technologies. That is why it was so troubling to
learn that what we as a Congress did in the PATRIOT Act with respect to
electronic surveillance was essentially a meaningless exercise. We gave
the President expanded authorities, but the President has since argued
that he can go beyond the expanded authorities that we gave him, and he
has ignored the work of the Judiciary Committee and this Congress.
On what basis does he do this? This President claims when it comes to
conducting electronic surveillance he is, in the final analysis, not
constrained by the laws passed by this Congress. He claims his
constitutional authority as Commander in Chief under article II in this
area ultimately allows him to ignore the will of the Congress.
Take a look at the administration's legal memorandum of January 19,
2006. Essentially, they say that we don't have the power ultimately to
regulate in this area. And I find it incredibly curious that after the
Judiciary Committee, on a bipartisan basis, adopted language proposed
by Mr. Flake that simply said Congress finds that article I, section 8,
clause 18 of the Constitution, known as the necessary and proper
clause, grants Congress clear authority to regulate the President's
inherent power to gather foreign intelligence. That was passed on a
bipartisan basis. It is gone from this bill. Mr. Flake's amendment is
gone from this bill. That is taken out of this bill.
Now, imagine, here we are as a Congress, in passing a law that seeks
to regulate the President's authority in this area, albeit giving him
additional authorities, that in passing that law we strip out the
provision that says we as a Congress find that we have the power to
regulate in this area. It is a total abdication of congressional
responsibility. It is ceding the President's argument that Congress
doesn't matter in this area.
I believe, ultimately, it is a dangerous power grab on behalf of the
administration; and this Congress, on a bipartisan basis, has not stood
up to our responsibilities under the Constitution.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman
from Texas (Mr. Gohmert).
Mr. GOHMERT. Mr. Speaker, I am grateful to our chairman.
This is critical. We are in a war with people who want to destroy our
way of life. Now, we are rightfully concerned about the civil rights of
Americans, but the thing is this doesn't have to do with the civil
rights of Americans. If the President, or any President, I don't care
who it is, would authorize wiretapping surveillance of American to
American, then I will be right here with anybody else calling them to
task. That is not what we are about here.
And, in fact, in this act, it actually updates the definition of who
is covered under FISA to ensure that electronic surveillance is
narrowly focused on America's enemies. That is part of what is so
important here.
Another aspect that makes this even more crucial today: some have
said, why now? Why today? Is this all for politics? Well, I don't know.
The question is, when a Federal judge in Detroit strikes this down, who
was hand picked, let's face it. As I understand, there were 30 lawsuits
filed around the country, so that as soon as the ACLU and most liberal
folks got the judge they wanted from the draw in each of those
jurisdictions, they dismissed all the others and got the most liberal
judge they could get. That is inappropriate. That is not justice. This
is putting our Nation at risk. This is something we have to do now.
Some have said, well, gee doesn't it really affect the rights of
Americans? And the answer is no, not unless you are dealing directly
with a foreign terrorist. This is not about domestic to domestic,
American to American.
We have heard some on the other side bring up scripture, that we need
to do unto others, even if they are not Americans. We need to do unto
others, I would submit to you, and I love it when people call on
scripture like my brothers and sisters from the other side of the
aisle, because it brought to mind to me Romans 13-4 that says, ``for
it,'' the government, ``is a servant of God for your good. But if you
do evil, be afraid. For the government does not bear the sword without
purpose. It is the servant of God to inflict wrath on the evildoer.''
So if we want to invoke ``do unto others,'' let's look at the rest of
the verses and get it in context.
Individually, should we go after people who are after our country?
Absolutely not. That is inappropriate. But the government, which is us,
has not only an obligation, but we have the critical duty to make this
happen.
So I would humbly submit that because we have rogue Federal judges
out there who will do their will to destroy this administration, or any
administration's effort to protect us, we have to do our job.
{time} 2015
We have got to make sure that this government does deal with evil,
does deal with those who seek to destroy us, and, yes, put them under
surveillance; not Americans but foreigners, because that is our job.
That is what we are required to do. That is what I swore to do when I
joined the Army, when I swore to defend the Constitution against all
enemies, foreign and domestic. That is what we still have got to do.
Mr. CONYERS. Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman
from Texas, Ms. Sheila Jackson-Lee, a distinguished member of the
Committee on the Judiciary.
(Ms. JACKSON-LEE of Texas asked and was given permission to revise
and extend her remarks.)
Ms. JACKSON-LEE of Texas. Mr. Speaker, in recognition of the Federal
judiciary, I know that as they take an oath of office that their
commitment is to serve the American people and the United States of
America with the dignity and respect of that office. It has not come to
my attention there are any number of ``rogue judges'' that would
undermine the Constitution. But I do believe that it is crucial that
the facts of this debate be established and
[[Page H7862]]
why there is such opposition to an initiative that deals with the
security of America.
There is no divide, I have said this, I think, on any number of
occasions, on the commitment of members of the Democratic Caucus on
securing America. In fact, there are any number of experts who have
engaged in the issues of security and intelligence for a very long
period of time.
But, frankly, we are arguing against the broad brush that this
Congress has now given to the Bush administration, and the Bush
administration has made no convincing case to Congress justifying the
need to change the law and to satisfy Congress, nor has Congress been
able to satisfy itself that any recommended changes would be
constitutionally permissible.
Chairman Hoekstra said that Congress simply should not have to play
20 questions to get the information that it deserves under our
Constitution. That is the chairman of the Intelligence Committee.
Frankly, I think it is important to note that the President, this
administration, has not identified any technological barriers to the
operation of FISA. I believe in modernizing it. However, most of the
legislative proposals to amend FISA do not attempt to modernize the
law, but rather erode the fourth amendment protection, since available
technology allows the interception of more communications.
Let me tell you what happens in this legislation. First of all, there
is an opportunity to drag in the innocent. This new bill could drag in
journalists and foreign workers of high-tech companies. This bill, for
example, radically lifts the universe of warrantless searches. It
drastically amends existing definitions in a manner that will permit
government to retain indefinitely information collected on Americans.
This is about protecting Americans with this broad brush. This is
about not going back to McCarthyism. This is about making sure that we
secure us within our borders, northern and southern and otherwise, but
it is to say do not turn us into terrorizing ourselves.
The fourth amendment has not been abolished. This could have been
amended in collaboration with our colleagues to protect civil
liberties, the 4th Amendment, and to secure America. This is a rush to
the election. I ask my colleagues to oppose this legislation.
Mr. SENSENBRENNER. Mr. Speaker, I yield 4 minutes to the gentleman
from Arizona (Mr. Franks).
Mr. FRANKS of Arizona. Mr. Speaker, I thank the chairman.
Mr. Speaker, in the very simplest of terms, the strategic goal of
terrorists in this war is to be able to hide from justice long enough
to be able to gain access to weapons of mass destruction with which
they can radically alter the future of American freedom for generations
to come. The strategic challenge that we face is in finding and
defeating terrorists before they gain access to such weapons and
proceed to achieve their horrifying goal.
It is obvious that the critical factor in all of this effort is
intelligence, for if we knew where every terrorist in the world was at
this moment, we could destroy nearly all of them in less than 60 days.
But, Mr. Speaker, we have been held back by liberals in this country.
Every effort the President has made to gain such intelligence has been
resisted.
We should consider the terrorists' own words if we doubt their
commitment to strike this country in the most horrendous way possible.
Osama bin Laden said many years ago, ``It is our religious duty to gain
nuclear weapons.'' Hezbollah's Nasrallah said of America, ``Let the
entire world hear me. Our hostility to the Great Satan is absolute.
Regardless of how the world has changed after September 11, death to
America will remain our reverberating and powerful slogan. Death to
America.''
Terrorists, Mr. Speaker, believe that they have a critical advantage
over the free people of the world. They believe their will is far
stronger than ours and that they need only to persevere to break our
resolve.
Mr. Speaker, the message of liberals in this country has only
encouraged terrorists in that belief. If we fail to use our best and
critical intelligence mechanisms to fight and defeat terrorists in
these critical days, our children and grandchildren will pay an
unspeakable price, and history will condemn this generation for such
profound irresponsibility in the face of such an obvious threat to
human peace.
We need to pass this bill, Mr. Speaker.
Mr. CONYERS. Mr. Speaker, I am pleased to yield 2\1/2\ minutes to the
gentlewoman from California (Ms. Waters), a member of the Judiciary
Committee.
Ms. WATERS. Mr. Speaker, if there is one thing the American people
know, they know that America has a Constitution that protects us from
being spied on by our government. Everything about this bill makes a
mockery of the Constitution of the United States of America. This
administration has literally thrown the Constitution out the window.
In committee markup, the majority jammed a substitute amendment down
our throats that basically undermines that part of the Foreign
Intelligence Surveillance Act that requires that the administration get
a warrant before eavesdropping on American citizens. Now the majority
is jamming another Republican substitute or comprehensive amendment
down the throats of the American people by considering this bill under
what is known as a closed rule, which prohibits Democrats from offering
any changes or amendments.
As we grapple with the war on terrorism, the constitutional power of
the President has been stretched until it cannot be stretched anymore,
from the use of force executed against Iraq, to the initiation of a
warrantless surveillance program that targets innocent Americans.
In April, the U.S. Attorney General told the Judiciary Committee that
even if that authorization to use military force resolution were
determined not to provide the legal authority for the program that the
President's inherent authority to authorize foreign intelligence
surveillance would permit him to authorize the terrorist surveillance
program.
The imperial President can do whatever he wants. Mr. President, Mr.
Attorney General, Mr. Chairman, why then do we need this legislation?
The President illegally and unconstitutionally authorized the
wholesale collection of domestic communications, and now the majority
wants to give him legislative permission. This is not fair or honest.
This bill broadens the scope of those the President can monitor, so
innocent people can be violated so long as the surveillance is directed
at so-called ``one permissible target.'' It also removes one of the
central requirements for conducting warrantless surveillance, one that
provides the most protection to the American people. And, as FISA has
said, there is no substantial likelihood that the surveillance will
acquire the contents of any communication to which a United States
person is a party.
They shouldn't be spying on us. If what the President is doing right
now is so clearly authorized and is in the best interests of our
Nation's security, why was this provision so troublesome? Is it clear
that the fourth amendment rights of the American people are a burden to
this administration? If a case is so extreme that it would take too
long to obtain a warrant, these requirements shouldn't be difficult to
meet.
Mr. SENSENBRENNER. Mr. Speaker, I yield 3\1/2\ minutes to the
gentlewoman from Connecticut (Mrs. Johnson).
(Mrs. JOHNSON of Connecticut asked and was given permission to revise
and extend her remarks.)
Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the chairman for
yielding me time.
Mr. Speaker, I rise today in strong support of this legislation that
is so important to our Nation's security when a new type of warfare
threatens our security. I appreciate the good work of my friend from
New Mexico, my colleague Heather Wilson, to bring this bill to the
floor, she and a number of her colleagues.
The bill will authorize the NSA's terrorist surveillance program,
which is truly vital to our Nation's security. Remember back to 9/11?
We in this House ran down the street away from this Capitol because we
were scared, and all of America was scared. Nobody knew where the next
strike was going
[[Page H7863]]
to hit. Nobody knew how much others had planned.
That was September 11. On October 25, the leadership of the House and
Senate, Democrats and Republicans, leadership and heads of the
Intelligence Committee, met with the President and the Vice President
to look at this program and agreed that it was necessary to our
security, that we needed to be able to pick up the phone if there was a
call from a terrorist number into America. We needed to know what was
being said, and we couldn't wait.
Ever since that October 25 date, the leadership of both parties in
the House and Senate have routinely overseen this program. At the end
of every meeting they came to the conclusion that what we were learning
to keep our Nation safe was worth the targeted program that intercepted
calls to known terrorist numbers, to numbers in the United States of
America.
Now, some have said here tonight we have the 72-hour application
process under FISA to address the need to intercept such calls. FISA is
paperwork heavy. The critical factor is not the time available to go to
the FISA court after the emergency application, but the detailed
requirements for information that must be definitively known before you
can even start the emergency surveillance.
There are 11 separate items: the identity of the target, the
description of the target, and so it goes, all down through the 11. I
don't have time to read all 11.
There is paperwork filled out first by the analysts at NSA, and then
looked at by the lawyers at NSA, and then looked at by the lawyers in
the Department of Justice. Not only lots of paperwork, but layers of
lawyers.
So when my colleague from New Mexico says that we need rules of the
road for this program that has been so crucial to our security,
frankly, I am proud to support her.
Let me conclude with a quote from CIA Director Michael Hayden: ``Had
this program (the NSA surveillance) been in effect prior to 9/11, it is
my professional judgment that we would have detected some of the al
Qaeda operatives in the United States and we would have identified them
as such. The NSA program allows faster movement than is possible under
FISA.''
