[Congressional Record Volume 153, Number 143 (Tuesday, September 25, 2007)]
[House]
[Pages H10891-H10896]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page H10891]]
                 FOREIGN INTELLIGENCE SURVEILLANCE ACT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 18, 2007, the gentleman from Michigan (Mr. Hoekstra) is 
recognized for 60 minutes as the designee of the minority leader.
  Mr. HOEKSTRA. Mr. Speaker, I rise tonight to talk about the Foreign 
Intelligence Surveillance Act. But before we talk about this very 
important piece of legislation which the Congress extended in the 
waning hours before we went on our August recess, I think it is 
important that we put this in context.
  As Members of Congress and as my colleague here, Mrs. Wilson from New 
Mexico joins me, we serve on the Intelligence Committee. We recognize 
that the American people have laid upon us the responsibility to do 
everything in our power to assist and give the intelligence community 
the tools that it needs to prevent another terrorist attack against the 
United States.
  And make no doubt about it, when you take a look at what bin Laden 
and others in al Qaeda have said, their intent is to attack us and to 
attack us again and again.
  In 1998, bin Laden, in a series of interviews, was asked about his 
intentions. One of his quotes was: ``To kill the Americans and their 
allies, civilians and military, is an individual duty for every Muslim 
who can do it in any country in which it is possible to do it, in order 
to liberate the al Aqsa Mosque and the holy mosque from their grip, and 
in order for their armies to move out of all of the lands of Islam, 
defeated and unable to threaten any Muslim.'' That was February 28, 
1998.
  He was asked about the possibility of acquiring chemical or nuclear 
weapons. His response to those questions, again in 1998, was: 
``Acquiring weapons for the defense of Muslims is a religious duty. If 
I have indeed acquired these weapons, then I thank God for enabling me 
to do so.''
  He goes on in another quote, December 1998, to say: ``If I seek to 
acquire such weapons, this is a religious duty. How we use them is up 
to us.''
  So we have known of the intentions of bin Laden, al Qaeda and the 
radical jihadists for a long period of time.

                              {time}  2145

  We experienced many of their attacks during the 1990s, whether it was 
the first attack on the World Trade Center, the attacks against the USS 
Cole, the attacks against our compounds in Saudi Arabia, or our 
embassies in Africa. Of course, it all culminated on 9/11 with the 
attacks in New York, Washington, and the crash in Pennsylvania.
  It is exactly these kinds of activities, these attacks against our 
homeland or against our interests in other parts of the world that we 
seek to prevent. We want to make sure that the intelligence community 
works with other intelligence communities around the world, because we 
recognize that it's not only the United States and our homeland that is 
vulnerable; but we recognize with the attacks in London, the attacks in 
Spain, the killing of van Gogh in The Netherlands, the plots that were 
recently disrupted in Germany, in Denmark, the airline plot that was 
disrupted a year ago, we recognize that the statements that bin Laden 
made in 1998 are still the way that they think and what they want to do 
in 2007.
  If you go back, if you go to his most recent statement, or one of his 
recent statements around the anniversary of 9/11, again here's what bin 
Laden says: However, there are two solutions for stopping it. The first 
is from our side, and there he's talking about the radical jihadists, 
and it is to continue to escalate, to continue to escalate the killing 
and fighting against you. This is our duty and our brothers are 
carrying it out, and I ask Allah to grant them resolve in victory.
  The second solution is from your side, meaning our side. It has now 
become clear to you and the entire world the impotence of the 
democratic system and how it plays with the interest of the peoples and 
their blood, by sacrificing soldiers and populations to achieve the 
interests of the major corporations.
  He wants to attack and sees it as his religious duty for radical 
jihadists to attack the West, to attack the United States and to 
escalate, and as I said earlier, his quote from 1998, he seeks access 
to chemical and nuclear weapons. He seeks access so that they can 
determine how to use it.
  It's our responsibility, again, to give the intelligence community 
and give the military the tools necessary to prevent bin Laden, to 
prevent radical jihadists, to prevent al Qaeda from successfully 
attacking the United States.
  I yield to my colleague from New Mexico to talk a little bit about 
FISA and perhaps also put some context in why this is so important and 
why the intelligence community is so important as we try to intercept 
the communications of foreign terrorists like al Qaeda, like bin Laden, 
like radical jihadists to prevent these kinds of terrorist attacks from 
occurring again in the future. I yield to my colleague.
  Mrs. WILSON of New Mexico. Mr. Speaker, I thank my colleague from 
Michigan, and I think it's important tonight to take a moment to stop 
for a moment.
  We've been talking all day and all afternoon about health care, and 
it is something we both care about, and jobs and education and trying 
to make our schools better and make sure we have roads that people can 
drive to work on and that we can build businesses and get products to 
market. And we're all focused on our lives and trying to raise our kids 
and do the best we can, but we want to talk about something tonight 
that's really a serious issue and is something I think worries all of 
us. But sometimes we just want to set it aside, and we don't want to 
think about things that could happen to our own families, particularly 
if we don't feel personally like we can do something about it.
  But as government leaders there are things that we can do about it. 
In fact, I think we have a duty. The first duty that we have as Federal 
officials is to make sure we protect this country.
  This weekend, I have been a merit badge adviser for citizenship in 
the Nation in Troop 166 in Albuquerque, New Mexico, and had a group of 
boys that I was just teaching about the Constitution. We were talking 
about what are the functions of the Federal Government. And I believe 
that first and foremost our duty is to provide for the common defense.
  And by that, we don't mean to clean up after the next disaster or 
support law enforcement if they prosecute people who conducted a 
terrorist attack. That's not enough, and that shouldn't be the goal of 
our government. It is to prevent a terrorist attack on this country. 
It's to prevent the next disaster. It's to prevent you waking up 
tomorrow morning, as you did 6 years ago, to watch aircraft fly into 
the sides of buildings.
  I think in some ways maybe as a people our desire to move on with our 
lives has caused us to become a little complacent about the threats 
that we continue to face; and, in fact, I think our greatest 
accomplishment in the last 6 years has been what has not happened. We 
have not had another terrorist attack on our soil since that cool 
September morning, and it's not because they haven't tried.
  A year ago in August, the British Government arrested 16 people who 
were within 48 hours of walking on to American airliners at Heathrow 
Airport and blowing them up simultaneously over the Atlantic. They 
planned to conceal explosives in things they could carry on in their 
luggage that looked like toothpaste or hair cream or shampoo, things 
you'd normally have. That's why all of us now have to put those things 
in those little quart-size containers so they can make sure there's not 
enough of anything there that can destroy an airliner, because the 
people in Heathrow were going to do that. They were going to make the 
bomb on board.
  And if we underestimate the hatred and the cruelty of the people that 
were going to carry this out, think about this: one of them told the 
police at Heathrow or British police that he intended to bring his wife 
and his 6-month-old child with him so he wouldn't attract too much 
suspicion at the airport. Think about that for a second. These people 
hate Americans so much, they are so determined to inflict mass 
casualties on us, that they're willing to kill their own 6-month-old 
child to do it.
  That's the threat that we continue to face; and on September 6, in 
this

