[Congressional Record Volume 153, Number 132 (Friday, September 7, 2007)]
[Extensions of Remarks]
[Pages E1840-E1842]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      PROTECT AMERICA ACT OF 2007

                                 ______
                                 

                               speech of

                           HON. DENNIS MOORE

                               of kansas

                    in the house of representatives

                        Saturday, August 4, 2007

  Mr. MOORE of Kansas. Mr. Speaker, I rise today to express my 
disappointment regarding the House of Representatives' approval of S. 
1927, legislation greatly expanding the Bush Administration's 
eavesdropping authority beyond even what Administration officials 
requested. I urge the House Judiciary Committee to promptly consider 
and report improved legislation that will provide the necessary 
surveillance authority our intelligence services need to protect our 
nation, while protecting our citizens' most basic expectation of 
privacy and fundamental civil liberties that are guaranteed by our 
constitution. Specifically, the Fourth Amendment to the U.S. 
Constitution states plainly: ``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.''
  I have been a longstanding supporter of efforts to provide our 
intelligence and law enforcement agencies with all the necessary tools 
they need to monitor potential agents with terrorist intentions against 
the United States. Following the awful terrorist attacks of September 
11, 2001, on our country, I joined 356 of my House colleagues to vote 
for the USA PATRIOT Act of 2001 (P.L. 107-56). The legislation gave 
federal officials greater authority to track and intercept 
communications, both for law enforcement and foreign intelligence

[[Page E1841]]