It is our responsibility as leaders of this Nation to make that
faster movement possible to defend our Nation, and to do it in harmony
with protection of our civil rights, which rules of the road do.
Mr. CONYERS. Mr. Speaker, I am pleased now to yield 2 minutes to the
distinguished minority whip, the gentleman from Maryland (Mr. Hoyer).
Mr. HOYER. Mr. Speaker, I thank the gentleman.
Mr. Speaker, every single Member of this body supports giving our
Commander in Chief the tools necessary to track terrorists, to
intercept their communications, and to disrupt their plots. Any
suggestion otherwise, any suggestion that any Member of this body
somehow seeks to coddle terrorists who want to attack our Nation and
kill our people demeans our discourse and is beneath the dignity of
this institution.
{time} 2030
Make no mistake. Our highest duty is to protect the American people,
secure our homeland, strengthen our national security, and defend the
Constitution of the United States. This legislation, unfortunately, is
deeply flawed and not bipartisan, and would turn the Foreign
Intelligence Surveillance Act on its head. It fails to explicitly
preserve FISA's exclusivity. Thus, by implication, it allows the
President to conduct surveillance of Americans pursuant to any inherent
authority argument.
The bill makes sweeping changes to the definition of electronic
surveillance, allowing the National Security Agency to listen without
warrant to the content of any communication that is from the United
States to overseas or vice versa. The bill allows for warrantless
surveillance after an armed attack or a terrorist attack or
anticipation of an imminent attack; yet these terms are not defined or
are loosely defined.
It is truly a shame, Mr. Speaker, but not surprising that the
majority refused to allow the Members of this House to consider the
reasonable bipartisan substitute offered by Congressmen Schiff, Flake,
and Inglis, two Republicans, two Democrats, and Congresswoman Harman.
The gentlewoman said that we ran out, running down the street. There
is a time to stop running down the street and think and give us an
opportunity to offer alternatives. What a shame that we have not done
that. What a shame we still run. What a shame we still hark to politics
rather than the policy.
For example, just listen to what William Sessions and William
Webster--among others--stated recently.
Recall, Mr. Sessions is the former Director of the FBI during the
administration of George H.W. Bush, and Mr. Webster is the former
Director of the FBI during the Carter and Reagan Administrations and
former Director of the CIA during the first Bush Administration.
They stated (and I quote): ``Legal uncertainty is exactly what will
result if Congress heeds the President's call to enact legislation that
replaces the obligation to use the procedures of the Foreign
Intelligence Surveillance Act with broad language about relying upon
the President's constitutional authority.''
Mr. CONYERS. Mr. Speaker, I yield myself 30 seconds, because it has
been stated that we might have been able to prevent the September 11
attack. But a distinguished member of the 9/11 Commission specifically
criticized General Hayden for suggesting that the NSA warrantless
wiretapping program could have prevented the September 11 attack by
stating that it is patently false and an indication that he is willing
to politicize intelligence and use false information to help the
President.
The Administration's claims that the NSA programs could
have prevented the September 11 attacks do not appear to
comport with the facts. With respect to Nawaf Alhazmi and
Khalid Almihdhar, the September 11th Commission found that
the Government had already compiled significant information
on these individuals prior to the attacks, writing, ``[o]n
May 15, [2001], [a CIA official] reexamined many of the old
cables from early 2000, including the information that
Mihdhar had a U.S. visa, and that Hazmi had come to Los
Angeles on January 15, 2000. The CIA official who reviewed
the cables took no action regarding them.'' Under FISA, the
Administration could have used the information to seek
permission to monitor the suspects' phone calls and e-mails
without risking any disclosure of the classified information.
It is also not at all clear that warrantless surveillance
would have been useful in averting the 9/11 attacks, since
the Administration was unable to locate where the two
suspects were living in the United States and, according to
the FBI ``had missed numerous opportunities to track them
down in the 20 months before the attacks.'' Senator Bob
Kerrey, who was a member of the 9/11 Commission, specifically
criticized General Hayden for suggesting that the NSA
warrantless wiretapping program could have prevented the
September 11 attack stating: ``[t]hat's patently false and an
indication that he's willing to politicize intelligence and
use false information to help the President.''
I turn now to the gentleman from Virginia (Mr. Moran) who has studied
this matter and I yield him 2 minutes.
Mr. MORAN of Virginia. I thank my good friend and soon-to-be Chair of
the Judiciary Committee.
The Republican leadership should be ashamed of itself to be so
readily willing to undermine every American citizen's constitutional
protection of privacy in order to give some political help to an
endangered Republican Congresswoman from New Mexico.
This bill gives the executive branch unilateral powers to operate
outside of the law. The FISA court has worked well for the past 30
years. Through the issuance of warrants, it provides our intelligence
agencies expedited access to listen in on private communications but
while safeguarding our civil liberties.
The FISA court has refused only four requests for surveillance out of
10,000. Four requests refused out of 10,000. And the Attorney General
already has the ability to collect information without a court order in
emergency situations. But this bill will retroactively approve the
President's wiretapping program, one that our judicial branch has held
is illegal. It even allows the Justice Department to coerce telephone
companies to give up their records.
To date, the administration has never articulated to Congress or the
relevant committees why such expansive new authority is necessary.
Congress and the American people deserve an answer as to why we should
give this President unilateral authority to erode our constitutional
rights.
Mr. Speaker, we believe that every communication to and from al Qaeda
[[Page H7864]]
should be monitored. In doing so, however, Congress should not give the
executive branch a blank check to expose millions of innocent Americans
to warrantless surveillance. Let's cast a vote for our Constitution and
for our Bill of Rights and reject this bad bill.
The SPEAKER pro tempore. The Chair would advise, the gentleman from
Michigan has 4 minutes remaining; the gentleman from Wisconsin has 9
minutes remaining.
Mr. CONYERS. Mr. Speaker, I yield to the gentleman from New York (Mr.
Hinchey) 2 minutes.
Mr. HINCHEY. Mr. Speaker, throughout the course of our history, the
most respected and revered Americans have consistently warned us that
the greatest threat facing our country was not external but internal.
We could not be conquered from abroad, but we do have the capacity to
erode what constitutes this country from within. By doing so, we would
place ourselves in deep jeopardy; and that is what we see happening
here today. We see the erosion of the basic principles of this country,
the rule of law based upon our Constitution.
This bill that is before the House now is contrary to the fourth
amendment of our Constitution. It provides for illegal surveillance.
And when that Constitution was written, it was written based upon the
experience of people who saw the effects of these kinds of dictatorial
policies in other places around the world. And that is what we are now
introducing to our own country.
We have so-called conservative Republicans who are refusing to
conserve the basic principles and elements of the Constitution. And the
most important part of that document, of course, is the first ten
amendments, the Bill of Rights, and what we are seeing here is the
erosion of the fourth amendment.
This bill is contrary to every basic principle of our country. If we
pass this legislation, we are opening up new opportunities for an
increasingly despotic administration to continue to erode the basic
freedoms and liberties of the American people. On that basis alone,
this bill should be rejected, and it should be rejected
enthusiastically by the vast majority of the Members of this House. If
we really understand what we are all about, vote this bill down.
Mr. CONYERS. Mr. Speaker, I now yield the balance of our time to the
distinguished gentleman from New Jersey (Mr. Andrews).
(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)
Mr. ANDREWS. Mr. Speaker, if tonight the National Security Adviser
walked in the Oval Office and said, ``Mr. President, we believe there
is an imminent attack about to occur in the United States, and we want
to listen in on a phone call,'' we think there should be no doubt that
the President has the authority to say, ``Yes, listen in on that phone
call,'' to protect the United States.
But at some point the emergency power ends, and the normal rules of
law must obtain. Certainly that point comes sooner than 90 days after
the request is made, which can be renewed and renewed and renewed
without a decision of an independent Federal judge.
We have a law in place that says that within 72 hours of that
emergency our President must go before independent Federal judges in a
private, secret proceeding and justify the decision to listen to the
calls of Americans or read their e-mails. 99.9 percent of the time
since 1978 that has worked. There is simply no record, there is simply
no justification to overturn that decision.
This is the most expansive, frightening, and unreasonable expansion
of government power since Japanese Americans were unlawfully interred
during the Second World War.
One of our friends from the other side of the aisle said that he was
offended that liberals had somehow subjected the country to danger.
Well, America's first liberal, Thomas Jefferson, would be offended by
this piece of legislation, because it sets the outer balance of
Presidential power wherever the President chooses to set those outer
bounds. This violates Marbury v. Madison, it violates a fundamental
tenant of American law, and, for these reasons, this bill should be
defeated.
Mr. SENSENBRENNER. Mr. Speaker, I yield myself 2 minutes.
Mr. Speaker, we have got a problem in this country: We are under
attack. There are almost 3,000 people that died on 9/11, and we have
had to change our entire philosophy on how to deal with this threat.
Before 9/11, we treated terrorist acts as a criminal act. And with a
criminal act, a crime occurs and people are killed, and we send out the
police to investigate. Hopefully, they get enough evidence to indict
someone, and then the U.S. Attorney's offices will try them and
hopefully obtain a conviction, and the judge sentences them, hopefully,
for a long, long time.
9/11 proved we can't do that any more, because there are thousands of
lives that are at risk. In this age of suicide bombings and suicide
attacks, the people who would be prosecuted usually die in the
commission of that terrorist act and take thousands of souls, innocent
souls along with them. That is why we have to bring up to date a law
that was written in the mid-1970s, and we have done this in a
constitutional manner.
What we have heard from the other side of the aisle is, no, this
isn't good enough and that the perfect is that the enemy of the good.
Well, Mr. Speaker, if the perfect defeats the good, then bad will
prevail. And if there is, God forbid, another terrorist attack, the
blood will be on our hands for not doing the right thing. This bill
should be passed.
Mr. Speaker, I yield the balance of my time to the gentleman from
Michigan (Mr. Hoekstra) and ask unanimous consent that he be allowed to
yield portions of that time.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Wisconsin?
There was no objection.
Mr. HOEKSTRA. Mr. Speaker, I yield myself 6 minutes.
Mr. Speaker, there shouldn't be a controversy about the fact that
there are threats to our national security today and that they continue
to be more diverse and more complex than ever before.
The Intelligence Committee has worked throughout this Congress to
identify and better understand these threats and what steps are
necessary to provide the best possible capabilities to our intelligence
community, the men and women of our intelligence community, to keep
America safe.
The committee recently issued a detailed report on the threats posed
by al Qaeda, a hostile regime in Iran. I encourage all members to
review them. But you don't need to read the reports to understand the
scope, the urgency, and the viciousness of the threats that we face
today. The threats are relentless. They are omnipresent.
In the last 2 months alone, a treasonous American appeared in a video
prepared by al Qaeda terrorists who have sworn to destroy America and
said, ``Either repent of your misguided ways and enter into the light
of truth, or keep your poison to yourself and suffer the consequences
in this world and the next.''
Jihadists called for the Pope to be ``hunted down and killed,''
merely for reading from a medieval text.
A 66-year-old Italian nun was ruthlessly shot four times in the back
and killed while trying to train nurses in Somalia.
Our British allies discovered a horrific and brutal plot, close to
fruition, to blow up multiple passenger airliners flying between the
United States and the United Kingdom. That likely would have been a
more devastating terrorist attack than 9/11. The British Home Secretary
has said that they are following at least 20 additional plots.
Press reports have indicated the possibility that the Stalinist
regime in North Korea is accelerating its plans to test nuclear
weapons, and the rogue president of Iran has reiterated his rights to
nuclear technology.
If anyone in the House believes that these threats are not real or
they are not serious, I would welcome any information and discussion to
the contrary.
{time} 2045
But even if a small portion of these threats have the possibility of
coming to fruition, it should not be a serious matter of debate that
our country needs to rapidly and effectively bring every intelligence
tool to bear to find our enemies, detect and understand their
intentions, and thwart their hostile and terrorist acts against our
country and our people.
[[Page H7865]]
The opponents of this bill say it is ``not necessary.'' I suppose the
bill is ``not necessary'' if you do not believe that the threats we
face are very real, and very serious. But I believe in the face of such
intense and relentless threats this House would be derelict in its duty
not to pass this bill that gives us the necessary intelligence tools to
defend ourselves.
This bill is intended to modernize one of our primary weapons against
terrorists and hostile foreign powers, the Foreign Intelligence
Surveillance Act. FISA was passed in 1978. There are some who say it
has been updated since, the law has become dangerously obsolete and
hopeless as a tool against terrorism. We cannot fight a 21st-century
intelligence war against sophisticated terrorist and state enemies with
laws designed around the 1970s, around the former Soviet Union and
around the bureaucracy associated with the former Soviet Union.