[[Page H10892]]

month, in Germany, they arrested three people who had amassed enough 
explosive material to cause an explosion larger than the London subway 
bombs. Their likely targets were U.S. military bases in Germany.
  Al Qaeda has been successful in the past in conducting a dramatic 
attack on the United States with mass casualties, huge economic 
dislocation; and they want to do it again. As Americans we have to 
accept, perhaps not accept but expect, that it is likely that they will 
succeed. They may fail in more of their attempts than they succeed at, 
but they only have to succeed once. America has to get it right 100 
percent of the time. They can fail a bunch of times. They just have to 
get it right once.
  There's no question in my mind anyway, and in fact bin Laden has said 
so, they are trying to acquire chemical, biological, and nuclear 
materials in order to make their attacks on the West even more 
dramatic, more devastating, more catastrophic. And there is no doubt in 
my mind that if they had those weapons they would use them.
  Mr. HOEKSTRA. And this is not a partisan issue. The vice chairman of 
the 9/11 Commission, Lee Hamilton, a Democrat, talking about the 
objectives of al Qaeda: keep in mind there isn't any doubt here about 
the intentions of the terrorists. They've made it very clear. They want 
to get hold of a nuclear weapon. So this is not an idle threat. It's a 
very serious one. Lee Hamilton, a distinguished Member of this body, 
former Member of this body, vice chairman of the 9/11 Commission and a 
Democrat who did a wonderful job in leading the effort of that 9/11 
Commission.
  One of our colleagues here in the House talked about, again, their 
intentions and talked a little bit about what his reaction was to 
September 11. His quote is: It did answer the one question we didn't 
know about September 11: how far would they go. What September 11 said 
is they will go as far as they want to, that there's no red line, that 
there's no sense of decency, no innocence, that our world has changed 
in a very real way. Those are the words of our colleague from 
Connecticut, Chris Shays.
  And then if we go back to Lee Hamilton: There is one threat because 
of the consequences that just rises above all others and that is the 
possibility of a terrorist getting hold of a nuclear weapon. They've 
made it very clear that they want to get a hold of a nuclear weapon. 
It's not an idle threat. It's a serious one. It's our responsibility 
not as Republicans, not as Democrats. This is an American issue. It's 
got to be an American priority. It is about preventing a nuclear 
terrorist attack.
  And I yield to my colleague.
  Mrs. WILSON of New Mexico. And one of the things that's so deeply 
troubling is they don't even need to get a nuclear weapon to sell 
terror across a whole region. It is just nuclear material or a 
suitcase-sized device that could cause tremendous damage and mass 
casualties, huge economic dislocation; and that is their intent.
  And sometimes you listen to these tapes from bin Laden, and I was 
sitting in my office reading over the most recent one that he sent out 
on 9/11 on the anniversary of the terrorist attacks. You read through 
this and go, man, this guy is nuts. It just sounds nuts, but he is 
serious, and he has shown the ability to carry out mass attacks in the 
United States and to inspire followers to try to do the same.
  We have to take this threat seriously. So the question is, as a 
Nation, and this is one of the things I look forward to talking a 
little bit about with my colleague tonight, all right, if the first 
duty of the United States Government is to protect America, to protect 
Americans from all enemies foreign and domestic, so how do we do this? 
How can we not only be better today than we were 6 years ago on the 
morning of 9/11? That's not the challenge. How do we be better tomorrow 
than we are today?
  I think the greatest accomplishment we've had over the last 6 years 
is that we've not had another terrorist attack on our soil; but just 
because we're one step ahead of them today is not good enough. We have 
to stay one step ahead of them. How do we make sure our government is 
doing everything it can to keep America safe?
  Mr. HOEKSTRA. Reclaiming my time, and I think that's exactly right, 
that we take a look at the past but most importantly that we set the 
right objective, the right milestone looking forward; and I think as a 
Congress we ought to commit to the principle of prevention.
  We need to commit to diplomacy and international cooperation, commit 
to homeland security. That includes our ports, our borders, not just 
our skies. Let's commit to a nonpartisan approach that applies the 
knowledge and wisdom of all of our elected officials. Let's learn from 
9/11 the goal and the objective of making sure that we will prevent the 
next 9/11 from occurring.
  I'll yield.
  Mrs. WILSON of New Mexico. One of the things that is hard to 
understand is just how difficult prevention is when you're facing a 
terrorist threat compared to what we faced during the Cold War.
  I served in the military during the Cold War. I served overseas in 
Europe for most of my time as an officer, graduated from the Air Force 
Academy and then did my service overseas.
  In some ways I kind of look back on this and say as an intelligence 
problem, the Soviet Union was a very convenient enemy. They had their 
exercises the same time every year. They came out of the same barracks. 
They had tables of equipment and standard organizational charts. They 
used the same radio frequencies, the same rail lines. They were a very 
predictable, potential enemy. Had they ever attacked us, they would 
have been very difficult to defeat, but we had no doubt about where 
they were and what they were doing pretty much, and we had huge systems 
set up for what we called indications and warning, ballistic missile 
early warning systems and systems that would launch our air 
interceptors if bombers came close to the United States. We were very 
good at looking at what the Soviet Union was doing to immediately 
protect America.

