[Congressional Record Volume 152, Number 125 (Friday, September 29, 2006)]
[Extensions of Remarks]
[Pages E1970-E1971]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               ELECTRONIC SURVEILLANCE MODERNIZATION ACT

                                 ______
                                 

                               speech of

                            HON. MARK UDALL

                              of colorado

                    in the house of representatives

                      Thursday, September 28, 2006

  Mr. UDALL of Colorado. Mr. Speaker, I support changing current law on 
electronic surveillance to remove obstacles to vigorously fighting 
terrorism, and I believe we can do so in a way that protects the 
constitutional rights of our citizens. This bill attempts to strike the 
right balance, but it has serious flaws that could and should have been 
corrected--and because of those flaws, I cannot support it as it 
stands.
  I believe the American people should know that on this very important 
subject, for the most part, we are being asked to legislate in the 
dark. It is only because of leaks to the news media that we became 
aware that after the terrorist attacks of 2001 the administration 
decided not to follow the procedures of the Foreign Intelligence 
Surveillance Act, FISA, with regard to a new, wide-ranging surveillance 
program.
  Since it became public, that decision has been controversial and has 
been challenged in the courts, but the administration has consistently 
maintained that this surveillance program is lawful--although it has 
been less consistent in its reasons for reaching that conclusion.
  Like many of our colleagues, I have found some of their arguments 
strained and far from fully convincing.
  Nonetheless, I do think it makes sense to further revise FISA to 
reflect both the latest technology and the realities of the current 
threats to our country. And events since the revelation of the 
administration's decision not to comply with FISA have made it clear 
that there is a definite need for better oversight by Congress, which 
can occur only if we require more reporting by the executive branch.
  So, I react favorably to some points made by this bill's author and 
supporters in support of the way it addresses both of these concerns. 
They point to provisions described as designed to update FISA's 
definition of electronic surveillance to make it technology neutral as 
well as those they say are intended to enhance congressional oversight 
not only of electronic surveillance, but also of U.S. intelligence and 
intelligence-related activities generally.
  While these positive aspects of the bill are encouraging, they are 
unfortunately overwhelmed by the bill's more serious defects.
  Overall, this legislation goes very far toward making warrantless 
surveillance of communications here in the United States the rule 
rather than the exception and toward allowing the executive branch to 
conduct electronic surveillance of telephone calls and e-mail in the 
United States without adequate, meaningful oversight.
  The bill makes sweeping alterations to the current definition of 
``electronic surveillance'' and how to define an ``agent of a foreign 
power.'' The bill redefines the term ``surveillance device'' in a way 
that would allow the government to conduct unregulated data retention 
and data-mining operations on all the information collected through the 
warrantless surveillance that this bill authorizes.
  My concerns about these provisions are shared by others, including 
former Representative (and former House Republican leader) Dick Armey, 
as expressed in a September 26th letter in which he says:

       The explosion of computers, cameras, location-sensors, 
     wireless communication, biometrics, and other technologies is 
     making it much easier to track, store, and analyze 
     information about individuals' activities. Unfortunately, the 
     legislation may promote additional government intrusions into 
     individual lives by exempting such data mining from requiring 
     court orders . . . It is not evident that such legislation 
     will necessarily prevent the next terrorist attack. But . . . 
     failure is unlikely to lead to a halt in federal data mining. 
     Instead, it will probably just spur the government into an 
     ever-more furious effort to collect ever-greater amounts of 
     personal information on ever-more people in a vain effort to 
     make the concept work. We would then have the worst of both 
     worlds: poor security and a vast increase in the information 
     about individuals collected by the government that would 
     destroy Americans' privacy and threaten our freedom.
       I also am concerned that while the bill would explicitly 
     allow essentially unlimited surveillance in the event of an 
     ``armed attack'' a ``terrorist attack,'' or an ``imminent 
     threat of attack,'' those terms are not adequately defined. I 
     think this means that there is an unacceptably large chance 
     that these sweeping exceptions would give the Executive 
     Branch unlimited authority to conduct surveillance whenever 
     and however it prefers.

  These concerns are heightened by the fact that the bill does not 
include an explicit reaffirmation of the principle that FISA, including 
the revisions that would be made by the bill, is the exclusive means 
for conducting electronic surveillance in the United States. Such a 
provision would help make sure that every president--now and in the 
future--complies with the law.
  This is not a theoretical matter, because the Bush administration has 
never indicated that it will comply with FISA--even as it would be 
revised by this bill, which was proposed by a member of his party and 
has the support of that party's leadership here in the House of 
Representatives. Indeed, the Bush administration has indicated it will 
appeal the recent decision of a federal judge that its ongoing 
surveillance program--which the administration candidly says does not 
comply with the current version of FISA--is illegal.
  That was one of the reasons I voted for the motion to recommit, which 
would have added language to reiterate that FISA is the exclusive means 
by which domestic electronic surveillance for foreign intelligence 
purposes may be conducted, unless Congress amends the law or passes 
additional laws regarding electronic surveillance. It also would have 
made clear that the Authorization for the Use of Military Force, AUMF, 
passed after the 9/11 attacks and that was the basis for our military 
actions in Afghanistan--a measure I supported--does not constitute an 
exception to that rule.

[[Page E1971]]

  If the motion to recommit had been adopted, the result would have 
been to approve an alternative version of the legislation so it would 
update FISA to provide intelligence agencies more flexibility in 
emergency situations and less bureaucratic red tape when applying for 
warrants, while still requiring court orders for domestic surveillance 
of Americans.
  That better alternative would have extended from 72 hours to 7 days 
the amount of time allowed to initiate surveillance in an urgent 
situation before going to the FISA court for a warrant. This authority 
can be used to thwart imminent attacks.
  The alternative also would have made clear that foreign-to-foreign 
communications are outside of FISA and don't require a court order, and 
would have provided that a FISA order for electronic surveillance shall 
continue to be in effect for the authorized period even if the person 
leaves the United States. It also would have removed redundant 
requirements in the application process and made other changes to 
streamline the FISA process, including adding judges to the FISA court 
while authorizing that court, the Department of Justice, the FBI, and 
the NSA to hire more staff for the preparation and consideration of 
FISA applications and orders. And it would have made clear that in 
addition to a ``declaration of war by the Congress,'' an 
``authorization for the use of military force, AUMF,'' can also trigger 
the FISA ``wartime exception'' for purposes of allowing 15 days of 
warrantless surveillance.
  I think that alternative had the best features of this bill without 
its defects. Unfortunately, it was not adopted and those changes were 
not made.
  As a result, I do not think this bill as it stands should be 
approved. But while I cannot support it tonight, I recognize that it is 
not being sent to the president for signing into law. Instead, if it 
passed tonight it will go to the Senate, where it will be subject to 
further debate and revision.
  My hope is that if it does pass tonight, and the legislative process 
continues, the result of that process will be a revised version that 
will deserve enactment.

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