This bill will update the law to allow more flexible and agile
intelligence collection against modern communication technologies and
streamline the process. We must focus our resources on finding and
detecting terrorists, not on having to fill out repetitive, inch-think
paperwork to justify what should be an obviously appropriate need to
listen to two foreign terrorists communicating in a foreign country.
The outdated law doesn't serve our intelligence interests. It doesn't
serve our civil liberties interests. It serves only lawyers and
bureaucracy.
This bill will focus the resources of the FISA process where they
belong: on effective intelligence collection and protecting civil
liberties where Americans have a reasonable expectation of privacy.
There is no ambiguity. This law continues to protect the average
American going about their daily business, but does provide for needed
surveillance against specifically identified terrorist organizations
and spies. This bill would also provide clear authority for our Nation
to act in times of armed attack, terrorist attack, or imminent threat.
It will also substantially increase congressional oversight not only
of FISA but of all intelligence activities to address important
concerns about the separation of powers that have been expressed in
this Congress.
I appreciate the strong, close support on this matter by Chairman
Sensenbrenner and the Committee on the Judiciary. I would also like to
recognize the hard work and the leadership of the distinguished Chair
of the Intelligence Subcommittee on Technical and Tactical
Intelligence, Heather Wilson, who took on the assignment to address the
difficult and complicated issues in this bill. This has not been an
easy task. She has worked diligently to address a number of complex,
substantive issues and a range of interests within the House.
Mr. Speaker, I believe that this bill is not only necessary but vital
to protect our Nation and the American people. The Nation demands that
the Congress pass laws to protect our national security. This is what
this bill does. I urge all Members to support it.
Mr. Speaker, I reserve the balance of my time.
Ms. HARMAN. Mr. Speaker, I yield myself 5 minutes.
Mr. Speaker, 5 years after 9/11, much remains to do. We still must
learn the whereabouts of Osama bin Laden and Zawahiri so we can capture
or kill them, achieve intelligence dominance in Iraq so we can protect
our forces, penetrate global terror cells to prevent them from
attacking us, plug gaps in our homeland security and prevent nuclear
material from being acquired by hostile forces bent on using it against
America and our allies.
But instead of working on these critical problems, tonight this House
is voting to fix something that is not broken, the Foreign Intelligence
Surveillance Act. And we are doing this although we know that the other
body will not take up this legislation before the recess.
Mr. Speaker, I worked in the White House when FISA was passed. I
understand its bipartisan history and the abuses it corrected.
FISA has been modernized 51 times since then. It is now a modern,
flexible statute which includes 12 amendments since 9/11 made at the
administration's request. It is a vital tool for the FBI, the CIA and
the NSA in their investigations of terrorism and espionage.
All of us support strong tools to intercept the communications of
terrorists, track their whereabouts and disrupt their plots. All of us.
But there is no evidence that FISA must be totally rewritten in favor
of a new regime promoting broad, warrantless surveillance of Americans.
None. Yet the White House/Wilson bill does just that.
Mr. Conyers mentioned that a bipartisan group of former government
officials issued a statement opposing the Wilson approach. They wrote:
``This legislation would return a complex subject to the murky waters
from which FISA emerged by making . . . the FISA court, or applying
FISA in any way, optional rather than mandatory . . . FISA provides . .
. clarity and should not be abandoned or amended in ways that render it
irrelevant.''
Judge William Sessions, who served as FBI director under Presidents
Reagan and Bush, and Judge William Webster, who also served Presidents
Reagan and Bush as Director of the FBI and CIA, signed that letter, and
they are right.
The White House/Wilson bill muddies the water in two major ways.
First, the bill rewrites the definition of electronic surveillance so
it applies only when the government intentionally targets a person
inside the U.S.
This means that if an American citizen in Los Angeles talks to her
sister in Mexico, NSA can listen to their phone calls simply by
claiming the target is the sister in Mexico. Nearly all international
calls and e-mails of Americans can be intercepted under this bill
without a warrant using this new definition of electronic surveillance.
The next loophole is even larger. The White House/Wilson bill
authorizes the President to conduct warrantless eavesdropping on the
communications of American citizens after an armed attack or a
terrorist attack or an anticipation of an imminent threat. This
includes domestic-to-domestic phone calls and e-mails. But these terms
are not defined. Talk about murky waters.
Imminent threat includes acts that are likely to cause substantial
economic damage. Is the threat of a trade war an imminent threat?
To allow 60- to 90-day renewable periods for the President to engage
in warrantless surveillance is to gut the careful bipartisanship
protections in FISA and grant the President unchecked power.
As the Supreme Court has said: ``A state of war is not a blank check
for the President.'' Not for this President, or any future President.
Mr. Speaker, we can do better, and we will have time after this
election to do better. The bipartisan substitute which I strongly
support is better and would extend from 3 to 7 days the amount of time
the NSA has to obtain a warrant in an emergency after surveillance
begins, make clear that foreign-to-foreign communications do not
require a warrant, even if they are intercepted in the United States,
increase the number of FISA judges, and put more resources into
expediting the warrant application process, and reaffirm that FISA is
the exclusive way to conduct electronic surveillance on Americans.
It includes key provisions of the LISTEN Act, which Mr. Conyers and I
produced in May and which has the support of all nine minority members
of the Intelligence Committee.
Mr. Speaker, protecting America from terrorism is our constitutional
duty. We all know that it is an election season and a debate on
surveillance brings political benefits to some. But that is a terrible
reason to legislate. I, for one, do not want to suspend our 217-year-
old Constitution tonight for political reasons or no reason at all.
Vote ``no.''
Mr. Speaker, I reserve the balance of my time.
Mr. HOEKSTRA. Mr. Speaker, I would like to at this time yield 4
minutes to the gentlewoman from New Mexico, Heather Wilson, the
chairman of the subcommittee, the author of this House legislation.
Mrs. WILSON of New Mexico. Mr. Speaker, I would like to start out
this evening by correcting a few misstatements.
First, the letter that has been referred to a couple of times here by
Mr. Sessions and Mr. Webster refers to a bill introduced by Senator
Specter in
[[Page H7866]]
the Senate which is quite different than the legislation that we are
considering here in the House tonight.
Secondly, my colleagues should know that the White House does not
approve of this legislation. In fact, they had not even seen the
legislation before I introduced it in the House, and my colleagues on
both sides of the aisle had that legislation before the administration
ever did. This is a House bill and a House product.
I wanted to thank the chairman of the Intelligence Committee and
Chairman Sensenbrenner of the Judiciary Committee, and my colleagues
Dan Lungren and Nancy Johnson for their work and help in crafting this
legislation that we are here to consider tonight. I think it is
important for all of my colleagues to understand why it is important to
move forward with the legislation.
All of us in America remember where we were on the morning of
September 11. Most of us remember it in fine detail. But none of us
remember where we were when the Canadian Mounties arrested 17 people
who had amassed the material for two Oklahoma City-size bombs across
the river from Detroit. And very few of us remember where we were when
16 people were arrested in London who intended within days to walk onto
American airlines aircraft leaving Heathrow and blow them up over the
Atlantic. We don't remember because it didn't happen. It didn't happen
because of exceptional intelligence.
This bill strengthens oversight of all intelligence activities and
reestablishes that the Congress is a separate coequal branch of
government with responsibilities to oversee our intelligence agencies.
It modernizes and simplifies the Foreign Intelligence Surveillance
Act that is well overdue. It takes into account 21st-century
communications and 21st-century threats that are using those
communications against us.
And it sets clear rules for how we should act in the wake of a
terrorist attack. There is no broad surveillance authorized by this
program; but if a known terrorist calls America, we are going to say
you should listen now. Listen now, not after the FBI develops a
portfolio, not after legions of lawyers come up with petitions, not
after you wake the AG or deputy AG in the middle of the night. Not
after we have gotten all of the paperwork done. Listen now. Protect us
now because it is reasonable to protect us now.
Some people have said there is a 72-hour emergency provision in FISA,
and there is. There is a 72-hour emergency provision, but it requires
the AG to have all of the information that would go into a FISA
application, and we don't often have that in this war on terrorism.
If we have a number on a cell phone from an al Qaeda agent picked up
in Pakistan, we want to be up on that number if the number is in the
United States. We don't want to wait for the paperwork to get to the
Justice Department. We want the terrorists hiding in their caves
wondering if they can use a cell phone rather than Americans using
their cell phones to call home one last time.
That is why I would urge my colleagues to support this legislation in
front of us this evening.
Ms. HARMAN. Mr. Speaker, we are all for listening now under the law.
It is now my pleasure to yield 2 minutes to the gentleman from Texas
(Mr. Reyes), a member of the Subcommittee on Oversight.
Mr. REYES. Mr. Speaker, I rise in opposition to the White House/
Wilson bill. I want to detect and intercept terrorists before they
reach the United States as much as anyone, but I don't want to give the
President the ability to trample our Constitution in that process.
I have devoted my entire career to defending our Constitution, first
in the military, then in the Border Patrol, and now in Congress. I am
not willing to give the President unnecessary unchecked authorities
just because it makes good election-year politics.
{time} 2100
As a member of both the Intelligence Committee and the Armed Services
Committee, I would like to address the failure of this bill to deal
with a very specific problem: the President's assertions that the
authorization for use of military force gave him the authority to
conduct warrantless surveillance of innocent Americans.
I offered an amendment in committee that would have inserted
additional language into the White House-Wilson bill to make clear that
Congress did not, did not, Mr. Speaker, in passing that authorization,
empower the President to engage in warrantless surveillance. Like every
amendment offered in the Intelligence Committee, it was voted down in a
party line vote. Anything that doesn't square with the President's wish
list was unacceptable to the sponsor of this bill. That is
disappointing, and that is not bipartisanship.
I take very seriously our obligation to provide the President with
the tools that he needs to provide for national security, but I also
reject the notion that the authorization for use of military force
allows the President to ignore the fourth amendment and conduct
warrantless surveillance on American citizens.
To this day, even the Intelligence Committee cannot be sure whether
there are other secret programs that the President believes Congress
has implicitly authorized. But we can at least make sure that this
position, our position, is clear, that he must respect this one.
I still don't think that the authorization for use of military force
authorized those things, and I continue to be amazed that the White
House, with a straight face, thinks that it did. I am not afraid to
stand up for our Constitution. I am not afraid to take a stand and
provide the tools to the President either. But this is not the right
vehicle. It should be a bipartisan effort.
The White House-Wilson bill is a terrible affront to our
constitutional system, and I urge a ``no'' vote.
Mr. HOEKSTRA. Mr. Speaker, I yield 3 minutes to my colleague, Mr.
Dent.
Mr. DENT. Mr. Speaker, I rise tonight to speak in strong support of
H.R. 5825, the Electronic Surveillance Modernization Act, for four
reasons:
First, the act applies only to foreign agents operating in this
country. It cannot be used to spy on ordinary Americans. It cannot be
used in run-of-the-mill criminal prosecutions. It allows only short-
term, let me repeat, short-term warrantless surveillance.
Second, the act makes it easier to conduct surveillance on those
foreign agents. Up to now, their communications within this country
could not be monitored without FISA approval if it was likely that U.S.
citizens were involved in those communications.
Third, and most importantly, the Act makes it easier for us to
respond to attack or to the threat of attack. Under current law,
warrantless surveillance of foreign agents is permitted only after the
U.S. has declared war. Waiting to monitor the activities of foreign
terrorists until a formal declaration of war has been declared may be
too late. Under H.R. 5825, we can begin such surveillance after an
armed or terrorist attack has occurred or, even more significantly,
when there is an imminent threat that is likely to cause death or
widespread harm.
Finally, the Act gives intelligence authorities the flexibility
needed to respond to emergency situations. Under current law,
intelligence authorities may conduct surveillance in an emergency for
up to 3 days before that agency must go to a FISA court for a warrant.
Under H.R. 5825, that period is extended to 7 days, giving authorities
more time to respond to that emergency and to gain valuable information
that might save people's lives.
For all these reasons, I urge strong support for the Electronic
Surveillance Modernization Act.
And, finally, I would like to say maybe, maybe, had this technology
been employed before 9/11, maybe those two terrorists out in San Diego
who were on the phones to Yemen into a switchboard, a switchboard
apparently that bin Laden himself had called into one time, maybe had
we been doing this type of surveillance, maybe we could have prevented
at least one of those attacks that occurred at the Pentagon on
September 11.
For all these reasons, I strongly support the legislation.
Ms. HARMAN. Mr. Speaker, we all wish we had connected the dots prior
to 9/11.
Mr. Speaker, I now yield 2 minutes to Representative Eshoo of
California, the ranking member on our Subcommittee on Technical and
Tactical Intelligence.
[[Page H7867]]
Ms. ESHOO. Mr. Speaker, I thank our distinguished ranking member for
yielding.
I wish we were debating final passage on a much better bill. Sadly,
this bill gives the administration what it wants: a blank check to
conduct domestic surveillance without a warrant.