                              {time}  2200

  Mrs. WILSON of New Mexico. The intelligence problem with terrorism is 
much different. It is more like a Where's Waldo problem. They are 
hiding among us. They don't have set tables of equipment, they don't 
have their own dedicated radio systems. They don't live in barracks. 
They don't have exercises that we can catch or plan for or listen to. 
But if we can find them, we can stop them. And that is why I believe 
that good intelligence is the first line of defense on the war on 
terror.
  Mr. HOEKSTRA. Reclaiming my time for just a minute. When we take a 
look at the threat that we face today, it is a fight against radical 
jihadists. As my colleague pointed out, this is a fight that is very 
different than what we fought in the cold war. But even in the cold war 
we had a very specific strategy laid out and a very specific objective. 
Now, we need to transform our intelligence community to make sure that 
it is as good and as quick. Actually, it has to be better and it has to 
be quicker, than radical jihadists. These people who have perverted 
their Islamic faith to achieve what they hope will be ultimately a 
world in which their view of Islam dominates everyone, and you either 
bend to their will or you are killed. Remember, their objectives are 
very simple: They want to take down the government in Iraq; they then 
want to destabilize the region; eliminate the State of Israel; 
establish their caliphate, Northern Africa, Southern Europe, the Middle 
East, reaching down into Asia, and they want to put it under sharia 
law; and, at the same time, they want to continue on in the West.
  Remember, that for radical jihadists, as they look at the rest of the 
world they say, you have three options: you have the option to convert 
to Islam; you have the option to pay the tax, the hadid, or you will be 
attacked and you will be killed. And that is how they view the rest of 
the world. And that is why, when you take a look at the statements of 
bin Laden, al Qaeda, and other radical jihadist groups, it is why they 
are so focused and why bin Laden, in one of his latest messages, said 
that they need to escalate their efforts against the West. They need to 
escalate the killing. And why, if by the grace of God he is given a 
nuclear weapon, he will decide whether they

[[Page H10893]]