gathering purposes. Among other additional provisions, the law also 
created new crimes, new penalties, and new procedural efficiencies for 
use against domestic and international terrorists.
  The law contained, however, provisions that allowed for enhanced 
surveillance procedures that many citizens were concerned restricted 
civil liberties. I subsequently supported several amendments to various 
appropriations measures that would have improved civil liberties 
protections, namely: (1) Rep. Bernie Sanders' amendment to fiscal year 
2006 Science, State, Justice and Commerce Appropriations Act which 
would have exempted libraries and bookstores from section 215 of the 
PATRIOT Act while increasing congressional oversight; and (2) Rep. 
Butch Otter's amendment to a fiscal year 2004 appropriations measure 
that would have prevented the use off section 213 of the PATRIOT Act 
that extended so-called ``sneak and peek'' authority to local police 
that previously was made available only to foreign intelligence 
investigators. Previously, police had to ``knock and announce'' their 
intention of searching before executing any warrant. Even though the 
Sanders amendment passed the House by a vote of 238-187, and the Otter 
amendment passed by a vote of 309-118, they both were unfortunately 
pulled from their respective appropriations measures before they were 
signed into law by the President.
  Several sections of the PATRIOT Act were set to expire on December 
31, 2005, unless they were extended. These ``sunset provisions'' 
included wiretapping privileges, sharing wiretap and foreign 
intelligence information, FISA authority and jurisdiction, voicemail 
warrants, and various other powers. On July 21, 2005, the House 
approved H.R. 3199 by a vote of 257-171. This legislation would have 
made permanent 14 of the 16 provisions that were set to expire in 2005. 
The remaining two provisions, involving the government's ability to use 
roving wiretaps and the government's access to business and library 
records, were assigned 10-year sunsets, at which point they will either 
be renewed or will expire. While the majority of the sections remained 
unchanged, during consideration of this legislation, the House adopted 
a few measures that would help protect government abuses of civil 
liberties. Among these were amendments that would require the Director 
of the FBI to personally review any and all requests for library or 
bookstore records under Section 215 of the PATRIOT Act, as well as an 
amendment that would allow the recipient of a national security letter 
(NSL) to consult with an attorney and challenge the issuance of the 
letter in court. I voted for both of these amendments. I voted against 
H.R. 3199, however, because I didn't believe it was a good idea to make 
permanent policy for the United States concerning our fundamental 
rights and freedoms during extraordinary times of war. We must never 
allow terrorists to alter the freedoms that define our country and make 
us the greatest nation in the world.
  On July 29, 2005, the Senate approved legislation that would also 
make permanent 14 of the 16 provisions set to expire in 2005; however, 
it would have placed 4-year sunsets on the two remaining provisions and 
would have placed additional checks on government power that would help 
ensure the preservation of our valuable civil liberties. These two 
pieces of legislation were sent to a House-Senate conference committee 
to resolve their differences; In December 2005, a new agreement was 
reached in conference proposing 4-year expiration dates for the two 
provisions involving the government's ability to use roving wiretaps 
and the government's access to business and library records, as well as 
a 4-year sunset to a provision in the 2004 intelligence overhaul law 
(P.L. 108-458) that allows law enforcement to seek warrants against 
``lone wolf'' terrorists not connected to foreign powers. On December 
14, 2005, the House agreed to the conference report by a vote of 251-
174. I voted for the final version of the legislation because I was 
satisfied with the shorter expirations on some of the more contentious 
provisions and I was concerned about the possible effect on our 
national security if these provisions of the PATRIOT Act were allowed 
to expire.
  After being approved in the House, however, several members of the 
Senate remained concerned about the government's ability to acquire 
records and obtain administrative search warrants. Several Senators 
later announced an agreement they had reached with the White House, to 
make three changes to the previously agreed-to conference report 
relating to the government seizure of records. Specifically, these 
changes: (1) Allow recipients of a business records request to 
challenge a gag order, although to overturn it they would have to wait 
one year and prove the government acted in ``bad faith''; (2) remove a 
requirement that recipients of national security letters, which do not 
require court approval, disclose the name of any attorney they consult 
or intend to consult; and (3) clarify language in the 2001 law to 
ensure that libraries operating in traditional roles and not as 
Internet service providers would not be subject to national security 
letters. The House later agreed to these amendments by a vote of 280-
138, which I supported. On March 9, 2006, President Bush signed the 
final version of H.R. 3199 (P.L. 109-177) and the S. 2271 amendments 
(P.L. 109-178) into law.
  In order to effectively fight the war on terror we need intelligence, 
but this intelligence should be gathered in a legal manner and 
consistent with our constitution. Traditionally, the NSA's 
intelligence-gathering role has been limited to intercepting 
international communications as part of the government's foreign spying 
activities. Under the 1978 Foreign Intelligence Surveillance Act (FISA, 
P.L. 95-511), the federal government is required to obtain a warrant to 
conduct domestic wiretaps, but the NSA program disclosed by President 
Bush and his administration appears to have operated outside the FISA 
law.
  In the 109th Congress, Rep. Heather Wilson introduced H.R. 5825, the 
Electronic Surveillance Modernization Act. This legislation would have 
given the President expanded authority to authorize electronic 
surveillance of communications by suspected terrorists without first 
obtaining approval from the FISA court. Specifically, it allowed the 
President to authorize warrantless electronic surveillance for up to 90 
days in three circumstances--an armed attack against the United States, 
a terrorist attack against the United States, or if there is an 
``imminent threat'' that is likely to cause death or widespread harm. 
The measure also would have extended the amount of time intelligence 
agencies can conduct warrantless electronic surveillance in ``emergency 
situations'' to seven days, from the current three-day limit.

  The FISA law then contained certain exceptions for intelligence 
operations on U.S. soil--it permitted the president to authorize the 
Justice Department to conduct electronic surveillance or physical 
searches without approval by the FISA court to gather foreign 
intelligence for up to 15 days after Congress enacted a declaration of 
war. In addition, it allowed the federal government to conduct 
electronic surveillance without the court's approval in ``emergency 
situations,'' provided that the government seeks approval from the FISA 
court within three days of initiating emergency surveillance.
  The Electronic Surveillance Modernization Act, however, represented a 
significant departure from the protections put in place under FISA in 
1978. Nowhere in the Foreign Intelligence Surveillance Act does it 
state that the president can bypass the process of seeking a court 
order to spy on American citizens through an executive order. I was 
concerned that this legislation was a political attempt to 
retroactively justify the President breaking the law. I fully believe 
that if the President followed the law and approached the FISA court 
and Congress for approval of such programs, that Congress and the FISA 
court would gladly give the President the powers he needs to combat 
terrorism. For these reasons, I voted against H.R. 5825 when it was 
brought to the House floor for a vote on September 28, 2006. This 
legislation was approved in the House by a vote of 232-191, but did not 
receive a vote in the Senate, effectively killing the legislation in 
the last Congress.
  Attorney General Alberto Gonzales announced on January 17, 2007, that 
the FISA court authorized and issued orders on January 10, 2007, 
granting wiretaps that the Administration requested. Subsequently, the 
Justice Department has shared those classified documents with the House 
and Senate Intelligence Committees, as well as the Chairmen and Ranking 
Members of the House and Senate Judiciary Committees.
  The U.S. Department of Justice's Office of the Inspector General 
released a 126-page audit report on March 9, 2007, entitled ``A Review 
of the Federal Bureau of Investigation's Use of National Security 
Letters.'' In this report, it was revealed that FBI agents were using 
national security letters to obtain personal information such as phone, 
internet, and financial records of individuals without court orders. 
The audit also found that 22 percent of these letters were not recorded 
and of those that were recorded, some were issued without proper 
authority. Senators Arlen Specter and Patrick Leahy have voiced concern 
over the findings of this report. I am deeply troubled by this report 
and strongly believe vital intelligence should be gathered in a manner 
that is fully consistent with our laws and constitution.
  The congressional leadership spent many months in 2007 negotiating a 
reauthorization of the FISA law with the Bush Administration and 
Admiral Michael McConnell, Director of National Intelligence (DNI). 
Both Democrats and Republicans agree that we need to update the FISA 
law to incorporate new technologies, such as cell phones and e-mail, 
which did not exist when the original FISA law was written. Prior to 
the August District Work Period, the Bush Administration pressed the