Mrs. Wilson said earlier that this is not a White House bill. Well,
if it is not a White House bill, it is a White House dream, because it
is a blank check to the President.
Instead of addressing specific problems in the law with tailored
solutions, this bill eviscerates the Foreign Intelligence Surveillance
Act. Now, that Act is only almost 30 years old. It is not an antique.
It hasn't collected dust. It has been revised. It has been amended. It
has been brought up to date. But that is not good enough. This bill
eviscerates it.
One of the arguments advanced during the debate was that FISA needs
to be technology neutral. I agree. We agreed. We went out to NSA. They
told us that. We agreed. We offered a tailored solution. Rejected. The
whole bill has to be scrapped in order to make changes.
That is not a prudent course. This bill heads us down a dangerous
path. The radical changes this bill makes to FISA definitions and
standards represent a wholesale rewrite of the law. They nullify FISA
by exempting large categories of U.S. person communications from the
warrant requirement, and it rubber-stamps all forms of data mining.
The American people want us to protect them, but they don't want us
to throw the Constitution overboard. May I remind everyone, with the
obligation that we have to the American people when we come here, the
oath we take says that we will uphold the Constitution of the United
States. This bill does not live up to our Constitution. It gives away
the fourth amendment. Members of the House should reject it.
Mr. HOEKSTRA. Mr. Speaker, I would like to yield 2 minutes to one of
the newer members of the committee, Mr. Issa from California.
Mr. ISSA. Mr. Speaker, as the chairman said, I am one of the newer
members to the Select Intelligence Committee. But I am not any longer
one of the newer Members to Congress, because I was here on September
11. I saw as we evacuated the Capitol. I saw as the Pentagon burned. I
saw as America rallied, asking us to make sure this didn't happen
again.
Today, we are considering some commonsense, limited reforms that are
necessary. They are necessary because, on both sides of the aisle, we
want to make sure that we codify in law what will be done, that we
minimize executive order but maximize the ability of the executive
branch to meet its obligations to the people.
H.R. 5825, if it weren't the eve of election, would clearly be just
another commonsense reform done on a bipartisan basis. But we are in
the midst of an election.
I have been on the Judiciary Committee since I came as a freshman 6
years ago. I am very concerned about civil rights, about protecting
Americans' civil rights. And if I could just take a minute to get
beyond the partisanism for a moment, I am also an Arab American. I am
exactly the group that is likely to have to think about is my call to
Yemen or to Lebanon or to Jordan or any of the other expanded places
that I have family and friends, is that going to be potentially
monitored? I have thought about that. I have soul searched it for
myself and for many millions of people like myself in the United States
who are Americans born and raised but, in fact, have friends and family
abroad.
I am comfortable with this bill. I am comfortable with the parts that
are unclassified, and I am comfortable with what I have learned on a
classified basis. That doesn't come easy, but I have made the effort to
do so. I am supporting this bill because it is the right thing to do to
make all Americans safe, and it is the right thing to do to make sure
that we never again have to apologize to the American people for
September 11.
Ms. HARMAN. Mr. Speaker, it is now my pleasure to yield 2 minutes to
Representative Holt of New Jersey, ranking member on our Subcommittee
on Oversight.
Mr. HOLT. Mr. Speaker, I thank the gentlewoman from California for
yielding.
Mr. Speaker, this is not a debate about whether we should be
wiretapping al Qaeda. This is a debate about whether intelligence
agencies should be guided so that their efforts are most effective in
protecting Americans from terrorism.
The President has been sending intelligence agencies on fishing
expeditions. Now, of course, when al Qaeda calls, we should be
listening. And under FISA we can and we do. But the President wants to
turn a vacuum cleaner on the communications of innocent Americans, with
no checks and balances, trampling the rights of many in the search for
a few. We need to bring some discipline to our electronic surveillance
with checks and balances, checks so that we don't make dreadful
mistakes.
Our history is replete with mistakes, when we were sure, absolutely
certain, that we knew who the enemies were: Martin Luther King, Jr.;
Paul Robeson; Brandon Mayfield, an innocent lawyer in Portland; and on
and on. The White House-Wilson bill, in the name of modernization, is
extending the President's vacuum cleaner.
The President under FISA has the power he needs within the
legislative framework that will focus his power on terrorists, not on
innocent Americans. Our government is strongest when all three branches
of government work together, and we are weak when the President tries
to act alone and in secret. This President has been acting alone and in
secret, and that is why the fight against terrorists has been going so
badly.
This President, any President, needs the supervision of Congress and
the courts.
Mr. HOEKSTRA. Mr. Speaker, I yield 3 minutes to a gentleman from the
committee, Mr. Tiahrt.
Mr. TIAHRT. Mr. Speaker, I thank the gentleman from Michigan for
yielding.
Mr. Speaker, Americans live under the U.S. Constitution. As Members
of Congress, we swear an oath to uphold the United States Constitution.
It means something to be an American because we believe in our country,
we believe in our people, and we believe in our constitution.
In the New Testament, Paul, the Apostle, once was taken captive and
held for the crime of spreading the Gospel of Jesus Christ. He
responded by saying, ``I am a citizen of Rome.'' And, as a citizen of
Rome, he was granted certain privileges because it meant something to
be a Roman citizen.
Well, today, we are in the struggle brought on to us by the
terrorists of Islam. It is a war that we did not choose. It was a war
that was declared against us as Americans, against our people, against
our Constitution.
Today, we are now deciding how do we treat those who are choosing to
carry out a war against us, non-U.S. citizens who are choosing to take
us to task for what we believe and who we are. In this conflict, we
have to decide how we are going to try to find these terrorists.
If in a conflict a certain laptop is captured in the fleeing from a
conflict, when a member of the al Qaeda leaves and on that laptop we
happen to find some information, including phone numbers, should we
check those phone numbers to see if they are calling from Pakistan or
Afghanistan or Iraq or elsewhere on the globe into the United States?
Should we check to see if there is a terrorist plot being formulated
against the citizens of the United States? Should we give them the same
rights as we have as American citizens?
Well, we have gone over and above the way we treat our prisoners. How
do the members of al Qaeda treat us as prisoners? How do they treat our
soldiers? They have no prisoners because, when they capture one of our
troops, they are executed. They are either beheaded or they get shot in
the back of the head.
In our attempts to keep this country safe, we need to remember who it
is that we are dealing with. And when they do call in, what type of
process should we go through to keep this country safe? It is my belief
that this legislation has the checks and balances that protects the
Constitution. It has the same safeguards that we all hold dear for the
citizens of this country, and yet it gives us the tools necessary to
keep this country safe, the same
[[Page H7868]]
tools we use to capture people who push drugs on our kids, the same
tools we use to keep child pornographers from taking advantage of our
children.
{time} 2115
The same tools we need to use to keep this country safe by bringing
terrorists to justice, because I guarantee you, if they have the
opportunity and the means, they will take American lives.
So we must use this tool, as laid out in this legislation, to make
sure that we can keep this country safe, to make sure that we can, yes,
uphold the Constitution, but use all tools necessary to make sure that
we bring these criminals, these terrorists, these people who want to
harm us to justice.
Ms. HARMAN. Mr. Speaker, how much time remains?
The SPEAKER pro tempore (Mr. Bass). The gentlewoman from California
has 3\3/4\ minutes, and the gentleman from Michigan has 4\1/2\ minutes.
Ms. HARMAN. Mr. Speaker, I yield 2 minutes to the gentleman from
Massachusetts (Mr. Tierney).
(Mr. TIERNEY asked and was given permission to revise and extend his
remarks.)
Mr. TIERNEY. Mr. Speaker, I thank the gentlewoman from California,
and I associate myself with the remarks that she made at the beginning
of this proceeding here this evening.
Mr. Speaker, the President's warrantless wiretapping program should
have been conducted under the Foreign Intelligence Surveillance Act
provisions. The threat of terrorism demands careful response.
The government has to have strong powers, including the authority to
carry out various forms of electronic surveillance. FISA, as was
amended over 20 times, updated, provides those powers. People want to
be protected, but they do not want their legislators in an election
year to just start handing away their constitutional rights and
privileges.
I agree with the assessment of one of the witnesses before our
committee: such a complex and proven statute as FISA should be amended
only with great caution and only on the basis of a public showing of
need.
This administration's concerns about FISA were narrow and they were
few and could have been resolved with clarifications. But we proposed
bipartisan legislation that would take care of it. This majority chose
not to take that legislation up.
Instead, they have proposed this broad and sweeping and over-reaching
bill that, regardless of what my colleagues may say on the other side,
is a dream of the White House, and Mr. Cheney and Mr. Bush.
To protect the constitutional rights and to ensure the effective
application of government powers, government surveillance should be
focused. That focus can best be achieved through a system of checks and
balances that are implemented through executive but also legislative
and judicial review.
The bill before us effectively eliminates review. The bill before us
simply gives the executive carte blanche to intercept communications of
United States citizens without making adequate attention to preserving
the liberties and civil rights that are embedded in our Constitution.
It is unnecessarily broad and it is harmful for the interests of
Americans. In making sure that the government has all of the powers
that it needs, we have to have a law that ensures citizens their rights
will be adequately protected even as their safety is secure.
Therefore, this bill fails because it does not allow for essential
protections. Except in emergencies, there must be prior judicial
approval. Congress should be fully informed of all surveillance
activity and carefully oversee it.
Any repeal of FISA's exclusivity provision is wrong, Mr. Speaker. It
would turn back the clock 30 years. There is a reason FISA was passed
into law, and those reasons exist today.
It is clear, after having listened at classified and open hearings,
that the President's program of warrantless wire tapping should have
proceeded to intercept communications only under the Foreign
Intelligence Surveillance Act's, FISA's, provisions. The Threat of
Terrorism demands a careful response.
The Government must have strong powers, including the authority to
carry out various forms of electronic surveillance. Still, to protect
Constitutional rights and to ensure effective application of those
powers, government surveillance must be focused. That focus can best be
achieved through a system of checks and balances implemented through
executive, legislative and judicial review.
I agree with the assessment of one of our witnesses with a Policy and
Technology background: Such a complex and proven statute as FISA should
be amended only with great caution and only on the basis of a public
showing of need.
After all this time since the 12/05 disclosure of the program the
Administration has made public only limited, quite narrow arguments
that FISA is in need of further amendment:
(1) The Attorney General's explanation of problems involving the
timely invocation of FISA emergency exception. In other words, in some
cases the process was making it difficult to get a warrant application
processed within the 72 hours allowed by the statute after interception
commenced . . .
Those problems, evidence shows, are due in part to the paperwork
burdens created by the Executive Branch and perpetuated by this
Administration.
That problem it is largely self-inflicted and is not due to any delay
by the Foreign Intelligence Surveillance Court.
The remedy--direct the President to report to Congress on the need
for more resources, Asst. AG's, etc., and make any legislative and
procedural changes that are necessary (i.e. if more than 72 hours post-
emergency intercept needed for warrant).
The Harman-Conyers bill addresses these matters, though it is not
even actually necessary to pass an amendment or a law to meet these
goals.
(2) A concern was put forth that a court order is necessary for the
interception of foreign-to-foreign communications of non-U.S. persons
that happen to pass through the U.S., where they can be more readily
accessed by U.S. government agencies.
In other words, some in the agency were interpreting the law to
require a warrant even if U.S. persons weren't involved but the
communication passed through the U.S. Many experts believe that to be
the wrong interpretation. Still,
The remedy--presumably a narrow clarification could be crafted.
Clearly, any updating of FISA can be done in a way that is
Constitutional and responsive to the Executive branch's needs.
Measures before this body purporting to simply give the Executive
carte blanch to intercept communications of U.S. citizens without
making adequate attention to preserving the liberties and civil rights
imbedded in our Constitution are unnecessarily broad and harmful to the
interests of Americans.
In ensuring that the government has all the powers it needs, we must
have a law that assures citizens their rights will be adequately
protected even as their safety is secured.
Therefore, any amendment or bill must provide that: Except in
emergencies--there must be prior judicial approval;
Congress must be fully informed of all surveillance activity and
carefully oversee it; Interceptions of contents of communications of
U.S. persons must be focused on particular individuals suspected of
being terrorists or particular physical or virtual addresses used by
terrorists; The threshold should require that there is probable cause
to believe the target is a terrorist and that the intercept will yield
intelligence; and
FISA must be the exclusive means to carry out intelligence
surveillance within the U.S. Any repeal of FISA's exclusivity provision
is wrong. It would turn the clock back 30 years and do away with
legislative oversight and judicial review. There were valid reasons
that FISA was passed. Those reasons still exist.
Mr. HOEKSTRA. Mr. Speaker, I yield 2 minutes to the gentlewoman from
Connecticut (Mrs. Johnson).