will use it or how they will use it. It is why we need to use every 
tool at our disposal, tools that we refined and that we learned how to 
use during the cold war.
  We developed a great capability against the former Soviet Union, 
against other enemies during the cold war, and we ought to now take our 
knowledge of how these tools worked, how we put them in practice, to 
make sure that we got the information that kept us safe, that prevented 
the Soviet Union from ever being able to attack us and attack us 
successfully. How did we develop those tools to make sure that we got 
the information that we needed at the same time that we protected 
American civil liberties, privacy and American rights and the American 
way of life?
  We had a good balance. We got the intelligence that we needed. We 
kept America safe. We had a period of 50 years where we developed these 
tools. We developed them at their various intelligence organizations 
where we refined the practices in such a way that they are now 
positioned as we target them at different threats, and perhaps a more 
serious threat than what we have ever seen before, radical jihadists. 
These are the tools that will enable us to meet our commitment of 
saying we will do everything we can to prevent a successful attack 
against the homeland.
  I will yield to my colleague.
  Mrs. WILSON of New Mexico. My colleague from Michigan and I are 
talking tonight about something that is pretty important and something 
perhaps that gets not enough time or attention these days, and that is, 
how do we better prevent a successful attack on the United States, a 
successful terrorist attack in particular?
  One of our strongest tools in this fight is good intelligence. Now, 
America spies on its enemies.
  Mr. HOEKSTRA. Reclaiming my time. We steal secrets. Correct?
  Mrs. WILSON of New Mexico. That is exactly what we do. Other 
governments try to hide what they are doing and terrorist organizations 
try to hide what they are doing, and we try to steal those secrets. 
That is what good intelligence does. We steal those secrets so that we 
can find out the plans and the capabilities and the intentions of 
groups that might want to kill us or attack us so that we can stop 
them.
  Mr. HOEKSTRA. If the gentlelady will yield.
  Mrs. WILSON of New Mexico. Sure.
  Mr. HOEKSTRA. Just to talk a little bit about the difference between 
the threat that we face with radical jihadists versus what we faced in 
the former Soviet Union.
  You know, when we developed some of these tools, they were targeted 
against a specific location, an embassy in Washington, D.C. or 
embassies overseas. We knew who these individuals were; we knew where 
their locations were. I mean, it is a nation-state. They carried 
passports of certain countries. We knew where their embassies were and 
all of those kinds of things. They were relatively easy to identify, 
and the threat wasn't necessarily imminent.
  What we now face with radical jihadists is we have got groups of 
people who, as we have seen in taking a look at their own words, have a 
passion for attacking the United States. And there are all different 
kinds of levels within this group. You have got the radical jihadists 
who are clearly linked to al Qaeda who take direction from al Qaeda. We 
call it the al Qaeda Central in the Pakistani-Afghan border region, the 
Fatah, the federally administered tribal areas. So you have got that 
network that is committed on a larger scale to attacking the West. And 
then you also have individual cells that might be franchises of radical 
jihadists who have aligned their goals and their missions with al Qaeda 
but may not be directly linked or taking their direction. And then that 
goes all the way over to the thing that we see with homegrown 
terrorists, people who may have become radicalized in a local mosque, 
or individuals that may actually become radicalized through the 
Internet.
  So, the intelligence community needs to be focused on each of these 
types of threats in different ways, and it is a very difficult threat 
to get a handle on.
  Mrs. WILSON of New Mexico. And probably one of the best ways that we 
have to get a handle, particularly on the terrorist threats, is what 
they call communications intelligence. We try to listen to people 
talking to each other. If you are trying to get people's plans and 
their intentions, understand more about them, you listen to them when 
they are talking to each other. That is what communications 
intelligence does. And we have been trying to collect communications 
intelligence since we started technical intelligence since the 
invention of the telegraph.
  There were spies during the Civil War. We tried to read 
communications telegrams, intercept international telegrams during the 
First World War. So we have been trying to intercept communications to 
be able to tell what is the enemy going to do.
  In New Mexico, probably the best example and the one that people know 
today is what we tried to do to protect our own communications. 
Particularly in the Pacific, in the Marine Corps, because we knew the 
Japanese were listening to our guys in the field talk to each other on 
the radios back and forth on where they were going and what hill they 
were going to, what their plans were. They used Navajo communicators 
because nobody in Japan could translate the Navajo code talkers. So we 
try to protect our own communications. We also try to intercept those 
of the enemy, both on the battlefield and more globally.
  One of the challenges that we face and one of the things that the 
gentleman from Michigan and I have been working on for close to 2 years 
is that our laws for communications, particularly for gathering foreign 
intelligence from within the United States, have become outdated. There 
is a law called the Foreign Intelligence Surveillance Act, or FISA, 
which was initially put in place in 1978. Before that, there was really 
no statute that dealt with any limitations at all on how you collect 
foreign intelligence, foreign communications intelligence if you are 
based here in the United States. That law was a response to excesses of 
the intelligence community in the 1950s and the 1960s, and Congress put 
some limitations in place. They said, we are going to have some 
procedures on how we gather foreign intelligence in the United States.
  Now, think about this. 1978. 1978 was the year I graduated from high 
school. The telephone was on the wall in the kitchen and it had an 
extra long extension cord. The Internet was not a word in the 
dictionary. Cell phones were only on Star Trek, and the first personal 
computer, the first IBM personal computer was invented in 1982, so 4 
years after the Foreign Intelligence Surveillance Act was put in place.
  So the threat was different. We were looking at collecting foreign 
intelligence mostly on diplomats who were hiding as spies in embassies 
like the Soviet embassy here in Washington. So it was a more static 
enemy and more static communications.
  In 1978, almost all long-haul communication went over the air; it was 
bounced off satellites. Almost all short-haul communication, local 
calls, were over a wire. When we wrote the law, or when the Congress 
wrote the law in 1978, it was technology specific. It said, you don't 
have to do anything special if you are just gathering signals over the 
air if it is a radio signal or satellite signal. You can tune it in on 
your tuner similar to your car radio. There is no special privacy 
protections there. But if you touch a wire, you have to do some special 
things. So it was technology specific.
  Since 1978, we have gone through a revolution in communications 
technology so that now the situation is completely reversed. Now, 
almost all long-haul communications that would be of foreign 
intelligence interest are on a wire; and almost all, or a vast 
percentage, of short-haul communications are over the air. There are 
230 million cell phone customers just in the United States.
  This change in technology meant that the foreign intelligence 
surveillance law was getting more and more out of date, at the same 
time the threats to the United States were changing, requiring America 
to be more agile in its intelligence collection than we had to be when 
faced with the former Soviet Union and the Soviet threats.
  I yield back to my colleague from Michigan.