[[Page E1842]]

congressional leadership to pass a short-term FISA update. During 
negotiations, Director McConnell told the congressional leadership that 
he supported several technical changes that: (1) allowed foreign 
targets to be added a ``basket warrant'' after the warrant was 
approved; (2) expanded the draft bill to apply to ``all foreign 
intelligence'' from only intelligence ``relating to terrorism''; and 
(3) eliminated the requirement that the FISA court adjudicate how 
recurring communications into the United States from foreign targets 
would be handled. Following these improvements to the draft bill, the 
DNI told congressional leadership that with these changes, he could 
support the bill because it would ``significantly enhance America's 
security.'' I voted for the final version of this legislation, H.R. 
3356, the Improving Foreign Intelligence Surveillance to Defend the 
Nation and the Constitution Act of 2007. Even though a majority (218-
207) voted in favor of H.R. 3356, the bill did not pass as it was 
considered under suspension of the rules (2/3 vote to approve 
required).
  The Senate passed a much different version of FISA legislation, S. 
1927, the Protect America Act sponsored by Senators Mitch McConnell and 
Kit Bond. This legislation greatly exceeds what the Bush Administration 
requested in legislation, providing a virtual blank check for 
intelligence agencies to eavesdrop, including on the conversations of 
U.S. citizens, with essentially no oversight by the FISA court or 
Congress. The legislation allows the U.S. Attorney General to decide 
when to eavesdrop on any e-mail message or phone call without a 
warrant, so long as one of the people communicating is ``reasonably 
believed'' to be outside the country. That is a vague term that the 
Administration is allowed to interpret however they want, greatly 
expanding its surveillance powers, while the legislation does not 
provide the courts with any real power to supervise this surveillance. 
Proponents of S. 1927 point out that the legislation has a six month 
sunset and will expire in February 2009. This sunset is artificial, as 
the orders in effect in February 2009 could last for up to a year, 
essentially for the remainder of the Bush Administration with no 
oversight. For these reasons, I voted against S. 1927 when the House 
considered the measure on August 4, 2007. The House approved the 
legislation by a vote of 227-183, and the President signed it into law 
on August 5, 2007 (P.L. 110-55).
  Speaker Nancy Pelosi wrote a letter to Judiciary Chairman John 
Conyers and Select Intelligence Chairman Silvestre Reyes on August 4, 
2007, urging that the House of Representatives should consider 
comprehensive FISA reauthorization legislation. I agree with her 
statement that: ``Many provisions of this legislation are unacceptable, 
and although the bill has a six-month sunset clause, I do not believe 
the American people will want to wait that long before corrective 
action is taken.''
  As a co-equal branch of government, it is necessary that Congress 
fully understand how the Bush Administration executes intelligence 
activities in order to exercise proper oversight. I look forward to 
working with my colleagues in Congress to ensure that law enforcement 
agencies have strong, flexible tools to intercept the communications of 
terrorists, and at the same time protect our citizens' civil liberties 
from unwarranted government probing.

                          ____________________