Mrs. JOHNSON of Connecticut. Mr. Speaker, I appreciate the gentleman
yielding to me. It is quite stunning that my colleagues on the other
side of the aisle describe this as a broad, sweeping authority, and
that under the NSA program, somehow the President can go on fishing
expeditions.
The NSA program applies only to international calls and only when
those calls involve the telephone number of a known al Qaeda operative.
So if it is someone from Hezbollah or some other group, you cannot do
it. It has to be al Qaeda.
Well, I will tell you, if a call is going from a known terrorist al
Qaeda operative in Iraq or Afghanistan or Pakistan to America, I want
to know. I want to know what they are saying. If there is anything
London taught us, it is that we need to know. And we need to know to be
able to stop actions from happening that threaten and endanger our
people.
The second thing is, the persistent, repeated claim on the other side
of the
[[Page H7869]]
aisle that somehow a FISA court application is a snap of the fingers.
Brian Cunningham, former CIA official and Clinton-appointed Federal
prosecutor: NSA cannot lawfully under FISA listen to a single syllable
until it can prove to the Attorney General, usually in writing, that it
can jump through each and every one of FISA's procedural and
substantive hoops.
And those procedural and substantive hoops mean that the operative at
the National Security Agency has to decide there is an issue, has to
put it in writing. The lawyers of NSA have to agree. They have to
provide paperwork that goes to the lawyers of the Department of
Justice.
I mean, there are lots of steps to this process. And to imagine that
this can be done rapidly, it often takes weeks from what I have heard
in briefings. It can take longer than that. To believe that this can be
done in 72 hours and protect our people is to close your eyes to the
reality of the terrible danger that terrorism possess to people in
America and throughout the world.
Ms. HARMAN. Mr. Speaker, I yield myself 30 seconds to respond to the
prior speaker, and then I will yield the remainder of our time to the
minority leader.
Mr. Speaker, I am glad that Mrs. Johnson brought up this question of
procedural and substantive hoops. This is a claim that she has made
before. And I just want to point out to my friend that those procedural
and substantive hoops, relating to emergency FISAs, are imposed by the
Justice Department and the NSA, not by the law.
No one here wants there to be procedural and substantive hoops
involved in getting emergency warrants. All of us want to listen if
there is an emergency and get the warrant later.
Mr. Speaker, I yield the balance of our time to the gentlewoman from
California (Ms. Pelosi), my predecessor as ranking member on the
Intelligence Committee and the leader of the minority.
Ms. PELOSI. Mr. Speaker, I thank the gentlewoman for yielding. I
thank her for her leadership and her clarity on this very important
issue. And clarity indeed is needed here.
Mr. Speaker, each of us wants the President to have all of the
intelligence necessary to protect our country and to protect the
American people. We spend billions of dollars every year to make sure
that the most reliable intelligence possible is available in a timely
fashion to the President and our military commanders.
We know that intelligence collection can involve highly intrusive
methods. That is the reality of intelligence gathering. But when those
methods are employed against people within the United States, it is
imperative that they comply with the Constitution and they be subjected
to regular and thorough congressional and judicial oversight.
For 28 years, the statutory basis for electronic surveillance for
intelligence purposes has been FISA, the Foreign Intelligence
Surveillance Act. The reason FISA exists was because in 1975 the Church
Committee found numerous instances of warrantless electronic
surveillance and physical searches of United States citizens who were
not spies, but who advocated unpopular political views.
FISA was a compromise designed to prevent overreaches unrelated to
our national security while clarifying when warrantless surveillance
could be used for domestic security purposes. The FISA process has
worked well for nearly three decades, and that success is due in part
to the fact that we have been able to modify it as the needs and
technologies change. In fact, FISA has been modified 51 times since
1978.
FISA can be changed. It can be updated. It can be broadened or
amended, but it should not be circumvented. And that is what this bill
does tonight. It tries to circumvent FISA law and our Constitution.
Last December, President Bush confirmed press reports that he had
permitted warrantless surveillance to occur outside the FISA process,
and that he had both inherent and statutory authority to do so. FISA is
and must remain the exclusive means for authorizing warrantless
surveillance of people in the United States for intelligence purposes.
This exclusivity provision is what allows for judicial and
congressional oversight and protects all of us from abuse.
Unfortunately, the bill now under consideration eliminates that
protection. Instead, it accepts the President's argument that there are
circumstances in which he needs to be able to order surveillance
without using the FISA process and then provides him with the authority
to do so.
If this bill passes, rather than being the exclusive means for
authorizing surveillance, FISA would be just one option. The result
would be less oversight and fewer checks and balances and more abuses
of executive power.
I heard our colleagues on the other side say things as ridiculous as
this, and they know better. In fact they know what they are saying
could not possibly be true. They are saying that if we pick up the
phone and we hear a terrorist on the line, Democrats want us to hang
up.
You have to really be very kind not to attribute some very sinister
motivation to anyone who would say such a thing. Of course, that is not
the case. And that is what is so important about the FISA, because it
does allow our collectors to listen in on those conversations while
they get a FISA, while they can be brought under the law through FISA.
That is the beauty of the motion to recommit that Mr. Schiff, Mr.
Flake, Ms. Harman, and others will be putting forth later this evening.
It simply says that the vote to go into Afghanistan did not give the
President the authority to avoid the law, and undermines the
Constitution.
It says that FISA can be updated. It provides funds, more funding for
the implementation of FISA. It extends the number of days under which
collection may be done without a FISA warrant. It, in fact, modernizes
FISA in a way that is appropriate, but maintains the exclusivity which
is central, central to the President operating under the law.
The combination of the military commission bill passed yesterday and
this bill would be an unprecedented expansion of executive authority
into some of the most fundamental liberties enshrined in our
Constitution: the right to privacy and the right to due process of law.
These are not merely academic, legal, or technical matters. These are
rights. These rights are at the heart of what makes us unique as a
Nation, and I believe they will be diminished by the passage of these
bills.
The President claims that inherent in his office is all of the
authority needed to conduct warrantless electronic surveillance. Rather
than enshrine in law powers the President claims he already holds, we
should await the conclusion of judicial review of the President's
domestic surveillance program.
At that point, we can determine if additional adjustments to FISA are
necessary. We do not need to pass this diminishment of privacy in our
country tonight.
Of course, that would require something that the administration has
thus far been unwilling to allow, congressional hearings on the
domestic surveillance program.
Congress needs answers to questions that remain unresolved to the
unsatisfactory and sterile briefings provided thus far by the
administration. Until that happens, we should be reaffirming the
exclusivity of FISA and our commitment to providing whatever additional
resources and procedural enhancements might be necessary to facilitate
its operation.
That is exactly what the bipartisan Schiff, Flake, Harman, Inglis
amendment would do. The Republican leadership should have ensured that
the House had a chance to consider the amendment today. That would have
been the fair thing to do. Instead, we have had to force the issue
through a motion to recommit. That motion is the only, only initiative
that stands between us and a vote on a bad bill.
I urge the adoption of that motion in the spirit of protecting the
American people, of expanding the time allowed to collect without a
FISA warrant, and to do so with exclusivity and under the law to honor
our oath of office that we take to uphold the Constitution.
{time} 2130
Anyone who says that we want to hang up on Osama bin Laden demeans
the debate, cannot possibly be serious and owes the American people
better.
Mr. HOEKSTRA. Mr. Speaker, I yield myself the balance of the time.
[[Page H7870]]
Mr. Speaker, we are a Nation at war. All we need to do is take a look
at what the leaders of radical Islam are saying. Bin Laden has said
that if by the grace of God he would be able to have access to nuclear
weapons, he would use them.
All you need to do is take a look at what radical Islam is doing.
Just five short weeks ago, they once again had a plan to attack America
in a horrific way, multiple planes crashing into the Atlantic Ocean at
the same time.
This is a global war. The attack that had its home in the U.K. is
directed out of Pakistan. It is targeted at America. There are
operatives throughout the Middle East, north Africa, Europe, the
Netherlands, Canada, Australia. It is a global and dangerous enemy. It
is a decentralized, entrepreneurial organization that is very, very
dangerous.
We are on the offense. We are taking the fight to the radical
Islamists wherever they may be.
This bill is about making sure that the men and women in our
intelligence community have the tools to fight this kind of an enemy.
It is time to update FISA. It is time to give the men and women in the
intelligence community the tools for them to fulfill the job that we
have asked them to do, which is to protect America, to keep us safe.
Vote for this bill. Vote for a modernization.
Mr. MACK. Mr. Speaker, I rise today to express my thoughts and
concerns regarding the Electronic Surveillance Modernization Act (H.R.
5825). As a strong conservative, I believe in national security,
independent courts that follow the law, strong legislative oversight,
and individual responsibility.
While this legislation is an important and effective tool for
combating and winning the war on terrorism, I believe it is the duty of
this body to err on the side of freedom and the constitutional
protections the American people cherish and deserve.
The history of a government with unchecked power is a history of
tyrannical governments. Unchecked power caused civilized people to
write the Magna Carta, the Declaration of Independence, the United
States Constitution, and the Bill of Rights. At its crux, the
Constitution ensures the separation of powers and confirms the Founding
Fathers' belief that power corrupts, and absolute power corrupts
absolutely.
Five years ago, this Nation suffered the deadliest terrorist attack
in our Nation's history. This attack was an act of war and Congress
came together to provide law enforcement and intelligence officials
with sweeping powers to increase intelligence-gathering abilities and
information sharing in the name of fighting terrorism. This was a wise
and prudent choice. However, due to the legitimate concerns raised
about the powers we put into the hands of government and the need to be
mindful of the liberty we are sworn to uphold, Congress remained
vigilant in maintaining appropriate checks and balances.
Under this Electronic Surveillance Modernization Act, the Terrorist
Surveillance Program (TSP) will continue to exist alongside the
wiretapping regime established by this Act. You will have two
programs--one on the books and the other not. While I strongly support
the War on Terror and our president, this legislation would allow any
American president to turn to the TSP if this Act unduly constrains
their efforts. This is not checks and balances, but rather, an end-run
around the basic principles of the rule of law.
This legislation allows any president virtually unlimited power to
intercept the communications of every American on his word alone. For
example, the bill eliminates FISA's warrant requirement for electronic
surveillance whenever the president certifies that the United States
has been the subject of a terrorist attack and identifies the terrorist
organizations or their affiliates believed to be responsible. But, as
we all know, for the indefinite future, the United States will be
targeted by terrorists and the enemies of freedom. Further, the bill
allows for the surveillance and physical searches of any American homes
or businesses for 90 days if there is an ``armed attack'', a term
undefined in the bill, against the United States territory.
Some have characterized the TSP as an irresponsible reaction. While I
support intercepting terrorists' communications, Congress must ensure
that checks and balances are included and proper oversight is
maintained. But this legislation will prevent Congress from exercising
that critical oversight.
History tells us that in times of war or conflict, government is all
too willing to ask its citizens to sacrifice liberty in the name of
security. America witnessed it during World War II with the immoral
internment of Japanese Americans. But our children and grandchildren
deserve a future that cherishes both their security and their liberty,
not one at the expense of the other. It is our duty to protect that
balance and I can only hope that when this legislation emerges from
conference and is enacted into law that we will have fulfilled that
responsibility.
President Reagan once said, ``Freedom is a fragile thing and is never
more than one generation away from extinction. It is not ours by
inheritance; it must be fought for and defended constantly by each
generation. . . .''
Mr. Speaker, the War on Terror must be fought and it will be won.
But, as we prosecute this war, we must understand that it is our
generation's time and responsibility to defend freedom. While our brave
young men and women in the military are fighting for liberty around the
globe, this Congress must honor their sacrifice and the cornerstone of
the United States by defending freedom here at home.
Mr. BLUMENAUER. Mr. Speaker, the Electronic Surveillance
Modernization Act, H.R. 5825, seeks to expand the administration's
power by giving the President greater flexibility over a program that
he has already abused. If our experience with this administration
proves anything, it is that reducing congressional oversight would be a
mistake.
Less than a year ago the American public learned how the president
had blatantly disregarded the Foreign Intelligence Surveillance Act
(FISA) by authorizing a warrantless eavesdropping program on American
citizens. After this program was uncovered, we discovered that the
administration had authorized the National Security Agency to build a
massive phone records database. Now the President asks that we pass
legislation to legitimatize illegal activities that have already
occurred and the current Republican leadership is all too willing to
comply.
This legislation does not solve any problems or make our country more
secure, it simply grants the administration the authority to implement
more programs that violate the civil rights and liberties of American
citizens.
We must hold this administration accountable for its actions and not
retroactively approve an illegal program. Surveillance activities must
be done consistent with our Constitution and our laws, and should
protect both the American people and our freedoms.
Mr. ETHERIDGE. Mr. Speaker, as a member of the Committee on Homeland
Security, I rise in opposition to H.R. 5825, the Electronic
Surveillance Modernization Act. I strongly support aggressive action to
protect America from the threat of terrorism. We must do whatever it
takes to defeat our terrorist enemies and defend our core principles.