[[Page H10894]]

  Mr. HOEKSTRA. If you take a look at the information right almost 
immediately after 9/11, as the President convened the bipartisan 
leadership of the House and Senate, along with the bipartisan 
leadership of the Intelligence Committees, they recognized that the 
FISA law wasn't going to work against this new kind of threat. So 
almost immediately, as the President consulted with this bipartisan 
leadership of the Congress, they talked about exactly what is this 
threat that is out there. And as they took a look at the statements, as 
we did earlier tonight, of what bin Laden was saying, what others in 
the al Qaeda organization were saying about we want to attack the West, 
we may use a nuclear weapon, we made a portable nuclear weapon, or 
something like that, they were unsure of exactly what the threat would 
be and they were unsure of what the organizational capabilities of the 
radical jihadists and al Qaeda were. So they made a decision. They 
said, we are going to do everything, we are going to unleash the NSA 
onto radical jihadists and intercept their communications so that we 
can determine and get a better insight as to exactly what they are 
doing. Because the President and the leadership, bipartisan leadership, 
recognized that it was their responsibility, and they made a commitment 
back then that said, we are going to do everything in our power to make 
sure that we prevent another attack against the United States.
  So they took the policies and the practices, and they made the 
decision to adapt it and extend it to recognize the changes that had 
taken place in technology. The current Speaker of the House, Nancy 
Pelosi, Speaker Pelosi, briefed four times in the first 12 months of 
this effort, talking about exactly how it was working, who was being 
targeted, the information that was being collected, the kind of impact 
that it was having on the threats against the United States and how 
American's civil liberties were being protected. And consistently over 
a period of 3 to 4 years, as Members of Congress, we are consulted and 
briefed on this program. They all walked out of those briefings saying, 
this is essential, this is a necessary tool to prevent another 
successful attack against the United States.

                              {time}  2215

  That all changed when the New York Times published the existence of 
this program. It made America less safe. It tipped the radical 
jihadists off as to what some of our capabilities might be. They 
changed the way that they communicated. They changed the way that they 
operated.
  But the end result is this is still an effective tool and a balanced 
tool that we now need to bring up to date through the legislative 
process. We did that in August.
  I yield to my colleague.
  Mrs. WILSON of New Mexico. And one of the ironies here is that 
because of this law, if we're trying to listen to a foreigner in a 
foreign country, and we take tremendous risks with our members of the 
intelligence community and collect that communication overseas, maybe 
at high risk, may not work, and we collect that communication overseas, 
you don't have to ask permission from anybody in the American 
judiciary. You're out there trying to do your job as a military officer 
or a civilian in the intelligence agencies, trying to steal secrets, 
listen to communications overseas.
  But America dominates telecommunications. It used to be that if 
somebody from northern Spain was calling southern Spain, the route of 
that communication went directly from northern Spain to southern Spain. 
Now, because of global telecommunications networks, that call will go 
on the least restrictive, fastest path. And these efficiencies are 
running all of the time, and that call from northern Spain to southern 
Spain could route all the way around the world, through the United 
States, through whatever the system figures is the best, fastest path. 
So we may have situations where somebody in a foreign country is 
talking to somebody else in the same foreign country, and the 
communication might be routed through the United States.
  And yet just because you touch, when you touch a wire in the United 
States, under the old law, you had to get a warrant from a court, even 
if you're listening to a foreigner in a foreign country, even if there 
are U.S. military forces in that country hunting down insurgents who 
are trying to kill Americans. It just doesn't make any sense at all.
  And as one military officer said recently in Iraq, this doesn't make 
any sense. If I see an insurgent on the telephone, I can shoot him, but 
I can't listen to him. That was the problem with the Foreign 
Intelligence Surveillance Act that we sought to get fixed.
  Mr. HOEKSTRA. Reclaiming my time, as the gentlelady recognizes, when 
Admiral McConnell, the Director of the National Intelligence Agency, 
the former head of NSA during the Clinton administration, I think, for 
three or four years testified in front of our committee that on 
occasion, in military activities involving the security and safety of 
American soldiers, that there were instances where there was a 
requirement, the safety and the security, not of the homeland, but of 
our troops who are in harm's way that it required the intelligence 
communities to go to a court in the United States to be able to listen 
to foreigners, terrorists, jihadists to get the information that was 
necessary to protect our troops. And in a time of war, as we talked 
about it on an Amber Alert, whether it's 12 hours, whether it's 24 
hours or whatever, that's too long. And if you're a soldier under fire, 
or at risk, you want the intelligence community to have every tool to 
keep you safe and from preventing the terrorists from being successful 
where you are because, in your environment for the terrorists to be 
successful, the terrorist objective is very simple. They are over 
there, you are over here. You're in a hostile environment. Their 
objective is to kill you. It becomes very, very real for them.
  Mrs. WILSON of New Mexico. The other irony of this is that it 
depended on what technology they were using to talk to each other. If 
the terrorists or insurgents trying to kill your military unit in the 
mountains of Afghanistan were using push-to-talk radios, you could 
listen to them. But if they were on a wire line phone and you were 
listening, trying to tap into that communication, if it transited the 
United States, you needed a warrant from somebody in Washington, D.C. 
This makes no sense. And it was compromising our ability to protect 
this country, and it was putting our soldiers in danger overseas.
  Now there's one provision I want to talk about because I think it is 
sometimes misrepresented and given as an excuse for not making any 
updates to the law, and that's the emergency provision in the Foreign 
Intelligence Surveillance Act. In the 1978 law, there was an emergency 
provision that said, in case of an emergency, the Attorney General can 
stand in the shoes of the FISA Court and can approve wiretapping in the 
United States, and then get 72 hours to go in front of the court and 
make their case and get the warrant. The problem is that the Attorney 
General really does stand in the shoes of the court.
  The Director of National Intelligence has testified in open session 
that an average FISA warrant takes 200 man-hours to complete the 
packet, which is about two or three inches thick, to show probable 
cause in order to get a warrant. But it's worse than that. If we're 
talking in the United States, there are things that you can do. If I 
think that my colleague from Michigan is affiliated with a terrorist 
organization, the FBI can go out and talk to his neighbors. We can show 
what kind of affiliations he has with others, who he's communicating 
with us and so on.
  But if you're on the Horn of Africa and you think a particular guy is 
affiliated with al Qaeda, it's not as though you have a lot of 
resources there to build your case for probable cause to satisfy some 
judge in Washington, D.C. And so the standard was not even being met in 
some cases where we had very good reason to believe that someone was 
affiliated with a terrorist organization. But everybody, all our 
analysts are back here, with the limited number of analysts we have 
with expertise in particular terrorist cells, trying to develop cases 
to convince judges to allow wiretaps on foreigners in foreign countries 
simply because the point of access to the communication was in the 
United States.