But this bill is unnecessary and goes too far and empowers
unaccountable bureaucrats to violate the rights of law-abiding
Americans.
Since the terrorist attacks on our nation on September 11, 2001, I
have consistently supported the modernization of the Foreign
Intelligence Surveillance Act (FISA) through my votes in favor of the
USA PATRIOT Act and its reauthorization (P.L. 107-56, P.L. 109-177),
the Intelligence Authorization Act for Fiscal Year 2002 (P.L. 107-108),
the 21st Century Department of Justice Appropriations Authorization Act
(P.L. 107-273), and the Department of Homeland Security Act (P.S. 107-
296).
FISA is a modern, flexible statute that is a vital tool for the FBI,
CIA and the NSA in their investigations of terrorism and espionage.
This law provides intelligence and law enforcement officials the
authority to monitor the communications of those who would do us harm
while protecting the privacy and civil liberties of U.S. persons as
guaranteed by the Constitution.
H.R. 5825 is an ill-conceived, election-year ploy that would expand
executive wiretap authority to unprecedented levels and expose the
daily, innocent communications of American citizens to review by
faceless bureaucrats.
Mr. Speaker, we must provide our law enforcement officials with the
tools and resources they need to plug gaps in our homeland security and
to penetrate global terror cells, but the House Republican leadership
attempts to weaken the U.S. Constitution by lowering the standard of
the Fourth Amendment to score political points. I support the
bipartisan Harman-Flake alternative that represents a balanced approach
to defeat the terrorists while safeguarding our rights.
Mr. SMITH of Texas. Mr. Speaker, I support this legislation.
Those who oppose the Terrorist Surveillance Program say that it
violates civil rights, that it sends the wrong message to U.S. citizens
and foreign nations, and that it should be stopped.
To the contrary, the Terrorist Surveillance Program protects
Americans' lives and sends terrorists the message that we will use
every legal means possible to defend ourselves. It should be continued,
not eliminated.
Before 9/11, information sharing between law enforcement and
intelligence officials was almost non-existent.
The hands of our criminal investigators and intelligence
investigators were tied and they
[[Page H7871]]
were unable to alert each other to terrorist threats.
After 9/11, that was changed.
Now some want to halt government programs that help intelligence
officials figure out who wants to harm us.
We cannot afford to return to a pre-9/11 status. We cannot dismiss
the possibility of a terrorist attack. We cannot throw away the tools
we need to protect us.
And the Terrorist Surveillance Program is one of those tools.
The ``Electronic Surveillance Modernization Act'' allows the
President to continue the Terrorist Surveillance Program.
Let's keep our guard up and our defenses strong, and support this
legislation.
Mr. CANNON. Mr. Speaker, the debate before us centers on what the
legitimate roles of Congress and the Executive Branch are in terms of
foreign policy and intelligence gathering matters.
It is an issue that strikes at the heart of the Constitution.
I The Constitution leaves little doubt that the President is expected
to have the primary role of conducting foreign policy, but Congress has
a role and the debate today indulges us in defining that role.
The language that I offered at the Judiciary Committee and is
included in the Substitute Amendment does not delve into the
Constitutional relationship between the Congress and the Executive.
The language deals with an issue of fairness.
It deals with the issue of whether individuals or companies that
comply with government orders are liable to third parties for following
these orders.
The purpose of this language is to eliminate the 60 plus lawsuits
that have been filed because companies complied with government orders.
Absent an effective immunity provision that allows a company to avoid
these legal quagmires, an individual or company will be reluctant to
cooperate with any authorized government surveillance program and that
will severely undercut this country's terror-fighting capabilities and
the safety of our constituents.
Should these claims proceed to judgment, the financial liabilities
could add up to hundreds of billions of dollars--enough to destroy any
industry.
Although I do not believe the suits will succeed the defense costs
alone will be considerable.
But what is worse is the chilling effect on compliance for future
requests.
We can argue what the law is but we all agree that we should
encourage compliance with our laws.
The language in the Substitute amendment will separate questionable
litigation from a national security imperative and focus our attention
where it should be, which is what is Constitutionally allowed.
If the overall program is illegal or unconstitutional that is for us
and the Courts to decide.
Judges, who are sought out in a forum shopping frenzy, should not
issue decision's that could undermine our protection from a future
terrorist attack and reveal classified sources or methods.
If you oppose the program administered by this Administration; if you
don't believe in the Constitutional theories regarding the Executive's
authority--that is an issue for discussion; that is our right as
Members of Congress to debate.
But it is irrelevant to Section 10 which will merely provide
liability protections for compliance with a certification from the
Attorney General.
I urge support of this legislation.
Mr. UDALL of New Mexico. Mr. Speaker, I rise today in opposition to
H.R. 5825, the Electronic Surveillance Modernization Act.
The bill before us today allows this Administration to continue its
program of unwarranted surveillance of Americans, in direct violation
of the rights guaranteed to us by the Constitution and by statute. Mr.
Speaker, proponents of this legislation claim that there is no
violation or question about the program's legality. If that is, in
fact, the case, then why are we considering legislation with the sole
purpose of legalizing the President's, and the NSA's, actions?
Last December, we learned that President Bush authorized the National
Security Agency to spy domestically, without obtaining any warrants.
Since that time, we have learned very little about the program, largely
due to the Administration's unwillingness to properly inform Congress
about the programs components, scope, or its budget. The little we do
know, however, is that through this program, hundreds, and possibly
thousands, of Americans have had their telephone conversations and
emails monitored without any judicial supervision. The Majority has
failed in its oversight responsibilities. Nevertheless, we are
preparing to pass legislation that legitimizes this little understood,
but still extremely troubling program.
H.R. 5825 allows the President to authorize warrantless surveillance
of communications of ordinary Americans without first obtaining
approval from the FISA court. They say they need this because our laws
are out of date. This is false and untrue.
Current law (FISA) allows the President to act in emergencies and
when there is a declaration of war by Congress. The proponents have not
come forward with evidence that the current law is not working or
failing to protect us.
Congress must use the checks and balances placed in our Constitution
to curb the Administration's actions. Congress needs to assert its
oversight responsibility and fully evaluate this NSA program. And the
Administration needs to stop its attempts to extend its power and
authority, at every available opportunity, by circumventing our
nation's laws. Despite what this Administration would have us believe,
securing our nation from all enemies both foreign and domestic can be
achieved without violations of our civil liberties and right to
privacy. I urge my colleagues to vote no on this misguided and ill-
advised legislation.
Mr. STARK. Mr. Speaker, I rise against the Electronic Surveillance
Modernization Act (H.R. 5825) because I swore to uphold the
Constitution and I will not vote to provide exceptions to it. The
Fourth Amendment to the Constitution reads: ``The right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.'' In other words, you have to get a
warrant any time you spy on an American. That is the entire text of the
Amendment. It doesn't say ``unless President Bush thinks the person is
a terrorist,'' ``except in cases where it's inconvenient to file the
paperwork,'' or even ``with limitations as defined by Congress.''
Realizing the urgent nature of some national security investigations,
federal law permits wiretaps without warrants in emergencies as long as
court approval is obtained within three days. If the surveillance
involves only communications of agents of foreign powers, the
government can conduct warrantless surveillance for up to a year. These
warrants are not difficult to obtain. Since 1978, when the law was
enacted, the Foreign Intelligence Surveillance Act Court has approved
more than 18,000 national security warrants. Only five have been turned
down. But current law isn't good enough for the President. He wants to
do what he wants, when he wants, without telling anyone.
This President violated the Constitution. Rather than hold him
accountable, we are going to approve of his despotic behavior. Under
this legislation, the President can conduct warrantless surveillance of
Americans any time he declares there is an ``imminent threat'' likely
to cause death or widespread harm. Good luck finding a time when this
President, or any President for that matter, doesn't claim there's an
imminent threat.
Mr. Speaker, in this Congress alone, you have attempted to close the
halls of justice to detainees, gun victims, religious minorities, fast
food consumers, asylum-seekers, injured patients, and now, anyone spied
on by their own government. We've gone from a nation of laws to a
nation of exceptions. Unless my colleagues want a nation of, by, and
for the Protestant, thin, suspicionless white male, I urge them to join
me in voting no.
Mr. PAUL. Mr. Speaker, Congress is once again rushing to abandon its
constitutional duty to protect the constitution balance between the
executive, legislative, and judicial branches of government by
expanding the executive's authority to conduct warrantless wiretaps
without approval from either a regular federal court or the Foreign
Intelligence Surveillance Act (FISA) court. Congress's refusal to
provide any effective checks on the warrantless wiretapping program is
a blatant violation of the Fourth Amendment and is not necessary to
protect the safety of the American people. In fact, this broad grant of
power to conduct unchecked surveillance may undermine the government's
ability to identify threats to American security.
Instead of creating standards for warrantless wiretapping, H.R. 5825
leaves it to the President to determine when ``imminent'' threat
requiring warrantless wiretapping exists. The legislation does not even
define what constitutes an imminent threat; it requires the executive
branch to determine when a threat is ``imminent.'' By passing this
bill, Congress is thus abdicating its constitutional role while making
it impossible for the judiciary to perform its constitutional function.
According to former Congressman Bob Barr, thanks to Congress' failure
to establish clear standards for wiretapping, under H.R. 5825
``. . .simply making an international call or sending an e-mail to
another country, even to a relative (or a constituent) who is an
American citizen, will be fair game for the government to
[[Page H7872]]
listen in on or read. Moreover, this legislation allows the government
to conduct secret, warrantless searches of American citizens' homes in
a broad range of circumstances that are essentially undefined in the
legislation.''
Mr. Speaker, I do not deny that there may be certain circumstances
justifying warrantless wiretapping. However, my colleagues should
consider that current law allows for warrantless wiretapping in
emergency situations as long as a ``retroactive'' warrant is sought
within 72 hours of commencing the surveillance or the warrantless
surveillance commences within 15 days after Congress declares war. If
there are legitimate reasons why the current authorization for
warrantless wiretapping is inadequate, then perhaps Congress should
extend the time allowed to wiretap before applying to the FISA court
for a ``retroactive'' warrant. This step could enhance security without
posing the dangers to liberty and republican government contained in
H.R. 5825.
The requirement that, except in extraordinary circumstances, a
warrant be obtained from the FISA court does not obstruct legitimate
surveillance efforts. It is my understanding that FISA judges act very
quickly to consider applications for search warrants, even if the
applications are faxed to their houses at three in the morning.
Applications for FISA warrants are rarely rejected. In 2005, the
administration applied for 2,074 warrants from the FISA court. Of those
2 where voluntarily withdrawn and 63 where approved with modifications;
the rest were approved. The FISA court only rejected four applications
for warrants in the past four years; and one of those rejected warrants
was subsequently partially approved.
Warrantless wiretapping may hinder the ability to identify true
threats to safety. This is because experience has shown that, when
Congress makes it easier for the federal government to monitor the
activities of Americans, there is a tendency to collect so much
information that it becomes impossible to weed out the true threats. My
colleagues should consider how the over-filing of ``suspicious
transaction reports'' regarding financial transactions hampers
effective anti-terrorism efforts. According to investigative journalist
James Bovard, writing in the Baltimore Sun on June 28, ``[a] U.N.
report on terrorist financing released in May 2002 noted that a
`suspicious transaction report' had been filed with the U.S. government
over a $69,985 wire transfer that Mohamed Atta, leader of the
hijackers, received from the United Arab Emirates. The report noted
that `this particular transaction was not noticed quickly enough
because the report was just one of a very large number and was not
distinguishable from those related to other financial crimes.' ''
Congress should be skeptical, to say the least, regarding the assertion
that allowing federal bureaucrats to accumulate even more data without
having to demonstrate a link between the data sought and national
security will make the American people safer.
In conclusion Mr. Speaker, because H.R. 5825 sacrifices liberty for
the illusion of security, I must oppose this bill. I urge my colleagues
to do the same.
Ms. WOOLSEY. Mr. Speaker, I rise tonight in great sadness. It's the
run-up to the fall elections, and what has the Republican Majority
pushed through the Congress?
Torture, a subversion of the Geneva Conventions, and domestic spying.
The Administration claims to be spreading democracy throughout the
world. How about some democracy and freedom here at home?
Shame on this Congress for trampling civil rights at home and abroad.
We are supposed to stand up for freedom and liberty and the rights of
the most vulnerable. Instead we are spying on Americans?
Mr. Speaker, this is not the country our Founding Fathers dreamt of.
And it certainly is not the country I want to hand down to my
grandchildren.
This bill is not making us safer--it is making us less free.
I urge my colleagues to stand up for freedom. I urge my colleagues to
vote no!
Mr. HOEKSTRA. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. All time for debate has expired.