[[Page H10895]]

  And the emergency provision really requires the Attorney General to 
stand in the shoes of the judge. He has to certify that the probable 
cause standard is met, that it's all the work to get to that probable 
cause standard that takes the time in the first place. And in the real 
world the time has taken too long in cases of real emergencies.
  Mr. HOEKSTRA. Reclaiming my time, Mr. Baker, a former official at the 
Justice Department spent a considerable amount of time with the 
committee explaining to us exactly how the emergency process works. And 
so often people have focused on just the last part of the emergency 
process saying, call the Attorney General and he'll approve it. And 
that can take, that can be almost done at the speed of light. The 
Attorney General knows the call's coming, and it's kind of like you can 
get the approval very quickly. If that were the full extent of the 
emergency process, it might work. But Mr. Baker, in his testimony, says 
the emergency process, there are complications to it. I don't mean to 
sit here today, that you push a button, or it is not like, click, buy 
now on the Internet. It does take time.
  He goes on, so why does it take time? So the intelligence community 
has to do their investigation, make a judgment about what targets they 
want to pursue, when they've done that; and when they've reached a 
point where they realize that they need to do collection immediately, 
they start talking to us. The ``us'' is the Justice Department.

  Going on, he says, then we work through the legal facts, the legal 
issues, the factual issues, at the same time that they are dealing with 
the technical stuff that they need to do. Then, when all of that is 
ready and they tell us we are ready to go, and they say, yes, we 
resolved all legal issues, we have no problem; then they call the 
Attorney General. Calling the Attorney General and getting an answer 
back, it's not like super-time intensive unless a complicated case. 
Oftentimes we'll go down, prebrief the Attorney General what the case 
is all about, what the request will be, so that when the call comes, it 
can happen quickly.
  But before that call is made, Mr. Baker goes through, we work through 
the legal facts, the legal issues, the factual issues at the same time 
that they are dealing with the technical stuff. Then, when that's all 
ready, and this is what my colleague from New Mexico is talking about, 
this is what the two inches of legal documents preparation that needs 
to be done before these folks in the Justice Department and in the 
intelligence community feel comfortable enough calling the Attorney 
General or one of his designees and saying, hey, it's time to go up on 
an emergency FISA.
  Mrs. WILSON of New Mexico. And some of my colleagues have said, well, 
you know, there are some commonsense cases, I mean, where you should 
just, you know, we're all reasonable people here. There's some 
commonsense situations where if you've got insurgents who've captured 
American soldiers, gee, start listening to their communications and 
we'll take care of the paper work later. That's a felony under the old 
foreign intelligence surveillance law. So who in a bureaucracy is 
willing to commit a felony on the hope that some judge will give them 
mercy? And I look at this and I think, this is nuts. It is the United 
States Congress' responsibility to make sure we have the laws in place 
so that the people who are trying to protect us can prevent the next 
terrorist attack. We shouldn't have lawyers in Washington going in 
front of judges or making late-night calls to the Attorney General with 
somebody overseas on the line trying to explain why Abu terrorist 
really is an agent of a foreign power.
  Mr. HOEKSTRA. Reclaiming my time for just a minute, I think we need 
to go back to what you said where folks have said, well, you know, 
common sense just says that if there's an imminent threat, just call 
him. Don't worry about getting the stuff, and just go or just start 
listening. Like you said, that's a felony. And in the FISA law----
  Mrs. WILSON of New Mexico. It used to be a felony until we fixed it.
  Mr. HOEKSTRA. Until we fixed it. But in the FISA, you know, there was 
not a commonsense exception. I'm sure that there are lots of people in 
America today who have paid a penalty or whatever, believing that what 
they were doing was, you know, it's just common sense. And they went in 
front of a judge or maybe they got called in front of a committee in 
Congress and they found out that their definition of common sense 
happened to be very different than maybe what the Members of Congress 
would have defined common sense; and when they got in a court of law, 
they found out that there wasn't a common sense objective or a common 
sense exception and found that they'd violated the law.
  I yield to my colleague.
  Mrs. WILSON of New Mexico. There is no common sense exception. And 
there is no start listening now and then do all the paperwork later. 
The paperwork has to be done before the Attorney General says, okay, go 
ahead; put the alligator clips on the wire. Then all that's left is to 
get the judge's signature on all of that close-to-200 man-hours on 
average of paperwork.
  So what we did, and what we, and I actually think this year the 
problem got worse. It got worse for a couple of reasons. One of them 
was that the Foreign Intelligence Surveillance Court kept looking at 
more and more issues, and they found that their court was becoming 
clogged with huge requests for foreigners, for people who are in 
foreign countries talking to other people in foreign countries. That is 
not what this law was for. This law needed to be revised to take it 
back to its original intent, which was to protect the civil liberties 
of people in the United States. There are no fourth amendment 
protections under the Constitution of somebody who's not in the United 
States, not even related in any way to the United States. That's been 
long established in law and policy. So why are we wasting all this time 
with lawyers in Washington getting warrants for foreigners in foreign 
countries just because they happen to be talking on a wire that 
transits the United States?
  Mr. HOEKSTRA. Just reclaiming my time, because, if we go back and we 
take a look at since this bill passed in 1978, 1979, FISA originally, I 
mean, at any time from 1978 to 2007 or before 2001, did we ever pick up 
American communications?