Pursuant to House Resolution 1052, the bill is considered read and
the previous question is ordered.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
Motion to Recommit Offered by Mr. Schiff
Mr. SCHIFF. Mr. Speaker, I have a motion to recommit at the desk.
The SPEAKER pro tempore. Is the gentleman opposed to the bill?
Mr. SCHIFF. Yes, in its current form.
The SPEAKER pro tempore. The Clerk will report the motion to
recommit.
The Clerk read as follows:
Mr. Schiff of California moves to recommit the bill H.R.
5825 to the Committee on the Judiciary with instructions to
report the same back to the House forthwith with the
following amendment:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``NSA Oversight Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) On September 11, 2001, acts of treacherous violence
were committed against the United States and its citizens.
(2) Such acts render it both necessary and appropriate that
the United States exercise its right to self-defense by
protecting United States citizens both at home and abroad.
(3) The Federal Government has a duty to pursue al Qaeda
and other enemies of the United States with all available
tools, including the use of electronic surveillance, to
thwart future attacks on the United States and to destroy the
enemy.
(4) The President of the United States possesses the
inherent authority to engage in electronic surveillance of
the enemy outside of the United States consistent with his
authority as Commander-in-Chief under Article II of the
Constitution.
(5) Congress possesses the authority to regulate electronic
surveillance within the United States.
(6) The Fourth Amendment to the Constitution guarantees to
the American people the right ``to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures'' and provides that courts shall issue
``warrants'' to authorize searches and seizures, based upon
probable cause.
(7) The Supreme Court has consistently held for nearly 40
years that the monitoring and recording of private
conversations constitutes a ``search and seizure'' within the
meaning of the Fourth Amendment.
(8) The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) was enacted to provide the legal
authority for the Federal Government to engage in searches of
Americans in connection with intelligence gathering and
counterintelligence.
(9) The Foreign Intelligence Surveillance Act of 1978 was
enacted with the express purpose of being the exclusive means
by which the Federal Government conducts electronic
surveillance for the purpose of gathering foreign
intelligence information.
(10) Warrantless electronic surveillance of Americans
inside the United States conducted without congressional
authorization may have a serious impact on the civil
liberties of citizens of the United States.
(11) United States citizens, such as journalists,
academics, and researchers studying global terrorism, who
have made international phone calls subsequent to the
terrorist attacks of September 11, 2001, and are law-abiding
citizens, may have the reasonable fear of being the subject
of such surveillance.
(12) Since the nature and criteria of the National Security
Agency (NSA) program is highly classified and unknown to the
public, many other Americans who make frequent international
calls, such as Americans engaged in international business,
Americans with family overseas, and others, have a legitimate
concern they may be the inadvertent targets of eavesdropping.
(13) The President has sought and signed legislation
including the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT ACT) Act of 2001 (Public Law 107-56),
and the Intelligence Reform and Terrorism Protection Act of
2004 (Public Law 108-458), that have expanded authorities
under the Foreign Intelligence Surveillance Act of 1978.
(14) It may be necessary and desirable to amend the Foreign
Intelligence Surveillance Act of 1978 to address new
challenges in the Global War on Terrorism. The President
should submit a request for legislation to Congress to amend
the Foreign Intelligence Surveillance Act of 1978 if the
President desires that the electronic surveillance authority
provided by such Act be further modified.
(15) The Authorization for Use of Military Force (Public
Law 107-40), passed by Congress on September 14, 2001,
authorized military action against those responsible for the
attacks on September 11, 2001, but did not contain legal
authorization nor approve of domestic electronic surveillance
for the purpose of gathering foreign intelligence information
except as provided by the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.).
SEC. 3. REITERATION THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978 AS THE EXCLUSIVE MEANS BY WHICH
DOMESTIC ELECTRONIC SURVEILLANCE MAY BE
CONDUCTED TO GATHER FOREIGN INTELLIGENCE
INFORMATION.
(a) Exclusive Means.--Notwithstanding any other provision
of law, the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) shall be the exclusive means by which
electronic surveillance for the purpose of gathering foreign
intelligence information may be conducted.
(b) Future Congressional Action.--Subsection (a) shall
apply until specific statutory authorization for electronic
surveillance for the purpose of gathering foreign
intelligence information, other than as an
[[Page H7873]]
amendment the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.), is enacted. Such specific statutory
authorization shall be the only exception to subsection (a).
SEC. 4. DISCLOSURE REQUIREMENTS.
(a) Report.--As soon as practicable after the date of the
enactment of this Act, but not later than 14 days after such
date, the President shall submit to the Permanent Select
Committee on Intelligence of the House of Representatives and
the Select Committee on Intelligence of the Senate a report--
(1) on the Terrorist Surveillance Program of the National
Security Agency;
(2) on any program which involves the electronic
surveillance of United States persons in the United States
for foreign intelligence purposes, and which is conducted by
any department, agency, or other element of the Federal
Government, or by any entity at the direction of a
department, agency, or other element of the Federal
Government, without fully complying with the procedures set
forth in the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.); and
(3) including a description of each United States person
who has been the subject of such electronic surveillance not
authorized to be conducted under the Foreign Intelligence
Surveillance Act of 1978 and the basis for the selection of
each person for such electronic surveillance.
(b) Form.--The report submitted under subsection (a) may be
submitted in classified form.
(c) Access.--The Chair of the Permanent Select Committee on
Intelligence of the House of Representatives and the Chair of
the Select Committee on Intelligence of the Senate shall
provide each member of the Committees on the Judiciary of the
House of Representatives and the Senate, respectively, access
to the report submitted under subsection (a). Such access
shall be provided in accordance with security procedures
required for the review of classified information.
SEC. 5. FOREIGN INTELLIGENCE SURVEILLANCE COURT MATTERS.
(a) Authority for Additional Judges.--The first sentence of
section 103(a) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(a)) is amended by striking ``judicial
circuits'' and inserting ``judicial circuits, and any
additional district court judges that the Chief Justice
considers necessary for the prompt and timely consideration
of applications under section 104,'';
(b) Consideration of Emergency Applications.--Section
105(f) of such Act (50 U.S.C. 1805(f)) is amended by adding
at the end the following new sentence: ``The judge receiving
an application under this subsection shall review such
application within 24 hours of the application being
submitted.''
SEC. 6. STREAMLINING FISA APPLICATION PROCESS.
(b) In General.--Section 104 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) in paragraph (6), by striking ``detailed description''
and inserting ``summary description'';
(B) in paragraph (7)--
(i) in subparagraph (C), by striking ``techniques;'' and
inserting ``techniques; and'';
(ii) by striking subparagraph (D); and
(iii) by redesignating subparagraph (E) as subparagraph
(D); and
(C) in paragraph (8), by striking ``a statement of the
means'' and inserting ``a summary statement of the means'';
and
(2) in subsection (e)(1)(A), by striking ``or the Director
of National Intelligence'' and inserting ``the Director of
National Intelligence, or the Director of the Central
Intelligence Agency''.
(a) Conforming Amendment.--Section 105(a)(5) of such Act
(50 U.S.C. 1805(a)(5)) is amended by striking
``104(a)(7)(E)'' and inserting ``104(a)(7)(D)''.
SEC. 7. INTERNATIONAL MOVEMENT OF TARGETS.
Section 105(d) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1805(d)), as redesignated by section 7(4),
is amended by adding at the end the following new paragraph:
``(4) An order issued under this section shall remain in
force during the authorized period of surveillance
notwithstanding the absence of the target from the United
States, unless the Government files a motion to extinguish
the order and the court grants the motion.''.
SEC. 8. EXTENSION OF PERIOD FOR APPLICATIONS FOR ORDERS FOR
EMERGENCY ELECTRONIC SURVEILLANCE.
Section 105(f) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1805(f)) is further amended by striking
``72 hours'' each place it appears and inserting ``168
hours''.
SEC. 9. ENHANCEMENT OF ELECTRONIC SURVEILLANCE AUTHORITY IN
WARTIME.
Section 111 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1811) is amended by striking ``the Congress''
and inserting ``the Congress or an authorization for the use
of military force described in section 2(c)(2) of the War
Powers Resolution (50 U.S.C. 1541(c)(2)) if such
authorization contains a specific authorization for
electronic surveillance under this section.''.
SEC. 10. ACQUISITION OF COMMUNICATIONS BETWEEN PARTIES NOT IN
THE UNITED STATES.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is further amended--
(1) by adding at the end of title I the following new
section:
``ACQUISITION OF COMMUNICATIONS BETWEEN PARTIES NOT IN THE UNITED
STATES
``Sec. 112. (a) In General.--Notwithstanding any other
provision of this Act, a court order is not required for the
acquisition of the contents of any communication between
persons that are not located within the United States for the
purpose of collecting foreign intelligence information,
without respect to whether the communication passes through
the United States or the surveillance device is located
within the United States.
``(b) Treatment of Intercepted Communications Involving a
Domestic Party.--If an acquisition described in subsection
(a) inadvertently collects a communication in which at least
one party to the communication is within the United States--
``(1) in the case of a communication acquired inside the
United States, the contents of such communication shall be
handled in accordance with minimization procedures adopted by
the Attorney General that require that no contents of any
communication to which a United States person is a party
shall be disclosed, disseminated, or used for any purpose or
retained for longer than 168 hours unless a court order under
section 105 is obtained or unless the Attorney General
determines that the information indicates a threat of death
or serious bodily harm to any person; and
``(2) in the case of a communication acquired outside the
United States, the contents of such communication shall be
handled in accordance with minimization procedures adopted by
the Attorney General.''; and
(2) in the table of contents in the first section, by
inserting after the item relating to section 111 the
following:
``112. Acquisition of communications between parties not in the United
States.''.
SEC. 11. ADDITIONAL PERSONNEL FOR PREPARATION AND
CONSIDERATION OF APPLICATIONS FOR ORDERS
APPROVING ELECTRONIC SURVEILLANCE.
(a) Office of Intelligence Policy and Review.--
(1) In general.--The Attorney General may hire and assign
personnel to the Office of Intelligence Policy and Review as
may be necessary to carry out the prompt and timely
preparation, modification, and review of applications under
section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) for orders approving electronic
surveillance for foreign intelligence purposes under section
105 of such Act (50 U.S.C. 1805).
(2) Assignment.--The Attorney General shall assign
personnel hired and assigned pursuant to paragraph (1) to and
among appropriate offices of the National Security Agency in
order that such personnel may directly assist personnel of
the National Security Agency in preparing applications under
section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804).
(b) National Security Branch of the FBI.--
(1) In general.--The Director of the Federal Bureau of
Investigation may hire and assign personnel to the National
Security Branch as may be necessary to carry out the prompt
and timely preparation of applications under section 104 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1804) for orders approving electronic surveillance for
foreign intelligence purposes under section 105 of such Act
(50 U.S.C. 1805).
(2) Assignment.--The Director of the Federal Bureau of
Investigation shall assign personnel hired and assigned
pursuant to paragraph (1) to and among the field offices of
the Federal Bureau of Investigation in order that such
personnel may directly assist personnel of the Federal Bureau
of Investigation in such field offices in preparing
applications under section 104 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804).
(c) National Security Agency.--The Director of the National
Security Agency may hire and assign personnel as may be
necessary to carry out the prompt and timely preparation of
applications under section 104 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804) for orders
approving electronic surveillance for foreign intelligence
purposes under section 105 of such Act (50 U.S.C. 1805).
(d) Foreign Intelligence Surveillance Court.--The presiding
judge designated under section 103(b) of such Act may hire
and assign personnel as may be necessary to carry out the
prompt and timely consideration of applications under section
104 of such Act (50 U.S.C. 1804) for orders approving
electronic surveillance for foreign intelligence purposes
under section 105 of that Act (50 U.S.C. 1805).
SEC. 12. DEFINITIONS.
In this Act:
(1) The term ``electronic surveillance'' has the meaning
given the term in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(f)).
(2) The term ``foreign intelligence information'' has the
meaning given the term in section 101(e) of such Act (50
U.S.C. 1801(e)).
Mr. SCHIFF (during the reading). Mr. Speaker, I ask unanimous consent
that the motion to recommit be considered as read and printed in the
Record.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
[[Page H7874]]
The SPEAKER pro tempore. The gentleman is recognized for 5 minutes in
support of his motion to recommit.
Mr. SCHIFF. Mr. Speaker, it is a regrettable fact that at the
beginning of the 21st century there are a great many people in the
world whose primary motive in life is to seek to harm or kill
Americans. Our country faces a real threat, and it must be addressed.
As we fight this threat, Americans need to know two things. First,
that we will use every tool we have necessary to stop the people that
would hurt this country, that we will do everything possible to find
them, to capture them, to kill them, if necessary. We will surveil
them, we will listen to their calls and their e-mails, and we will do
everything in our power to protect this country.