                              {time}  2230

  Mrs. WILSON of New Mexico. Sure.
  Mr. HOEKSTRA. And did the intelligence community develop an elaborate 
system of protections which we call minimization to protect the civil 
liberties of Americans if and when that occurred?
  Mrs. WILSON of New Mexico. In fact, they are much more explicit than 
they are in criminal law. Think about this. If the FBI thinks that 
somebody is running a drug cartel and they have got a wiretap on that 
person, that person may be calling some of his criminal associates, but 
he also bumps into hundreds of people who are completely innocent. He 
calls his kid's teacher at school. He may call a cousin. He may talk to 
his barber. All those people are innocent. You don't have to go out and 
get warrants on the innocent people. So, yes, wiretaps bump into 
innocent people. Intelligence agencies bump into innocent Americans 
overseas.
  I was stationed in Vienna briefly when I was an Air Force captain, 
and one of my jobs was doing negotiations with the Soviets at the time. 
We all knew who the guy in the Soviet delegation who was the KGB guy. 
He came to my apartment for a reception with all the diplomatic corps. 
And if he had happened to communicate back to Moscow and we were 
listening in on that conversation and he reported on Captain Wilson and 
what she was like and whether she would like champagne and strawberries 
or what she talked about and the American intelligence agencies bumped 
into that, they would have minimized my participation. If it had no 
intelligence value, it was completely destroyed. But if it had some, 
with respect to this KGB guy, they would minimize it. They would hide 
my identity in a way that they are required to do both by statute and 
by regulation. And that is a long-established practice in foreign 
intelligence
  Mr. HOEKSTRA. So even before the attacks of 2001 and the 
implementation of the terrorist surveillance program, for 21 years the 
intelligence community had developed a strict regimen of here is what 
we do if our surveillance

[[Page H10896]]