Second, Americans need to know that if you are a law-abiding citizen
and you are not a terrorist or supporting terrorists that we will
respect your privacy. We will not listen to your calls when we do not
have a business to, and we will not read your e-mails when we have no
business to.
Under the Schiff-Flake motion to recommit, we modernize FISA. We give
the government the time, the flexibility it needs. We fix the problem
of foreigners talking to foreigners in calls that go through the United
States. In short, we do everything that the NSA and the Justice
Department has asked us to do.
The base bill, by contrast, excludes whole categories of
surveillance, including the surveillance of Americans on American soil
from court review. The base bill can be summarized as follows: Trust
us. We are from the government. We may listen to you, but trust us. We
know what we are doing.
But our Constitution was drafted on a very different premise, a
premise that said we operate from a system of checks and balances, that
no one branch of government should be trusted implicitly, without
review and oversight by another.
Today, we have a choice between two alternatives, both of which
modernize FISA, one which gives a blank check sought by the
administration, the other that protects Americans on American soil.
One of the leaders in this debate that I have been privileged to work
with is my colleague from the great State of Arizona, and I yield to
the gentleman from Arizona (Mr. Flake).
Mr. FLAKE. Mr. Speaker, I thank the gentleman for yielding.
Mr. Speaker, I am not comfortable in this position, standing up to
argue in favor of a Democrat motion to recommit. Just a year ago, I
stood at that very podium and argued on behalf of the majority in favor
of reauthorization of the PATRIOT Act and against the Democrat motion
to recommit that was favored by many of my colleagues.
But during that process, we had more than a dozen hearings, a long
markup, a spirited debate on the floor under a rule that allowed for a
series of amendments, including four of my own. We did not have that
process this time.
This was a closed rule that did not allow for a vote, a clean vote,
on a bipartisan substitute except as a Democrat motion to recommit. I
wish that this were not the case because, as I said, I try not to make
a habit of voting for Democrat motions to recommit.
But for those of us who believe we should exercise our congressional
prerogative to regulate the President's authority to conduct
surveillance, this is our only option. For those of us who believe that
FISA should be the exclusive vehicle for conducting surveillance
related to foreign intelligence, this is our only option. And for those
of us who believe that we should give the administration all the tools
they need to conduct surveillance but retain the ability to regulate
and provide oversight for such surveillance, this is our only option.
If the underlying bill is enacted into law, we will have two
surveillance programs, one under FISA and on the books, and one outside
of FISA and off the books. If we do this, we will not give due
deference to our congressional responsibility.
Make no mistake, if we vote for the underlying bill and against the
motion to recommit, we will walk out of these doors a lot less relevant
than when we walked in this morning.
With that, Mr. Speaker, I urge a vote for the Democrat motion to
recommit and against the underlying bill.
Mr. SCHIFF. Mr. Speaker, I yield to the gentleman from South Carolina
(Mr. Inglis).
Mr. INGLIS of South Carolina. Mr. Speaker, I thank the gentleman for
yielding.
You know, we want to listen to the terrorists. We want to know who
they are talking to. If they are talking foreign to foreign, we clearly
have the right to listen in. If they are talking foreign to domestic,
we want to listen, but we want a judge to review that.
The idea is to have in this separation of powers between the judicial
and the executive branch the oversight that the Framers had in mind for
our constitutional system.
At the end of this war on terror, it is really about whether we have
preserved the constitutional system that is going to win the hearts and
minds of the world to our point of view. It is crucial that we do that
here tonight by voting to see that we have judicial oversight.
I thank the gentleman for yielding.
Mr. HOEKSTRA. Mr. Speaker, I rise in opposition to the motion to
recommit.
The SPEAKER pro tempore. The gentleman is recognized for 5 minutes.
Mr. HOEKSTRA. Mr. Speaker, I yield to the gentlewoman from New Mexico
(Mrs. Wilson), the chairwoman of the Tactical and Technical
Subcommittee.
Mrs. WILSON of New Mexico. Mr. Speaker, there are two technical
reasons to oppose this motion to recommit, and I do not think that the
authors of the motion to recommit were entirely aware of what they
would do, but I think the House needs to understand it.
First, in the motion to recommit, there is no change to the
definition of electronic surveillance. That means it is not technology
neutral, and we would continue to have the odd situation when al Qaeda
calls in to the United States over a radio we could intercept that
communication completely outside of FISA, but if they call in on a
wire, we still could not listen. This is why we need to update the
Electronic Surveillance Act, as the base bill does.
And, secondly, the exclusivity provision written into the motion to
recommit says that the only way to collect foreign intelligence in the
United States is through FISA. That is not current law. Under current
law, under title XVIII, foreign intelligence information collected
through criminal proceedings can be shared with the intelligence
community.
What this motion to recommit effectively does is rebuild the walls we
have torn down between law enforcement and foreign intelligence.
Mr. HOEKSTRA. Mr. Speaker, I thank the gentlewoman for her comments.
The arguments this evening on the other side have been along the
lines of FISA does work. The President acted alone and in secret. FISA
is the only tool that is necessary.
But we know that that is not true. It does not work. The President
did not act in secret, and FISA's insufficient.
It is September 11, 2001, shortly after the attacks. The President
calls in his National Security Advisor, calls in folks from the
intelligence community, and says, how do we get a better handle on who
is attacking us? What other tools do we need to put in place to make
sure that we can fight and win this war on terrorism?
They developed their ideas. They identified the strategies and the
new tactics that they need to fight this war against terrorism
effectively.
October 25, 2001, the President convenes and meets with congressional
leaders and outlines this program to them and with them, or the
executive branch does, and the group in there recognizes that against
this enemy FISA does not work and that collaboratively, working with
the executive branch and Congress, we need to implement new tools to
keep America safe.
The terrorist surveillance program that has been used for the last 4
years is not only the President's terrorist surveillance program, it is
the terrorist surveillance program of the President, Minority Leader
Pelosi, Ranking Member Harman, former Majority Leader Daschle, all who
had the opportunity regularly to review this program, to see how it
worked, why it needed to be done in the way that it was being done, and
the benefits that
[[Page H7875]]
America was receiving from the program and the impact it was having in
keeping America safe and enabling us to move forward.
It is because these individuals, working with the President,
recognize that FISA was insufficient that they agreed to move forward
with the terrorist surveillance program for almost 4 years, until this
very valuable tool was leaked by the New York Times. We are a country
that is less safe because of that. It is why we are now having this
debate, because now al Qaeda and radical Islamists know more about our
tools and fighting them than what they did before.
It is time to update this law, to pass this bill to make sure that we
can continue providing our intelligence community with tools they need.
Build on the work of the President, of Minority Leader Pelosi,
Ranking Member Harman, Majority Leader Daschle, all who agreed that
FISA did not work and that the President and the executive branch
needed the authorities and the capabilities that are now outlined in
its many ways and are brought under more congressional oversight under
the Wilson bill, and allow for more congressional oversight in a
defined way through the Wilson bill.
This is the way we need to go, the direction we need to take because
we are a Nation at war, under threat, and this is the appropriate
updating of an old law that the White House but also congressional
leaders in a bipartisan way agreed did not work.
Vote against the motion to recommit. Vote for final passage.
{time} 2145
The SPEAKER pro tempore. All time has expired.
Without objection, the previous question is ordered on the motion to
recommit.
There was no objection.
The SPEAKER pro tempore. The question is on the motion to recommit.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. SCHIFF. 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 the motion to recommit will be followed by
5-minute votes on passage of H.R. 5825, if ordered; and the motion to
suspend the rules on H.R. 6143.
The vote was taken by electronic device, and there were--yeas 202,
nays 221, not voting 9, as follows:
[Roll No. 501]
YEAS--202
Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldwin
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
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
Duncan
Emanuel
Engel
Eshoo
Etheridge
Farr
Fattah
Filner
Flake
Ford
Frank (MA)
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Harman
Hastings (FL)
Herseth
Higgins
Hinchey
Hinojosa
Holden
Holt
Honda
Hooley
Hoyer
Inglis (SC)
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kolbe
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lipinski
Lofgren, Zoe
Lowey
Lynch
Mack
Maloney
Markey
Matheson
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
Peterson (MN)
Poe
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
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
NAYS--221
Aderholt
Akin
Alexander
Bachus
Baker
Barrett (SC)
Barrow
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
Edwards
Ehlers
Emerson
English (PA)
Everett
Feeney
Ferguson
Fitzpatrick (PA)
Foley
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Hobson
Hoekstra
Hostettler
Hulshof
Hunter
Hyde
Issa
Istook
Jenkins
Jindal
Johnson (CT)
Johnson, Sam
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kuhl (NY)
LaHood
Latham
LaTourette
Leach
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Manzullo
Marchant
Marshall
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Melancon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy
Musgrave
Myrick
Neugebauer
Northup
Norwood
Nunes
Nussle
Osborne
Oxley
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
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
Shays
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)
NOT VOTING--9
Castle
Chabot
Evans
Inslee
Lewis (GA)
Meehan
Ney
Strickland
Stupak
{time} 2210
Mrs. KELLY and Ms. HART and Messrs. SHUSTER, BILBRAY, BURGESS, GOODE,
LEACH and SHAYS changed their vote from ``yea'' to ``nay.''
Mr. Doggett changed his vote from ``nay'' to ``yea.''
So the motion to recommit was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. HOEKSTRA. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 232,
nays 191, not voting 9, as follows:
[Roll No. 502]
YEAS--232
Aderholt
Akin
Alexander
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Bass
Bean
Beauprez
Berry
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehlert
Boehner
Bonilla
Bonner
Bono
Boozman
Boren
Boswell
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
Cramer
Crenshaw
Cubin
Cuellar
Culberson
Davis (KY)
Davis (TN)
[[Page H7876]]
Davis, Jo Ann
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Edwards
Ehlers
Emerson
English (PA)
Everett
Feeney
Ferguson
Fitzpatrick (PA)
Foley
Forbes
Ford
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Gerlach
Gibbons
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Gordon
Granger
Graves
Green (WI)
Gutknecht
Hall
Harris
Hart
Hastings (WA)
Hayes
Hayworth
Hefley
Hensarling
Herger
Herseth
Hobson
Hoekstra
Hulshof
Hunter
Hyde
Issa
Istook
Jenkins
Jindal
Johnson (CT)
Johnson, Sam
Keller
Kelly
Kennedy (MN)
King (IA)
King (NY)
Kingston
Kirk
Kline
Knollenberg
Kolbe
Kuhl (NY)
LaHood
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Manzullo
Marchant
Marshall
Matheson
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Melancon
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Murphy
Musgrave
Myrick
Neugebauer
Northup
Norwood
Nunes
Nussle
Osborne
Oxley
Pearce
Pence
Peterson (MN)
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
Spratt
Stearns
Sullivan
Sweeney
Tancredo
Taylor (MS)
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 (FL)
NAYS--191
Abercrombie
Ackerman
Allen
Andrews
Baca
Baird
Baldwin
Becerra
Berkley
Berman
Bishop (GA)
Bishop (NY)
Blumenauer
Boucher
Boyd
Brady (PA)
Brown (OH)
Brown, Corrine
Butterfield
Capps
Capuano
Cardin
Cardoza
Carnahan
Carson
Case
Chandler
Clay
Cleaver
Clyburn
Conyers
Cooper
Costa
Costello
Crowley
Cummings
Davis (AL)
Davis (CA)
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Doyle
Emanuel
Engel
Eshoo
Etheridge
Farr
Fattah
Filner
Flake
Frank (MA)
Garrett (NJ)
Gonzalez
Green, Al
Green, Gene
Grijalva
Harman
Hastings (FL)
Higgins
Hinchey
Hinojosa
Holden
Holt
Honda
Hooley
Hostettler
Hoyer
Inglis (SC)
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (IL)
Johnson, E. B.
Jones (NC)
Jones (OH)
Kanjorski
Kaptur
Kennedy (RI)
Kildee
Kilpatrick (MI)
Kind
Kucinich
Langevin
Lantos
Larsen (WA)
Larson (CT)
Leach
Lee
Levin
Lipinski
Lofgren, Zoe
Lowey
Lynch
Mack
Maloney
Markey
Matsui
McCarthy
McCollum (MN)
McDermott
McGovern
McIntyre
McKinney
McNulty
Meek (FL)
Meeks (NY)
Michaud
Millender-McDonald
Miller (NC)
Miller, George
Mollohan
Moore (KS)
Moore (WI)
Moran (KS)
Moran (VA)
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Otter
Owens
Pallone
Pascrell
Pastor
Paul
Payne
Pelosi
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
Stark
Tanner
Tauscher
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
Young (AK)
NOT VOTING--9
Castle
Chabot
Evans
Gutierrez
Lewis (GA)
Meehan
Ney
Strickland
Stupak
{time} 2219
So the bill was passed.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________