touches on an American to make sure that we protect the civil 
liberties, and that whole process for 23 years has been able to be 
reviewed by the Intelligence Committees of the House and the Senate, 
and those procedures from 2001 were extended and applied in the same 
way under the terrorist surveillance program.
  Mrs. WILSON of New Mexico. One of the ironies here is that some of 
our colleagues on the Intelligence Committee who were worried about 
this new law said well, can you tell us how often you collect 
information that is to, from, or about Americans in the normal 
intelligence collection? Well, that would require the intelligence 
agencies to go back and mine their databases, much of which, frankly, 
is not even touched and actually probably violate the privacy of 
Americans in ways that they do not now do so in order to make a report 
to the Congress about collection of information that happened to be 
incidentally about Americans. If the North Koreans called the, pick 
one, Iranians and are talking about one of our colleagues in the 
Congress, that's a conversation about an American.
  Mr. HOEKSTRA. Let me reclaim my time, Mr. Speaker, and yield to my 
colleague from Connecticut.
  Mr. SHAYS. Mr. Speaker, I thank the gentleman for yielding.
  I have been listening to this wonderful dialogue and realizing that I 
didn't want to interrupt the flow, but one thing I am just struck with 
is during the Cold War, we knew what our strategy was. It was to 
contain, to react, and it was mutually assured destruction. I don't 
think Americans have accepted what the new strategy has to be, and it 
has to be detect, prevent, preempt, and maybe act unilaterally. If a 
small group of dedicated scientists can create an altered biological 
agent that will wipe out humanity as we know it, even Jimmy Carter is 
not going to wait for permission from anyone.
  And my point is, I'm struck by the fact that we make it easier, for 
instance, to go into a business or a library to catch a common criminal 
than we do that if we thought a terrorist was potentially using a 
library even within this country to communicate. And I am just 
wondering if, in fact, that is true or not. In other words, isn't it 
true that if I impanel a grand jury, as the attorney, the prosecutor, I 
can just literally go and demand information from a business or library 
and get it, but don't we require, when we go after someone who is a 
terrorist, to literally go to the FISA court, have to swear under oath 
that the information that we are seeking is important? And I guess my 
question relates to the fact that, isn't the key to our success with 
terrorism to break into the cell without the terrorists knowing that we 
have so that we can then break it down and know what they are going to 
do before they act?
  Mr. HOEKSTRA. Let me reclaim my time for a second and answer a part 
of that. My colleague from New Mexico touched it. When in a legal 
proceeding we get a warrant against an individual, or a criminal 
proceeding here in the United States, we target that individual and all 
of the calls or all of the communications of that individual then are 
monitored. Some of these calls may be the kind that the criminal system 
wanted to intercept, talking to another drug kingpin or whatever. But 
at the same time they may pick up a call from his mom, his kid's 
teacher, his dentist, a pizza guy, or whatever, and those are all 
listened to.
  What some folks wanted to do on an alternative to this FISA 
legislation that we passed in August was a guarantee that when you 
targeted this foreign terrorist, somebody that we knew was a foreign 
terrorist and you have to guarantee that that person, whoever he is 
talking to, is also going to be a foreigner, you kind of sit there and 
say, wow, how do you do that? This cell phone has an area code of West 
Michigan; so if someone is calling me and has this number, they are 
probably calling West Michigan. No, I am in Washington, D.C. And for my 
BlackBerry, if they call my BlackBerry, it has got a West Michigan 
number on it, I could be in Europe. You don't know where they are going 
to call, but they said you have to guarantee that it's going to be 
foreign to foreign. You can't do that.
  Mrs. WILSON of New Mexico. But if the gentleman will yield, it's even 
worse than that. If the limitation in law said you can only listen to 
foreign-to-foreign communications and I am trying to listen to your 
cell phone, how do I know who you are going to call next before you 
call me? So if you are a foreigner and you call another foreigner, 
that's fine. But if you call into the United States, I have committed a 
felony because you just called the United States.
  You cannot possibly technically, with very rare exceptions, be able 
to screen out all communications that a foreign target might do calling 
into the United States before the communication takes place.
  Mr. SHAYS. But the bottom line, if the gentleman will further yield, 
is that we literally have more protections to the potential terrorists 
than we do for someone involved in organized crime. We make it more 
difficult, not easier, to get that information. And yet the stakes are 
so high.
  I was in your State at Los Alamos. Is that actually in your district 
or your neighbor's?
  Mrs. WILSON of New Mexico. It's north.
  Mr. SHAYS. What I was struck by was that they showed me a nuclear 
weapon that they made basically out of material they could have bought 
at Home Depot. The only thing they needed was weapons-grade material. 
So I am struck by the stakes being so high, and yet we want to make it 
harder, not easier, to get the terrorists than to get the organized 
crime.

  Mrs. WILSON of New Mexico. But to me it's even worse than that that 
my colleague from Connecticut mentions, because somebody who is a 
criminal in the United States has rights under our Constitution; a 
terrorist outside of the United States does not. They have no 
protections under the first ten amendments, the Bill of Rights, and 
those things. We seek to steal secrets from people who are trying to 
kill us. We seek to listen to the radio communications of our enemies 
on the battlefield, and yet if those enemies are now using a phone, a 
communication on a wire to the United States, we are tying ourselves up 
in court in Washington, D.C. while they are killing our people. It sets 
a standard which is completely unreasonable.
  Now, the Director of National Intelligence came to us in April of 
this year and said, I have a problem, a very serious problem. We are 
starting to go deaf because the Foreign Intelligence Surveillance Act 
has not been updated. He testified in open session last week about the 
Protect America Act, which must be made permanent. This fix to the 
Foreign Intelligence Surveillance Act we passed in August and the 
President has signed. And he said unless we make this law permanent, we 
will lose between one-half and two-thirds of our intelligence against 
the terrorist target. Let me say that again. Unless we make this act 
permanent, we will lose between one-half and two-thirds of our 
intelligence on the terrorist target.
  Think about that. Are you willing to say two of three conversations 
from terrorists trying to kill us, that it is okay not to listen to 
them, it is okay that we go deaf with respect to protecting this 
country against terrorists? I am not. I believe it's possible to 
protect the civil liberties of Americans and focus our resources there 
with respect to the courts while listening to people who are reasonably 
believed to be in foreign countries who are not Americans, and that is 
what the Protect America Act did.
  Mr. HOEKSTRA. Reclaiming my time, I would like to thank my colleagues 
for joining me this evening to talk about this very important issue. I 
thank the generosity of the Speaker.

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